Torialay v Rahgozar - [2022] VSC 683

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

---

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

---

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.

---

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…

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.

Continue reading Torialay v Rahgozar

Details

AGLC: Torialay v Rahgozar [2022] VSC 683
Case: [2022] VSC 683
Decision Date: 15 November 2022

CaseChat Overview and Summary

The case of Torialay v Rahgozar was heard in the Supreme Court of Victoria, where the applicant sought judicial review of a decision made by a medical panel regarding a back injury sustained in a lifting incident in February 2016. The applicant argued that the panel's opinion was flawed, particularly in its diagnosis of the resolution of disc prolapse symptoms and the presence of degenerative changes in the lumbar spine. The applicant contested that the panel had made specific jurisdictional errors in its reasoning, leading to an incorrect conclusion about the nature and extent of the injury.

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