Aubrecht v Monash Health (Ruling)
[2023] VCC 1319
•4 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-21-05044
| SALLY-ANN AUBRECHT | Plaintiff |
| v | |
| MONASH HEALTH | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19-23 June 2023, 26-28 June 2023, 1 August 2023 | |
DATE OF RULING: | 4 August 2023 | |
CASE MAY BE CITED AS: | Aubrecht v Monash Health (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1319 | |
RULING
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Subject:EVIDENCE – plaintiff sustained injuries during the course of her employment – plaintiff’s claim for payment for surgeries to her left shoulder and cervical spine accepted – whether fact of payment for those surgeries could be opened to the jury by the plaintiff – whether evidence should be excluded because unfairly prejudicial to the defendant, misleading or confusing, or result in an undue waste of time
Catchwords: Relevance of evidence – general discretion to exclude
Legislation Cited: Evidence Act 2008, s55, s56, s135
Cases Cited:Baulch v Lyndoch Warrnambool [2010] VSCA 30; Sepe v Club Italia Sporting Club Inc (Ruling) [2023] VSC 191; Mert v Lawrence (Vic) Pty Ltd [2016] VSC 348; Parish v Wu [2010] VSC 21; Transport Accident Commission v Florrimell [2013] VSCA 247
Ruling: Payment for the surgeries by the employer’s agent not to be opened to the jury
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr L B R Allan | Maurice Blackburn |
| For the Defendant | Mr W R Middleton KC with Mr P V Bourke | Hall & Wilcox |
HER HONOUR:
Introduction
1Ms Sally-Ann Aubrecht, the plaintiff, was employed by the defendant, Monash Health, in an administrative role between 2012 and 2016.
2On 11 June 2015, in the course of her employment, the plaintiff attempted to move a four-drawer wooden filing cabinet and suffered injury (“the incident”). The plaintiff claimed damages at common law for the injuries she suffered in the incident.
3On 19 June 2023 (the first day of hearing), the Court was advised that the defendant admitted that its negligence was a cause of the incident. Further, the defendant abandoned allegations of contributory negligence. Consequently, the matter was to proceed as an assessment.
4The proceeding was heard and determined by a civil jury of six over eight days in June 2023.
5Prior to the empanelment of the jury, Mr Tobin SC, who appeared with Mr Allan for the plaintiff, indicated that he proposed to open to the jury the fact that the plaintiff’s left shoulder surgery on 5 July 2016, and cervical spine surgery on 18 April 2017, were paid for by the defendant’s agent.
6Mr Middleton KC, who appeared with Mr Bourke for the defendant, objected to those matters being opened.
7On 19 June 2021, after hearing submissions from the parties, I ruled that the fact that the surgeries had been paid for by the defendant’s agent should not be opened to the jury. In order not to delay empanelment of the jury, I indicated to the parties, that, if necessary, I would publish my reasons for the ruling at a later time.
8On 27 June 2023, prior to closing addresses, I asked the parties whether they still required the foreshadowed ruling given that the issue about the reasonableness of the plaintiff having the surgeries had not in fact arisen during the trial. Senior counsel for the plaintiff and defendant indicated a ruling was not required.
9On 17 July 2023, after the jury had delivered its verdict, the plaintiff’s solicitor contacted the Court enquiring as to when the foreshadowed ruling might be expected. This matter was listed for a mention on 1 August 2023. On that date, Mr Tobin submitted that he had misapprehended the Court’s enquiry on 27 June 2023 and sought provision of the ruling.
10These are my reasons.
Background
11On 17 June 2015, the plaintiff submitted a WorkCover claim in respect of the incident and her injuries. The claim was accepted by the authorised agent on behalf of the defendant.
12The plaintiff was absent from work for a period before returning to perform light duties on reduced hours.
13The plaintiff ceased work in July 2016, just prior to her left shoulder surgery. She has not worked since.
14The plaintiff was advised to undergo a left shoulder arthroscopy by her treating orthopaedic surgeon, Mr Derek Carr. The plaintiff accepted that advice. The plaintiff underwent the surgery on 5 July 2016. That surgery was paid for by the WorkCover agent on behalf of the defendant.
15The plaintiff was advised to undergo a two-level cervical fusion by her treating neurosurgeon, Mr Yagnesh Vellore.
16Initially, the WorkCover agent declined to fund the proposed surgery, based upon a report of Dr Daniel Lewis, rheumatologist. The refusal was referred to conciliation.
17Prior to the conciliation hearing, the plaintiff received a second opinion from Associate Professor Richard Bittar, neurosurgeon, which supported the surgery as being appropriate for the plaintiff’s condition.
18The WorkCover agent subsequently agreed to pay for the surgery.
