| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 03770
| TORIALAY TORIALAY | Plaintiff |
| v | |
| DR MAJID RAHGOZAR | First Defendant |
| and | |
| MR PETER WILDE | Second Defendant |
| and | |
| DR JUDITH HAMMOND | Third Defendant |
| and | |
| DR EDMOND VAN AMMERS | Fourth Defendant |
| and | |
| DR JULIAN FREIDIN | Fifth Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Sixth Defendant |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 October 2022 |
DATE OF JUDGMENT: | 15 November 2022 |
CASE MAY BE CITED AS: | Torialay v Rahgozar & Ors |
MEDIUM NEUTRAL CITATION: | [2022] VSC 683 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of medical panel – Diagnosis in respect of back injury in lifting incident in February 2016 – Symptoms of disc prolapses ‘now resolved’ – Degenerative changes of the lumbar spine and ‘lumbar spondylosis’ – Alleged specific jurisdictional errors – Reasoning of medical panels - Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, Chang v Neill [2019] VSCA 151, Sidiqi v Kotsios [2021] VSCA 187 and Ayana v Qantas Airways Limited [2021] VSC 500 – Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | C Hangay | Zaparas Lawyers |
| For the First to Fifth Defendants | No appearance | Victorian Government Solicitor’s Office |
| For the Sixth Defendant | FC Spencer | Minter Ellison |
HIS HONOUR:
A Introduction
The plaintiff was born on 10 February 1991 in Afghanistan and came to Australia in 2011. In November 2015, he commenced employment as a kitchenhand/labourer with Gourmet Dinner Services Pty Ltd.
On 10 February 2016, the plaintiff sustained injury to his back as a result of lifting and carrying heavy boxes in the course of his employment (‘the incident’).
On 29 February 2016, the plaintiff made a claim for workers’ compensation which was accepted. On 8 July 2017, the plaintiff made a claim for impairment benefits which was also accepted.
On 4 May 2020, pursuant to the provisions in div 2 of pt 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the Act’), the plaintiff sought consent to commence proceedings for common law damages. The plaintiff claimed to have suffered a back injury arising out of the incident as well as consequential mental or behavioural disturbance or disorder. His application was refused.
On 15 September 2020, the plaintiff issued an originating motion in the County Court of Victoria seeking leave to commence common law proceedings against his employer.
On 13 May 2021, pursuant to s 274 of the Act, his Honour Judge Wischusen referred certain questions to a medical panel.
The panel was comprised of five members: an occupational and environmental physician, an orthopaedic surgeon, a general practitioner and two psychiatrists.
The plaintiff was examined by the ‘physical doctors’ on 30 June 2021 and the psychiatrists on 19 July 2021. On each occasion, the panel appears to have been assisted by a professional interpreter.
On 18 August 2021, the panel delivered its…
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- AGLC
- Torialay v Rahgozar [2022] VSC 683
- Case
- [2022] VSC 683
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the medical panel's opinion contained any jurisdictional errors that warranted judicial intervention. This involved scrutinising the panel's interpretation of medical evidence and the application of relevant legal principles, such as those articulated in Wingfoot Australia Partners Pty Ltd v Kocak, Gruma Oceania Pty Ltd v Bakar, Chang v Neill, Sidiqi v Kotsios, and Ayana v Qantas Airways Limited. The central issue was whether the panel's reasoning process was flawed to the extent that it resulted in a decision that no reasonable person could have reached.
The court found that the medical panel's opinion did not contain any specific jurisdictional errors. The reasoning process was deemed to be within the bounds of reasonableness, and the panel's conclusions were supported by the evidence presented. The court emphasised that it was not the role of the judiciary to substitute its own assessment of the medical evidence for that of the panel, provided the panel's reasoning was logical and based on the evidence. Consequently, the application for judicial review was dismissed.
As the proceeding was dismissed, no further orders were made by the court. The decision reaffirmed the principle that judicial review is limited to instances where there has been a clear error in the reasoning process or a failure to consider relevant material.
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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