Vincent v Victorian WorkCover Authority (Ruling)

[2023] VCC 1692

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-20-02294

CLAIRE LOUISE VINCENT	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:

HER HONOUR JUDGE MORRISH

WHERE HELD:

Melbourne

DATE OF HEARING:

22, 23, 25, 26 and 29 May 2023

DATE OF RULING:

Summary oral rulings given on tendency 29 May 2023

Summary oral rulings on admission 30 and 31 May 2023

Revised written rulings given on 22 September 2023

CASE MAY BE CITED AS:

Vincent v Victorian WorkCover Authority (Ruling)

MEDIUM NEUTRAL CITATION:

[2023] VCC 1692

RULING

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Subject:NEGLIGENCE – EVIDENCE – TENDENCY – ADMISSIONS

Catchwords:               NEGLIGENCE CLAIM – Jury trial – Psychiatric injury to plaintiff allegedly caused by exposure to bullying in the workplace

TENDENCY – Whether evidence of single alleged act of bullying to different worker establishes tendency to act in a particular way

ADMISSIONS – Plaintiff alleges multiple acts of bullying over period of 22 weeks and 5 days – Acceptance by authorised agent of Plaintiff’s WorkCover claim confined to 3 incidents over one week period – Whether constitutes global admission to establish extent of injury and causation – Factors relevant to exercise of discretion under s135 Evidence Act 2008 – Whether prejudice to Defendant can be overcome by direction to jury

Legislation Cited:      Evidence Act 2008; Corporations Act 2001 (Cth), s601AG; Accident Compensation Act 1985; Workplace Injury Rehabilitation and Compensation Act 2013; Commonwealth Employees’ Compensation Act 1930 to 1964

Cases Cited:Chen v The Queen [2011] NSWCCA 145; IMM v The Queen (2016) 257 CLR 300; Hughes v The Queen (2017) 263 CLR 338; Dempsey (a pseudonym) v The Queen [2019] VSCA 224; Klein (a pseudonym) v The King [2022] VSCA 249; R v Bauer (a pseudonym) (2018) 266 CLR 56; Pastras v The Commonwealth (1966) 9 FLR 152; Heuston v Yore Contractors Pty Ltd (Unreported) NSWSC, SC 11461 of 1987; Gordon v Ross [2006] NSWCA 157; Cairns v Trowelcoat Pty Ltd [2014] VSC 129; Baulch v Lyndoch Warrnambool Inc (2010) 27 VR 1; Chatzipantelis v Grimwade Castings Pty Ltd [1966] VR 242; Morvatjou v Moradkhani [2013] NSWCA 157; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Bedeux v Transport Accident Commission [2016] VSCA 127; Transport Accident Commission v Florrimell [2013] VSCA 247; Ansett Australia Ltd v Taylor [2006] VSCA 171; Raeburn v Tenix Defence Systems Pty Ltd [2006] VSC 390; Mert v Lawrence (Vic) Pty Ltd [2016] VSC 348; Rhodin v Coles Supermarkets Australia Pty Ltd [2019] ACTSC 207; Sepe v Club Italia Sporting Club Inc & Anor (Ruling) [2023] VSC 191; Willett v State of Victoria [2011] VSC 567; Sednaoui v AMAC Corrosion Protection Pty Ltd (2017) 52 VR 247; Tomasevic v State of Victoria [2018] VSCA 325

Ruling:  Tendency evidence excluded – Admission evidence excluded

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P J Hayes KC with Ms H Donmez	Redlich’s Work Injury Lawyers
For the Defendant	Mr A T Broadfoot KC with Mr N J Dunstan	Lander & Rogers

Table of Contents

Background

The applications

Summary of Rulings

The issues at trial

Ruling 1 - Should tendency evidence be admitted?

Ms Wendy Cole (Jackson) – admissibility not disputed

Ms Tracey Rees – admissibility disputed

Statutory Framework

Applicable principles

The submissions

Discussion

Conclusion and Orders

Ruling 2 - Should evidence regarding the acceptance of the Plaintiff’s WorkCover claim and continued payment of statutory entitlements be admitted into evidence?

The proposed evidence

Applicable principles

Chatzipantelis v Grimwade Castings Pty Ltd

Pastras v Commonwealth

Heuston v Yore Contractors Pty Ltd

Gordon v Ross

Ansett Australia Ltd & Anor v Taylor

Raeburn v Tenix Defence Systems Pty Ltd

Baulch v Lyndoch Warrnambool Inc

Morvatjou v Moradkhani

Fokas v Staff Australia Pty Ltd

Transport Accident Commission v Florrimell

Cairns v Trowelcoat Pty Ltd

Bedeux v Transport Accident Commission

Mert v Lawrence (Vic) Pty Ltd

Sednaoui v AMAC Corrosion Protection Pty Ltd

Tomasevic v State of Victoria

Rhodin v Coles Supermarkets Australia Pty Ltd

Sepe v Club Italia Sporting Club Inc & Anor (Ruling)

Willett v State of Victoria

The documents said to support a “course of conduct” implied admission

The submissions

Discussion

Conclusion and Orders

HER HONOUR:

Background

1The plaintiff, Claire Vincent, worked as a dental nurse for a dental practice in Mornington, Victoria operated by Elbarki Nominees Pty Ltd (“the employer”). At all material times, the practice was supervised, managed and controlled by Dr Heba Elbarki, dentist. Elbarki Nominees Pty Ltd was deregistered as a company on 27 November 2018 and remains deregistered. By virtue of s601AG of the Corporations Act 2001 (Cth), the Victorian WorkCover Authority, the defendant in these proceedings, is responsible for any liability of the employer to the plaintiff prior to Elbarki Nominees Pty Ltd’s deregistration.

2The plaintiff has brought common law proceedings against the defendant seeking to recover damages for injuries she alleges to have sustained in the course of her employment with the employer “as a result of repetitive and sustained conduct perpetuated by Dr Elbarki towards her, which in the circumstances amount to and/or was ‘bullying’”.[1]

[1]Amended Statement of Claim dated 15 August 2022, paragraph 8

3The mode of trial is by Judge and Jury.

The applications

4Mr Hayes KC, who appeared with Ms Donmez (and later with Mr Kleiman) on behalf of the plaintiff, makes two preliminary applications, namely:

(a)   that the plaintiff be permitted to adduce tendency evidence; and

(b)   that evidence of the defendant’s acceptance of the plaintiff’s WorkCover claim and the Authority’s continued payment of weekly (and other) expenses is admissible as constituting an admission that:

“The Plaintiff sustained a stress related injury in the course of her employment with Elbarki Nominees Pty Limited between 27 January 2023 [scil 2016] and 4 July 2023; and

The Plaintiff continues to suffer from the effects of that stress related injury from the time it was sustained until the [date of trial].”[2]

[2]Outline of Plaintiff’s Submissions dated 24 May 2023, paragraph 58

5Mr Broadfoot KC, who appeared with Mr Dunstan on behalf of the defendant, opposed the applications.

6The preliminary applications were heard prior to the empanelment of the jury.

Summary of Rulings

7For the reasons that follow, I rule:

(a) the proposed tendency evidence is not admissible. Even if it were, I would exclude the evidence under s135 of the Evidence Act 2008 (“the Act”);

(b) the evidence sought to be introduced to prove an admission by conduct is irrelevant having regard to the issues in the trial. If the evidence is relevant, it is excluded under s135 of the Act.

The issues at trial

8In order to assess the merits of both applications, it is necessary to have reference to the pleadings.

9The Amended Statement of Claim dated 15 August 2022 pleads:

“8.Throughout the course of her employment, in the period from about late 2015 until on or about 4 July 2016, the Plaintiff sustained injury as a result of repetitive and sustained conduct bullying, harassment and unreasonable treatment perpetuated by Dr Elbarki towards her, which in the circumstances amount to and/or was ‘bullying’ (‘the bullying’).

PARTICULARS

The Plaintiff relies upon those facts and incidents detailed in no-italics and no-highlighted sections of the Schedule marked ‘A’ attached to this pleading perpetuated by Dr Elbarki towards the Plaintiff, as jointly and severally amounting to bullying in the circumstances.

(a)The Plaintiff was subjected to purported disciplinary procedures without any, or any adequate procedural fairness;

Sub-particulars

The Plaintiff relies upon items 6, 10, 15, 21, 21, 25, 26, 27, 28, 33 of Schedule A.

(b)The Plaintiff was required to clean toilets and possum excrement in her Dental Nurses’ Uniform in circumstances in which the Insured knew, or ought to have known, was in breach of good hygiene practices and would cause the Plaintiff mental harm;

Sub-particulars

The Plaintiff relies upon items 17 and 24 of Schedule A.

(c)The Plaintiff was physically prevented restricted from entering the reception by a barrier chain, from using the practice’s computers in the reception area and accessing the practice/surgery (by reason of the locks to the building being change in or about May 2016) from being able to perform the inherent requirements of her job;

Sub-particulars

The Plaintiff relies upon items 12, 23, 29 and 30 of Schedule A.

(d)The Plaintiff was subjected to repeated and sustained humiliation by demeaning, angry, and aggressive words and actions by Dr Elbarki;

Sub-particulars

The Plaintiff relies upon items 4, 5, 6, 7, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34, 39, 40 and 41 of Schedule A.

(e) The Plaintiff was unreasonably threatened with the loss of her job by Dr Elbarki;

Sub-particulars

The Plaintiff relies upon items 5, 6, 10, 15, 21, 24, 25, 26, 27, 28 and 33 of Schedule A.

(f) Dr Elbarki unreasonably sought to reduce the Plaintiff’s work hours at the practice;

Sub-particulars

The Plaintiff relies upon items 19, 20, 22 and 23 of Schedule A.

(g) Dr Elbarki unfairly allocated tasks to the Plaintiff which could not be reasonably undertaken or difficult to accomplish by the Plaintiff in the circumstances, thereby setting up the Plaintiff to fail in the attendance to such tasks;

Sub-particulars

The Plaintiff relies upon items 9, 10, 11, 16, 17, 18, 24, 29, 30, 31 and 34 (especially in respect of ‘tracking’ instruments used in root canal treatment, cleaning instruments and cleaning toilets) of Schedule A.

(h) Dr Elbarki not providing the Plaintiff with appropriate training and resources for her to properly undertake her job and then criticising the Plaintiff for any shortcomings of the Plaintiff in the discharge of these tasks;

Sub-particulars

The Plaintiff relies upon items 9, 10, 11, 16, 17, 18, 24, 29, 30, 31 and 34 (especially in respect of ‘tracking’ instruments used in root canal treatment, cleaning instruments and cleaning toilets) of Schedule A.

(i) The Plaintiff was treated differently to other employees by Dr Elbarki in terms of: restricting use of her mobile phone; confining the Plaintiff to only being permitted to speak about work-related matters in the workplace; interacting more formally with the Plaintiff than she did other employees; the usual daily  pleasantries encountered in most workplaces (ie. such as saying ‘good morning/goodbye’, etc); and, socially excluding the Plaintiff from non-work related conversations in the workplace during work-breaks;

Sub-particulars

The Plaintiff relies upon items 4, 5, 6, 7, 11, 12, 19, 20, 21, 22, 29, 30, 39, 40 and 41 of Schedule A.

(j) The Plaintiff was unreasonably directed what to wear at work by Dr Elbarki;

Sub-particulars

The Plaintiff relies upon items 39, 40 and 41 of Schedule A.

(k) The Plaintiff was unreasonably micro-managed by Dr Elbarki in the undertaking of her employment;

Sub-particulars

The Plaintiff relies upon items 5, 11 and 17 of Schedule A.

(l) The Plaintiff was wrongfully and/or unfairly accused by Dr Elbarki for indiscretions she did not commit or was responsible for; and

Sub-particulars

The Plaintiff relies upon items 9, 10, 11, 12, 15, 16, 17 (in respect of ‘tracking’ instruments used in root canal treatment and cleaning instruments), 24, 25, 26, 27, 28, 29, 30 (in respect of the alleged ‘assault’) and 40 (in respect of the use of the autoclave) of Schedule A.

(m) Dr Elbarki failing to withdraw the three written warnings issued to the Plaintiff or apologise to the Plaintiff for the aforementioned behaviours and incidents;

Sub-particulars

The Plaintiff relies upon item 43 of Schedule A.

9.The actions bullying of the Insured has caused the Plaintiff to suffer injury:

PARTICULARS OF INJURY

(a)Anxiety;

(b)Depression;

(c)Psychiatric injury;

(d)Psychological injury;

(e)Post-traumatic stress disorder;

(f)Panic attacks;

(g)Increased alcohol consumption;

(h)Chronic adjustment disorder;

(i)Impaired concentration;

(j)Impaired sleep;

(k)Lethargy;

(l)Major depressive disorder;

(m)Anger;

(n)Suicidal thoughts.

10.The said injuries were caused by the negligence of the Insured, its servants and/ or agents.

