Wearne v State of Victoria (Ruling No. 1)

[2016] VSC 526

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2014 06700

GAYLENE WEARNE	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 SEPTEMBER 2016
DATE OF RULING:	2 SEPTEMBER 2016
CASE MAY BE CITED AS:	WEARNE v STATE OF VICTORIA (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2016] VSC 526	First Revision:  7 September 2016

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EVIDENCE – Tendency evidence – Common law action for damages for psychiatric injury – Admissibility – Whether significantly probative of a fact in issue – IMM v The Queen (2016) 90 ALJR 529 applied – Evidence admissible – Evidence Act 2008 (Vic), ss 97(1), 100(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R W McGarvie QC with Mr J J Fitzpatrick	Slater and Gordon
For the Defendant	Ms J M Forbes QC with Ms J Frederico	Hall and Wilcox

HIS HONOUR:

1. By an amended tendency notice served under s 97(1)(a) of the Evidence Act 2008 (Vic), the plaintiff seeks to rely on tendency evidence to be adduced from two witnesses, Patricia Alexander and Donna Ascher. The defendant objected to the proposed tendency evidence and submitted that the evidence in question is not admissible. Although the notice gave some general particulars of the proposed evidence, a voir dire was needed to enable the court to properly apply the statutory test for admissibility. Once it became clear that the proceeding would not be heard by judge and jury, the parties agreed that the evidence be taken during the course of the plaintiff’s case and that I rule on its admissibility before the plaintiff closed her case.

1. That course was followed and I now publish my reasons for overruling the defendant’s objection and admitting the evidence of Patricia Alexander and Donna Ascher absolutely.

1. Section 97(1) of the Evidence Act states the rule for tendency evidence as follows:

(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.

1. The first question is a threshold one as to whether the evidence is relevant and admissible pursuant to ss 55 and 56 of the Act. Before that question may be answered, it is necessary to identify the purpose or purposes for which the evidence is tendered.  The plaintiff contends that Ms Robyn Skerry’s conduct as her manager in the period from February 2007 to November 2008 was one aspect of a breach of the duty that she alleges was owed to her and she identified five particular characteristics of the style of Ms Skerry’s conduct as a manager that, if established on the evidence, caused her injury, namely:

(a)        To be dictatorial and unwilling to listen to the case worker’s point of view on frequent occasions;

(b)        To be unreasonably critical in relation to such employees’ work, including with regard to the wording and content of reports, output or proposals;

(c)        To nit-pick regarding the wording of reports, having the effect of undermining the confidence of the worker;

(d)       To fail to provide encouragement and lack of support by way of positive feedback; and

(e)        To consistently not allow senior case workers appropriate autonomy in their case work by, for example, requiring them to explain and justify decisions which, in the ordinary course of events, would be left to the case worker themselves.

1. Understanding the purpose for which the evidence is tendered permits the question of relevance to be addressed. This is the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue.  The issue of relevance is to be determined on the assumption that the evidence will be accepted. It is not necessary to consider, at this early stage, whether the evidence is credible or reliable, because the only question is whether it has the capability, rationally, to affect findings of fact.[1] Those findings of fact will be in respect of the purposes identified by the plaintiff. The practical question is how will the evidence affect findings of fact contended for by the plaintiff in order to establish the material allegations that she makes.

   [1]IMM v The Queen (2016) 90 ALJR 529, 537 [39].

1. Evidence that is of only some, even slight, probative value will be prima facie relevant and admissible. Thus, if evidence is relevant according to s 55 and admissible under s 56 of the Act, it is, by definition, ‘probative’. However, tendency evidence if relevant is excluded unless the exception in s 97(1)(b) applies and the court is satisfied that the evidence will ‘have significant probative value’. The second question is accordingly whether the probative value of the evidence is significant.

1. In IMM v The Queen,  the plurality said:[2]

The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.

[2](2016) 90 ALJR 529, 538 [46].

1. The statutory qualifier of the necessary degree of probative value for admissibility is the adjective ‘significant’ and it is usually best to use the statutory term rather than some simile. The plurality in IMM referred to ‘influential’ while Gageler J suggested[3] that ‘significant’ refers to the capacity of the evidence to contribute to the proof or disproof of the existence of the fact in issue, which need not be be ‘substantial’ but does need to be ‘important’ or ‘of consequence’.

   [3]Ibid, 546 [103].

1. That assessment is not made by reference to any assessment of the weight to be given to the evidence, rather, the assessment requires that how the evidence might possibly be used is to be taken at its highest.[4] Although there may be some limited circumstances in which credibility and reliability will be taken into account in determining probative value, this proceeding is not an instance of that sort. The court, on the objection to admissibility of the evidence, is required to make an assessment of the highest use to which the evidence is rationally capable of being put in the ultimate fact finding process at the conclusion of the trial.

   [4]Ibid, 537-538 [39], [44], [45], 545-555 [99].

1. Thus ascertaining probative value is an assessment of the maximum potential for the evidence rationally to affect my assessment of the probability of the existence of a fact in issue at the time for judgment.  In other words, is the extent to which the evidence is rationally capable of contributing to a finding that the existence of a material fact is more or less probable significant?

1. That assessment is made by careful review of the whole of the circumstances, not just the evidence of the relevant witnesses, but the pleaded allegations and any evidence opened or led when the ruling is made. The cases identify many relevant factors across a range of factual circumstances, which are identified in textbooks such as Ogders.[5]

   [5]Stephen Odgers, Uniform Evidence Law, (Lawbook Co., 12^th ed, 2016).

