Why your personal credibility is important in courtPublished on Posted on
Please note that this post was written for Victorian audiences and the information within may not apply to other regions.
It’s an unpopular topic – the idea that the Court makes a value judgement about a person’s credibility based on their past and present behaviour. But it is also a reality of legal proceedings and something worth understanding properly. Your credibility as a Plaintiff could be the difference between a crucial question of fact being accepted the way you tell it from the way somebody else tells it.
It is common for our clients to be expected to provide evidence during their Court proceedings. This will involve them being sworn-in and questioned regarding their case. The answers they give in Court are cross-referenced against the totality of evidence and (in particular) against any inconsistent claims the client has made before.
The Court’s starting position is to accept what you have to say about your case on face value (prima facie). You provide your evidence under oath and are expected to be truthful. To this extent, the Court is on your side, and the onus of disproving your claims shifts to the Defendant.
Acting honestly, and taking the time to answer questions as accurately and specifically as you can, is the best advice for ensuring your credibility in Court.
In order to successfully claim common law damages, a claimant must establish that they have suffered a “Serious Injury” as a result of another party’s “Negligence”.
The Credit Issue can play a factor in proving both of these hurdles.
1. Serious Injury
In a previous blog post (What Makes a Serious Injury?), we explored how the ‘Narrative Test’ is used to contextualise a person’s pain and suffering. Since every case is different, the Court must assess the consequences of an injury within the context of each individual’s circumstances.
One of the challenges faced by the Courts in making this assessment is in trying to gauge a claimant’s subjective experience of pain. This requires consideration of the following:
- how the claimant describes their pain;
- what steps the claimant takes to manage their pain (such as medication or treatment);
- doctors’ professional opinions about the intensity and source of pain; and
- any objective evidence about the disabling effect of the pain.
The weight given to a claimant’s description of their pain experience will depend on an assessment of that claimant’s credibility. If what the claimant says about their pain in Court is grossly inconsistent with how they have described their pain to their treating doctors, the Court will be inclined to believe that the person is exaggerating their evidence.
Objective evidence about the disabling effect of an injury could include a video of the claimant (either posted on their social media or taken by means of surveillance) engaging in an activity they claimed to lack capacity for.
In this regard, it is always best to avoid absolutes unless they truly apply to your experience. Saying that you can “never” do an activity, such as grocery shopping or gardening, may negatively affect your credibility if it is shown that you can still do those activities.
It might seem counter-intuitive, but making concessions when necessary can work in your favour. If saying that “you can still do the grocery shopping but that it causes you some pain” more accurately describes your condition, then say so. You want to be perceived as a credible source.
2. Negligence Hurdle
The Credit Issue can also extend to your recollection of the accident circumstances. A claimant can only sue for damages where their accident was wholly or in part the fault of another party.
A very specific example from the TAC sphere is the law allowing an injured party to recover damages on behalf of an unidentified vehicle. In, for example, a hit and run case, where a negligent driver leaves you seriously injured, your testimony may be the only means of corroborating whether another party was involved in the accident at all. In this scenario, your credibility is extremely important and should be guarded carefully.
The vast majority of claims are resolved without the need for Court proceedings. Nevertheless, it is important to act with integrity throughout the entire claims process to ensure that what you have to say is taken sincerely.