Plaintiff v Defendants

2 Under Part VBA of the Wrongs Act 1958, a claimant must satisfy the 'significant injury' threshold in order to be entitled to recover damages for non-economic loss resulting from injury by fault of another person. Dr David Kennedy, a sports and industrial physician, assessed Mr Ramith's injuries and issued a certificate of assessment on 20 October 2022 pursuant to s 28LN of the Wrongs Act certifying that 'the degree of impairment resulting from [Mr Ramith's] injury is more than 5%'.[3]

3 The injuries alleged in the Statement of Claim issued in May 2023 were particularised as follows: [4]

PARTICULARS OF INJURY

a) Injury to the lumbar spine, including damage to the L4/L5 intervertebral disc and aggravation to the L5/S1 intervertebral disc.

b) Injury to the right hand, including fracture to the fifth proximal phalanx.

c) Restricted right hand movement.

d) Restricted lumbar spine movement.

e) Reduced grip strength.

f) Aggravation of pre-existing depression and anxiety.

g) Ongoing pain and related reduction in physical activity.

4 On 15 September 2023, Homes Victoria referred the following medical question to a Medical Panel pursuant to s 28LWE of the Wrongs Act:[5]

Does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level?

5 On 15 December 2023, the Panel gave its Certificate of Determination in response to the referred question. The Panel answered the referred question as follows:

The Panel determined that the degree of whole person impairment resulting from the injury to Mr Ramith alleged in the claim does not satisfy the threshold level.[6]

6 The Panel also gave Reasons for Determination dated 14 December 2023. [7] The Panel gave the following diagnosis:

The Panel concluded that Mr Ramith is suffering from persisting dysfunction of the right little finger, with a rotational deformity, and persisting low back dysfunction, without radiculopathy, as a consequence of an aggravation of lumbar degenerative disc disease in the context of a previous lumbar laminectomy in 2010. The Panel considered that Mr Ramith's medical conditions have stabilised.[8]

7 Relevantly to the ground on which Mr Ramith seeks judicial review, the Panel recorded that it had assessed grip strength of Mr Ramith's right hand using a Jamar dynamometer, but that 'the responses were considered to be variable and unreliable and were not considered to represent maximal effort'.[9]

8 The Panel concluded, having regard to Mr Ramith's past history of having undergone spinal surgery in 2010, that there was evidence of an impairment from an unrelated injury or cause which was playing a part in Mr Ramith's impairment, and which was required to be disregarded in accordance with s 28LL(3) of the Wrongs Act.

9 The Panel determined that, disregarding the unrelated impairment:[10]

• the degree of whole person impairment resulting from the spinal injury to Mr Ramith alleged in the claim is permanent, but is not 5% or more and therefore does not satisfy the threshold level prescribed by Section 28LB of the Act as amended.
• after combining the whole person impairment attributable to all of the physical injuries to the claimant alleged in the claim using the formula prescribed on page 322 of the Guides, the degree of whole person impairment resulting from the spinal injury and/or the physical injuries to Mr Ramith alleged in the claim is permanent, but is not more than 5%.

10 Mr Ramith seeks judicial review of the Determination insofar as it relates to the Panel's assessment of Mr Ramith's right hand injury.

11 Mr Ramith's originating motion identifies a single ground of review, that he was 'denied or deprived of his natural justice or procedural fairness rights' by the Panel. The particulars of that ground contend in summary that the Panel's conclusion, following its examination of Mr Ramith and testing of his grip strength with the Jamar dynamometer that the responses to testing were 'variable and unreliable', involved 'an adverse view of [Mr Ramith's] credit'. It was said that: [11]

It was incumbent on the Medical Panel, having assessed grip strength using a Jamar dynamometer and formed the view that the results were "variable and unreliable and were not considered to represent maximal effort", to revert to the Plaintiff's solicitors, to inform them of same, and invite further submissions, comment, or materials to address its concerns about his credibility or whether he was applying "maximal effort" during the grip strength testing; and

The Medical Panel failed to take such steps, thus failing to accord natural justice or procedural fairness to the Plaintiff.

12 The Panel members (the second and third defendants) advised the Court that they would submit to such orders as may be made by the Court in this proceeding, consistent with the principles referred to by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[12]

13 The application for review raises for consideration:

(a) whether the Panel's conclusion following grip strength testing of Mr Ramith during examination of his right hand, that the responses were variable and unreliable and did not represent maximal effort, involved a finding as to Mr Ramith's credibility, as to which the Panel was obliged to give an opportunity for response;

(b) whether the Panel's conclusion that the grip strength testing was inconclusive required the Panel to raise the conclusion with the parties and permit them to respond; and

(c) whether the nature of the above matters was such that any response that Mr Ramith could have made could have made a difference to the Panel's determination, which relates to whether any breach of procedural fairness was material.

14 The material provided to the Panel with the referred medical question included a range of medical reports, including Dr Kennedy's certificate of assessment and a medical report dated 20 October 2022, health records, and the County Court Statement of Claim.

15 Dr Kennedy's report provided to the Panel included observations as to Mr Ramith's past medical history including that he had no previous history of right hand injuries or problems prior to the January 2021 accident. The report also included details of the January 2021 accident and of the subsequent assessment and x-ray which showed 'a fracture dislocation involving the right fifth proximal phalanx'.[13]

16 Dr Kennedy's report states that Mr Ramith had surgery on his right hand three weeks after the injury, following which it was immobilised; Mr Ramith underwent physiotherapy and hand therapy and that:[14]

On remotely assessing Mr Ramith's right hand, there was reduced movements at the MCP, PIP and DIP joints of the little finger and, to a lesser extent, the ring finger and Mr Ramith also demonstrated the weakness of gripping and grasping strength in the right hand on the ulnar side involving the ring and little fingers, as well as reduced pincer grip strength between the thumb and the ring and little fingers of the right hand when compared to the left side.

17 Dr Kennedy's conclusion was that:[15]

Mr Ramith, as a consequence of a fall down the stairs at his rental property on 22 January 2021, has sustained further injuries to his lumbar spine with what appears to be damage to the L4/5 intervertebral disc and further damage to the L5/S1 intervertebral disc, having previously undergone a laminectomy and discectomy for previous problems involving the L5/S1 intervertebral disc and this surgery had been performed in 2009 in Iraq.

Mr Ramith also injured his right hand, with a fracture dislocation at the base of the fifth proximal phalanx at the MCP joint, requiring open reduction and internal fixation of the fracture dislocation which was performed about three weeks after the initial injury.

...

Mr Ramith, as a consequence of the injuries sustained at the time of the fall on or about 22 January 2021 involving his lumbar spine and his right hand, has a whole person impairment of greater than 5% WPI.

