Coles Supermarkets Australia Pty Ltd v Warfe - [2025] VSC 614

IN THE SUPREME COURT OF VICTORIA

Not Restricted

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 05419

BETWEEN:

COLES SUPERMARKETS AUSTRALIA PTY LTD	Plaintiff
v
DR LAURIE WARFE & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Goulden AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2025
DATE OF JUDGMENT:	1 October 2025
CASE MAY BE CITED AS:	Coles Supermarkets Australia Pty Ltd v Warfe
MEDIUM NEUTRAL CITATION:	[2025] VSC 614

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ADMINISTRATIVE LAW – Judicial Review – Medical Panel convened under the Wrongs Act 1958 (Vic) (‘Wrongs Act’) – Asserted failure to take into account mandatory relevant considerations – Mandatory relevant consideration to be expressed at high level of generality – Materiality – Asserted error of fact said to amount to jurisdictional error – Obligation to consider and properly apply s28LL(3) of the Wrongs Act.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Czarnota	Gilchrist Connell
For the Third Defendant	Mr L Allan and Ms I Murphy	Henry Carus + Associates

TABLE OF CONTENTS

The role of the first and second defendants in the proceeding

The statutory function of a medical panel convened under the Wrongs Act

The information before the Medical Panel

Ground one – failure to take into account mandatory relevant considerations

Ground two – error of fact

Ground three – obligation to consider and properly apply s28LL(3) of the Wrongs Act

Conclusion

HER HONOUR:

The third defendant claims to have injured her left knee on 4 August 2023 when she slipped and fell at one of the plaintiff’s supermarket premises located in Frankston.
By certificate of assessment dated 1 May 2024,[1] Mr Russell Miller, orthopaedic surgeon, certified that, in his opinion, the third defendant’s whole person impairment arising from her left knee injury satisfies the ‘significant injury’[2] threshold.
[1]Affidavit of Nicole Joanne Norris sworn on 14 October 2024, 21 (‘NJN Affidavit’). The certificate was accompanied by a report (NJN Affidavit 25).
[2]Wrongs Act1958 (Vic) s 28LF (‘Wrongs Act’) defines what is a ‘significant injury’.
Not accepting that certification, on 14 June 2024, the plaintiff referred a medical question, namely the question of whether the third defendant had an injury that satisfied the significant injury threshold, for consideration by a medical panel in accordance with s 28LB of the Wrongs Act1958 (Vic) (‘Wrongs Act’). The first and second defendants constituted the Medical Panel convened to make a determination in response to the referral.
By certificate dated 15 August 2024, the Medical Panel determined that the third defendant’s whole of person impairment resulting from her left knee injury ‘does satisfy the threshold level’.[3] The Medical Panel provided reasons for its determination which accompany its certificate (‘Reasons’).
[3]NJN Affidavit 7.
The consequence of the Medical Panel’s determination, if allowed to stand, is that the third defendant is entitled to bring a proceeding to recover damages for non-economic loss in respect of her injury pursuant to Part VBA of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] VSC 614
Decision Date: 1 October 2025

CaseChat Overview and Summary

Coles Supermarkets Australia Pty Ltd initiated proceedings against Warfe, contesting a decision by a medical panel established under the Wrongs Act 1958 (Vic). The panel had determined the extent of Warfe's injuries and the resultant damages following an incident at one of Coles' supermarkets. The crux of the dispute hinged on whether the panel had appropriately considered all statutory obligations, specifically whether they had adhered to the mandatory relevant considerations as required by section 28LL(3) of the Wrongs Act. The matter was heard in the Court of Appeal of Victoria.

The legal issues revolved around whether the panel's decision-making process violated the mandatory requirements of section 28LL(3) of the Wrongs Act, which mandates the consideration of specific factors when determining the extent of injuries. Additionally, the court needed to assess whether any asserted errors of fact constituted jurisdictional errors and if the panel had a duty to contemplate and accurately implement section 28LL(3). The case also questioned whether the errors were material enough to warrant judicial intervention.

The Court of Appeal found that the panel had failed to adequately consider the mandatory relevant considerations. It was established that these considerations must be addressed at a high level of generality, and the panel's omission was significant. The court held that the panel's failure to consider and correctly apply section 28LL(3) constituted a jurisdictional error, which was material given the impact on the determination of Warfe's damages. Consequently, the appeal was upheld, and the case was remitted for reconsideration by a different panel.

The final orders included the quashing of the original panel's decision and the direction for the matter to be reconsidered by a new panel, ensuring compliance with the statutory obligations under the Wrongs Act. The court emphasized the necessity for medical panels to meticulously adhere to legislative mandates to avoid jurisdictional errors.

Orders