Mifsud v Westar Prestige Paint & Panel Pty Ltd (Ruling)

[2024] VCC 431

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-22-02906

MIFSUD, Jason	Plaintiff
v
WESTAR PRESTIGE PAINT & PANEL PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	9 April 2024
DATE OF RULING:	9 April 2024
CASE MAY BE CITED AS:	Mifsud v Westar Prestige Paint & Panel Pty Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2024] VCC 431

RULING
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Subject:EVIDENCE – ACCIDENT COMPENSATION

Catchwords:              Evidence – plaintiff claims damages for work-related injury – plaintiff in receipt of weekly payments under WorkCover legislation at time of trial – weekly payments ceased after 130 week but subsequently resumed – whether resumption of compensation payments on voluntary basis constitutes an admission by conduct – whether evidence of compensation payments relevant evidence – probative value of evidence given cessation and resumption of weekly payments – whether evidence ought to be excluded because unfairly prejudicial, misleading or confusing – whether jury can be appropriately directed

Legislation Cited:      Evidence Act 2008, s135; Workplace Injury Rehabilitation and Compensation Act 2013, s3, s160, s163

Cases Cited:Cairns v TrowelcoatPty Ltd [2014] VSC 129

Mert v Lawrence (Vic) Pty Ltd [2016] VSC 348

Sepe v Club Italia Sporting Club Inc & Anor (Ruling) [2023] VSC 191

Ruling:  Evidence is admissible as a rebuttable admission by conduct.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	T Tobin SC with S Bailey	Patrick Robinson & Co Solicitors
For the Defendant	J Rush KC with L Burke	IDP Lawyers

HER HONOUR:

1Mr Mifsud claims damages at common law for injuries he says arose from his negligent exposure to high concentrations of hazardous chemical substances during the course of his employment as a spray painter with the defendant, Westar Prestige Paint & Panel Pty Ltd (“Westar”).

2Counsel for Mr Mifsud indicated he proposed to open his case to the jury on the basis that his client would give evidence that he received weekly payments of compensation from the insurer for Westar, and that such evidence constituted a rebuttable admission relevant to Mr Mifsud’s claim for loss of earning capacity.

3Counsel for Westar opposed an opening on those terms and objected to the admissibility of evidence about the weekly payments on the basis that the payment of weekly payments in this case did not constitute an admission that the plaintiff had an incapacity for work, and was otherwise irrelevant.

4So as not to delay the trial, I ruled that the evidence was admissible evidence of a rebuttable admission by conduct that the defendant, by paying the plaintiff weekly payments, has accepted that the plaintiff has no current work capacity and is likely to continue indefinitely to have no current work capacity.  I indicated to the parties that I would provide short written reasons for my ruling in due course, and that the parties were to provide written submissions as to the appropriate jury direction in relation to how that evidence could be used.

5The trial commenced and subsequently settled on day three. The jury was discharged without verdict and orders were made dismissing the proceeding.

6These are the short reasons for my ruling.

Background facts

7The following facts are not in dispute.

8Mr Mifsud started as an apprentice with the defendant in 1991.  In October 2015 he went off work suffering various symptoms that were subsequently diagnosed as resulting from a chemical sensitivity syndrome.

9In July 2016, after receiving this diagnosis and becoming aware that his exposure to paints, solvents and thinners may be the cause of his syndrome, Mr Mifsud lodged a WorkCover claim for compensation for weekly payments and medical and like expenses.

10The defendant did not dispute that Mr Mifsud had sustained an injury and that his employment was a substantial contributing factor to that injury.  The defendant disputed liability for that injury and disputed Mr Mifsud’s current and ongoing incapacity for employment.

11On 25 August 2017, Mr Mifsud’s WorkCover claim was accepted by the insurer for Westar, and Mr Mifsud received weekly payments pursuant to s160 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRCA”).

12In approximately late 2018, Mr Mifsud received what is colloquially known as a “130 week notice” informing him that recent medical opinion indicated that he did not have, adopting the language of the legislation, “no current work capacity”, and accordingly his weekly payments would cease.

13Mr Mifsud did not appeal that decision.  Instead he pursued a claim for compensation at common law, by making application for a serious injury certificate.

14As part of the process of obtaining a serious injury certificate, Mr Mifsud was referred to the Medical Panel on 5 June 2020.

15On 15 April 2021, the Medical Panel determined that:

(a)   Mr Mifsud was suffering from multiple chemical sensitivity and a dysthymic disorder;

(b)   both conditions result from and were materially contributed to by the employment;

(c)   the chemical sensitivity materially contributed to an incapacity for pre-injury employment and that, as a result of the chemical sensitivity he had no current work capacity within the meaning of the WIRCA;

(d)   the dysthymic disorder did not materially contribute to an incapacity for employment, or prevent Mr Mifsud from undertaking pre-injury duties on a full-time basis.

16Mr Mifsud’s solicitors provided the medical panel’s determination to the insurer for Westar and the weekly payments were reinstated, though not backdated.

17Pursuant to s163 of the WIRCA, a worker is only entitled to payment of weekly payments beyond 130 weeks if the worker is assessed by the Authority or the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity.

18Current work capacity in relation to a worker means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.[1]

[1]Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRCA’), s3

19At the time Mr Mifsud’s weekly payments were reinstated, he had already received such payments for 130 weeks.

