The Supreme Court has chided a plaintiff’s lawyers during a seven-day personal injury trial, for “deliberately not obtaining a signed statement” from their client to gain a forensic advantage by preventing a disclosable document coming into existence.
“At the very least it would seem that the solicitors acted in a way which was contrary to the objects of the Workers’ Compensation and Rehabilitation Act (WCRA)”, said the court in the context of a “recent invention” argument about exactly how Tim Schonell had sustained his ladder-related scaffold injury at the Paddington Barracks construction site in June 2008.
“In the ordinary course of litigation, an allegation of the recent invention would be met by a signed statement by the person accused of the invention to demonstrate the consistency of the person’s account. That cannot occur in this case because of the method used by the plaintiff’s instructing solicitors to take instructions”.
Rather than prepare a statement for the plaintiff to sign – the conventional course preferred by His Honour – the plaintiff had given instructions on versions of a lawyer-prepared third-person account of events. Because the parties agreed between them on the production of a redacted version of this record, the court left undecided whether such a document was “a written statement made by the claimant” and therefore disclosable under s 279.
When cross-examined as to inconsistencies between the earlier version of the incident put to medical specialists his lawyers had briefed and the slightly different version he gave from the witness box, Schonell explained that his “solicitor had a little difficulty understanding some of the terminologies I was using as well. It was foreign to him what I was talking about. I don’t know whether he missed it then.”
The ‘terminology’ variations had mostly been concerned with “various height of objects, including the ladder and the fact the planks were aluminium, not wood”.
Had Schonnel been believed that his loss of balance when stepping from the scaffold to the ladder and consequent knee twisting injury – was due to his left foot being caught between the platform planks (the later version), rather than merely attempting to return to the platform (the earlier version) – the employer’s admitted failure to deploy “plank clamps” to prevent the scaffold planks slipping, would likely have been enough to notch up a win.
But His Honour found the plaintiff “to be a person given to exaggeration and to claiming greater an injury than he actually suffers”. He also concluded that as “an intelligent man who would have been able to describe the mechanism of the injury in simple terms”, it was unlikely that the earlier version was erroneous and more likely the later version was a fabrication or embellishment.
In such circumstances, the absence of “plank clamps” – however negligent it might have been not to provide them – made not a jot of difference to the causative elements of the injury. Damages – claimed at $2 million – were assessed at $1.43 million including $125,000 for general damages for a 33% whole person impairment with very significant ongoing pain.
As a result of the benign ruling on the fault that followed from how the injury was found to have occurred, Schonell’s claim ended with a dismissal against which an appeal has subsequently been lodged.