McNaughton v State of Victoria

[2025] VCC 208

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-23-04077

KELLY MCNAUGHTON	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2025
DATE OF RULING:	6 March 2025
CASE MAY BE CITED AS:	McNaughton v State of Victoria
MEDIUM NEUTRAL CITATION:	[2025] VCC 208

RULING
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Subject:EVIDENCE – Plaintiff Impairment Benefits Claim accepted by authorised agent of defendant for two injuries – payment for permanent impairment made - Extent of acceptance constituting an admission against employer defendant of both injuries at trial – Where defendant accepts liability for breach for one of two injuries but challenges plaintiff’s credit on occurrence of second or consequential injury - Whether evidence admissible – Lack of probative worth to jury determination on assessment of general damages – Evidence excluded in jury trial because potentially unfairly prejudicial to both parties, misleading or confusing and apt to complicate and lengthen jury trial – Jury direction insufficient to outweigh probative worth of admission

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Stanley SC Ms S Young	Mr Wolf Legal
For the Defendant	Mr S Smith KC Ms G Cooper	Wisewould Mahony

HIS HONOUR:

1This Ruling concerns an application made by the Plaintiff to allow to be put before a jury as an admission, a document consisting of an acceptance of an Impairment Benefits Claim for injuries. I refused the application. I gave limited ex tempore reasons to explain my decision immediately following argument. These reasons expand on the matters relied on by me for the ruling I gave orally.

2The first point to make is that the authority of Sepe v Club Italia Sporting Club Inc, [2023] VSC 191, which is the most recent published decision of the Supreme Court of Victoria on the question of Workcover admissions, and comprised the principal authority relied on by the plaintiff, does not constitute a rule of general application, Obviously it does not purport to rule on the admissibility in a common law jury trial of all conduct constituted by a favourable determination of some sort or another for a worker in the management and administration of a worker's injury claim.

3The second point to make is that there will be occasions where conduct on which a plaintiff seeks to rely may constitute an admission, and therefore, be admissible in a trial  whether before a jury, or in a judge alone trial, but by the same token, in some cases it should not.

4The third point to make, is it would be wrong in my judgment, to apply as a rule of general application, that a decision taken by an authorised agent, in answer  to  many potential steps available to a worker under beneficial legislation, amounts to an admission of a negligent injury in a common law damages trial. That imperfect state of affairs is not perfected because, for example, a defendant might be able to, should it choose to do so, seek to rebut or withdraw the admission by calling evidence from the agent to explain the decision, so that any perceived prejudice that arises by the admission can be rectified by an evidentiary explanation and, if leave is sought and granted, a withdrawal of the same.

5To approach the question of admissibility in such a manner, which I think I was indicating an inclination towards adopting on a reading of the transcript in which Ms Cooper made the principal arguments on behalf of the defendant, would I believe be wrong. It would be to adopt as the means of determining admissibility, a subversion of the primary question of identifying the probative worth of the conduct said to constitute an admission, in favour of some form of equitable balancing of competing interests in the conduct of a trial.

6The fourth point is this, and it springs from what I have just said, that the starting point will always be if the subject matter of the conduct said to constitute an admission is probative to a fact in issue.

7What is probative to a fact in issue in a given case, should be capable of being determined in the first instance by the pleadings, but this is not always the case, and that has proved to be so in this trial.

8The plaintiff’s proceeding for general damages for pain and suffering was commenced by Writ and Statement of Claim. The plaintiff was at the time of injury a sworn police officer and she remains in such service. The pleading alleged injury by negligence in the form of a police tort and a breach of the defendant’s duties under Part 11A of the Wrongs Act 1958 as an occupier. The plaintiff claimed that in October 2015 she tripped on a broken drain in the police station car park on her arrival at work and fell on both knees but suffered greater injury to her left leg. Some months later, and in January 2016, the plaintiff was involved in an incident whilst on duty and was required to chase towards an offender to assist a fellow officer when she suffered a tear to her left Achilles and ankle. The plaintiff alleges that the second injury is a consequential injury caused by the October 2015 injury.

9The  plaintiff’s claim was at first met with a denial of liability by the defendant together with a defence that included a claim for contributory negligence. The issues  narrowed between the parties, and ever more so, on the morning of the trial when the matter was called on. What remained was the plaintiff’s claim for general damages for the defendant’s breach of duty as an occupier, and which breach was admitted by the defendant, together with an allegation of contributory negligence. Paradoxically, the refinement of issues only served to bring forward the broader issue of the application of Sepe and its antecedent authorities.

10Prior to the plaintiff’s Originating Motion seeking leave to commence proceedings at common law, the plaintiff lodged an Impairment Benefits Claim for injuries to  “Left knee, left ankle, right ankle and right hip.”

