Plaintiff v Defendants

1 The plaintiff, Ms Sepe, claims damages at common law for injuries suffered in the course of her employment with the first defendant, Club Italia Sporting Club Inc. On 4 August 2018, whilst working as a food, beverage and gaming attendant, Ms Sepe slipped and fell on a wet floor of a toilet area and suffered injuries to her back, shoulders and neck (the workplace incident). The premises were owned and occupied by Club Italia, which had contracted with the second defendant to provide cleaning services at the premises, and it in turn sub-contracted with the third defendant, August Property Services Pty Ltd, to perform such services.[1] The toilet area had been wet mopped by one of August Property Services' cleaners shortly prior to the fall, but there was no sign in place warning of the danger.

2 Ms Sepe alleged that the defendants were negligent and claimed pain and suffering, and pecuniary loss damages (past and future). The proceedings were heard and determined by a civil jury of six over eight days in March 2023.[2]

3 In his opening address, Ms Sepe's counsel foreshadowed an intention to adduce evidence from his client that she had received ongoing weekly payments of compensation from Club Italia, from the time of lodging a WorkCover claim through to the time of trial, and that such evidence constituted a rebuttable admission relevant to Ms Sepe's claim for loss of earning capacity. Soon thereafter, in the absence of the jury, counsel for Club Italia objected to the use of such evidence as an admission, and sought a discharge of the jury.[3]

4 On 21 March 2023, after hearing submissions from the parties, I ruled that the ongoing payments constituted an admission by Club Italia, and that such evidence should not be excluded from the jury. So as not to unnecessarily delay the trial, I indicated to the parties that I would publish my reasons for this ruling at a later point in time. These are my reasons.

5 Ms Sepe lodged a WorkerCover claim on 16 August 2018 and this claim was accepted by the authorised agent[4] on behalf of Club Italia. Ms Sepe briefly returned to work on light duties and reduced hours in early 2019, but has not worked since August 2019. Ms Sepe has continued to receive weekly payments of compensation from the time she lodged her claim, including at the time of trial.

6 Under the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act), Ms Sepe was entitled to receive weekly payments beyond 130 weeks[5] if the Victorian WorkCover Authority[6] assessed her as having no current work capacity and this was likely to continue indefinitely.[7] Under the WIRC Act, the Authority was able to terminate those payments if it was satisfied that Ms Sepe had a capacity to return to work either in her pre-injury employment, or in suitable employment.[8]

7 Counsel for Ms Sepe proposed that she be permitted to give evidence that her payments had not been terminated and that she continued to receive weekly payments of compensation.

8 Ms Sepe sought to rely upon such payments as an admission by conduct, against Club Italia, that it accepted that she had been totally incapacitated for work from 16 August 2018 (when she lodged the claim) through to the present time (the admission).

9 Counsel for Club Italia submitted that it had been wrongly put to the jury that the ongoing weekly payments of compensation by the agent could be used as an admission by a separate entity, being Club Italia, that Ms Sepe was totally incapacitated by reason of her workplace injuries. It was submitted that it was a decision made by the agent and, pursuant to the structure of the WIRC Act, was not a matter over which Club Italia (as the employer) had any control.

10 Further, counsel for Club Italia submitted that Ms Sepe had significant comorbidities and past history of other medical conditions, and it was therefore 'untenable' to submit that ongoing weekly payments could be an admission that the entirety of Ms Sepe's inability to work at the time of trial was attributable to the workplace incident. It was also put that, in any event, the evidence should be excluded under s 135 of the Evidence Act 2008 (Vic), on the basis that references to workers compensation should be eschewed where possible in a jury trial.

11 In determining that this evidence should be admitted before the jury, I was satisfied of the following:

(1) Ms 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 Ms Sepe's claim for past loss of earnings; and

(2) a jury could be (and was) suitably directed as to its use of this admission in respect of its assessment of Ms Sepe's claim for past loss of earnings, so that it was not unfairly prejudicial to Club Italia, nor misleading or confusing.