PARTICULARS OF NEGLIGENCE

(a)Failing provide a safe system of work;

(b)Exposing the Plaintiff to bullying and harassment;

(c)Failing to provide a safe place of work;

(d)Failing to provide sufficient resources including proper and/or appropriate dental cleaning equipment for the Plaintiff to carry out the inherent requirements of her work;

(e)Requiring the Plaintiff to clean toilets and possum excrement in circumstances that exposed patients of the practice to a significant risk of infection and exposed the Plaintiff to mental harm and injury;

(f)Failing to heed the Plaintiff’s complaints;

(g)Failing to provide any adequate warning of impending disciplinary procedures that resulted in the Plaintiff being stood down;

(h)Failing to provide proper instruction and training to management staff;

(i)Failing to provide the Plaintiff with any or any adequate supervision;

(j)Failing to ensure adequate training and/or comprehension of provide adequate and/or appropriate training to the Plaintiff and her colleagues in regard to the safe provision of work;

(k)Exposing the Plaintiff to a risk of danger or injury of which the Insured knew, or ought to have known;

(l)Exposing the Plaintiff to a risk of danger of injury which could have been avoided with reasonable care on the part of the Insured;

(m)Permitting and/or requiring the Plaintiff to work in a stressful environment;

(n)Failing to provide the Plaintiff with a system of work which prevented her from sustaining injury in the course of her employment;

(o)Requiring the Plaintiff to undertake duties which were in all the circumstances beyond her capacity and/or capabilities as well as, duties which were not part of the inherent requirements of her work;

(p)Failing to provide the Plaintiff with adequate training in the performance of her duties in particular in the manner in which to deal with stressful situations which she was exposed and/or to undertake the duties required of her;

(q)Failing to provide the Plaintiff with support and/or an adequate form management;

(r)Failing to assist and/or monitor the Plaintiffs psychiatric condition, especially having regard to the stressful situation to which she was being exposed;

(s)Failing to assess and/or monitor the Plaintiffs work environment adequately or at all during the periods referred to;

(t)Failing to undertake a risk assessment of the Plaintiff’s work environment or in the alternative, failing to comply and/or implement any recommendations made by any risk assessments;

(u)Unlawfully standing the Plaintiff down in circumstances in which the Insured knew or ought to have known that this would cause harm;

(v)Humiliating the Plaintiff by making references to her pants;

(w)Putting up a barrier chain and removing her access key that prevented the Plaintiff from being able to carry out the inherent requirements of her job;

(x)Preventing the Plaintiff from talking about non-work related matters in the workplace;

(y)Singling out the Plaintiff;

(z)Excessively disciplining the Plaintiff in circumstances in which it was unreasonable to do so;

(aa)Bullying and harassing the Plaintiff and/or failing to prevent the Plaintiff from being bullied (as particularised in paragraph 8 above);

(bb)Failing to have any and/or any adequate policies and procedures to prevent workplace bullying and/or failing to enforce same.”

10The schedule referred to in the above paragraphs cites 44 events, some of which are provided by way of chronological background to set the context (these are shaded in grey), and the rest of which are pleaded as examples of alleged bullying.  The schedule is in the following form:

