In consolidated proceedings, Beach, Osborn JJA and Forbes AJA overturned his Honour Judge Fraatz's judgment delivered on 28 April 2023 in Rosata v City of Melbourne and Anor (Ruling) [2023] VCC 630 ruling that multiple (and possibly inconsistent) Medical Panel determinations are permitted in cases involving more than one defendant.

In 2020, Luigi Rosata (Plaintiff) tripped and fell while walking on a raised section of a footpath. He allegedly suffered injuries to his lower back, hip and psychological injury.

The first defendant, the City of Melbourne, was sued on the basis that it was responsible for inspecting, maintaining and repairing the footpath. The City of Melbourne engaged the second defendant, Citywide Service Solutions Pty Ltd (Citywide), to perform these tasks. Citywide was later joined by the Plaintiff as a defendant. 

We refer to our initial article reporting on the County Court decision of Rosata v City of Melbourne and Anor (Ruling) [2023] VCC 630. In this case, there were two independent and conflicting Medical Panel determinations.

1. In November 2021, the first Medical Panel referred by the City of Melbourne, determined that the Plaintiff's degree of impairment resulting from the Plaintiff's claimed injury, satisfied the threshold level. 

2. In May 2022, Citywide referred the same medical question to a separate Medical Panel which determined on 3 November 2022, that the Plaintiff's impairment did not satisfy the threshold level.

Pursuant to reasons delivered on 28 April 2023, His Honour Fraatz J found in favour of the Plaintiff and that Citywide was bound by the first Medical Panel determination, despite its successful referral. This had the effect that the Plaintiff would be entitled to claim general damages against Citywide 

Citywide sought leave to appeal, which was heard on 9 November 2023. 

A joint judgment allowing the appeal was delivered by Beach, Osborn JJA and Forbes AJA on 21 November 2023. 

The court ultimately held that the issue of 'significant injury' can in fact be determined differently in the same proceeding. In doing so, it held that the Plaintiff is not entitled to recover general damages from Citywide, with the parties being bound by Citywide's successful (later) referral to the Medical Panel. 

In reaching its decision, the court outlined the following factors: 

• Nothing in the language of provisions of Part VBA of the Wrongs Act 1958 (Vic) (Act) implies there cannot be multiple and contradictory Medical Panel determinations in respect of one claim. 

• There is nothing in Part VBA of the Act preventing different Medical Panels from performing their statutory functions and obligations, and providing different determinations in relation to the same injury or claim.

• Part VBA contains detailed and complex provisions, which are best construed by reference to the text of them - rather than some preconceived notion of a 'procedural hierarchy of gatekeepers'. When one examines section 28LF one sees not so much a hierarchical structure of gatekeepers, but more a set of gatekeepers that need to be dealt with sequentially in accordance with the relevant machinery of the Act.  

• Part VBA of the Act embraces the possibility that a particular mechanism will bind one respondent but not another and the resolution of the significant injury issue may vary among respondents liable for the same damage.

• Although a purpose of Part VBA of the Act is to promote a speedy resolution, this should not be at the expense of a proper consideration of the issue or at the expense of procedural fairness to the parties. Respondents cannot be bound to a Medical Panel determination to which they were not entitled to provide material or submissions to. 

• Although allowing multiple referrals may lead to additional time or expenses in multi-respondent cases, all respondents are nevertheless entitled to utilise and engage with the significant injury provisions in the Act. 

Implications

This decision means that practically, there can be multiple and inconsistent Medical Panel referrals made in claims where there are multiple defendants. 

This overturns the previous ruling that one Medical Panel determination (being the first in time), likely binds the Plaintiff and all defendants. We therefore find ourselves in the same position we were in before the County Court decision. This appears a sensible outcome from a procedural fairness point of view noting it affords respondents the opportunity to refer a claimant to the Medical Panel and provide relevant documentation and submissions in support of such a referral.

The judgment also dealt with a related question referred from the proceeding Kabbout v Crown Melbourne Ltd [2023] VSCA 281.

The Second Respondent, Ikon Services (Ikon) was served a certificate of assessment in accordance with section 28LWA(3) of the Act. Ikon was deemed to have accepted the certificate of assessment due to its failure to respond to material provided by the Plaintiff within the time specified in section 28LWA(2). 

Ikon therefore contended that the Medical Panel determination referred by the First Respondent, Crown Melbourne Ltd (Crown) which was unfavourable to the Plaintiff, was ‘hierarchically superior’ to any deemed acceptance and governed the Plaintiff's claim against both Crown and Ikon, preventing the Plaintiff from recovering damages for non-economic loss against either respondent. 

Citing the same reasoning given in the Citywide proceeding, the Court rejected this and resolved that the Medical Panel determination was only binding against Crown, and has no effect in relation to Mr Kabbout's claim against Ikon. The Plaintiff in that proceeding is therefore entitled to recover damages for non-economic loss from Ikon.