Brown v Visits Pty Ltd and State of Victoria

[2009] VCC 543

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

DAMAGES & COMPENSATION LIST

Case No. CI-07-04791

ROSLYN BROWN	Plaintiff
v
VISITS PTY LTD	First Defendant
and
STATE OF VICTORIA	Second Defendant

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JUDGE:	HIS HONOUR JUDGE O’NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2009
DATE OF RULING:	20 April 2009
CASE MAY BE CITED AS:	Brown v Visits Pty Ltd and State of Victoria
MEDIUM NEUTRAL CITATION:	[2009] VCC 0543

RULING

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Catchwords: Application for admission of document into evidence – s.134AB(11) Accident

Compensation Act 1985 – relevance.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N R Bird with	Ryan Carlisle Thomas
Mr J J Fitzpatrick
For the First Defendant	Mr R H Smith SC with	Herbert Geer & Rundle
Ms B Y Knoester
For the Second Defendant	Mr R W Dyer	Ligeti Partners
HIS HONOUR:

1          This proceeding is a trial by jury brought by the plaintiff seeking damages for injuries she claims to have suffered in the course of her employment with the first defendant at the Langwarrin Secondary College (“the school”), which was operated by the second defendant.

2          On or about 23 May 2002, the plaintiff claims that she was descending a ladder at the school when she missed the last rung of the ladder and stepped heavily onto the floor suffering injury to, inter alia, her lower back and shoulder.

3          At the commencement of the trial, and before empanelment of the jury, Mr Fitzpatrick, on behalf of the plaintiff, raised an issue as to the admissibility of a document which he said was relevant to the issue of liability in the trial, and which he proposed, subject to leave, to tender in evidence.

4          The document is an email sent by Mr Adam Feldman, the managing director of the first defendant, on 28 May 2002, some five days after the plaintiff’s injury, to a range of persons, including the plaintiff. The recipients were persons employed by the first defendant at various schools. The relevant part of the document is as follows:

“… Subject Important – Health and Safety Information

…

Dear Staff

Your health and safety is important.

Whilst the role of a computer/network technician is a relatively safe one, safety hazards can still occur within the school environment. When it comes to health and safety, everyone must work together to help reduce the risk of workplace injuries. Your health and safety, and the safety of those around you, is the number one priority and you should not perform any work where you have any concerns about safety.

In performing your work you should be on the lookout for potential safety hazards. If you identify potential hazards you should contact the appropriate representative of the school, or the Visits office to discuss the matter.

In the interest of your health and safety, we are bringing to your attention a potential health and safety risk as outlined below.

Safety Topic: Working from ladders or standing on chairs

Reason:

(1)	Ladders and chairs are not a work platform – performing work on equipment installed within wall mounted cabinets from a ladder, or standing on a chair can be dangerous.
…
Issue:

We have become aware that some schools have installed wall-mounted cabinets for patch panels and hubs/switches in classrooms high on walls, where they are out of reach of students. The location of these cabinets may be inappropriate from a safety perspective and we have raised this matter with D E & T.

…

(2)

All staff are instructed that the use of ladders in performance of your role is to be avoided. Ladders are not to be used as a work platform. Ladders should only be used for access in exceptional circumstances, when it is safe to do so. If a ladder is to be used it should be folding steps, rather than an extension type ladder. Staff should ensure that the ladder is properly balanced and secured, that you are wearing appropriate clothing and shoes to avoid slipping and falling.

…

Risks that you may need to consider include:

…

Injuries associated with accessing high/inconveniently located equipment.

…

Adam Feldman
Managing Director

Visits Pty Ltd

… .”

5          Even notwithstanding the document was sent some five days after the incident, Mr Fitzpatrick submits it is relevant in that:

• It contains an admission against interest

• It is relevant to the question of foreseeability

• It is relevant to the question of what reasonable steps the first defendant ought to have taken against the risk of injury by the plaintiff using a stepladder.

6          I have significant reservations about the admissibility of this document on general principles. There is nothing on the face of the document to indicate it was written as a result of the plaintiff’s injury. It is only relevant as to what the first defendant contemplated prior to the incident as to whether the risk of the injury the plaintiff suffered was foreseeable, and as to what steps it was reasonable for the first defendant to take. Further, it could only constitute an admission against interest if the email was sent in response to the plaintiff’s injury, that is, that the first defendant wrote to its various persons warning of the risk of use of ladders because the plaintiff had suffered injury descending one. I have reservations about whether, in the current circumstances, the email could constitute an admission but it is probable that matter could only be determined after hearing evidence from Mr Feldman.

7 On behalf of the first defendant, Mr Smith submits that not only is the document inadmissible as irrelevant given it post dates the incident, but further, that it is inadmissible by reason of s.134AB(11) of the Accident Compensation Act 1985 (“the Act”). That section relevantly provides:

“(11)	In proceedings in accordance with this section, a medical report or other material is inadmissible in evidence –
…
(b) on behalf of the worker if –

(i)       it was in existence, and the worker or the workers’ legal representative was aware of it, before the expiration of 28 days after receiving the advice under subsections (7) and (8); and

(ii)      it had not been disclosed to the other party in accordance with subsection (5) or (10).”

8          The phrase “in proceedings in accordance with this section” in my view contemplates a trial for damages. In fact, various subsections of s.134AB regulate and permit the trial of an action for compensation arising out of employment, as is the case with the present proceeding.[1]

[1]             See Sections 134AB(1), (2), (3), (12), (20A) – (36)

9          In fact, s.134AB(5) states, relevantly:

“(5)	An application under subsection (4) –
…
(b) must be accompanied by –

…

(ii)     affidavits attesting to such other material –

existing when the application is made and of which the worker or his or her legal representative is aware and on which the worker intends to adduce, …. in proceedings in accordance with this section or in any related proceedings.”

(emphasis added)

10        There is no issue that the email was in existence and that the plaintiff was aware of it before receiving the advice referred to in s.134AB(7) and (8). It is the clear intention of the subsection to make each of the worker and the Authority aware of the material to be relied upon by the other in the course of the serious injury application, and any subsequent trial, to enable each party to determine whether or not a serious injury certificate ought be granted or pursued, and whether or not to accept or reject statutory offers made in the course of the procedure outlined in s.134AB(12). The author of the email was the managing director of the first defendant and therefore must have known of its existence. It is an anomalous result therefor that a section designed to require the parties to disclose documents upon which one party intends to rely, seeks to prohibit the tendering into evidence of such a document the existence of which is clearly known to the other. Nonetheless, the wording of the section is strict and there is no discretion to the trial judge. The answer to the anomaly may rest upon the phrase “on which the worker intends to rely” in s.134AB(5). That is, a party may know of the existence of a document but not know that it is to be relied upon at trial.

11        Given the clear prohibition contained in the section, I am of the view the document is inadmissible. I have further reservations about the document’s admissibility on general principles as stated.

12        Mr Dyer, on behalf of the second defendant, further objects to the admission of the document by reason of the phrase “and we have raised this matter with the D E & T”. He claims to be prejudiced as this document was only provided to him immediately before trial, and he has not had the opportunity to investigate the matter with his client. It is further possible that that phrase is hearsay unless Mr Feldman is called and states that he himself was responsible for raising the matter with the government department. I am less persuaded that Mr Dyer’s objection would prevent the admission of the document.

13 Nonetheless, by reason of the operation of s.134AB(11) of the Act, I am of the view the document is inadmissible.

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