The importance of cross-examination in the Commission

Our firm recently successfully defended a claim for a psychological injury arising out of a stabbing incident which occurred on 1 January 2017 when the worker was cleaning Burwood Park as part of his work duties.

Key to the defence of this matter was a cross-examination of the worker.

Facts

The worker was stabbed on 1 January 2017 in the upper torso, left shoulder and chest by an unknown assailant and as a result developed a psychological injury.

After the incident, information came to light that the worker may have been selling cannabis in the park. This allegation was put to the worker by his employer and he admitted to selling cannabis in the park on three previous occasions, but said he was not selling it when the stabbing took place.

Liability for the worker’s claim for compensation in respect of psychological injury sustained on 1 January 2017 was denied on a number of grounds including:

• his injury did not arise out of or in the course of his employment (section 4(a))

• his employment was not a substantial contributing factor to the injury (section 9A).

The worker’s credit was also placed in issue.

The worker commenced proceedings in the Commission and at the teleconference we informed the Member of our intention to make an application to cross-examine the worker at the arbitration.

At the arbitration leave to cross-examine the worker was granted, and the matter ran to a determination.

Decision

In a written decision Member Wynyard made an award in favour of the respondent.

When looking at the onus of proof and whether the worker was in the course of his employment at the time of the injury, the Member said he was satisfied that the worker had, to a prima facie level, established that he was in the course of his employment at the time he was stabbed. The police observed him arrive at Burwood Park at 4:23 am on 1 January 2017 on CCTV. He had obtained permission from Council to start work early that day, he was dressed in his Council uniform, and Burwood Park was his usual place of work. 

However this prima facie case could be, and was ultimately, rebutted.

The worker confirmed in his interview with police following the stabbing that he had been selling cannabis for about six months to people that he had known and who “attended Burwood Park to collect the cannabis”. 

In his evidence the worker said he had made “an honest mistake” in telling police that he sold cannabis to various people in the Burwood area when he later maintained that he had only sold cannabis to a homeless man in the park. He then contradicted this and said he gave the man cannabis and did not sell it to him.

The worker admitted that he had been investigated in December 2016 by police regarding allegations that he had been selling illicit drugs in Burwood Park. Whether or not he had ceased his activities by that time, the Member said he was certainly still a suspect in the weeks prior to the attack. 

The Member believed it followed that if the police had been made aware the worker should be investigated, then other interested parties such as rival drug dealers might also have suspected him of continuing his dealing, whether he was or not, hence the attempt on his life on New Year's Day.  

The Member noted he had the opportunity to observe the worker during cross-examination. He believed that while he did give the appearance of wishing to assist the Commission, his answers and demeanour were evasive and he had to be reminded just to answer the question and not volunteer information. He was also noted to be evasive in his answers and argumentative with counsel.  

Finally, the Member believed it was significant that when the worker was first approached by the police he did not suggest that he had been the victim of a random attack. He said that he thought he recognised his assailant and that one reason for the attack might have been that he was trespassing on another dealer’s turf. The Member said that whilst generally it must be acknowledged that random attacks must occur from time to time, it was not something that was ever raised by the worker until five years after the event.

For these reasons, the Member was satisfied the worker was not in the course of his employment when he was assaulted, and made a finding for the respondent.

Takeaway

It is not normal procedure for cross-examination to take place in the Commission, however this case shows the important role that cross-examination plays in matters where credibility is in issue.

It is clear that the way the worker presented during cross-examination helped to inform the Member’s decision. Where the worker was changing his version of events, and providing a confusing account of how the injury occurred and what led up to it, being able to observe the worker as he responded to questions was clearly required.

It serves as a reminder that cross-examination is available in the Commission if the circumstances call for it, and this can be an important tool in putting together a defence to claims. It is also important to raise the question of cross-examination at the teleconference.

*This decision is being appealed by the worker. 

Author: Kate Ralph

Contributing partner: Gary Forster