Fisher v Multrans Pty Ltd and Anor (Ruling)
[2022] VCC 2246
•16 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| General List |
Case No. CI-21-03181
| CRAIG FISHER | Plaintiff |
| v | |
| MULTRANS PTY LTD (ACN 084 394 945) | Defendant |
| and | |
| JM TOWER HIRE PTY LTD | Third Party |
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JUDGE: | Her Honour Judge Morrish | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 November, 6 and 16 December 2022 | |
DATE OF RULING: | 16 December 2022 | |
CASE MAY BE CITED AS: | Fisher v Multrans Pty Ltd and Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2246 | |
RULING
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Subject:COMMON LAW – NEGLIGENCE – DAMAGES – ADMISSIBILITY OF EXPERT EVIDENCE – ADMISSIBILITY OF AGENT’S ACCEPTANCE OF LIABILITY OF WORKCOVER CLAIM – AMENDMENT OF PLEADING
Catchwords: Plaintiff alleges injury to spine sustained in the course of his employment as a truck driver with defendant – Causation – Admissibility of parts of plaintiff’s expert evidence – Whether evidence of defendant’s agent’s acceptance of WorkCover claim and payment of medical and like expenses should be excluded – Whether defendant can be compelled to make an admission – Whether operating steering wheel of truck is hazardous manual handling
Legislation Cited: Evidence Act 2008, s80, s81,s87, s88, s135, s142, s165
Cases Cited:Cairns v Trowelcoat Pty Ltd [2014] VSC 129; Mert v Lawrence (Vic) Pty Ltd [2016] VSC 348; Parrish v Specialized Australia] Pty Ltd (2020) VSC 15; Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34; Ansett Australia Ltd v Taylor [2006] VSCA 171; Transport Accident Commission v Florrimell [2013] VSCA 247; Sednaoui v Amac Corrosion Protection Pty Ltd (2017) 52 VR 247
Ruling: Subparagraphs 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13 and 14 of paragraph 7.42 of the expert’s first report are inadmissible; paragraph 7.41 and subparagraph 6 of paragraph 7.42 of that report are admissible.
The admission made by the defendant’s agent allegedly accepting liability for the plaintiff’s injury is prima facie admissible, but is excluded under s135 of the Evidence Act 2008.
The ruling on the question whether to strike out the plaintiff’s pleading insofar as it alleges that he was exposed to hazardous manual handling is deferred.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R McCredie with Mr G Smith | Zaparas Lawyers Pty Ltd |
| For the Defendant | Ms M Britbart KC with Mr L Howe | Wisewould Mahony |
| For the Third Party | Mr G K Coldwell | Lander & Rogers |
HER HONOUR:
Overview
1The plaintiff, Craig Fisher, has brought common law proceedings seeking damages against the defendant, Multrans Pty Ltd, for injury he claims to have suffered in the course and scope of his employment with the defendant while he was driving and/or delivering an elevated working platform truck (“the truck”). The plaintiff worked for a limited period with the defendant, between October 2014 and March 2015. The plaintiff claims he sustained injury to his lumbar spine as result of driving the truck on specific occasions and also, that he suffered acute pain in his back from jolting and jarring while driving the truck, particularly on long trips.
2The defendant does not deny that the plaintiff suffers from various spinal injuries or conditions. Nor does the defendant dispute that driving a truck can increase the risk of spinal injury. The principal area of dispute between the parties concerns causation – can the plaintiff prove, on the balance of probabilities, that his injuries arose out of or in the course of the plaintiff’s employment with the defendant. In particular, was driving the truck a cause of his injuries.
3The defendant has joined the third party, JM Tower Hire Pty Ltd. For present purposes it is unnecessary to describe the allegations made against the third party, since the third party played little part in the pre-trial applications.
4The mode of trial is by judge and jury. A jury has not as yet been empanelled.
5As mentioned, the principal issue as between the plaintiff and the defendant at trial is likely to focus on the element of causation.
6There are three pre-trial issues to be determined:
(a) the admissibility of parts of reports prepared by Mr Edward Dohrmann, certified professional ergonomist;
(b) the admissibility of express and implied admissions made by the defendant’s agent to the plaintiff allegedly accepting liability for the plaintiff’s injury; and
(c) whether the plaintiff’s pleading alleging he was injured as a result of being exposed to hazardous manual handling should be struck out.
7For the reasons explained later, I rule as follows:
(a) subparagraphs 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13 and 14 of paragraph 7.42 of Mr Dohrmann’s first report[1] are inadmissible; paragraph 7.41 and subparagraph 6 of paragraph 7.42 of that report are admissible;
(b) the admission made by the defendant’s agent allegedly accepting liability for the plaintiff’s injury is prima facie admissible, but is excluded under s135 of the Evidence Act 2008; and
(c) the ruling on the question whether to strike out the plaintiff’s pleading insofar as it alleges that he was exposed to hazardous manual handling is deferred.
[1]Exhibit A
The pre-trial hearing
8The pre-trial hearing commenced on 23 November 2022 and continued on 24 November and 6 and 16 December 2022.
9Mr S McCredie appeared with Mr G Smith on behalf of the plaintiff. Ms M Britbart KC appeared with Mr L Howe on behalf of the defendant. Mr G Coldwell appeared on behalf of the third party.
10Counsel for each of the plaintiff and the defendant filed comprehensive written submissions, which they augmented by oral argument.
11I shall now turn to each of the applications.
Admissibility of impugned passages of the report of Mr Dohrmann
12Mr Edward Dohrmann is an engineer and certified professional ergonomist. He has prepared three reports on behalf of the plaintiff:
(i) Report dated 9 August 2022, tendered as exhibit A on the application;
(ii) Report dated 20 October 2022, tendered as exhibit B on the application; and
(iii) Report dated 30 November 2002, tendered as exhibit C on the application.
13Mr Dohrmann’s expertise as an engineer and ergonomist are not in dispute. His qualifications and experience are set out in exhibit A, at pages 3-4, and his résumé, is set out at page 43 of that exhibit.
14In discussion with counsel, the parties reached agreement about a number of previously disputed passages in the reports. Accordingly, there are a limited number of passages over which the defendant maintains its objection, mainly in relation to the first report, and which are subject to this ruling. The objections fall into the following categories:
(a) the opinions expressed do not call for expert evidence;
(b) no path of reasoning to conclusion is exposed; and
(c) the author expresses an opinion about an ultimate issue.
15Should any of the impugned passages be found to be prima facie admissible, the defendant seeks that they be excluded under s135 of the Evidence Act 2008.
Applicable principles
16The principles regarding the admissibility of expert evidence are not in dispute. They are summarised in the defendant’s written submissions, which I gratefully adopt:[2]
[2]Exhibit 1
“18.The relevant sections of the Evidence Act regarding the admissibility of expert evidence are as follows:
s.55.
(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.
s.56.
