Court of Appeal provides clarity on the role of Medical Panel determinations in multi-defendant cases

22 November 2023

The Victorian Court of Appeal has provided clarity on the effect of Medical Panel determinations where additional defendants are joined to proceedings already on foot.

In issue

  • The Court of Appeal has clarified the effect of multiple Medical Panel determinations of significant injury under the Wrongs Act 1958 (Act).

The background

This decision concerned the joint hearing of two proceedings with similar issues regarding Medical Panel determinations.

In the Rosata proceedings, a Medical Panel determination on 5 November 2021, when City of Melbourne was the sole defendant, concluded that Mr Rosata’s injury satisfied the threshold level to enable him to claim damages for non-economic loss. Subsequently, a second Medical Panel determination on 3 November 2022, following joinder of Citywide, determined that Mr Rosata's injury did not meet the threshold level and therefore did not permit him to make a claim for non-economic damages against Citywide.

In the Kabbout proceedings, a Medical Panel determination on 15 December 2021 concluded that his injury did not meet the threshold level. Mr Kabbout subsequently served a certificate of assessment on Ikon Services. Notably, Ikon Services failed to respond within the stipulated time and Mr Kabbout claimed that Ikon Services was therefore deemed to have accepted Mr Kabbout's certificate of assessment.

The issues on appeal

The Court of Appeal was tasked with addressing the following issues:

  • can there be multiple Medical Panel determinations resulting from the actions of various defendants or only one Medical Panel determination, specifically the first one in time, which would bind both the plaintiff and all defendants as determined in the first Rosata decision; and
  • whether a Medical Panel determination unfavourable to the plaintiff, obtained by one defendant, can be relied upon by another defendant where that defendant would be held to have conceded the issue of significant injury by agreement or waiver as was the case in the Kabbout proceedings.

The decision on appeal

The Court of Appeal rejected the argument that the issue of significant injury must be determined uniformly in the same proceeding. Provisions in Part VBA of the Act allow for different outcomes across defendants. The Court of Appeal emphasises that the Act does not prevent different Medical Panels from providing distinct determinations for the same injury.

Implications for you

The Court of Appeal’s decision reaffirms the position before the first Rosata decision. That is, respondents served with the required material under Part VBA of the Act are not bound by any earlier decision by a Medical Panel caused by a referral from a different respondent. This has the effect that a claimant cannot rely on a Medical Panel determination to claim damages for non-economic loss from a respondent who did not make the referral to the Medical Panel. Likewise, a respondent cannot rely on a Medical Panel determination if it was not a party in the relevant referral to the Medical Panel.

The Court of Appeal pleasingly restores respondents’ options to refer a claimant to the Medical Panel to seek to avoid a claim for damages for non-economic loss, even where there is a previous determination by the Medical Panel.

Citywide Service Solutions Pty Ltd v Rosata; Kabbout v Crown Melbourne Ltd [2023] VSCA 281

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