18 The Panel conducted a medical examination of Mr Ramith in person, with an Arabic interpreter present, on 13 November 2023.[16]

19 After the Panel's examination of Mr Ramith, Homes Victoria made written submissions to the Panel. The submissions referred to various events from Mr Ramith's clinical records that pertained to his pre-existing back pain and stated:[17]

We submit that the only injury suffered by the plaintiff in the incident was a fractured 5th finger and the back injury and associated consequences is not associated with the incident (therefore any impairment resulting from the back should be disregarded).

20 The Panel was invited to respond to Homes Victoria's submission. Mr Ramith's legal representative advised the Panel by email that 'submissions on behalf of the Claimant are evident in his medical records provided and his presentation to the panel.'[18]

21 The Panel's Certificate of Determination set out the referred question and the Panel's answer to it as follows:[19]

Question: Does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level?

Answer: The Panel determined that the degree of whole person impairment resulting from the injury to Mr Ramith alleged in the claim does not satisfy the threshold level.

Date of Certificate: 15 December 2023

22 The Panel in its Reasons set out Mr Ramith's past medical history, noting that he had a past history of back pain and right leg pain for which he underwent spinal surgery on three separate occasions.[20]

23 The Panel also noted events following the January 2021 accident, in relation to his right hand injury, including:

(a) that the X-rays undertaken following the incident were reported to show a 'displaced comminuted fracture of the base of the fifth proximal phalanx, but no other abnormality;'[21]

(b) his right hand was in a plaster cast and he underwent an open reduction and internal fixation of the comminuted fracture, with two crossed K-wires which Mr Ramith said were removed after five weeks; and

(c) he underwent hand therapy for six months.

24 The Panel's Reasons record the following as to the medical examination of Mr Ramith as it related to his right hand injury: [22]

Examination of right hand revealed a normal colour and temperature, with normal hair growth and no visible scarring and no swelling. Range of motion of the thumb and the index, middle and ring fingers of the right hand was normal. There was a fixed flexion deformity of the proximal interphalangeal joint of the right little finger and a radial rotation deformity. Range of motion of the distal and proximal interphalangeal joints of the right fifth finger was mildly reduced. Grip strength was assessed using a Jamar dynamometer, but the responses were considered to be variable and unreliable and were not considered to represent maximal effort.[23]

25 The Panel, in concluding that Mr Ramith suffered from persisting dysfunction of the right little finger with rotational deformity, noted that it considered that Mr Ramith's medical conditions had stabilised. The Panel, having also found that Mr Ramith's back dysfunction was a 'consequence of an aggravation of lumbar degenerative disc disease, in the context of a previous lumbar laminectomy in 2010', stated that 'there is evidence of an impairment from an unrelated injury or cause which is playing a part in Mr Ramith's current impairment and which is required to be disregarded in accordance with Section 28LL(3) of the [Wrongs Act]'.[24]

26 The Panel referred to Dr Kennedy's report, but observed that it had 'difficulty identifying what evidence Dr Kennedy had used to arrive at his assessment of impairment as he did not cite any impairment assessment methodology from his remote examination.'[25]

27 The Panel noted that it conducted its impairment assessment according to the methods prescribed in the Guides (as required under the Wrongs Act), in particular Section 3.1 of Chapter Three in respect of injury to the right hand and right little finger, and considered no further information from Mr Ramith's treating practitioners was required.[26]

28 The Panel also considered that it was not required to make a finding as to whether Mr Ramith's impairment was caused by the incident but rather assessed impairment arising from the potentially compensable physical injuries. It also observed that it was precluded from providing further explanation or detailed reasons for its calculation of impairment by s 28LZG(4) of the Wrongs Act.

Wrongs Act 1958

29 Part VBA of the Wrongs Act deals with the recovery of damages for non-economic loss associated with an injury caused by the fault of another person, except in certain circumstances set out in s 28LC(2). For an individual to be entitled to claim damages for such non-economic loss in a court proceeding, they must satisfy the 'significant injury' threshold.[27] An injury is a 'significant injury' if, relevantly for present purposes, 'a Medical Panel has determined under Division 5 that the degree of impairment of the whole person resulting from the injury satisfies the threshold level'.[28]

30 The threshold level for injury other than psychiatric or spinal injury is impairment of more than five per cent.[29]

31 Division 5 of Part VBA of the Wrongs Act sets out the powers and procedures of a Medical Panel in respect of a question referred to it.[30] A Panel is not bound by rules or practices as to evidence, but may inform itself on any matter it thinks fit, and must act informally, without regard to technicalities or legal forms.[31] It may ask a claimant to meet with the Panel and answer questions and to submit to a medical examination by the Panel or by a member of the Panel.[32]

32 After making the assessment, a Panel must make its determination in accordance with s 28LZG. Where a Panel is able to determine the degree of impairment, 'the determination of the medical question must state whether the degree of impairment resulting from injury satisfies the threshold level but must not state the specific degree of impairment.'[33]

33 The assessment of impairment must be conducted in accordance with the AMA Guides[34] or other methods as prescribed by the Wrongs Act, and any operational guidelines issued by the Minister.[35] The section of the Guides relevant to the assessment by the Panel of grip strength is section 3.1m 'Impairment Due to Other Disorders of the Upper Extremity', which has a section titled 'Strength Evaluation'. That section makes the general observation that:

Because strength measurements are functional tests influenced by subjective factors that are difficult to control, and the Guides for the most part is based on anatomic impairment, the Guides does not assign a large role to such measurements. ...further research is needed before loss of grip and pinch strength is given a larger role in impairment evaluation.

34 The Guides, under the heading 'Grip and Pinch Strength', relevantly state:[36]

Grip strength measurements are taken with a Jamar dynamometer. The second (4 cm) or third (6 cm) position, according to the size of the hand, usually allows the patient to apply maximal force comfortably. In weaker hands, strength can be recorded with a sphygmomanometer rolled to 5 cm in diameter and inflated to 50mm Hg; as the cuff is squeezed, the increase in millimeters of mercury from 50 mm Hg represents the power of grip.

Two techniques have been reported to help detect individuals who exert less than maximal effort on grip strength testing. Stokes pointed out that the plotting of grip strength measurements from each of the five handle settings of the Jamar dynamometer would produce a bell-shaped curve. Those individuals not exerting maximal effort will produce results yielding a straight line or a flat curve.

An alternate method is the rapid exchange grip technique. The grip strength first is determined by standard techniques. The patient then is instructed to grip the dynamometer with maximal effort, first with one hand, then quickly with the other hand for at least five exchanges. Individuals who did not exert maximal effort with the standard technique will record significantly higher strength readings; if they become aware of this, the strength of both hands will drop dramatically.

...