(2)Evidence that is not relevant in the proceeding is not admissible.
s.76
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
s.79 – exception to s.76
(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
19.In Baulch v Lyndoch Warrnambool Inc [sic] and Anor [Ruling No 3],[3] J Forrest J set out the following principles with respect to the admissibility of expert evidence:
[3](2008) VSC 420 at [14] (Baulch).
(a)the party wishing to call an expert witness must clearly identify the field of specialised knowledge in respect of which it can be said the witness can proffer an opinion;
(b)the party must then identify the expertise of the witness in that field. It must be demonstrated that by reason of specialised training, study or experience the witness is truly an expert in that area;
(c)the opinion expressed by the witness must be either wholly or substantially based on that specialised knowledge and not on the everyday knowledge of a common person;
(d)the opinion must be based on clearly identified facts;
(e)the onus rests on the party calling the witness to satisfy the criteria identified.
20.An expert opinion which is no more than a recitation of factual material or observations and which does not apply any scientific reasoning to these facts is not admissible.[4]
[4] Rees v Lumen Christi Primary School (2010) VSC 514 at paragraphs [35], [39]-[40] (“Rees”)
21.Dixon J in Parrish v Specialised Australian [scil Specialized Australia] Pty Ltd[5] identified at [25] four ‘rules’ relevant to determining whether the evidence of an expert is admissible:
[5](2020) VSC 15 (Parrish)
a.Is the opinion relevant ([or] of sufficient probative value)?
b.Has the witness properly based specialised knowledge?
c.Is the opinion to be propounded wholly or substantially based on specialised knowledge?
d.Is the opinion to be propounded wholly or substantially based on facts assumed or observed that have been, or will be, proved or more specifically:
i. either [scil are the] facts or assumptions on which the expert opinion is found[ed] to (sic) disclose[d];
ii. is there evidence admitted or to be admitted before the [end of the] tendering party’s case, capable of proving matters sufficiently similar to the assumptions made by the expert to render the opinion of value;
iii. is there a statement of reasoning to show how the facts and assumptions relate to the opinions stated to reveal that the opinion is based on the expert’s specialised knowledge.
22.Dixon J at [42] went on to state:
‘It is unfair and inappropriate in proper cross-examination to expect the [scil a] party to challenge the [scil this] lack of reasoning in the report and risk thereby drawing out some statement of reasoning of which the party has no notice. The lawyers [scil law has] consistently insisted that the expert show how the [‘]facts['] and [‘]assumptions[’] provided to the expert relate to the opinion stated to reveal that the [scil that] opinion is based on the expert’s specialised knowledge.’
23.The requirement that an expert sets out the full reasoning by which the conclusion or opinion of the witness has been reached is of paramount importance. It is only by an exposition of the expert’s reasoning criteria that the tribunal of fact can assess the expert’s evidence. In Rees v Lumen Christi Primary School[6], Robson J ruled the evidence of an educational administrator inadmissible in circumstances where the opinions involved the mere recitation of factual observations made by the expert without drawing upon any specialised knowledge of the witness based on training, study or experience. His Honour held that the opinion lacked any scientific reasoning to the assumed or observed facts such that would enable a jury to test the accuracy of the opinions drawn by the expert and to enable the jury to draw its own independent judgment.[7] At [33] Robson J approved the following quote from Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh[8]:
‘[…] Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as jury, any more than a technical assessor can substitute his advice for the judgment of the Court…Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert. […]’
24.In Dasreef Pty Ltd v Hawchar[9] the High Court stated at [37] that the requirement of s.79(1) could ‘be met in many, perhaps most, cases very quickly and easily’. An example was given of a medical practitioner being able to give a diagnostic opinion in his or her relevant field of specialisation without explicit articulation once the specialised knowledge to give such an opinion was established. Notwithstanding this obiter, the majority went on to conclude that the expert evidence that was the subject of the appeal (provided by a chartered chemist and engineer) was inadmissible as the expert had not established how his training, study and experience allowed him to estimate the amount of respirable silica dust a worker would be exposed to whilst an angle grinder was operating.
25.Kellam J in Pritchard v Ardingly Pty Ltd[10] ruled that it was impermissible for an expert to merely recite facts and assert a breach of the Occupational Health and Safety Act or the Manual Handling Regulations. This was not considered to be an opinion requiring expertise. Rather, these were matters for the jury to hear evidence upon, for the relevant instruments to be tendered, and for the jury to determine whether a breach had occurred.[11]
26.Judge O’Neill excluded the evidence of Mr Dohrmann in McKenna v Karingal [Inc] (Ruling)[12] on the basis that, whilst suitably qualified to give an opinion on the adequacy of a system of work in an industrial accident case, he had failed to demonstrate how his conclusions ‘bring to bear’ that expertise to the facts of the case. In ruling the evidence inadmissible, His Honour considered the matters to which he expressed opinions on to be matters of common sense and general knowledge not requiring any particular expertise.”[13]
[6] [2010] VSC 514
[7] Ibid at [35]
[8]1953 SC 34 at 39-40
[9][2011] HCA 21; 243 CLR 588 (Dasreef)
[10]([VSC] unreported, ruling, 10 October 2003) (Pritchard)
[11]Cited with approval by Judge O’Neill in Pham v Ronstan International Pty Ltd [(Ruling No 1)] (2013) (sic) VCC 962, [10] and [15(b)]
[12][2021] VCC 1361
[13]Ibid at [37]
The impugned passages
17Mr Dohrmann based his opinions on assumed facts provided by the plaintiff’s instructing solicitors and by the plaintiff. He had access to a number of photographs taken by the plaintiff. The plaintiff’s solicitors set out the plaintiff’s instructions about the truck:
“We now advise of our client’s instructions with respect to the truck in question:
▪Our client understands that the vehicle model of the truck was a Mack crane carrier which was modified to replace the crane with an elevating work platform. This modification may have impacted the suspension and handling of the vehicle.
▪He estimates that the gross vehicle mass was around 37 tonnes in total, 23 tonnes in the rear and 14 tonnes at the front.
▪The cab was fixed to the chassis.
▪The driver’s seat was not a suspension se(a)t and was mounted to the cab.
▪It did not have shock absorption[14] nor airbag suspension.
▪[T]He driver(s) seat did not have a seatbelt however the passenger side did.
▪The driver(s) seat was broken in that it could not be adjusted up or down nor backwards or forwards. A bolt or pin was also missing. Please refer to the enclosed photo of seat.
▪The equaliser bushing was not in a serviceable condition due to its age and the effect of oil deteriorating the rubber. The rubber bushes were never repaired. Please refer to the enclosed photo.
▪King Pin bushes were worn and needed replacing.
▪The front suspension leaf spring was broken.
▪The rear tyres of the truck had worn out prematurely which our client claims (this) was either due to a bent chassis or rear axle problem.
▪Rear suspension insulator pads (elephant pads) were in poor condition and required replacing.
▪There was a ‘wobble’ coming from one of the wheels. The tyres were replaced and a wheel alignment done.”[15]
[14]It is assumed that the vehicle had some shock absorption, but what it did have was inadequate. The actual assumptions made in this regard are set out later in this section.