“PLAINTIFF’S SCHEDULE OF FACTS AND INCIDENTS

Item	Date	Event
1	2008	Plaintiff commenced working for Dr Neil Hussey in Mornington
2	Aug 2013	Dr Heba Elbarki took over dental practice from Dr Hussey
3	18/11/13	Plaintiff’s Employment Contract with Dr Elbarki. Employed as a Dental Assistant at Dr Elbarki’s practice, called “The Practice”
4	24/09/2015	Dr Elbarki’s mood and behaviour towards the Plaintiff had changed at work. By September 2015, Dr Elbarki was frequently adopted an irritable and critical tone of voice when directing the Plaintiff in day to day tasks at work. Dr Elbarki ‘nit-picking’ and acting in disrespectful, unprofessional and unpleasant manner towards the Plaintiff at work. An illustration of this behaviour occurred at work on 24/09/2015 when the Plaintiff was speaking to Ms Wendy Cole (nee Jackson) and stated that she wanted to leave work early that day to buy food. Dr Elbarki who was within ear shot of the conversation between the Plaintiff and Ms Cole, interrupted by calling out “Oh for fuck’s sake, just go – leave now” The Plaintiff was startled by Dr Elbarki’s outburst and quietly left work.
5	Dec 2015 onwards	Dr Elbarki continued to project petty, critical, needlessly overbearing and disrespectful behaviour towards the Plaintiff in the workplace, which is illustrated by the following examples: -    Dr Elbarki began to ‘micro-manage’ the Plaintiff (who until this point in time had worked in the practice with considerable autonomy) by regularly following the Plaintiff and standing close to the Plaintiff to closely observe her work (such as setting out or cleaning dental instruments for example), which she would then criticise in a stern and admonishing tone, when up until that point, the Plaintiff in performing her work tasks in a similar fashion, did not attract such a reaction from Dr Elbarki. -    Dr Elbarki treated the Plaintiff differently to other employees of the practice, in that: +     the Plaintiff was criticised or admonished for using her mobile phone at work, when other employees where not so criticised or admonished; +     the Plaintiff was not permitted to discuss or speak about anything at work which was not strictly related to work or the practice, when other employees where not so restrained; +     Dr Elbarki had ceased engaging in the usual pleasantries towards the Plaintiff, which she extended to other employees of the practice such as saying “Good morning and good evening”. “Have a good weekend, etc”; +     Dr Elbarki stating to the Plaintiff in the presence of Ms Cole and Ms Wright, on one occasion in late 2015 (after Ms Cole enquired as to how Dr Elbarki was going looking for work), “I haven’t seen much for myself, but I’ve seen plenty of jobs which would be good for Claire”; and +     Dr Elbarki and the other staff (usually Ms Debbie Wright) would associate and socially interact together during breaks from work (ie. lunch and tea breaks) and not associate or socially interact with the Plaintiff, thereby leaving her isolated and alienated. -    Dr Elbarki constantly criticised and belittled the Plaintiff, in front of other staff and patients, as to many of the tasks the Plaintiff undertook in her usual day-to-day tasks as a dental nurse, while in the process of trying to assist Dr Elbarki, by directing the Plaintiff in a stern and admonishing or hostile tone. -    The Plaintiff sought permission from Dr Elbarki to leave work early one day (without revealing the reason) and in response, Dr Elbarki, in a condescending and belittling tone said “So you want to leave early to get a fake tan”.
6	27/01/2016	Dr Elbarki forwarded the Plaintiff the ‘first warning letter’ and also extended a similar verbal warning to the Plaintiff at work. The warning (letter and oral) relied on petty or minor incidents of the Plaintiff’s conduct at work which either did not occur or which did not in the circumstances properly justify a formal warning. Incidents (ie. that the Plaintiff left work on one occasion ‘four minutes early’ at 12:56pm, when the sign on dental surgery building which detailed the practice’s business hours stated that the practice closed at 12:30pm that day which was a Wednesday). On or about that day, the following verbal exchange occurred between the Plaintiff and Dr Elbarki: Dr Elbarki: “I tried ringing my practice, but there was no one there.” Plaintiff: “I left just prior to 1:00pm” Dr Elbarki (in a harsh and belittling tone): “If you don’t want to do the job, just tell me. If you don’t want to do the job, I’ll get you replaced” Plaintiff: “Of course I want the job” Dr Elbarki: “I’m paying you to be there. If you’re not interested I’m happy to replace you if you want to go and work elsewhere” Plaintiff: “Of course I want the job, I am interested in it” In these circumstances it was unreasonable for Dr Elbarki to issue the Plaintiff with the first warning letter.
7	March/April 2016	Dr Elbarki unreasonably admonished the Plaintiff over the alleged personal use of her mobile phone at work: -    - In March, at a time the Plaintiff’s mobile phone was switched to silent while she was working and the flashing light was flashing on the Plaintiff’s phone, which prompted Dr Elbarki to say to the Plaintiff in a sarcastic and condescending tone, “someone is trying to reach you Claire”; and -    - In April, the Plaintiff asked Dr Elbarki, why there were different rules in place for Sharyn Hussey as to the use of her mobile phone to that of the Plaintiff, to which Dr Elbarki responded in a caustic tone: “Sharyn can do whatever she wants. Its my practice and I will do whatever I want”.
8	In the period 15/4/16 to 5/5/16	The plaintiff was absent from the practice as she was on holidays
9	In the period 15/4/16 to 5/5/16	On 19/4/16, a temporary locum nurse informed Dr Elbarki that root canal instruments needed tracking, and before this time, Dr Elbarki did not track instruments (Patient: [redacted]) While the Plaintiff was on holiday and sick leave, Dr Elbarki then removed all paper records of patients to prevent the Plaintiff from accessing them, because of the “failure to track instruments issue”.
10	20/4/16	Dr Elbarki sends Plaintiff ‘second warning letter’. Plaintiff did not receive this letter until 02/06/2016, when it was handed to her by Dr Elbarki. The letter wrongly and unfairly accused the Plaintiff of not following proper infection control procedures, by not properly tracking instruments used in root canal therapy treatment of patients. Prior to Dr Elbarki taking over the practice in 2013, the Plaintiff had not assisted in root canal therapy treatment, as such treatment was not performed or offered by Dr Hussey. Further the Plaintiff had never been trained in root canal therapy hygiene practices by Dr Elbarki, nor did Dr Elbarki provide the Plaintiff with the proper equipment (such as a magnifying glass) which enabled the Plaintiff to properly clean the instruments used for root canal treatment. In these circumstances it was unreasonable for Dr Elbarki to issue the Plaintiff with the second warning letter.
11	5/5/16	The Plaintiff arrived back at work from holiday, at 8:50am (5 minutes late). By May 2016, Dr Elbarki’s general behaviour towards the Plaintiff (and Ms Cole) has escalated from unpleasant to hostile. Meeting at work between the Plaintiff (and Ms Cole) and Dr Elbarki where Dr Elbarki was swearing at the Plaintiff and verbally abusive towards her for being ‘late’ and over an alleged lack of proper hygiene practices directed at the Plaintiff (and Ms Cole), which the Plaintiff denied. In particular, Dr Elbarki was critical of the Plaintiff and Ms Cole for not ‘tracking’ instruments used in root canal treatment. This was the first occasion when Dr Elbarki had formally raised the issue of inappropriate ‘tracking’ practices with the Plaintiff (and Ms Cole). During the meeting Dr Elbarki behaved in an over-bearing manner towards the Plaintiff (and Ms Cole) and would not allow them to respond to her allegations and continually shut each of the Plaintiff and Ms Cole down when they attempted to speak by either loudly speaking over them or telling them to stay quiet. At the conclusion of the meeting, Dr Elbarki said words in a terse and admonishing tone to the following effect: -    to Ms Cole: “do not ever question my authority”; and -    to the Plaintiff: (despite previously micro-managing the Plaintiff); “you’ll be micro-managed from this day on”. Dr Elbarki stated to both the Plaintiff and Ms Cole that each of them would receive formal warnings (despite not having been provided with manuals or training so as to properly guide them in ‘tracking’ tasks to be undertaken with respect to instruments used in root canal treatment).
12	6/5/16	The Plaintiff arrived at work at 8:30 that morning and attempts to enter the practice and discovers that Dr Elbarki has changed the locks. The Plaintiff was then forced to wait outside until another employee arrived to let the Plaintiff into her workplace. Until this time, throughout her employment, the Plaintiff had always held a key to the surgery. From this time onwards until the cessation of her employment with Dr Elbarki, the Plaintiff never held a key to access the surgery.
13	06/05/2016	Plaintiff attends on Dr Kosenko (GP), complaining of stress and anxiety arising from work. Dr Kosenko certifies the Plaintiff as being unfit for work from 06 to 13/05/2016
14	20/05/2016	Plaintiff attends on Dr Isaac (GP), complaining of stress arising from work. Dr Kosenko certifies the Plaintiff as being unfit for work from 20/05/2016 onwards
15	27/5/16	Dr Elbarki responds to Plaintiff’s letter of 18/05/2016, regarding the two written warnings dated 1/2/16 and 20/4/16. In the letter, Dr Elbarki states if the Plaintiff fails to meet work expectations, it will lead to further discipline, and may extend to termination of employment
16	30/5/16	Dr Elbarki provided the Plaintiff with a USB containing three policy manuals to for the Plaintiff read.
17	30/5/16	Upon returning to work after holidays/sick leave, from 30/5/16, Dr Elbarki continued to: micromanage and belittle the Plaintiff; treat her differently and unreasonably, when compared to other staff; and project petty, critical, needlessly overbearing and disrespectful behaviour towards the Plaintiff in the workplace, which is illustrated by the following examples: -    Dr Elbarki standing in close physical proximity to the Plaintiff and following the Plaintiff around the practice for most of the day, as the Plaintiff was endeavouring to do her job; -    Dr Elbarki standing in the doorway between the sterilisation room and the surgery - watching the Plaintiff while the Plaintiff endeavoured to undertake sterilisation duties and also deliberately blocking the Plaintiff’s access from the sterilisation room to the surgery, when she needed to move between the two rooms; -    Dr Elbarki standing over the Plaintiff watching her, while the Plaintiff sat in surgery reading policy manuals; -    Dr Elbarki repeatedly handing instruments back to the Plaintiff while treating patients, which Dr Elbarki alleged had tiny specks of cement on such instruments (which Dr Elbarki had not done previously during the Plaintiff’s employment with Dr Elbarki and where such specks were not discernible by the Plaintiff), while admonishing the Plaintiff in a hostile or belittling tone with words to the effect to “scrub harder”, despite Dr Elbarki not providing the Plaintiff with an ultrasonic bath or magnifying light to assist in the proper execution of the Plaintiff’s task to clean instruments used for treating patients; -    Dr Elbarki requiring the Plaintiff to regularly clean the toilets and possum excrement from the building where the practice was conducted (while not requiring the other staff to do so); and -    Dr Elbarki constantly following the Plaintiff around the surgery, except when she attended the toilet, or when she went home at lunchtime (due to the Plaintiff previously being ignored by Dr Elbarki and Ms Wright when she took lunch at work).
18	30/5/16	Plaintiff discovered that Dr Elbarki had removed all paper patient records for all treatments that involved tracking labels prior to 24/4/16. That is, that the white folder containing these records was still in surgery, but all pages prior to 24/4/16 were removed. Thus, the Plaintiff did not have full and proper access to patient records as she had previously.
19	30/5/16 (5.20pm)	Dr Elbarki seeks to shorten the Plaintiff’s hours worked per week to 3 days per week by informing her that on Thursday 2 June 2022, the Plaintiff was not to start work until 2:00pm and in fact that she should have the whole day off as Ms Wright would assist her in the surgery from 2:00pm onwards. Dr Elbarki said this to the Plaintiff at the practice as the Plaintiff was leaving work. Until this point in time, the Plaintiff had worked for Dr Elbarki on a regular and ongoing basis on Monday, Tuesday, Thursday and Friday from 9:00am to 5:00pm (and sometimes on Wednesday mornings).
20	01/06/16 (9.27pm)	Plaintiff emails Dr Elbarki about proposed reduced hours and that she’ll be at work at 9:00am the next day. Plaintiff argues about her hours of work, but saying despite this, her concern is that Dr Elbarki will unilaterally reduce her hours to 3 days a week. Plaintiff says she will not accept this and that she will report for work at 9am the next morning
21	2/6/16	Dr Elbarki hands the Plaintiff the second warning letter.
22	2/6/16 (8.19am)	E-mail from Dr Elbarki to the Plaintiff: The email was to the following effect: She [Ms Wright] will not be at work until 1pm, and therefore the practice will be closed until that time. “See you (Plaintiff) at 1.45pm”
23	2/6/16	Plaintiff arrives at work at 9:00am and is locked out. Plaintiff waits until 9:40am, then leaves.
24	3/6/16	Dr Elbarki directed the Plaintiff to clean the staff toilets four minutes before carrying out a restorative filling procedure at 9.30am. This was a task which was not only unnecessary at the time the Plaintiff was requested to undertake it by Dr Elbarki, but it placed the Plaintiff in the stressful and difficult position of not being able to clean the staff toilet in four minutes and then ensure that she was sterile and able to attend to a patient at 9:26am – there was simply insufficient time for the Plaintiff to accomplish both tasks. The Plaintiff not feeling well (has a headache) and wants to go home at 11:00am, Dr Elbarki agrees. By 11:15am, the Plaintiff’s headache had subsided and the Plaintiff remained at work. Later that morning the Plaintiff sought to access a patient’s record on the practice computer located in reception. As the Plaintiff was operating the mouse to access the database on the computer hard-drive, Ms Wright said to the Plaintiff “what are you doing?” The Plaintiff responded by saying words to the effect, “its ok Debbie, I don’t require your assistance”. At this point, Ms Wright exclaimed “Claire, I’m ordering you out of reception now, get out!” and then reached across the Plaintiff to push the Plaintiff’s hand off the mouse so as to retrieve the mouse, while calling out to Dr Elbarki, words to the effect “get Claire off the computer!”.  At this point, surprised, the Plaintiff said to Ms Wright “Don’t touch me”, to which Ms Wright responded, “Don’t touch me”. The Plaintiff then replied to the effect “I never touched you” to which Ms Wright responded with words to the effect, “You think you own this place, don’t you”.  The Plaintiff then said words to the effect, “No, I don’t think I own this place at all”. Following this incident, the Plaintiff then assisted Dr Elbarki in attending to patients up util the lunch break. At lunchtime, the Plaintiff went home for lunch and Dr Elbarki and Ms Wright remained at the surgery over lunch. Dr Elbarki locked the door behind the Plaintiff as she left the surgery for lunch. Shortly after lunchtime, after speaking with Ms Wright and without first hearing the Plaintiff’s account of the incident, after the Plaintiff returned to work from her one hour lunch break, Dr Elbarki wrongfully and unfairly alleged the Plaintiff ‘assaulted’ Ms Wright (which the Plaintiff denies) and suspended the Plaintiff’s employment with her. A verbal exchange to the following effect occurred between the Plaintiff and Ms Wright: Dr Elbarki (in a harsh and admonishing tone): “I have a serious matter to raise with you. You elbowed Debbie in the ribs and pushed her” Plaintiff: “No I Did not” Dr Elbarki: “Why were you in the reception?” Plaintiff: “I was looking something up on the computer” Dr Elbarki: “Why” Plaintiff: “I was looking at a patient’s record to see if treatment was carried out on 19 April” Dr Elbarki: That’s assault! You are to stay off all computers in this practice. I will not have you intimidating other staff members” Plaintiff: “I never touched her, if anything Debbie touched me” Dr Elbarki: “I am going to have to stand you down until I investigate further” Plaintiff: “What about my version?” Dr Elbarki (with a smug look on her face): “Go on then” Plaintiff: “I sought to access a patient’s record on the practice computer located in reception. As I was operating the mouse to access the database on the computer hard-drive, when Ms Wright said to me ‘what are you doing?’ I then responded by saying words to the effect, ‘its ok Debbie, I don’t require your assistance’. At this point, Ms Wright exclaimed ‘Claire, I’m ordering you out of reception now, get out!’. Ms Wright then reached across me to push my hand off the mouse so as to retrieve the mouse, while calling out to Dr Elbarki, words to the effect ‘get Claire off the computer’. At this point, surprised, I said to Ms Wright ‘Don’t touch me’, to which Ms Wright responded, ‘Don’t touch me’.  I then replied to the effect ‘I never touched you’ to which Ms Wright responded with words to the effect, ‘You think you own this place, don’t you’.  I then replied with words to the effect, ‘No, I don’t think I own this place at all’. Dr Elbarki: “You are suspended as of now until further notice. I am standing you down on full pay, keep your phone with you”. The Plaintiff then left the practice and as she walked out through reception, remarked to Ms Wright, in the presence of Dr Elbarki, words to the following effect, “Good story Debbie”, following which Dr Elbarki exclaimed: “Don’t you talk to her!”.
25	3/6/16 (5.13pm)	Dr Elbarki emails a letter to the Plaintiff regarding the alleged incident said to have occurred earlier that day.
26	6/6/16	Dr Elbarki forwards a letter to the Plaintiff (revised ‘second warning letter’).
27	7/6/16	Email from Dr Elbarki to the Plaintiff lifting the Plaintiff’s suspension and requesting the Plaintiff to present for work on Thursday morning (9 June 2016). The letter also specified that a meeting would take place at 2pm and that the Plaintiff could bring a support person, but not a Union Representative.
28	9/6/16	Meeting between Dr Elbarki and the Plaintiff regarding the suspension (Mr Cameron, the Plaintiff’s Union Representative also attends but was denied entry to the meeting by Dr Elbarki).
29	9/6/16	Plaintiff returns to work and discovers that a door chain has been installed at reception to keep her out. Also, on this day. Plaintiff is told by Dr Elbarki that she no longer has access to the practice’s computers and not to use the computers and further that she is banned from being in the reception area.
30	9/6/16	E-mail from Dr Elbarki to the Plaintiff banning her from accessing all computers including Dental for Windows, to prevent Plaintiff from accessing patient records
31	9/6/16	Plaintiff requested by Dr Elbarki to return the USB containing the three policy manuals.
32	10/06/2016	Plaintiff attends on Dr Kosenko (GP), complaining of stress and anxiety arising from work. Plaintiff has high blood pressure, chest pain, poor sleep.
33	13/6/16	Dr Elbarki hands the Plaintiff a ‘third warning letter’. Essentially in the letter, Dr Elbarki wrongfully and unfairly alleged that: -    on 9/6/16 during the meeting between Dr Elbarki and the Plaintiff, the Plaintiff refused to tell Dr Elbarki the reasons she left Dr Elbarki with a patient and went to look up patient records on 3/6/16; -    that the Plaintiff was combative and uncooperative, so Dr Elbarki was “forced” to accept Ms Wright’s version of events. In the circumstances it was unreasonable for Dr Elbarki to issue the Plaintiff with the third warning letter.
34	15/6/16 (5.02pm)	E-mail from Dr Elbarki to the Plaintiff. Dr Elbarki required the Plaintiff to read and learn the three policy manuals contained on a USB drive at home in her own time, rather than at work.
35	25/06/2016	Plaintiff prescribed Endep Dr Kosenko (GP) (Plaintiff to collect prescription)
36	28/06/2016	Plaintiff attends on Dr Isaac (GP), complaining of ongoing stress arising from work. Dr Isaac prescribes Valium 5mg.
37	29/6/16	Plaintiff completes and signs Worker’s Compensation Claim Form (but does not provide it to Dr Elbarki at this time)
38	01/07/2016	Plaintiff attends on Dr Isaac (GP), complaining of ongoing stress arising from work. Decides to lodge Workcover claim.
39	1/7/16	Dr Elbarki (at work) tells the Plaintiff: she must wear tailored pants. An oral exchange to the following effect occurred between the Plaintiff and Dr Elbarki (in respect of the Plaintiff’s work attire): Dr Elbarki: “By the way, those black pants are no longer acceptable for work and I expect you to get some tailored pants”. Plaintiff: “Like the ones you wear?”. Dr Elbarki: “Yes, no more wearing clothes that can be considered active wear”.
40	1/7/16	Dr Elbarki (at work) wrongly accused the Plaintiff of contaminating the autoclave door, by stating words to her to this effect. An oral exchange to the following effect then occurred between the Plaintiff and Dr Elbarki (following Dr Elbarki reprimanding the Plaintiff over the autoclave door): Plaintiff: “Am I going to get another warning for this?” Dr Elbarki: “Yes, I will give you a written warning. I have got plans for you. I have got plans A, B, C. I know what you want, and you are not going to get it. I am not ready to let you go yet. I am enjoying this. For your information, my whole family is involved and is behind me”.
41	4/7/16	The Plaintiff attended work in active wear pants. An oral exchange to the following effect occurred between the Plaintiff and Dr Elbarki (in respect of the Plaintiff’s work attire) in the surgery: Dr Elbarki: “I note you have failed to change your pants as per my direction on Friday. I don’t want to look at your sagging arse and VPL (visible panty line)” Plaintiff: “You have never had a problem with this before now. Plaintiff: “This is my practice and I will say and do as I want. You refusing to change your pants is insubordination”. The Plaintiff in a state of upset and distress then immediately went outside to her car and after composing herself then returned to the surgery and handed Dr Elbarki the Workcover claim form dated 29/06/2016.

42	4/7/16	The Plaintiff’s never worked again at the Mornington surgery of Dr Elbarki after this day.
43	4/7/16-8/8/22	Dr Elbarki has never apologised to the Plaintiff or withdrew the written warnings (3) which she issued to the Plaintiff
44	12/07/2016	Plaintiff attends on Dr Isaac (GP), complaining of ongoing stress arising from work.

11The defendant:

“… denies the allegations contained in paragraph 8 including the particulars and says inter alia that throughout the course of employment including in the period from about late 2015 until about 4 July 2016 the Plaintiff:

(a)failed to comply with the terms of her Contract of Employment;

(b)failed to follow lawful and reasonable directions;

(c)failed to heed repeated warnings in relation to leaving work early;

(d)threat[en]ed and physically assaulted one of her co-workers;

(e)failed to follow Standard Operating Procedures;

(f)failed to track instruments properly;

(g)used inappropriate and racist language in the workplace;

(h)fail[ed] to wear appropriate workplace attire after being lawfully directed to do so.”[3]

[3]Defence to Further Amended Statement of Claim dated 16 August 2022

12The defendant denies the allegations contained the Amended Statement of Claim and the Schedule attached thereto.

