The criminal record of a tradesman injured at the “Promenade” construction site in Robina Town Centre in May 2009, sealed the fate of his $350k back injury compensation claim made against conflicting evidence of how it occurred.
David Arnold, a self-described “very confident, very experienced and a very good tiler” had been on the job for about four weeks. He claimed that to replenish supply for the laying team that morning, he walked across to an “exclusion zone” inside which the boxes of tiles were stacked.
Having seen others do the same thing, he “swung over” a 750mm high scaffold rail, extend his arms out and twist back around with a 25kg box in hand and by this means sustained a back injury. At the heart of the dispute was whether or not there was any “exclusion zone” cordoned off as alleged, or a barrier of the type described.
Against his contention, was the absence from the incident report of any mention of these things or the cherry picker he claimed had been confined within. And because he had supplied a version of events to safety consultant Justin O’Sullivan, different to that given in the witness box, the expert’s report – although supportive – was worthless.
Four witnesses for the defendant – two supervisors, another tiler and a “labourer/safety officer” -claimed a very different set up: the barrier was of a different type and there was no exclusion zone and therefore no excuse for Arnold not to have safely lifted the box directly from the top of the pallet stack at close range to his body.
While acknowledging that “merely being outnumbered by other witnesses does not of itself” stamp a witness’s account as unreliable, the court turned to the plaintiff himself, to decide in whose favour it should rule on these basic facts.
Arnold’s conviction in 2000 of robbery whilst armed – albeit by poking his finger under his t-shirt to resemble a pistol – was an adverse factor required to be taken into account because of the “violence” element of that offence.
Worse still for the hapless worker, after release on “home detention,” he was breached for drug and then for alcohol use – and was thus re-committed to serve his entire four-year term for the robbery offence – and was later delivered a 12 month suspended sentence for a subsequent domestic violence episode.
This history and his “overly evasive” witness testimony proved enough for his honour to decide that “the exclusion zone did not in fact exist and the barricade was in fact not there”, conclusions that were fatal to the success of the plaintiff’s claim.
In the end, an emphatic victory for WorkCover and the defendant employer.
Arnold’s appeal to the Court of Appeal was dismissed in August 2013.