[15]Exhibit A, page 9
18At paragraphs 7.40 to 7.42 of exhibit A, Mr Dohrmann opined:
“7.40 I consider that Craig Fisher was placed at risk of injury by Multrans Pty Ltd in the circumstances described.
7.41 The basis of the reasoning process leading to that concluded opinion consists in the likely high and unsafe lower back stresses that he suffered on multiple occasions when the MACK Kato crane truck which he was driving forcefully transmitted bumps into the cabin, and which were inadequately dissipated by the driver’s seat.
7.42 Measures which Multrans Pty Ltd could have taken to prevent exposing Mr Fisher to risk were as follows:
▪ By carrying out the type of review or audit of manual handling work called for by the Victorian WorkCover Authority in referencing employer obligations set out in the Victorian Occupational Health and Safety Act 2004 and the Victorian Occupational Health and Safety Regulations 2007.
A competently conducted audit would have been likely to have identified the tasks concerned as comprising a risk of strain injury, and should have prompted earlier intervention.
▪ By similarly carrying out a review or audit of plant use, as also called for by the Victorian WorkCover Authority.
▪ By applying the advice given in the Victorian Code of Practice for Manual Handling – first published in Victoria in 1988 and again in 2000, and which gives information on the identification, assessment and control of risks of strain.
[the plaintiff no longer presses the admissibility of this dot point].
▪ By carrying out the type of plant review or audit called for by the Victorian Occupational Health and Safety Regulations 2007. A competently conducted audit would have been likely to have identified the risk of a lack of a passenger seatbelt and of a lack of suitable seat suspension and should have prompted earlier intervention.
▪ By carrying out better routine inspections of the vehicle. A competently conducted inspection should have identified the apparent faults concerned, assessed them as a risk of strain injury, and should have prompted earlier intervention.
▪ By the implementation of a more effective preventative maintenance regime which involved appropriate inspection, fault finding and repair.
▪ By providing training: not so much in driving techniques, but in strain risk identification. Suitable training would have equipped Mr Fisher to better understand the risk here, but which was evidently faced unknowingly.
▪ By acting immediately on Mr Fisher’s reports that the MACK Kato crane truck was unsuitable to drive, and taking it out of service until it was fixed.
▪ By ensuring that the driver’s seat provided adequate shock and vibration absorption, most obviously by installing an air-powered suspension seat.
▪ By providing a driver’s seat belt.
▪ By repairing the existing seat and restoring its adjustability.
▪ By providing Mr Fisher with another more suitable truck to drive once the issues with the MACK Kato crane truck had been brought to the Defendant’s attention.
▪ By providing a vehicle with a suspension more capable of isolating drivers from shocks and jolts from the road – this would likely include a suspension with shock absorbers and cabin air cushioning.”
19The defendant submits that these passages are inadmissible for the following reasons:
“39.… [The matters raised in these paragraphs] are matters which the jury will have to determine for themselves. Whether the plaintiff was exposed to the risk of injury, what a reasonable employer’s knowledge of the risk should have been and what precautions could have been taken by the defendant are all issues that require adjudication by the jury. There is no obvious link between the facts assumed by Mr Dohrmann, the expertise to give such opinion and the opinion offered. Whilst he is entitled to give evidence on the ultimate issue, he must first establish that such a conclusion falls within his expertise and then disclose a path of reasoning of his reasoning to the assumed facts – neither of which has occurred.
40.In particular, the measures suggested by Mr Dohrmann at paragraph 7.42 are general in nature and lack any relationship to his expertise as an engineer or ergonomist. The first 8 bullet points are to the effect that the defendant could, or should, have complied with the various regulations and codes applicable. That is not an expert opinion. The following 6 bullet points are suggestions that are so general as to lack any basis in any field of expertise. For example, Mr Dohrmann suggests that the plaintiff’s complaints should have been acted upon. That the driver’s seat of the truck should have ‘adequate’ shock and vibration absorption by installing an air-powered seat. That a seat belt should be provided, and the seat should be repaired so that it is adjustable. Another suggestion is that the plaintiff be provided with an alternative ‘more suitable’ truck to drive. Each of these suggestions are simplistic and lack any application of scientific knowledge. They are all common-sense responses to the complaints made by the plaintiff to Mr Dohrmann about the EWP truck, and a jury is capable of arriving at these conclusions if the plaintiff’s assertions are accepted[16].”[17]
[16]See for example Bullion v Australian Nationwide Investments Pty Ltd [Ruling No 2] [2022] VCC 1686 at paragraphs [28]-[29]; Milanovic v Ventura Transit Pty Ltd [Ruling] [2022] VCC 909 at paragraphs [24], [29]-[34]
[17]Exhibit 1, paragraphs 39-40
20On the other hand, the plaintiff submits:
“3.18 The defendant’s objections to the admission of 7.37 to 7.42 seems to be that because the jury will need to make its own factual findings, it cannot be assisted by an expert. ...
3.19It is a necessary part of the plaintiff’s proof of his claim in negligence and breach of statutory duty that there were reasonable available alternatives to the circumstances in which the plaintiff was employed that would have eliminated or reduced the risk of injury. 7.42 in particular is an essential part of the plaintiff’s claim as to reasonable and available alternative means and methods the defendant could have used that would have made a material difference to the risk of injury. This evidence can only be given by someone, such as Mr Dohrmann, qualified to give opinion as to the availability and reasonableness of suggested alternatives. The opening words of 7.42 refer to measures the defendant could have taken to prevent exposing Mr Fisher to risk. The report does not opine that each or any measure should have been taken, a matter for the jury.”[18]
[Emphasis in original.]
[18]Exhibit D, paragraphs 3.18 – 3.19
Discussion
Paragraph 7.40: “I consider that Craig Fisher was placed at risk of injury by Multrans Pty Ltd in the circumstances described”
21As mentioned, it is not in dispute that driving a truck increases the risk of spinal injury. As a qualified engineer and ergonomist, Mr Dohrmann is entitled to express an expert opinion about the features of the particular truck that increased the risk of injury. I rule that this paragraph is admissible.
Paragraph 7.41: “The basis of the reasoning process leading to that concluded opinion consists in the likely high and unsafe lower back stresses that he suffered on multiple occasions when the MACK Kato crane truck which he was driving forcefully transmitted bumps into the cabin, and which were inadequately dissipated by the driver’s seat”
22This paragraph, when read in context, exposes in part Mr Dohrmann’s path of reasoning and I rule it to be admissible.
Paragraph 7.42: “Measures which Multrans Pty Ltd could have taken to prevent exposing Mr Fisher to risk were as follows”
23The parties agree that any applicable legislation, rules, regulations, codes of practice or material available to employers at or prior to the time of the incident must be identified and tendered independently of Mr Dohrmann.
24It may be that some of Mr Dohrmann’s opinions as to preventative measures that could have been taken to prevent or reduce the risk of injury involve matters requiring expert opinion, some require no expert opinion, and some may involve a combination of both expert and non-expert opinion.