1. In the case of tendency evidence, its probative value is to be found in its capacity to support the credibility of the plaintiff’s evidence by showing that a person had a tendency to act in the particular way described by the plaintiff. The process of reasoning is that on an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way. It can therefore be concluded or inferred that the person had a tendency to act in that way. By reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency.[6]

   [6]Elomar & Ors v R (2014) 300 FLR 323, 398 [360].

1. Many reported tendency cases involve, for example, criminal prosecution of sex offences with evidence from the complainant of conduct other than that comprising the offending conduct. The cases establish that where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met.

1. That observation is apposite as the relevant witnesses are independent of the plaintiff and the conduct of Ms Skerry has been observed in a different context in both time and place, but not as to relationship. Each of the witnesses and the plaintiff has been managed by Ms Skerry and the relevant evidence concerns the manner in which Ms Skerry treats employees whom she is managing or supervising.  I do not accept the defendant’s submission that the different context in both time and place deprives the evidence of probative value capable of being characterised as significant.

1. I have taken particular notice of the passages referred to in the parties’ submissions, which I will not set out in these reasons.  In summary, the plaintiff referred to the evidence that she gave at transcript pages 104-5, 107, 110, 118, 119, 126, 129, 130, 133, 134 and 137.  She refers to the evidence of Ms Ascher at transcript pages 370, 372-375, 377, 384, 389 and 391 and to the evidence of Ms Alexander at transcript pages 399, 400, 406, 407, 408 and 410.  The defendant referred to the evidence of the plaintiff at transcript pages 105–106, Ms Ascher at transcript pages 370, 377, and Ms Alexander at transcript pages 399–401, 413 and 415.  I am satisfied that the evidence of each of the witnesses is relevant, probative and, importantly, of significant probative value.

1. I also do not agree with the defendant’s submissions that the evidence of the witnesses failed to reach a level of detail sufficient to establish tendency evidence, or that the significance of its probative value was diminished by the peculiar circumstances in which complaint was made and responded to about the non-inclusion of reference to Workcover issues in a performance review plan developed between worker and supervisor. The defendant also submitted that the evidence, particularly that of Ms Alexander, fell short of demonstrating any form of managerial behaviour that might permit the inference of a tendency to behave in a way that was capable of meeting the characteristics for which the plaintiff contended and accordingly had no probative value of significance in demonstrating conduct in breach of the alleged duty of care. The defendant submitted the tendency evidence was not specific, undetailed and lacked significant similarity with the conduct of the plaintiff to permit an inference of a tendency to manage or supervise in a particular way.

1. The style of Ms Skerry’s conduct as a manager towards the plaintiff is a key issue in the plaintiff’s claim, and the evidence of others, which will of necessity be at other times and in other contexts, that Ms Skerry acted as a manager in the manner described, when considered on the highest basis to which the evidence is rationally capable of being put, permits an inference that Ms Skerry had a tendency to exhibit in her management style or approach some or all of the characteristics that I have set out above. It is of no consequence that the witnesses refer to isolated incidents when the plaintiff alleges a sustained pattern of conduct, for it is the impact of Ms Skerry’s conduct on the plaintiff that is said to be causative of her injury, while the witnesses do not suggest that they were affected by the management style in the same way.  

1. For these reasons, the evidence is relevant and probative and I turn to the second question, which is whether the evidence is capable, to a significant degree, of assisting the court in concluding or inferring that, on an occasion in question in the proceedings, Ms Skerry acted in conformity with that tendency. I am persuaded that, in the relevant sense, the probative value of the evidence is significant.  It is capable of being influential in a finding at the conclusion of the trial that the management style of Ms Skerry could be characterised in the manner alleged. It is important, or a matter of consequence, when considering the evidence of the plaintiff about the managerial or supervisory behaviours of Ms Skerry that other employees, on occasions following the conduct alleged by the plaintiff, described Ms Skerry’s management style in the manner identified in the passages of evidence to which I was taken in submissions.

1. At this stage, I express no finding by reference to the weight of the tendency evidence or the evidence in the proceeding led so far. My finding is limited to a conclusion that, taken at its highest, the probative value of the tendency evidence could be regarded as significant for the sole purpose of determining the question of its admissibility. I have concluded that the plaintiff has satisfied the requirements of s 97(1)(b) of the Evidence Act.

1. The plaintiff has not complied with the notice requirement of s 97(1)(a) of the Act. The notice relied upon by the plaintiff was only served on the first day of the trial and was substantially different to earlier versions of the notice served. There were, prior to the voir dire, also issues as to whether the notice gave sufficient notice of the substance of the proposed evidence to permit the application of the statutory test. Section 97(1)(a) does not apply if the evidence is adduced in accordance with directions of the court under s 100 of the Act. Section 100(1) of the Act provides that the court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party’s failure to give notice under s 97. In a civil proceeding, the party’s application may be made without notice of it having been given to the other party. The defendant could not point to any prejudice suffered as a result of the plaintiff’s failure to meet the notice requirement and accepted that it was in a position to deal with the tendency evidence in its case.

1. Accordingly, in the present circumstances, I will direct pursuant to s 100(1) of the Evidence Act that the tendency rule does not apply to exclude the evidence of Ms Ascher and Ms Alexander, despite the plaintiff’s failure to give a notice that complied with the Act and the Evidence Regulations 2009 (see s 99 and reg 7).

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