Plaintiff v Defendant

2 On 3 June 2020, Dr David Kennedy, sports and industrial physician, certified that the degree of impairment resulting from the plaintiff's injury was more than 5%.[1]

3 The first defendant referred to a medical panel the question of whether the degree of impairment resulting from physical injury to the plaintiff satisfied the 'threshold level' identified in the Wrongs Act 1958 (Vic) (the Act).

4 On 21 October 2020, the plaintiff was interviewed and examined by the Panel, comprising Mr John Bourke, orthopaedic surgeon, and Professor Geoffrey Littlejohn, rheumatologist.

5 On 16 November 2020, the Panel answered the medical question as follows -

The Panel determined that the degree of whole person impairment resulting from the physical injury to the claimant (Ms O'Connell) alleged in the claim does not satisfy the threshold level.[2]

6 In its reasons for determination,[3] the Panel referred to -

(a) the plaintiff's claim that she had sustained physical injuries to the lumbar spine, neck, hip joint, left leg and right leg in the incident on 25 March 2019;

(b) the plaintiff's account of the incident;

(c) the plaintiff's account of subsequent treatment, radiological investigations, impaired mobility and use of medications;

(d) the plaintiff's account of an incident 'four months ago' where she had been sitting on a toybox and suffered five minutes of paralysis and a left leg that was still numb;

(e) the plaintiff's account of her 'past low back history' going back some 34 years, including treatment by a physiotherapist on 21 March 2019 after sleeping on a 'bad mattress';

(f) current history and treatment, including 'stress and urge incontinence of bladder function';

(g) a physical examination that, among other things, revealed no wasting of the lower limbs; and

(h) radiological investigations that revealed pre-existing degenerative changes (lumbar spondylosis) in the lower lumbar spine.

7 The Panel thereafter stated its diagnostic conclusions and undertook an impairment assessment by reference to the AMA Guides.[4]

8 The Panel addressed the issue of 'apportionment', in which connection it referred to sub-s 28LL(3) of the Act and relevant authority.[5] The Panel thereafter stated that -

The Panel, noting her significant history of low back pain both prior to and after 'the incident' on 25 March 2019, is of the opinion that there is evidence of impairment from an unrelated injury or cause that is playing a part in Ms Mc Connell's [sic: O'Connell's] current impairment of her lumbosacral spine and which the Panel is obliged to disregard in accordance with Section 28LL(3) of the Act.[6]

9 The Panel recorded that it had assessed the degree of pre-existing and unrelated impairment attributable to the lumbosacral spine region and, after disregarding that impairment, concluded that -

the degree of whole person impairment resulting from the lumbar spine injury to Ms McConnell [sic: O'Connell] alleged in the claim is permanent but it is not 5% or more, which does not satisfy the threshold level prescribed in Section 28LB of the Act as amended.[7]

10 By amended originating motion, the plaintiff claims, among other things, an order in the nature of certiorari quashing the determination of the Medical Panel and remitting the medical question to a differently constituted Panel to be reconsidered in accordance with the law.[8]

11 In substance, the plaintiff advances complaints of error in respect of -

(a) the Panel's consideration of any pre-existing impairment of the plaintiff's lower back;

(b) the Panel's consideration of any subsequent impairment of the plaintiff's lower back; and

(c) the Panel's consideration (if any) of the plaintiff's 'bladder dysfunction'.

12 In connection with the issues of subsequent impairment and 'bladder dysfunction', the plaintiff claims to have been denied procedural fairness.

13 Part VBA of the Act establishes thresholds in relation to the recovery of damages for non-economic loss. In that regard, s 28LB defines various terms appearing in Part VBA. 'Impairment' is there defined to mean 'permanent impairment'.

14 Section 28LL(3) of the Act provides as follows -

(3) For the purposes of this Part, impairments from unrelated injuries or causes are to be disregarded in making an assessment.

