Three things you need to know about Medical Panel referrals

In this briefing, we consider some recent decisions concerning Medical Panel referrals pursuant to the Wrongs Act 1958 (Vic).  In particular, we address:

• the implications of late Medical Panel referrals;

• the extension of the three year limitation period as a result of a Medical Panel referral; and

• multi‑respondent matters and Medical Panel referrals - “one Medical Panel determination to rule them all.”

1. Late Medical Panel referrals 

Respondents to personal injury claims should be aware of the implications arising from the recent decision in Talevski v Mighty Moonee Ponds Pty Ltd (Ruling) [2023].  This ruling not only reiterates the importance of referring claimants to the Medical Panel within 60 days, but it also highlights the consequences of failing to ensure that the referral is actually received by the Medical Panel during this time.

Circumstances of the case

Pursuant to the Wrongs Act 1958 (Vic) (Wrongs Act), a respondent has 60 days from the receipt of Certificate of Assessment and Prescribed Information to refer the claimant to the Panel.  If a respondent fails to refer the claimant to the Panel during this time, the respondent is deemed to have accepted that the claimant has a "significant injury" and is entitled to maintain a claim for non-economic loss damages.

In Talevski, the respondent had until 31 July 2022 to refer the claimant to the Panel.  On 29 July 2022, two days prior to the deadline, the respondent attempted to refer the claimant to the Panel, however mistakenly sent the referral to an incorrect email address.  On 5 August 2022, five days after the deadline, the respondent identified the mistake and successfully forwarded the referral to the Panel, who ultimately accepted that the referral was made on 29 July 2022.

Despite the Panel accepting the referral, the claimant argued that the referral was made out of time as it was actually received by the Panel on 5 August 2022.  The respondent argued that it made the referral within the time frame because its intention and action of sending the email, albeit to the incorrect address, was sufficient to constitute a referral.

Decision

The matter was heard in the County Court and Her Honour Judge English ultimately ruled that the respondent failed to make the referral within the 60 days, and therefore was deemed to have accepted that the claimant had a “significant injury”.  In her decision, Her Honour noted that the word “refer” in the Wrongs Act requires both the act of referring, as well as the effect of the referral. Therefore, it is not enough to simply send a referral, the referral must also be received by the Medical Panel within 60 days.

Key takeaways

This strict interpretation of the Wrongs Act leaves no recourse to dispute late referrals.  Therefore, this case serves as a reminder to all respondents to ensure that a Medical Panel referral is submitted and acknowledged as received by the Panel within the 60 day period.

Further reading: Talevski v Mighty Moonee Ponds Pty Ltd (Ruling) [2023]

2. Extension of the limitation period due to Medical Panel referrals

Under the Limitations of Actions Act 1958, a claimant who has suffered a personal injury has three years from the date of injury to commence proceedings.  However, section 28LV(c) of the Wrongs Act 1958 (Wrongs Act) states that, in circumstances where a claimant is referred to the Medical Panel, the limitation period is suspended from the date of service of the Prescribed Information and Certificate of Assessment to three months after the expiry of the period to appeal the Medical Panel determination.

For example, if an incident occurred on 29 May 2019, under normal circumstances, the claimant would have until 29 May 2022 to issue proceedings.  However, if a Certificate of Assessment was served on 13 April 2022, the limitation period is suspended on that day.  If the respondent then chooses to refer the claimant to the Medical Panel, and a Medical Panel determination is not received until 19 September 2022, the claimant then has until 18 November 2022 (60 days) to appeal the Panel’s determination.  According to the Wrongs Act, the limitation period commences again on 18 February 2023; that is, three months after the last day to appeal the Panel determination.  There is no clear authority in relation to the interpretation and application of section 28LV(c).  However, we consider the correct interpretation to mean that time was suspended between 13 April 2022 to 29 May 2022 (the initial limitation expiry date), being 46 days.  The limitations period is then extended by 46 days from 18 February 2023 (that is, three months after the last day to appeal).  Therefore, the new limitation period expiry date is 5 April 2023.

The above outcome would change where the limitation period did not expire during the Medical Panel referral period.  For example, in the event the limitation period was set to expire on 1 April 2023, instead of 29 May 2022, time is suspended between the date the Certificate of Assessment was served (13 April 2022) until three months after the last day to appeal the Panel’s determination (18 February 2023).  This equates to a period of 311 days.  The original limitation expiry date (1 April 2023) is then extended by 311 days, and, as such, the new limitation date would be 6 February 2024.

Extension of the limitation period - COVID-19

In addition to the Act’s suspension of the limitations period, the Covid Omnibus (Emergency Measures)(Criminal Proceedings and Other Matters) Regulations 2020 (Regulations) states that any calculation of the limitation period is not to be calculated to include the period of 16 March 2020 to 31 July 2020 (inclusive).  As such, in the event a claimant’s limitation period includes this time period, their limitation period is automatically extended by a further 138 days.

Key takeaways

This is a useful reminder that, for personal injuries claims brought under the Wrongs Act, there are many circumstances which allow for an extension of the three year limitation period under the Limitations of Actions Act 1958.  Parties are reminded to undertake a thorough calculation of the limitation period before expending the costs of bringing a limitations of action defence.

3. One Medical Panel referral to rule them all

The recent case of Rosata v City of Melbourne and Citywide Services [2023] VCC 630 has changed the Medical Panel referral landscape.

Circumstances of the case

The claimant, Mr Rosata, alleged that he slipped and fell on a footpath.  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 decision

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.  It is unclear at this stage whether this decision will be the subject of an appeal.

Key takeaways

For multi-defendant claims under the Wrongs Act, it is now clear that, when it comes to Medical Panel referrals, it is “one determination to rule them all.”  Whether you are a current or a future respondent, and regardless of whether you had any say in what submissions were made to the Panel, if one party has referred the Claimant to the Panel, the decision of that Panel will apply to you.  

Further reading: Rosata v City of Melbourne and Citywide Services [2023] VCC 630