Victorian Court of Appeal allows multiple Medical Panel determinations: Rosata decision set aside

By Sauming Chan, Zoe Keith, Maria Civisic and Matt Caruana

The Victorian Court of Appeal has clarified the position on multiple Medical Panel determinations in a proceeding, finding that a Medical Panel determination is only binding on the referring respondent.

We examine the Court’s decision in the consolidated proceedings of Citywide Service Solutions Pty Ltd v Rosata; Kabbout v Crown Melbourne Ltd [2023] VSCA 281 (21 November 2023) and its implications in public liability proceedings.

Background

Two separate County Court proceedings were the subject of applications before the Victorian Supreme Court of Appeal. The first concerned Mr Luigi Rosata, who alleged he had suffered injury when he tripped and fell walking on a raised footpath in Kensington. The second concerned Mr Samih Kabbout, who alleged he slipped and fell at Crown Casino in Melbourne. The similarity between the two was that a Second Defendant was subsequently joined in their respective proceedings.

In Rosata,^[1] a certificate of assessment and prescribed form was served under the section 28LT(2) of the Wrongs Act on the City of Melbourne, who referred the injury to a medical panel to determine whether the degree of impairment satisfied the threshold level. In response to that referral, the Medical Panel determined the claimed injury satisfied the threshold level. Citywide being the Second Defendant, who was later joined to the proceeding, also subsequently referred the question to a medical panel. However, in response to that referral, the Medical Panel determined the claimed injury did not satisfy the threshold level.

In Kabbout, the First Defendant, Crown, referred the matter to a medical panel and the Medical Panel determined that the claimed injuries did not satisfy the threshold level. Ikon Services was subsequently joined to the proceeding and served with a copy of certificate of assessment and prescribed form but failed to respond within 60 days of receipt, resulting in a deemed acceptance under section 28LW of the Wrongs Act.

Court of Appeal Reasoning

The Court considered the proceedings, noting both concerned the proper construction and application of the provisions of Part VBA of the Wrongs Act.

The Court rejected the contention that ‘the issue of significant injury cannot be determined differently in the same proceeding; and any Medical Panel determination (of which there can only be one) is determinative of that issue, regardless of any party’s compliance or non-compliance, or engagement, with any of the machinery provisions in Part VBA.’

In coming to this decision, the Court provided 12 distinct reasons why it held this view. In summary, these were:

• Part VBA contains several provisions which contemplate the possibility of the issue of a significant injury being resolved differently across different defendants (i.e Section 28LR which provides that an agreement by a respondent to waive the requirement for the assessment of degree of impairment does not bind any other respondent);
• the Convenor of the Medical Panel has no power to decline on a referral on the basis that the Claimant has been assessed by an earlier Medical Panel in respect of impairment;
• Part VBA does not contain anything preventing different Medical Panels from performing their statutory functions and obligations, and providing different determinations in relation to the same injury or claim;
• ‘there is no foundation in the text of any of the provisions in Part VBA for permitting or requiring a Medical Panel determination between the claimant and some other respondent to override the operation of the provisions of Part VBA so far as they apply between that claimant and the original (or any other) respondent.’;
• while the purpose of Part VBA is to promote a speedy resolution, nothing contained with the Act suggests that such a purpose should be achieved at the expense of proper consideration or procedural fairness in respect to an issue;
• referring to D’Orta-Ekenaike,^[2] and in respect to considerations of finality, they do not assist in the resolution of the issues in the current proceedings;
• while section 28LZM(3) of the Wrongs Act ensures that the Court is aware of the existence of Medical Panel determinations, it does not ‘reinforce’ the fact that such determinations are the ultimate determinant of whether a significant injury is established;
• ‘Part VBA does not take away any rights, freedoms or immunities otherwise possessed by a respondent to whom the Part applies’;
• the Court considered section 28LT of the Wrongs Act, which refers to the requirement to serve a certificate of assessment on each respondent and the Court having the power to stay proceedings under s28LZMA until service is fulfilled, in its view, this suggested strongly that Mr Rosata was obliged to serve a copy of the same, notwithstanding the determination already in existence; and
• referring to Judge Tsalamandris in Ceri,^[3] in relation to the subsections in 28LZH of the Wrongs Act, the subsections should be read as referring to any proceeding between a Claimant and Respondent who has referred a question to the Medical Panel.

The Court applying statutory construction and, in particular, s28LZH of the Wrongs Act to the facts in Rosata reasoned that Mr Rosata is entitled to recover damages for non-economic loss against City of Melbourne but not Citywide.

Similarly, the Court applying statutory construction, to the facts in Kabbout, reasoned that Mr Kabbout is able to recover non-economic loss from Ikon Services by its failure to respond to the material within a specified time, and the medical determination from the referral by Crown has no effect on Ikon Services.