No assessment without a certificate - a welcome decision for insurers

Insurance update - 10 September 2013

Summary

The Victorian Supreme Court has determined that the Convenor of Medical Panels cannot convene a Medical Panel to assess psychiatric injury on the basis of a bare allegation in a statement of claim of a psychological reaction to a physical injury in circumstances where the plaintiff has only served a certificate of assessment relating to physical injury.

 

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On 6 September 2013, the Supreme Court of Victoria handed down an important judgment concerning whether the Convenor of Medical Panels is required, or even permitted, to convene a Medical Panel to assess an alleged psychiatric injury when a claimant serves only a certificate of assessment relating to a physical injury.1

 

Background

In the case in point, despite objection by the defendant, the Convenor of Medical Panels appointed a Medical Panel to assess both the plaintiff's physical and psychiatric injuries. The relevant certificate of assessment was from an orthopaedic surgeon and made reference only to physical injury. The Panel determined that the plaintiff satisfied the threshold in relation to physical injury but not psychiatric injury. The defendant challenged the Convenor's decision to convene the Panel arguing that the Convenor had no power to constitute a Panel to consider both physical and psychiatric impairments.

 

Decision

The Supreme Court held that the insertion of the words “psychological reaction" in the particulars of injury in a statement of claim, cannot, without more, justify the Convenor or Deputy Convenor of the Medical Panel altering the form of the referral question without the respondent’s consent. The Court concluded that the decision in McAlister v Leitch2 does not stand for the proposition that the Medical Panel must consider psychiatric injury when no certificate in relation to such injury has been served.

The Court was not willing to state that there could never be a basis for a Medical Panel to consider psychiatric impairment in circumstances where only a physical injury certificate had been served. Such cases would be “very rare” although the Court did not elaborate further. It did say, however, that if a claimant intends to assert that they have sustained a psychiatric injury, a certificate should be served.

While the Court's view was that the Convenor had exceeded his jurisdiction in the present case because no psychiatric injury certificate had been served, it was not willing to restrain him from recovering the costs associated with the psychiatric assessment. Nor did the Court consider it appropriate to exercise its discretion to quash either the determination of the Medical Panel as a whole or that relating to psychiatric impairment.

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Implications

This decision is important for respondents and their insurers because it means that the Medical Panel is no longer compelled to consider both physical and psychiatric injury in circumstances where psychiatric injury is pleaded in a claim for damages, but no psychiatric injury certificate has been served. This should significantly reduce the costs associated with referring claimants to the Medical Panel and the delays associated with the parties determining whether both physical and psychiatric impairments should be assessed. 
 

Authors
Jane Fiske, Senior Associate
Rob Muir, Senior Associate
Kate Clark,  Special Counsel

 

Further information


1 Mitchell v Malios & Ors [2013] VSC 480
2 [2011] VSC 51

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