Apostolopoulos v Victorian WorkCover Authority (Ruling)

[2024] VCC 176

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE
COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-02491

JOHN APOSTOLOPOULOS	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

---

JUDGE:	HER HONOUR JUDGE MAGEE
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2023
DATE OF RULING:	29 February 2024
CASE MAY BE CITED AS:	Apostolopoulos v Victorian WorkCover Authority (Ruling)
MEDIUM NEUTRAL CITATION:	[2024] VCC 176

RULING
---

Subject:EVIDENCE

Catchwords:              Admissibility of suitable employment report

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325; Evidence Act 2008 (Vic), s55, s60, s62, s64, s75, s76, s135

Cases Cited:Wily v Terra Cresta Business Solutions Pty Ltd & Ors [2006] NSWSC 949; Rees v Lumen Christi Primary School [2010] VSC 415; Liesfield v SPIElectricity Pty Ltd [2014] VSC 348; New South Crime Commission v Vu [2009] NSWCA 349; Public Transport Corporation v Pitts [2007] VSC 356; Giankos v SPC Ardmona Operations Ltd (2011) 3 VR 120

Ruling:  Parts of suitable employment report admissible.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S A Smith KC with Ms A Smietanka	Zaparas Lawyers Pty Ltd
For the Defendant	Ms G J Cooper	Wisewould Mahony

HER HONOUR:

1On 28 November 2023, the first day of the hearing of a Serious Injury Application, and prior to the formal opening of the case, the plaintiff objected to the admissibility of a report obtained by the defendant.  The report was entitled “Suitable Employment Report” dated 19 September 2023.  It was prepared by Janette Ash of Recovre Pty Ltd (“the report”).

2Mr Apostolopoulos claims that he injured his right knee in a specific incident on 10 April 2021 while working for his employer, Hickory HR Pty Ltd, and throughout the course of his employment generally.

3Mr Apostolopoulos claims that his injury is a “serious injury” pursuant to s325(a) and (c) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) and seeks leave to issue proceedings for pain and suffering damages and economic loss damages.

4The hearing of Mr Apostolopoulos’ application was adjourned part heard to 15 December 2023 so that a preliminary ruling on the preliminary issue of the admissibility of the report could be made.

5The parties were directed to file and serve written submissions on the issue – the plaintiff by 1 December 2023, and the defendant by 8 December 2023.

6Due to an administrative error, the plaintiff did not file his written submissions until 4 December 2023.

7Consequently, the defendant was granted an extension of time to file and serve its written submissions by 11 December 2023.

8As a result, the Court was not in a position to deliver a ruling on the preliminary issue on 15 December 2023.

9This ruling relates to the report and should not be construed as a ruling relating to vocational assessments more generally.

The report

10In order to understand this ruling, it is necessary to describe the report in some detail.

11Ms Ash is described as an Occupational Therapist/Injury Management Consultant.  Ms Ash holds the following qualifications:

·        Victorian Certificate of Education (1990)

·        Bachelor of Occupational Therapy (1995)

·        WorkHab Licensed FCE Evaluator (2007).  (There was no evidence before the Court about this qualification).

12The report is described as a “Suitable Employment Report”.  It is not a vocational assessment report.

13It is materially different from many of the vocational assessment reports that are commonly produced in Serious Injury Applications.

14It is unclear when the report was commissioned but I infer that it was commissioned on or about 12 September 2023, which is the date of the relevant letter of instructions from the defendant’s solicitors to Ms Ash.  (That letter is referred to in the report but was not provided to the Court).

15According to the report, specific worksite assessments were requested as follows:

“… noting the worker’s experience generally and in the construction industry are you able to identify any supervisor / overseeing roles the worker could do, or do with some level of skill upgrading / training.  … .”

16The report is dated 19 September 2023 – that is, some seven days after the date of the letter of instructions.  It is a relatively short report of 16.5 pages with a further three pages of annexures.

17The report referred to two documents which were provided and reviewed:

·        A letter of instructions dated 12 September 2023

·        a report of Dr Philip Haynes, Occupational Physician, dated 10 March 2023.