(1) Why the relevant admission by conduct was capable of being admissible evidence in this case

12 Relevant to this application, counsel identified three Victorian Supreme Court decisions in which a trial judge was required to determine whether evidence that the Authority made payments to a plaintiff under the WorkCover scheme constituted an admission against the employer defendant and, if so, whether it should be admitted in a jury trial. These were Raeburn v Tenix Defence Systems Pty Ltd (Ruling No 7),[9] Cairns v Trowelcoat Pty Ltd,[10] and Mert v Lawrence (Vic) Pty Ltd.[11] In addition, the parties referred me to a number of Court of Appeal and first instance decisions,[12] which were said to be relevant to my determination of this matter.

13 In Pastras v Commonwealth,[13] the plaintiff sought to lead evidence of payments made to him (pursuant to the Commonwealth Employees' Compensation Act 1930) as an admission by conduct that he was totally incapacitated from the time of the workplace injury up until the time of trial. The court stated that payments made pursuant to a determination in relation to the plaintiff's resulting incapacity could amount to an admission in circumstances where there was an effective right of appeal, which was not resorted to by the Commonwealth.[14] The court held that in not exercising its right to appeal, the Commonwealth's act in making payments could be regarded as an admission by conduct. Justice Lush stated that, in allowing the admission, the jury should be directed as follows:

I shall tell the jury - that is, if the plaintiff elects to lead such evidence - that the compensation was paid pursuant to the direction of a statutory official who had the legal authority to order the payment, but that the Commonwealth had the right to appeal if they wished to contend that there had been no injury by accident, or that there was no incapacity, and that consequently the Commonwealth's act in paying may be regarded as an admission.[15]

14 Thereafter, I was taken to numerous cases concerning admissions by conduct in the context of an injured person's origination motion in the County Court (OM hearing), for leave to commence common law proceedings under the Accident Compensation Act 1985,[16] WIRC Act[17] or Transport Accident Act 1986[18] on the basis that the person suffered a serious injury (serious injury application).

15 In Ansett Australia Ltd v Taylor,[19] the plaintiff claimed he injured his back during the course of his employment with the defendant. The question before the Court of Appeal was whether, in his OM hearing, for the purposes of a serious injury application, prior acceptance by the Authority of the plaintiff's claim for compensation for non-economic loss in respect of an injury resulting in permanent impairment[20] (lump sum claim) established that the relevant injury had been sustained.[21] The Court of Appeal held that acceptance of liability in relation to the plaintiff's claim had 'evidentiary effect only'[22] as an admission by the Authority, 'speaking for the employer',[23] that the compensable injury was sustained. Having regard to the consequences for the Authority or self-insurer that may flow from acceptance of such a claim, the Court of Appeal also stated:

[S]uch an admission should ordinarily be regarded as very significant; albeit not conclusive, because a defendant, in a particular case, might be able to satisfactorily explain its conduct.[24]

16 In Fokas v Staff Australia Pty Ltd,[25] the appellant, a labourer, suffered injury performing heavy and repetitive work whilst in the employ of the respondent, a labour hire company. Following Ansett, the Court of Appeal accepted that payment by the respondent of the appellant's medical and like expenses, and a lump sum claim, constituted an admission, in a serious injury application, of the existence of the appellant's ongoing pain as a result of the compensable injury. The significance of the admission was stated to be two-fold.[26] First, the appellant was paid the lump sum claim for permanent impairment flowing from the acknowledged injury, which was said to be in 'stark contrast' to the respondent's position in the OM hearing that the injury had resolved (based on earlier medical opinion).[27] Second, the respondent approved and paid for the appellant's treatment prior to the OM hearing, which was said to constitute acceptance of the appellant's ongoing pain as a result of the compensable injury.[28]

17 Ansett was subsequently distinguished by the Court of Appeal in Transport Accident Commission v Florrimell.[29] In Florrimell, the plaintiff was involved in a two-vehicle collision when the driver of the other car failed to give way. Relying on Ansett, the plaintiff submitted that the Transport Accident Commission's (TAC) acceptance of his claim and payment of his medical expenses in respect of his injuries, amounted to significant admissions by the TAC on the subject of causation. The court held that the circumstances in Ansett were 'far removed'[30] from the proposition that a payment by the TAC for medical procedures was evidence of an admission in respect of causation on the basis that:

