Munro v Peninsula Health (No 2)
[2023] VCC 1574
•6 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-03895
| SCOTT MUNRO | Plaintiff |
| v | |
| PENINSULA HEALTH | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28, 29, 30, 31 August, 1 and 4 September 2023 | |
DATE OF RULING: | 6 October 2023 | |
CASE MAY BE CITED AS: | Munro v Peninsula Health (No 2) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1574 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Civil jury trial – evidence – plaintiff sustained injury in the course of his employment – plaintiff’s claim for weekly payments of compensation and medical and like expenses including cervical spine surgery was accepted – plaintiff continues to receive weekly payments for no current work capacity beyond 130 weeks under the Workplace Injury Rehabilitation and Compensation Act 2013 – whether the fact of payment of compensation and medical and like expenses can be led – whether such evidence should be excluded because it is unfairly prejudicial to the defendant, misleading or confusing, or results in an undue waste of time ꟷ admissions – relevance – general discretion to exclude
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; Evidence Act 2008; ss55-56, s135; Civil Procedure Act 2010
Cases Cited:Aubrecht v Monash Health [2023] VCC 1319; Mert v Lawrence (Vic) Pty Ltd [2016] VSC 348; Vincent v Victorian WorkCover Authority [2023] VCC 1667; Sepe v Club Italia Sporting Club Inc (Ruling) [2023] VSC 191; Watts v Rake [1960] HCA 58; Purkess v Crittenden [1965] HCA 34; Ansett Australia Ltd v Taylor [2006] VSCA 171; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66; Fisher v Maltrans Pty Ltd and Anor (Ruling) [2022] VCC 2246; Express Newspapers PLC v News (UK) Ltd (1990) W.L.R 1320; Commonwealth v Verwayen (1990) 170 CLR 394; Macob Civil Engineering Ltd v Morrison Construction Ltd [1999] 3 EGLR 7
Ruling: Evidence of the acceptance of the plaintiff’s claim pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013, the payment of weekly payments of compensation to and beyond 130 weeks, and the payment of reasonable medical and like expenses, including the C6-7 anterior cervical discectomy and fusion, can be adduced.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram KC with Mr P Haddad | Redlich’s Work Injury Lawyers |
| For the Defendant | Mr S Smith KC with Ms C Willshire | Wisewould Mahony |
HIS HONOUR:
Introduction
1The plaintiff, Mr Scott Munro, was employed by the defendant, Peninsula Health, as a patient service assistant (“PSA”). He commenced work with Peninsula Health on 28 February 2011.
2On 3 June 2016, in the course of his employment, Mr Munro injured his neck. In particular, he prolapsed the C6-7 disc. Mr Munro said he was required to assist the manoeuvring of two heavy bariatric patients. One weighed 136 kilograms, the other 105-106 kilograms. He said it was while he was manoeuvring these patients that he suffered injury (“the incident”).
3Mr Munro issued proceedings on 10 September 2021 seeking damages arising out of the incident.
4Peninsula Health, in their defence dated 14 October 2021:
(a) denied they were negligent;
(b) denied they breached any statutory duty owed to Mr Munro;
(c) did not admit Mr Munro had suffered injury;
(d) alleged Mr Munro had been contributorily negligent.
5On 25 August 2023, the Friday before this matter was listed for trial on Monday 28 August 2023, Peninsula Health amended their defence. They admitted:
(a) they were negligent;
(b) they had breached their statutory duties owed to Mr Munro;
(c) that Mr Munro had suffered, by reason of these breaches, a C6-7 disc prolapse.
6Peninsula Health also withdrew their allegation of contributory negligence against Mr Munro.
7As a preliminary issue prior to the opening of his case to the jury, Mr Munro’s counsel, Mr Ingram, advised that it was his intention to seek an admission from Peninsula Health, or, in the alternative, adduce evidence to the effect that:
(a) Mr Munro lodged a WorkCover claim in respect of the C6-7 disc prolapse, which was accepted, pursuant to the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”);
(b) in furtherance of the accepted WorkCover claim, Peninsula Health, or its authorised insurer, had paid and continued to pay, Mr Munro compensation, including but not limited to:
(i)reasonable medical and like expenses, including surgery in the form of an anterior cervical discectomy and C6-7 fusion (right-sided approach), partial corpectomy and rhizolysis C7 (“ACDF”), which was performed by Mr Ales Aliashkevich, neurosurgeon, and which was approved and paid for as a compensable medical expense pursuant to the provisions of the Act;
(ii)weekly payments of compensation which Mr Munro continues to be in receipt of post-130 weeks for no current work capacity.
