Mert v Lawrence (Vic) Pty Ltd
[2016] VSC 348
•21 June 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURY LIST
S CI 2015 1754
| EREN MERT | Plaintiff |
| v | |
| LAWRENCE (VIC) PTY LTD | Defendant |
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JUDGE: | BELL J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 June 2016 |
DATE OF RULING: | 21 June 2016 |
CASE MAY BE CITED AS: | Mert v Lawrence (Vic) Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2016] VSC 348 |
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EVIDENCE – plaintiff employee allegedly sustained injury in incident at work – defendant employer accepted by statutory agent plaintiff’s claim for impairment benefits under accident compensation legislation – whether constitutes an admission by defendant for all purposes that incident happened and injury sustained – whether admission can be used against defendant in separate proceeding being tried by jury for damages at common law in respect of same alleged incident and injury – evidentiary status of such admission – whether of significant or low probative value – relevance of contextual considerations in so determining – whether evidence of admission should be excluded because unfairly prejudicial to defendant, misleading or confusing or cause delay or result in an undue waste of time – Accident Compensation Act 1985 ( Vic) s 98C, Evidence Act 2005 (Vic) s 135 (a), (b) and (c).
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | John Richards QC and John Valiotis | Zaparas Lawyers |
| For the defendant | Roisin Annesley QC and Michael Clarke | Wisewould Mahony |
HIS HONOUR:
This is a trial before a jury of six of the plaintiff’s civil proceeding for damages based upon negligence and breach of statutory duty in respect of a back injury allegedly suffered in the course of employment with the defendant. The plaintiff was the only eye witness called in relation to the alleged incident. The defendant contends that the plaintiff was not injured at work, that any injury was not due to its negligence or breach of duty and that any injury sustained was much less serious than alleged.
Just prior to the close of the plaintiff’s case, she sought the following admission from the defendant:
The defendant admits that on 19 September 2012 it accepted liability under the Accident Compensation Act for the plaintiff’s lower back injury and psychological condition …
When the defendant refused to make the admission, the issue was brought to me for a ruling. I determined the issue upon the basis that the plaintiff would, if permitted, lead evidence of the facts specified in the proposed admission. These are my reasons for ruling against the admission of the evidence.
The fact that the defendant admitted on 19 September 2012 that it accepted liability under the Accident Compensation Act 1985 (Vic) for the plaintiff’s lower back injury and psychological condition is derived from a letter of that date sent by CGU Workers Compensation (Vic) Ltd to the plaintiff in relation to her claim for impairment benefits against the defendant (see s 98C). The letter advised that liability was accepted for the lower back and psychological injuries which the plaintiff claimed had arisen in the course of her employment with the defendant.
According to the letter, the acceptance of liability by CGU was based upon the independent impairment assessment of two doctors, neither of whom has given or is expected to give evidence in the proceeding in this court. The spine impairment was assessed as 5 per cent (giving rise to an entitlement of $11,275) and the psychiatric impairment was assessed as zero per cent (giving rise to a nil entitlement). The total calculation of impairment benefit was $11,275.
The plaintiff made the claim for impairment benefits in the designated form on 15 April 2010. The employer’s comment on that form was:
EREN MERT IS A LIAR SHE DID NOT HURT HER BACK AT WORK NOR DID SHE REPORT ANY INJURY.
That comment was endorsed by Rhonda Lawrence, a director of the defendant company, who has given evidence in the proceeding in this court consistently with that comment.
Relying on Cairns v Trowelcoat Pty Ltd,[1] it was contended for the plaintiff that acceptance by CGU of the defendant’s liability for impairment benefits under the Accident Compensation Act was ‘some evidence, by way of admission, that the worker had met with an incident arising out of or in the course of employment’.[2] While I would follow Cairns as a decision of a trial judge of this court on point unless I were persuaded that it was clearly wrong,[3] there is also a decision of a judge of the court that is to the contrary of Cairns. In Raeburn v Tenix Defence Systems Pty Ltd[4] it was held that acceptance by the Victorian Workcover Authority of the plaintiff’s entitlement to weekly payments of compensation under the Accident Compensation Act in a claim against an employer was not a relevant admission of liability in a separate common law proceeding against that employer for damages in respect of the same injury.[5]
[1][2014] VSC 129 (28 March 2014) (Rush J) (‘Cairns’).
[2]Ibid [20], citing Gardiner v Ross [2006] NSWCA 157 (22 June 2006) [132] (Basten JA, Hodgson and Bryson JJA agreeing).
[3]Engerbretson v Bartlett (2007) 16 VR 417, 429 [63] (Bell J).
[4][2006] VSC 390 (20 October 2006) (Cummins J).