The issue of causation may well be a complex one and, as here, may be one on which medical opinions conflict. It may also be an issue in relation to which, as here, relevant information is not available until surgery or other forms of medical procedure are performed. For the TAC to accept to pay for the cost of a procedure cannot have the effect of precluding them from later contesting the issue of causation, perhaps on the basis of the information obtained from the very procedure that it paid for. Nor, for similar reasons, ought such payment be treated as having the evidentiary value of an admission because the question of causation may well be a live one until all the procedures have been completed. It would be contrary to the administration of the compensation scheme as a whole if the TAC resisted paying for medical procedures that might reduce the pain and suffering of someone injured in a transport accident on the basis that if it did so it would be regarded, at law, as having made an admission.[31]

18 In Bedeux v Transport Accident Commission,[32] the plaintiff claimed that he had suffered a left knee injury in the course of his employment with Australia Post, whilst driving a motor cycle. His employer accepted his claim and paid him statutory benefits. When the plaintiff subsequently made a serious injury application, the TAC disputed that the injury had been sustained as a result of the transport accident. A critical fact in issue at the OM hearing was the nature and extent of the injury sustained in the accident. The Court of Appeal held that acceptance by the employer of the plaintiff's claim could not constitute an admission by the TAC and such evidence was of 'no evidentiary value'[33] to the Court's determination of causation. In those circumstances, the reasoning of the Court of Appeal in Ansett did not apply.[34]

19 With respect to the aforementioned decisions, I note the following commentary by Bell J in Mert (discussed below):

I think it is clear from the judgments of the Court of Appeal in Ansett, as subsequently explained, and Fokas, Florrimell and Bedeux that the relevance in a separate common law proceeding of an employer's 'acceptance', by statutory agency, of a claim for statutory benefits by an employee must depend upon careful assessment of the particular facts and circumstances rather than upon any general rule of law or fact.[35]

20 In Raeburn, the plaintiff claimed that he suffered injury to his right knee in the course of his employment when he overbalanced when stepping on to a propeller shaft. During the trial, and again before the close of the plaintiff's case, counsel for the plaintiff sought an admission from the defendant that the plaintiff's entitlement to payments of weekly compensation continued at the time of trial because it had been determined (on behalf of the defendant) that, inter alia, the plaintiff had an indefinite incapacity to work.[36]

21 In refusing the plaintiff's request for the admission sought, Justice Cummins considered the admission was 'unsupported in fact'[37] because the defendant had not denied that the injury occurred at the workplace. It was noted that the primary issue litigated between the parties was the cause of the plaintiff overbalancing or not, and whether there was any negligence on the part of the employer.[38]

22 Further, the court ruled that the admission was misconceived in law on the basis that:

It confuses actions by one entity with those of another. It also confuses the purposes of such actions. Section 93CC involves assessment and payment by the Authority or self-insurer. The only reference to the employer is in s.93CC(3)(c) which here is inconsequential as the plaintiff after six months was no longer was (sic) employed by the defendant. The plaintiff's submission convolutes statutory subrogation whereby the Authority conducts a case on behalf of a defendant into a reverse relationship of the defendant having as its agent the Authority. The illogicality of such proposition is clear; the fact that the Authority pays a medical bill or makes a weekly payment does not constitute an admission by the defendant.[39]

23 On the distinction between the actions of the Authority and an employer under the relevant scheme, Cummins J stated that:

[a]lthough discrete sections of the Act equate the actions of one entity (such as the Authority) with another (such as an employer), those provisions are specific and for finite purposes; neither by provision or scheme is there an holistic conflation of entities or of their actions one with the other.[40]

24 Finally, the court rejected the plaintiff's attempt to rely upon Ansett, as that decision concerned the interrelationship between a lump sum claim and an OM hearing, not the common law situation.[41]

25 In Cairns, a key issue in the jury trial, was whether the plaintiff suffered his injury at work on the date alleged. The defendant contended that the plaintiff had suffered the injury two days later whilst undertaking tasks unrelated to his employment. Prior to the close of the plaintiff's case, counsel for the plaintiff sought an admission from the defendant that, in furtherance of the acceptance of the Workcover claim, the defendant had paid and continued to pay the plaintiff's medical and like expenses. The plaintiff sought to use the admission as a basis for inviting the jury to infer that the plaintiff had suffered injury in the course of his employment.