15 The principles relating to the construction and application of that section have been considered and outlined in many cases and are well established.[9] Section 28LL(3) applies to prior and subsequent impairments. The Panel is required to use its knowledge and expertise to assess a question of degree.[10] Section 28LL(3) does not mandate that the assessment be undertaken in accordance with the AMA Guides.

the Panel did not receive a history, nor make a factual finding, that there was permanent 'impairment' of the low back, prior to the incident. The Panel plainly did not make any finding of a 'static' symptomatic situation, on the basis of evidence before it.[11]

17 In address, senior counsel for the plaintiff developed that submission as follows -

(a) the plaintiff's account of prior back pain amounted to 'intermittent' and 'isolated' episodes that resolved and allowed her to 'carry on life' as she 'otherwise would have';[12]

(b) in that regard, the plaintiff was roller skating at the time of injury;[13]

(c) the meaning of 'permanent impairment' is stated in the AMA Guides and, in that regard, 'impairment is the functional consequence not the physical condition';[14]

(d) the Panel had erred in referring to the plaintiff's prior back history as 'playing a part' in her present condition, in that it had 'disregarded the very subject matter of the claim itself';[15] and

(e) there was 'no permanent impairment in what happened apart from the event of 25 March 2019'.[16]

18 The Panel plainly understood that the plaintiff claimed to have injured her lumbar spine in the 'roller skating' incident on 25 March 2019. In that connection, in its reasons the Panel referred, among other things, to the plaintiff's complaints of subsequent pain and restriction as well as her attendances for treatment and radiological investigations that revealed 'pre-existing lumbar spondylosis with broad-based disc bulges'.[17]

19 The Panel assessed the plaintiff's impairment of the back and whole person by reference to the relevant parts of the AMA Guides.[18] There was no suggestion that the Panel's approach to those assessments was in error.

20 The Panel also recorded the plaintiff's 'past history' as follows -

Ms O'Connell said her past low back history includes having been kicked in the back by her then partner some 34 years ago, after which she said was paralysed in her low back and lower limbs for six weeks. She said she had learnt to walk again over the following four months and she had continued to have low back pain for several years. Her back pain had settled down. She had a tram accident in 2008 in which the tram jerked, resulting in her having low back pain for a few months. In 2012 she had another episode of low back pain but was unsure as to what the cause of the episode was. She had a CT scan on the lumbar spine, what was reported as showing a lower lumbar disc bulge.

The Panel notes from the notes provided with the Referral that she had attended a physiotherapist on 21 March 2019 for treatment of her lower back region which was related to sleeping on a bad mattress on 14 March 2019. At the time of her initial assessment by the physiotherapist on 21 March 2019, she had a restriction of lower back movements by pain and discomfort, particularly the movements of extension and lateral flexion to the left side. When Ms McConnell [sic: O'Connell] was asked about this episode, she said she could not remember it having occurred.[19]

21 The 'past history', as recorded, did not include any description of the plaintiff's back pain over a period of 34 years as 'minor', 'resolved', 'intermittent' or 'isolated'. It did, however, refer to an 'episode' in 2012 and another in 2019.

22 Counsel for the first defendant made the point that the plaintiff had evidently been unable to remember the cause of the episode in 2012 or, indeed, the episode in 2019. Implicitly, counsel's submission was that back pain had been such a feature of the plaintiff's presentation prior to the roller skating incident that she was unable to differentiate the cause of particular 'episodes'.

23 The Panel plainly did not interpret the plaintiff's account of her 'past history' as one of mere 'isolated' incidents that wholly resolved. In that regard, when later addressing the issue of 'apportionment', the Panel referred to the plaintiff's 'significant history of low back pain'.[20] The manner in which the Panel described that history suggests that it accepted that the history of pain was 'significant' and so involving more than simply 'isolated' or intermittent episodes punctuated by lengthy periods of total resolution.

24 I am conscious that the Panel had the benefit of hearing the plaintiff's account of her 'past history'. It also seems to me to have been open to the Panel to perceive that history - as recorded - as more than simply one of incidents of minor pains that subsequently wholly resolved. In that regard -

(a) the Panel referred to radiological investigations that revealed 'pre-existing' and therefore continuing lumbar spondylosis and disc bulges;

(b) the Panel was entitled to conclude that such pathology could give rise to a 'significant' or ongoing history of 'back pain';

(c) the plaintiff had given the Panel a specific explanation of the initiation of that history, namely violent trauma 34 years ago that carried serious consequences (paralysis for six weeks; learning to walk again; back pain for years);

(d) the plaintiff had evidently said that the pain had 'settled down', but not that it wholly went away as if the vulnerability precipitated by such a significant trauma had never been instigated; and

(e) the subsequent history was indicative of a pathological vulnerability in the spine instigated by violent initial trauma and subsequently reflected in significant pain and disability provoked by innocuous incidents including, immediately prior to the incident on 25 March 2019, sleeping on a 'bad mattress'.

