The Bikie Wars – The high threshold for discrediting an injured Plaintiff

As lawyers, we are often left to assess the credibility of a Plaintiff based upon the paper trail they leave in their wake – pasting together prior inconsistent statements, medical records and documentary irregularities to conclude that ‘this guy is a liar’!

The Queensland District Court was recently asked to grapple with this dilemma – whether a Plaintiff was an honest and reliable witness – in the matter of Mashaghati v Anderson & Allianz.

The Facts

The Plaintiff (Mr Mashaghat or ‘Magic’ to his friends and colleagues), alleged he suffered various injuries when he crashed his Harley Davidson into a parked car whilst taking evasive action to avoid a collision with the Defendant. Liability was not contested.

The Plaintiff alleged that as a consequence of the accident he suffered injuries to his head, cervical spine, lumbar spine, broken teeth, left ankle, chest, left pelvis and a psychological injury. He claimed he was unable to return to work on a full time basis as a mechanic because of the injuries stemming directly from the accident.

The Court was asked to consider whether the Plaintiffs reported levels of pain and disability were genuine and directly related to the collision, or whether the Plaintiff was, as suggested by Defence Counsel “a liar and convicted perjurer who has no credit and who has sustained a minor injury, exaggerating its effect to pay off debts to the Hell’s Angels.”

The Unusual Facts

There were many unusual aspects to both the Plaintiff and the case. These include:

  1. The Plaintiff, a German national, did not admit himself to hospital after the accident despite alleging he sustained serious orthopaedic injuries in the collision, but instead travelled to Germany for 10 days to receive treatment, before returning to Australia.
  2. The Plaintiff again returned to Germany some time later, at which point his Australian visa cancelled. He was unable to return to Australia for the trial and gave evidence via video link
  3. The Plaintiff had a criminal history in Germany prior to the incident that included collaborative assault and battery, embezzlement, fraud and perjury. The Plaintiff was also convicted of importing narcotics into Germany in 2014 and of breaching a Domestic Violence Order in 2013 in Australia.
  4. The Plaintiff’s friendship circle and business associates included Nuno Da Silva (convicted drug trafficker), Bruno Da Silva (convicted drug trafficker), Nigel Munt (convicted drug trafficker and Brisbane ‘identity’) and Errol Gildea (Hell’s Angel member).
  5. The Plaintiff, despite being a single father on a limited income, had $100,000 cash savings that he accrued over a period of several years. Judge Morzone did not consider this anomalous financial position as anything more than “a matter of mystery, intrigue and conjecture”, notwithstanding the evidence, noted below, led by the Defendants at trial.
The Plaintiffs Credibility

The Defendants argued that the Plaintiff had demonstrated an indicia of dishonesty that permeated the veracity and genuineness of all his evidence and reported symptoms and therefore rendered him a wholly unreliable, if not dishonest, witness.

At first glance, the Plaintiff had:

  1. Lied in his Notice of Claim. The Plaintiff failed to disclose a significant prior history of lumbar spine pain and injury, despite signing a statutory declaration that the contents of the Notice were true and correct;
  2. Engaged in undesirable behaviour with previous employers, such as bullying and harassment and doing competitive work. There was also a suggestion of some fraudulent tax activity;
  3. A history of serious criminal offences, including dishonesty offences,
  4. Exaggerated and embellished his pre-injury qualifications, telling various practitioners that he held a Mechanical Engineering degree, was a lecturer and teacher at University of Queensland and was a consultant engineer to the university. (In reality, the Plaintiff had a trade certificate as a motor mechanic and no formal tertiary qualifications).
  5. Presented as a hostile and rude witness when giving evidence.
  6.  A history of association with known criminals and bikies.
The Findings

This amalgam of apparent dishonesty and criminality was insufficient for the Court to find  that the Plaintiff’s evidence should be rejected outright. Judge Morzone:

  1.  Accepted the Plaintiff’s evidence that he did not complete the Notice of Claim, and that this was done by his solicitors, of whom he was disparaging. Judge Morzone considered the declaration of prior injuries to be “relative and subjective” and not determinative of credibility;
  2.  Accepted the Plaintiff’s claim that he had not engaged in any wrongdoing with his previous employer, in the absence of any other corroborative evidence led by the Defendants;
  3.  Accepted the Plaintiff’s various explanations and minimisations for his criminal history, in the absence of secondary evidence contradicting the Plaintiff’s, such as:(a)       Collaborative Assault and Batters – a failure to dispute an excessive force complaint whilst running a security company;(c)       Fraud – a dispute with a customer about a mobile phone;(e)       Importing narcotics – they were not mine.
  4. (d)       Perjury – an inability to identify an instigator of a fight to police;
  5. (b)       Embezzlement – a misunderstanding about a mobile phone whilst operating a phone shop;
  6. Found the Plaintiff did not deliberately embellish his resume, but rather had “merely sought to equate his leaning and experience [in Germany] with a recognised Australian equivalent.”
  7.  Was forgiving of the Plaintiff as a witness, as “whilst his demeanour occasionally appeared  arrogant, argumentative  and curt, much of this was manifest by his heavy accent, passionate personality and the style of cross examination
  8. Was not prepared to tar the Plaintiff with the same brush as his infamous associates, and excused the Plaintiff of any ‘guilt by association’.

The Court ultimately concluded that some of the credit issues raised by the Defence diminished the Plaintiffs credibility but only where his evidence was unsupported by other testimony or documents. In the end, Judge Morzone was not prepared to reject the Plaintiffs evidence as a whole.

The Plaintiff was awarded $155,993 in damages.

What can we learn?

At first glance, the Defendants had a solid credibility case against the Plaintiff. The Plaintiff seemed an incredible litigant – a convicted criminal, a suspected bikie, and a witness with a laissez faire approach to the truth.

However, the Plaintiff on paper was not the Plaintiff that was assessed by the Court. In this instance, the Court had the opportunity to examine the Plaintiff in person (albeit via vieolink) and in doing so tended to forgive many of the issues that were so damning on paper.

The Plaintiff also, throughout the trial, was given ample opportunity to explain away and justify conduct that otherwise had the potential to be damaging to his credit.

There are valuable lessons to be learned when running a credit case against a Plaintiff. In order to mount a sound credibility case against a Plaintiff, defendants should:

  1. Meet the Plaintiff: Properly assess how the Plaintiff may present at trial with as much objectivity as possible during pre-proceedings. Is the plaintiff likeable or charming? Do they engender sympathy? This assessment may include robust participation in settlement conferences, and the opportunity to see the Plaintiff in person.
  2. Have more than one bow in your quiver: A Court is unlikely to damn a witness for a one-off lie or small inconsistencies in their evidence. In recent cases, the Queensland Courts have only dismissed Plaintiff evidence when there is a sustained, comprehensive and proven dishonesty on the part of the Plaintiff.
  3.  Prepare for Everything. Do not rely on documentary evidence alone to prove dishonesty. Play devil’s advocate and foreshadow explanations and justifications for dishonesty and ensure key witnesses are available to give evidence at the trial that can refute the Plaintiff’s story;
  4. Get Creative. Seek out secondary, corroborative evidence that is outside the traditional legal sphere. Social media accounts and the odd google search that demonstrate activity that are inconsistent with reported disability can be another chink in the Plaintiffs armour.

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