19The plaintiff underwent a C5/6 and C6/7 anterior discectomy and fusion on 18 April 2017. That surgery was paid for by the WorkCover agent on behalf of the defendant.
20Mr Tobin identified the matter he wished to open, and the course he proposed to take during evidence in the following exchange with the Court:
“MR TOBIN: I wanted to open that the plaintiff had surgery to her neck and to her shoulder, and that surgery has been paid for by the employer’s agent.
HER HONOUR: What were you going to say to the jury about that, apart from that?
MR TOBIN: In opening, nothing and in the course of evidence, nothing but if in fact in the course of the trial it is then put that the plaintiff was not entitled to the surgery and the consequences of that surgery, that the employer, having made payment for it after an application and consideration of that application, which will be put into evidence at that stage, the jury could use that as a rebuttable admission by conduct of the defendant.”[1]
[1]Transcript (“T”) 10
21Later Mr Tobin submitted:
“… I said at the start if they [the defendant] were prepared to admit that it was reasonable for her to have that surgery and she is entitled to compensation for undergoing that surgery this wouldn’t be an issue but if they are making it an issue that she should never have had that surgery, it was unreasonable for her to have that treatment, we say this is evidence that’s got a probative value …”[2]
[2]T43
22The defendant foreshadowed reliance upon reports of Dr Tony Kostos, rheumatologist, Dr David Barton, occupational physician, and Dr Graeme Brazenor, neurosurgeon, to the effect that the surgeries were not necessary for the plaintiff’s compensable conditions. However, Mr Middleton indicated that it was very unlikely that the defendant would suggest that it was unreasonable for the plaintiff to have undergone the surgeries. He submitted:
“I can’t say with certainty what I am going to submit to the jury at the end or even ask in cross-examination of the plaintiff’s doctors and it may be that I will not be saying to the plaintiff that, “You shouldn’t have had the surgery”; rather, I attack the doctors and say, “The symptoms, the background suggests that the surgery was unwarranted”.
... I am reluctant to commit myself to a course of action at this point in time because I think it’s very unlikely that I will be saying to the plaintiff, “You should not have had it”, because she’s taken advice. That’s what I understand her evidence will be. But until I hear the evidence, I can’t say one thing or the other. It’s putting me between a rock and a hard place in some respects.”[3]
[3]T34-35
23Then the following exchange occurred between the Court and Mr Middleton:
“HER HONOUR: …It’s the natural inference, isn’t it, from what’s occurred, that she took advice that she required it, given how she was presenting, and she …
MR MIDDLETON: I am unlikely to say otherwise but I want to hear what’s said before I commit. As I said at the outset, I’m almost tempted to say if that’s all my learned friend Mr Tobin is going to say to the jury, then I might well accept it but it seems to me we are on a slippery slope here in terms of Sepe.”[4]
[4]T35
24At no stage during the trial did the defendant suggest that it was unreasonable for the plaintiff to undergo the surgeries. Further, it was not suggested that the plaintiff was not entitled to be compensated for the surgeries and their consequences. Therefore, after the opening address of the plaintiff’s counsel and indeed for the entire duration of the trial, no fact in issue ever arose as anticipated by Mr Tobin.
25If the course proposed by Mr Tobin had been undertaken (set out at paragraph 20 above), the matter of the payment for the surgeries by the employer’s agent would have been opened to the jury but no evidence would have been adduced as to that fact.
The applicable principles
26Section 55(1) of the Evidence Act 2008 (“the Act”) relevantly provides:
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.
27Section 56 of the Act provides:
56 Relevant evidence to be admissible
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible.
28Section 135 of the Act relevantly provides:
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; or
…
29In Baulch v Lyndoch Warrnambool,[5] the Court of Appeal was concerned with a circumstance where defence counsel, during his closing address, effectively informed the jury that the appellant was entitled to receive compensation for medical and like expenses incurred, and for loss of income, independent of fault, and that she had received such compensation and would continue to receive it if she needed treatment. In quashing the verdict and ordering a new trial, the Full Court said:
“[64] The juxtaposition by defence counsel of a comment on the weakness of the appellant’s case with comments about her workers’ compensation entitlements can only have been calculated to distract the jury from a proper consideration of the legitimate issue before them, namely, whether the appellant had established negligence by the respondent as a cause of injuries which she received. The argument put by counsel was that she should not get damages because she had received and would continue to receive workers’ compensation; that the jury could safely find for the respondent, secure in the knowledge that the appellant had been and would be compensated in any event.
