Rosata decision set aside: Supreme Court allows multiple Medical Panel determinations

• The Victorian Supreme Court of Appeal has set aside a decision of the County Court which found that the Medical Panel can only make one binding determination in a proceeding. The effect of the County Court decision was that an initial Medical Panel determination would be binding on subsequent respondents, even if those respondents had not participated in the initial Medical Panel process. That decision has now been set aside.
• The appeal decision restores the ability of respondents served with a Certificate of Assessment and Prescribed Information, irrespective of when they were joined to a proceeding, to consider whether a referral to the Medical Panel is worthwhile having regard to the available evidence.

Background

In Victoria, claimants seeking damages for personal injuries sustained in a public place (excluding workplace injuries and transport accidents) must satisfy the "significant injury" threshold in order to be entitled to claim general damages. To do so, they are required to serve a Certificate of Assessment and Prescribed Information on the respondent, pursuant to the Wrongs Act 1958 (Vic) (the Wrongs Act). Following service of this material, the respondent may choose to refer the claimant to an independent Medical Panel that will examine the claimant and provide a binding determination as to whether the claimant has met the significant injury threshold.

Section 28LZH of the Wrongs Act provides that a determination of the Medical Panel must be accepted by a court in any proceeding on the claim.

In cases involving multiple respondents, the Medical Panel will often consolidate two or more referrals and make one determination that is binding on all parties. However, there are also situations in which a respondent is served with a Certificate of Assessment and Prescribed Information at a later date, after a Medical Panel has already made a determination in relation to an earlier referral.

In these situations, the new respondent is not bound by the initial Medical Panel determination and can make their own referral. The new Medical Panel can consider further medical evidence and changes in the claimant's clinical state, and can therefore come to a different conclusion. The initial decision in Rosata¹ challenged this position.

Initial Rosata decision

Luigi Rosata tripped and fell while walking along a footpath and suffered injuries to his lower back and left hip, as well as psychological injuries. The City of Melbourne and Citywide Services Solutions Pty Ltd were both respondents to the proceeding, however Citywide was joined at a later date.

After an initial referral by the City of Melbourne, the Medical Panel found that the plaintiff met the significant injury threshold. The plaintiff was therefore able to pursue a claim for general damages from the City of Melbourne in the proceeding.

Citywide was subsequently joined to the proceeding and served with a Certificate of Assessment and Prescribed Information. Citywide made an independent referral to the Medical Panel. This time, the Medical Panel found that the plaintiff did not meet the significant injury threshold. Therefore, there were two inconsistent Medical Panel determinations which meant that the plaintiff could claim general damages as against the City of Melbourne, but not Citywide.

To address this matter, the County Court ordered the trial of a preliminary question as to which Medical Panel decision the Court was bound to follow.

Consideration of this preliminary question was heard in March 2023. The Court held that once a determination has been made that a claimant's injury meets the significant injury threshold, the Court must apply the determination in any proceeding on the claim, in accordance with the relevant provisions of the Wrongs Act, specifically section 28LZH.

Accordingly, it was held that the plaintiff was entitled to pursue general damages as against both the City of Melbourne and Citywide.

Appeal

Citywide sought leave to appeal the above decision on the basis that the County Court erred in determining that the initial Medical Panel determination was required to be accepted by the Court in relation to the plaintiff's claim against it.

The Court embarked on a task of statutory construction and found in favour of Citywide, namely that it was not bound by the earlier Medical Panel determination which occurred prior to it being joined to the proceeding. The Court considered a number of factors in making this determination, inter alia:

1. There are a number of provisions within part VBA of the Wrongs Act which contemplate the possibility of the issue of significant injury being resolved differently across multiple respondents.
2. Requiring a respondent to be bound by a Medical Panel determination it did not participate in and had no opportunity to provide material or make submissions did not accord with procedural fairness considerations. Whilst a purpose of part VBA of the Wrongs Act is to promote speedy resolution of the significant injury issue, there is nothing to suggest that this should be achieved at the expense of a proper consideration of the issues or at the expense of ensuring procedural fairness with respect to the parties involved.
3. Section 28LZH is to be read as referring to any proceeding between the claimant and respondent who referred the question to the Medical Panel, not as referring to any proceeding concerning the claim whatsoever.
4. The requirement in section 28LT of the Wrongs Act for a claimant to serve each respondent with a Certificate of Assessment and Prescribed Information strongly suggests that the plaintiff was required to serve Citywide with a Certificate of Assessment and Prescribed Information notwithstanding that there was already a Medical Panel determination in existence applying to the City of Melbourne.
5. The text of Part VBA of the Wrongs Act embraces the possibility that the significant injury issue might be resolved differently between defendants liable for the same damage. The impact of such disparity on issues of contribution or the speedy resolution of a proceeding does not derogate from the meaning of the text and the statutory construction which the Court was required to apply.

Therefore, the Court of Appeal determined that the initial Medical Panel determination was not binding on Citywide.²

Implications

The upshot of this appeal is that respondents who are served with a Certificate of Assessment and Prescribed Information are not bound by any previous Medical Panel decision arising from a referral made by a different respondent. This effectively restores the status quo as it was prior to the initial Rosata decision.

Accordingly, if a respondent has not been served with a Certificate of Assessment and Prescribed Information, then a claimant will have no entitlement to pursue general damages against it, even if that claimant has a Medical Panel determination in its favour as a consequence of an earlier referral by a different respondent.

Similarly, a respondent cannot rely on a previous Medical Panel determination which found that a claimant's injury was not significant, if it was not a party to that referral process. This was the case in the matter of Kabbout, which was heard on appeal with Rosata.

A respondent should carefully consider the need and merits of a Medical Panel referral having regard to the available evidence in every instance in which it is served with a Certificate of Assessment and Prescribed Information, even where a prior Medical Panel determination exists. There may be a basis for the Medical Panel to determine differently, and the Court of Appeal has confirmed the legal reasonableness and application of two different Medical Panel decisions.

For more information on personal injury matters and any of the themes raised above, please contact our experienced team.

¹ Rosata v City of Melbourne and Anor (Ruling) [2023] VCC 630

² Citywide Service Solutions Pty Ltd v Rosata; Kabbout v Crown Melbourne Ltd [2023] VSCA 281