Plaintiff submissions

20The plaintiff says that, consistent with various authorities, including Sepe v Club Italia Sporting Club Inc & Anor (Ruling) (“Sepe”),[2] he is entitled to put on evidence about his weekly payments of compensation and use that as evidence of an admission by conduct that the defendant has accepted that he is incapacitated for work and will likely continue indefinitely to remain incapacitated for work.

[2][2023] VSC 191

21The plaintiff says the fact that the insurer voluntarily recommenced the weekly payments after receiving the medical panel determination supports his argument that the defendant’s conduct amounts to an admission.

22Although those payments had been interrupted after 130 weeks, the important information for the jury was that, as at the date of trial, the defendant had been paying Mr Mifsud weekly payments of compensation in circumstances where Mr Mifsud was only entitled to those payments if he had no current work capacity and that situation was likely to continue indefinitely.

23The plaintiff says the evidence is relevant as the defendant disputes his incapacity for work and intends to put on evidence as to his current work capacity.

Defendant submissions

24The defendant says there is no automatic entitlement for a plaintiff to put on evidence about past payments by an insurer.  Each case must be examined and determined on its own facts.

25The plaintiff ought not be able to put on evidence about the receipt of weekly payments as evidence of an admission by conduct of the defendant because to do so would not accurately reflect what actually happened.

26The defendant had concluded, by the end of 2018, and on the basis of medical material, that the plaintiff had a work capacity, or that his incapacity did not arise from the employment, and had terminated the payments.

27If evidence of weekly payments were allowed to go before the jury, as evidence of an admission, fairness would require that evidence about the defendant’s termination of those payments would also need to go to the jury.  This would unnecessarily complicate and lengthen the trial in circumstances where the probative value of the evidence was not high. 

28The fact that, in light of the medical panel decision, the insurer resumed payments, does not give rise to an admission by conduct that the employer accepted Mr Mifsud’s incapacity, and certainly not into the future.  Rather it reflects a pragmatic decision by an insurer.

29Admitting the evidence would tend to mislead or confuse the jury who would have to understand the intricacies of weekly payments, the circumstances in which they ceased and then recommenced and the interaction of weekly payments on a no fault basis with the claim before them.

30Most significantly, the evidence would be unfairly prejudicial to the defendant, as there is a real danger that the jury would not understand an admission on the basis the plaintiff seeks to propound, is not the same as an admission of liability by the defendant. 

31Liability in this case is hotly disputed.

Analysis

32I accept that there is no automatic entitlement to adduce evidence of this kind, and that each case will require a careful assessment of the facts and circumstances.[3]

[3]Mert v Lawrence (Vic) Pty Ltd [2016] VSC 348 at paragraph [9]

33The circumstances of this case differ from those in Sepe, and Cairns v TrowelcoatPty Ltd where ongoing payments had been made from the date the WorkCover claim was accepted to the date of trial.[4]  The cessation of payments between late 2018 and 2021 in this case does mean that there is evidence that the employer did not accept that Mr Mifsud had no current work capacity.

[4][2014] VSC 129

34However I am persuaded that the voluntary resumption of weekly payments by the insurer after the medical panel determination is capable of constituting evidence that, at least by late 2021, the employer had accepted that Mr Mifsud had no work capacity. 

35I am satisfied that the evidence is relevant to an issue in dispute, that is, Mr Mifsud’s current and ongoing capacity for employment.  The defendant denies that Mr Mifsud has no capacity for employment and proposes to call expert witnesses as to his work capacity.

36The fact that the evidence is capable of constituting an admission by conduct that Mr Mifsud has no current work capacity is capable of rebuttal by other evidence. It is open to the defendant to put on evidence as to how and why the weekly payments came to be made.  This could include any evidence about Mr Mifsud’s work capacity during the period in which the weekly payments ceased.

37While the decision to resume payments was undoubtedly a pragmatic decision, that pragmatism likely also derived from an assessment by the insurer of the prospect that an appeal by the plaintiff on the cessation of his weekly payments would have a good prospect of success, in light of the medical panel determination in the serious injury application.

38Further, while I accept that there is the potential that additional time and resources could potentially be expended if the defendant was to, for example, call the claims agent for the insurer or other witnesses to rebut the purported admission, I am not persuaded that such evidence would be an undue waste of time so as to warrant the exclusion of that evidence under s135 of the Evidence Act 2008.

39I am not satisfied that the admission would be misleading or confusing to a jury.  As in Sepe, an appropriate direction can be given to the jury and the parties were invited to make submissions as to any such direction.  I accept Counsel for the plaintiff’s submission that members of the public are now well aware of the existence of WorkCover and that “no fault” benefits might be paid.

40I am satisfied that the jury could be directed to disregard any payments pursuant to the WorkCover legislation when considering questions about liability, and that such a direction would be capable of being understood and followed by a jury.

41I am not persuaded that a properly directed jury would confuse an admission (if they found that the evidence constituted an admission) that the plaintiff was incapacitated for work, with an admission that the defendant was liable in negligence or for breach of statutory duty.

42Accordingly, I am not satisfied that the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendant.

43Therefore, the evidence is admissible as a rebuttable admission by conduct.