FALLING CREDIBILITY – TRIAL JUDGE IS NOT HAVING A BAR OF IT

Legal Directions

Moyes v Ensco Australia Pty Ltd [2020] WADC 99

Background

The plaintiff claimed to have been injured whilst working on an offshore drilling rig.
He alleged that he slipped on a mud mixture, causing him to fall (the accident).

The plaintiff reported a significant back injury, alleging a T8 fracture, a prolapsed disc at T7/T8, and nerve damage resulting in a pain syndrome. He also claimed to have developed psychological sequelae.

He subsequently brought a claim for damages against the operator of the drilling rig (the first defendant) and the labour hire company that employed him
(the second defendant).

Issues 

The defendants denied that the accident occurred and asserted that the plaintiff was an unreliable witness. At trial, it was submitted that it was open to the Court to conclude that the plaintiff was malingering.

At the conclusion of the trial, the plaintiff conceded that the claim against the
second defendant could not be made out, with the plaintiff not having met the statutory impairment threshold for a common law workers’ compensation claim. The judgment then was essentially with respect to the alleged negligence of the first defendant only.

Accordingly, the issues at trial were:

  1. Whether there was in fact a fall
  2. If there was a fall, whether the plaintiff sustained physical or psychological injuries
  3. If the plaintiff sustained an injury, the extent of any disability caused by the same.

Decision

The claim was the subject of a long trial, having been heard in three parts between October 2017 and December 2018.

Petrusa DCJ published a lengthy (180 page), thorough, and fully-reasoned judgment addressing the various issues raised at trial. This article is by no means a comprehensive summary.

In relation to the preliminary issues, Her Honour accepted that a fall had occurred, having regard to the contemporaneous medical record log and the evidence of co-workers. It was also accepted that the first defendant had breached its duty of care in failing to take precautions to address the risk of falls.

The severity of the fall and the nature of any injuries sustained by the plaintiff were then considered. In this regard, the plaintiff’s credibility was of importance and
Her Honour undertook a detailed analysis of various aspects of his evidence and inconsistencies in his presentation.

Credibility

In relation to credibility, Her Honour noted unusual features in the plaintiff’s presentation at trial, relevantly:

Overall, Mr Moyes’ presentation engendered sympathy, conveying as it did the clear impression that he was in almost constant pain, was uncomfortable and not able to move freely or readily.

However, there were two occasions when there was a dramatic departure from this presentation. On each occasion, Mr Moyes’ attention was focused on other tasks and he acted unconsciously.

Her Honour also observed that the plaintiff had a long-term use of narcotic pain medication that pre-dated the accident, concluding that he had been addicted to Endone. In that regard, the plaintiff had been incarcerated pre-accident and at that time reported the recent loss of a girlfriend. However, his evidence at trial was that his only girlfriend who had died did so in a car accident seven years before his incarceration. From this, Her Honour concluded:

This demonstrates that Mr Moyes is prepared to speak an untruth, to gain sympathy for the purpose of seeking drugs. If this was not the case, then his motivation, and his accompanying emotional display, is not readily apparent.

Her Honour otherwise noted that:

In the course of giving evidence, Mr Moyes was inaccurate, inconsistent and at times, clearly untruthful. There are many examples relating specifically to his claim.

A lengthy list of examples were then summarised, highlighting inconsistencies and plain fabrications on the part of the plaintiff. Of particular note, the plaintiff claimed to have memory loss due to medications he was taking, yet at other times claimed to have a perfect recall of particular events. That is, he appeared to have a selective memory when it suited him.

After considering the various credibility issues at length, Her Honour concluded that:

 I am satisfied that Mr Moyes was not truthful, accurate and reliable about the forceful nature of his fall, and the injury, pain and limitations arising from that fall, and about many of the other matters as set out above. I cannot accept his evidence.

Medical evidence

In addition to the credibility issues, there was competing medical evidence tendered by the parties. In particular being a dispute as to the interpretation of the radiographic films. Her Honour observed that the opinions of the plaintiff’s medical experts were largely informed by, and reliant on, the truthfulness of his reporting and, given the above credibility finding, little reliance could be placed on those opinions.

It followed that the plaintiff’s claim was dismissed.

Implications of decision

This decision serves to highlight the significant litigation risks a plaintiff may face where credibility becomes an issue in the absence of independent witnesses to an accident.

From an insurer / employer’s perspective, the case demonstrates the importance of thoroughly investigating claims and, where appropriate, putting a plaintiff to proof at trial.

It is noteworthy that the plaintiff was represented at trial by a Senior Counsel,
a Junior Counsel, and interstate solicitors. His solicitor-client costs will doubtless be significant, in addition to the party-party costs the defendants may seek to recover.

Further information / assistance regarding the issues raised in this article is available from the authors, Daniel Costanzo – Partner and Daniel Coster – Senior Associate, or your usual contact at Moray & Agnew.


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