If there is suspicion or evidence that the subject is exerting less than maximal effort, the grip strength measurements are invalid for estimating impairment.

35 The Guides provide a formula to calculate an index of loss of strength, which in turn is used to determine impairment of upper extremity.[37]

36 In submissions for Mr Ramith it is first noted that the existence of the injury to his right hand was not in issue, as it had been accepted by Homes Victoria in its submissions to the Panel that Mr Ramith had suffered a fractured 5th finger in the incident.[38] It was submitted that the issue of impairment in the form of 'reduced right-hand grip strength' was a matter which was central to a proper assessment of that injury, given that it was referred to as one of the particulars of injury in the Statement of Claim,[39] the s 28LWE referral form to the Panel completed by Homes Victoria,[40] and the medical report of Dr Kennedy. That report referred in the following ways to reduced right hand grip strength:

(a) under the heading 'Current Complaints and Capabilities' the following history was recounted:[41]

Reduced grip and grasp strength on the ulnar side of his right hand involving the ring and little fingers.

(b) under 'Clinical Assessment', Dr Kennedy observed: [42]

... reduced movements at the MCP, PIP and DIP joints of the little finger and, to a lesser extent, the ring finger, and Mr Ramith also demonstrated the weakness of gripping and grasping strength in the right hand on the ulnar side involving the ring and little fingers, as well as reduced pincer grip strength between the thumb and the ring and little fingers of the right hand when compared to the left side...

(c) under 'Opinion' Dr Kennedy stated:[43]

Mr Ramith ... has been unable to return to work as a truck driver because of problems with gripping and grasping strength in his right hand...

37 It is submitted for Mr Ramith that a fair reading of the Reasons indicates that the Panel's observations that responses to the Jamar dynamometer examination were variable and unreliable and not representative of maximal effort caused it to disregard 'Strength Evaluation' as a suitable method for assessing impairment. It was contended that in the context of the significance of the right hand injury, and Homes Victoria's apparent acceptance that there was an injury, the conclusion that the grip strength test results were unreliable involved a novel finding on an issue not the subject of any existing dispute.[44]

38 It was also submitted that the Panel's conclusions as to the unreliability of the results of the Jamar dynamometer testing in effect involved a finding as to Mr Ramith's credibility which was not then raised with him for comment, submissions or further materials which would give Mr Ramith an opportunity to persuade the Panel that he was experiencing genuine reduced grip strength.[45]

39 Counsel for Mr Ramith identified as the key authority supporting his position the decision Jankulovska v Hayman,[46] a case in which a Panel was found to have denied procedural fairness in rejecting the plaintiff's account of pain and mobility problems without giving the parties an opportunity to respond to the Panel's views. Counsel contended that the principle applied in that case was that:[47]

... when a plaintiff or examinee goes before a panel for assessment, when a medical question is referred to the panel, and where the landscape ... of the referral is such that the credibility of the plaintiff is not in issue or it is a neutral point, ... that if the panel is going to make a finding or observation that pertains to credibility, which is also important to its decision ... that it has to give some form of notice to the parties about that.

40 It was submitted, having regard to that case, that the central issues were whether the Panel did make a finding pertaining to credibility; whether matters as to credibility were in issue between the parties prior to the assessment, and whether the finding as to credibility was material to its decision.[48]

41 Homes Victoria submitted that there was no failure to provide procedural fairness. It was said first that the Panel had no obligation to alert Mr Ramith as to how it was forming views based on its assessment, and that the Panel's non-adversarial function did not extend to adjudicating on competing contentions as to Mr Ramith's performance on the medical examination.[49]

42 Homes Victoria emphasised that the function of the Panel is to give its own expert and independent opinion on the medical, not legal, question of whether the plaintiff's impairment met the threshold level.[50] In the present case, it was said:[51]

...The assessment of the plaintiff's exertion of effort on a Jamar dynamometer was a matter solely for the examining Panel to determine having made first-hand observations of the plaintiff's efforts. As conceded by the plaintiff, the Panel was 'entitled to consider whether a claimant is exerting less than maximal effort. This is clear from the text of the AMA Guides (see, pp.3/64 -3/65)'. Moreover, the directive of the AMA Guides at p.3/65 is clear: '[i]f there is suspicion or evidence that the subject is exerting less than maximal effort, the grip strength measurements are invalid for estimating impairment' (bolding added).

43 Homes Victoria also originally made submissions to the effect that the Panel was entitled to make credit findings, based on the application of its medical knowledge.[52] However, at the hearing it withdrew parts of its written submission which accepted that the Panel's finding as to the outcome of the grip testing involved an assessment of Mr Ramith's credit.[53] Instead, Homes Victoria submitted that the finding cannot be properly characterised as an adverse credit finding.[54] It was also submitted that the finding did not come out of the blue, as grip testing and potential performance outcomes from the testing were raised by the Guides and were within the parameters of the dispute.[55] The parties had an opportunity to be heard, and there was no obligation on it to invite further submissions on including to make submissions on grip strength testing outcomes.[56]

44 Homes Victoria also submitted that any breach of procedural fairness was not material. This was said to be because even had the Panel been obliged to invite a response to its conclusions arising from the Jamar dynamometer testing, there is nothing that could appropriately have been submitted by either party in response, and the invitation to address the issue would have been 'futile'. It was submitted that:[57]

... the assessment of the plaintiff's exertion of effort on grip testing, be it 'maximal' or otherwise, including whether that testing correlates to a finding of reduced grip strength - is borne entirely of the Panel's own medical assessment, experience and expertise, and is not a matter for legal submission.

45 The starting point for judicial review is a consideration of the Panel's statutory functions. The Panel's primary function is to form and give its opinion on the medical question referred to it by applying its own medical experience and expertise.[58]

46 The High Court's observations as to the role of a Medical Panel in Wingfoot Australia Partners Pty Ltd v Kocak,[59] in the context of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act), are frequently cited but have particular relevance in considering the obligations of the Panel in the present proceeding. The High Court said:

The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.

47 In Vicinity Centres PM v Arik, Niall and Macaulay JJA emphasised in a case involving a challenge to a Panel's assessment on the basis that it was not in accordance with the Guides, that the Panel's task of assessing impairment under the Wrongs Act is not given to courts, but to medical practitioners, and it is the task of medical practitioners to construe and apply the Guides.[60] Their Honours observed that in this context:[61]

... the ultimate legal inquiry is whether the Panel has made an assessment in accordance with the Guides and, as part of that process, whether it understood and applied the Guides in a way that was consistent with the application of a medical text by an expert medical practitioner. As well, it is important to observe that the Panel is not engaged in an adjudicative or arbitral function, but must form its own opinion.

