To be determined: County Court considers effect of inconsistent Medical Panel determinations in respect of the same injury

By Zoe Keith and Sauming Chan 

The Victorian County Court recently handed down a decision finding that where two respondents separately refer the same question to the Medical Panel under Part VBA of the Wrongs Act 1958 (Vic) (Wrongs Act), the determination made by the first convened Medical Panel is binding on both respondents, regardless of whether a different determination is made by the second convened Medical Panel.

In this article, we examine the Court’s decision in Rosata v City of Melbourne and Citywide Service Solutions Pty Ltd [2023] VCC 630 (28 April 2023) and its implications.

Facts

Luigi Rosata (Plaintiff) tripped and fell while walking on a raised section of footpath. He claimed damages for injuries sustained to his lower back and left hip, and a psychological injury.

Dr David Kennedy certified that the Plaintiff’s degree of whole person permanent impairment arising from his physical injuries was more than 5%, in accordance with section 28LF of the Wrongs Act (Certificate of Assessment). The Plaintiff’s lawyers served the Certificate of Assessment and prescribed information pursuant to section 28LT(2) of the Wrongs Act on the first defendant, the City of Melbourne, on 9 July 2021.

The City of Melbourne referred the medical question to the Medical Panel, and on 5 November 2021, the Medical Panel determined that the Plaintiff’s degree of impairment arising from his injuries satisfied the significant injury threshold (first determination).

The Plaintiff then commenced proceedings against the City of Melbourne, and Citywide was subsequently joined to the proceeding as the second defendant.

The Plaintiff’s lawyers served the Certificate of Assessment and prescribed information on Citywide on 2 June 2022. Citywide referred the same medical question to the Medical Panel. However, contrary to the first determination, on 3 November 2022 the second convened Medical Panel determined that the Plaintiff’s degree of impairment did not satisfy the significant injury threshold (second determination).

The question before the Court was whether Citywide was also bound by the first determination.

Decision

His Honour Judge Fraatz delivered judgment on 28 April 2023 finding that ‘…the determination of the medical question of significant injury in relation to a claim applies to any respondent against whom the claim is made’. This meant that, despite the successful second determination, Citywide was also bound by the first determination, and the plaintiff was entitled to non-economic loss damages from it.

In support of his judgment, Judge Fraatz said that the question must be answered by reference to sections 28LE, 28LF and 28LZH of the Wrongs Act, which provide that:

28LE    ‘A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person has suffered significant injury.’

28LF     ‘(1) For the purposes of this Part injury to a person (other than a psychiatric injury) is significant injury if:

            … …

(b) a Medical Panel has determined under Division 5 that the degree of impairment of the whole person resulting from the injury satisfies the threshold level’

28LZH   ‘(1) A determination of the Medical Panel under this Division that the degree of impairment resulting from an injury satisfies the threshold level must be accepted by a court in any proceeding on the claim as a determination of significant injury for the purposes of this Part.’

Judge Fraatz considered the meaning of these sections was clear and that once the first determination had been made, the Plaintiff’s degree of impairment satisfied the threshold level, and that the Court was bound to apply that determination.

He rejected Citywide’s submission that a claim under Part VBA of the Wrongs Act should be interpreted as being specific to each respondent, and found that section 28LZH did not limit the application of the determination to the claim against the referring respondent.

Implications

In circumstances where a respondent is subsequently joined to a proceeding after a Medical Panel determination has been made, the effect of Rosata is that the second respondent will be bound by the existing decision of the Medical Panel, and there will be no requirement for the plaintiff to serve the certificate of assessment and prescribed information on the additional respondent.

This decision can be contrasted to previous decisions by the County Court of Hart v Director of Housing and Hanover Welfare Services [2013] VCCC 1402 and Ceri v Secure Parking Management No 2 Pty Ltd & Lasfam Pty Ltd [2019] VCC 640.

• In Hart, the first respondent failed to refer to the Medical Panel and was deemed by section 28LW(4) of the Wrongs Act to have accepted the certificate of assessment. The second respondent, who was served with the certificate of assessment and prescribed information at a later date, referred the question to the Medical Panel and received a successful determination.
• In Ceri, both respondents were served with the certificate of assessment and prescribed information at the same time, one failed to refer and was deemed, the other referred and received a successful determination.

In both instances, the Court held that the respondents who had been deemed to have accepted the certificate of assessments prior to the Medical Panel determination, were not then entitled to rely on the Medical Panel determinations of the questions referred by the second respondents.

While Rosata confirms that a Medical Panel determination will be binding on any respondents joined to the proceeding following the date of that determination, it is not clear that this applies in circumstances where a respondent has failed to refer a question and has been deemed to have accepted that the Plaintiff has a significant injury.

In Rosata, Judge Fratz specifically distinguished the judgment of Ceri on the basis that it related to a deemed significant injury binding one respondent, and a subsequent Medical Panel determination applying to another respondent.

These decisions have not been tested in the Supreme Court, however the current position appears to be:

1. if a respondent is deemed to have accepted a claimant’s significant injury prior to a subsequent respondent receiving a Medical Panel determination, the first respondent will not be able to rely on that Medical Panel determination.
2. where there are two inconsistent Medical Panel determinations, the Court is bound to apply the first determination.
3. where a respondent is subsequently joined to a proceeding after a Medical Panel determination has been made, the second respondent will be bound by the existing decision of the Medical Panel, and there will be no requirement for the plaintiff to serve the certificate of assessment and prescribed information on the additional respondent.