'First in time' Panel determination not binding - Victorian Court of Appeal overturns Rosata decision

The Victorian Court of Appeal returned a decision on 21 November 2023 determining that a ‘first in time’ Medical Panel determination is not binding on other respondents: Citywide Service Solutions Pty Ltd v Rosata; Kabbout v Crown Melbourne Ltd [2023] VSCA 281 (21 November 2023).

Circumstances of the case

The claimant, Mr Rosata, alleged that he slipped and fell on a footpath in Kensington.  He served the Prescribed Information and Certificate of Assessment on the City of Melbourne (CoM). CoM referred Mr Rosata to the Medical Panel and the Panel determined that Mr Rosata had sustained a significant injury (the First Medical Panel Determination).  Mr Rosata brought proceedings against the CoM and, during this process, it was revealed that another party, Citywide Services (Citywide), may be a further potential respondent to the claim.  Mr Rosata then served the Certificate of Assessment and the First Medical Panel Determination on Citywide.  In response, Citywide referred Mr Rosata to the Panel.  This time, the Panel determined that Mr Rosata’s injuries did not meet the significant injury threshold (the Second Medical Panel Determination).

Mr Rosata asked the County Court to consider whether the First Medical Panel Determination would apply to Citywide.

The County Court decision

In a judgment dated 28 April 2023, His Honour Judge Fraatz ultimately concluded that the First Medical Panel Determination applied to Citywide and the Second Medical Panel Determination was invalid.  His Honour concluded that Part VBA of the Wrongs Act 1958 (Vic) (Wrongs Act) imposed a threshold, and once that threshold had been decided by the Panel, that outcome was binding on all current and future respondents. 

Citywide appealed this decision to the Supreme Court of Appeal.

The Court of Appeal decision

The Rosata appeal was consolidated with a separate matter involving a claim made by Mr Kabbout (Kabbout) against Crown Melbourne Limited (Crown).  In that proceeding, Crown made a referral to the Medical Panel which returned a determination on 15 December 2021 that Mr Kabbout’s injuries did not satisfy the threshold level. Kabbout then served a Certificate of Assessment and Prescribed Information on Ikon Services (Ikon).  Ikon failed to respond to the material within the time specified in the Wrongs Act.  Ikon argued that the referral by Crown, and the subsequent Panel determination that Kabbout did not meet the threshold level, was binding on Kabbout.  If Ikon was incorrect, it would be deemed to have accepted that he sustained a significant injury and he would be entitled to claim non-economic loss damages from Ikon.

Interestingly then, the consolidated matters involved:

• Rosata, City of Melbourne, Crown and Ikon arguing that the ‘first in time’ Panel determination was binding on all parties; and
• Citywide and Kabbout arguing that separate determinations could apply to each respondent.

The Court of Appeal noted that the two proceedings ‘raise issues concerning the proper construction and application of the provisions of pt VBA in circumstances where there are multiple defendants to a plaintiff’s claim that is governed by those provisions.’

The Court of Appeal considered the proper construction and application of Part VBA of the Wrongs Act. It was noted that:

1. The Wrongs Act does include a number of provisions which contemplate the possibility of multiple respondents and referrals;
2. The Convenor of the Medical Panels is empowered, but is not required, to direct that referrals by multiple respondents concerning the same assessment be consolidated.  Additionally, there was no power to decline a referral on the basis that the claimant had been assessed by an earlier Medical Panel;
3. There is nothing in Part VBA preventing different Medical Panels from performing their statutory functions and obligations, and providing different determinations in relation to the same injury or claim;
4. While it was a purpose of Part VBA of the Act to promote speedy resolution of the significant injury issue, nothing in the Act suggests that this should be achieved at the expense of proper consideration of the issue, or at the expense of ensuring that procedural fairness was accorded to the parties in relation to the issue;
5. Questions of finality were relevant in relation to the proper resolution of the significant injury issue in accordance with Part VBA, but that did not mean that a respondent should be bound by a Medical Panel determination to which it was not entitled to provide material or make submissions on the significant injury issue; and
6. The requirement to serve a Certificate of Assessment on each respondent and the power of a court to stay a proceeding until service on the respondent in compliance with Part VBA, strongly suggests that Mr Rosata was obliged to serve Citywide, notwithstanding the existence of a Medical Panel determination applying to City of Melbourne. 

The Court of Appeal also rejected the suggestion that significant injury was determined by a ‘hierarchy of gatekeepers,’ or that Medical Panel determinations were the ultimate determinant of whether significant injury was established. It also rejected the submission that section 28LR was relevant to the proceedings.

The Court of Appeal, in determining that the ‘first in time’ Panel determination was not binding on other respondents, conceded that this may lead to ‘results in some cases that some parties might think less than ideal.’  However, ‘the fact that this construction might have the capacity to affect entitlements to contribution between some defendants liable for the same damage, is no basis for failing to give effect to the statutory text in pt VBA in the context in which it is found’.  This encompassed the possibility that the significant injury issue might be resolved differently between defendants liable for the same damage.

Accordingly, having regard to the differing Medical Panel determinations, the Court found that Mr Rosata was permitted to recover damages for non-economic loss from the City of Melbourne, but was unable to recover damages for non-economic loss from Citywide.

Mr Kabbout was unable to recover non-economic loss damages from Crown, but was able to recover non-economic loss damages from Ikon, as it was deemed to have accepted that he sustained a significant injury as a result of its failure to respond within the time specified by the Wrongs Act

What does this mean for future Wrongs Act cases?

The Court of Appeal determination reinforces that parties must be careful in making any referral to the Medical Panel, and responding to any Claimant’s served material, in accordance with the timelines set out in the Wrongs Act. Respondents should ensure that they are making any referral to the Panel in time and that they are considering the suitability of a referral based on the material to hand.  An earlier referral by a different respondent may be a factor in determining whether a separate referral should be made, but it is certainly not binding on other respondents.

A link to decision can be found here: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2023/281.html