18The plaintiff was not interviewed for the purpose of the report.  Ms Ash did not have access to the plaintiff’s affidavit or any medical material from the plaintiff.

19In the report, Ms Ash frequently referred to herself and at least one other person as being the authors/writers of the report.  No other writers or authors were named or identified in the report.

20Ms Ash acknowledged receipt of the Expert Code of Conduct and said that the Code of Conduct had been “read by the writers and the writers agreed to be bound by it”.

21The report referred to three worksite assessments – all of which predated 12 September 2023.

22The first worksite assessment related to the position of an automotive service advisor in Keysborough.  According to the report, the worksite assessment was conducted on 6 September 2023. 

23The second worksite assessment related to the position of an automotive parts interpreter – front counter, in Keysborough.  According to the report, that worksite assessment was also conducted on 6 September 2023. 

24The third worksite assessment related to the position of a construction/electrical spotter.  The location was not specified.  The worksite assessment occurred[?] on 14 August 2023.

25The identity of the person(s) who conducted the worksite assessments was not provided.  The reasons why the worksite assessments were conducted were not revealed.

26It is therefore not possible to make a determination whether s62 of the Evidence Act 2008 (Vic) (“the Act”) has been complied with (“first-hand” hearsay).

27The report said that its purpose was to determine the physical demands of  identified employment options within a reasonable travel distance from the plaintiff’s place of residence, as well as address the labour market factors associated with the options.

28Ms Ash specifically stated that she offered no opinion in relation to Mr Apostolopoulos’ suitability of the outlined roles.

29Given that the three worksite assessments all pre-dated the instructions to prepare the report and were not related to the positions of supervisor or overseer, it is difficult to see how, without any further explanation, they could be considered relevant or responsive to the letter of instructions.

The Evidence Act

30In this application, the relevant provisions of the Act are sections 55, 60, 62, 64, 75, 76 and 135.

31Section 55:

“Relevant Evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding…

… .”

32Section 60:

“Exception—evidence relevant for a non-hearsay purpose

(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62(2)).

… .”

33Section 62:

“Restriction to ‘first-hand’ hearsay

(1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.

(2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

… .”

34Section 64:

“Exception—civil proceedings if maker available

(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) The hearsay role does not apply to—

(a)…

(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation—

if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.

35Section 75:

“Exception—interlocutory proceedings

In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.”

36Section 76:

“The opinion rule

Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.”

37Section 135:

“General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time; …

… .”

The County Court’s Serious Injury Application Practice Note 

38Vocational and similar reports should be served upon the opposing party in accordance with the County Court Rules, Court Orders and in compliance with the relevant legislation.  Such reports are not required to be exhibited to an affidavit [1]

[1]Common Law Division Practice Note: PNCLD 2–2023, Clause 6.2

The Plaintiff’s submissions

39The plaintiff did not concede that the report or any parts of it were relevant.

40The plaintiff submitted:

· the whole of the report was inadmissible and should be excluded pursuant to s75 of the Act;

· alternatively, that sections of the report were inadmissible pursuant to s76 of the Act;

· alternatively, the report should be excluded pursuant to the Court’s discretion under s135 of the Act.

41The plaintiff made no particular submissions regarding s60 of the Act.

42The plaintiff submitted that if the defendant relied on observations in the report as matters of fact, the observations did not comply with s75 of the Act as it did not reveal the source of the observations. The plaintiff submitted that the purpose of identifying the source was to assist the Court in assessing the reliability of that evidence – when there was no indication of the source, the Court cannot properly weigh/test the evidence.[2]

[2]        Wily v Terra Cresta Business Solutions Pty Ltd & Ors [2006] NSWSC 949 at paragraphs [11]-[12]

43The defendant said that the report was relied upon to provide factual evidence of the existence of certain jobs with certain pay rates in a certain area.

44As the defendant’s submissions confirmed that it did not rely on the report as expert opinion, the issue regarding opinion evidence falls away.

