McNaughton v State of Victoria [2025] VCC 208

"All that is being sought is a rebuttable admission that the defendant accepted permanent impairment".[1]

"It's probative that the defendant, by its agent, in considering matters which are very important, did so with acceptance that the plaintiff had suffered a left ankle injury consequential upon the 6 October 2015".[2]

1. Mr Smith, for the defendant, put this submission:

"But if the jury accepts that history as an accurate, there is no argument that the occurrence of the injury to the right knee in October 15 has been a cause in the development of the Achilles problem in January 16. Outside of that are the customary arguments, if I can put it that way of, it's not as bad as you say it is, and that will be elucidated in the usual fashion that Your Honour would be well familiar with".[3]'

1. If the acceptance of the Impairment Benefits Claim constitutes an admission that does no more than Mr Stanley put in the submission extracted above, then a jury would still be tasked with determining the factual contest of the plaintiff's account of what happened when she took flight in January 2016. It would then need to accumulate the effects on the plaintiff of injury based on the plaintiff's evidence and her cross-examination as well as competing medical evidence, and either include or disregard the January 2016 left ankle as a consequential injury, or possibly separate it out and disregard it from the October 2015 left knee injury and adjudge any award of damages accordingly, subject to all those usual tests that apply in an assessment of an award of damages for an injury, including its course, its development, any pre-existing vulnerability to development and unrelated conditions and the like, and putting aside for the moment, the question of any contributory negligence on the part of the plaintiff for the October 2015 injury.
2. In this case, a consideration of how an argument of a favourable acceptance of liability of an Impairment Benefits Claim by an agent of the defendant is probative in determining the questions the jury will be asked to determine, strikes me as tenuous. By contrast, and by way of example, in a case in which an agent has accepted a workers' claim and made weekly payments, or paid medical and like expenses at various intervals, a denial at trial to a claim for past losses of income for an accepted injury, or injuries during those periods, may appear to more readily justify receipt evidence of the same as an admission and require a defendant to rebut the same, or explain the same, if it is thought warranted and it was able to do so.
3. In this case, in my judgment, there is no like probative worth to be had by receipt into evidence before a jury of the acceptance of the Impairment Benefits Claim, and the reasons for that conclusion are of some number.
4. First, as I have said, the defendant has admitted that if the account that the plaintiff intends to give of what occurred to her knee in January 2016 and the medical opinion on which she relies is accepted by a jury, then the January 2016 incident would be capable of amounting to a consequential injury from October 2015, and for which the jury would be entitled to make a consideration of in an award of damages.
5. Second, as I understand it, the defendant will ask the jury to find that the effects on the plaintiff of injury in the broad sense, that is to say, whether it is confined to the October 2015 knee injury and/or the January 2016 Achilles injury, should be moderated in the ordinary way and that is common in personal injury damages jury trials, and is grist for the mill in such cases.
6. Third, I am not persuaded that an acceptance of a permanent injury for a permanent Impairment Benefits Claim by an authorised agent binds a subsequent course of action by a defendant in a damages trial. I do not accept, and in my judgment, it would be wrong in principle to hold that a defendant is stuck with the decision of an agent on the acceptance of an Impairment Benefits Claim for wrapped up injuries as an admission unless explained away and thereby preclude a defendant from challenging the cause of the injury unrelated to its medical aetiology as opposed to the credibility of a plaintiff. I am not persuaded that a finding by an authorised agent of a worker's injury qualifying for a payment under the processes applicable for an impairment determination should forestall on a subsequent trial a defendant from contesting the fact of that injury based on the credibility or reliability of the plaintiff or by a fuller or different medical explanation that may be explicable but based on a different evidentiary basis.
7. Fourth, in my judgment the facts of this case are sufficiently removed from those in Sepe. Although in her Honour's expanded reasons, she did not explain why she regarded the admission as relevant to a fact in issue, that her Honour thought it was, and permitted the admission as relevant evidence, can be plainly identified in the passage headed, 'Ruling summary' in which her Honour said at paragraph 11:

'(1) 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.'