13The defendant alleges contributory negligence pleading these particulars:

“(a)it refers to and repeats the particulars subjoined to paragraph 8;

…

(d)if encountering difficulty as a result of working as alleged, then electing to continue to work without notifying the defendant insured or anyone else that she was having difficulty in doing so;

(e)failing to report to the insured that her employment was impacting her mental health.”[4]

[4]Ibid paragraph 13

14In discussion with me, Mr Broadfoot stated that he anticipated that subject to instructions, it would be unlikely that the defendant would dispute that the plaintiff suffers from various psychiatric or psychological conditions, although the nature and extent of those conditions may be in issue.  The real issue at trial, as I apprehend it, will be whether the facts as alleged to have constituted bullying occurred in the manner alleged or at all, and whether those acts constitute “bullying”.[5]

[5]At the subsequent trial, the defendant withdrew the allegations of contributory negligence

Ruling 1 - Should tendency evidence be admitted?

Ms Wendy Cole (Jackson) – admissibility not disputed

15The plaintiff seeks to rely on evidence to be given by Ms Wendy Cole (formerly Wendy Jackson) as set out in the Amended Tendency Notice dated 15 August 2022 (“the Tendency Notice”) for the purpose of establishing that Dr Elbarki had a tendency to act in a particular way.[6]  While denying the truth of the proposed evidence, the defendant concedes that the plaintiff may lead the evidence of Ms Cole for a tendency purpose.

[6]The plaintiff no longer seeks to rely on the evidence to establish that Dr Elbarki had a tendency to have a particular state of mind

16Although the admissibility of Ms Cole’s evidence is not challenged, it should be noted that the defendant challenges the accuracy and truthfulness of that evidence, a matter to be dealt with before the jury. 

17It should also be noted that the Tendency Notice sets out the evidence that Ms Cole is expected to give before the jury.  As has been accepted by the parties, some of Ms Cole’s proposed tendency evidence is not properly characterised as tendency evidence; rather, it is simply direct evidence of what Ms Cole observed of Dr Elbarki’s conduct or behaviour directed against the plaintiff.

18The Tendency Notice summarises the evidence that Ms Cole is expected to give:

“Circumstances: Ms Wendy Cole (Jackson) worked as a Dental Assistant at the same dental practice as the Plaintiff.  The dental practice was owned and operated by Dr Heba Elbarki.  Ms Cole (Jackson) worked there in the period from about December 2015 to on or about 12 May 2016.  Ms Cole witnessed the following behaviour from Dr Elbarki towards the Plaintiff:

(i)Dr Elbarki treated the Plaintiff differently to other staff in her manner and in the way Dr Elbarki spoke to her;

(i)(sic)When directing the Plaintiff to undertake various tasks related to the Plaintiff’s employment, Dr Elbarki required directed the Plaintiff to do things “her way or go home”;[7]

[7]There are two paragraphs numbered (i) in the Tendency Notice

(ii)Dr Elbarki persistently acted in a controlling, angry, and aggressive manner toward the Plaintiff;

(iii)Dr Elbarki frequently talked to the Plaintiff in a belittling and humiliating way, like talking to a child.  She would often direct the Plaintiff and Ms Cole to accomplish various tasks in the undertaking of their employment by saying to each of them (in a threatening tone), “[i]f you don’t like my way, you can go”;

(iv)Dr Elbarki admitted to Ms Cole (Jackson) that she wanted the Plaintiff ‘gone’ from the practice (ie. that Dr Elbarki wished for the Plaintiff to no longer work at the practice);

(v)Dr Elbarki would talk disparagingly about the Plaintiff (about the manner in which the Plaintiff undertook her work duties and about the Plaintiff personally) to Ms Cole (Jackson) in the Plaintiff’s absence;

(vi)Dr Elbarki regularly required the Plaintiff to perform demeaning tasks like cleaning toilets or bird excrement (without requiring other employees to undertake such tasks);

(vii)Dr Elbarki singled out the Plaintiff by not allowing the Plaintiff to speak with patients, answer phones, or access patients’ computer records;

(viii)Dr Elbarki restricted the Plaintiff access to the work premises by removing her access key to the premises in about May 2016;

(ix)Dr Elbarki occasionally acted rudely, aggressively and with hostility towards patients by speaking to them about their oral care in a condescending, dismissive, rude and irritable tone;

(x)Dr Elbarki also frequently abused and acted rudely, aggressively and with hostility, disparagingly and condescendingly towards Ms Cole, which was evident by the tone of her voice (and with the volume of her voice sometimes raised) and the constant criticism directed to the Plaintiff;

(xi)In April 2016, Dr Elbarki became angry and abusive towards Ms Cole, when Ms Cole refused Dr Elbarki’s request to falsify patient records relating to the tracking of instruments used in root canal treatment of patients;

(xii)During a meeting at work in May 2016, Dr Elbarki was swearing at the Plaintiff and verbally abusive towards her over an alleged lack of proper hygiene practices directed at the Plaintiff (and Ms Cole), which the Plaintiff denied.  In particular, Dr Elbarki was critical of the Plaintiff and Ms Cole for not ‘tracking’ instruments used in root canal treatment.  This was the first occasion when Dr Elbarki had formally raised the issue of inappropriate ‘tracking’ practices with the Plaintiff (and Ms Cole).  During the meeting Dr Elbarki behaved in an over-bearing manner towards the Plaintiff (and Ms Cole) and would not allow them to respond to her allegations and continually shut each of the Plaintiff and Ms Cole down when they attempted to speak by either loudly speaking over them or telling them to stay quiet At the conclusion of this meeting Dr Elbarki, in a terse and admonishing tone said to Ms Cole, “do not ever question my authority” Dr Elbarki also told Ms Cole (and the Plaintiff) that they each would receive a ‘formal warning’; and

(xiii) During a further meeting at work in May 2016, Dr Elbarki regarding the tracking of instruments used on patients for root canal treatment and the falsification of patient records, Dr Elbarki in a hostile tone stated to Ms Cole “to resign or work under my rules”.

(b)       Description of conduct: Bullying, harassment, and unreasonable treatment of the Plaintiff, Ms Cole and patients by Dr Heba Elbarki in a clinical or employment setting.”

19As can be seen, if Ms Cole’s evidence is accepted by the jury, it may be regarded as powerful evidence in support of the plaintiff’s claim.

Ms Tracey Rees – admissibility disputed

20The plaintiff seeks to rely on the evidence of Ms Tracey Rees for the purpose of establishing that Dr Elbarki had a tendency to act in a particular way.[8]  The defendant objects to the admission of Ms Rees’ evidence.

[8]The plaintiff no longer seeks to rely on the evidence to establish that Dr Elbarki had a tendency to have a particular state of mind

21The Amended Notice of Intention to Adduce Tendency Evidence dated 15 August 2022 relevantly states:

“1.Notice is hereby given pursuant to Section 97(1) of the Evidence Act 2008 (‘the Act’) that the Plaintiff intends to adduce ‘tendency evidence’. That is, evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way …

2.The person whose ‘tendency’ is the subject of evidence is Dr Heba Elbarki (the Defendant in person).

3.The relevant fact in issue is whether Dr Heba Elbarki bullied, harassed, and treated the Plaintiff unreasonably during the Plaintiff’s employment at her Dental Practice.

4.The tendency sought to be proved is the tendency of Dr Heba Elbarki, in a clinical or employment setting, to:

(a)act in a particular way, namely:

(i)Behave (both in actions and by words) aggressively (both overtly and passively) towards the Plaintiff, other co-workers and sometimes patients;

(i)Behave (both in actions and by words) rudely towards the Plaintiff, other co-workers and sometimes patients;[9]

[9]The document as filed has to two subparagraphs numbered (i)

(ii)Behave condescendingly towards the Plaintiff, other co‑workers and sometimes patients;

(iii)Behave with anger and/or hostility towards the Plaintiff, other co-workers and sometimes patients;

(iv)Speak to the Plaintiff, other co-workers and sometimes patients in an angry and aggressive manner;

(v)Demean the Plaintiff by requiring her to perform demeaning duties outside of her work role, or with greater frequency than other co- workers;

(vi)Prevent the Plaintiff from being able to perform her job by using a barrier chain and removing the Plaintiff’s access key into the workplace;

(vii)Prevent the Plaintiff from speaking to patients and answering phones;

(viii)Unreasonably micro-managed and restricted the Plaintiff in the undertaking of her employment duties;

(ix)Acting in a way towards the Plaintiff which in the circumstances was unreasonably over-bearing;

(x)Purport to discipline the Plaintiff without basis or procedural fairness;

(xi)Threaten the Plaintiff with the loss of her job;

(xii)Abuse, belittle, and humiliate the Plaintiff and other staff in a clinical setting; and

(xiii)Bully and harass the Plaintiff and other staff in a clinical setting.

…

5.This evidence has significant probative value, in that, it is evidence which could rationally affect the assessment by the Jury of the probability of existence of facts in issue in the Trial, namely for the period between November 2015 to on or about 12 May 2016:

(a)… [goes to state of mind, which is not pressed];

(b)The likelihood of Dr Heba Elbarki demonstrating specific forms of behaviour towards the Plaintiff (such as constantly being rude, aggressive, unreasonably critical or condescending to the Plaintiff, treating the Plaintiff differently to other employees and speaking to the Plaintiff in a hostile, disparaging and condescending tone), which could give rise and contribute to the conclusion that Dr Heba Elbarki bullied the Plaintiff in a clinical and employment setting;

(c)The likelihood of Dr Heba Elbarki bullying and harassing the Plaintiff in a clinical and employment setting;

(d)… [goes to state of mind, which is not pressed];

(e)The reasonableness of the Plaintiff’s belief that Dr Heba Elbarki bullied and harassed her;

(f)The likelihood of Dr Heba Elbarki’s bullying, harassing, and unreasonable treatment of the Plaintiff being a cause of her psychiatric injury;

(g)The likelihood that Dr Heba Elbarki did not provide a safe place of work; and

(h) The likelihood of Dr Elbarki behaving towards staff and patients on occasions that could be described as rude, aggressive, hostile and condescending.

6.The conduct of which evidence will be adduced, and particulars of the date, time and place at, and the circumstances in which that occurred, and the name of each person who saw, heard, or otherwise perceived such conduct, are:

(a)Description of conduct: Bullying, harassment, and unreasonable treatment of the Plaintiff, other staff and patients by Dr Heba Elbarki in a clinical or employment setting.

…

Witness: Ms Tracey Rees

…

Circumstances: Ms Tracey Rees worked as a Dental Nurse with Dr Elbarki at [a different practice than the one where the plaintiff was allegedly bullied] between 2008 and 2009.  Ms Rees witnessed the following behaviour from Dr Elbarki towards the Plaintiff:

(i)Ms Rees had a confrontation with Dr Elbarki.  The confrontation occurred after a consultation with a patient.  During the consul[t]ation, Ms Rees spoke to the patient which caused Dr Elbarki to ‘glare’ at Ms Rees.  After the patient left, Dr Elbarki closed the door to the surgery and became extremely angry and verbally abusive toward Ms Rees and humiliated and belittled Ms Rees by admonishing her with the statement (said in a hostile and belittling tone), “How dare you speak over me, I am the Dentist and you are just the nurse.  I am the one who speaks to the patient.  The patient gets told what I believe he or she needs to be told”.  Ms Rees was very distressed and cried as a consequence of what Dr Elbarki said and how she was treated.  Ms Rees asked her Manager that she be moved to work with another Dentist, which occurred that afternoon;

…

(v)After the confrontation referred to in the preceding paragraph, Dr Elbarki treated Ms Rees differently to other co-workers;

(vi)Following the incident with the patient referred to in sub-paragraph (i) above, Dr Elbarki: was not friendly towards Ms Rees in the usual course of the day to day interactions at Dr Elbarki’s practice; ignored Ms Rees, whenever they encountered each other at work (such as in hallways, etc); gave Ms Rees “dirty looks” or ‘glared’ at her with an angry expression usually when secluded from other employees (which made Ms Rees feel uncomfortable at work);

(vii)Dr Elbarki continued this behaviour towards until Dr Elbarki left [the practice] about four months after the confrontation.

(c)Description of conduct: Bullying, harassment, and unreasonable treatment of Ms Rees by Dr Heba Elbarki in a clinical or employment setting.

…

7.This evidence has significant probative value, that is, it is evidence which could rationally affect the assessment by the Jury of the probability of existence of facts in issue in the Trial, namely:

(a)…[goes to state of mind, which is not pressed];

(b)The likelihood of Dr Heba Elbarki demonstrating specific forms of behaviour towards the Plaintiff which could give rise and contribute to the conclusion that Dr Heba Elbarki bullied and harassed the Plaintiff in a clinical and employment setting;

(c)The likelihood of Dr Heba Elbarki bullying and harassing the Plaintiff in a clinical and employment setting;

(d)…[goes to state of mind, which is not pressed];

(e)The reasonableness of the Plaintiff’s belief that Dr Heba Elbarki bullied and harassed her;

(f)The likelihood of Dr Heba Elbarki’s bullying, harassing, and unreasonable treatment of the Plaintiff being a cause of her psychiatric injury;

(g)The likelihood that Dr Heba Elbarki did not provide a safe place of work.