25I note that Mr Dohrmann did not have access to the truck in question, it having been disposed of before the proceedings commenced. Further, he noted that he had “not seen any specific information on the brand or type of driver’s seat which existed in the MACK Kato crane truck at the relevant time”.[19]
[19]Exhibit A, paragraph 3.5
26I further note that Mr Dohrmann stated:
“3.6I have also not seen any relevant:
§MACK Kato crane truck suspension specifications;
§dashcam footage;
§on-board data logger records;
§employer pre-start checklists or procedures that the Defendant may have required drivers to complete or follow;
§service records relating to the subject driver’s seat;
§incident reports;
§risk assessments; or,
§safe work method statements
§taken or produced by the Defendant (or any other party), nor have I seen any relevant WorkSafe Victoria inspector reports.
3.7If any of the foregoing material exists, it may assist if I see it.”[20]
[20]Exhibit A, paragraph 3.6 – 3.7
27I now turn to consider the admissibility of each of the preventative measures suggested by Mr Dohrmann:
§ “[1] By carrying out the type of review or audit of manual handling work called for by the Victorian WorkCover Authority in referencing employer obligations set out in the Victorian Occupational Health and Safety Act 2004 and the Victorian Occupational Health and Safety Regulations 2007”
28I agree with the defendant that this subparagraph does no more than state the employer had a statutory duty to comply with the relevant legislation, rules, regulations, codes and guides.
29The Court is obliged to direct the jury about the relevant legal duties owed by employers to employees.
30If the proposed amendment to the plaintiff’s Statement of Claim alleging breach of the Hazardous Manual Handling Regulations is allowed, the obligation rests with the Court to direct the jury accordingly. I therefore rule this subparagraph to be inadmissible.
§ “A competently conducted audit would have been likely to have identified the tasks concerned as comprising a risk of strain injury, and should have prompted earlier intervention”
31The defendant has admitted that it was aware that the plaintiff was required to drive the truck in the state that it was in. It has also admitted that the driver’s seat was fixed in a rigid position that could not be altered. The defendant has further admitted the there was no suspension in the driver’s seat and that there was no seatbelt for the driver.[21]
[21]Answers of the defendant to the interrogatories of the plaintiff Plaintiff’s Court Book (“PCB”) 39-43
32I rule this subparagraph to be of limited probative value to the facts in issue, and I rule it to be inadmissible.
§ “[2] By similarly carrying out a review or audit of plant use, as also called for by the Victorian WorkCover Authority”
33I agree with the defendant that this subparagraph does no more than state the employer has a statutory duty to comply with the relevant legislation, rules, regulations, codes and guides.
34I rule this subparagraph to be of limited probative value to the facts in issue, and I rule it to be inadmissible.
§ “[3] By applying the advice given in the Victorian Code of Practice for Manual Handling – first published in Victoria in 1988 and again in 2000, and which gives information on the identification, assessment and control of risks of strain”
35For reasons similar to those stated above, I rule this subparagraph to be inadmissible.
§ [4] [The plaintiff no longer presses the admissibility of this subparagraph].
§ “[5] By carrying out the type of plant review or audit called for by the Victorian Occupational Health and Safety Regulations 2007. A competently conducted audit would have been likely to have identified the risk of a lack of a passenger seatbelt and of a lack of suitable seat suspension and should have prompted earlier intervention”
36In Answers to Interrogatories delivered on behalf of the plaintiff for the examination of the defendant,[22] the defendant admitted that the driver’s seat did not have suspension and that there was no seatbelt for the driver.[23] Accordingly, Mr Dohrmann’s opinion does not relate to a fact in issue, namely the state of knowledge of the defendant (or what the defendant ought to have known) about the suspension and the absence of the driver’s seatbelt.
[22]PCB 35-38
[23]Answers of the Defendant to Interrogatories of the Plaintiff, 2 May 2022, 1(b) and (c), PCB 39-40
37I rule this subparagraph to be inadmissible. In the alternative, I would exclude it as having marginal relevance.
§ “[6] By carrying out better routine inspections of the vehicle. A competently conducted inspection should have identified the apparent faults concerned, assessed them as a risk of strain injury, and should have prompted earlier intervention”
38The faults said to contribute to the plaintiff’s injuries comprise of a combination of factors including the fact the plaintiff was driving a truck, the seat had no suspension or shock absorption, there was no seatbelt, and the seat was fixed so that the plaintiff could not adjust it to suit his body and posture. That, together with the defendant’s admission that driving a truck increases the risk of spinal injury, renders this subparagraph of little probative value to the facts in issue.
39Mr Dohrmann will testify as to the additional strain placed on the plaintiff’s spine in these circumstances – which evidence calls for expert evidence – is within Mr Dohrmann’s areas of expertise, and is admissible.
§ “[7] By the implementation of a more effective preventative maintenance regime which involved appropriate inspection, fault finding and repair”
40I repeat and adopt what I have stated earlier – the defendant was aware of the type of seat, and the other matters to which I have referred, so that is not an issue in dispute. The defendant has stated that it was unaware that there were any faults or defects in the seat that required repair.[24] The defendant claims to have subjected the vehicle to three-monthly inspections. That may be an area of dispute, but Mr Dohrmann cannot testify whether, as a matter of fact, the truck was inspected regularly, and, if it was, what the inspection would have revealed beyond what the defendant has admitted, and how such additionally discovered faults would have caused or contributed to the plaintiff’s injury.
[24]Answers of the Defendant to Interrogatories of the Plaintiff, 2 May 2022, Answer to Interrogatory 4(b)(iii), PCB 40
41I rule this subparagraph to be inadmissible.
§ “[8] By providing training: not so much in driving techniques, but in strain risk identification. Suitable training would have equipped Mr Fisher to better understand the risk here, but which was evidently faced unknowingly”
42Mr Dohrmann has not specified what training in particular would have made a difference. According to Mr Dohrmann, the factors mentioned – the fixed seat, the failure to have a seatbelt, the awkward position the plaintiff would have to adopt to drive the truck, and the absence of shock absorbers, caused or contributed to the plaintiff’s injury. He has not identified what specific training is available to equip a driver to protect themself from injury when they are incapable of changing the physical characteristics of the vehicle that pose the risk of injury.
43This subparagraph adds little if anything to the real facts in issue, and I rule it to be inadmissible.
§ “[9] By acting immediately on Mr Fisher’s reports that the MACK Kato crane truck was unsuitable to drive, and taking it out of service until it was fixed”
44The nature and extent of the plaintiff’s complaints to the employer are disputed. Whether taking the vehicle out of service is a reasonably practicable response is a matter for the jury to decide.
45Although by virtue of s80 of the Evidence Act the “ultimate issue” and “common knowledge” rules have been abolished, Mr Dohrmann’s opinion is simplistic and not one drawing on expertise.
46I rule this subparagraph to be inadmissible.
