Ruling: Evidence admissible as a rebuttable admission by conduct.
[2]
This ruling concerns an application made by the plaintiff on the first day of trial of the matter and before empanelment of a jury of six to allow to be put before a jury as an admission the continued payment of weekly benefits to the plaintiff as a rebuttable admission against the defendant in respect of her work capacity, and to refer to it in opening address to the jury. The application was opposed by the defendant. Following hearing of submissions by counsel, I granted the application. These are my reasons for so ruling.
Mr Czarnota referred to his application as a Sepe application. This was a short hand reference to the decision of Sepe v Club Italia Sporting Club Inc,[1] which is a published ruling of her Honour Tsalamandris J and, as far as I am aware, the most recent published decision of the Supreme Court of Victoria on the question of Workcover admissions in jury trials, and it comprised the principal authority relied on by the plaintiff.
I have previously had occasion to say,[2] that Sepe does not and cannot constitute a rule of general application. Obviously Sepe does not purport to rule on the admissibility in a common law jury trial of all conduct constituted by a favourable determination of some sort or another for a worker in the management and administration of a worker injury claim.
There will be occasions where conduct on which a plaintiff seeks to rely may constitute an admission, and therefore, be admissible in a trial whether before a jury, or in a judge alone trial, subject to s135 of the Evidence Act 2008 but by the same token, in some cases it will not constitute an admission or should be excluded on discretionary grounds.
Even if the conduct sought to be relied on is an admission by conduct, a decision taken by an authorised agent, in answer to one or more of many potential steps available to a worker under beneficial legislation, does not and cannot amount to proof of a negligent injury or breach of regulations in a common law damages trial or establish causation.
The starting point will always be if the subject matter of the conduct said to constitute an admission is probative to a fact in issue.
What is probative to a fact in issue in a given case, should be capable of being determined in the first instance by the pleadings.
The plaintiff's proceeding for general damages for pain and suffering and economic loss was commenced by Writ and Statement of Claim. The plaintiff was at the time of her alleged injury on 20 September 2019 a kitchen hand working for the defendant in its café business operating from premises in Doncaster East. She casts her action in common law negligence and for a breach of the obligations arising under Occupational Health & Safety regulations concerning manual handling.
The plaintiff's claim has been met with a denial of liability by the defendant together with a defence that includes a claim for contributory negligence. The defendant denies the plaintiff's allegation that she suffered the work injury. The defendant therefore denies the plaintiff has suffered a past loss of earnings.
On 5 February 2020 the plaintiff lodged a Workcover claim in respect of the injury that is the subject of this proceeding.
On 14 February 2020, the defendant's authorised agent was at the time, CGU who accepted the claim, and advised the plaintiff is "currently in discussions with your employer to ensure you get the correct weekly payment. We will contact you again once we have confirmed your weekly payment amount".[3]
On 17 February 2020, CGU advised it had calculated the plaintiff's PIAWE figure ($470.00), and that "You will be paid the above amount from 3 February 2020".
The plaintiff has continued to receive weekly benefits after 130 weeks pursuant to Part 5, Division 2, Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act), at which time the entitlement continues if, relevantly, a claimant is assessed as having no current work capacity which is likely to continue indefinitely. has been in continuous receipt of weekly benefits since. The plaintiff has not worked since February 2020.
The plaintiff seeks a ruling on the admissibility of the same in the terms sought in Sepe that is, that the ongoing payment of weekly benefits to the plaintiff, including after the 130 week point, constitutes a rebuttable admission by the conduct of the defendant that it has accepted she has been totally incapacitated for work until now.
In Sepe, Tsalamandris J provided a recital of the principal authorities in this area of law. In this Court, a very detailed exposition of the law and its application is provided by her Honour Judge Morrish in Vincent v VWA.[4] There her Honour refused the application, but it was a far different set of circumstances, and the plaintiff sought to rely on the broad admission that the ongoing conduct of the VWA in respect of various statutory benefits could constitute a broad admission that the plaintiff's stress injuries arose due to her employment and had continued until trial. Judge Morrish disallowed the admission, noting that the circumstances were "unlike Sepe". So too, in McNaughton v State of Victoria,[5] I disallowed the plaintiff's application to rely on the acceptance of an impairment benefits claim as an admission that the defendant had accepted permanent injury consequential to a particular injury on 6 October 2015. I said, the facts were "sufficiently removed from those in Sepe".