[5]Ibid [8].
There are apparently no judgments of the Court of Appeal on point, although a number have considered the question in comparable contexts. For example, in Ansett Australia Ltd v Taylor[6] it was held that, in a serious injury application under s 134AB(16)(b) of the Accident Compensation Act, acceptance by the Victorian Workcover Authority on behalf of the employer of the plaintiff’s claim for compensation for impairment under s 98C was ‘very significant’ evidence of an admission that the relevant injury had been sustained.[7] Ansett was followed in a similar context in Fokas v Staff Australia Pty Ltd.[8] It was distinguished in another context in Transport Accident Commission v Florrimell,[9] where the court drew attention to the difference between a statutory transport accident proceeding and a separate common law proceeding in relation to the accident. The very recent judgment of Bedeux v Transport Accident Commission[10] explained Florrimell as having ‘qualified the view expressed by Ashley JA [in Ansett], concerning the weight to be accorded to the acceptance, by an authority, of a claim for statutory benefits, in a subsequent common law proceeding’.[11] In the circumstances of the case before it, the court regarded the evidentiary value of acceptance of the claim as being very limited.[12]
[6][2006] VSCA 171 (31 August 2006) (‘Ansett’).
[7]Ibid [40] (Ashley JA, Maxwell P and Bongiorno AJA agreeing).
[8][2013] VSCA 230 (12 September 2013) [32] (Dixon AJA, Nettle JA and Hargrave AJA agreeing) (‘Fokas’).
[9][2013] VSCA 247 (13 September 2013) [45] (Tate JA, Hansen JA agreeing) (‘Florrimell’).
[10][2016] VSCA 127 (6 June 2016) (‘Bedeux’).
[11]Ibid [71] (Kaye JA, Ferguson and McLeish JJA agreeing).
[12]Ibid [73].
For reasons that include those advanced in submissions on behalf of the defendant, 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.
However, I think it is clear from the judgments of the Court of Appeal in Ansett, as subsequently explained, and Fokas, Florrimell and Bedeux that the relevance in a separate common law proceeding of an employer’s ‘acceptance’, by statutory agency, of a claim for statutory benefits by an employee must depend upon careful assessment of the particular facts and circumstances rather than upon any general rule of law or fact. Applying this contextual approach to the present case, I would hold that the acceptance of the plaintiff’s claim for impairment benefits under the Accident Compensation Act by CGU has very little probative value as an admission on behalf of the defendant in the present common law proceeding.
I base that conclusion upon a number of considerations, including the different character of the present proceeding which claims damages for negligence and breach of statutory duty when compared with a proceeding which claims impairment benefits under the Accident Compensation Act, the limited consideration given to the issue of liability in the proceeding under the Accident Compensation Act (the acceptance was based simply upon the opinion of the two doctors mentioned above), acceptance of the claim for impairment benefits ultimately represented an amount of only $11,275 (which suggests that the acceptance may have been based upon pragmatic considerations), acceptance of the claim was strongly opposed by the defendant (see the abovementioned endorsement on the claim form) and, finally, the thorough examination of the alleged injury in the substantial evidence that has been led on the subject before the jury in the present proceeding. In my view, these contextual considerations swamp the status of the (supposed) admission such that it has very little probative value in the present proceeding.
Against the very little probative value of the ‘admission’ must be weighed the dangers identified in s 135(a), (b) and (c) of the Evidence Act 2008 (Vic), namely that the evidence might be unfairly prejudicial to the defendant, misleading or confusing or cause or result in an undue waste of time. In determining that those dangers do substantially outweigh the very limited probative value of the evidence, I take into account the fact that admitting the evidence would, in fairness to the defendant, necessarily involve opening up (at this late stage in the trial), as new issues, the circumstances in which the ‘admission’ was made, the opposition of the defendant to the acceptance of the plaintiff’s claim for impairment benefits, the role of CGU in the workers’ compensation system (which itself would also need to be explained) and the (limited) medical evidence upon which the acceptance was based, among other issues. This course, unavoidable if evidence of the admission were to be admitted, would raise serious issues under each of paras (a), (b) and (c) of s 135: the extent of the contextual evidence would be such as to risk drawing unwarranted attention to the ‘admission’ despite a stern judicial direction to the contrary (para (a)), to mislead or confuse the jury about the actual probative value of the evidence despite the court’s best explanatory efforts to set the context properly (para (b)) and, in the end, to cause or result in a clearly disproportionate and undue amount of court time being devoted to an issue that did not warrant such attention despite every attempt at efficiency by the court and the parties (para (c)).
For those reasons, under s 135(a), (b) and (c) of the Evidence Act, I refused to admit the evidence.
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