§ “[10] By ensuring that the driver’s seat provided adequate shock and vibration absorption, most obviously by installing an air-powered suspension seat”
47Unfortunately, because Mr Dohrmann has little technical information about the seat and has not viewed the truck, he is not in a position to say whether this measure is capable of being carried out. He has not exposed his path of reasoning to this conclusion. Even if the measure could be carried out, he has not provided any evidence as to which particular seat was available to fit to this particular truck, or about the cost, inconvenience or difficulty of installing an air-powered seat.
48In these circumstances, this subparagraph is excluded as carrying limited, if any, probative value.
§ “[11] By providing a driver’s seatbelt”
49This is an obvious measure that does not require expert evidence. It does not take an expert to say that if a driver is not restrained by an appropriately fitted seatbelt, they may suffer injury when the vehicle is driven over potholes or uneven surfaces.
50Mr Dohrmann does not provide measurements of distances, height or calculations relative to the plaintiff’s height and size. There are no calculations to explain how the plaintiff would have to position his body on the seat in order to reach the steering wheel and foot pedals. He does not explain whether, if restrained by a seatbelt, the plaintiff would have been able to reach the steering wheel and/or the foot pedals.
51In pursuit of the claim that when driving the truck the plaintiff was engaged in hazardous manual handling, Mr McCredie has placed emphasis on the combination of the configuration of the seat, the unusual position of the steering wheel in a horizontal plane, and the distance between the back of the fixed seat and the steering wheel and foot pedals to argue that these factors contributed to the plaintiff adopting an awkward posture in order to drive and control the vehicle. In these circumstances, it is unclear whether the plaintiff would have been able to drive the truck if restrained by a seatbelt.
52The passenger seat was fitted with a seatbelt, however, there is little, if any, detail about any differences between the passenger and the driver’s seat.
53I would have allowed Mr Dohrmann to testify as to the cost, difficulty and inconvenience of fitting a seat belt, however, his report is silent on these matters.
54I exclude this subparagraph.
§ “[12] By repairing the existing seat and restoring its adjustability”
55Again, Mr Dohrmann has provided no expert evidence as to whether the seat was capable of repair and whether the seat could be made adjustable, and, if so, how. He has not provided any evidence as to the difficulty, inconvenience or cost of undertaking this measure.
56Again, I would have allowed Mr Dohrmann to testify as to the cost, difficulty and inconvenience of this preventative measure, however, his report is silent on these matters.
57I exclude this subparagraph.
§ “[13] By providing Mr Fisher with another more suitable truck to drive once the issues with the MACK Kato crane truck had been brought to the Defendant’s attention”
58This is an obvious measure not calling for expertise.
59What Mr Dohrmann could have provided evidence about, had he chosen to do so, concerns the availability of appropriate alternative vehicles and the cost of obtaining them. His report is silent about that.
60I exclude this subparagraph.
§ “[14] By providing a vehicle with a suspension more capable of isolating drivers from shocks and jolts from the road – this would likely include a suspension with shock absorbers and cabin air cushioning”
61I adopt and repeat my reasons for ruling given in relation to the previous subparagraph.
62I exclude this subparagraph.
Admissibility of the fact that the Defendant’s agent accepted the Plaintiff’s WorkCover claim
63It is not disputed that the plaintiff lodged a WorkCover claim on 11 August 2015.[25] The plaintiff responded to questions in the pro forma Worker’s Injury Claim Form as follows:
[25]Exhibit F, PCB 126-127
“2.INCIDENT AND WORKER’S INJURY DETAILS
Q:What is your injury/condition, and which parts of your body are affected?
A:Lower back with referred pain down left leg.
Q:What happened and how were you injured?
A:I was driving the 47m Cela EWP crane truck without suspension seat to Geelong. I experienced pain since and continued to drive the truck.
Q: What task/s were you doing when you were injured?
A: Driving the crane truck.
Q:What area of the worksite were you working in when you were injured?
A:Princess Hwy on the way to Geelong.
…
Q:What was the date and time the injury/condition occurred?
A:25/10/14 approx. 6 AM
Q:When did you first notice of the injury/condition?
A:25/10/14
Q:If you stopped work, what was the date and time?
A:13/5/15
…
Q:Have you previously had another injury/condition or personal injury claim that relates to this injury/condition?
A:I have had some prior back pain, however nothing like this and never referred pain to my left leg.”
64The employer’s proforma Employer Injury Claim Report dated 15 August 2015[26] contained the following questions and answers:
[26]Exhibit G, PCB 128-129
“7:INCIDENT DETAILS
Q:What is the worker’s injury/condition, and which parts of the body are affected?
A:Claim is for back injury reported to Multrans P/L 12.8.15
Q:What happened and how was the worker injured?
A:Claimed back injured while driving truck, no medical certificate or report of incident given until 12.8.15. Continued working for the next 5 months.
…
Q:Has the worker had a similar injury/condition or personal injury claim before that relates to this injury/condition?
A:Did not submit to us our application form which requires information for pre-existing injuries or WorkCover injuries, asked numerous times for this form to be returned.
…
8.ADDITONAL INFORMATION
Q:Do you want to provide any additional information that may assist in the determination of liability or the management of this claim?
A:Never reported incident or stopped working. No medical certificate provided at any time during his employment. Worked on his farm, driving tractors, spraying etc, travelled from Gippsland to work. Went overseas to have dental work. Has been working with another employer since resignation in WA.”
65After receiving the employer’s response, the employer’s agent, Gallagher Bassett, commissioned an investigation. The “Circumstance Investigation Report” dated 8 September 2015,[27] less than a month after the plaintiff lodged his WorkCover Claim Form, contained a number of documents, including unsigned statements from Christopher Mullins, James Mullins (both associated with the defendant), and the plaintiff. There were also records of conversations with Michael Stagg, and Steven Turner. The report contained copies of various other documents, including the plaintiff’s qualifications and licences. Copies of a number of invoices relating to repairs conducted on the truck were also contained in the report.
[27]Exhibit J (not included in the Court books)
66On 15 September 2015, a representative from Gallagher Bassett wrote to the plaintiff:
“Dear Craig,
Acceptance of your claim
Your claim number: [deleted]
Your employer: MULTRANS P/LDate of injury: 25 October 2014 [emphasis added]
I am writing to advise that Gallagher Bassett Services Workers Compensation Vic Pty Ltd (Gallagher Bassett) has accepted your claim for medical and like expenses.
Benefits are provided to all injured workers who qualify under the Victorian workers’ compensation legislation.
… .”[28]
[28]Exhibit H, PCB 321-323
67The plaintiff calls on the defendant to make an admission in the following form:
“The Defendant accepted liability for the Plaintiff's claimed injury and has paid, and continues to pay, reasonable medical and like expenses, which acceptance and ongoing payment is an admission that the injury as claimed was sustained in the course of his employment with the Defendant.”[29]
[29]Exhibit 1, paragraph 48
68The plaintiff has indicated to the defendant that in addition to the admission it calls for the defendant to make, he intends to tender the Worker’s Injury Claim Form.[30]
[30]Exhibit F, PCB 126-127
69The defendant challenges the form of the admission sought by the plaintiff.
