Documentary medical evidence alone, without expert testimony or judicial assessment on a voir dire, is insufficient to establish that a witness is 'mentally or physically unable' to give evidence under s 65 of the Evidence Act 2008 (Vic). A diagnostic label such as 'mild cognitive impairment' is of no assistance without evidence linking the specific condition to the individual's capacity to understand and respond to questions. A witness's apprehension about giving evidence does not amount to an inability to give evidence. Letters of demand and emphatic denials of liability are not communications made 'in connection with an attempt to negotiate a settlement' within s 131(1)(a) of the Evidence Act 2008 (Vic).
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