In Deanne King v Workers' Compensation Regulator  QIRC 134, the Queensland Industrial Relations Commission (QIRC) allowed a worker to lead 'similar fact evidence' in support of an appeal. The worker was appealing against a rejected claim for a psychological injury caused by alleged bullying and harassment by her supervisor.
The case reflects a trend in the way claimant lawyers are litigating claims for psychological injury, which makes defending them more onerous.
The worker was a night fill team leader at Coles' Stafford store. Coles initially rejected the worker's claim based on the 'reasonable management action' exclusion in the Workers' Compensation and Rehabilitation Act. The Regulator upheld the rejection.
The worker appealed to the QIRC and, to support her appeal, sought to call evidence from a co worker about an entirely different occasion where the manager had allegedly acted unreasonably towards her.
The Regulator objected to the worker's right to call 'similar fact evidence'.
The rules of evidence provide that a 'similar fact' is admissible if it is 'logically prohibitive' and not unfair or oppressive to allow the evidence to be called. While the QIRC is not bound by the rules of evidence, it must be guided by them and act judicially. In this case, the QIRC found that the formal application of the rules would not have altered the outcome.
Although the decision does not say much about the nature of the evidence the co-worker intended to give, the QIRC concluded that the co-worker should be able to give that evidence. However, the relevance and weight to be afforded to that evidence should be left to the ultimate trier of fact to determine, after having the benefit of hearing the totality of the evidence.
Claims for psychological injuries face many more legal hurdles than other types of claims and often rely more on quite subjective matters. The use of 'similar fact evidence' can assist claimants to overcome these problems. However, the trend is certainly concerning for employers because it can mean they need to investigate and hold 'mini-trials' in respect of the grievances of multiple workers where evidence may be difficult to marshal.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
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