8Peninsula Health opposed the application. They said:
(a) such evidence was not relevant; or
(b) the Court should refuse to allow such evidence pursuant to s135 of the Evidence Act 2008 (“the Evidence Act”). Peninsula Health said such evidence would:
(i)be unfairly prejudicial to Peninsula Health; or
(ii)be misleading or confusing; or
(iii)cause, or result, in undue waste of time.
9Peninsula Health also said that the current preponderance of authorities supported the exclusion of any such admission or evidence.
10The matter was listed for argument before the Court on 30 August 2023. Prior to court that morning, the parties provided written submissions. The application then proceeded by way of oral submissions.
11At the conclusion of those submissions, I indicated to the parties:
(a) so as not to delay the trial, I would provide a ruling at 2.15 pm;
(b) I would publish my reasons at a later date.
12These are my reasons.
Background to the admission
13In order to provide context, it is appropriate to summarise the relevant background facts and circumstances to the admission.
14On 7 September 2016, Mr Munro lodged a WorkCover claim form with Peninsula Health. Mr Munro, in that application, said that he suffered a prolapsed disc in his neck at the C6-7 level. He said this occurred while moving bariatric patients in the Intensive Care Unit (“ICU”) at the Frankston Hospital.
15Mr Munro was certified off work.
16Mr Munro’s WorkCover claim was accepted.
17On 5 October 2016, Peninsula Health undertook an internal “incident causation review”.[1] Peninsula Health accepted Mr Munro’s injury occurred while he was performing the bariatric turn in ICU.
[1]See the documents Plaintiff’s Court Book (“PCB”) 312-316.
18Pursuant to the operation of the Act, Mr Munro is entitled to weekly payments of compensation beyond 130 weeks if the Victorian WorkCover Authority (“VWA”) assesses him as having no current work capacity and this is likely to continue indefinitely.[2] The VWA is able to terminate those weekly payments of compensation if it is satisfied that Mr Munro:
(a) has a capacity to return to work either in his pre-injury employment or in suitable employment;
(b) Mr Munro’s incapacity is not likely to continue indefinitely.[3]
[2]Section 163(1) of the Act
[3]Section 186(5) and s161 of the Act
19Mr Munro sought to be permitted to give evidence that his weekly payments of compensation had not been terminated, and that he continued to receive them beyond 130 weeks.
20Mr Munro sought to rely upon the fact of these past and ongoing payments of weekly compensation as an admission by conduct against Peninsula Health. That is, Peninsula Health had accepted that he had been totally incapacitated for work from 29 June 2019 (when Mr Munro ceased work for the final time) through to the present time.
21Further, Mr Munro sought to rely upon the payment of the costs associated with C6-7 surgery and ongoing medical expenses as an admission by conduct of his need for such treatment arising out the incident.
22Mr Munro made specific reference, in his written submission, to the terms of Peninsula Health’s Amended Defence filed 25 August 2023. That is, Peninsula Health “admits the plaintiff sustained injuries as described in paragraph 7, but denies the nature and/or extent of the claimed injuries”.[4]
[4]Amended Defence, dated 25 August 2023, paragraph [7] at page 2
Peninsula Health’s objection
23Peninsula Health said the admissions sought should not be allowed. They relied upon numerous grounds. Peninsula Health said:
(a) They had already admitted in their amended defence that Mr Munro had sustained injury on 3 September 2016 during the course of his employment for which they were liable. As such, causation is not in issue. The only issue is the assessment of damages.
(b) That such admission was not relevant evidence. In particular, Peninsula Health said:
(i)The acceptance of the claim of payment of medical and like expenses is not relevant to any fact in issue between the parties, as liability for the injury has been admitted. As such, it is inadmissible.
(ii)That the test for the entitlement to weekly payments of compensation pursuant to the Act involves different issues to any common law entitlement for economic loss.
(iii)The payment of weekly payments under the “no fault” system set up under the Act is not relevant to whether Mr Munro has a past or future earning capacity in a common law damages trial.
