Ly v Australian Pharmaceutical Industries Limited (Ruling)
[2022] VCC 2346
•16 June 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| General List |
Case No. CI-21-01123
| Van Tai Ly | Plaintiff |
| v | |
| Australian Pharmaceutical Industries LIMITED | Defendant |
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JUDGE: | Her Honour Judge Clayton |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 June 2022 |
DATE OF RULING: | 16 June 2022 |
CASE MAY BE CITED AS: | Ly v Australian Pharmaceutical Industries Limited (Ruling) |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2346 |
RULING
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Subject:ACCIDENT COMPENSATION – EVIDENCE
Catchwords: Whether acceptance of compensation and payment of medical treatment can be adduced as admission by defendant – probative value substantially outweighed by danger evidence might unfairly be prejudicial, misleading or confusing and cause undue waste of time
Legislation Cited: Evidence Act 2008
Cases Cited:Cairns v Trowelcoat Pty Ltd [2014] VSC 129; Mert v Lawrence (Vic) Pty Ltd [2016] VSC 348; Transport Accident Commission v Florrimell [2013] VSCA 247; Bedeux v Transport Accident Commission [2016] VSCA 127; Raeburn v Tenix Defence Systems Pty Ltd (No 7) [2006] VSC 390
Ruling:Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley with Ms C Wilshire | Zaparas Lawyers |
| For the Defendant | Ms R Annesley QC with Mr S Martin | Wisewould Mahony |
HER HONOUR:
1This is an application by the plaintiff for evidence of the following admissions to be allowed:
(a) the plaintiff submitted a Claim for Compensation to the defendant which was accepted; and
(b) the defendant paid for medical treatment relevant to the plaintiff’s right shoulder and neck, including but not limited to surgery to the plaintiff’s right shoulder and cortisone injections to both his shoulders and neck.
2The defendant denies the plaintiff has suffered the injuries claimed and denies that the employment caused of any of the plaintiff’s injuries. The defendant relies on an opinion of Mr Ash Chehata, orthopaedic surgeon, that it is “almost impossible to believe that the work is likely to have been a significant contributing factor to the development or even the aggravation of cervical spondylosis and an aggravation of the AC joint”.
3The plaintiff relies on Cairns v Trowelcoat Pty Ltd[1] and notes Rush J’s comments in that matter that the defendant cannot “cocoon its prior conduct from scrutiny” at a trial for damages.
[1] [2014] VSC 129
4Counsel for the plaintiff noted that the jury are not bound to act on the admission and that any such admission merely forms part of the evidence that the jury is entitled to take into account in reaching its verdict.
5Counsel for the plaintiff distinguished the circumstances of this case from other cases in which courts had ruled that evidence of acceptance of compensation claims was not admissible as evidence of an admission. In Mert v Lawrence (Vic) Pty Ltd[2] (“Mert”), Bell J noted that there was evidence that the employer had objected to acceptance of the claim, the claim was for a small amount, suggesting that a pragmatic decision may have been made, there was limited medical evidence forming the basis for the acceptance of the claim and there had been substantial evidence led regarding causation of the plaintiff’s injury.
[2] [2016] VSC 348
6Counsel for the plaintiff submitted that, in the present case, the defendant has paid benefits to the plaintiff exceeding $230,000, which included 130 weeks of weekly payments and an impairment benefit, had obtained the opinions of four doctors, and those doctors had opined on the cause of the plaintiff’s injuries, as well as other matters, all factors that are quite distinct from the situation in Mert.
7The authorities make it clear that the individual circumstances of the case are of paramount importance to a determination as to whether evidence of the acceptance of an insurance claim ought to be considered an admission or ought to be excluded.[3]
[3] Transport Accident Commission v Florrimell [2013] VSCA 247; Bedeux v Transport Accident Commission [2016] VSCA 127; Raeburn v Tenix Defence Systems Pty Ltd (No 7) [2006] VSC 390
8In the circumstances of this case, the dispute between the parties is not the location at which the plaintiff’s injury occurred, as it was in Cairns v Trowelcoat Pty Ltd,[4] but whether the plaintiff’s work caused his injury. The plaintiff in Cairns was not seeking an admission in relation to causation of an injury, but a fundamental issue concerning liability – whether the plaintiff suffered injury at work.
[4]Supra
9Though the defendant denies the plaintiff’s injury, the thrust of Mr Chehata’s opinion in not that the plaintiff is not suffering from a condition at all, but rather that the work could not be the cause of it. The dispute here is whether the work was the cause of the plaintiff’s injury. The admission sought, being simply that the plaintiff submitted a claim which was accepted and that he has had his medical and like benefits paid and has an ongoing entitlement to have those expenses paid, is of limited probative value.
10The jury cannot conclude, on the basis of the admission, that causation has been established, nor does counsel for the plaintiff submit they could reach such a conclusion. He submits that it is one piece of evidence for consideration.
11Counsel for the defendant submits the issue of causation is complex in this case. The opinions upon which the claim was accepted ought to be properly tested in court. I accept that submission.
12There is a danger that evidence of a decision made by a claims agent, even in these circumstances, which I accept depart significantly from those in Mert, has the potential to cause unfair prejudice to the defendant, is likely to be misleading or confusing and would cause an undue waste of time.
13Evidence would have to be called about the complexities of the workers’ compensation scheme, the circumstances in which a claim could be accepted, and the circumstances in which this claim was accepted. This would likely take considerable Court time. I am not satisfied that the evidence is of sufficient probative value to substantially outweigh these considerations and, accordingly, pursuant to s135 of the Evidence Act 2008, the evidence ought to be excluded.
14The plaintiff’s application is dismissed.
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