Luu-Wang v National Express Group Australia (Ruling)
[2013] VCC 861
•15 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-11-03344
| MELANIE LUU-WANG | Plaintiff |
| v | |
| NATIONAL EXPRESS GROUP AUSTRALIA (SWANSTON TRAMS) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7, 8, 9, 10, 13, 14 and 15 May 2013 | |
DATE OF RULING: | 15 May 2013 | |
CASE MAY BE CITED AS: | Luu-Wang v National Express Group Australia (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 861 | |
RULING
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Subject: EVIDENCE
Catchwords: Admissibility of evidence – disability benefit under superannuation policy paid as a result of injury – whether relevant as to motivation to pursue employment – balance to be struck under s135 of Evidence Act 2008
Legislation Cited: Evidence Act 2008
Cases Cited:Ainsworth v Burden [2005] NSWCA 174; R v BD (1997) 94 A Crim R 131.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M A Hartley SC with Mr N Bird | Maurice Blackburn |
| For the Defendant | Mr G Lewis SC with Ms F Ryan | Herbert Geer |
HIS HONOUR:
1 The plaintiff in this proceeding brings a claim for damages against the defendant for injuries she alleges occurred in the course of her employment in November 2002. The claim is for pain and suffering, and economic loss damages, and is for trial before a jury.
2 In the course of her evidence, the plaintiff alleges that after sustaining injury, in particular to her lower spine, in November 2002, she worked for a period on reduced lighter duties, but her employment was terminated in 2004. She has not worked since that time. Her evidence was to the effect that she is now incapable of returning to her former duties as a tram driver, nor other full-time duties. There has been evidence from various doctors called on behalf of the plaintiff that she has no work capacity, both from a physical and psychological perspective.
3 This ruling concerns the admissibility of evidence as to the benefit which has been paid, and which is to be paid, to the plaintiff for disability benefit arising out of her superannuation policy with Emergency Services and State Super (“ESS Super”). Simply put, Mr Lewis seeks to cross-examine the plaintiff as to the entitlements she has received through that policy in the past, and what entitlements she may receive in the future. He argues such entitlements are relevant to whether the plaintiff is motivated to seek employment at the present time, either on a part or full-time basis.
4 In the course of argument on the issue on 14 May 2013, I was provided with various documents obtained by the plaintiff’s solicitors from ESS Super. It is not particularly clear what precisely the plaintiff’s entitlement is, but doing the best I can with the documents provided, I have formed the following conclusions:
·As a result of her injury (or disability), the plaintiff has become entitled to various benefits because she is a member of ESS Super.
·She has already received a lump sum payment of $36,600 in about July 2004.
·She has received a further amount by way of interest of $22,481 although it is uncertain when.
·The balance of her entitlement, $292,777, has been deposited into the plaintiff’s superannuation deposit fund with ESS Super.
·The first date upon which the plaintiff is entitled to make application for payment of the sum of $292,777 from her superannuation fund is when she turns 59 years of age (that is in about ten years), providing she can satisfy the trustee of the fund that she will never be gainfully employed in full or part-time employment after that date.
·At some time in the future, possibly at age 60 or 65, the plaintiff will be entitled to the benefit of that sum from her superannuation fund, as would any other citizen.
5 The precise amounts to which the plaintiff is entitled, and the dates of those entitlements are not particularly precise from the correspondence with which I was provided. It may be necessary to call a representative from the fund to give evidence as to the precise entitlement, but what would appear clear is that the plaintiff has already received a payment in the sum of approximately $59,000, and a further amount of approximately $293,000 has been paid to the benefit of her superannuation fund.
6 Generally, when an injured person becomes entitled to a payment from a private pension or superannuation fund, the Courts will ignore such a payment in assessing damages for loss of earnings or earning capacity.[1] Therefore, the only relevant basis upon which the plaintiff could be cross-examined is as to whether, given the plaintiff has already received a benefit, and will be entitled to a future benefit, she is less motivated to pursue employment.
[1]Luntz (4th ed) – page 444, and cases referred to therein
7 Ms Hartley, for the plaintiff, made the following submissions:
·The amount already paid is so modest, and was received at a time only shortly after the plaintiff’s employment was terminated, that it could not be said to affect her motivation to seek employment.