45The plaintiff alternatively submitted the Court should exercise its discretion under s135 of the Act to exclude the report entirely. It was submitted the report should be excluded as the probative value of the report was diminished and there was a risk of the Court being misled/confused.

The Defendant’s submissions

46The defendant submitted that the report was admissible on two bases:

·        it formed part of the materials upon which the opinion of Dr Haynes (occupational physician) was based;

· as evidence of the facts contained in the report regarding the location, physical requirements and salaries of the jobs. (The defendant accepted this was hearsay evidence which it said was admissible pursuant to s75 of the Act).

47Dr Haynes provided a supplementary report dated 27 September 2023, in which he considered the suitability of the roles in the report.  The report formed part of the materials upon which Dr Haynes’ opinion was based, and it was therefore admissible. 

48The defendant submitted that the purpose of s75 of the Act was to facilitate the conduct of interlocutory proceedings, where it was difficult to adduce evidence in admissible form at short notice. It was said this is of particular significance in Serious Injury Applications where the Court required evidence of specific third-party jobs and salaries in order to assess pecuniary loss.

49The defendant acknowledged that without identification of the source of such evidence, a Court would be unable to assess its weight, and any opponent would be unable to test the evidence or make submissions as to its weight.[3]

[3]           Wily v Terra Cresta Business Solutions (ibid) at paragraph [11]

50The defendant submitted there was nothing in s75 of the Act which required a source to be identified by name[4] or to identify the ultimate source of the information contained within the hearsay statement.[5]

[4]        Liesfield v SPI Electricity Pty Ltd [2014] VSC 348

[5]        New South Crime Commission v Vu [2009] NSWCA 349

51It was said that the report, whilst not naming the specific business or individuals spoken to, did provide sufficient information, being:

·        nature and size of business

·        suburb

·        the date Ms Ash attended

·        photographs of the workplace

·        Enterprise Agreement and/or Australia and New Zealand Standard Classification of Occupations (ANZSCO) relied upon. 

52The defendant acknowledged that where a plaintiff established a prima facie case that no suitable employment existed, the defendant then bore an  evidentiary onus to raise the real possibility of alternative, suitable employment in the community.[6]

[6]Public Transport Corporation v Pitts [2007] VSC 356 at paragraph [17]; Giankos v SPC Ardmona Operations Ltd (2011) 3 VR 120 at paragraph [115]

53The defendant submitted the Court should not exercise this discretion to exclude the report as the information in it was highly probative as to the facts in issue (specifically, whether the plaintiff meets the pecuniary loss threshold) and was not prejudicial. 

54The defendant submitted the plaintiff may cross-examine Ms Ash as to the source of her information and make submissions to the Court as to the weight placed upon the information within her report. 

Consideration

The starting point

55The first question is whether the evidence is relevant.  If the evidence is not relevant, then it is not admissible.  If the evidence is relevant, it is admissible unless it falls within one of the exceptions.

56Pursuant to s55 of the Act, evidence is relevant in a proceeding if it is evidence that, if it were accepted, could rationally affect (either directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

57Whilst this case has not been formally opened, it appears from the material currently before the Court that one of the issues will be whether the plaintiff has met the statutory test under the WIRC Act for loss of earning capacity.

58The statutory test requires the plaintiff to establish that he has sustained a loss of earning capacity of 40 per cent or more, and he will continue to permanently have a loss of earning capacity which produces a financial loss of 40 per cent or more.[7]

[7]Section 325(2) of the WIRC Act

59I find that the report contains evidence that is relevant pursuant to s55 of the Act as it has a bearing on the Court’s assessment whether the plaintiff has met the statutory test, that is, has he has sustained a loss of earning capacity of 40 per cent or more which is permanent?[8]

[8]Section 325(2) of the WIRC Act

60The next question is whether the report contains hearsay. 

61It is not clear whether the observations recorded in the report were observations made by Ms Ash and recorded conversations Ms Ash had with a third party (“first-hand” hearsay) or whether Ms Ash was told about the worksite assessments and associated observations by another person at Recovre or whether she accessed the information by some other means (second or third-hand hearsay) .