8.The Plaintiff seeks to lead evidence of the following matters as going to Dr Elbarki’s tendency to behave in a certain way – namely bullying, harassing, and treating staff or co-workers and patients unreasonably in a clinical or employment setting, …:

(a)Dr Heba Elbarki has a prior history of demonstrating the following behaviours (which contribute to bullying in an employment settling towards other the plaintiff, co-workers and sometimes patients, in a clinical setting):

(i)acting aggressively (both overtly and passively) by both actions and words;

(ii)acting rudely (both in actions and by words);

(iii)acting condescendingly;

(iv)acting with anger and/or hostility;

(v)speaking in an angry and aggressive manner;

(vi)acting in a way which demeans or humiliates;

(vii) acting in a way that is unreasonably over-bearing.

(b)Dr Heba Elbarki has a prior history of bullying, harassment, and unreasonable treatment of co-workers and patients in a clinical setting;

(c)Dr Heba Elbarki bullied, harassed, and unreasonably treated the Plaintiff in a clinical and employment setting;

(d)…[goes to state of mind, which is not pressed];

(e)…[goes to state of mind, which is not pressed]; and

(f)…[goes to state of mind, which is not pressed].

9.The Plaintiff seeks to lead evidence of Dr Heba Elbarki’s prior bullying and harassing history as matters going to tendency to show that:

(a)Dr Heba Elbarki has a tendency to bully, harass, and treat staff unreasonably in a clinical setting;

(b)Dr Heba Elbarki had a tendency to bully, harass, and treat the Plaintiff unreasonably;

(c)…[goes to state of mind, which is not pressed].”

22Ms Rees was not called to give evidence on the voir dire.  The parties merely relied on the Tendency Notice as defining the parameters of her evidence.

Statutory Framework

23Section 97 of the Act provides:

“97    The tendency rule

(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—

(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and

(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”

24Tendency evidence is defined in the Dictionary of the Act:

“tendency evidence means evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection.”

25Section 95 of the Act provides:

“95    Use of evidence for other purposes

(1)Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.

(2)Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.”

Applicable principles

26In Chen v The Queen,[10] Simpson J explained the nature and purpose of tendency evidence:

[10][2011] NSWCCA 145

“96…Tendency evidence is no more and no less than evidence that is tendered to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind.  The purpose of proving that a person had a tendency to act in a particular way or to have a particular state of mind is to provide the foundation for an inference.  The inference sought to be drawn is that, on an occasion relevant to the proceedings, the person to whom it relates acted in a particular way, or had a particular state of mind.  That is a fact in issue, or a fact relevant to a fact in issue.  The foundation for the inference is the tendency evidence - that that person had a tendency to act in that (or in a closely related) way, or to have that state of mind.  That the person had that tendency may (the appropriate tests having been met) be proved by proof of that person’s:

• character;

• reputation;

• conduct; or

• a tendency that that person has or had.

Tendency evidence is, therefore, a species of circumstantial evidence.

97.The definition gives primacy to the purpose for which evidence is tendered (R v Quach [2002] NSWCCA 519; 137 A Crim R 345 at [32]). That purpose is not necessarily to be identified solely by reference to the characterisation placed upon it by the tendering party: R v RWC [2010] NSWCCA 332 at [129]-[130]. The evidence must be carefully analysed in order to ascertain what is sought to be achieved by its admission. If, properly characterised, the evidence is tendered to provide the foundation for an inference of the kind I have referred to above, then the evidence is tendency evidence.”[11]

[11]Ibid at paragraphs [96] and [97]

27Before tendency evidence can be admitted, the court must be satisfied that it is relevant to the facts in issue in the proceedings. Sections 55 and 56 of the Act provide:

“55    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.

56    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.”

28In order to be admitted, the tendency evidence must have significant probative value. “Probative value” is defined in the Act’s dictionary:

“probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

29In determining whether the evidence has significant probative value, the court must take the evidence at its highest, assuming that it will be accepted by the trier of fact.[12] 

[12]IMM v The Queen (2016) 257 CLR 300

30In Hughes v The Queen,[13] the High Court observed:

“[16].The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.  Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent.  The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue.  The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings.  The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove … .”[14]

[footnotes omitted]

[13](2017) 263 CLR 338 (Hughes)

[14]Ibid at paragraph [16]

31In Dempsey (a pseudonym) v The Queen,[15] the Court of Appeal summarised the relevant principles:

[15][2019] VSCA 224

“Tendency evidence — legal principles

56Section 97(1) of the Evidence Act relevantly provides that evidence, of a tendency that a person has or had, is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, unless (inter alia) the Court thinks that that evidence will, either by itself, or having regard to other evidence adduced, or to be adduced, by the party seeking to rely on the tendency evidence, have ‘significant probative value’…  

57Tendency evidence is a form of circumstantial evidence.  A party, relying on that evidence, seeks to establish that, because a person has or had a tendency to act in a particular way, or to have a particular state of mind, it might be inferred that that person acted in the same way, or had the same state of mind, on the occasion of the offence which the person is alleged to have committed.

58In RWC v The Queen, Simpson J described the reasoning process, involved with tendency evidence, in the following way:

‘Evidence that is tendered as tendency evidence is tendered as relevant to the guilt of the accused: as showing a tendency on his/her part to act in a particular way, or to have a particular state of mind:  from this, the prosecution will seek to have the jury draw an inference that, on the occasion or occasions in question, the accused acted in a particular way or had a particular state of mind.  Tendency evidence provides the foundation for an inference of guilt of the conduct alleged on the occasion or occasions the subject of the charge or charges.’

59Where tendency evidence is sought to be adduced, it is necessary to address four questions, namely:

(1)Whether the evidence, that is sought to be adduced, supports the particular tendency that is sought to be relied on.

(2)Whether that particular tendency itself has probative value;  that is, whether the tendency evidence is capable rationally of affecting the assessment, by the relevant tribunal of fact, of the probability of a fact in issue.

(3)Whether, as such, the tendency evidence has significant probative value in respect of that fact in issue.

(4)[the fourth matter is only relevant to criminal cases]

60In addressing the first question, it is important that the particular tendency, that is intended to be proven and relied on, be defined with some precision.  Equally, in addressing the second question, it is necessary that the issue, to which that tendency evidence is intended to be directed, be specifically identified and defined.  Where the tendency, in question, and the issue to which it is directed, are clearly identified, the question of the admissibility of that evidence is clarified.  Conversely, the less precision in their identification, the more difficult it is likely to be to determine whether the evidence has significant probative value, and to determine whether the probative value of the evidence substantially outweighs any prejudicial effect it might have on the right of the applicant to a fair trial.  More importantly, where the tendency evidence is admitted, there is less risk of its misuse by the jury.

61In Hughes, the High Court noted that the text of s 97(1)(b) of the Evidence Act does not include a reference to similarity, or to the concepts of ‘underlying unity’, ‘pattern of conduct’ or ‘modus operandi’. The High Court held that the omission of those familiar common law concepts (which underpinned the admissibility of similar fact evidence) reveals a legislative intention that the admissibility of evidence under s 97(1)(b) is not limited to evidence which contains those features. The Court further noted that the probative value of the tendency evidence, that is sought to be relied on, would depend on the nature of the fact in issue which the tendency evidence is adduced to prove. Thus, the plurality stated:

‘Commonly, evidence of a person’s conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.’”[16]

[16]Ibid at paragraphs [56]-[61].  References to the additional principles applicable to tendency evidence in criminal cases have been deleted from the passages cited

[footnotes omitted]

32In the recent case of Klein (a pseudonym) v The King,[17] the Court of Appeal addressed how a court is to make an assessment of “significant probative value”:

[17][2022] VSCA 249

“85In Hughes the evaluation of ‘significant probative value’ was stated to involve consideration of two separate but related matters –

(a)the extent to which the evidence supports the tendency; and

(b)the extent to which the tendency makes more likely the facts constituting the charged offence.

86In multiple complainant cases, such as the present case, the High Court in Bauer[18] makes clear that for evidence that an accused has committed a sexual offence against one complainant, to be significantly probative of the accused having committed a sexual offence against another, there must be some feature of or about the offending which links the two together.

[58]    In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together.  More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant.  And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant.  If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.

[59]    Hughes illustrates the point.  The case involved multiple complainants each alleging that the accused had committed one or more sexual offences against her, where the offences that were alleged to have been committed against some groups of complainants were in significant respects different in kind and circumstance from the sexual offences alleged to have been committed against each other group of complainants.  It was not disputed that evidence of each sexual offence alleged to have been committed against a complainant was admissible as tendency evidence in proof of other sexual offences alleged to have been committed against that complainant, even though, in some cases, the nature of the offending differed significantly from one charge to another.  The issue was how much if any of each complainant’s evidence of the sexual offences and uncharged acts alleged to have been committed against her was admissible as tendency evidence in proof of the sexual offences alleged to have been committed against the other complainants.  And the case was ultimately decided by majority on the basis that, taken as a whole, the evidence of each alleged sexual offence and uncharged act demonstrated a common feature that a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection.  In the view of the majority, such was the significance of that common feature that evidence of each alleged sexual offence and uncharged act had significant probative value in proof of each other charged offence.”

[18]R v Bauer (a pseudonym) (2018) 266 CLR 56

The submissions

33Mr Hayes submits that Ms Rees’ evidence is relevant only to paragraph 8(d) of the Statement of Claim.  It will be recalled that this paragraph alleges bullying throughout the course of the plaintiff’s employment in the period from approximately late 2015 until on or about 4 July 2016 as a result of repetitive and sustained conduct perpetuated by Dr Elbarki in that the plaintiff was subjected to repeated and sustained humiliation by demeaning, angry and aggressive words and actions by Dr Elbarki.  The sub-particulars refer to Schedule A.  In discussion, Mr Hayes identified items 6, 7, 11, 17, 24, 39, 40 and 41 in that schedule as being relevant to the proposed tendency evidence of Ms Rees.  I have already set out Schedule A in full above.  I shall recap the allegations of the relevant items:

34Item 4 concerns a warning letter issued by Dr Elbarki after the plaintiff left work early.  The plaintiff alleges that the circumstances did not warrant such a letter.

35Item 7 asserts that Dr Elbarki “unreasonably admonished the Plaintiff over the alleged personal use of her mobile phone at work”.

36Item 17 asserts that Dr Elbarki belittled the plaintiff, micro-managed her, treated her differently to other employees, and was needlessly overbearing and disrespectful towards the plaintiff.  Examples cited include standing in close proximity to her, watching her reading work manuals, handing back instruments said to be not cleaned properly, requiring the plaintiff to undertake cleaning duties such as removing possum excrement, and following the plaintiff around.

37Item 24 asserts that Dr Elbarki required the plaintiff to clean the toilets only minutes before she was required to assist in surgery, required the plaintiff to remain at work when she had a headache, denied the plaintiff access to the computer at the reception desk, and then falsely accused the plaintiff of assaulting a co‑worker.

38Item 39 asserts that on 1 July 2016 Dr Elbarki directed the plaintiff to wear tailored pants.

39Item 40 asserts that Dr Elbarki wrongly accused the plaintiff of contaminating the autoclave door, following which she reprimanded the plaintiff.

40Item 41 asserts that on 4 July 2016 when the plaintiff wore “active wear pants” to work, Dr Elbarki stated: “I note you have failed to change your pants as per my direction on Friday.  I don’t want to look at your sagging arse and VPL (visible panty line)”.  When the plaintiff remonstrated, Dr Elbarki allegedly told the plaintiff: “This is my practice and I will say and do as I want.  You refusing to change your pants is insubordination”.

41Mr Hayes submits that Ms Rees’ evidence portrays Dr Elbarki as a bully.  Asked to explain the relevance of the proposed tendency evidence to the facts in issue, Mr Hayes stated:

“…so we say that what this relevant to is the type of person who she is and the type of behaviour that she engaged in.  While the plaintiff is the plaintiff in this case, really this is a case where Dr Elbarki is the person on trial here in terms of how it was that she treated the plaintiff in terms of causing the plaintiff’s psychological injuries.

We say that when you look at how ‘act in a particular way’ is defined, and it goes on further on to say that she acted in a way that was unreasonably over-bearing, she abused, belittled and humiliated the plaintiff and other staff in a clinical setting, bullying and harassing the plaintiff and other staff in a clinical question.  These are all matters that are the question of fact ultimately for the jury but how we’d like to put the case, Your Honour, is that whilst she treated the plaintiff in an absolutely appalling and unreasonable way and it’s no surprise that it led to the injuries the plaintiff sustained, we say that in this instance, she treated others the same way.  She’s that type of person acting in a particular way.

She’s the sort of person who’s aggressive, she’s over-bearing.  She acts with hostility towards other workers and patients.  That’s the sort of person we are dealing with, a particularly unattractive, over-bearing - essentially, Your Honour, the boss from hell and that’s the plaintiff’s case.  It’s all of those features, that when you look at it, the way in which she behaved, it’s her behaviour is acting in a particular way.

