Milanovic v Ventura Transit Pty Ltd (Ruling No2)

[2022] VCC 910

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-20-04604

Zlatko Milanovic	Plaintiff
v
Ventura Transit Pty Ltd	Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	15 and 16 June 2022
DATE OF RULING:	20 June 2022
CASE MAY BE CITED AS:	Milanovic v Ventura Transit Pty Ltd (Ruling No2)
MEDIUM NEUTRAL CITATION:	[2022] VCC 910

RULING No.2

Subject:EVIDENCE

Catchwords:   Admissibility of evidence – Section 135 – Prejudice

Legislation Cited:                Evidence Act 2008

Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; Baulch v Lyndoch Warrnabool [2010] VSCA 30; Mert v Lawrence (Vic) Pty Ltd [2016] VSC 348;

Judgment:  Evidence inadmissible

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with Mr R Paoletti	Zaparas Lawyers
For the Defendant	Mr R Middleton QC with Ms F Spencer	Thomson Geer

HIS HONOUR:

1On Wednesday 15 June 2022 and prior to the discharge of the first jury in this proceeding,[1] Mr Tobin at Transcript 72 lines 30 to Transcript 73 Line 4 identified that he intended “to open in this case the fact that the plaintiff has been in receipt of WorkCover and is still being paid WorkCover payments as to total incapacity, in light of the defendant’s defence in this matter denying the extent of the injury the plaintiff has suffered an incapacity flowing from it.”  Mr Middleton opposed such matters being opened or the subject of evidence before a jury.

[1]        The discharge of the jury was for a reason wholly unrelated to the conduct of the trial.

2I ruled that Mr Tobin would not be permitted to open on that matter[2]. I ruled that the potential prejudice associated with leaving in the minds of the jury that the acceptance of liability by the insurer for the defendant arising under a statutory compensation framework is as an admission of liability when there is a denial of liability in a subsequent common law action on the part of the employer outweighed its probative worth. Discussion canvassed a number of authorities that have followed on since Ansett Australia Ltd v Taylor.[3]

[2]        See: Transcript (‘T’) 73 Lines (‘L’) 30 – T74, L7.

[3] [2006] VSCA 171.

3On Thursday 16 June and after the discharge of the first jury and discussion concerning the empanelment of a fresh jury, Mr Tobin enlivened matters regarding Workcover. Mr Tobin said he was not seeking to disturb the ruling I made on 15 June that prohibited him leading evidence of Workcover payments made to the plaintiff as an admission of liability by the defendant. However, he said that he intended to open before the jury and adduce evidence from the plaintiff of other matters that would necessarily involve the jury being told of the plaintiff’s Workcover proceedings and provision of services although he was not intending to adduce this evidence as an admission. He said he needed to raise the existence of Workcover for the following reasons. First, to explain that the plaintiff’s proceeding is brought in law pursuant to statute. Second, he needed to do so in order to explain to the jury a limitation on damages the plaintiff may recover. Third, because the plaintiff had received domestic and gardening services paid for by Workcover and it was relevant to ensure the jury was made aware of this to preclude any risk of double dipping. Fourth, as a result of a conversation with an employee of Workcover the plaintiff had a serious psychological reaction which required some form of medical intervention and it was necessary for that transaction to be the subject of evidence. Fifth, many medical reports refer or are replete with references to Workcover and, sixth a report from a vocational assessment company addressed suitable employment, implicitly invoking a statutory concept about which the jury needed to be made aware.

4Despite Mr Tobin having said that these matters were being raised both as a courtesy to the Court but not to circumvent the ruling I made on 15 June, I am satisfied that the effect, if not the intention, of the leading of such evidence or making references to the same in senior counsel’s opening would contravene the intendment of my ruling on 15 June.

5I direct that senior counsel for the plaintiff is prohibited from opening on each of the matters he referred to or from leading evidence from the plaintiff that identifies matters by way of receipt of payment or acceptance of claims or making of claims by the plaintiff under the statutory compensation scheme.

6I reject Mr Tobin’s submissions as a valid basis for permitting such evidence to be opened on or led, that references to such matters are required in order to inform the jury of the plaintiff’s injuries or circumstances fairly or properly.