There are a number of common law work injury cases that have been heard in the trial Division of this Court and that have tended to follow Sepe where the question has arisen about the relevance and admissibility of ongoing payment of weekly benefits beyond 130 weeks.
In Misfud v Westar Prestige Paint,[6] her Honour Judge Clayton ruled that evidence could be led before a jury that the plaintiff had received weekly payments of compensation from the insurer for the employer, and that such evidence was admissible evidence of a rebuttable admission by conduct that "the defendant, by paying the plaintiff weekly payments, has accepted that the plaintiff has no current work capacity and is likely to continue indefinitely to have no current work capacity". Her Honour noted, inter alia, that the "defendant denies that Mr Mifsud has no capacity for employment and proposes to call expert witnesses as to his work capacity".[7] Her Honour considered that it was open for the defendant to lead evidence as to how and why the weekly payments came to be made, and that she was not persuaded calling the claims agent or other witnesses would be an undue waste of time to warrant the exclusion of such evidence, and such an admission would not be misleading or confusing to a jury, but an appropriate direction could be given as in Sepe.
In Munro v Peninsula Health,[8] his Honour Judge Clark held that the circumstances were substantially similar to those of Sepe, concerning payment of weekly benefits of 130 weeks where the plaintiff was seeking damages for loss of earnings and loss of earning capacity.[9] His Honour accepted that "the ongoing payments of compensation to Mr Munro are capable of constituting admission by conduct. As Tsalamandris J concluded in Sepe, I, too, accept that, when the provisions of the Act are read together, there is no basis for Peninsula Health to say that the payments made by the authorized insurer cannot constitute an admission by it".[10]
I am satisfied that the conduct is relevant in the sense that it is a piece of evidence the plaintiff may wish to advance that she has no work capacity where an agency charged with assessing a work capacity for a no fault statutory benefits scheme had and continues to consider that to remain the case. In my judgment, this is a piece of evidence which the plaintiff should not be denied being able to put before a jury in conjunction with medical and other evidence and to be assessed against the competing or contradictory medical and other relevant evidence on the issue of her working capacity both to the past and to date.
I am satisfied that the factual circumstances of the admission sought in this case are analogous to those of Sepe. The admission sought is of like character. In Sepe her Honour said at paragraph 11:
[3]
Mr Sepe's receipt of ongoing weekly payments of compensation was an admission by conduct on the part of Club Italia that was capable of being admissible evidence as it was relevant to Mr Sepe's claim for past loss of earnings.
[4]
Being admissible evidence, I would not exercise the discretion under s135 of the Evidence Act to exclude it. Section 135 of the Evidence Act states as follows:
[5]
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
[6]
While I accept that there can be the potential for additional time and resources if the defendant was to, for example, call the claims agent for the insurer or other witnesses to rebut the purported admission, I am not persuaded that such evidence would be an undue waste of time so as to warrant the exclusion of that evidence under s135 of the Evidence Act. Here the defendant has said it would not do so if I acceded to the plaintiff's application because of changes in insurer and potential uncertainty in being able to identify the relevant claims agent in a timely manner. Nonetheless, there are other mechanism open to the defendant to contest the force of the admission.
I am not satisfied that the admission would be misleading or confusing to a jury. As in Sepe, an appropriate direction can be given to the jury. I am satisfied that the jury could be directed to disregard any payments pursuant to the WorkCover legislation when considering questions about liability, and that such a direction would be capable of being understood and followed by a jury.
I am not persuaded that a properly directed jury would confuse an admission (if they found that the evidence constituted an admission) that the plaintiff was incapacitated for work, with an admission that the defendant was liable in negligence or for breach of statutory duty.