48 The principles of procedural fairness require that a person whose right or interest may be affected by the exercise of powers knows the case sought to be made against them and be allowed an opportunity to respond to that case. It was not in dispute that the Panel is required to observe the rules of natural justice and afford each party procedural fairness in performing its function of forming an opinion on the medical question referred to it.[62]

49 In the context of Medical Panels, the application of principles of procedural fairness must take into account the nature of the Panel's statutory function, which is to form and to give its own opinion on the medical question referred for its opinion by applying its own medical experience and expertise.[63] It is clear that a Panel may have regard to its own knowledge and expertise without there being a requirement in every case that it be communicated to the parties.[64] However, it is clear that where a Panel relies on new information provided by a complainant during an assessment, or a matter within its own medical expertise, which could not reasonably have been anticipated by the parties, it may be in breach of the rules of procedural fairness if it does not give the parties an opportunity to respond.[65]

50 In Francis Plumbing & Gasfitting Pty Ltd v Davine,[66] O'Meara J considered a situation where it was alleged by the plaintiff employer that a Panel did not afford procedural fairness when it took into account information revealed to it during an examination of the complainant worker in respect of injury to his left forearm. Justice O'Meara held that there was no failure by the Panel to afford procedural fairness to the employer as it could not be accepted that the history given by the worker to the panel, the results of the assessment and the Panel's opinion came 'out of the blue'.[67] It was not a case in which the Panel identified and acted upon either an entirely new symptom or a previously unidentified condition.[68] Justice O'Meara noted that the proposition that the Panel denied a party procedural fairness merely because its own history, assessments and opinion were in some way different to the 'parameters' it is alleged to be constrained by is 'plainly unsound' and stated:[69]

Further, the Employer's submission to the effect that the relevant 'parameters' should be taken to be defined by the history taken, assessments by and opinions of the 2021 panel and A/Prof Romas, should be approached with caution. In circumstances of the present kind, any rigid embrace of such a proposition could lead, rather mechanically, to a conclusion that the Panel denied procedural fairness to the Employer merely because its own history, assessments and opinion were in some way different. A proposition of that kind is plainly unsound.

It follows that the answer to the present question must be affected by questions of fact and degree. Ultimately, the Employer will not be found to have suffered a material denial of procedural fairness unless the history, assessments and/or opinion of the Panel can be said to have come 'out of the blue' in the sense discussed.

51 Justice O'Meara observed that even though the employer did not know precisely the account which the worker would convey to the Panel nor precisely the assessments that were made by the Panel, it must or ought to reasonably have anticipated the risk that when the Panel performed its statutory function, it could possibly obtain a history and come to an opinion that was different in critical respects to that recorded previously.[70] Justice O'Meara noted that the employer could have made submissions to the Panel and made further inquiries of the worker, but did not do so.[71]

52 In determining what may be a novel or unanticipated matter which may give rise to a requirement that the parties have an opportunity to address it if the Panel considers the matter relevant, it is relevant to consider the scope of the matters put in issue on the referral. In Wagstaff Cranbourne Pty Ltd v Hashimi,[72] the Court of Appeal held:[73]

The parties' pleadings, submissions and medical reports established the parameters of their dispute. Procedural fairness required that the Panel form its opinion within those parameters and that, if it intended to treat as determinative a matter falling outside those parameters, it had to give the parties notice of its intention to do so and an opportunity to address the Panel on that matter.

53 A decision made in breach of procedural fairness obligations will constitute jurisdictional error and will be set aside, with the matter remitted for rehearing, if the breach was material.[74] Such an outcome will not follow if a rehearing would be futile, including if the same decision would have been made even if the party had been afforded procedural fairness, for example because the issue on which the party did not have an opportunity to be heard was not material to the decision.[75]

54 A failure to afford procedural fairness will be material and will constitute jurisdictional error if there is a realistic possibility that the outcome could have been different if procedural fairness had been afforded.[76] There will generally be a realistic possibility that a decision making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration.[77]

55 It is established that the Panel is required to consider the following matters:[78]

(a) the medical questions referred to the panel;

(b) the submissions of the parties (if provided);

(c) the documents provided by the parties relating to the claim and the medical question (here pursuant to s 28LWE, s 28LZA, s 28LZC of the Wrongs Act); and

(d) matters arising out of the Panel's examination of the claimant, including the medical history, evidence as to any investigations, tests, studies or the like, and the panel's findings on examination.

56 In the present case, the matter on which Mr Ramith contends he did not have an opportunity to be heard relates to the Panel's findings on its examination of him, particularly with respect to the outcome of testing using the Jamar dynamometer. Those findings were plainly material to the decision. The issue is whether the findings were of a nature that it was necessary, following the examination and the observations of the Panel, to revert to the parties to permit them to comment on the findings and make any further submission.

57 The authorities establish that it is unnecessary, in order to establish that a failure to afford procedural fairness is material, for the complainant to establish how they would have taken advantage of the lost opportunity.[79] However, it remains that it is necessary for the complainant to establish that the opportunity to be heard might realistically have resulted in a different decision.[80] The assessment of that possibility is a matter of 'reasonable conjecture within the parameters set by the historical facts that have been determined'.[81]

58 Mr Ramith's case that the Panel denied him procedural fairness in not permitting an opportunity to comment on the outcome of the medical examination is put primarily on the basis that a finding as to credibility was made. On a comprehensive consideration of his submissions, a second characterisation arguably arises. I have therefore considered the two following ways in which the case appears to be put:

(a) First, it is submitted that the conclusion of the Panel that the responses to the Jamar dynamometer testing were variable and unreliable and not representative of maximal effort, was a finding as to Mr Ramith's credit and should have been put to him for comment.[82]

(b) It is also said that because of the results of the Jamar dynamometer testing, the Panel disregarded 'Strength evaluation' as a suitable method for assessing impairment,[83] and the Panel was therefore obliged to permit an opportunity for Mr Ramith to 'attempt to persuade [it] that the Plaintiff experiences genuine, organically based reduced grip strength from his right hand injury'.[84]

Was the Panel making a credit finding in its conclusions on Jamar dynamometer testing?

59 The Panel did not in its Reasons make any express conclusion that Mr Ramith was not telling the truth about his right hand injury or that he lacked credibility. The issue is whether its finding that his responses to Jamar dynamometer testing 'were considered to be variable and unreliable and were not considered to represent maximal effort'[85] implicitly involved an adverse credit finding.

