From roughhouse to courthouse – skylarking, surveillance and spurious claims From roughhouse to courthouse – skylarking, surveillance and spurious claims

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From roughhouse to courthouse – skylarking, surveillance and spurious claims

10 August 2020 | Employment and Safety

The NSW District Court has found in favour of the plaintiff in a personal injuries case, which involved serious challenges to his credibility. Both the circumstances of the incident (which resulted in him sustaining a serious ankle fracture) and the extent of his disability were in dispute. Despite having provided 11 different accounts of the incident and notwithstanding there was evidence of him working out at the gym, he was found to be an honest witness and his evidence was accepted.

In Issue

  • The credibility of the plaintiff in circumstances where differing versions of events existed;  
  • The extent of the plaintiff’s ankle injury and associated disability where there was evidence of  him undertaking lower body resistance training at the gym.

The background

Mr Jony Ajia, (the plaintiff) was a labour hire employee working at the defendant’s construction site in New South Wales when he sustained an ankle fracture in disputed circumstances. The initial version of events (which was recorded in a signed incident report) was that the plaintiff’s supervisor had tripped on a kerb and had grabbed onto him as he fell, landing on the plaintiff’s ankle. Over the years, the plaintiff had reported different versions of the incident to various medical professionals.

The plaintiff’s evidence at trial was that his supervisor had come behind him and playfully pulled him into a bear hug. He instinctively turned to try to get the supervisor off him and they both fell, with his supervisor landing on his leg. He did not accept the description in the incident report as accurate, and said that his supervisor had written it, and that he signed it whilst in hospital and without realising its significance. Relevantly, the supervisor had provided a statement shortly after the incident in which he stated the plaintiff’s injury occurred when they were wrestling together.

As to his injuries, the plaintiff reported significant restrictions in his capacity to walk on uneven ground, stand, squat and undertake repetitive lifting. Various reports were tendered which indicated he would be unable to return to his prior employment in the construction sector, and would be limited to sedentary or semi-sedentary roles. The defendant disputed this, and called a medical expert who opined the plaintiff could return to his pre-injury employment without restriction. They also called a private investigator (PI) who had observed the plaintiff performing lower body resistance training at the gym and provided evidence in relation to this. The defendant had sought to tender video footage of the plaintiff working out at the gym, but withdrew the tender of that material after the plaintiff took an objection to it.

The decision at trial

The trial judge considered the plaintiff to be a trustworthy witness and accepted the plaintiff’s evidence about what occurred and that the statement in the incident report was incorrect. The judge did not consider that the inconsistencies in how the incident had been described in different medical practitioner’s records was determinative. He held that the supervisor’s behaviour created a not insignificant risk of injury, which was foreseeable, as the supervisor had been involved in similar conduct previously. Precautions such as providing adequate supervision on site, disciplining the supervisor for his previous behaviour or providing him with further training ought to have been implemented, and as such the defendant breached its duty of care.

Much of the PI’s evidence was not accepted, and the judge was highly critical of his report. Because of this, and as the video footage was not admitted into evidence, many of the findings made by the defendant’s experts were not maintainable. The judge did not consider the plaintiff’s attendance at the gym meant that he could undertake his pre-injury employment, and overall the plaintiff’s medical evidence was generally preferred. In terms of mitigation, it was held that the plaintiff took reasonable steps to mitigate his loss including by undertaking further training. The plaintiff was awarded $662,102 in damages, including an award of $196,163 for future economic loss.

Implications for you

This decision is a reminder that not all evidence is created equal, and parties need to give due consideration to the fact that courts may value certain evidence above others. It also highlights the difficulties that can be associated with surveillance, particularly in situations where expert opinion may be based on the surveillance. For employers and host-employers, the case serves as a reminder that horseplay and skylarking in the workplace is inappropriate and that measures need to be taken to prevent such activities.

Ajia v TJ & RF Fordham Pty Ltd trading as TRN Group [2020] NSWDC 371

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Natalie Morris

Natalie Morris

Solicitor