December 20, 2018

Insurance

AAT eyes claim with scepticism – K&S Freighters come out on top

On 10 October 2012, Mr Horvath said that he got shot in his left eye with a high pressure stream of hydrogen gas. He was working as a truck driver delivering gas cylinders at the time. The pain was “excruciating”. The accident “horrific”. He said that he sustained a secondary psychiatric injury.

Mr Horvath’s employer, K&S Freighters, was not so sure. The claim was declined, and that decision affirmed. The separate claim for a secondary psychiatric injury was rejected.  

The Tribunal heard evidence from a number of lay and medical witnesses, and of course Mr Horvath. The Tribunal also heard from a Chemical Engineer.

The only direct evidence of the incident was that of Mr Horvath. There were no other witnesses to the incident. There were inconsistencies littered throughout his description of the event. The Tribunal said that he “did not present as a truthful or candid witness”.

K&S obtained expert evidence from a Chemical Engineer who concluded that the incident could not have occurred in the manner alleged. An experienced employee of K&S said that in 19 years she was not aware of a similar incident occurring. To her it seemed “unlikely” the incident could have happened in the manner alleged.

The medical evidence did not assist Mr Horvath’s case. In 1994 he had been diagnosed with a gradual deterioration in his left eye, secondary to a cataract. He was operated on at the time. The weight of medical evidence tendered in the case supported the assertion that Mr Horvath’s reduced vision in his left eye was a result of this congenital issue.

The Tribunal was not satisfied the incident as claimed by Mr Horvath occurred or that a left eye injury was sustained as alleged. It found that any injury to Mr Horvath’s left eye did not arise out of his employment with K&S Freighters. Out of necessity, the psychiatric injury was also rejected.

Take home points from Horvath

  • For incidents where the only direct evidence is that of an employee, credibility is key. Mr Horvath failed because he was not a credible witness. Any inconsistencies, or even assertions that don’t quite sit, need to be explored.
  • Again the importance of (even aged) medical records is shown in this decision. If there is a relevant pre-existing condition identified, be prepared to dig deep!
  • Expert engineering evidence (considering re-constructions of an event) was accepted and relied upon by the Tribunal. It should be considered when an event is unwitnessed or there is contention as to the mechanism of an incident.  

Full Decision – 2013/2268, 2015/2974 – Horvath v K&S Freighters Pty Ltd – 19 December 2018