60 In assessing what the Panel concluded in this respect it is appropriate to consider the broader context of the conclusions on grip strength testing. The Panel did not reject Mr Ramith's claim that he had an injury to his right hand. It concluded in its diagnosis that:

Mr Ramith is suffering from persisting dysfunction of the right little finger, with a rotational deformity ...[86]

61 In coming to its conclusion that Mr Ramith had an injury to the little finger of his right hand, the Panel did not find that the injury to Mr Ramith's hand involved weakened grip strength. The Panel also diagnosed Mr Ramith as having persisting low back dysfunction, without radiculopathy, as a consequence of an aggravation of lumbar degenerative disc disease in the context of a previous lumbar laminectomy; and it observed that pursuant to the Wrongs Act it was required to disregard the impairment from an injury or cause unrelated to the claim.[87] The Panel concluded that the degree of whole person impairment 'resulting from the spinal injury and / or the physical injuries to Mr Ramith alleged in the claim is permanent, but not more than 5%'.[88]

62 Taking these matters into account, it is apparent that the Panel accepted Mr Ramith had an injury to his right hand, specifically to the little finger, but it can be accepted from an overall reading of the Reasons that it did not accept that he had materially weakened grip strength in his right hand. Contrary to the plaintiff's submissions,[89] there is nothing in the Reasons to indicate that the Panel doubted Mr Ramith's credibility as to his right hand injury generally.

63 The issue is whether, in its conclusion that Mr Ramith's responses to Jamar dynamometer testing were 'varied and unreliable and were not considered to represent maximal effort', it was making a finding as to his credit. To fairly understand that conclusion, it is necessary to refer to the information in the Guides as to how grip strength is to be evaluated. The Panel stated that it 'assessed the impairment attributable to the injury to the right hand and right little finger in accordance with Section 3.1 of Chapter Three,'[90] and it was not contended for Mr Ramith that the Panel had not in fact conducted its examination in accordance with the Guides.[91] Section 3.1 relevantly states, under the heading 'Grip and Pinch Strength':

This determination is best made with measurements taken over a period of time. Many factors, including fatigue, handedness, time of day, age, nutritional state, pain, and the patient's cooperation, influence strength measurements.

Tests repeated at intervals during an examination are considered to be reliable if there is less than 20% variation in the readings. If there is more than 20% variation, one may assume the patient is not exerting full effort. The test is usually repeated three times with each hand at different times during the examination, and the values are recorded and later compared.

64 The Guides then stipulate that '[i]f there is suspicion or evidence that the subject is exerting less than maximal effort, the grip strength measurements are invalid for estimating impairment'.[92]

65 Assuming that the Panel conducted the examination in accordance with this guidance (which is the only appropriate assumption in the absence of any evidence to contradict the statement in the Reasons that the assessment was conducted in accordance with Section 3.1), the Panel conducted multiple tests before it concluded that the responses were variable. It was the instruction of the Guides that if the responses involved more than 20% variation, the tester 'may assume the patient is not exerting full effort'.[93] The conclusion of less than maximal effort was therefore one which follows from or arises out of the variation in the test results. This is consistent with the way the Panel described its conclusion in that it noted first that the results were variable and unreliable, then that they were not considered to represent maximal effort, and it did not then identify the testing as having any weight. The Panel's conclusion that the test responses did not represent maximal effort was not in my view a finding as to Mr Ramith's credit or credibility, but a statement of the outcome of conducting the testing in accordance with the Guides.

66 It is true that the Reasons do not record the specific test results, nor identify the degree of variation in the test results. However, accepting as I do that the Panel conducted the testing in accordance with the Guides, I accept that the Panel assessed the results as being sufficiently variable to result in the conclusion, recommended by the Guides, that full effort was not being exerted. The Guides also identify in Section 3.1 two additional techniques 'reported to help detect individuals who exert less than maximal effort on grip strength testing'.[94] The Reasons do not disclose whether those two techniques were also applied, and there is also no other evidence as to what occurred during the examination, but it is quite possible, noting the Panel's statement that it conducted the assessment in accordance with Section 3.1 of the Guides, that it did apply the additional techniques, and that responses to those techniques were encompassed by the observation that the responses were variable and unreliable.

67 Given the way in which the Guides describe the administration of grip testing and the conclusions to be drawn from variations, the Panel's statement that the responses to grip strength testing were not considered to represent maximal effort are not, in my view, appropriately characterised as findings as to Mr Ramith's credibility. The statement expressed a conclusion as to what the testing, conducted in accordance with the Guides, has indicated.

68 The Panel was not, therefore, required to raise with Mr Ramith any issue as to his credibility. This is not a case to which authorities on the obligation to raise credibility concerns with a person the subject of decision making apply.[95]

Obligations if conclusions are characterised not as credit finding but as conclusion that full effort was not applied

69 If the Panel's conclusions on testing are not characterised as a credibility finding, but simply as a conclusion that Mr Ramith consciously did not apply full effort when undergoing the grip testing, I also do not regard it as a matter that the Panel was obliged to raise with Mr Ramith. The question of whether Mr Ramith was experiencing reduced grip strength was plainly a matter which was to be considered by the Panel. 'Reduced grip strength' was clearly asserted as a particular of his injury in the Statement of Claim and Amended Statement of Claim which was before the Panel.[96] Submissions had been made for Mr Ramith that he had genuinely reduced grip strength, through the medical report of Dr Kennedy which had been submitted to the Panel, and which the legal representatives for Mr Ramith had said contained the submissions and representations that he wished to make.[97] Dr Kennedy's report referred to his conclusion (arising from a 'remote assessment' of Mr Ramith's right hand) that he 'demonstrated weakness of gripping and grasping strength in the right hand on the ulnar side involving the ring and little fingers'.[98]

70 The question of grip strength in Mr Ramith's right hand could therefore be expected to be the subject of consideration, examination and potentially testing when Mr Ramith was to be examined by the Panel. That the testing may give rise to a range of outcomes - that it could produce results showing reduced strength, show no reduction in strength from what would be expected in the normal range, or would be inconclusive because of variable or otherwise unreliable results indicative of a lack of maximal effort - could also be anticipated, particularly in view of the express provisions of the Guides as to Strength Evaluation. The Guides refer expressly to the potential for testing to yield unreliable results.[99]

71 In these circumstances, the fact that one of these potential conclusions was made by the Panel - that is, that the results were variable and unreliable - was not a novel conclusion in the sense of coming out of the blue. It was the outcome of the Panel's testing using its medical expertise.

72 The question of Mr Ramith's grip strength being clearly within the parameters of the dispute, the conclusion of the Panel that test responses did not demonstrate application of maximal effort could not, in my view, involve any determination of a matter outside the parameters of the dispute which called for further notice to the parties and a further opportunity to address it.[100] Mr Ramith had already addressed in the material submitted to the Panel, by way of Dr Kennedy's report and the adoption of that as his submission, the question of grip strength of his right hand.