7I am satisfied that there is no need for a properly instructed jury charged with determining the issues joined between the parties to be told of the mechanisms associated with the commencement of common law proceedings pursuant to statutory prescription and certainly not what may be recovered as damages.  I am not satisfied that the apparent provision of domestic and gardening services provided through the statutory scheme is a matter necessary to identify to the jury in order to ensure that the jury when properly charged avoids the risk of “double dipping”. Of the plaintiff’s apparent acute response to a conversation with one or other persons, one of whom it is said was employed by the statutory insurer, the account that the plaintiff having suffered an acute response because of a mental vulnerability does not require the identity of the person or the fact of insurance to be disclosed.  As regards the medical reports, the options are that the written reports are either to be redacted or, and I think this is more preferable, each of the medical witnesses who have provided a report should give evidence of their examination and opinions orally with such witness not being led or taken to, and being told not in advance and in the absence of the jury, to not reveal to the jury any parts of such reports that relates to the statutory benefits or compensation scheme or payments. The matter of suitable employment is a statutory concept and not a matter that will ultimately inform what I suspect either counsel in all likelihood will address the jury on in regards to the plaintiff’s past and future employment capacity and, sensibly in any event, it is perfectly and readily capable by way of my charge to the jury to explain to them such matters of law that might guide them in the application of facts to determine the extent of any of the  plaintiff’s past and future capacity for employment.

8I give this expanded ruling in order to ensure that there is no misunderstanding on the part of senior counsel for the plaintiff. On reflection of the matters raised prior to the adjournment yesterday, the “window”[4] I referred to and left slightly ajar to Mr Tobin by requiring that any questions that might touch on such matters be précised before me in the absence of the jury so I could rule on them, is potentially unwieldy, gives rise to uncertainty as to form and may inadvertently contravene the spirit of the ruling that I made on 15 June. Consequently this expanded ruling is intended to explicitly identify the matters which Mr Tobin foreshadowed he would seek to open on and lead evidence about and which for the reasons expressed I rule that he is prohibited from doing.

[4]        See; T94, L 31 – T95, L20

9I should add that I have been significantly assisted by the reasons for decision and judgment of Bell J in Mert v Lawrence (Vic) Pty Ltd[5] (‘Mert’). His Honour at paragraphs 9 to 11 had this to say that is relevant:

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)).

[5] [2016] VSC 348.

10Despite some factual difference in Mert than presents in this case, and obviously because the jury has yet to be empanelled, the issue has not arisen at a late stage, I do not regard that fact or other differences sufficiently divert from the basis of my reasoning in applying the same result here as Bell J did in Mert.

11If anything further is required by way of judicial elaboration I refer to the very strong warning contained in the reasons of the Court of Appeal comprising Neave, and Bongiorno JJA and Byrne AJA. in Baulch v Lyndoch Warrnabool[6]. There one of the grounds of appeal was to assert a miscarriage of justice occasioned by defence counsel having told the jury in the course of final address that “anyone injured at work in any circumstances is entitled to receive payment for their loss of income”. After addressing the different shades of possible meaning a jury might be led to consider in their deliberations as a result of the statement. the Court of Appeal summarised the matter in these terms at paragraph 64:

The juxtaposition by defence counsel of a comment on the weakness of the appellant’s case with comments about her workers’ compensation entitlements can only have been calculated to distract the jury from a proper consideration of the legitimate issue before them, namely, whether the appellant had established negligence by the respondent as a cause of injuries which she received.  The argument put by counsel was that she should not get damages because she had received and would continue to receive workers’ compensation; that the jury could safely find for the respondent, secure in the knowledge that the appellant had been and would be compensated in any event.

[6] [2010] VSCA 30. After expressing my reasons for this ruling orally, Mr Tobin referred me to the decision of the Court of Appeal in Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66. Nothing in it has the effect of altering the conclusion I have arrived at in the exercise of my discretion,

12In the exercise of my discretion in applying the relevant provisions of the Evidence Act and in light of the fact that Mr Tobin did not seek to reagitate the statutory scheme and the management of the plaintiff’s claim as an admission by the defendant, any purpose of the adducing of such evidence is outweighed by the prejudices contemplated by s 135(a), (b) and (c) of the Evidence Act.

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