Think twice before attacking plaintiffs' credibility

Defendants’ lawyers are always looking to challenge the reliability and credibility of plaintiffs. However, two recent personal injury cases in Victoria may take the wind out of defendants’ sails.

Qayom v Kylamanda Investments Pty Ltd (trading as Xanadu Playcentre & Cafe) [2018] VCC 1675 (Qayom)

In 2014, Mr Qayom attended the Xanadu Playcentre with his wife and two daughters where he injured his neck and spine and sustained psychological injury as a result of trying to ‘rescue’ his daughter from a platform.

Mr Qayom contacted the Xanadu Playcentre to make an insurance claim. He discussed a similar incident that had occurred the day prior with staff and returned to the Xanadu Playcentre to record a conversation to obtain evidence.

At trial, the Xanadu Playcentre admitted liability and the only issue was the assessment of damages. Mr Qayom sought compensation totalling $1.6 million.

The Xanadu Playcentre submitted damages should be assessed between $460,000 and $510,000 and attacked Mr Qayom’s credibility alleging:

• he fabricated the story about another incident the day before (as no such incident occurred)
• sought financial recompense within a short time, proving his purpose was for financial gain rather than concerns about public safety, and
• exaggerated the extent of his injuries and was putting on a performance.

Ultimately, the Court accepted that Mr Qayom was credible and awarded him a sum of $1.37 million. The Court accepted that:

• a similar incident did happen a day before
• Mr Qayom was no more compensation focussed than any other injured plaintiff and just because he sought compensation promptly did not undermine his credibility, and
• the medical evidence presented did not contain any suggestion of exaggeration.

Quilligan v Copyshift Group Pty Ltd [2018] VSC 784 (Quilligan)

In 2016, Copyshift Group Pty Ltd (Copyshift) purchased rolls of plastic wrap from Melbourne Packaging Supplies Pty Ltd, which engaged Swift Transport Services (Swift) to collect the rolls and deliver them to Copyshift. Mr Benjamin Callos was the delivery driver engaged by Swift.

John Quilligan, Copyshift’s Head of Sales and Business and also a Director of the company, claimed that he sustained an injury after a forklift ran over his feet, which caused a micro-abrasion that became infected—leading to an infection in the bone and the resultant amputation of his lower right leg. Mr Quilligan is a blind diabetic with significant pre-existing pathology, including being diagnosed with Charcot’s Foot syndrome. Mr Quilligan was granted leave to proceed without having obtained a Serious Injury Certificate because he suffered a life threatening condition unrelated to the proceeding.

There were competing accounts of what happened on the day of the incident with substantial key differences between Mr Quilligan’s and the Defendant’s accounts. Ultimately, the Court accepted Mr Quilligan’s recollection of the incident. Nevertheless, Mr Quilligan ultimately failed to establish that the incident caused the injuries.

The Court found that there was no connection between the incident and the blister or the blister and the infection. The injury was not considered work-related and his Serious Injury Application was dismissed.

What does this mean for you?

These judgments are reminders that Victorian Courts’ inclination start from the position that the plaintiff is a credible witness. If defendants do intend to attack a plaintiff’s credibility, this decision needs to be backed up by comprehensive medical reports and surveillance materials to substantiate their assertions.