Many people assume their memories are like video recordings of events, stored away for future viewing.
However, it is generally accepted among the scientific community that the human memory is not perfect and over time our recollection of events can fade while our imagination fills in the gaps.
It is for that reason judges and other decision makers often give more weight to information taken down in writing immediately after the accident than your recollection of events years later.
A recent case in the Personal Injury Commission highlights the dangers of relying on doctors and other third parties to make accurate records about an injury.
In Egan v Kids Department Store Pty Limited [2021] NSWPIC 215 the worker was injured when she slipped and fell to the ground at work. She was taken to a GP who referred her for x-rays of her right ankle as that was causing her the most pain. She alleged she also told him she hurt her back and neck.
Over the years she underwent treatment for significant injuries to her ankle and neck. The worker gave evidence that she had also complained of back pain during visits to her doctor but her complaints had been brushed off.
Unfortunately for the worker, the notes taken by her medical practitioners only mentioned back pain once on the date of the injury. There was no further mention of back pain for several years.
An investigator for the insurer took a statement from the worker a few months after the injury and there was no mention of back pain in that statement.
The Member noted the worker's memory may be unreliable after so many years. While the Member accepted clinical notes are not necessarily comprehensive and do not usually record in minute detail the conversations between patients and their doctors, in the absence of any contemporaneous records of her complaints, the worker could not prove her claim on the balance of probabilities.
Would a diary have helped the worker in this case?
Possibly yes. If the worker had recorded her symptoms in her back as they were occurring and made notes when she had spoken to her doctor about it, then there would have been some contemporaneous evidence to support her recollection of events.
What should you write in the diary?
The diary should ideally be a new document or book used solely to record evidence about your claim.
As soon as possible after the injury, write down in your own words in as much detail as possible, what happened and what symptoms you felt. Not just the main symptoms but anything else you notice, even if it seems minor.
You should keep notes about your symptoms and any resulting disabilities such as difficulty performing household chores and whether anyone is assisting you at home. Appointments with doctors and other treatment providers can be noted with a brief note about anything important you told the doctor or that the doctor said to you.
You can also make notes of important meetings or telephone discussions you have with the insurer and your employer.
What you should not include
Remember the diary may be tendered in evidence one day so anything you don't want your employer, insurer or the decision maker to read should be left out.
Stick to the facts and leave your personal opinions about the people involved in your claim out of it. If you must vent, do it in a separate private journal.
Do not make notes about legal advice you have received, this is privileged information between you and your lawyer.
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DISCLAIMER: This blog is made available by Mortimer Fox Lawyers to give you general information and a general understanding of the law, not to provide specific legal advice. Unless otherwise stated, all information provided pertains to injuries sustained in or in connection with New South Wales. By using this blog you understand that there is no solicitor client relationship between you and Mortimer Fox Lawyers. This blog should not be used as a substitute for legal advice. If you require legal advice please contact us for an appointment.