She acted in a way towards the plaintiff and she had a tendency to act in that way towards other co-workers and patients.  So everything hinges on that.  That’s the point she is.  Whether she was like that between 27 January or late 2015 and 4 July 2016, or whether she was like that 10 years ago, that’s who that woman is and we say that in this instance, Your Honour, that’s why this tendency evidence, to the extent that the plaintiff has been able to find evidence that supports her case that Dr Elbarki behaves in that way.

She’s aggressive, she’s hostile, she’s over-bearing, unreasonably so and it goes on to say, Your Honour, in paragraph 5 that the probative value of that is that that evidence about that tendency, Your Honour, has a way in which it could rationally affect the assessment of a jury as to the probability of those facts, as to how she treated the plaintiff.  Is she that type of person? In a clinical setting, is that how she behaves at work? When I’m putting all this, to be fair to Dr Elbarki, some people, Your Honour, they are different in a work setting than they are personally and we say that in a professional setting, which is how this is being put, we say that Dr Elbarki has form and the plaintiff is entitled to rely upon it.”[19]

(sic)

[my emphasis]

[19]Pretrial transcript (PT) 31-32

42Leaving aside whether tendency evidence can be adduced to define “the type of person”[20] who is said to have a tendency to act in a particular way, Mr Hayes identified the alleged similarities of conduct that Dr Elbarki displayed towards the plaintiff and Ms Rees and where relevant, to Ms Cole:

(a)   The conduct occurred in a work setting;

(b)   Dr Elbarki was in a position of authority as dentist, although she was a co‑worker;

(c)   The plaintiff, Ms Cole and Ms Rees were dental nurses, working with Dr Elbarki;

(d)   Dr Elbarki spoke to the plaintiff, Ms Cole and Ms Rees in an angry and hostile tone;

(e)   Dr Elbarki admonished the plaintiff, Ms Cole and Ms Rees in a hostile and belittling manner, verbally abusing them rather than offering polite, constructive criticism;

(f)    Dr Elbarki altered the way she treated Ms Rees and the plaintiff;

(g)   Dr Elbarki “froze out” both the plaintiff and Ms Rees; and

(h)   Dr Elbarki’s behaviour to all three dental nurses was overbearing.

[20]See for example R v OGD (No 2) (2000) 50 NSWLR 433; Martin v State of Tasmania [2008] TASSC 66; Qualtieri v The Queen [2006] NSWCCA 95; R v Chan [2002] NSWCCA 217; R v Conway (2000) 98 FCR 204; Gipp v The Queen (1998) 194 CLR 106; R v ATM [2000] NSWCCA 475; FMT v The Queen [2011] VSCA 165; R v M, BJ (2011) 110 SASR 1

43On behalf of the defendant, Mr Dunstan submits that Ms Rees’ evidence was irrelevant, it having no probative value when regard is had to the issues at trial.  In summary, he submitted:

(a)   The events alleged by Ms Rees occurred up to 7 or 8 years before the subject matter of the plaintiff’s allegations occurred;

(b)   Dr Elbarki was not Ms Rees’ employer at the time, nor was she her manager.  She was merely a co-worker;

(c)   The events affecting Ms Rees occurred at a different dental practice;

(d)   Ms Rees’ evidence is not relevant to any of the particulars pleaded in paragraph 8 of the amended Statement of Claim; and

(e)   “Bullying” consists of repeated unreasonable behaviour towards an employee that carries a risk to health and safety and having regard to all the circumstances victimises, humiliates, undermines or threatens the employee.  No pattern of behaviour or conduct emerges to say that Ms Rees was bullied since Ms Rees would give evidence of a “one-off” event after a disagreement about the treatment of a patient.[21]

[21]PT 78

44Mr Dunstan submits that should the evidence be found to be relevant, it should be excluded under s135 of the Act on the grounds that the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendant, be misleading or confusing, or cause or result in undue waste of time.

45On the other hand, Mr Hayes submits that there is no danger of the kind referred to in s135 of the Act and, accordingly, the evidence ought not be excluded if it is found to be otherwise admissible.

46Mr Hayes submits that Ms Rees’ evidence is highly probative because the conduct alleged by the plaintiff is contested.  If the evidence from both parties is otherwise equally balanced, Ms Rees’ evidence might well tilt the scales in favour of the plaintiff.  He submits that it matters not that the plaintiff has the benefit of the eye-witness account together with the tendency of Ms Cole: If the evidence is admissible, he is entitled to use it.

Discussion

Is Ms Rees’ evidence relevant?

47It will be remembered that the parties relied on the Tendency Notice as containing the extent of Ms Rees’ proposed evidence.  I repeat what the Tendency Notice states:

“Circumstances: Ms Tracey Rees worked as a Dental Nurse with Dr Elbarki at [a different practice than the one where the plaintiff was allegedly bullied] between 2008 and 2009.  Ms Rees witnessed the following behaviour from Dr Elbarki:

(i)Ms Rees had a confrontation with Dr Elbarki.  The confrontation occurred after a consultation with a patient.  During the consul[t]ation, Ms Rees spoke to the patient which caused Dr Elbarki to ‘glare’ at Ms Rees.  After the patient left, Dr Elbarki closed the door to the surgery and became extremely angry and verbally abusive toward Ms Rees and humiliated and belittled Ms Rees by admonishing her with the statement (said in a hostile and belittling tone), “How dare you speak over me, I am the Dentist and you are just the nurse.  I am the one who speaks to the patient.  The patient gets told what I believe he or she needs to be told”.  Ms Rees was very distressed and cried as a consequence of what Dr Elbarki said and how she was treated.  Ms Rees asked her Manager that she be moved to work with another Dentist, which occurred that afternoon;

(ii)After the confrontation referred to in the preceding paragraph, Dr Elbarki treated Ms Rees differently to other co-workers;

(iii)Following the incident with the patient referred to in sub-paragraph (i) above, Dr Elbarki: was not friendly towards Ms Rees in the usual course of the day to day interactions at Dr Elbarki’s practice; ignored Ms Rees, whenever they encountered each other at work (such as in hallways, etc); gave Ms Rees “dirty looks” or ‘glared’ at her with an angry expression usually when secluded from other employees (which made Ms Rees feel uncomfortable at work);

(iv)Dr Elbarki continued this behaviour towards (sic) until Dr Elbarki left [the practice] about four months after the confrontation.

(c)Description of conduct: Bullying, harassment, and unreasonable treatment of Ms Rees by Dr Heba Elbarki in a clinical or employment setting.”

48Unfortunately, there is no detail as to what Ms Rees said to the patient during the consultation, the manner in which she spoke, whether what she said was appropriate in all the circumstances, and whether admonishment was justified.  I cannot speculate about the subject matter of that discussion, other than to say that it would not be open to a jury to find one way or the other whether the “confrontation” that followed the consultation, which took place behind closed doors in the absence of the patient and in the absence of anyone else, was no more than justified disciplining, albeit perhaps in a “hostile and belittling tone”.

49If the evidence amounts to no more than on one occasion Dr Elbarki admonished Ms Rees in a hostile and belittling tone, it adds little if anything to the plaintiff’s claim of bullying as set out in paragraph 8(d) of the amended Statement of Claim and the identified items in Schedule A to that document.

50I am unable to find that the evidence has any probative value to the facts in issue.

51If the evidence has some relevance, in my judgment it fails the test set out in s97(1)(b) of the Act – that is to say, I do not think that the evidence will, either by itself or having regard to other evidence to be adduced by the plaintiff, have significant probative value.

52For the reasons stated above, I do not consider that the evidence of this one-off incident involving Ms Rees contains adequate detail to say that the conduct alleged was tantamount to bullying against Ms Rees.  Nor do I consider that the evidence supports the plaintiff’s allegation of bullying against her in the manner alleged in the relevant parts of the pleadings.  In short, the evidence lacks the capacity to enable the court to evaluate it as having significant probative value to the facts in issue.

53If I am wrong, I would have found that the court should refuse to admit the evidence under s135 of the Act. I would be satisfied to the requisite degree that the probative value of Ms Rees’ evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendant or be misleading or confusing or cause or result in undue waste of time.

Conclusion and Orders

54The proposed tendency evidence is inadmissible.

55The evidence would in any event be excluded in the exercise of discretion under s135 Evidence Act 2008.

56I so rule.

Ruling 2 - Should evidence regarding the acceptance of the Plaintiff’s WorkCover claim and continued payment of statutory entitlements be admitted into evidence?

The proposed evidence

57Mr Hayes seeks an admission from the defendant that:

“The plaintiff sustained a stress related injury in the course of her employment with Elbarki Nominees Pty Limited between 27 January 2016 and 4 July 2016 and that the plaintiff continues to suffer from the effects of that stress related injury from the time it was sustained until the date of trial.”[22]

[22]Exhibit B, outline of Plaintiff’s submissions, paragraph 3

58The defendant declines to make the admission.

59In these circumstances, Mr Hayes seeks to tender the plaintiff’s WorkCover claim, and a number of other documents (which I shall soon list).  He wishes to submit to the jury that they can infer from the evidence he proposes to tender that the defendant has, by its conduct, admitted that the plaintiff sustained a stress-related injury (or injury simpliciter) in the course of her employment with Elbarki Nominees Pty Ltd between 27 January 2016 and 4 July 2016 and that the plaintiff continues to suffer from the effects of that stress-related injury from the time it was sustained until the date of trial.

60Initially, Mr Hayes proposed to adduce the following oral evidence from the plaintiff, although he no longer intends to do so:

“4On or about 1 August 2016, Karen Beasley, a representative of Gallagher Bassett Services [the employer’s authorised agent], telephoned me.  We had a conversation to the following effect:

Karen:I am calling to advise you of the outcome of your WorkCover claim.  We need to determine a minimum of 3 or 4 incidents of bullying.  We have considered the following matters: being locked out of the Practice, chained out of the reception, and the refusal of allowing a Union Member to attend a disciplinary meeting with you.  On these grounds, your claim has been accepted, and compensation payments will be made to you, backdated to the time you submitted your WorkCover claim.

Claire:        Thank you for your call.”[23]

[23]Exhibit A, Affidavit of the plaintiff dated 23 May 2023, paragraph 4

61I asked Mr Hayes what use could be made of the “admission” in light of the above representation from the defendant’s authorised agent that the claim had been accepted on the three identified matters, namely (1) the plaintiff being locked out of the practice; (2) the plaintiff being denied access to reception when that area was chained off; and (3) the plaintiff being refused the opportunity to have a Union Member attend a disciplinary meeting with her:

HER HONOUR:      “… So the question I have for you is, if the defendant has accepted liability on the basis of those three items, how useful is it to the overall claim that the defendant has made this global admission, which you would say - you’re not really going to be able to pin causation to those three acts, are you?

MR HAYES: Your Honour misapprehends the nature of how the admission is to be used, with the greatest of respect….because this is just evidence also in respect of the claim form, there was Dr Elbarki’s response and then there is the ongoing - that’s a very low threshold.  There’s a lot more than that and, Your Honour, we say that it’s that and more and we say in the course of this, Your Honour, the documents clearly infer that there have been payments made for seven years.  It simply goes to the fact that - it doesn’t trespass into liability, unless - - -

… Liability is not in issue.  The payment’s made simply if there is an injury at work in the course of employment and that worker has suffered loss, whether it be pain and suffering or economic loss, pecuniary loss in the words of the legislation, as a result of that workplace injury.  We say it goes no higher than the fact that she got hurt at work and she’s still suffering from the effects of that injury.  That’s it.

…

[H]aving had the opportunity to take on board Your Honour’s question.  Your Honour, the relevant passage, taking Your Honour’s question, had the defendant accepted liability on the basis of those three items overall, how useful is it to the overall claim that the defendant has made a global admission, as we understand Your Honour’s question, we say that they are just simply part of the - it’s just part of the evidence, along with all of the other documents that comes back to the admission sought in paragraph 3 of the plaintiff’s submissions, Your Honour.  That’s all it goes to.  We accept the limitation of the admission.  It’s not an admission to liability overall, it’s not a complete admission as to causation; it’s just simply an admission of certain things that happened by conduct that the plaintiff suffered a stress related injury at work and that she still suffers from it.  Returning to the relevant passage - - -

HER HONOUR:      Sorry, you said you don’t want to use it as an admission of liability and not an admission of causation, is that what you said?

MR HAYES: No, I said the admission we seek is in paragraph 3.

HER HONOUR:      No, I wanted you to repeat what you said, that it was not an admission -

MR HAYES: It’s not an admission of liability overall, plainly not, and we don’t seek that admission either.  There’s certainly no way we would go to the jury to say that it is.  Secondly though, we do say it’s an admission - - -

HER HONOUR:      So did you say it was not an admission on causation after that?