25 By contrast, I am conscious that Dr Kennedy - who had certified the degree of impairment resulting from the plaintiff's injury as satisfying the 'threshold level' - had obtained a history as follows -

She was kicked in the back by her partner about 34 years ago and had some back problems for several years but then the problems settled down, with no ongoing major musculoskeletal problems until this accident.[21]

26 Dr Kennedy's report was before the Panel. However, as I have noted, the Panel was given a much more complete history.

27 The Panel also had the report of Mr David Mahony, physiotherapist, that referred to an examination conducted immediately prior to the roller skating incident that had revealed 'all lower back movements' to be marked by 'pain and discomfort'.[22]

28 The report of Mr Mahony does not appear to have been provided to Dr Kennedy.[23] Further, as I have noted, Dr Kennedy recorded no history of back pain for many years prior to the roller skating incident. In addition, Dr Kennedy seems not to have been provided with the clinical notes of the plaintiff's general practitioners relating to her course of treatment after the roller skating incident.

29 Those notes, which were before the Panel, recorded -

(a) an 'active' past history of 'chronic lower back pain';[24]

(b) 'long standing back pain after being kicked in back';[25]

(c) back pain 'worse since roller skating accident four weeks ago';[26] and

(d) in a written referral for physiotherapy made shortly after the roller skating incident -

Thank you for seeing Ms Cindy O'Connell, a 53 year old lady, who fell down when roller-skating about four weeks ago and has had exacerbation of lower back pain.

Previous traumatic injury to back from assault.

Has pain with walking, getting in and out of bed and climbing up and down stairs. Difficulty doing dishes (this has been a problem before, but is worse now).[27]

30 In this regard, the Panel obtained a history and was given material well beyond that evidently provided to Dr Kennedy and upon which he had concluded that the roller skating incident precipitated injury involving 'acceleration and exacerbation of previously asymptomatic lumbar spondylosis'.[28]

31 In this context, the Panel's reference to a 'significant history of low back pain' is plainly a reference to a history of back pain and disability quite different to that recorded by Dr Kennedy.

32 Further, the Panel expressly considered that history to amount to 'evidence of impairment from an unrelated injury or cause' that it was 'obliged to disregard in accordance with Section 28LL(3) of the Act'.[29]

33 In that sense, the Panel evidently concluded that the plaintiff had an established and therefore 'significant' vulnerability to and experience of back pain prior to the roller skating incident. In my view, for the reasons that I have sought to outline, that conclusion was open to it.

34 Notwithstanding the above, as I have noted, senior counsel for the plaintiff sought to emphasise that the plaintiff had been roller skating on 25 March 2019. It followed, it was essentially submitted, that the 'mattress incident' was both a minor 'episode' and 'resolved' by the time of the roller skating a matter of days later.

35 In my view, none of that necessarily stood to displace or make unavailable the conclusion of the Panel that the plaintiff had a significant history of lower back pain prior to the incident on 25 March 2019 that amounted to evidence of impairment from an unrelated cause that it was consequently obliged to disregard.

36 In that regard, the Panel noted the 'mattress incident' and was told by the plaintiff that she had been roller skating at the time of the incident. What the Panel made of that was for it, having regard to the other evidence before it - to which I have referred - as well as its knowledge and expertise.

37 Senior counsel for the plaintiff also referred to the relevant definition section - s 28LB - which defines 'impairment' to mean 'permanent impairment'.[30] In that connection, counsel sought to emphasise the definitions of 'impairment' and 'permanent impairment' appearing in the Glossary to the AMA Guides.

38 The Glossary to the AMA Guides commences and reads relevantly as follows -

Definitions related to impairment assume importance, because terms associated with impairment evaluations may have special meanings in a legal context beyond their usual meanings in medical communications. This glossary provides a guide to the terms that should be used in reporting, analyzing, understanding, and discussing impairment evaluations and estimates carried out according to Guides criteria. It also defines important terms in the fields of disability, workers' compensation, and short- and long-term disability and considers Social Security System disability determinations and the Americans with Disabilities Act of 1992.

Terms Used in Assessments According to Guides

1. Impairment: Impairment is the loss, loss of use or derangement of any body part, system or function.

Permanent impairment is impairment that has become static or well stabilized with or without medical treatment and is not likely to remit despite medical treatment.

A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment. If an impairment is not permanent, it is inappropriate to characterize it as such and evaluate it according to Guides criteria.