·Given the uncertainty as to when and under what circumstances the plaintiff would receive the more substantial benefit under her superannuation fund, that entitlement is too remote to be relevant as to the issue of motivation.
·In accordance with s135 of the Evidence Act 2008, a court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be prejudicial.
·If the jury were to take the superannuation benefits into account, then the plaintiff’s position with respect to the statutory offer and counter offer made in accordance with the Accident Compensation Act 1985 may be jeopardised.
·The Notice to Produce requiring production by the plaintiff of details of the superannuation entitlement was served only at the commencement of the trial and cross-examination ought not be permitted because of late service.
8 In my view, the late service of the notice, and the potential effect upon the plaintiff’s statutory offer are not of significance in determining the issue. Further, I reject Ms Hartley’s argument that the amount which has already been paid, and the amount to be credited to the superannuation fund are either too modest or too remote to be of significance. Both are significant, although the payment already made, less so.
9 I accept the submission of Mr Lewis, for the defendant, that the payment or benefit is relevant in determining whether the plaintiff is motivated to pursue employment, either on a full or part-time basis. Given that evidence is relevant, prima facie, cross-examination on the point ought be allowed.
10 The real issue, in my view, is the balance to be struck, in accordance with s135 of the Evidence Act and in particular, whether the probative value is substantially outweighed by the danger that the evidence might have a prejudicial effect.
11 The evidence has the potential to be prejudicial. A jury might well take the view that given the substantial sum involved, particularly the contribution to the plaintiff’s superannuation fund, that any award to be made for past or future economic loss ought be reduced. The amounts involved are substantial, and the normal tendency of any person expected to assess compensation is not to permit an injured worker to “double dip”.
12 On the other hand, setting aside the evidence that the plaintiff was a hardworking woman, working full time as a tram driver since she was married, and principally responsible for carrying out all of the domestic and family duties, it is arguable that her determination to obtain employment, even notwithstanding her injuries, could be affected by knowledge that at some time in the future she will be entitled to a substantial sum of money which will give her less cause to work.
13 Section 135 applies to civil proceedings as well as criminal proceedings. Ms Hartley referred me to an extract from the Australian Law Reform Commission (ALRC) Report on Uniform Evidence Law:[2]
“The risk of unfair prejudice is one of the potential disadvantages mentioned. By risk of unfair prejudice is meant the danger that the fact finder may use the evidence to make a decision on an improper, perhaps emotional basis, ie on a basis logically unconnected with the issues in the case. Thus the evidence that appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decisions on something other than the established proposition of the case. Similarly, on hearing the evidence the fact-finder would be satisfied with a lower degree of probability than would otherwise be required.”
[2]ALRC 26, Volume 1, paragraph 644
14 However, the word “substantially” bears consideration. According to Odgers:[3]
“There is a heavy onus on the party seeking exclusion and that exclusion will only be justified in a clear case.”
[3]‘Uniform Evidence Law in Victoria’ – Stephen Odgers – page 709
15 It is not necessarily unfairly prejudicial to a party merely because the evidence would tend to damage the case of that party.[4]
[4]Ainsworth v Burden [2005] NSWCA 174
16 In this context, regard should be had to the capacity of the jury to accept a direction from a trial judge as to the manner in which the evidence may be used.[5] It has been the common experience of judges in personal injury jury trials that for the large part, juries accept the directions of trial judges, in particular as to the manner in which evidence may be used. Thus, when assessing the extent to which a jury could use the evidence to prejudicial effect, it must be accepted on balance that the jury will accept the judge’s firm direction, particularly if given at the time. In my view, such a direction would be accepted by the jury, thus reducing considerably any risk of the evidence being put to prejudicial effect.
[5]R v BD (1997) 94 A Crim R 131 at 139-140
17 Therefore, I am not persuaded that the probative value of the evidence is substantially outweighed by the prejudicial effect, and I will allow the plaintiff to be cross-examined on the issue.
18 However, given what I have said, it is my intention to give a clear direction to the jury before the evidence is given, so that they clearly understand the restrictions applicable to the use of the evidence and receive the evidence in that context.
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