Courts Conclude what was already known – Courts to continue to accept multiple medical panel determinations
Published on Posted onPlease note that this post was written for Victorian audiences and the information within may not apply to other regions.
In accordance with the Wrongs Act 1958 (Vic) (‘the Wrongs Act’), if a person injured in a public place wishes to initiate a claim for pain and suffering, they must first establish that they have a significant injury. In the first instance, the injured party would be assessed by an independent accredited medicolegal doctor who would assess their level of impairment. If their level of impairment meets the relevant threshold level to establish a significant injury, then they will provide the injured individual with a Certificate of Assessment (‘the certificate’).
The Role of the Medical Panel
Once an injured individual has the certificate, and a copy of the certificate has been served on the parties purported to be responsible for the injuries incurred (‘the liable parties’), the parties then have some decision making to do. In simple terms, the liable parties need to decide if they will accept the certificate or if they wish to challenge. To challenge the certificate the liable parties, need to refer the matter to the Medical Panels. The Medical Panels is an independent body of accredited practitioners who can reassess the level of impairment caused by the injuries and redetermine if the injuries satisfy the relevant threshold.
The Wrongs Act stipulates how a referral to the Medical Panels is to be made, what question the Medical Panels are to be asked and among other things, what guidelines the Medical Panels must follow in their assessment of the injured person. Importantly, the Wrongs Act infers that the Panels determination is final and binding, by specifying the determination must be accepted by the court if the claim proceeds.
For many years, the legal profession has accepted a Medical Panel determination as binding on the referring liable parties and the court. Furthermore, it was accepted that each liable party could refer the injured person to the Medical Panels, which at times meant there would be more than one Medical Panels determination, with each liable party being bound only by the determination that arose through their own referral. In 2023, this latter concept was challenged in the County Court in the matter of Rosata v Citywide Services Solutions Pty Ltd and Anor (Ruling) [2023] VCC 630 (‘Rosata’).
Rosata
Mr. Rosata was injured after tripping on a raised footpath. Mr. Rosata having been assessed by an independent accredited medicolegal doctor as meeting the relevant significant injury threshold, was provided with a Certificate of Assessment which was served on the City of Melbourne (the council responsible for the footpath). In accordance with the Wrongs Act, the City of Melbourne referred Mr. Rosata to the Medical Panels, who determined Mr. Rosata’s injuries satisfied the relevant threshold.
A few months later it was decided to add Citywide Services Solutions Pty Ltd (‘Citywide’) to the proceedings, as they were engaged by the City of Melbourne to inspect, maintain and repair the footpath in question. Citywide also referred Mr. Rosata to the Medical Panels. A new Medical Panel was convened and this time the Medical Panel determined Mr. Rosata’s injuries did not meet the threshold.
With two conflicting Medical Panels determinations, Mr. Rosata put it to the court that in accordance with the Wrongs Act the court and the liable parties must accept the first Medical Panels determination as binding on the court and subsequently Citywide.
Despite the long held understanding of the legal profession, the court, having delved into the statutory construction of the Wrongs Act agreed with Mr. Rosata. The court concluded that the first Medical Panel determination, from the referral of the City of Melbourne, was binding on the court and subsequently, applied to all liable parties.
Rosata Appeal
The ruling of Rosata was in contrast to the long-held understanding on the legal profession, and hence was appealed. For approximately 8 months many Public Liability claims were put on hold, waiting for the Supreme Court of Appeal to release their judgement in Citywide Service Solutions Pty Ltd v Rosata; Kabbout v Crown Melbourne Ltd [2023] VSCA 281 (‘the Appeal’).
The appeal overturned the decision in Rosata from the County Court. The appeal reinstated the long-held understanding that each proposed liable party can refer the injured person if done so in accordance with the Wrongs Act and that each liable party will be bound by the Medical Panels determination that arose through their respective referrals.
In simple terms, the courts can now continue to accept multiple Medical Panels determinations within the same proceeding as binding on the respective referring liable party, regardless of whether the determinations are conflicting. A liable party will only be bound by a Medical Panels determination which arose from their own referral.
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