Evaluation of permanent impairment is acquisition and analysis of information, including clinical evaluation, that is carried out according to Chapters 1 and 2 and other applicable parts of the Guides.

39 It will be evident that, among other things, the quoted definitions of 'impairment' and 'permanent impairment' are specifically directed to assessments undertaken 'according to Guides'. The defined terms are also specifically intended to have a role in American workers' compensation, social security and disability law, including particular American disability legislation.

40 In Alcoa Holdings Ltd v Lowthian & Ors,[31] J Forrest J considered the relationship between the AMA Guides and s 91(7)(a) of the Accident Compensation Act 1985 (Vic), which provision was in terms materially identical to s 28LL(3) of the Act.[32] His Honour there stated that in determining what to disregard the Panel is 'not bound to apply the Guides' and referred to the 'tension' between the requirements of the Guides and the statutory provision.[33] The relevant parts of that passage of reasoning were later referred to with approval by the Court of Appeal in Lingenberg v Gallichio.[34]

41 In the present context, it seems to me to follow that -

(a) care must be taken in approaching the defined terms appearing in the Glossary to the AMA Guides;

(b) in particular, while those definitions are arguably relevant, they should not be taken to stand in substitution for the statutory definition;

(c) in that regard, a panel must ultimately be mindful of and apply the statutory definition of 'impairment', namely 'permanent impairment'; and

(d) whilst that definition has an element of circularity to it, there is no indication that the term 'impairment' should bear other than its natural and ordinary meaning.

42 The natural and ordinary meaning of 'impairment' is that a particular body function or part is damaged or weakened. That meaning is not far removed from the definition appearing in the Glossary to the AMA Guides, which refers to 'loss, loss of use, or derangement'.

43 Those meanings to do not depend solely upon the demonstration of pain or inhibition in wider bodily functionality, although such features may be able to be said to be indicative of damage or weakness in a body function or part. Nonetheless, pain and restricted wider bodily function are not the only possible or relevant consequences of bodily damage or weakness.[35]

44 It follows that the submission of senior counsel for the plaintiff that 'impairment is the functional consequence'[36] cannot be accepted as a complete statement of what might be said to comprise or be indicative of underlying bodily damage or weakness.

45 Notwithstanding the above, spinal degeneration that is asymptomatic and might never become symptomatic but for an incident of injury may be an instance in which it could be determined, on the whole of the evidence, that there was no pre-existing permanent impairment.[37] In that instance, pain and disability provoked in the setting of degenerative spinal changes is the marker of the bodily weakness or dysfunction. In such an instance, there is very often no other evident dysfunction prior to the incident of injury.

46 As I have indicated, in the present instance it was open to the Panel to conclude that it was not a case of asymptomatic spinal degeneration made symptomatic only by an incident on 25 March 2019. As the Panel observed, the plaintiff had 'pre-existing' degenerative changes in the spine detected on radiological investigation as well as a 'significant history of back pain' prior to the roller skating incident. In that regard, I do not regard the Panel as having erred in concluding that the circumstances to which I have referred amounted to 'evidence of impairment from an unrelated injury or cause'.[38]

47 In my view, in so concluding, the Panel was mindful of the statutory requirement to disregard only an unrelated 'impairment' that was 'permanent', albeit that the Panel did not there specifically refer to the underlying statutory definition of 'impairment'.

48 In that regard, the circumstances before the Panel were indicative of a low back impairment prior to the roller skating incident that was well established and therefore likely to be permanent: there was established degenerative pathology in the spine, that pathology was made symptomatic long ago by an incident of significant trauma, the plaintiff had since experienced a 'significant history of back pain', there was evidence that it was 'chronic low back pain' and there was no suggestion that the pain had been susceptible to surgical amelioration prior to the roller skating incident (or since).

49 Further, inasmuch as the definition in the AMA Guides might be thought to be relevant, it seems to me to have been open to the Panel to consider that it was satisfied: the plaintiff's 'significant history of back pain' and pathological weakness was well stabilized - in the sense of well established - and, on the evidence, not identified as likely to remit with or without medical treatment.

