| 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
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- Case
- [2025] VSC 614
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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