In his judgment delivered on 28 April 2023 in Rosata v City of Melbourne and Anor (Ruling) [2023] VCC 630, his Honour Judge Fraatz resolved that an initial Medical Panel determination will be the relevant binding determination on the parties even if a subsequent Medical Panel delivers a different determination on the same medical question. 

In Victoria, referral of a medical question to the Medical Panel in personal injury claims can be made by any proper respondent to a claim which has been served with a Certificate of Assessment or the Prescribed Information pursuant to section 28LT of the Wrongs Act 1958 (Vic) (the Act). The Medical Panel will provide a determination (which will be binding on the parties) as to whether the impairment arising from an injury meets the significant injury threshold under section 28LF of the Act.

In cases where there are multiple respondents or defendants who are brought into a claim or proceeding at different times, it is conceivable that separate referrals of a medical question may be made. It is therefore possible that differently constituted Medical Panels can provide a determination inconsistent with an earlier determination in relation to the same medical question. 

The Victorian County Court has clarified how to address this inconsistency. 

In 2020, the Claimant 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. 

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

The Plaintiff brought a preliminary application pursuant to rule 47.04 of the County Court Civil Procedure Rules 2018, seeking a ruling on the interpretation of part VBA of the Act. That part precludes recovery of damages for non-pecuniary loss unless a claimant has suffered a ‘significant injury’. The Plaintiff in this case contended that Citywide was bound by the first determination, despite being successful on its own subsequent referral. 

Understandably, Citywide submitted that it is entitled to rely upon the latter determination of the Medical Panel, which would preclude the Plaintiff from recovering damages for non-pecuniary loss against it. 

His Honour agreed with the Plaintiff and ruled that:

1. the literal and grammatical meaning of the text of Part VBA of the Act is clear and the meaning is consistent with the purpose of the Act
2. the interpretation of 'significant injury' must be approached with reference to various terms defined in Part VBA of the Act:

(a) the term 'claim' was noted to refer to the singular rather than plural meaning 

(b) “the claim” contemplated in Part VBA should not be interpreted in context as being specific to a particular respondent

(c) the term 'injury' referred to the compensable injury on the basis that the plain language of the Act refers to significant injury in the context of a single claim arising from the same cause of action

(d) similarly, 'impairment' must be viewed in respect of a single, indivisible claim arising from the same cause of action.

His Honour also ruled that once the first determination was made, there was no need for the Claimant to serve the Certificate of Assessment or the Prescribed Information on Citywide.

In a practical sense, the decision means that only one referral will ever be made in a claim where a medical question in relation to an injury has been referred to a Medical Panel and a determination has been made either that the injury satisfies or does not satisfy the significant injury threshold. 

The court has not commented on whether this decision will impact inconsistent determinations where separate referrals have been made for physical and psychiatric injuries. However, it is our view that the decision ought not to have any impact in these circumstances as the referrals consist of different and separate medical questions, albeit arising from the same cause of action, with the Medical Panel for each being constituted by members with different medical specialities.

It remains to be seen whether the decision will be the subject of an appeal. Until then, there appears to be no opportunity to argue that only one of two or three respondents is liable to pay the Claimant non-pecuniary loss damages by reason of inconsistent determinations.