11By letter dated 20 January 2022, the agent rejected some injuries but accepted liability for the left knee and the left ankle for the purposes of an impairment benefits assessment. It was only for the rejected injuries that reasons were given by the agent. No explanation was offered by the agent for the accepted injuries. I was told in the course of argument by Mr Stanley that the agent had an opinion from A/P Romas that offered a clear connection between the two injuries. The plaintiff received an impairment benefit of $16,304.

12The defendant told me that it intends to tell the jury that although it accepts the plaintiff suffered injury to her left knee in October 2015 as a result of a breach of its duty as an occupier under the Wrongs Act, it will also tell the jury that it should not be satisfied that the injury to the plaintiff’s left ankle in January 2016 is a consequential injury from the injury in October 2015 because there is a factual controversy if the plaintiff’s left knee gave out in the January 2016 incident as she claims, and so was a cause leading to the left ankle injury. The defendant intends to test the plaintiff’s account by challenging her credibility.

13Unless the plaintiff argued that the effect of a Sepe type admission, is that there can be no debate that the defendant should be allowed to put to the jury that the January 2016 injury is not a consequence of the October 2015 injury, and it did not, it begs the question of the probative worth of the claimed admission, even if it were capable of  being rebutted and or withdrawn by admissible evidence.

14Mr Stanley in pressing for the admission submitted that: 

”All that is being sought is a rebuttable admission that the defendant accepted permanent impairment”.[1]

[1]Transcript (“T”) 41, Line (“L”) 24-26.

15Mr Stanley further submitted that:

”It's probative that the defendant, by its agent, in considering matters which are very important, did so with acceptance that the plaintiff had suffered a left ankle injury consequential upon the 6 October 2015”.[2]

[2]T 43, L 21-25.

16Mr Smith, for the defendant, put this submission:

“But if the jury accepts that history as an accurate, there is no argument that the occurrence of the injury to the right knee in October 15 has been a cause in the development of the Achilles problem in January 16. Outside of that are the customary arguments, if I can put it that way of, it's not as bad as you say it is, and that will be elucidated in the usual fashion that Your Honour would be well familiar with”.[3]'

[3]T 47, L 3-11.

17If the acceptance of the Impairment Benefits Claim constitutes an admission that does no more than Mr Stanley put in the submission extracted above, then a jury would still be tasked with determining the factual contest of the plaintiff’s account of what happened when she took flight in January 2016. It would then need to accumulate the effects on the plaintiff of injury based on the plaintiff’s evidence and her cross-examination as well as competing medical evidence, and either include or disregard the January 2016 left ankle as a consequential injury, or possibly separate it out and disregard it from the October 2015 left knee injury and adjudge any award of damages accordingly, subject to all those usual tests that apply in an assessment of an award of damages for an injury, including its course, its development, any pre-existing vulnerability to development and unrelated conditions and the like, and putting aside for the moment, the question of any contributory negligence on the part of the plaintiff for the October 2015 injury.

18In this case, a consideration of how an argument of a favourable acceptance of liability of an Impairment Benefits Claim by an agent of the defendant is probative in determining the questions the jury will be asked to determine, strikes me as tenuous. By contrast, and by way of example, in a case in which an agent has accepted a workers’ claim and made weekly payments, or paid medical and like expenses at various intervals, a denial at trial to a claim for past losses of income for an accepted injury, or injuries during those periods, may appear to more readily justify receipt evidence of the same as an admission and require a defendant to rebut the same, or explain the same, if it is thought warranted and it was able to do so.

19In this case, in my judgment, there is no like probative worth to be had by receipt into evidence before a jury of the acceptance of the Impairment Benefits Claim, and the reasons for that conclusion are of some number.

20First, as I have said, the defendant has admitted that if the account that the plaintiff intends to give of what occurred to her knee in January 2016 and the medical opinion on which she relies is accepted by a jury, then the January 2016 incident would be capable of amounting to a consequential injury from October 2015, and for which the jury would be entitled to make a consideration of in an award of damages.

21Second, as I understand it, the defendant will ask the jury to find that the effects on the plaintiff of injury in the broad sense, that is to say, whether it is confined to the October 2015 knee injury and/or the January 2016 Achilles injury, should be moderated in the ordinary way and that is common in personal injury damages jury trials, and is grist for the mill in such cases.

22Third, I am not persuaded that an acceptance of a permanent injury for a permanent Impairment Benefits Claim by an authorised agent binds a subsequent course of action by a defendant in a damages trial. I do not accept, and in my judgment, it would be wrong in principle to hold that a defendant is stuck with the decision of an agent on the acceptance of an Impairment Benefits Claim for wrapped up injuries as an admission unless explained away and thereby preclude a defendant from challenging the cause of the injury unrelated to its medical aetiology as opposed to the credibility of a plaintiff. I am not persuaded that a finding by an authorised agent of a worker’s injury qualifying for a payment under the processes applicable for an impairment determination should forestall on a subsequent trial a defendant from contesting the fact of that injury based on the credibility or reliability of the plaintiff or by a fuller or different medical explanation that may be explicable but based on a different evidentiary basis.