70The defendant concedes that the words: “The Defendant accepted liability for the Plaintiff's claimed injury and has paid, and continues to pay, reasonable medical and like expenses” are capable of being construed as an admission consistent with admissions sought and considered in other jury trials.[31]
[31]Exhibit 1, paragraph 49, citing as authority Cairns v Trowelcoat Pty Ltd [2014] VSC 129 (“Cairns v Trowelcoat”) at paragraph [2] and Mert v Lawrence (Vic) Pty Ltd [2016] VSC 348 (“Mert v Lawrence”) at paragraph [2]
71The defendant, however, disputes the admissibility of the words: “which acceptance and ongoing payment is an admission that the injury as claimed was sustained in the course of his employment with the Defendant”.
72The defendant submits that these words are argumentative and could never properly be sought from, and would never be admitted by, the defendant. The defendant contends that these words amount to a conclusion of law and that it should not be called upon to make an admission about something that evidence could not be adduced to prove. The plaintiff disputes this, contending that the words are a natural construction of the effect of the first part of the admission sought.
73I agree with the defendant that the words: “which acceptance and ongoing payment is an admission that the injury as claimed was sustained in the course of his employment with the Defendant” are not the proper subject matter for an admission. The words constitute an inference that is available to be drawn from the first part of the sentence: “The Defendant accepted liability for the Plaintiff's claimed injury and has paid, and continues to pay, reasonable medical and like expenses.” If this part of the sentence is admitted, the parties can each make their own submissions first, as to what inferences are available to be drawn and, second, whether those are the most probable inferences to be drawn. The parties could also argue what weight, if any, should be placed on the admission. If the admission is made in that restricted form, the Court would be obliged to give the jury directions about admissions modelled around the directions set out in the Civil Juries Charge Book:
“Acceptance of Workcover claim
29.You have heard evidence that the plaintiff put in a Workcover claim for his/her/their injury and it was accepted by the employer’s agent.
30.You can, if you wish use that as evidence of an admission (or acceptance) by the Defendant that the event, as described in the claim form, occurred, and that the Plaintiff sustained an injury as a result of it. You also have the response from the agent which sets out its position.
31.It is up to you to decide how significant that evidence is.
32.One of the matters you may consider is whether the person who decided to accept the claim had access to all the relevant facts. This will help you decide whether accepting the claim was an informed decision, or a purely administrative one.
33.If you do treat it as an admission, that admission can be used by you as a piece of evidence in your reasoning process. But the fact that I have described it as an ‘admission’ does not mean that it is necessarily conclusive; it, again, must be weighed up with the other evidence in the case that you have accepted.
34.The defence argues that you should not give this evidence any weight because [identify defence position].
35.In contrast, the plaintiff says [identify plaintiff position].”[32]
[32]Judicial College of Victoria, Civil Juries Charge Book (online publication), Chapter 2.1.2, paragraphs 29-35
74If requested to do so, and if appropriate, the Court could also warn the jury about any potential unreliability of the admission in accordance with s165 of the Evidence Act, given the circumstances in which it was made and the limited material available at the time the admission was made.
75Accordingly, the words: “which acceptance and ongoing payment is an admission that the injury as claimed was sustained in the course of his employment with the Defendant” cannot form part of the admission without the defendant’s consent.
76As to the first part of the sentence: “The Defendant accepted liability for the Plaintiff's claimed injury and has paid, and continues to pay, reasonable medical and like expenses”, although in an appropriate form for an admission, the plaintiff has not referred to an authority that enables the Court to compel the defendant to make it. At this stage, the defendant “does not at present propose to make the admission sought, whether in the current form, or any more restricted form”.[33] The defendant submits that “[a] determination of this issue should therefore be made on the basis that the plaintiff will, if permitted, lead evidence of the facts specified in the proposed admission”.[34]
[33]Exhibit 1, paragraph 50
[34]Exhibit 1, paragraph 51, citing as authority Mert v Lawrence (supra) at paragraph [2]
77The defendant opposes the tender of evidence on this issue before the jury.
Should the body of evidence about the agent’s acceptance of the Plaintiff’s WorkCover claim be admitted into evidence?
78It is not in dispute that the defendant’s agent has made a declaration against interest. [35]
[35]Part 3.4 Evidence Act, in particular, sections 81 and 87 Evidence Act, and definition of “admission” contained in the Dictionary of the Act
79The admission is relevant because it is probative of whether the plaintiff suffered injury in the course of his employment in the circumstances claimed. The admission goes to a critical fact in issue, namely the question of causation.
80Section 88 of the Evidence Act provides:
“88 Proof of admissions
For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.”
81In my view, it is reasonably open to find that the defendant’s agent made the admission. Accordingly, the admission is prima facie admissible.[36]
[36]Part 3.4 Evidence Act, in particular, sections 81, 87 and 88 Evidence Act, and definition of “admission” contained in the Dictionary of the Act
Should the admission be excluded in accordance with s135 of the Evidence Act?
82Section 135 of the Evidence 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; …
… .”
83The defendant’s written submissions contend:[37]
[37]Exhibit 1
52.In Ansett Australia Ltd v Taylor[38] the Court considered the effect, in a serious injury application, of a prior acceptance by the WorkCover Authority of a worker’s claim for lump sum compensation under s 98C of the Accident Compensation Act 1985 (‘the Act’). Ashley JA (with whom Maxwell P and Bongiorno AJA agreed) stated:
[38][2006] VSCA 171 (“Ansett”)
‘[…] But in cases where liability in relation to such a claim was accepted, I consider that the acceptance should stand only as an admission by the Authority or self-insurer, speaking for the employer, that such an injury had been sustained. Having regard, however, to the very serious consequences for the Authority or self-insurer flowing from acceptance of the [scil a] claim – not only in respect of compensation payable under s[.]98C or s 98CE [scil s98E], but also[,] potentially, with respect to s[.]134AB(3) and (!%) [scil 15] – I consider that such an admission should ordinarily be regarded as very significant; albeit not conclusive, because a defendant, in a particular case, might be able to satisfactorily explain its conduct.’[39]
[39]Ansett at [40].
53.In Raeburn v Tenix Defence Systems Pty Ltd[40] Cummins J held that the acceptance by the Victorian WorkCover Authority of an entitlement to weekly payments of compensation under the Act was not relevant in a subsequent common law proceeding against the employer for the same injury. His Honour held that as a matter of law, the actions of one entity should not be confused with the actions of another. He found that the fact that the Authority pays a medical bill or makes a weekly payment does not constitute an admission by the defendant employer, and that the scheme of the Act does not result in an ‘holistic conflation of entities or of their actions one with the other’.[41] Cummins J did not consider that Ansett was relevant as it was not concerned with the common law situation.
[40][2006] VSC 390.
[41]Ibid at [8].
54.Cairns v Trowelcoat is an example of an admission in respect of the payment of compensation for medical and like expenses which was allowed by the trial judge. At [23] of that ruling, Rush J considered himself bound by the reasoning of Ashley JA in Ansett. His Honour disagreed with Cummins J’s ruling in Raeburn[42]. The defendant submits that there have been a number of developments in the law since Cairns v Trowelcoat, including qualification by the Court of Appeal of Ashley JA’s comments in Ansett.
