Yilmaz v Sealed Air Australia Pty Limited (Ruling)
[2023] VCC 1589
•7 September 2023 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-22-00797
| Bulent Yilmaz | Plaintiff |
| v | |
| Sealed Air Australia Pty Limited | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5, 6 and 7 September 2023 | |
DATE OF RULING: | 7 September 2023 (ex tempore) | |
CASE MAY BE CITED AS: | Yilmaz v Sealed Air Australia Pty Limited (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1589 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Accident compensation – Admission of WorkCover payments – Civil jury trial – Discharge of jury
Legislation Cited:
Cases Cited:Sepe v Club Italia Sporting Club Inc and Anor [2023] VSC 191; Baulch v Lyndoch Warrnambool Inc [2010] VSCA 30
Ruling: Jury discharged without verdict
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison KC with Mr B Johnson | Maurice Blackburn Lawyers |
| For the Defendant | Mr S Smith KC with Ms G Cooper | Wisewould Mahony |
HIS HONOUR:
1What I propose to do is to rule on the application to discharge the jury and I will subsequently revise this ex tempore ruling and provide it to the parties.
2This is an application on behalf of the plaintiff for the discharge of the jury. I note that today is the third day of the trial. The application to discharge is brought on two bases.
3First, the plaintiff objects to the cross-examination of him regarding a lump sum received by his wife. His senior counsel submitted that the knowledge of that lump sum could have only been obtained by the solicitors for the defendant either having directly acted for the Victorian WorkCover Authority in that proceeding, or indirectly having had access to documents relating to it. In those circumstances it is submitted that the defendant should have discovered the source documents relied on for the cross-examination.
4There is some force in the submission that the cross-examination required relevant documents to be discovered, certainly at the point in the trial when it became clear that there were previously undiscovered documents that were relevant.
5But having said that, I do not consider that the prejudice that arises from that is so great that it would warrant a discharge of the jury. In my view, it could be corrected by leave to the plaintiff to confer with counsel to give further evidence-in-chief about that lump sum, or to be re-examined about it. I also consider that it could be corrected by a careful direction to the jury.
6If that was the sole ground for discharge of the jury, there would be no discharge.
7The second ground is, in my view, one with more substance. The second ground relates to the cross-examination about WorkCover payments received by the plaintiff and how that has introduced an irrelevant consideration.
8I say a few broad comments first – that since the ruling of Tsalamandris J in Sepe v Club Italia Sporting Club Inc and Anor,[1] in just about every trial in this Court – not just my Court, but in this Court since then, there has been some sort of application on behalf of the plaintiff to call for an admission regarding the acceptance of a claim for statutory benefits.
[1][2023] VSC 191 (“Sepe”).
9The current proceeding before me highlights two things. First, the care that needs to be exercised, in my view, when making a forensic decision to call for such an admission and secondly, the need to carefully frame what the admission is and the scope, purpose and limit of it.
10Relevant to this proceeding, before the jury was empanelled, the Court was informed that the plaintiff would be calling for an admission relying upon the ruling of Tsalamandris J in Sepe. There was no objection taken to that course. To put this in context then, in the opening – again, to which there was no objection – senior counsel for the plaintiff set out as follows, and I quote:[2]
[2]Transcript (“T”) 61, Line (“L”) 13-30.
"I should say to you that you will hear evidence from the plaintiff; that he is, and has been since his injury, in receipt of weekly payments of compensation. Two things I have to say to you about that; the first is, if and when you come to consider damages you don't have to worry about that. There can be no double-dipping, so you won't need to worry about workers' compensation figures because one cannot recover damages and double-dip. So that's the first thing I need to say to you about it. The second thing is that the fact the plaintiff continues to receive ongoing payments of weekly payments of compensation is what is called - we would contend is what is called a rebuttable admission by the employer that (a) he was injured at work; and (b) he continues to be incapable of working. And when I say it is rebuttable, it means that the defendant can call evidence to say, well, you shouldn't interpret it that way."
11I will come back to the opening in a moment because, in my view, it is important for the decision I must make regarding the future course of this trial.
12I first return to what her Honour said in Sepe. It is apposite for the current proceeding to look at what her Honour directed the jury in that proceeding. At paragraph 62, her Honour set out how that the admission was capable of being understood by the jury, and set out the way in which it may be used.
13Her Honour said:[3]
"I directed the jury as follows:
'To understand how you might use this admission, I will briefly tell you some things about the Victorian WorkCover scheme.
A person who is injured in a workplace accident may be entitled to weekly payments of compensation and hospital, medical and rehabilitation expenses. These entitlements are paid irrespective of whether the employer was negligent.
Save for an exception that is irrelevant to this case, I can inform you that under the WorkCover scheme, after a worker has received weekly payments for 130 weeks, weekly payments are only paid beyond that time if the worker has an indefinite incapacity for any work. The employer's agent has the authority to terminate those payments if it is satisfied that the worker has a capacity to perform suitable employment. If this occurs, then the worker can challenge that decision. It is not necessary for me to explain any more about that process for you to be able to understand the relevance of this evidence in your assessment of the plaintiff's damages. Given the plaintiff's evidence that she continues to receive weekly payments, you can infer from this the first defendant's agent has not sought to terminate the plaintiff's weekly payments nor her medical and like expenses.
In this case, the plaintiff relies upon the ongoing payment of weekly payments as an admission by conduct by the first defendant that it has accepted that she has been totally incapacitated for work until now.