MR HAYES: No, we say it’s an admission by conduct which goes to the question of causation and loss to be considered - an admission by conduct, along with all of the other evidence, namely, the ongoing acceptance of the plaintiff’s claim for medical and remedial expenses and the other evidence referred to in the documents that remain, Your Honour, that we say - and it is consistent with the direction that has to be looked at, with all of the other evidence, and that’s the admission as to whether or not there is causation.  An admission by conduct, and we say this is relevant to the issues of causation and loss, is just one of many pieces of evidence that goes to the question of causation.  It’s the plaintiff’s case that there was a course of conduct of which these three things are one of other matters that occurred but it doesn’t limit her to those three things at all.  Indeed, on the voir dire before Your Honour, there’s no evidence explaining what might otherwise be speculated that only these three things and nothing else was accepted.  There’s nothing of that nature.  It’s simply just in the course of a phone call on a reading of this, as an example of why it is that the claim is being accepted.  So on that footing, Your Honour, we say that the documents alone - I will come at it another way.  Having reflected on that passage, Your Honour, the reference to the word ‘bullying’ and having fallen from Your Honour - I hope I’m not doing Mr Broadfoot a disservice.  If he’s put this point against me and I haven’t recalled it, then I don’t wish to do him a disservice but we understand that if that is going to be the plaintiff’s word, that this might be construed in a way that it’s an admission of liability overall, there is that danger, I won’t lead that evidence, so we don’t rely upon it at trial.  It’s obviously been referred to here in the course of the voir dire and the plaintiff went first and put on her evidence.  There’s no evidence in response and it seems unusual that the plaintiff would be in the position that the defendant might want the lead evidence at trial that hasn’t been led at a voir dire, to otherwise go and explain its conduct which would actually go to the question of the admissibility of the admission.

HER HONOUR:      So you would not rely on that conversation on 1 August?

MR HAYES: No.

HER HONOUR:      You won’t adduce that evidence?

MR HAYES: No, I won’t adduce it.  No, I won’t adduce that evidence, Your Honour. …”[24]

[24]PT 350 - 355

62The documents that Mr Hayes first proposed to tender are attached to the affidavit of the plaintiff dated 23 May 2023, tendered as exhibit A and entitled “Admission of Liability Documents”.  Mr Hayes has since revised the list of documents.  I shall list all of the documents in the table below, striking through the documents no longer relied upon.

“Admission of Liability Documents

No	Document	Date	Page
1	Workers Injury Claim form (PCB 318-319)	29-06-2016	4-5
2	Certificate of Capacity (PCB 320-321)	01-07-2016	6-7
3	Employer Injury Claim Report (PCB 331-332)	07-07-2016	8-9
4	Timeline of Events According to Dr Heba Elbarki provided to insurer with claim report (PCB 451-453)	07-07-2016	10-12
5	Letter to Plaintiff acknowledging receipt of claim (To be added to PCB)	12-07-2016	13-14
6	Letter to Dr Elbarki acknowledging receipt of claim (To be added to PCB)	12-07-2016	15-16
7	Insurer letter of request for circumstance investigation (To be added to PCB)	14-07-2016	17-22
8	Report of Dr Chris Grant (DCB 4 7-52)	22-07-2016	23-28
9	Circumstance Investigation Report (To be added to PCB)	01-08-2016	29-63
10	Notice to employer of acceptance of claim for compensation (To be added to PCB)	05-08-2016	64-69
11	Notice of acceptance of claim for compensation to Plaintiff (To be added to PCB)	05-08-2016	70-77
12	Approval of Rehabilitation Services (To be added to PCB)	12-08-2016	78-79
13	Recovre Transferrable Skills Analysis (DCB 75-80)	30-08-2016	80-85
14	Insurer approval of Remedial Massage (To be added to PCB)	09-09-2016	86-87
15	Medical Report of Robert Wilks (PCB 178-183)	02-11-2016	88-92
16	Letter to Elbarki Nomineees - Contact to progress claim (To be added to PCB)	09-12-2016	93-93
17	Letter to Elbarki Nomineees - Contact to progress claim (To be added to PCB)	18-01-2017	94-94
18	Medical Report of Robert Wilks (PCB 184-188)	07-02-2017	95-99
19	Notice to Plaintiff advising no changes to entitlements following Dr Wilkes assessment (To be added to PCB)	08-03-2017	100-101
20	Insurer approval of Remedial Massage (To be added to PCB)	22-03-2017	102-103
21	Insurer letter approving super contributions (To be added to PCB)	20-04-2017	104-105
22	Surveillance activity report requested by insurer (To be added to PCB)	04-05-2017	106-113
23	Letter to Elbarki Nomineees - Contact to progress claim (To be added to PCB)	19-05-2017	114-114
24	Survelliance activity report requested by insurer (To be added to PCB)	12-07-2017	115-139
25	Insurer approval of gym (To be added to PCB)	08-08-2017	140-142
26	Notice advising entitlement to superannuation contributions (To be added to PCB)	08-08-2017	143-148
27	Letter to Elbarki Nomineees - Contact to progress claim (To be added to PCB)	09-08-2017	149-149
28	Notice advising entitlement to superannuation contributions (To be added to PCB)	24-08-2017	150-154
29	Medical Report of Robert Wilks (PCB 189-192)	19-09-2017	155-158
30	Impairment Benefit Claim Form (To be added to PCB)	02-10-2017	159-160
31	Insurer Approval of Rehabilitation Services (To be added to PCB)	05-10-2017	161-162
32	Notice advising no changes to entitlements following Dr wilkes assessment (To be added to PCB)	05-10-2017	163-163
33	Insurer letter approving remedial massage (To be added to PCB)	10-10-2017	164-165
34	Insurer approval of remedial massage and myotherapy (To be added to PCB)	12-10-2017	166-167
35	Recovre 130 week vocational assessment report (DCB 87-105)	05-02-2018	168-186
36	Report of Dr Damodaran (PCB 193-202)	26-02-2018	187-196
37	Notice to Plaintiff advising no changes to entitlements following Dr Damodaran’s assessment (To be added to PCB)	02-03-2018	197-197
38	Insurer approval of Swimming and gym program (To be added to PCB)	20-03-2018	198-200
39	Impairment Assessment - Report of Dr Tagkalidis (DCB 37-46)	16-07-2018	201-213
40	Notice of Entitlement (To be added to PCB)	26-07-2018	214-222
41	Report of Dr Chris Grant (DCB 53-57)	17-09-2018	223-227
42	Report of Dr Chris Grant (DCB 58)	19-09-2018	228-228
43	Insurer approval of gym program (To be added to PCB)	22-01-2019	229-230
44	Insurer approval of gym and swimming program (To be added to PCB)	03-04-2019	231-232
45	Insurer approval of gym and swimming program (To be added to PCB)	01-10-2019	233-234
46	Report of Dr Gregor Schutz (PCB 203-210)	18-07-2020	235-242
47	Supplementary report of Dr Gregor Schutz (To be added to PCB)	07-12-2020	243-244
48	[Redacted] Summary of weekly payments paid to the Plaintiff as at 20.05.2023 (To be added to PCB)	245-245”

63I shall return to the documents sought to be tendered in more detail later.

Applicable principles

64Sections 81, 87 and 88 of the Act provide:

“81    Hearsay and opinion rules—exception for admissions and related representations

(1)The hearsay rule and the opinion rule do not apply to evidence of an admission.

(2)The hearsay rule and the opinion rule do not apply to evidence of a previous representation—

(a)that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and

32Second, Gallagher & Bassett promptly investigated the claim as to the circumstances leading up to the cessation of the Plaintiff’s employment with Elbarki and which included the Plaintiff taking a period of medical leave (for stress) during May 2016, as well as to the bona fides of her psychological injury.  At the time (and at no time since), no evidence to disturb the Plaintiff’s contention that she suffered a stress-related injury in the course of her employment, was obtained by Gallagher & Bassett’s investigator, Camp & Associates (or from any other source).

33Third, Elbarki via its agent Gallagher and Bassett informed the Plaintiff on numerous occasions: that it had accepted her claim; of her available entitlements and their continuation; and, that it had approved payments related to her claim.

34Fourth, Gallagher & Bassett had the Plaintiff medically examined and received opinions in the form of medical reports from their appointed medical experts as to the Plaintiff’s alleged injury and whether or not she sustained that injury in the course of her employment.  The reports delivered an affirmative conclusion to both propositions.

35Fifth, Elbarki was kept informed by Gallagher & Bassett throughout this period.

36Sixth, for the entire period from the cessation of the Plaintiff’s employment with Elbarki until the present date, Gallagher & Bassett had the opportunity to terminate the payments being made to the Plaintiff, but never did.  This is especially so at the time of the Gallagher & Bassett’s 130 week review of the Plaintiff’s weekly payments, which would have been in early 2019.

37Seventh, since the cessation of her employment with Elbarki, over a period of seven years the Plaintiff has received from Elbarki’s insurer, weekly payments totalling $220,360 and the payment of medical and remedial expenses totalling $34,615.38

38Eighth, the payments Elbarki’s insurer made to the Plaintiff were never made with any caveat or qualification that they were without prejudice to Elbarki disputing the Plaintiff’s entitlement to compensation or common law damages, particularly with respect to the issues of causation and loss.

39Ninth, throughout this period, Gallagher & Bassett has received numerous certificates of capacity of the Plaintiff, which certify that the Plaintiff is not fit for work.  Elbarki has not disputed these certificates and has continued to make weekly payments to the Plaintiff and attend to the payment of her medical and remedial expenses.  By informing itself of the certificates and not disputing the statements contained therein, plainly Gallagher & Bassett and Elbarki’s insurer (and therefore Elbarki) accept that the Plaintiff is not capable of working due the psychological injury she sustained in the course of her employment with Elbarki.”[90]

[90]Exhibit B, paragraphs 31-39

199In his written submissions, Mr Hayes referred to the circumstances investigation report commissioned by Gallagher & Bassett and contended that the authorised agent clearly took it into account when accepting the plaintiff’s WorkCover claim.  The agent must also have taken into account all of the reports it continued to receive in support of the plaintiff’s application for approval of various treatments and services.  He contended:

“41 … Such conduct on the part of Gallagher & Bassett (while not inferring overall liability to Elbarki for the Plaintiff’s injury in any respect – ie. breach of duty of care) betrays an informed acceptance by Gallagher & Bassett that the Plaintiff is genuinely injured (loss) and that she sustained that injury in the course of her employment with Elbarki (causation).

42Accordingly, Elbarki has admitted that the Plaintiff sustained a stress-related injury in the course of her employment with Elbarki between 27 January 2016 and 4 July 2016.”[91]

[91]Exhibit B, paragraphs 41-42

200With regard to the contention that the admission is relevant to the question of the plaintiff’s loss and damage, Mr Hayes submits:

“43Likewise, for the reasons advanced above, the admission evidence on its own also betrays a strong inference that [the plaintiff] suffered from and continues to suffer from the stress-related injury she sustained in the course of her employment with Elbarki.

44The strongest evidence in support of this contention is that the Plaintiff has received weekly payments, unabated and without qualification for a period of almost seven years, when Gallagher & Bassett could have terminated those payments at any time.

45Such a proposition is also consistent with the overall weight of the medical evidence (obtained by Gallagher & Bassett as a result of having the Plaintiff examined by their medical experts, as included in CLV-1, and which accepts the Plaintiff’s psychological injury), and is also supported by Gallagher & Basset for the entire period continuing to pay for the Plaintiff’s medical and remedial treatment (including treatment in the form of massages, swimming and gym programs).

46Accordingly, Elbarki has admitted that the Plaintiff suffered from and continues to suffer from the stress-related injury she sustained in the course of her employment with Elbarki between 27 January 2016 and 4 July 2016.”[92]

[92]Exhibit B, paragraphs 43-46

201Addressing the probative value of the evidence relevant to s135 of the Act, Mr Hayes submitted:

“49The probative value of the evidence relied upon in support of the admission to be relied upon by the Plaintiff (which is modest in its terms) is substantial and very significant.  It goes to the very heart of the issues of causation and loss, both of which are contested by the Defendant.  In a case where these issues are contested, the admission is a vital piece of evidence in the Plaintiff’s case which it ought not be deprived of in the conduct of a fair trial.  Bearing in mind the remarks of Ashley JA in Ansett (‘such an admission should ordinarily be regarded as very significant’), John Dixon AJA in Fokas (‘a very significant admission’) and Priest, Beach JJA and Cameron AJA in Sedanoui (sic) (‘a significant admission’), it is ‘high value’ evidence to the Plaintiff and her case against the Defendant.”[93]

[93]Exhibit B, paragraph 49

202Mr Hayes submits that any dangers of the kind referred to in s135 of the Act can be overcome by appropriately framed directions to the jury along the lines of the direction given by Tsalamandris J in Sepe.  As was put on behalf of the plaintiff:

“51… such a submission ignores that causation and breach of duty of care are separate elements in the Plaintiff’s claim and require separate directions and consideration and the important role played by the trial judge in directing the jury.  No prejudice could arise as no capable counsel or judge would conflate the issues of breach of duty of care and causation, thereby confusing or misleading the jury.  It is a nonsense to suggest that the proper consideration by the jury (properly directed) of an element to the Plaintiff’s claim, here, causation, which includes evidence supporting an admission together with the other evidence going to this issue, would be a distraction to the jury when considering other elements of the Plaintiff’s claim such as breach of duty of care.  The following rhetorical proposition highlights the folly of this contention: While the Plaintiff was injured in the course of her employment, the question remains, how was she injured and was Dr Elbarki negligent in causing that injury? Such a rhetorical proposition demonstrates how these two different elements to the Plaintiff’s claim are neatly separated and that the Defendant’s ongoing contention as to breach of duty of care remains capable of distinct and coherent argument.