[42]Cairns v Trowelcoat at [28].
55.In Bedeux v Transport Accident Commission[43] the applicant had been involved in a motorcycle collision in the course of his employment with Australia Post. He alleged that the acceptance by Australia Post of liability for his left knee injury should be a matter of significance in determining the nature of the injury for the purposes of a serious injury application under the Transport Accident Act 1986. At [71], Kaye JA (with whom Ferguson and McLeish JJA agreed) noted that in Transport Accident Commission v Florrimell[44] ‘the Court qualified the views expressed by Ashley JA, concerning the weight to be accorded to the acceptance, by an authority, of a claim for statutory benefits, in a subsequent common law proceeding’. Kaye JA found that Australia Post’s acceptance of liability was not an admission as to the nature and extent of injury. He stated further at [73] that:
[43][2016] VSCA 127.
[44][2013] VSCA 247.
‘Even if, hypothetically, the acceptance of the claim by Australia Post had some evidentiary value in the proceeding, such value could only be very limited. As pointed out by counsel for the respondent, there was no evidence concerning the compensation system by reference to which Australia Post accepted the applicant’s claim. It appears to have been accepted on the strength of limited medical opinion then available to it. By contrast, there was a substantial body of medical evidence before the judge relating to the critical issue of the cause of the injury to the applicant’s left knee.’
56.In Mert v Lawrence the defendant contended that the plaintiff had not sustained injury in the course of his work. The plaintiff sought an admission that the defendant had accepted liability for the plaintiff’s injury under the Act. Bell J refused to admit evidence of the acceptance of the plaintiff’s WorkCover claim. His Honour considered the decisions of Ansett and Cairns v Trowelcoat, together with other decision of the Court of Appeal, and noted at [8] that:
‘…I have my doubts about whether acceptance by CGU of the plaintiff’s claim for impairment benefits under the Accident Compensation Act represented an admission (that the plaintiff was injured in the alleged incident) on behalf of the defendant for all purposes and specifically for the purpose of the present proceeding for substantial damages for negligence and breach of statutory duty. That proposition, which was not developed on behalf of the plaintiff, seems to rest entirely upon the formal authority of CGU under the Accident Compensation Act. I suspect that, on analysis, the proposition will break down at both that formal legal and also at the factual level.’
57.His Honour considered that a contextual approach based upon the particular facts and circumstances of the case revealed that:
·The character of a damages proceeding for negligence and breach of statutory duty was different from a claim for statutory benefits under the Act;
·Limited consideration is given to the issue of liability in respect of decisions as to statutory benefits under the Act;
·Acceptance of the claim was strongly opposed by the defendant at an early stage in the life of the claim; and
·A thorough examination of the alleged injury was undertaken in the substantial evidence led in the common law proceeding[45].
[45]Mert v Lawrence at [10].
58.His Honour found that the contextual considerations ‘swamped’ the status of any potential admission and had very little probative value in the common law proceeding. When weighed against the dangers identified in s 135(a), (b) and (c) of the Evidence Act 2008, his Honour refused to admit evidence of the supposed admission[46].
[46]Ibid at [11].
59.Finally, in Sednaoui v AMAC Corrosion Protection Pty Ltd[47], the Court of Appeal again provided guidance as to the effect of decisions by insurers and whether they serve as admissions in subsequent proceedings. In Sednaoui the applicant alleged that he sustained an injury to his lumbar spine in the course of employment with the respondent, and that such injury constituted a serious injury under the Act. The applicant’s claim had been accepted by the WorkCover insurer. In the course of the serious injury application the respondent mounted a substantial case that the applicant had not sustained a compensable injury. The judge at first instance found that the acceptance of the claim by Allianz and the subsequent payment of compensation had little probative value in the circumstances. In respect of the applicant’s argument about the effect of Ansett, the Court noted:
[47][2017] VSCA 66.
‘[66] Before leaving our analysis, we should observe that during the course of oral argument it appeared to be submitted by the applicant that Ansett v Taylor was to be understood as stating, as authoritative propositions of law, that:
(a)[t]he acceptance of a claim form (and the payment of compensation subsequent thereto) was an admission that should ordinarily (and, perhaps, in all but exceptional circumstances) be regarded as very significant; and
(b)[s]uch and admission was to be regarded as very significant, albeit not conclusive, because an employer, in a particular case, might be able to satisfactorily explain its conduct.
[67] Ansett v Taylor is not authority for any such propositions of law. The observation in Ansett v Taylor that an admission of the type here under discussion ‘should ordinarily be regarded as very significant’ is, with respect, undoubtedly true. But it is an observation only, and not a statement of legal principle. To regard the words used in this observation in Ansett v Taylor as if they were provisions of a statute defining in precise and permanent terms the significance of any admission constituted by the acceptance of a claim form would be erroneous.
[68] Similarly, while an employer/respondent may, in a particular case, be able to explain the circumstances of a particular admission so as to reduce the weight that might be given to it, the mere failure by such a party to call such evidence, without more, does not mandate a conclusion favourable to the claimant/worker. As with most questions of admissibility and weight, each case is dependent upon its own facts and circumstances.
[69] On the evidence given in this case, the judge was entitled to conclude that the acceptance by Allianz of the claim form and subsequent payment of compensation has little probative value. […]’ (Citations omitted)
60.In the current case the defendant disputes that the plaintiff sustained an injury to his low back in the course of his employment. There is a significant body of evidence to be put to the plaintiff and other witnesses in the course of the trial. This evidence arises from the clinical records and subpoenaed records of a number of doctors and other organisations. These are all documents which were not available to the parties until legal proceedings were on foot, and subsequent to the decision made by the defendant’s WorkCover insurer, Gallagher Basset, to accept the plaintiff’s claim. This set of circumstances explains the reluctance, for example by Cummins J in Raeburn and Bell J in Mert v Lawrence, to consider the decision of a claims agent to somehow impact upon the causation argument made by a defendant in the course of a common law proceeding based upon negligence and breach of statutory duty. The unique character of common law proceedings tell against such a conclusion. The opinions upon which the claim was initially accepted are entitled to be tested in Court with the benefit of all relevant evidence.
61.It is also important to note that the named defendant in this proceeding has raised, from the earliest possible opportunity, its scepticism as to the link between the plaintiff’s injury and his employment. Specifically, upon receiving the plaintiff’s claim form (months after the plaintiff had ceased work for the defendant and after he had spent months working for another employer), the defendant completed an Employer Injury Claim report (PCB 128-129) which detailed some of the issues surrounding causation. The defendant witnesses will give evidence consistent with these comments during the trial. The defendant did not have the ability to determine whether compensation payments would be made to the plaintiff.
62.The defendant submits that, even if an admission could be relevant to the current proceeding, it would have very little probative weight in the context of the rest of the evidence in the case.