(c) Any probative value of the evidence in respect to the admission is substantially outweighed by the danger that the evidence might:
(i)be unfairly prejudicial to Peninsula Health; or
(ii)be misleading or confusing; or
(iii)cause or result in a waste of time.
(d) That the current preponderance of case law supports excluding the admission. Peninsula Health, in their written submissions, made specific reference to:
(i)Aubrecht v Monash Health;[5]
(ii)Mert v Lawrence Vic (Pty Ltd);[6]
(iii)Vincent v Victorian WorkCover Authority.[7]
[5][2023] VCC 1319 (“Aubrecht”)
[6][2016] VSC 348(“Mert”)
[7][2023] VCC 1667 (“Vincent”)
The applicable principles
24Referring firstly to the Evidence Act 2008.
25Section 55(1) of the Evidence Act relevantly provides:
“Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to—
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to adduce evidence.”
26Section 56 of the Evidence Act provides:
“Relevant evidence to be admissible
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.”
27Section 135 of the Evidence Act relevantly provides:
“General discretion to exclude evidence
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) be misleading or confusing; or
(c) cause or result in undue waste of time.”
28Moving now to the authorities.
29In the course of the application, I was taken to various authorities which touched upon the issues for determination. It is appropriate from the outset to note the observation made by Bell J in Mert. His Honour said:
“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. … .”[8]
(Emphasis added.)
[8](Supra) at paragraph [9], pages 3 and 4
30I accept his Honour’s observations.
31In undertaking my analysis, I was greatly assisted by the comprehensive review of the relevant authorities and legislation undertaken by Tsalamandris J in Sepe v Club Italia Sporting Club Inc (Ruling).[9]
[9](2023) VSC 191 (“Sepe”)
32I do not propose to revisit that analysis, which can be found between paragraphs 12 and 55 of her Honour’s Ruling. As Myers J did in her recent Ruling in Aubrecht, I, too, respectfully agree with Tsalamandris J in her analysis.
33I specifically refer to her Honour’s conclusion that:
“The above authorities establish that acceptance of a claim by a statutory authority under a no fault compensation scheme is capable of being an admission, subject to who made the admission, the nature and extent of the admission, and whether it is relevant to a fact in issue. Such an admission is rebuttable, and its significance is to be determined by the finder of facts in the trial.
In considering whether such conduct is admissible evidence in a trial, on the authorities as they stand, there is no logical basis to distinguish between a serious injury application, and a common law damages trial. The threshold question, in either type of trial, is whether the admission is relevant to a fact in issue.
The decisions in Raeburn, Cairns and Mert do not offer any definitive guidance as to whether continued payments under the scheme constitute an admission. In Raeburn, the admission was not considered relevant to a fact in issue – whether or not the plaintiff was injured in negligent circumstances as he alleged. In Cairns, the admission was considered relevant to a fact in issue – whether or not the plaintiff had been injured at work – and it was considered that a simple direction could be given to the jury regarding its use of the admission. In Mert, although capable of being relevant to fact in issue, the circumstances surrounding the acceptance of the lump sum claim were such that the dangers identified pursuant to s135(a)-(c) of the Evidence Act substantially outweighed the limited probative value of the evidence.”[10]
[10](Ibid) paragraphs [46]-[48]
34The facts and circumstances in Sepe are very similar to this matter. That is:
(a) it was a proceeding where the plaintiff sought damages for loss of earnings and loss of earning capacity;
(b) the plaintiff had been in receipt of weekly payments on an ongoing basis and in particular, beyond 130 weeks.
35In Sepe, Tsalamandris J was satisfied:
(a) that Ms Sepe’s receipt of ongoing weekly payments of compensation was an admission by conduct, on the part of Club Italia, that it was capable of being admissible evidence, as it was relevant to Ms Sepe’s claim for past loss of earnings; and
(b) a jury could be (and was) suitably directed as to its use of this admission in respect of its assessment of Ms Sepe’s claim for past loss of earnings, so that it was not unfairly prejudicial to Club Italia, nor misleading or confusing.[11]
[11](Ibid), paragraph [11], sub-paragraphs (1) and (2)
36There are decisions, based on their particular facts and circumstances, which reach a contrary conclusion.