73 The fact that the Panel's conclusion that testing was unreliable arose on examination of Mr Ramith after submissions had been made did not make it a novel or new matter. As observed by O'Meara J in Francis Plumbing,[101] where the finding or conclusion is on an aspect of the claimed injury which has been put in issue by the materials before the Panel, a claimant must or ought to reasonably have anticipated the risk that when the Panel performed its statutory function, it could observe a profile on testing that was different in critical respects to that recorded previously and come to a different opinion accordingly.[102] The fact that the Panel's implicit conclusion arising from the test, that Mr Ramith was not experiencing reduced grip strength, varied from that of Dr Kennedy also did not make it a matter which came 'out of the blue'; it was simply a different medical opinion on an issue already plainly within the scope of the dispute.

74 It is also relevant to note on the issue of the Panel's conclusion that there was a failure to apply maximal effort that, assuming (as is appropriate) that the Panel conducted the testing in accordance with the Guides, Mr Ramith would have been told that he was expected to apply full effort during the testing.[103] There was certainly no evidence that he was not informed of that aspect of the testing, and it could not be said that a conclusion by the Panel on this aspect of testing would take an examinee by surprise. The fact that a failure to apply full effort may affect the testing could have been anticipated, and the Panel's conclusion that maximal effort had not been applied was in the range of outcomes that could be anticipated.

75 Although the above conclusions are sufficient to determine the allegation of a lack of procedural fairness, it is appropriate to address the parties' submissions on the issue of materiality. It is difficult to identify, had the Panel given Mr Ramith a further opportunity to comment on the testing, what could have been said which could appropriately have been regarded by the Panel as making a difference to its assessment.

76 It was contended that what Mr Ramith could have submitted may have related to 'what occurred when the plaintiff was undertaking that test that might give the members some better understanding'.[104] This may have been relevant given the observation in Section 3.1 of the Guides that many factors, including matters such as fatigue, time of day, nutritional state and pain may influence strength measurements. However there was no evidence tendered by Mr Ramith that he was experiencing any particular condition or circumstances on the day of the examination that may have affected his response to the grip strength testing. The authorities are clear that in making a complaint as to the denial of procedural fairness, Mr Ramith is not required to demonstrate exactly what he would have said had he been given the opportunity to comment on the Panel's findings on the grip testing.[105] However, it cannot simply be assumed in the absence of any evidence that Mr Ramith could have said that something was affecting him during the examination that meant that the testing, or the Panel's findings on the testing, should not be taken into account. To do so would involve the Court extending beyond 'reasonable conjecture' based on, and within the parameters of, the historical facts[106] to pure speculation as to what may have occurred had there been a further opportunity to be heard.

77 Although the standard of reasonable conjecture is undemanding, the burden does remain on the party alleging a denial of procedural fairness to prove on the balance of probabilities the facts necessary to enable the Court to be satisfied of the realistic possibility that a different decision could have been made. Here there is no evidence on which reasonably to base a conclusion that the Panel, having determined in the application of its medical expertise that the results were variable and unreliable and not representative of maximum effort, should or could appropriately have revisited or altered its conclusion.

78 It was also submitted for Mr Ramith that the Panel was obliged to 'invite comment, submissions or further materials to persuade the Panelists he was experiencing genuine reduced grip strength.'[107] It is hard to see how any comment, new submission or further material could properly have been taken into account by the Panel to alter or disregard its own medical testing and assessment. Had Mr Ramith made a further submission to the effect that he had in fact been applying maximal effort during testing, the Panel would not have been obliged to alter its conclusion that maximal effort was not being exerted. In my view, it would also not have been proper for the Panel to do so. To accept the examinee's statement, rather than making its conclusion on the basis of the testing, would in my view have meant that the Panel was not assessing Mr Ramith's impairment in conformity with the Guides as it was obliged to do,[108] in view of the Guides' directive that '[i]f there is suspicion or evidence that the subject is exerting less than maximal effort, the grip strength measurements are invalid for estimating impairment'.[109]

79 In recognising this as a case where it is not established that a further opportunity for submissions could result in a different decision, it may not be entirely apt to identify it as involving a lack of materiality. The outcome of the grip strength testing examination was plainly material given that reduced grip strength was raised and the Guides provide dynamometer testing as the method of assessing strength impairment. This was not a case where the matter was of marginal significance or minimal relevance.[110] The issue is whether anything that Mr Ramith could have submitted would realistically have made any difference to the outcome. This does not require him to demonstrate what he could have said or done. However, the nature of the Panel's conclusion that maximal effort was not being applied during testing was such that there is, realistically, little that could be said that would result in a different outcome. The Panel is required to provide its 'own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise'.[111] The testing and the findings consequent on testing are quintessentially matters relating to the exercise of the Panel's medical expertise.

80 The submission for Mr Ramith is that he should have had the opportunity to provide 'comment or further materials to persuade the Panelists he was experiencing genuine reduced grip strength'.[112] However, he had already had the opportunity to make submissions and provide information on whether he was experiencing reduced grip strength, and had done so.[113] The new or additional information identified as giving rise to a further right to be heard was solely the outcome of the Panel's administration of Jamar dynamometer grip strength testing. As the Panel's findings on that testing involved the application of its own medical expertise in performing the testing and assessing the results, there is, in my view, nothing that could realistically have been submitted by Mr Ramith to contradict the Panel's conclusion, nor to require the Panel to disregard its findings.

81 It was not said that the appropriate response was for the Panel to re-examine Mr Ramith so that the testing could be repeated. Nor, in my view, could there be any such obligation for the Panel to examine again, at least in the absence of evidence that some particular condition affected Mr Ramith at the time of the examination which meant that reliability of testing at that time was affected, so that some further testing was warranted. To find that the Panel would be required to conduct a further examination in such a situation has the potential to give rise to the undesirable situation where the Panel could be called on to revisit its assessments arising from examination of a claimant, even where there is no deficiency identified in its examination nor any evidence of a new factual circumstance which affected the examination. Such a situation is not contemplated by the statutory scheme.

Was the Panel otherwise required to give Mr Ramith an opportunity to establish that he had reduced grip strength following the Panel's conclusions on Jamar dynamometer testing?

82 It was also submitted for Mr Ramith that the Panel had implicitly concluded that 'Strength Evaluation' should be disregarded as a suitable method for assessing impairment. It was said that as a result the Panel should have reverted to him to convey its concerns about 'the Plaintiff's credibility, the grip strength results, or whether he was applying 'maximal effort' during the testing, and invite comment, submissions or further materials to persuade the Panelists he was experiencing genuine reduced grip strength'.[114]

83 The Panel's assessment of Mr Ramith's hand injury involved, according to the Reasons, examination of the right hand, which 'revealed a normal colour and temperature, with normal hair growth and no visible scarring and no swelling'.[115] The Panel also measured range of movement, and stated that '[a]ctive joint ranges of movement were measured using a goniometer in accordance with the instructions in the Guides'.[116] The Panel observed that:[117]

Range of motion of the thumb and the index, middle and ring fingers of the right hand was normal. There was a fixed flexion deformity of the proximal interphalangeal joint of the right little finger and a radial rotation deformity. Range of motion of the distal and proximal interphalangeal joints of the right fifth finger was mildly reduced.