23Fourth, in my judgment the facts of this case are sufficiently removed from those in Sepe. Although in her Honour's expanded reasons, she did not explain why she regarded the admission as relevant to a fact in issue, that her Honour thought it was, and permitted the admission as relevant evidence, can be plainly identified in the passage headed, 'Ruling summary' in which her Honour said at paragraph 11:

'(1) Mr Sepe's receipt of ongoing weekly payments of compensation was an admission by conduct on the part of Club Italia that was capable of being admissible evidence as it was relevant to Mr Sepe's claim for past loss of earnings.'

24Sepe, and the cases cited in it, and I pause here to note that those cases were addressed fulsomely by Mr Stanley, in helpful written submissions, in my view, have only tangential relevance in advancing the plaintiff's submission before me.

25In Sepe, the defendant in some shape or form sought, if I can put it colloquially, to go back on its word, and as such, the probative value of the admission could be more readily seen as relevant to a matter or matters of dispute. That, I cannot see, is going to be the case here because the challenge is not that the connection could not be medically made out by the plaintiff (and indeed, the defendant recognises that it could), but that after hearing the plaintiff’s evidence, the jury should not be satisfied  as  matter of fact that the plaintiff has made out that explanation by what occurred at the time of the injury in January 2016.

26If I am wrong in my finding, and that the notice of acceptance of the plaintiff's Impairment Benefits Claim is probative to a fact in issue, then I would exercise the discretion under s135 of the Evidence Act to exclude it. Section 135 of the Evidence Act states as follows:

“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) misleading or confusing; or

(c) cause or result in undue waste of time.”

27The operation of impairment benefits and of permanent injury and the means by which calculation of body parts come to be assessed by a table and by AMA guides and the percentages attributable, and calculations then of a gross sum in dollar amounts would require considerable explanation and some considerable education to the jury, and something greater that her Honour needed to do so in the careful and helpful direction provided in Sepe.

28I do not accept the proposition put by Mr Stanley that the admission could be “salamied” up, in other words, just to give the jury a benign account that an agent of the defendant had accepted that the plaintiff’s left ankle injury and earlier left knee injury were caused by the October 2015 incident without the full contents of the admission going before the jury.

29Nonetheless, if I am wrong about that, the fact of a payment of some amount having been made to the plaintiff may also and unfairly lead a jury to wonder what the amount was and how the amount was arrived at and may result in it, impermissibly, treating any payment made as some sort of ‘ready reckoner’ to assist them with or to settle upon an amount of value of general damages for the plaintiff’s injuries, and which approach would be wrong.

30If the payment made is not referred to, but only the fact of an acceptance of the knee and the later ankle injury is before a jury, then it puts the defendant at a comparative disadvantage and it would fall to the defendant to adduce evidence to explain the limited and different purposes of an Impairment Benefits Claim payment for a permanent disability.

31Hence, in my judgment, the admission of the impairment benefits acceptance may be unfairly prejudicial, not merely to the defendant but potentially to the plaintiff, something that was recognised years ago by the High Court in Rowe v Edwards [1934] 51 CLR 351. That decision by the High Court back in 1934 is, I would suggest, reflective of, and is consistent with, s135 of the Evidence Act in directing a Court's consideration to prejudice to 'a party.' I emphasise 'a party' which obviously can be either or both a plaintiff and a defendant.

32There is also a risk of an unwarranted addition to the time taken in the conduct of a jury trial in instructing and warning the jury of the permissible and impermissible use that may be made of the admission. I do not think the discretion shifts back in favour of the admission of the decision made by the agent because, as I have been told, the agent who made the decision has been located and appears to be cooperative and likely could be available to give evidence. Indeed, to open that up should the defendant seek to do so, would itself also add to the complexity and the time needed for this trial.

33Fundamentally, the ruling I have arrived at is that I am not satisfied that the fact of the acceptance of the Impairment Benefits Claim is probative to a fact in issue. If I am wrong in relation to the same, then in the exercise of my discretion, I would not admit the admission of the Impairment Benefits Claim form. Despite the fact that a jury could receive direction in relation to it, the dangers remain in a common law jury trial, that it will needlessly distract a jury from their consideration of the entirety of evidence, as opposed to a decision made by an agent of the defendant under a statutory regulated scheme that does not operate and is not intended to operate either in tandem with or in usurpation of a common law trial on full evidence.

34For those reasons, I refuse the application made on behalf of the plaintiff for the admission of the Impairment Benefits Claim.