37I do not propose to undertake an exhaustive review of those matters where the admission was excluded. I will refer to the three cases identified by Peninsula Health in the course of their submissions:
(a) Mert – the admission in this matter related to an impairment benefit pursuant to s98C of the Act. That entitlement was dependent upon an assessment pursuant to the American Medical Association Guides to Permanent Impairment (4th Edition). There were also issues of credit and primary injury. It is not difficult to see how these factors introduce a layer of complexity inappropriate to go before a jury. There are different facts and circumstances to this case.
(b) Aubrecht – this matter involved the use to be made of the acceptance by the VWA of the costs associated with cervical spine surgery. There was uncertainty at the time of the opening of the case to the jury, and the application whether the acceptance of costs associated with this medical procedure would ever be in issue and relevant. Myers J concluded such evidence was of limited probative value in the context of the case and determined that the probative value was far outweighed by the dangers outlined in s135 of the Evidence Act. Again, the facts and circumstances differed to this case.
(c) Vincent – while this matter was raised by Peninsula Health in their written submissions, in the course of their oral submissions, it was ultimately accepted to be of no relevance and not relied upon. Given how the matter of Vincent unfolded, this was an appropriate concession.
Some further general background
38Prior to moving to a review of the parties’ respective submissions and to my analysis, it is appropriate to detail some further facts and circumstances of Mr Munro’s matter. This will add context to both the submissions and my analysis.
39Mr Munro, prior to the incident, had:
(a) a history of problems with his neck;
(b) various other injuries and health issues.
40Mr Munro’s previous neck problems include:
(a) being diagnosed with a C5-6 disc prolapse in 2004;
(b) in October 2015, hurting his neck in the gym – while Mr Munro said he had no time off work he:
(i)attended his general practitioner on a number of occasions; and
(ii)underwent an MRI scan which again confirmed the presence of a C5-6 disc prolapse.
41Mr Munro had suffered a range of other injuries and comorbidities predating the incident. These include:
(a) On 17 October 2002, Mr Munro injured his lower back at work with the Frankston City Council. This resulted in a lengthy period of time off work. Mr Munro received WorkCover benefits.
(b) Psychiatric illness for which Mr Munro received a range of treatment over the years.
(c) An injury to his shoulder while working for Peninsula Health in or around 2015 which resulted in time off work.
42After Mr Munro injured his neck on 3 September 2016, he was certified off work for a period of time. Mr Munro then returned to work on modified duties. Mr Munro underwent surgery on 17 August 2017. He was again certified off work. Mr Munro returned to work again in or about January 2018. Mr Munro ceased work with Peninsula Health for the final time on 29 June 2019. Mr Munro said he had not returned to any work since that time.
43Since 29 June 2018, Mr Munro has been in receipt of weekly payments of WorkCover from Peninsula Health and/or their VWA authorised insurer. Those payments have extended beyond 130 weeks. The authorised insurer has also paid:
(a) the costs associated with the ACDF;
(b) ongoing medical and like expenses.
The alternative submissions
44Mr Munro said that the admission of the type sought should be regarded as very significant. He said there was a very clear discrepancy between how Peninsula Health intended to run its case before the jury and the admission sought to be adduced.
45Mr Munro said the admission was not the totality of his case, but an important piece of evidence. He said that, while Peninsula Health in its Amended Defence, had admitted C6-7 injury, the nature and extent of this accepted injury remained in dispute.
46Dealing firstly with the nature of the C6-7 injury. Mr Munro said the ongoing payments of medical and like expenses beyond the payment for the ACDF was an admission that the accepted injury:
(a) was a persisting condition;
(b) continued to require treatment.
47Moving to matters involving loss of earnings and loss of earning capacity.
48Mr Munro said it had been accepted that, since 29 June 2019, he:
(a) had no current work capacity as defined in the Act;
(b) that was likely to continue indefinitely.
49Mr Munro said this was relevant evidence. He said it was a piece of evidence that he should be entitled to rely upon.
50Not unsurprisingly, Mr Munro said Sepe was good law and, in the circumstances of his case, a similar approach should be taken by this court.
51Mr Munro said there had been no admission by Peninsula Health in respect to the nature and extent of the injury to his C6-7 disc and the economic loss consequences to him.
