WCRA: lack of corroboration sinks work injury claim

WCRA: lack of corroboration sinks work injury claim

Sinclair v Sunshine Coast Independent Living Service Inc [2016] QSC 63

Holmes CJ

The plaintiff was employed as a disability support worker at the Sunshine Coast Independent Living Service (SCILS). She brought a claim against SCILS alleging that she sustained a back injury in the course of her employment. It was alleged that the back injury arose while attempting to pull a client’s wheelchair over the step of a doorway. Relevantly, the plaintiff failed to record details of the incident in the daily records book as required by her employment and there was no evidence of a complaint made to her general practitioner or her employer regarding the injury at the time of the incident on 28 July 2013.

Crucial to the Chief Justice’s ruling was that the plaintiff had suffered a back injury in 2010 which was the same as the present injury. Relevantly, it was notable to her Honour that despite multiple visits to her doctor after the alleged work incident, she had not mentioned the work injury until 8 August 2013.

The defendant denied the occurrence of such events and submits that if it did happen, it was not a foreseeable risk.

The Chief Justice held that negligence against SCILS may have been found as it was foreseeable that an attempt to manoeuvre a heavy client in a wheelchair over the step may have led to injury, and that SCILS failed to ensure that its workers were aware of alternate entry and exit points with wheelchair-bound clients. Ultimately though, judgment was entered for the defendant because the plaintiff could not establish that the injury was sustained in the course of her employment. In ruling that the plaintiff’s account was unacceptable, the Chief Justice held:

[25] I have come to the conclusion, for a number of reasons, that Ms Sinclair’s account of hurting her back while moving [the client] on 28 July 2013 cannot be accepted. One could readily understand, in light of the trying circumstances in which [the plaintiff] finished her shift on that day, that she might have felt too tired and dispirited to make a record of events, but that is not what occurred. She did in fact make notes in both the monthly household communication book and the service user daily record of events during her shift. The note in the latter was cheerful in tone. It is simply not credible that had [the plaintiff] sustained a significant back injury, she would not have recorded the event in either document.

[27] … The glaring absence of any mention of back pain in the presentation four days after the accident is entirely inconsistent with [the plaintiff] having injured herself.

[30] … Whatever the reason, while their evidence was on its face plausible, it does not overcome the problem of [the plaintiff] having failed utterly to complain, in a context in which it is obvious that had she been injured she would have done so: in the household notes, to [the accommodation officer], and to her own doctor.

The case was dismissed. The plaintiff’s account was not accepted and there was insufficient evidence to found negligence against SCILS.

David Cormack – Brisbane Barrister & Mediator

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