62On its face, the observations and information in the report appear to be either second-hand or third-hand hearsay and therefore inadmissible unless they fall within an exception to the hearsay rule.

Does Section 75 of the Act apply?

63The parties correctly agree that a Serious njury application is interlocutory in nature and that s75 of the Act applies.

64Therefore, the Court has to determine whether the defendant, in seeking to adduce the report, has adduced sufficient evidence of its source to engage the exception in s75 of the Act.

65The defendant has not produced its letter of instructions to Ms Ash and has offered no explanation for its absence. 

66The parties assumed that Ms Ash was the person who attended the worksite assessments.[9]  However, the report does not identify who attended the worksite assessments on 14 August 2023 and 6 September 2023.  The report is silent on this point.  There is no material upon which the Court can infer that Ms Ash was the person who attended the worksite assessments. 

[9]        Plaintiff’s submissions at paragraph [13] and defendant’s submissions at paragraph [22]

67Contrary to the defendant’s submissions, the report, on its face, does not:

·        identify who attended the worksite assessments

·        name the specific businesses which were the subject of the worksite assessments

·        identify any individual who was spoken to at the worksite assessments, whether by name or job title

·        identify the nature of any information that was conveyed by any individual at the worksite assessments

·        identify any detail of any information provided at the worksite assessments other than in a broad generic sense

·        identify who took photographs of the relevant workplaces at the worksite assessments.

68The report is silent as to the source of the information it contains. 

69Section 75 of the Act is quite specific and refers to “evidence of its source”. There should be sufficient evidence to identify the source and allow a proper investigation by another party. In most cases a generic descriptor will not suffice.[10]

[10]Wily v Terra Cresta Business Solutions Pty Ltd (supra) at paragraphs [12] and [16]; Liesfield v SPI Electricity Pty Ltd (supra) at paragraphs [38] and [43]; New South Wales Crime Commission v Vu (supra) at paragraphs [46]-[47]

70The report does not comply with s75 of the Act and is therefore inadmissible under that section.

Is the report admissible because Dr Haynes commented on it?

71The defendant submitted, in the alternative, that the report was admissible because it had been provided to a consultant physician, Dr Haynes.  Dr Haynes  provided a supplementary report dated 27 September 2023.  

72In his initial report dated 10 March 2023, Dr Haynes expressed the opinion that Mr Apostolopoulos was fit to perform full-time work in office-based administrative duties; customer service work where he could stand from time to time and avoid lifting more than 15 kilograms; administrative work; process work; assembly work, or as a bicycle mechanic.

73In his supplementary report dated 27 September 2023, he expressed the opinion that the employment options detailed in the report were suitable full-time employment options for Mr Apostolous.  Dr Haynes produced a further report dated 12 October 2023 in which he again opined as to the suitability of the employment options for the plaintiff in the report.

74It is clear that Dr Haynes relied upon the report for the purposes of his supplementary reports. 

75Pursuant to s64(2)(b) of the Act, those parts of the report that are relevant to understand Dr Haynes’ supplementary opinions are admissible.

76Those parts of the report which related to wages, labour market information and training courses did not form any part of Dr Haynes’ supplementary opinions. 

Section 135 of the Act

77It was asserted by the plaintiff that the report should be excluded under s135 of the Act because that evidence might be misleading or confusing or cause or result in an undue waste of time.

78In determining whether those dangers do substantially outweigh the probative value of the evidence, I take into account the fact that whether, in admitting the evidence, it would, in fairness to the plaintiff, necessarily involve opening up new issues.

79In this case, the onus is on the plaintiff to establish that he satisfies the statutory test for economic loss. 

80The report in its redacted form will not open up new issues.  It will merely identify a number of jobs which the defendant asserts are appropriate for the plaintiff.

81I will not exercise the discretion under s135 of the Act.

Conclusion

82Parts of the report are admissible pursuant to s64(2)(b) of the Act.

83The parts which are inadmissible are highlighted in the copy of the report attached to this Ruling.

84I will hear the parties on the questions of costs and on further procedural matters.