52Indeed, Mr Munro relied upon Peninsula Health’s counsel opening to the jury, where Mr Smith said:
“For instance, one of the things that I anticipate you’ll hear by way of evidence, and contrary to anything you’ve heard till now, is that the plaintiff, Mr Munro, did return to work after his injury and did return to work after his surgery, and worked with Peninsula Health for a period of almost another two years until he ceased for reasons which, we’ll see what the evidence discloses, but seem to be unrelated to his neck injury.”[12]
[12]T143, L26 ꟷ T147, L2
53Mr Munro said the nature of the admission sought was relevant evidence, in that it was evidence which ran contrary to Peninsula Health’s opening to the jury.
54Moving to the C5-6 disc prolapse. Mr Munro said:
(a) depending on the evidence, this was a vicissitude that may or may not be relevant to the assessment of damages;
(b) as the case progressed there would be issues regarding the evidentiary burden in respect to the relevance of this condition;[13]
(c) Peninsula Health’s reliance on this injury reinforced the relevance of the admission in respect to the C6-7 injury.
[13]In particular, counsel for Mr Munro made reference to Watts v Rake [1960] HCA 58 and Purkess v Crittenden [1965] HCA 34
55Moving to s135 of the Evidence Act. Mr Munro said that it was well accepted at law that admissions of the type called for by him “should ordinarily be regarded as very significant”.[14]
[14]See Ansett Australia Ltd v Taylor [2006] VSCA 171 and Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66 (“Sednaoui”)
56Mr Munro said any unfair prejudice must substantially outweigh the probative value of the evidence. Mr Munro, again adopting the analysis set out in Sepe, said that the admission was not so complex at law or, in fact, that it could not go before the jury with appropriate directions.
57Moving now to Peninsula Health’s submissions.
58Peninsula Health said that, given the admissions made by them on 25 August 2023 in the Amended Defence, there was no relevant issue in dispute which the admission sought touched upon. Thus, pursuant to s55 of the Evidence Act, the admission sought should not be adduced in evidence.
59Initially, in oral submissions, Peninsula Health said there would be no attack on Mr Munro in the course of the trial that the ongoing treatment, and the ongoing payment of such treatment by the authorised insurer, was not appropriate and reasonable.[15]
[15]Transcript (“T”) 163, Line (“L”) 25 ꟷ T164, L5
60In respect to Mr Munro’s ongoing receipt of weekly payments, Peninsula Health conceded that:
(a) this evidence did have the potential to be relevant to the question of economic loss;[16]
(b) they could not speak against the admission in respect to working payments being a relevant piece of evidence.[17]
[16]T166, L6-10
[17]T176, 12-18
61Of the consequences of the C6-7 disc injury to Mr Munro’s loss of earnings and loss of earning capacity claim, Peninsula Health said this would, in the course of the trial, remain in dispute. In response to an enquiry made by me, Peninsula Health’s counsel, Mr Smith, said:
“HIS HONOUR:
Isn't there a problem with that proposition, and maybe it would be remedied by a concession, but the defendant is surely not going to be going to this jury and saying, ‘we agree that Mr Munro, by reason of his C6/7 injury has been incapacitated for work to date and would, by reason of his C6/7 injury be incapacitated for work until his 67th birthday, but our case is solely and exclusively a case to defeat his economic loss claim, is solely and exclusively based on the C5/6 injury’, for example.
MR SMITH:
Yes.
HIS HONOUR:
Just trying to keep it simple.
Mr SMITH:
Yes.
HIS HONOUR:
Correct me if I'm wrong, but that's not a position that this defendant would be prepared to make, is it?
MR SMITH:
But the proposition we will be putting to the jury is, whilst they might accept that the C6/7 injury significantly impairs, or indeed, for want of a better word, destroys, or perhaps significantly inhibits is a better term, the plaintiff's earning capacity, there are other factors operating both currently, in terms of say the C5/6 condition, which would in any event stop him from working, and we'd also, in the broad say, and there are these risk factors that sit as to the future.
HIS HONOUR:
I understand that, but isn't still the key matter that I'm going to have to grapple with here, is you've used the words ‘may accept’ in respect to the consequences of the C6/7.
MR SMITH:
Yes.
HIS HONOUR:
What flows from that is it is clearly going to be in dispute. Even if we were to park the C5/6 issue for the moment - - -
MR SMITH:
Yes.[18]
[18]T173, L29 ꟷ T174, L30
62Ultimately, Peninsula Health said that, in the course of the trial, issue would be taken in respect of the nature and extent and relevance of any medical treatment for the C6-7 condition.