The admission is not binding upon you to find that the plaintiff has been totally incapacitated until now. It is no more than another item of evidence for you to consider and decide what weight, if any, to give to this admission.’
[3]Sepe, paragraph [62].
14Now, back to the proceeding before me, but as was clear from her Honour's ruling in Sepe, the discussion there was about the limited use of the admission for the purposes of incapacity.
15In this proceeding, the senior counsel for the plaintiff opened the ongoing weekly payments for an admission both of injury at work and of continuing incapacity. But that needs to be seen in the setting of the earlier remarks to the jury about no double dipping and don't need to worry about workers’ compensation figures because one cannot recover damages and double dip.
16There is nothing in her Honour's ruling about double dipping, there was nothing in Sepe that in any way suggested there was going to be some admission or evidence relevant to double dipping. That, in my view, highlights the care that needs to be exercised when calling and relying on an admission in the circumstances such as the present case.
17The plaintiff in this proceeding then proceeded to give evidence as follows with a question from senior counsel:[4]
[4]T 119.
"Now, you mentioned getting paid, have you been in receipt of WorkCover payments since you ceased working?"
Answer:
"I get a weekly payment".
Question:
"All right. Thank you".
Answer:
"And whilst I got, I don't know what it's called, I don't know what it was called but they gave me some money".
Question:
"All right. And do they continue to give you weekly payments?"
Answer:
"Yeah. Since like my accident happened, they never stopped my wages. Every week I get my wages".
"All right. Now how would you - - -".
Answer:
"Sorry, they only dropped once the percentage. I think they send me letter drop the percentage".
18It's problematic, in my view, as to whether that evidence strayed beyond the purpose of compensable injury and capacity. But in any event, it is relatively limited.
19Pausing here, as in Sepe, it was open to the defendant to cross-examine about the evidence of the acceptance of the claim. But, in my view, that must remain relevant to the limited purpose of the admission. In my view, as much was acknowledged by the ruling given by Tsalamandris J to the jury in the proceeding before her Honour as I have already read out.
20In this proceeding, senior counsel for the defendant proceeded to cross-examine the plaintiff about the receipt of weekly payments. That commenced at transcript 124. The very first question introduced a rate of payment as follows:[5]
"Thank you. Those weekly payments that you receive, how much do you get from those?"
Answer:
"Now, $948 a week because I can't remember how the time bracket is, like the cut off bit, the insurance company cut off a bit."
[5]T 124, L 11.
21There then proceeded cross-examination about earnings the plaintiff earned before he was injured and the payments he has received since being injured, the question as follows:[6]
"Given that you were getting as much money from the insurance payments as you were getting from work, you weren't suffering any financial strain, were you, from stopping work and getting insurance payments?”
Plaintiff's answer:
"Look, I got – yes, I understand but I got opportunity when I work. If I want to earn more money there's opportunity there".
[6]T 125, L 13.
22The cross-examination continued. Further on, it was put to the plaintiff:[7]
"What I'm saying to you is because you were earning about $1,000 a week in those 12 months before you got injured and given that you were getting $1,000 a week from the insurance company after you stopped working, there was no financial detriment to you for not working and getting insurance payments, was there?"
"No".
[7]T 125, L 29.
23In my view, here a problem develops. As was said by the Court of Appeal in Baulch v Lyndoch Warrnambool Inc,[8] Neave JJA, Bongiorno JJA and Byrne AJA. Their Honours summarised the common law position regarding the mention of workers' compensation payments.[9] Their Honours noted that over time, there had been a shift in the common law position such that it was then accepted that the mention of workers' compensation payments in a common law trial would not always be an irrelevance.[10]
[8][2010] VSCA 30 (“Baulch”).
[9]Ibid, paragraph [57].
[10]Ibid, paragraph [58].
24Pausing, if that is not binding on me, regardless, I agree. In the present proceeding, cross-examination to matters such as motivation for work or whether there had been any pain and suffering consequence because of an inability to work might be relevant matters arising from questions to do with workers' compensation, specifically arising out of the Sepe-type admission that the plaintiff relied on in this proceeding.
25But in my view, as is made clear in Baulch, it is a limited purpose; a limited use that can be made of the receipt of weekly payments or WorkCover benefits. What Baulch makes clear is that it cannot be used for an improper purpose such as an irrelevant consideration to distract the jury from the task that they are here for.
26In my view, the cross-examination of the plaintiff in this proceeding by introducing concepts such as him not suffering any financial strain or not suffering any financial detriment, and then what I consider to be a confusing cross-examination about the total amount of weekly payments he has received as compared to what he would have earned had he remained at work, did introduce an irrelevant consideration that could only distract the jury from the task they are here for.
27I have considered whether it is capable of being corrected by a direction. The concern I have is that to leave it swirling around creates a risk of irrelevancies entering the jury's mind and it then becomes an impossible task to give a jury a direction, or a direction with any confidence that would remove that irrelevancy. Regrettably in my view, there is a perfect storm in this case where we are at a position where the jury must be discharged.
28The order I propose to make is that this jury be discharged without verdict.
29I have alluded to a couple of things during this ruling that I think the parties should reflect on. The order that I would make for present purposes is that the cost of this jury and the discharge of this jury is reserved. We will proceed afresh with new jury. I note neither side urge me to take the matter as a cause.
30But, in light of what appears to be inadequate discovery, the contents of this ruling and the time for the parties to consider it – as well as what I consider an opportunity for the parties to reflect more broadly about the litigation – I propose to start again with a new jury on Monday, rather than starting tomorrow.
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