1. Sepe, and the cases cited in it, and I pause here to note that those cases were addressed fulsomely by Mr Stanley, in helpful written submissions, in my view, have only tangential relevance in advancing the plaintiff's submission before me.
2. In Sepe, the defendant in some shape or form sought, if I can put it colloquially, to go back on its word, and as such, the probative value of the admission could be more readily seen as relevant to a matter or matters of dispute. That, I cannot see, is going to be the case here because the challenge is not that the connection could not be medically made out by the plaintiff (and indeed, the defendant recognises that it could), but that after hearing the plaintiff's evidence, the jury should not be satisfied as matter of fact that the plaintiff has made out that explanation by what occurred at the time of the injury in January 2016.
3. If I am wrong in my finding, and that the notice of acceptance of the plaintiff's Impairment Benefits Claim is probative to a fact in issue, then I would exercise the discretion under s135 of the Evidence Act to exclude it. Section 135 of the Evidence Act states as follows:

"The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

1. The operation of impairment benefits and of permanent injury and the means by which calculation of body parts come to be assessed by a table and by AMA guides and the percentages attributable, and calculations then of a gross sum in dollar amounts would require considerable explanation and some considerable education to the jury, and something greater that her Honour needed to do so in the careful and helpful direction provided in Sepe.
2. I do not accept the proposition put by Mr Stanley that the admission could be "salamied" up, in other words, just to give the jury a benign account that an agent of the defendant had accepted that the plaintiff's left ankle injury and earlier left knee injury were caused by the October 2015 incident without the full contents of the admission going before the jury.
3. Nonetheless, if I am wrong about that, the fact of a payment of some amount having been made to the plaintiff may also and unfairly lead a jury to wonder what the amount was and how the amount was arrived at and may result in it, impermissibly, treating any payment made as some sort of 'ready reckoner' to assist them with or to settle upon an amount of value of general damages for the plaintiff's injuries, and which approach would be wrong.
4. If the payment made is not referred to, but only the fact of an acceptance of the knee and the later ankle injury is before a jury, then it puts the defendant at a comparative disadvantage and it would fall to the defendant to adduce evidence to explain the limited and different purposes of an Impairment Benefits Claim payment for a permanent disability.
5. Hence, in my judgment, the admission of the impairment benefits acceptance may be unfairly prejudicial, not merely to the defendant but potentially to the plaintiff, something that was recognised years ago by the High Court in Rowe v Edwards [1934] HCA 32; [1934] 51 CLR 351. That decision by the High Court back in 1934 is, I would suggest, reflective of, and is consistent with, s135 of the Evidence Act in directing a Court's consideration to prejudice to 'a party.' I emphasise 'a party' which obviously can be either or both a plaintiff and a defendant.
6. There is also a risk of an unwarranted addition to the time taken in the conduct of a jury trial in instructing and warning the jury of the permissible and impermissible use that may be made of the admission. I do not think the discretion shifts back in favour of the admission of the decision made by the agent because, as I have been told, the agent who made the decision has been located and appears to be cooperative and likely could be available to give evidence. Indeed, to open that up should the defendant seek to do so, would itself also add to the complexity and the time needed for this trial.
7. Fundamentally, the ruling I have arrived at is that I am not satisfied that the fact of the acceptance of the Impairment Benefits Claim is probative to a fact in issue. If I am wrong in relation to the same, then in the exercise of my discretion, I would not admit the admission of the Impairment Benefits Claim form. Despite the fact that a jury could receive direction in relation to it, the dangers remain in a common law jury trial, that it will needlessly distract a jury from their consideration of the entirety of evidence, as opposed to a decision made by an agent of the defendant under a statutory regulated scheme that does not operate and is not intended to operate either in tandem with or in usurpation of a common law trial on full evidence.
8. For those reasons, I refuse the application made on behalf of the plaintiff for the admission of the Impairment Benefits Claim.

[1] Transcript ("T") 41, Line ("L") 24-26.