63Further, Peninsula Health said Mr Munro’s C5-6 disc prolapse was a relevant injury and impacted upon his medical treatment and entitlement to damages.[19]
[19]T164, L7-10
64Thus, Peninsula Health agreed that there would be an ongoing dispute before the jury in respect to the medical and like expenses incurred by Mr Munro and paid by the authorised insurer.[20]
[20]T165, L3 ꟷ T166, L4
65This position was confirmed later in submissions. Again, referring to the discussion:
“HIS HONOUR:
But if I can stop you there, Mr Smith, you don't resile from the position though that the defendant will be, and this will be consistent with what you've said, challenging, exploring of the plaintiff, whichever way you want to put it, and may be bluntly putting propositions to him that he could have continued work, that his incapacity ongoing is not due to this, that he has capacity and so on and so forth. In blunt terms there will be an attack on his claim for loss of earnings in the past and certainly an attack on his loss of earning capacity claim for the future.
MR SMITH:
Yes, but the attack will be more along these lines, Your Honour, that there are factors outside of your C6/7 injury which are inhibiting your ability to work.”[21]
[21]T205, 12-25
66Peninsula Health also said that evidence of Mr Munro’s receipt of weekly payments of WorkCover benefits was likely to mislead and confuse the jury or be prejudicial to them.
67Peninsula Health, while accepting that in Sepe her Honour Tsalamandris J concluded that any mischief created by the evidence of weekly payments of WorkCover benefits could be rectified in the Charge to the jury, said that was not the case in this matter. Peninsula Health said, given the facts and circumstances of this case, such a charge required detailed and confusing descriptions of the WorkCover scheme.
68Peninsula Health said the Court should adopt the reasoning in Fisher v Maltrans Pty Ltd and Anor (Ruling).[22]That is, reference to Workers Compensation payments may “swamp all other considerations”.[23]
[22][2022] VCC 2246
[23]T172, L1-24
69Indeed, Peninsula Health said, should the Court allow the admission, that would create mischief that included:
(a) distracting the jury from the real issues;
(b) prejudicing the jury;
(c) attracting unwanted significance to the acceptance of the WorkCover claim and the payments made pursuant to the statutory scheme;
(d) unnecessary time would be wasted calling additional witnesses and making the necessary explanations and directions.
Analysis
Is the relevant admission capable of being admissible evidence in this case?
70Peninsula Health said that, in the course of the trial, there would be dispute in respect to:
(a) the relationship between Mr Munro’s C6-7 injury and the ongoing medical treatment received by him;
(b) whether Mr Munro’s alleged loss of earnings and loss of earning capacity could be attributed to the C6-7 injury;
(c) whether Mr Munro’s alleged loss of earnings and loss of earning capacity was due to a C5-6 disc lesion and/or other comorbidities.
71Further, Peninsula Health said they could not speak against the proposition that Mr Munro’s ongoing receipt of weekly payments of compensation was relevant evidence.
72However, Peninsula Health said it was the lack of probative value and the potential mischief which would be caused by the admission of such evidence which favoured its exclusion of the admission.
73In the circumstances of this case it is important to note that there was no challenge by Peninsula Health that:
(a) The initial admission of liability for weekly payments and medical expenses was not correctly made. Indeed, there was no dispute the admission was made after Peninsula Health had undertaken their own internal incident causation review.
(b) Subsequent to 29 June 2018, Mr Munro has continued to receive weekly payments of compensation and is still in receipt of such payments at the time of the hearing.
(c) Mr Munro continued to receive weekly payments of compensation beyond 130 weeks.
(d) There had been payment for Mr Munro’s:
(i)ACDF;
(ii)ongoing medical and like expenses to the time of the hearing.
74Mr Munro said that, on one hand Peninsula Health accepted ongoing weekly payments of compensation based on no current work capacity and, on the other, sought to, in the course of the trial, dispute such incapacity.