26 Justice Rush (as he then was) ruled that the plaintiff could obtain an admission from the defendant that it had accepted the plaintiff's WorkCover claim in respect of the claimed injury at work, and that it had continued to pay the plaintiff medical and like expenses.

27 In his judgment, His Honour identified other circumstances in which the mention of workers compensation may be relevant in a trial:

A defendant may cross-examine a plaintiff as to lack of motivation to work when in receipt of workers compensation. It would be contrary to logic and fairness to deny the plaintiff in such a situation the opportunity of using such payments as an admission that during the period the plaintiff received such payments, the defendant acknowledged the plaintiff was unfit for work or, in the appropriate case, that such payments constituted an admission on the part of the defendant that the injury arose out of or in the course of employment.[42]

28 Further, Rush J rejected the defendant's proposition that payment of compensation could be used as an admission in an OM hearing, but not at trial.[43]

29 Referring to the ruling of Cummins J in Raeburn, Rush J expressly disagreed with the finding that, in the context of the provisions of the Act, the Authority's conduct in making payments for medical expenses or weekly payments of compensation did not constitute an admission by the employer. Justice Rush explained:

A function of the Authority pursuant to s 20(1)(g) of the Act[44] is to 'defend actions against employers under this Act and at common law'. The liability to pay compensation where there is an entitlement lies with the employer. In my opinion, the Authority defends such actions as the statutory agent of the insured defendant employer...

Similarly, Ashley JA in Ansett clearly understood the Authority to be 'speaking for the employer'. The payment of medical expenses in this case is to be seen as payment by the defendant and capable of giving rise to the admission sought by the plaintiff.[45]

30 In Cairns, the defendant also contended that the evidence of the admission should be excluded pursuant to s 135 of the Evidence Act on the basis that to do so would have been misleading or confusing to a jury.[46] This submission was rejected by Rush J in the following terms:

The admission is capable of explanation in a straightforward and uncomplicated manner. Properly instructed, a jury could be expected to understand the comparatively straightforward way they could use this admission.[47]

...

The jury are not bound to act on the admission at all. It is part of all the evidence concerning the circumstances of the claimed incident that is the subject of the proceedings before the jury, a matter the jury is entitled to take into account, along with all other evidence, including evidence of the employer...that on one view pointed to the plaintiff not sustaining injury in the course of his employment.[48]

31 In deciding to permit the admission, Rush J considered several New South Wales decisions in which it was accepted that continued payments of compensation could be used as an admission in a trial.[49]

32 In Heuston v Yore Contractors Pty Ltd,[50] the plaintiff brought common law proceedings against the defendant in negligence for injuries suffered in the course of his employment. At hearing, Hunt CJ at CL considered whether continued payments of workers compensation amounted to an admission (against the defendant) that the plaintiff remained incapacitated at the time of trial as a result of his claimed injuries. The admissibility of the evidence in the jury trial was determined in advance of its tender.

33 The court held that the continued payment of compensation was admissible against the defendant as an admission that the plaintiff remained incapacitated as a result of the injuries suffered by him in the course of his employment.[51] It is relevant to note that compensation had been paid to the plaintiff for just under three years and continued at the time of trial. The court held that, in those circumstances, it was open to the jury to conclude that the defendant had accepted the plaintiff remained eligible for such payments because there had been no change of circumstances in relation to the plaintiff's incapacity.

34 Chief Justice Hunt expressly noted that such an admission is always open to explanation by way of evidence in the same way as any other informal admission is open to explanation.[52]

35 This proposition was subsequently approved by the New South Wales Court of Appeal in Morvatjou v Moradkhlani.[53]

36 In Mert, the plaintiff claimed damages based upon negligence and breach of statutory duty in respect of a back injury allegedly suffered in the course of her employment with the defendant. Just prior to the close of the plaintiff's case, she sought an admission from the defendant that it accepted liability for a lump sum claim for her lower back and psychological injury, based on a letter sent by the defendant's agent.