84 The Panel then made its observations about the outcome of Jamar dynamometer testing of grip strength, noting that the results were variable and unreliable and not considered to represent maximal effort.

85 It is not in my view accurate to characterise the Panel as having 'disregard[ed] "Strength Evaluation" as a suitable method for assessing impairment', as the Plaintiff's submissions do.[118] The method was applied, but the Panel concluded that the outcome, having showed variable and unreliable results, indicated that Mr Ramith was not applying maximal effort. It was obliged, in accordance with the methodology in the Guides, to treat the testing results as invalid as a measure of impairment. This, taken in conjunction with the rest of the Reasons, indicates that the Panel, after applying the testing, did not accept that Mr Ramith had material reduced grip strength in his right hand.

86 While it is inaccurate to characterise the Panel's approach as having disregarded 'Strength Evaluation' as a method of testing, it did not result in the Panel finding any weakness of grip. Equally, the Panel did not make an express finding that grip strength was unimpaired. It is more appropriate to characterise the Panel's view of grip strength as inconclusive, leaving the Panel with its assessment arising out of examination of the hand and range of movement testing. That assessment resulted in the Panel's diagnosis of dysfunction, and rotational deformity, of the right little finger. On that basis, I approach this aspect of Mr Ramith's argument as raising for consideration whether the Panel, having regarded the grip strength assessment as inconclusive, should have brought that matter to the attention of the parties and permitted an opportunity to comment.

87 I consider that there was no obligation on the Panel to do so, for the following reasons.

88 First, as previously discussed,[119] the question of the grip strength of Mr Ramith's right hand having been clearly in issue, it was able to be anticipated that grip strength would be tested in accordance with the Guides. An outcome that testing would be inconclusive was also able to be anticipated. The inconclusiveness of the testing was not a novel or unexpected matter.

89 Secondly, there was no requirement in assessing Mr Ramith that there be a conclusive grip strength test evaluation using the Jamar dynamometer method. While it was expected that the Panel proceed in accordance with the Guides, the assessment of the impairment to Mr Ramith's right hand could proceed without a conclusive result from grip strength testing. The Guides recognise expressly that strength testing has a limited role in impairment evaluation, stating in the introduction to the 'Strength evaluation' part of Section 3.1:

Because strength measurements are functional tests influenced by subjective factors that are difficult to control, and the Guides for the most part is based on anatomic impairment, the Guides does not assign a large role to such measurements. Those who have contributed to the Guides believe further research is needed before loss of grip and pinch strength is given a larger role in impairment evaluation.

In a rare case, if the examiner believes the patient's loss of strength represents an impairing factor that has not been considered adequately, the loss of strength may be rated separately. The loss of strength impairment would be combined (Combined Values Chart, p 322) with other upper extremity impairments.

90 Mr Ramith had in fact supplied a medical report with his own treating medical practitioner's assessment of grip strength, which reported a 'weakness of gripping and grasping strength'.[120] It was not apparent from Dr Kennedy's report how he had assessed the grip strength, a matter noted by the Panel in its Reasons.[121]

91 As the examination was remote, it may be unlikely that there was any testing by Jamar dynamometer. That is not a matter on which there is any evidence and it is unnecessary to consider further, as it is relevant simply that the impairment assessment on which Mr Ramith relied did not include reported grip strength testing results. In circumstances where the material relied on by the claimant did not involve conclusive results from grip strength testing, the fact that the Panel's testing did not yield conclusive results was not a matter that called for the opportunity for the parties to make further submissions.

92 Thirdly, the fact that the Panel's conclusion after examination of Mr Ramith that there were no reliable grip strength testing results (and its related implicit conclusion that there was no material grip strength impairment) was different to the assessment by Dr Kennedy did not make it a matter that the Panel was required to raise with the parties before giving its opinion.

93 The outcome of a Panel coming to a different conclusion from the medical assessment obtained for a claimant does not make it novel or unanticipated. The obligations of procedural fairness did not require the Panel to invite the parties to make further submissions in response to the fact that it had come to a different view than one of the medical reports. The Panel may receive medical reports and information but its role is not to adjudicate on them,[122] nor is it required to accept them; its role is to form is own medical opinion in response to the question.

94 I also do not regard this alternative way of understanding the ground of review as disclosing any error on the part of the Panel.

95 For these reasons the Panel did not fail to afford Mr Ramith procedural fairness in reaching its determination and the application for review is to be dismissed.

96 I will give the parties the opportunity to agree on costs orders, and in the absence of agreement, an opportunity to make submissions on the appropriate orders as to costs.

[1] First Affidavit of J Catoggio affirmed on 21 December 2023 (First Catoggio Affidavit), Exhibit JC-2 (Form 4 in Schedule 1 to the Wrongs (Part VBA Claims) Regulations 2015 dated 5 September 2023).

[2] Exhibit JC-2 (Writ and Statement of Claim in County Court proceeding no. CI-23-02358 dated 16 May 2023). These proceedings were originally initiated against the 'State of Victoria (Dept of Families, Fairness and Housing)'. After being advised on 15 September 2023 by the first defendant's solicitor that the proper defendant was Homes Victoria, Mr Ramith filed an Amended Statement of Claim in the County Court proceeding on 18 October 2023, naming the correct defendant: Exhibit JC-2 (Amended Statement of Claim in County Court proceeding no. CI-23-02358 dated 18 October 2023). The Particulars to the Amended Statement of Claim were unchanged from the Statement of Claim.

[3] Exhibit JC-2 **(**Certificate of Assessment by Dr D Kennedy dated 20 October 2022) (Kennedy Report).

[5] First Catoggio Affidavit, [8], Exhibit JC-2 (Medical Panel referral letter from HWL Ebsworth dated 15 September 2023).

[6] First Catoggio Affidavit, [10], Exhibit JC-1 (Certificate of Determination of Medical Panel ref no. M123/3054 dated 15 December 2023).

[7] First Catoggio Affidavit, [10], Exhibit JC-1 (Reasons for Determination of Medical Panel ref no. M123/3054 dated 14 December 2023).

[11] Originating Motion filed 22 December 2023 (emphasis in original).

[12] [1980] HCA 13; (1980) 144 CLR 13, 35-36; Letter to Prothonotary dated 5 August 2024.