[65] There can be no justification for this irrelevance. Nor was there any justification for counsel’s cross-examination of the appellant as to her receipt of workers’ compensation payments, coupled with questions as to her knowledge that an injured worker is entitled to workers’ compensation even if injured as a result of her own fault. As the Full Court in Chatzipantelis observed:
Had counsel for the defendant mentioned that plaintiff would (or might be) entitled to compensation under the Workers Compensation Acts, there is no doubt it would have been, in the language of Dixon J (as he then was), in Fitzpatrick v Cooper, supra, ‘a gratuitous irrelevancy’, and his mention of it would have been indefensible.
[66] In this case, the question of the appellant’s receipt of workers’ compensation may have been relevant on one basis—that the damages to which she would be entitled if she was successful in proving negligence may need to be calculated taking into account the principle expounded by the High Court in Fox v Wood.”
[5][2010] VSCA 30 (‘Baulch’)
30In the recent case of Sepe v Club Italia Sporting Club Inc (Ruling),[6] Tsalamandris J conducted a comprehensive review of the relevant authorities and legislation, in both common law damages trials and serious injury applications, and concluded as follows:
“[46] The above authorities establish that acceptance of a claim by a statutory authority under a no fault compensation scheme is capable of being an admission, subject to who made the admission, the nature and extent of the admission, and whether it is relevant to a fact in issue. Such an admission is rebuttable, and its significance is to be determined by the finder of facts in the trial.
[47] In considering whether such conduct is admissible evidence in a trial, on the authorities as they stand, there is no logical basis to distinguish between a serious injury application, and a common law damages trial. The threshold question, in either type of trial, is whether the admission is relevant to a fact in issue.
[48] The decisions in Raeburn, Cairns and Mert do not offer any definitive guidance as to whether continued payments under the scheme constitute an admission. In Raeburn, the admission was not considered relevant to a fact in issue – whether or not the plaintiff was injured in negligent circumstances as he alleged. In Cairns, the admission was considered relevant to a fact in issue – whether or not the plaintiff had been injured at work – and it was considered that a simple direction could be given to the jury regarding its use of the admission. In Mert, although capable of being relevant to fact in issue, the circumstances surrounding the acceptance of the lump sum claim were such that the dangers identified pursuant to s 135(a)-(c) of the Evidence Act substantially outweighed the limited probative value of the evidence.”
[emphasis added]
[6][2023] VSC 191 (‘Sepe’)
31I respectfully agree with Her Honour’s analysis.
32Further, I have been considerably assisted by the reasons of Bell J in Mert v Lawrence (Vic) Pty Ltd:[7]
“However, I think it is clear from the judgments of the Court of Appeal in Ansett, as subsequently explained, and Fokas, Florrimell and Bedeux that the relevance in a separate common law proceeding of an employer’s ‘acceptance’, by statutory agency, of a claim for statutory benefits by an employee must depend upon careful assessment of the particular facts and circumstances rather than upon any general rule of law or fact.”
[emphasis added]
[7][2016] VSC 348 (‘Mert’) at [9]
33In Parish v Wu,[8] J Forrest J outlined the relevant principles regarding counsel’s opening address as follows:
“[11] In Rees v Bailey Aluminium Products Pty Ltd, the Court of Appeal said as follows in relation to the final address of counsel:
Although a civil trial is adversarial in nature, each party is entitled to a fair trial in which they are afforded a reasonable opportunity to present their case; determination of the proceeding resting upon consideration of admissible evidence placed before the tribunal of fact. The litigant is entitled to have his or her case fairly tried free from intrusion of any extraneous matter calculated to influence the jury, counsel observing the rules of evidence, adhering to well recognised ethical standards and remaining within the bounds of permissible advocacy.
These principles are equally applicable to an opening address with, of course, the obvious proviso that the admissibility of evidence has not been finally determined and can only be anticipated.
[12] The inquiry in relation to a complaint about counsel’s address at the opening of a trial involves two aspects:
(a) Has counsel, in the course of the address, opened facts or matters which will not ultimately be admissible as evidence in the course of the trial? As I have said, at times, at the outset of a trial it may be impossible to determine whether such evidence will be admissible because much will turn on the way in which the trial is conducted. This is particularly so in personal injury litigation where the pleadings rarely define with any precision the boundaries of the factual contest. This case is a paradigm example.
(b) In the event that counsel opens facts or matters which the Court considers will not ultimately be admitted as evidence, then the Court will need to determine whether those references create a real risk that the opposing party will be deprived of the opportunity of a fair trial. In such an assessment, the Court will take into account whether an appropriate direction to the jury, at this stage, will cure the risk of an unfair trial. It will also take into account the fact that the complaint has emerged at an early point of the trial and a fresh jury can be empanelled without causing any major inconvenience.”
[8][2010] VSC 21 (‘Parish’)
Was the fact that the WorkCover agent paid for the surgeries a relevant matter to raise in opening?