75I pause here to note the doctrine of approbation and reprobation. This appears to be akin to Mr Munro’s complaint. Put simply, a party cannot “blow hot and cold” in the attitude they adopt.[24]
[24]Express Newspapers PLC v News (UK) Ltd (1990) W.L.R 1320 (per Brown J); Commonwealth v Verwayen (1990) 170 CLR 394; Macob Civil Engineering Ltd v Morrison Construction Ltd [1999] 3 EGLR 7 (per Dyson J)
76I accept that the ongoing payments of compensation to Mr Munro are capable of constituting admission by conduct. As Tsalamandris J concluded in Sepe, I, too, accept that, when the provisions of the Act are read together, there is no basis for Peninsula Health to say that the payments made by the authorised insurer cannot constitute an admission by it.
77For the purposes of this ruling, I am satisfied that the ongoing payment of compensation is a rebuttable admission relevant to facts in dispute in this case. I accept that it is not a binding admission but, rather, evidence capable of being weighed with the other evidence relevant to Mr Munro’s claims.
78I accept the admission to be relevant evidence.
Is the mischief associated with the admission such that the evidence should be ruled inadmissible?
79Peninsula Health said I should exercise my discretion to exclude evidence of the admission pursuant to s135(a)-(c) of the Evidence Act.
80Peninsula Health said that, if the jury was told Mr Munro had received approximately $291,000 in weekly payments, the jury could engage in an impermissible line of reasoning. They said that would result in unfair prejudice to Peninsula Health.
81Peninsula Health also said the explanation which would be necessary to explain the operation of an authorised insurer, the WorkCover system, the weekly payments criteria and the relevant tests under the Act would:
(a) be likely to mislead and confuse the jury;
(b) result in an undue waste of time.
82The admission sought by Mr Munro was raised at the commencement of the trial. The Ruling on the admissibility was delivered prior to Mr Ingram completing examination-in-chief and Mr Smith commencing cross-examination.
83Importantly, Peninsula Health had the opportunity to:
(a) cross-examine Mr Munro in respect to the admission;
(b) call evidence to rebut the admission;
(c) contend that the admission should be given limited or no weight.
84Moving now to the admission made in the Amended Defence. I do not accept these admissions diminish either the relevance or probative value of the admissions sought by Mr Munro. The Amended Defence specifically said that Peninsula Health continued to deny the nature and/or extent of the claimed injuries. In oral submissions, Mr Smith, on behalf of Peninsula Health, conceded that the nature and consequences of Mr Munro’s C6-7 injury remained in issue and would be subject to attack in the course of the trial. That being so, the admission sought to be adduced is a relevant piece of evidence which goes beyond the admission made in the defence.
85Moving to the specific s135 arguments raised by Peninsula Health. I am not satisfied in the circumstances of this particular case that the admission sought would be misleading or confusing to the jury.
86As in Sepe, I accept that a direction can be given to the jury to enable it to understand the basis upon which the admission was made. Consistent with the observations made by Tsalamandris J in Sepe and the comments made by the Court of Appeal in Sednaoui, I accept that a jury is capable to be directed as to how to use the admission.
87Mr Munro, in his written submissions, took me to the precise wording of Tsalamandris J’s direction in Sepe. It must be acknowledged that the precise terms of such direction may need to be varied depending on how the trial progresses. However, in general terms, I accept the thrust of that direction is appropriate to address the issues of concern.
88As to the submission of undue delay, I was not specifically taken to any particular additional witness who may be called. Having said that, I accept that there may be an officer from the authorised insurers or a defendant representative who may be called. However, given it is accepted that Mr Munro has continued to receive payments from 29 June 2018 to date, it is speculation to conclude whether this is any more than a possibility. Certainly, there was no suggestion by Peninsula Health that it proposed to recant from the acceptance of Mr Munro’s WorkCover claim subsequent to its own internal assessment.
89In the context of a trial that was estimated to run eight days (though given the pace it was proceeding that appeared to be optimistic), I do not accept that the potential of perhaps a further one or two witnesses does justify the exercise of my discretion to disallow relevant evidence.
90Finally, I move to Peninsula Health’s assertion that the current preponderance of authorities support the exclusion of such admission or evidence. I do not accept that to be the case or to be persuasive if it were the case. While Peninsula Health referenced a number of matters where the discretion was exercised in favour of excluding such evidence, the admission of such evidence has been allowed in many recent cases in this court in both serious injury applications and common law damages trials. In any event, it is not an accounting exercise where the greatest weight of numbers wins. Each case must be analysed on its own particular facts and circumstances.
Conclusion
91For the reasons outlined, I allow Mr Munro to adduce evidence in respect to the admission.
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