37 Applying a contextual approach,[54] Bell J concluded that a number of considerations 'swamp[ed] the status of the (supposed) admission'[55] such that it had little probative value in the proceeding, namely: that there was a difference in character between a damages claim based on negligence and a lump sum claim paid under the no fault system; the acceptance of liability for the lump sum claim was based upon the opinion of two doctors; the lump sum was for a relatively modest sum and acceptance of the claim may have been for pragmatic reasons, and the claim was strongly opposed by the employer (including writing on the lump sum claim form that the plaintiff was a liar).[56]

38 Thereafter, Bell J weighed the supposed admission against the dangers pursuant to s 135(a)-(c) of the Evidence Act.[57] The court refused to admit the evidence on the basis that doing so would have involved opening up, at a late stage in the proceedings: (i) new issues, (ii) the circumstances in which the 'admission' was made, (iii) the opposition of the employer to the acceptance of the plaintiff's claim, (iv) the role of CGU in the workers' compensation system (which would also have required explanation); and (v) the limited medical evidence upon which the acceptance was based.[58] His Honour also considered there was a risk that, if admitted, a disproportionate and undue amount of court time would be spent on an issue that did not warrant such attention. In view of those matters, Bell J considered that such evidence should be excluded under s 135.

39 Further, in Mert, Bell J noted the differing conclusions in Raeburn and Cairns as to whether acceptance of a worker's claim under the workers compensation system could be a relevant admission of liability in a separate common law proceeding against an employer for damages in respect of the same injury.[59] Having done so, Bell J expressed reservations as to whether acceptance of a lump sum claim could represent an admission (that the plaintiff was injured in the alleged incident) on behalf of the defendant for all purposes and specifically for the purpose of a negligence claim. However, having made such a comment, Bell J did not consider that matter further, and instead determined the application on the evidence and submissions before him.

40 In Sednaoui v AMAC Corrosion Protection Pty Ltd,[60] the Court of Appeal considered the above authorities (save for Pastras) in an appeal concerning the plaintiff's reliance upon the acceptance of his WorkCover claim for statutory benefits as an admission, on behalf of the employer, that he had been injured in compensable circumstances.[61] The plaintiff claimed that he suffered injury to his back in the course of his employment whilst moving heavy metal anodes with the defendant's factory manager. The plaintiff's WorkCover claim had been accepted by the defendant's authorised agent, Allianz Australia Workers' Compensation (Victoria) Ltd, and the plaintiff had been paid weekly payments and medical and like expenses. Central to the plaintiff's case in the OM hearing, was his reliance upon the acceptance of the claim form and payment of compensation as an admission by the defendant that the plaintiff had sustained a compensable injury.

41 However, in defending the application, the defendant relied upon evidence from its factory manager and general manager. Both disputed that the plaintiff had injured himself in the manner he claimed, and denied that he had complained about back pain. Evidence was adduced that, when the plaintiff initially lodged his WorkCover claim, the defendant's general manager informed the agent that it had specific concerns in respect of the claim. Notwithstanding those concerns, the agent accepted the claim. The trial judge was not satisfied that the plaintiff's injury occurred in compensable circumstances and dismissed the application.

42 The Court of Appeal dismissed the plaintiff's appeal and said as follows:

It may be accepted that the admission, constituted by the acceptance of the applicant's WorkCover claim form and the subsequent payment of compensation, was a significant admission. But the significance of the respondent's admission should not be overstated. It was an admission made on behalf of the respondent by a person employed by an entity (Allianz), in circumstances where that person and Allianz (by reference to whatever principles of attribution might be applied in respect of Allianz) did not have personal knowledge of the injury alleged in the claim form, or the circumstances of its alleged occurrence. Moreover, it was in part an admission of an event that was alleged to have happened on a date and time that the applicant accepted was incorrect. Thus, whatever else might be said, the admission could never have been accepted in its entirety by the judge. Additionally, the fact that sections of the Allianz letter of 30 October 2012 were based, in part, on information provided by the applicant, reduces, at least to some extent, the significance of (and weight to be attached to) the admission so far as it was constituted by the acceptance of the applicant's claim. It follows that, while, in different circumstances, an admission of the kind made in this case might be regarded as one of such significance as to almost be determinative of the issue in dispute, the present was not such a case.[62]

43 The Court of Appeal stated that the admission relied upon by the plaintiff did not:

mandate some conclusion contrary to that reached by the judge. The admission was a piece of evidence that had to be weighed in the balance against what might reasonably be thought to be a substantial body of evidence to the contrary.[63]

