By: Andrew Seiter and Hope Saloustros

 

At a glance

  • On 1 May 2023, Judge Fraatz of the Victorian County Court handed down judgment in the Rosata matter, holding that a Medical Panel can only make one determination in the same proceeding to determine whether a claimant’s injuries meet the threshold to claim non-economic loss damages in Victoria. The decision took respondents by surprise, overturning a process that had been bedded down over the last 20 years when the procedure was first introduced as part of tort law reform.  
  • On 21 November 2023, the Court of Appeal overturned the County Court’s decision, restoring the old approach, determining that each respondent is entitled to make their own referral, even if that means the Medical Panel may consider the same injuries twice and arrive at different outcomes.  
  • The Court of Appeal also considered a related question that involved a proceeding by Samih Kabbout against Crown and Ikon Services Australia Pty Ltd (the Kabbout proceeding). In the Kabbout proceeding, Crown had referred Kabbout to a Medical Panel that determined that his injuries did not meet the threshold to claim non-economic loss damages. Kabbout subsequently sought to claim against Ikon Services, but it failed to make a referral within the period permitted by Part VBA Wrongs Act. Judge Purcell of the Victorian County Court referred a question to the Court of Appeal on whether Ikon could rely on Crown’s referral. The Court of Appeal has held that it cannot.  

 

 

Legislative background

In Victoria, many claimants are precluded from recovering non-economic loss damages unless they have suffered a ‘Significant Injury’.  

The claimant will serve a Certificate of Assessment from an approved medical practitioner stating that their injury meets the requisite ‘Significant Injury ‘threshold level, which for spinal injuries is 5% or more whole person impairment (WPI) or 6% or more for other physical injuries using the American Medical Association Guides Edition IV. For mental harm injuries, the threshold is 10% or more.  

A defendant can challenge the Certificate of Assessment by making a referral to a Medical Panel. If a defendant refers the claimant to a Medical Panel which in turn determines the claimant’s injuries satisfy the ‘threshold level’, the Court is required to accept the determination.  

Another way for a claimant to satisfy the threshold level occurs when a respondent fails to respond to the Certificate of Assessment served by the claimant and does not refer the claimant to a Medical Panel. This means that the respondent is deemed to have accepted the Certificate of Assessment and the claimant can claim non-economic loss damages from the respondent that failed to refer.  

Hope Saloustros and Andrew Seiter explain further on the back of their first article on the topic in May 2023. 

 

The Rosata decision – County Court of Victoria  

Facts 

In Rosata, the plaintiff, Luigi Rosata, had served the City of Melbourne with a Certificate of Assessment. The City referred Mr Rosata to a Medical Panel and it determined he met the ‘Significant Injury’ threshold to claim non-economic loss against it. The plaintiff subsequently served a further respondent, Citywide, a contractor to the City and it made a further referral. The newly constituted Medical Panel determined Mr Rosata’s injuries did not meet the ‘Significant Injury’ threshold. If other determinations were valid, it would mean Mr Rosata was entitled to non-economic loss damages against the City, but not against Citywide. 

The decision at first instance 

Mr Rosata’s lawyers applied to the County Court for an order that the second determination was not valid and that the first determination was binding on all parties. Citywide argued that, consistent with the long-established practice, each referral was separately valid for that party that made the referral 

His Honour Judge Fraatz agreed with Mr Rosata, holding the second determination was invalid and that the Medical Panel should not have convened a second panel.  

His Honour referred to and relied upon s28LZH Wrongs Act, which states that:  

  1. A determination by 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.
  2. A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury does not satisfy the threshold level must be accepted by a court in any proceeding on the claim as a determination that the injury is not significant injury for the purposes of this Part. 

His Honour placed considerable emphasis on sub-section (1) finding that once there was a determination by the Medical Panel that the threshold was met, the Court was bound to accept, and apply that determination to the whole of the claimant’s proceeding against any respondent.  

 

The Kabbout proceeding  

Facts 

In the Kabbout proceeding, Crown had referred Mr Kabbout to the Medical Panel. That Medical Panel disagreed with the approved medical practitioner that had issued a Certificate of Assessment and determined his injuries did not satisfy the requisite threshold level. Mr Kabbout later served a Certificate of Assessment on Crown’s cleaner, Ikon Services. Ikon Services did not make a referral within the required timeframe.    

Mr Kabbout argued that this meant Ikon was deemed to have accepted he had a “Significant Injury”. That would mean Mr Kabbout could claim non-economic loss damages from Ikon Services, but not Crown.    

Relying on the same principles as set out by Judge Fraatz in Rosata, Ikon Service argued before Judge Purcell that it was entitled to rely upon the determination from Crown’s referral.  