50 In any event, it is apparent from the terms of the Panel's reasons that it was mindful of the underlying statutory provisions and applicable principles. In particular -

(a) the Panel referred to both s 28LL(3) and applicable authority;[39]

(b) at various points the Panel specifically referred to relevant statutory provisions (including s 28LB, in which provision the term 'impairment' is defined);[40]

(c) at more than one point the Panel addressed the correct statutory concept, in that it considered 'impairment from an unrelated injury or cause' to continue to 'play a part' in her 'current impairment'[41] and it also identified that condition as a 'pre-existing and unrelated impairment', which it disregarded;[42] and

(d) the Panel thereafter directed its attention to an 'impairment' that is 'permanent';[43]

all of which indicates that in the broader passage of reasoning to which I have referred the Panel must have been mindful of the underlying statutory definition.

[Emphases added]

51 In light of the above, I do not accept that the Panel erred by approaching the present issue in a manner that caused it to 'disregard the subject matter of the claim'. The approach of the present Panel was in no way equivalent to that which moved the Court of Appeal in Lingenberg.[44] Indeed, it is plain from the Panel's reasons that it undertook an assessment of the plaintiff's back and whole person impairment with reference to the AMA Guides and then considered the question of 'apportionment' by reference to s 28LL(3).

52 In that regard, the Panel disregarded 'the degree' of the 'pre-existing and unrelated impairment' and thereafter considered 'the degree' of impairment resulting from the lumbar spine injury alleged in the claim not to satisfy the 'threshold level'. That reasoning did not 'disregard' the subject matter of the claim; it expressly took it into account, but disregarded 'the degree' of unrelated impairment as instructed by s 28LL(3).

53 Finally, I do not accept that the Panel's reference to the plaintiff's prior back condition 'playing a part' in her 'current impairment' led the Panel into error. That expression appears in centrally relevant and applicable authorities, including Alcoa Holdings[45] and Lingenberg.[46] It also appears in the passages from the reasoning of Niall JA in Neppessen,[47] which the Panel quoted.[48] It was not submitted that any of those cases were erroneously decided and I do not consider the Panel to have misused the passage of reasoning to which it referred.

54 In light of the above, the plaintiff's complaints concerning the Panel's consideration of her pre-existing impairment and s 28LL(3) of the Act must be rejected.

55 As noted, s 28LL(3) applies to prior and subsequent unrelated impairments. The Panel noted accordingly in its reasons.[49]

56 The plaintiff contended that the Panel had erred in considering a subsequent impairment arising from the 'toybox' incident, described in its reasons as follows -

Ms O'Connell said some four months ago she was sitting on a toybox when she went to kick a packet of chips. Both her lower limbs went up in the air and then down and she said she was paralysed for five minutes. She said her left leg was still numb as a result of this episode.[50]

57 In that connection, senior counsel for the plaintiff submitted that -

It is not clear from the Panel's reasoning what it did about the toy box (indistinct) and it is not clear whether it took the numbness of the (indistinct) resulting from the toy box incident as a subsequent impairment which was thought to be disregarded, or whether they should have regarded the incident (indistinct) of her impaired position of the spine.[51]

58 I do not accept that the Panel considered the 'toybox incident' to be relevant to the assessment of impairment merely because it was recorded as a matter of history given by the plaintiff when she attended the Panel.

59 In any event, it is plain from the later reasons of the Panel that no impairment relating to the subsequent 'toybox incident' was accepted or taken into account. As I have noted, the Panel was mindful that an unrelated injury or cause could be 'pre-existing or subsequent'. Further, in determining the issue, the Panel stated -

The Panel assessed the degree of pre-existing and unrelated impairment attributable to the lumbosacral spine region and after disregarding the impairment, the Panel concluded that ...[52]

60 It follows that the Panel ultimately assessed and found no subsequent impairment that needed to be disregarded.

61 Even if circumstances of the present kind could ever give rise to an obligation upon the Panel to afford the plaintiff a specific opportunity to make submissions (about which I express no view), any such denial of procedural fairness is immaterial: the Panel did not find, and so did not take into account 'against' the plaintiff any subsequent impairment arising from the 'toybox incident'.

62 The plaintiff's points concerning 'bladder dysfunction' are of a similar kind.

63 In connection with the plaintiff's 'current history and treatment', among a considerable number of other things, the Panel recorded,-

She has both stress and urge incontinence of bladder function.[53]

The Panel has mentioned it specifically, and they must have mentioned it in the context of relevance, but it does not appear, in our submission, that they have dealt with it at all in the context of making their assessment or if they have, given any reason for disregarding it.[54]

65 It was submitted that if the 'bladder dysfunction' could be related to the lower back impairment an issue of combination might arise under the AMA Guides.

