People need to be careful about how they express the impact their injuries have on their life. Because there is often a difference between what you mean and what you say.

It might be acceptable to tell your mates that if it weren't for your bung knee you would have captained the local A grade footy team but in the eyes of the law this statement is taken as fact and requires proving.

If on closer examination it is revealed that you actually played for the B grade footy team and on the one occasion you got called up to the A grade team you missed tackles and dropped the ball, your statement quickly becomes very unlikely.

But it doesn't stop there, the insurer will then wonder how your other statements stack up.

Let's say you also talk about how you planned on buying an old house, do it up for a profit but now because of your bung knee you can't do it.

Then it turns out that there was no bank finance, no application, no properties available within your price range or in the area you mentioned and you in fact had never renovated before at all.

Without intending it, your evidence suddenly becomes unreliable or less reliable.

Saying you could have captained the A grade footy team and that you would have cleared 500 on your reno are perfectly reasonable things to say to your friends over a beer on a Sunday afternoon. Your friends would have a laugh and you'd quickly move on to something else.

But these statements have no place in law at all.

In fact, saying things that cannot be proven or things that seem to go against the evidence can actually have a negative impact on your "credibility" or your believability. This negative impact can then spread like a virus through all aspects of your evidence and can weaken your entire claim.

This is especially bad news if you have soft tissue injuries and the only means of knowing how badly you are affected is by what you say.

A good lawyer though will pick up on your language and will clarify things before they are taken as fact and given to the insurer.

I once had a client tell me that he "couldn't lift his arm" because of his accident. I thought about his accident, the mechanics of the injury (how he got injured) and the actual injury itself (there was no actual impact with the shoulder itself) and I said that I found that hard to believe. I quizzed him further and it turned out that when he was travelling long distances and resting in a certain position, the collective impact of all his injuries resulted in his arm being "very difficult and painful to move".  Because of the pain the client didn't want to move his arm but he physically could move it.

So we explained to the insurer precisely that - that our client's arm becomes quite sore when he is in a fixed position, that it becomes painful to move, the pain goes away after a short period and that he must travel several times per month.

In Samways v WorkCover Queensland [2010] the plaintiff said at trial that he "couldn't lift his arm" above shoulder height because of his injury. The insurer then proceeded to show video footage of him playing football and raising his arm, the arm he "couldn't lift" to catch a ball. In the same case it was revealed that he had told his friends he had been a junior school captain where in fact he hadn't. The video footage and statement was used against the plaintiff to say he was unreliable.

This doesn't mean he was dishonest, it just means he didn't explain the impact of his injury in a language the court understands.

People often confuse "can't" with "don't want to". I "can't" lift my arm really means it's so painful I "don't want to" move my arm. The result is the same, the arm is not used or it is used sparingly, but it is more accurately described.

Remember, statements become fact. Be truthful, be accurate and be honest.

So when you are providing instructions to your solicitor keep in the back of your mind, is this what I actually mean?

Michael Andersen
ILP Legal Practitioner Director
MAELSTROM LAWYERS

Level 13, 50 Cavill Avenue, Surfers Paradise 4217
T: 07 5635 4487 | F: 5635 4201