44 Further, the Court of Appeal made clear in Sednaoui that the observation in Ansett that such an admission 'should ordinarily be regarded as very significant' (set out at [18] above) was not a statement of legal principle. It stated that it would be erroneous to have regard to those words as if they were provisions of a statute which defined 'in precise and permanent terms the significance of any admission constituted by the acceptance of a claim form'.[64]

45 Relevant to this application, in Sednaoui, the Court of Appeal was referred to the decisions of Raeburn, Cairns, and Mert. I note that it did not expressly deal with the comments in those cases in respect of whether conduct of the Authority or agent could amount to an admission on behalf of an employer defendant. However, in concluding that acceptance of the WorkCover claim form and subsequent payment of compensation can amount to a significant admission, it can be inferred that the Court of Appeal did not agree with what was said in Raeburn.[65]

46 The above authorities establish that acceptance of a claim by a statutory authority under a no fault compensation scheme is capable of being an admission, subject to who made the admission, the nature and extent of the admission, and whether it is relevant to a fact in issue. Such an admission is rebuttable, and its significance is to be determined by the finder of facts in the trial.

47 In considering whether such conduct is admissible evidence in a trial, on the authorities as they stand, there is no logical basis to distinguish between a serious injury application, and a common law damages trial. The threshold question, in either type of trial, is whether the admission is relevant to a fact in issue.

48 The decisions in Raeburn, Cairns and Mert do not offer any definitive guidance as to whether continued payments under the scheme constitute an admission. In Raeburn, the admission was not considered relevant to a fact in issue - whether or not the plaintiff was injured in negligent circumstances as he alleged. In Cairns, the admission was considered relevant to a fact in issue - whether or not the plaintiff had been injured at work - and it was considered that a simple direction could be given to the jury regarding its use of the admission. In Mert, although capable of being relevant to fact in issue, the circumstances surrounding the acceptance of the lump sum claim were such that the dangers identified pursuant to s 135(a)-(c) of the Evidence Act substantially outweighed the limited probative value of the evidence.[66]

49 Here, Ms Sepe's WorkCover claim was accepted by Club Italia's agent after receiving an Employer's Claim Form. Unlike the employer in Sednaoui, there was no caution expressed by Club Italia in respect of the acceptance of the claim. The evidence was that the claim was accepted and thereafter, weekly payments of compensation were paid to Ms Sepe. Under the WIRC Act, as at the date of trial (save for an exception which was not relevant to this claim),[67] Ms Sepe was only entitled to weekly payments if she had an indefinite incapacity for all work. There was no evidence adduced in respect of any steps taken by the agent to terminate such payments.

50 In Patras, the failure by the Commonwealth to exercise a right of appeal to terminate payments was a sufficient basis to support an admission by conduct. In both Cairns and Sednaoui, ongoing weekly payments paid on behalf the employer amounted to an admission by conduct. Applying the same logical reasoning to what has occurred here, I am satisfied that the receipt of ongoing weekly payments to Ms Sepe was capable of constituting an admission by conduct.

51 Club Italia submitted that it was a separate and distinct entity from the agent, and it had no control over the actions of its agent. In support of this submission, Club Italia referred to the findings of Cummins J in Raeburn, that acceptance by an agent of the plaintiff's entitlement to weekly payments was not a relevant admission of liability on behalf of the employer.[68]

52 Under the WIRC Act, when a claim is made by an injured worker, it must be served on the employer or self-insurer, or in some circumstances, lodged with the Authority.[69] Both the Authority and employer are directly liable for injuries suffered by a worker, to pay compensation and damages under the WIRC Act.[70] Division 4 of Part 3 sets out the process by which an employer can request reasons and object to decisions made by the Authority in respect of a claim, including, relevant to this application, compensation in the form of weekly payments.[71] There are also provisions within the WIRC Act which enable the Authority to appoint an authorised agent to act on its behalf.[72] When the provisions of the Act are read together, there is no basis for Club Italia to contend that payments made by the agent on its behalf, cannot constitute an admission by it.

53 As stated above, I consider the comments by Cummins J in Raeburn no longer reflect the common law position given the conclusion reached by the Court of Appeal in Sednaoui. In the absence of evidence demonstrating that the employer objected to the conduct of the Authority or its agent (as in Mert), there is no basis to draw a distinction between the employer and the Authority (or its agent).

