By Stuart Eustice, Partner, Holly White, Associate, and Lidia Martinez Chavez, Lawyer

Background

Jason Mifsud (plaintiff) was employed as a spray painter by Westar Prestige Paint & Panel Pty Ltd (defendant) and sought damages for work related injuries resulting from exposure to hazardous chemicals. The plaintiff received WorkCover payments which ceased after 130 weeks and were resumed following a Medical Panel determination.  Despite acknowledging the injury, the defendant contested liability in addition to the plaintiff’s incapacity for employment.

Legal Issue

The Court was asked to consider whether the resumption of WorkCover payments constituted an implicit admission by the defendant of the plaintiff’s incapacity to work and whether evidence of compensation payments should be admitted based on relevance, probative value, and the potential to mislead or prejudice the jury.

Submissions

The plaintiff argued the voluntary resumption of weekly payments subsequent to the receipt of the Medical Panel determination was evidence that the defendant’s actions constituted an admission of liability. In contrast, the defendant argued that the resumption of payments was a pragmatic decision rather than an admission of incapacity.

Findings

The Court emphasised that each case is unique, noting differences from Sepe Club Italia Sporting Club Inc & Anor (Ruling)[1] and Cairns v Trowelcoat Pty Ltd.[2] The Court evaluated the admissibility and relevance of evidence concerning the plaintiff’s work capacity, particularly focusing on the cessation and resumption of weekly payments. While payments had ceased between late 2018 and 2021, suggesting the defendant’s non-acceptance of the plaintiff’s lack of work capacity during this period, the Court considered the resumption of payments in late 2021, after the Medical Panel determination, was indicative of an acknowledgment of the plaintiff’s incapacity at that time. The Court held the relevance of this evidence outweighed potential prejudicial effects, which could be addressed through appropriate jury instructions. The case progressed to trial but was resolved on the third day.

Conclusion

The reinstated WorkCover payments were deemed admissible as they could be construed as an admission by conduct made by the defendant of the plaintiff’s incapacity. The Court concluded that with suitable jury instructions, the evidence could be comprehended and fairly considered without conflating the issues of liability and incapacity.

[1] [2023] VSC 191.

[2] [2014] VSC 129.