63.If the plaintiff were allowed to lead evidence about the compensation payments made by Gallagher Bassett, the defendant would then have to call evidence about a wide range of extraneous matters, including:
·The complexities of the WorkCover compensation scheme;
·The role of Gallagher Bassett in the compensation scheme;
·The circumstances in which a claim could be accepted;
·The circumstances in which the plaintiff’s claim was accepted;
·The evidence available to Gallagher Bassett at the time the claim was accepted;
·The opposition of the defendant to the claim being accepted.
64.All of these matters would result in increased complexity, and a potentially misleading or confusing situation for the jury. The extent of the evidence which would need to be called to explain these issues would create a significant risk of drawing unnecessary attention to the issue, prejudicing the defendant and distracting the jury from the real matters in dispute. To properly explore these issues would also occupy a clearly disproportionate amount of Court time devoted to the issue. Each of these considerations are relevant to the Court’s discretion pursuant to s 135 of the Evidence Act 2008 …
65.The defendant submits that the Court ought to exclude any evidence in respect of compensation payments made to the plaintiff, in accordance with Mert v Lawrence, Milanovic v Ventura Transit Pty Ltd [Ruling No 2][48] and Ly v Australian Pharmaceutical Industries Ltd.”[49]
[48][2022] VCC 910.
[49][[2022] VCC 2346] … Judge Clayton, 16 June 2022
84The plaintiff’s written submissions contend:[50]
“3.3At [52] of the defendant’s submissions a quote from Ansett v Taylor is set out. The very quote confirms that where, as here, liability in relation to a claim was accepted, the acceptance should stand only as an admission by the Authority or self-insurer, speaking for the employer, that such an injury had been sustained.
3.4The defendant is entitled to call evidence to explain the circumstances in which the acceptance of the claim has been made and, it is understood, the defendant intends to call 2 such witnesses. The effect of that evidence may of course explain why the acceptance of liability was not an admission of liability in the circumstances (as was conceded in Bedeux[51]) or might significantly affect the weight that should be placed on the admission (as in Florrimell)[52].
3.5If, after the evidence is called, and no good reason is given as to why the admission should not stand, it would still be a matter for the jury to determine whether any negligence and/or breach of statutory duty was a cause of the plaintiff’s discal injury. But the plaintiff is entitled to the benefit of the admission arising from the defendant’s conduct.
3.6An admission of the type noted in Ansett v Taylor has been applied in Cairns v Trowelcoat[53] and followed recently in this Court in cases such as Pollock v AirLube [& Lift Services Pty Ltd & Anor][54]. Your Honour’s decision in Xu v Diver Foods P/L[55] at [353] noting that the admission can constitute powerful evidence but that the weight, if any, that should attach will depend on the circumstances is entirely consistent with the plaintiff’s submissions on this point.”
[50]Exhibit D
[51]At [72] of Kaye JA’s reasons.
[52]Per Tate JA at [45].
[53][2014] VSC 129
[54][2022] VCC 103 per HH Judge Robertson at [10];
[55][2021] VCC 824.
Discussion
85The defendant has called no evidence to explain the circumstances in which the defendant’s agent determined to admit the claim, and has declined the opportunity to do so. I cannot speculate as to why the agent accepted the claim in order to fill this gap in the evidence. That said, however, it is clear that the claim was accepted expeditiously, within a month, on limited information. It does not appear that any medical reports were included in the Circumstance Investigation Report.[56] It is self-evident that the defendant did not have access to material that came into existence post 15 September 2015, and which material forms the majority of the evidence to be tendered or adduced at trial.
[56]Exhibit J
86Moreover, despite accepting the claim, after receiving medical and other evidence, the defendant contested the plaintiff’s application to be granted leave to bring common law proceedings against the defendant in respect of the claimed injury. Mr McCredie informed me that the element of causation was a disputed issue in the contested hearing of the serious injury application. Such a stance is inconsistent with the earlier acceptance of liability.
87It should also be noted that the claim was accepted in respect of statutory benefits for an injury occurring on one date, 25 October 2014, and not in respect of the other dates referred in the plaintiff’s statement of claim. Further, no admission was made to the effect that the defendant’s negligence or breach of statutory duty was a cause of the plaintiff’s injuries, yet this is the focus of these proceedings. In other words, the current proceedings are concerned with a common law claim in negligence for damages, whereas the acceptance of liability was in respect of payments under a statutory scheme.
88With respect, I agree with the defendant that the body of evidence around the agent’s acceptance of the plaintiff’s Workcover claim is of limited probative value relative to the issues in the current proceedings and ought be excluded under s135 of the Evidence Act.
89In assessing whether the probative value of the evidence is substantially outweighed by the dangers referred in that section I have regard to s142 of the Evidence Act, which provides:
“142 Admissibility of evidence—standard of proof
(1)Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding—
(a)a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not;
…
have been proved if it is satisfied that they have been proved on the balance of probabilities.
(2)In determining whether it is so satisfied, the matters that the court must take into account include—
(a)the importance of the evidence in the proceeding; and
(b)the gravity of the matters alleged in relation to the question.”
90Balancing all relevant factors, I am satisfied to the requisite degree that the probative value of the evidence is substantially outweighed by a combination of each of the dangers referred to in subparagraphs (a), (b) and (c) of s135 of the Evidence Act for the reasons advanced by the defendant.
91In summary, my reasons for excluding the evidence are as follows:
(a) As to (a) – the danger that the evidence might be unfairly prejudicial to a party – it is possible that undue weight will be attached to the evidence by the jury. In other words, it may swamp all other considerations.
Introduction of the evidence would raise the fact that an insurer is standing behind the defendant, a fact that is usually not introduced because of the potential that it might pollute the jury’s consideration of the issues before them.
There is the additional problem that the evidence, although only admissible as against the defendant, might be used impermissibly as against the third party, although I acknowledge that a direction could be given to the jury to the effect that the evidence is only admissible for or against the party who made the admission;
(b) As to (b) – the danger that the evidence might be misleading or confusing – I consider the introduction of evidence could pose a distraction, given the body of evidence that would need to be introduced to explain the context in which the admission by the agent was made. This would involve complex factual questions about which detailed legal submissions and directions would have to be given;
(c) As to (c) – the danger that the evidence might cause or result in undue waste of time – I am concerned that prosecution of this point could lead to a trial within the trial about a collateral matter, and as such distract the jury from the real issues in dispute.
92In arriving at my conclusion, I have considered whether any directions could overcome the dangers to which I have referred. I am not persuaded that any directions would overcome or mitigate to an acceptable degree the combination of the dangers referred to.
Should the Plaintiff be permitted to amend the Statement of Claim to allege breach of hazardous manual handling regulations?
93In light of the rulings I have made in respect of the admissibility of various parts of Mr Dohrmann’s first report, I would prefer to hear further submissions about whether there is sufficient evidence to leave this cause of action before the jury. In particular, I would be assisted by further discussion about whether this matter should be reserved for consideration at the conclusion of the plaintiff’s case.
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