The decision at first instance  

On 16 June 2023, His Honour Judge Purcell, having not made a ruling himself, referred a question to the Court of Appeal as to whether the determination to Crown’s outcome was binding on the Court. 

 

Victorian County Court of Appeal decision  

The two matters came before the Court of Appeal on 9 November 2023. The common question for the Court of Appeal to consider was whether there can be multiple Medical Panel determinations in one proceeding or only one.  

The Court of Appeal considered the construction and application of Part VBA (and s28LZH) and rejected the argument that there can be only one determination per proceeding. 

Their Honours Beach, Osborn JJA and Forbes AJA ruled, among other things: 

  1. There is nothing in Part VBA Wrongs Act which prevents multiple referrals and determinations in one proceeding and there are several provisions which in fact contemplate it (namely, s28LR, s28LWC and s28LZB). 
  2. The Convenor of Medical Panels is not obliged to consolidate referrals from multiple defendants, suggesting there could be multiple Medical Panel outcomes. Further, the Convenor does not have power to decline a referral only because of an earlier referral.
  3. There is nothing in Part VBA Wrongs Act which prevents differently convened Medical Panels from providing conflicting determinations.
  4. While one purpose of Part VBA Wrongs Act is to ensure a quick resolution of the question of whether a claimant satisfies the ‘Significant Injury‘ threshold, it cannot be at the expense of procedural fairness.
  5. The fact s28LZMA contemplates a stay of a proceeding until service of a Certificate of Assessment on a respondent and because a claimant must serve a Certificate of Assessment on all respondents suggests that Mr Rosata was obliged to serve a Certificate of Assessment on Citywide (a subsequent respondent) irrespective of the existence of a prior Medical Panel determination. Likewise, Ikon Services could not just sit and do nothing and simply expect to rely on Crown’s earlier determination. 
  6. Agreeing with her Honour Judge Tsalamandris in Ceri1 the Court of Appeal held that both sub-sections of s28LZH can have application in one proceeding. The sub-sections are not alternatives. Their Honours stated: 

“While the words ‘in any proceeding on the claim’ (used in both sub-sections) are words of wide import, they are not to be read literally as referring to any proceeding concerning the claim whatsoever. In the context in which s 28LZH appears, they are to be read as referring to any proceeding between the claimant and the respondent who referred the medical question to the Medical Panel and thus had the ability to provide relevant material and submissions in relation to the resolution of the medical question”. 

Their Honours added: 

“Further, the words ‘must be accepted by a court in any proceeding on the claim’ point forward to the provisions set out shortly thereafter in div 6 of pt VBA which is headed ‘Proceedings on claim’. The provisions of that division require a claimant to file information establishing significant injury by one of the sequential and alternative mechanisms provided for in the preceding divisions. Section 28LZM embraces the possibility that a particular mechanism will bind one respondent but not another.” 

 

Practical result  

The practical outcome of the Court of Appeal’s application of s28LZH means that: 

  • In Mr Rosata’s case, Mr Rosata can claim non-economic loss damages against the City of Melbourne because the Medical Panel determined in response to its referral that he has a “Significant Injury”, but not against Citywide because the later constituted Medical Panel determined he did not have a “Significant Injury”, and 
  • In Mr Kabbour’s case, Mr Kabbout cannot claim non-economic loss damages against Crown because the Medical Panel determined he did not have a “Significant Injury” but could against Ikon Services because it failed to make a referral in the time permitted by the Wrongs Act. 

 

Implications

The Court of Appeal decision means that it back to business as usual. It means all defendants who are served with a Certificate of Assessment can refer a question to a Medical Panel irrespective of whether there is a prior Medical Panel determination. Sometimes they may be consolidated, so there is a single determination. Other times, there may be separately constituted Medical Panel determinations and, as a result, potentially different outcomes.

A claimant cannot rely on an earlier favourable determination and must serve a Certificate of Assessment on all subsequent defendants who will have the opportunity to make a referral to a newly convened Medical Panel. This new Medical Panel might arrive at a different conclusion regarding whether the claimant’s injuries satisfy the threshold level under the Wrongs Act. 

If a defendant does not respond to a Certificate of Assessment, it will be deemed to have accepted the Certificate of Assessment, meaning the claimant will be entitled to claim non-economic loss damages from it. If an earlier determination is favourable to the claimant and the subsequent respondent does not refer, then the claimant will be entitled to claim non-economic loss from it despite the prior determination.  

[1] Ceri v Secure Parking Management No 2 Pty Ltd & Anor [2019] VCC 640