[17] Exhibit JC-3 (First Defendant's Submissions to the Convenor of Medical Panels dated 11 December 2023, 6).

[18] First Catoggio Affidavit, Exhibit JC-1. Mr Ramith's legal representatives subsequently provided the Amended Statement of Claim in the County Court proceeding and some further medical records, none of which were identified as being material to the issues raised by the application for judicial review.

[19] First Catoggio Affidavit, [10], Exhibit JC-1 (Certificate of Determination of Medical Panel ref no. M123/3054 dated 15 December 2023).

[27] Wrongs Act s 28LE.

[28] Wrongs Act s 28LF(1)(b).

[29] Wrongs Act s 28LB.

[30] Wrongs Act s 28LY.

[31] Wrongs Act s 28LZ(1)-(2).

[32] Wrongs Act s 28LZC.

[33] Wrongs Act s 28LZG(4).

[34] 'AMA Guides' is defined under s 28LB of the Wrongs Act as 'the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (other than Chapter 15) as modified by or under this Part'.

[35] Wrongs Act s 28LH(1).

[38] Plaintiff's Outline of Submissions filed 26 June 2024, [12].

[39] Which read, at [8], particular of injury (e), 'Reduced grip strength'.

[40] Which repeated particular of injury (e), 'Reduced grip strength'.

[44] Plaintiff's Outline of Submissions, [16]-[18].

[45] Plaintiff's Outline of Submissions, [19]; Plaintiff's Outline of Submissions in Reply filed 4 September 2024, [6]; Transcript 17/10/24 T2.25-T3.07; T3.17-T4.14.

[46] [2017] VSC 752 (J Judd J).

[49] First Defendant's Outline of Submissions filed 2 August 2024, [21]-[24], citing Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594, [9]; Chang v Neil [2019] VSCA 151; (2019) 62 VR 174, 192-193 [62].

[50] First Defendant's Outline of Submissions, [33]-[35], citing Mailton Holdings Pty Ltd v Jussy [2019] VSC 421, [33].

[51] First Defendant's Outline of Submissions, [36].

[52] First Defendant's Outline of Submissions, [38]-[45].

[53] Transcript 17/10/24, T12.28-T13.07.

[55] First Defendant's Outline of Submissions, [46]-[49]; Transcript 17/10/24, T29.29-T31.01.

[56] First Defendant's Outline of Submissions, [17]-[25]; Transcript 17/10/24, T31.18-28.

[57] First Defendant's Outline of Submissions, [28]-[31].

[58] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 498-499 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ); Sidiqi v Kotsios & Ors [2021] VSCA 187, [32] (Beach, Kaye and Osborn JJA).

[59] [2013] HCA 43; (2013) 252 CLR 480, 498-499 [47].

[60] [2023] VSCA 295, [4].

[61] [2023] VSCA 295, [10].

[63] Wingfoot, 498-499 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ).

[64] North v Homolka [2014] VSC 478, [104] (Ashley JA).

[65] Vegco Pty Ltd v Gibbons [2008] VSC 363; (2008) 30 VAR 1, 8 [23] (Kyrou J); Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248, [34] (Cavanough J).

[66] [2024] VSC 538.

[67] Francis Plumbing, [118], using the language of Cavanough J in Barrett Burston Malting Co Pty Ltd [48]; referred to by the Court of Appeal with Approval in Wagstaff Cranbourne Pty Ltd v Hashimi [2020] VSCA 33, [39]-[41] at [40].

[69] Francis Plumbing, [68]-[69].

[72] Wagstaff Cranbourne Pty Ltd v Hashimi [2020] VSCA 33.

[74] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, 543-44 [101]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, [7] (Gageler CJ Gordon, Edelman, Steward, Gleeson and Jagot JJ, with whom Beech-Jones J agreed, [38]).

[76] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80, 103 [32]-[33] (Kiefel CJ, Keane and Gleeson JJ), 107-108 [46] (Gageler J); LPDT, [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, with whom Beech-Jones J agreed, [38]).

[77] Nathanson [2022] HCA 26; (2022) 276 CLR 80, 103 [33] (Kiefel CJ, Keane and Gleeson JJ).

[78] See, in the context of claims under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), Victorian WorkCover Authority v Putrus [2023] VSCA 28, [37] (Beach, Kennedy JJA and J Forrest AJA); Victorian WorkCover Authority v Jamali [2023] VSCA 240, [82] (Beach JA, J Forrest and Tsalamandris AJJA).

[79] Nathanson, [33] (Kiefel CJ, Keane and Gleeson JJ).

[80] Minister for Immigration v SZMTA [2019] HCA 3; (2019) 264 CLR 421, 445, [45] (Bell, Gageler and Keane JJ).

[81] MZAPC, [38] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

[82] Plaintiff's Outline of Submissions, [16]-[17]; Plaintiff's Outline of Submissions in Reply, [4]-[5], [7](b). See also First Catoggio Affidavit, [11].

[83] Plaintiff's Outline of Submissions, [18].

[89] Plaintiff's Outline of Submissions in Reply, [7(b)].

[91] Transcript 17/10/24, T39.25-T40.10.

[92] Guides, Section 3.1, p 3/65.

[93] Guides, Section 3.1, p 3/64.

[94] Guides, Section 3.1 p 3/64 (emphasis added).

[95] Cf the Plaintiff's Outline of Submissions at [7]-[9], referring to Jankulovska v Hayman [2017] VSC 752 [59] (Judd J) (note also oral submissions relying on this case at Transcript 17/10/24 T03.13-15); Colquhoun v Capitol Radiology [2013] VSCA 58, [19]; CD v Central Gippsland Health Services [2022] VSC 462 [361]-[419]; SZBEL v Minister for Immigration [2006] HCA 63, [47]-[48].

[97] 11 December 2023 email of the solicitor for Mr Ramith, referred to in Enclosure B to the Panel Opinion and Reasons, Second Catoggio Affidavit, JC3.

[99] Guides, Section 3.1, p 3/64.

[101] [2024] VSC 538.

[102] Francis Plumbing, [113]; [115]-[118].

[103] See p 3/64 of Section 3.1 of the Guides.

[104] Transcript, 17/10/24, T10.10-15.

[106] MZAPC [38]-[39] (Kiefel CJ, Gageler, Keane and Gleeson JJ); Nathanson [32]-[33] (Kiefel CJ, Keane and Gleeson JJ).

[107] Plaintiff's Outline of Submissions, [19].

[108] Wrongs Act, s 28LH(1).

[109] Guides, Section 3.1, p 3/65.

[112] Plaintiff's Outline of Submissions, [19].

[114] Plaintiff's Outline of Submissions, [19].

[118] Plaintiff's Outline of Submissions, [18].

[120] Kennedy Report, p 4, under 'Clinical Assessment'.