Implications
This case, in which DibbsBarker successfully represented the defendant employer, highlights that inconsistencies in the recollection of past events will not necessarily affect the credibility of a witness. This is the case if circumstances are such that the witness might not reasonably be expected to have a precise recall of the events. On the other hand, a claimant who provides misleading information to an expert or specialist in circumstances where they know that the information will be relied upon in preparing evidence to be admitted in litigation, risks being discredited. This is not only in relation to the matters about which they were dishonest, but in relation to their evidence generally.
In discussing the evidence, the court also noted that matters with respect to which the plaintiff gave evidence during examination in chief were not put to the defendant’s witnesses on cross examination. This suggests that parties should be mindful of the inferences which may be drawn in relation to issues which are not put to the opponent’s witnesses.
Facts
Bradley Hannah (the plaintiff) claimed damages from his employer, Barellan Bobcat Hire Pty Ltd (the defendant), for personal injuries allegedly arising from an assault by Derk Houwen (Derk) and his mother, Karen Houwen (Karen). These injuries occurred during an incident which occurred at the defendant’s office on 8 July 2008.
The defendant company had 200 issued shares, half of which were held by Reinder Houwen (the sole company director) and half of which were held by Karen. Karen was the company secretary. The company had only three employees: Karen, Derk and the plaintiff.
The plaintiff alleged that while he was engaged in a heated discussion with Karen, Derk entered the company’s office and instigated a physical altercation. At one point during the scuffle, Derk purportedly held the plaintiff in a headlock on the ground while Karen repeatedly struck the plaintiff with a golf club (or otherwise) on the back of his head, his back and his right hand.
The events which gave rise to the plaintiff’s claim were strongly disputed by the defendant. Derk alleged that after asking the plaintiff to calm down and “talk about this”, the plaintiff head-butted Derk which initiated the physical exchange wherein both men fell to the floor with Derk holding the plaintiff in order to protect himself. Derk denied the plaintiff’s allegation that Karen had repeatedly struck the plaintiff with a golf club. His testimony was consistent with his mother’s account.
The claim for damages was pleaded on two grounds:
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that the defendant was liable for the acts of Derk and Karen “who, at all material times, represented the directing mind and will of the corporation”; and/or
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that the physical and mental injuries sustained by the plaintiff were caused by the negligence, breach of contract and/or breach of statutory duty of the defendant.
In light of the disputed facts, both parties sought to challenge the credibility of their opponent’s key witnesses at trial. The cross-examination of Karen focused on inconsistencies in a statement she had made annexing a series of telephone calls made by her and others after the incident. The defendant sought to discredit the plaintiff by drawing attention to his dishonesty during two psychiatric examinations when he had provided a false history regarding his use of illicit drugs.
Decision
Martin J rejected the plaintiff’s version of events and dismissed his claim against the defendant. Relying upon the testimony of Derk and Karen with respect to the circumstances of the altercation, his Honour concluded that the injuries sustained by the plaintiff were no more than the consequences of his own actions. As a result, the trial judge found it neither necessary nor desirable to consider the legal issues put forward in the pleadings.
In assessing the reliability of the witnesses, Martin J opined that the inability of Karen to identify certain telephone calls on record was not a matter that went to her credit because it would be unlikely that anyone would recollect the precise nature of every conversation immediately following a traumatic event. On the contrary, the trial judge was highly critical of the plaintiff’s deceitful conduct prior to trial. In particular, his Honour noted that the plaintiff knew that the psychiatrist’s reports would be used in the litigation and thus any explanation was nothing more than a “flimsy self-justification designed to evade the consequences of his dissembling behaviour”.
The trial judge also acknowledged that none of the accusations involving physical violence or verbal abuse by Derk or Karen, which were drawn from the plaintiff in examination in chief, were put to the defendant’s witnesses during cross-examination. Furthermore, his Honour found that the plaintiff’s allegations were not supported by the photographic and/or medical evidence. Accordingly, Martin J concluded that the plaintiff’s accounts had an “air of unreality to them”.
In light of Martin J’s factual findings, he did not find it necessary to determine:
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whether the conduct of the company secretary could be attributed to the company, or
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whether the company was vicariously liable for the actions of the co-worker.
In relation to these issues, the defendant had submitted that a finding in favour of the plaintiff with respect to attribution and/or vicarious liability would have been irreconcilable with the decisions in Deatons P/L v Flew (1949) 79 CLR 370, Presidential Security Services of Australia P/L v Brilley [2008] NSWCA 204 and Howard v State of Queensland (2001) 2 QdR 154. This is because the plaintiff did not establish a connection between the actions of Derk and Karen, and the performance or execution of the defendant’s business.
For more information on this case, please contact:
Terry Killan | Partner
T +61 7 3100 5108
F +61 7 3100 5001