54 The relevance of this admission arose as, at trial, Club Italia disputed Ms Sepe's claim for past loss of earnings, and ultimately put to the jury that it should not compensate Ms Sepe for total loss of earning capacity beyond August 2021. I was satisfied that ongoing weekly payments, paid on behalf of Club Italia, was a rebuttable admission relevant to a fact in issue in this case - the quantum of Ms Sepe's past loss of earnings, which she claimed was a consequence of the injuries she sustained in the workplace incident. As is clear from Sednaoui, this is not a binding admission, but rather, a piece of the evidence capable of being weighed with the other evidence relevant to Ms Sepe's claim for past loss of earnings.

55 For the sake of completeness, as was demonstrated in Bedeux, an admission is only relevant evidence as against the entity whose conduct it was based upon. As counsel for Ms Sepe acknowledged, the admission could only be relevant as against Club Italia, and not August Property Services.

(2) Why the jury was able to be suitably instructed on the use of such an admission

56 Section 135 of the Evidence Act states as follows:

135 General discretion to exclude evidence

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

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time; or

...

57 Club Italia urged me to exclude the admission under s 135(a)-(c) of the Evidence Act on the basis that there was a long standing and well established tradition that matters pertaining to insurance and workers compensation should not be mentioned in a jury trial.[73] The justification for this is that it 'may operate just as unfairly to a plaintiff as a reference to insurance may operate against a defendant.'[74] Thus, if reference to such payments is merely a 'gratuitous irrelevance',[75] it must not be mentioned.

58 It is only if a plaintiff's entitlement under workers compensation is a relevant matter in the jury trial, that evidence in respect of such payments is justified.[76] In such cases, a limited direction can be given to the jury for the purpose of understanding why such evidence was led. For example, if Fox v Wood[77] damages cannot be agreed between counsel,[78] or if the defendant alleges that the weekly payments affected the plaintiff's motivation to work.

59 Club Italia submitted that there was no such justification in the circumstances of this case, and that I should exclude evidence of the admission from the jury. However, Ms Sepe submitted that, as Club Italia disputed her claim for past loss of earnings up to the date of the trial, its admission by conduct was relevant and probative of a matter in dispute between the parties.

60 Having considered the relevant principles in the cases referred to above, I was not satisfied that the admission should be excluded under s 135 of the Evidence Act. Unlike in Cairns or Mert, when the admission was sought towards the end of the plaintiff's case, the admission here was sought and determined prior to Ms Sepe commencing her evidence. As such, it was open to Club Italia to cross-examine Ms Sepe in respect of it. Further, it was open to Club Italia to call evidence from its agent to rebut the admission, or contend that it should have been given limited weight.[79] In view of those matters, I was not satisfied that the admission would be unfairly prejudicial to Club Italia.

61 Additionally, I was not satisfied that the admission would be misleading or confusing to the jury. As in Pastras, I considered that a simple direction could be given to the jury to enable it to understand the basis upon which the admission was made. I also considered that the jury was able to be clearly directed as to how it may use this admission, consistent with the comments by the Court of Appeal in Sednaoui.[80]

62 In view of those matters, I was satisfied that, properly directed, the admission was capable of being understood by the jury, including the way in which it may be used. Accordingly, after referring to the evidence given by Ms Sepe that she had received ongoing weekly payments, 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 to any hospital, medical or 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 1st 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 1st 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.

In the event that you answer question 1 as no,[81] and question 2 as yes,[82] that is if you find the first defendant not negligent and that only the second defendant was negligent, then you should disregard this evidence entirely as payments under the WorkCover scheme had nothing to do with the second defendant and thus was not an admission by it as to the plaintiff's work capacity.[83]

[1] The proceeding against the second defendant was discontinued in March 2023. As it was a jury trial, for clarity and ease of reference, the parties agreed to refer to August Property Services as the second defendant, although in the proceedings it remained named as the third defendant.

[2] On 30 March 2023, the jury delivered its verdict and found both defendants negligent; Ms Sepe was not contributorily negligent; and awarded damages.

[3] The admission was not in respect of conduct by August Property Services, and its counsel adopted the submissions made by Club Italia.

[4] As defined in Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act), s 3 (definition of 'authorised agent').