34Mr Tobin identified the anticipated fact in issue was whether it was reasonable for the plaintiff to have the surgeries for treatment of the compensable injuries.[9]
[9]T13-14
35Mr Tobin submitted that the evidence that the WorkCover agent had paid for the surgeries was a rebuttable admission by conduct which, if accepted, could rationally make such a fact in issue more likely.
36Mr Middleton submitted, primarily in reliance upon Baulch and the cases referred to therein, that opening the fact of payment for the surgeries by the WorkCover agent to the jury would raise a matter that was not relevant.
37If evidence of a plaintiff’s receipt of statutory compensation is not relevant to a fact in issue in the trial, it is not admissible.[10]
[10]Section 56(2) of the Act
38I was satisfied that the WorkCover agent’s payment for the two surgeries was capable of being an admission on the part of the defendant that would be relevant to an issue whether the surgeries were reasonable for the plaintiff’s compensable conditions. It could therefore become admissible in the event the defendant disputed that fact in the course of the trial.
39However, it appeared to be unlikely that fact would ever be in issue in the trial. Mr Tobin advised the Court that he did not intend to lead evidence of the WorkCover agent’s payment for the surgeries unless the trial was conducted in such a way as to put that fact in issue.
40If Mr Tobin opened the issue of the payment for the surgeries by the WorkCover agent, this would have necessitated explanation of elements of the WorkCover system to the jury. Such explanations would likely have been required even if the issue of whether the surgeries were reasonable for the plaintiff’s compensable conditions did not arise during the trial.
41Mr Tobin sought to open a matter about which he did not intend to lead evidence unless the trial was conducted in such a way as to make that evidence admissible. I formed the view that in such circumstances the reference to that matter in opening to the jury created a real risk that the defendant would be deprived of a fair trial.
If the asserted admission was relevant, should reference to the admission be excluded in the opening pursuant to s135 of the Evidence Act 2008?
42In the event that I was wrong regarding the issue of relevance, I considered the probative value of the admission in light of the Court’s discretion in s135 of the Act.
43Mr Tobin submitted the potential evidence ought not to be excluded pursuant to s135 of the Act. It was submitted that the issue was being raised at the very start of the trial, and the probative value of the evidence was not substantially outweighed by any of the dangers identified in the section.
44Mr Middleton submitted, in reliance upon similar considerations to those in Mert, that the probative value of the proposed evidence was limited and was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendant, be misleading or confusing, and/or cause or result in undue waste of time.
45In the contextual circumstances of this case, I determined that the fact of the payment for the surgeries by the defendant’s agent was of limited probative value.
46The jury were going to hear from the plaintiff’s treating surgeons, and a number of medico-legal experts regarding the plaintiff’s injuries and the surgeries.
47In Transport Accident Commission v Florrimell,[11] the Court of Appeal held that:
“The issue of causation may well be a complex one and, as here, may be one on which medical opinions conflict. It may also be an issue in relation to which, as here, relevant information is not available until surgery or other forms of medical procedure are performed. For the TAC to accept to pay for the cost of a procedure cannot have the effect of precluding them from later contesting the issue of causation, perhaps on the basis of the information obtained from the very procedure that it paid for. Nor, for similar reasons, ought such payment be treated as having the evidentiary value of an admission because the question of causation may well be a live one until all the procedures have been completed. It would be contrary to the efficient administration of the compensation scheme as a whole if the TAC resisted paying for medical procedures that might reduce the pain and suffering of someone injured in a transport accident on the basis that if it did so it would be regarded, at law, as having made an admission.”
[emphasis added]
[11][2013] VSCA 247 at [45] (‘Florrimell’)
48Whilst this was not a case in which the surgeries were said to be diagnostic, the above considerations were apposite here. The acceptance of payment for the surgeries by the WorkCover agent was made on evidence from a limited number of medical practitioners – much more limited than the medical evidence that would likely be adduced during the trial.
49When comparing the limited probative value of the evidence with the dangers set out in s135 of the Act, I was of the view that the probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendant, misleading or confusing and/or cause or result in undue waste of time.
50I found that this was so because the jury would have to be given an explanation of the WorkCover system at least insofar as it related to the payment for the surgeries.
51Further, the defendant might call evidence to explain the circumstances in which acceptance for each of the surgeries came about, including potentially adducing evidence from the relevant decision makers. Not only might such evidence result in an undue waste of time, but it might risk drawing unwarranted attention to the asserted admission and the jury might give it more weight than it deserved. There was a further risk that it would open up collateral issues.
Conclusion
52For the reasons outlined, I refused to allow Mr Tobin to open to the jury the fact of payment for the surgeries by the WorkCover agent.
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