52.Any other suggestion that a jury could be prejudiced by the fact that a jury might ascertain that an insurer was behind the payments made to the Plaintiff to date invites undue suspicious speculation that jurors are so naïve that: they would not know that the large majority of employers are insured, or of the compulsory requirement for employers to insure workers against injury; and that even in light of that knowledge, they would not properly and faithfully undertake their task as jurors as directed (noting that each one of them swears an oath or affirmation to do so).  If there was any lingering doubt that such evidence may infer an insurer is standing behind Elbarki, such a concern can be easily addressed by a firm direction by the Court to the Jury that it is irrelevant that Elbarki may or may not be insured in respect of the Plaintiff’s claim and that the jury should not speculate as to either possibility and must not allow such an issue to inform any aspect of their deliberations.  In any event, such an issue was not a concern to Tsalamandris J in Sepe, as is illustrated by her charge to the jury on the evidence going to the admission sought to be relied upon by the Plaintiff, where specific mention is made to the Workcover insurance scheme (given the references to it in the evidence) and how the jury ought to treat this evidence.  Likewise, in Cairns, it is presumed that Rush J was also able to readily deal with such concerns which no doubt presented similar issues to those encountered in Sepe and the present case before this Court.

53.Additionally, unlike the matter of Fisher v Multrans and Another,[94] the present case only concerns one defendant and there is no risk of the admission being misused against a third party.

[94]Appears as footnote 46 in the submission. [2022] VCC 2246

54.Further, the admissions sought by the Plaintiff and the evidence relied thereupon in this matter do not unlawfully trespass on the provisions of the applicable accident compensation legislation by informing a jury of monetary thresholds or that the injury which is the subject of the proceeding has been deemed or found to be a serious injury.

55.Otherwise, the remaining statutory considerations under section 135 are easily cast aside:

(a)Sub-section (b): misleading or confusing.

The Plaintiff repeats and relies upon the submission advanced in the preceding paragraphs given the overlap between the issues of prejudice and misleading/confusing.

Damages trials such as the present one are the ‘bread and butter’ of the common law jurisdiction of this court.  Juries regularly hear and decide upon cases requiring directions far more complicated than the present matter – one need look no further than defamation cases in the civil division and many categories of cases in the criminal division which require often specific and nuanced directions on matters such as intention, alternative verdicts and evidence.  Additionally, the court is assisted in the present matter by the case-specific model directions contained in the Civil Juries Charge Book.

Juries are regularly directed on the issue of admissions and the bench books of this court are able to provide assistance to this court to ensure the jury in the present matter is properly directed in respect of the admissions sought to be relied upon by the Plaintiff.

Any suggestion of complexity is further undermined by the fact that the Defendant has not led evidence to rebut the admission evidence sought to be relied upon by the Plaintiff.  What this court is then left with is a chronological set of documents which infer an admission by conduct by the Defendant which is left unexplained by the Defendant.

Thus, here when dealing with the issues of causation and loss, the jury may be easily directed as follows:

(i)The nature of an admission and what it is;

(ii)The admission sought by the Plaintiff;

(iii)The evidence relied upon by the Plaintiff in support of the admission;

(iv)That the admission evidence can only be used in respect of the jury’s determination of the issues of causation and loss;

(v)The inferences which arise from the Defendant failing to call evidence to rebut or clarify the admission;

(vi)The question of weight – the evidence in respect of the admission must be looked at in conjunction with all other evidence addressing the issues of causation and loss – it is for the jury to attach such weight to the admission as it sees fit; and

(vii)A strong direction concerning references in the relevant evidentiary material to insurers and the Workcover scheme.

Finally, issues of prejudice to the Defendant or the Jury being misled or confused by admission evidence were of no concern to Tsalamandris J in Sepe or Lush J in Pastras (or inferentially, Rush J in Cairns) in the conduct of a fair trial.  This court is in no more difficult position than those encountered by the courts in Sepe, Pastras and Cairns.

(b)Sub-section (c): undue waste of time.

The issue of time being wasted by the Plaintiff relying on admission evidence does not arise in the present case.

The issue is already being dealt with in the form of the present application and time has already been allocated to the parties in the form of the Court’s orders of 23 May 2023 for the issue to be addressed, before the jury is empanelled.

Finally, the evidence is easily led at trial in the form of a document tender which will occupy a minimal amount of time.

56.When looked at in totality, the combined weight of the discretionary factors addressed in sub-sections (a) to (c) of section 135 of the Evidence Act 2005 fall well short of displacing the very significant probative value of the evidence sought to be led by the Plaintiff in support of the modest admissions she seeks, let alone substantially outweighing it.

57.Accordingly, the Court should firmly resist any submission of the Defendant to exclude the evidence sought to be led by the Plaintiff in support of the admissions sought, pursuant to section 135 of the Evidence Act 2005.”[95]

[95]Exhibit B, paragraphs 51-57

203As to any prejudice arising from particular parts of the documents sought to be tendered, Mr Hayes submitted that the documents could be edited or redacted so as to excise prejudicial material, and that viva voce evidence could be appropriately confined.[96]

[96]See for example PT 290

Discussion

Are the repeated payments of expenses and entitlements capable of amounting to an admission by conduct?

204It does not appear that in the cases to which I have referred argument was made that each separate acceptance to pay a specific entitlement or expense constitutes an individual stand-alone admission.  Even so, the authorities accept that in an appropriate case it would be open to find that a number of distinct and discrete admissions may constitute a course of conduct from which a “global admission” might be inferred. 

205The issue in this case is whether each of the individual acts were admitting the same thing so as to enable the inference of a global admission to be made.

206I have outlined each of the individual documents and the context, if any, in which acceptance was given to pay for the relevant claim or expense. 

207The plaintiff’s case is that over a period of time in the course of her employment with the employer she was subjected to some 32 various acts that amounted to bullying.[97]

[97]Schedule A to the Amended Statement of Claim, Items 4, 5, 6, 7, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 25, 27 28, 29, 30, 31, 33, 34, 39, 40, 41, 42 and 43

208The relevant starting point is the WorkCover claim form lodged by the plaintiff, the circumstance investigation report and the phone call that ensued between Ms Beasley and the plaintiff.  According to the plaintiff, in this call, Ms Beasley said:

“I am calling to advise you of the outcome of your WorkCover claim.  We need to determine a minimum of 3 or 4 incidents of bullying.  We have considered the following matters: being locked out of the Practice, chained out of the reception, and the refusal of allowing a Union Member to attend a disciplinary meeting with you.  On these grounds, your claim has been accepted, and compensation payments will be made to you, backdated to the time you submitted your WorkCover claim.”

209Mr Hayes has now submitted that he would not adduce this evidence from the plaintiff and that he would not tender the circumstance investigation report.[98]

[98]PT 353-355

210The three items upon which acceptance of the WorkCover claim was made related to items 23, 27, 28 and 29 of Schedule A of the Amended Statement of Claim, all of which are alleged to have occurred in the period of one week, between 2 June 2016 and 9 June 2016:

211Item 23 asserts that on 2 June 2016 the plaintiff arrived at work at 9.00am and found that she was locked out.  She waited until 9.40am then left the premises.

212Items 27 and 28 concern the denial of the right to the plaintiff to have a union representative with her at a disciplinary hearing on 9 June 2016.

213Item 29 also allegedly occurred on 9 June 2016, before the disciplinary meeting referred to in item 28.  The plaintiff asserts that she returned to work and discovered that a door chain had been installed at the reception area to keep her out.

214It is on the acceptance of these three assertions alone that the agent accepted the plaintiff’s WorkCover claim.  Without that information, the jury might be misled into thinking that the claim was accepted on all allegations of bullying that the plaintiff intends to introduce at trial, not just these three incidents.  It must be recalled that these three incidents allegedly occurred in the space of one week, yet the plaintiff’s case is that the alleged bullying occurred in the period between 27 January 2016 and 4 July 2016, a period spanning 22 weeks and five days.  The admission sought to be drawn from the correspondence is not confined to that one-week period:

“The plaintiff sustained a stress related injury in the course of her employment with Elbarki Nominees Pty Limited between 27 January 2016 and 4 July 2016 and that the plaintiff continues to suffer from the effects of that stress related injury from the time it was sustained until the date of trial.”[99] (Emphasis added)

[99]Exhibit B, outline of Plaintiff’s submissions, paragraph 3

215In my view, it would be wrong to construe the acceptance of the plaintiff’s WorkCover claim as an implied admission of liability applicable to the entire period.

216In my view, evidence of what may or may not have occurred in one week has little, if any, relevance to the plaintiff’s overall claim of repeated and prolonged acts amounting to bullying in the time frame alleged.

217It is an open question for the jury to decide whether the three accepted incidents, individually or taken together, amount to bullying.  If the jury were to reject that these three incidents constituted bullying but were to accept that different incidents occurred and amounted to bullying, they might do so in the mistaken belief that those other incidents were the subject of the admission.  In that way, although the jury’s verdict would have been tainted, there would be no way of knowing.

218I do not consider that the agent’s acceptance of the plaintiff’s initial claim form can be taken as a global admission that all of the acts, particularly the acts outside the three mentioned ones, amounted to bullying.  The continued payment of weekly entitlements and the acceptance of liability for other services, such as massage, gym and swimming programs, cannot contribute to a global admission of liability, since the claims or requests that preceded these acceptances are not before the court.

219I respectfully agree with Mr Broadfoot that the acceptance of the plaintiff’s WorkCover claim cannot be tendered in isolation without the explanation given by Ms Beasley to the plaintiff as to the limited basis on which the claim was accepted.

220This is not a case where the acceptance of the initial WorkCover claim is unexplained.  To the contrary, it is fully explained by Ms Beasley.

221Mr Hayes has conceded that the admission cannot be used in isolation to prove any of the elements.  At best that evidence, taken together with other evidence, is required to make out the plaintiff’s case.

222I consider that acceptance of the plaintiff’s initial claim form has little, if any, relevance to the facts in issue.

223Whether the plaintiff sustained an injury at work for the purposes of the “no fault” statutory scheme does not establish the elements of negligence, injury loss and damage, or causation.

224Accordingly, I find that the evidence is inadmissible because it is not probative of the facts in issue.

225If the evidence has any probative value, I would exclude it under s135 of the Act. Here the question of the weight of the evidence must be assessed. As I have stated, I consider the evidence has little, if any, probative weight. On the other hand, I consider the probative value of the evidence is substantially outweighed by the dangers referred to in s135.

226I respectfully agree with Mr Broadfoot that it would be grossly unfair to the defendant to tender the bundle of documents that the plaintiff wishes to tender without explaining context.  As I have mentioned, many of the documents that Mr Hayes proposes to tender provide answers given by healthcare professionals to questions asked on behalf of the insurer relevant to statutory entitlements.  These questions, however, are not included.  To have the answer without the question is unhelpful.  Entitlement to various services, such as massage, gym and swimming, were granted to the plaintiff in response to various requests that were made on her behalf, but the content of the requests is not found in the documents that the plaintiff proposes to tender.

227The selection of documents that the plaintiff intends to tender would require the defendant to tender prejudicial material that may be otherwise inadmissible in order to show context.  For example, those documents may contain prior consistent representations made by the plaintiff that are self-serving.

228I also agree with Mr Broadfoot that the introduction of that evidence would unnecessarily complicate and elongate the trial process.  It would mean that further documentary evidence would need to be tendered and possibly viva voce evidence would need to be given to explain context, then analysis would have to be undertaken to determine what questions were asked, what admission was being made and the extent of any such admission, to what issue in the trial the questions and answers refer, and, ultimately whether the evidence is capable of supporting the inference that the plaintiff will invite the jury to make.

229I agree with Mr Broadfoot that the danger would be ever present that the evidence might be confusing or misleading.  The volume of evidence that would have to be introduced would result in a trial within a trial and be overwhelming for the jury.  It would also run the risk that this body of evidence would swamp all other considerations.  In any event, I consider that it would add considerably to the length and complexity of the trial and cause or result in undue waste of time.

230I do not consider that a direction to the jury could overcome or mitigate the prejudice to an acceptable level.  This case is unlike Sepe, a single “trip and slip case” where the admission related to the one event on the one day.  Here, multiple incidents are alleged, covering a period of almost 23 weeks, and the alleged admission relates to only three incidents over a period of one week.

Conclusion and Orders

231For all of the above reasons, the evidence said to support the global admission contended for by the plaintiff is inadmissible.

232In any event, I would exclude the evidence in the exercise of my discretion under s135 of the Evidence Act 2008.

233I so rule.

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