[5] Based on calculations of the first and second entitlements pursuant to s 152 of the WIRC Act (n 4).

[6] WIRC Act, s 3 (definition of 'Authority').

[9] [2006] VSC 390.

[10] [2014] VSC 129.

[11] [2016] VSC 348.

[12] Pastras v Commonwealth (1966) 9 FLR 152; Ansett Australia Ltd v Taylor [2006] VSCA 171; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Heuston v Yore Contractors Pty Ltd (unreported, Supreme Court of New South Wales, Hunt CJ, 9 March 1992); Transport Accident Commission v Florrimell [2013] VSCA 247; Bedeux v Transport Accident Commission [2016] VSCA 127; (2016) 76 MVR 50; Sednaoui v Amac Corrosion Protection Pty Ltd (2017) 52 VR 247.

[16] Accident Compensation Act 1985 (Vic), s 134AB.

[18] Transport Accident Act 1986 (Vic), s 93.

[20] Under the Accident Compensation Act, s 98C.

[39] Ibid, [8]. Section 93CC, which related to weekly payments of compensation after the expiry of the second entitlement period under the Accident Compensation Act, has since been repealed.

[44] The equivalent of section 20(1)(g) of the Accident Compensation Act is now s 493(1)(m) of the WIRC Act.

[46] Ibid, [24]. Reference is made in that paragraph to the Evidence Act 1995, albeit Rush J referred to the Evidence Act 2008 (Vic) as applying earlier in the reasons: at [7].

[49] Heuston (n 12); Morvatjou v Moradkhani [2013] NSWCA 157; Gordon v Ross [2006] NSWCA 157.

[53] [2013] NSWCA 157, [85].

[57] Evidence Act, s 135(a)-(c) is set out below at [56].

[59] Ibid, [6]. I note that Bell J stated that the admission sought in Cairns was in respect of the plaintiff's lump sum claim, however it was in respect of the plaintiff's medical and like expenses. Nothing turns on this error.

[66] Mert (n 11), [14]. The basis for excluding such evidence under s 135 of the Evidence Act is discussed below.

[67] Section 165(1) of the WIRC Act, which provides for payments beyond the second entitlement period if the Authority is satisfied of certain criteria, including that the worker has returned to work for at least 15 hours a week due to the injury, but is incapable of doing extra hours to increase the worker's current weekly earning.

[73] Rowe v Edwards [1934] HCA 32; (1934) 51 CLR 351; Fitzpatrick v Walter E Cooper Pty Ltd [1935] HCA 82; (1935) 54 CLR 200; Chatzipantelis v Grimwade Castings Pty Ltd [1966] VicRp 33; [1966] VR 242, 245; Baulch v Lyndoch Warrnambool Inc (2010) 27 VR 1; Li v Toyota Motor Corporation Australia Ltd (Ruling No 3) [2010] VSC 448.

[75] Fitzpatrick v Walter E Cooper Pty Ltd [1935] HCA 82; (1935) 54 CLR 200, 216.

[76] Chatzipantelis v Grimwade Castings Pty Ltd [1966] VicRp 33; [1966] VR 242, 245; Baulch v Lyndoch Warrnambool Inc (2010) 27 VR 1; Li v Toyota Motor Corporation Australia Ltd (Ruling No 3) [2010] VSC 448.

[77] [1981] HCA 41; (1981) 148 CLR 438.

[78] In Baulch v Lyndoch Warrnambool Inc (2010) 27 VR 1, 15 [65], the Court of Appeal noted that counsel had agreed to the Fox v Wood component of damages, and therefore only the briefest of references to workers compensation was required. It can be inferred from this comment that if Fox v Wood damages are not agreed, it would be appropriate to provide the jury with sufficient detail about the workers compensation system so as to understand the basis for the claim for this component of damages.

[79] I note for the sake of completeness, Club Italia did not call any evidence to rebut the admission.

[81] Jury question 1 was: Was there negligence on behalf of the First Defendant which was a cause of the Plaintiff's injury, loss and damage?

[82] Jury question 2 was: Was there negligence on behalf of the Second Defendant which was a cause of the Plaintiff's injury loss and damage?

[83] No exceptions were taken with respect to the contents of this aspect of my charge.