66 Senior counsel also submitted that the plaintiff had been denied procedural fairness in that she should have been given a 'reasonable opportunity to make submissions' concerning 'bladder dysfunction'.[55]

67 It is evident from the Panel's reasons that it was mindful of its function to assess the claimed injuries. Those injuries did not include 'bladder dysfunction'.[56]

68 In the present circumstances, I do not accept that the history given by the plaintiff to the Panel concerning 'bladder dysfunction' gave rise to any obligation upon the Panel to invite her representatives to make specific submissions. In that regard -

(a) it not evident from the reasons of the Panel that the plaintiff related 'bladder dysfunction' to the effects of the roller skating incident and nor, in my view, did the Panel - it was simply a matter of history;

(b) if, in fact, the plaintiff had thought that 'bladder dysfunction' had come on after and therefore was a consequence of the roller skating incident she presumably would have told her representatives (or Dr Kennedy) - but, as I have noted, it was not among the claimed injuries;

(c) indeed, the clinical notes before the Panel included reference to a consultation shortly after the roller skating incident that referred to 'lumbar back pain' and, in that connection, stated 'bowel & bladder function not affected';[57]

(d) more broadly, there might be thought to have been material before the Panel suggestive of causes or matters of more direct relevance to any 'bladder dysfunction' in a case in which radiological investigation and the Panel's examination did not obviously record any neurological involvement in the back pain, namely a similarly recent clinical note recording 'longstanding bowel motion difficulty'[58] and the history recorded by Dr Kennedy to the effect that the plaintiff had nine children.[59]

69 In short, contrary to the submission advanced by senior counsel for the plaintiff, any potential matter of any 'bladder dysfunction' was not 'new' when the plaintiff gave that history to the Panel.[60] Further, that matter was not sought to be related to the present impairment by the plaintiff, her lawyers or Dr Kennedy.

70 In this connection, as I have indicated, the Panel did no more than receive the plaintiff's history of 'incontinence'. In the circumstances, it was not obliged to and evidently did not relate that complaint to the plaintiff's claims of back pain (without neurological involvement). Moreover, the Panel stated that it 'assessed all the potentially compensable injuries in accordance with the Guides'.[61] In the present circumstances there is no reason not to take that statement on its face.

71 It follows that I do not accept that the Panel erred in failing to consider 'bladder dysfunction' as an impairment related to the plaintiff's complaints of back pain arising from the roller skating incident.

72 The plaintiff's complaints in respect of the Panel's treatment of the issue of 'bladder dysfunction' must be rejected.

73 The plaintiff's amended originating motion must be dismissed.

[4] American Medical Association Guides to the Evaluation of Permanent Impairment (4th Edition) ('AMA Guides').

[5] City of Melbourne v Neppessen [2019] VSC 84 ('Neppessen').

[9] See, among others, Alcoa Holdings Ltd v Lowthian & Ors [2011] VSC 245, Chua v Lowthian [2011] VSC 468, Lingenberg v Gallichio [2013] VSCA 143; (2013) 40 VR 60, Wilson v Liquorland Australia Pty Ltd [2014] VSC 545, City of Melbourne v Neppessen [2019] VSC 84, Ingle v Australia Pacific Airports (Melbourne) Pty Ltd [2021] VSC 50 and Wojcik v General Carrying Pty Ltd [2021] VSC 233.

[10] Cf., Sidiqi v Kotsios & Ors [2021] VSCA 187 [30]-[41].

[30] Cf., Chua v Lowthian [2011] VSC 468 [40]-[41].

[31] [2011] VSC 245 ('Alcoa Holdings').

[32] Cf., Ingle v Australia Pacific Airports (Melbourne) Pty Ltd & Ors [2021] VSC 50 [51] ('Ingle').

[33] Alcoa Holdings (n 31) [67]-[76].

[34] [2013] VSCA 143; (2013) 40 VR 60 [28]-[29] ('Lingenberg').

[35] Cf., Leemark Fire Protection Pty Ltd v Malios & Ors [2014] VSC 654 and Wojcik v General Carrying Pty Ltd [2021] VSC 233.

[37] Cf., Wilson v Liquorland Australia Pty Ltd [2014] VSC 545.

[44] Lingenberg (n 34). Or, more recently, Cavanough J in Ingle (n 32).

[46] Lingenberg (n 34) [29] & [36].

[47] Neppessen (n 5) [122]-[123].