Citywide Service Solutions Pty Ltd v Rosata

76 VR 499

CITYWIDE SERVICE SOLUTIONS PTY LTD v ROSATA and Another KABBOUT v CROWN MELBOURNE LTD and Another Court of AppealBeach and R Osborn JJA, Forbes AJA 9, 21 November 2023[2023] VSCA 281Tort — Threshold for claim for non-economic loss — Significant injury — Determination of significant injury by medical panel in cases involving more than one defendant — Whether medical panel determination made after referral by one defendant binds other defendants not parties to the referral — Whether Wrongs Act 1958 (Vic) pt VBA permits multiple medical panel determinations in cases involving more than one defendant — Whether pt VBA permits issue of significant injury to be determined differently in respect of different defendants against whom same claim is made — Wrongs Act 1958 (Vic), pt VBA.

In Citywide v Rosata (Rosata proceeding), R alleged that he suffered injury when he tripped and fell while walking on a raised section of footpath. He claimed damages from the City of Melbourne and from Citywide. In the Kabbout proceeding, K alleged that he slipped and fell at the premises of Crown Melbourne Ltd. He claimed damages from Crown and from Ikon Services Australia Pty Ltd.

Under the Wrongs Act 1958 (Vic), a claimant could satisfy the statutory threshold for recovery of damages for non-economic loss (demonstrating ‘significant injury’) in either of two ways — first, by obtaining a determination by a medical panel that the degree of impairment of the whole person resulting from the claimed injury satisfied the threshold level under s 28LB of the Act; or secondly, by a respondent to a claim failing to provide a response as required by s 28LWA of the Act within the time specified in circumstances where the claimant’s certificate of assessment specified that the degree of impairment of the whole person resulting from the claimed injury satisfied the threshold level.

In the Rosata proceeding, a medical panel determination provided that R’s injury satisfied the threshold level (when the claim was only against the City of Melbourne) and a subsequent medical panel determination provided that R’s injury did not satisfy the threshold level (when the claim was against the City of Melbourne and Citywide). At trial of a preliminary question concerning which medical panel opinion was required to be accepted by the Court, the Court held that the first medical panel determination was required to be accepted in the applicant’s claim against Citywide. Citywide sought leave to appeal.

In the Kabbout proceeding, a medical panel determination provided that the applicant’s injury did not satisfy the threshold level (when the claim was only against Crown) and subsequently (before Ikon Services was joined to the claim) the applicant served a certificate of assessment on Ikon Services, to which it failed to respond within the time provided by s 28LWA(2) of the Act. The County Court referred the question of whether the Court was required to accept the medical panel determination, such that the determination was binding on the Court and governed all claims in respect of non-economic loss damages made by the applicant against Crown and Ikon Services.

Held, in the Rosata proceeding, granting leave to appeal, allowing the appeal and, in the Kabbout proceeding, answering the question ‘no’ and holding that the Medical Panel determination was only binding in respect of K’s claim against Crown (it having no effect in relation to K’s claim against Ikon Services):

(1)
The issue of significant injury could be determined differently in the same proceeding as against different defendants. [83]–[98].
AB (a pseudonym) v IBAC [2022] VSCA 283; Ceri v Secure Parking Management No 2 Pty Ltd[2019] VCC 640 applied.
(2)
A construction that may have the capacity to affect entitlements to contribution between some defendants liable for the same damage was no basis for failing to give effect to the statutory text in pt VBA in the context in which it was found. [99]–[100].

Decision of County Court [2023] VCC 630 reversed.

Application for leave to appeal and Appeal/Referred question of law

In the Rosata proceeding, this was an application by Citywide for leave to appeal against the determination of a preliminary question in favour of the plaintiff and, in the Kabbout proceeding, this was a referred question of law from the County Court as to acceptance of a medical panel determination. The facts are stated in the reasons for judgment.

A N Murdoch KC with B W Jellis for the applicant, Citywide Service Solutions Pty Ltd. D J Williams KC with C E Hangay for the first respondent, Rosata. B F Quinn KC with H Crosthwaite for the second respondent, City of Melbourne. F A L Ryan SC with A Hill for the applicant, Kabbout. P A Czarnota with C N Viney for the second respondent, Ikon Services Australia Pty Ltd. Reserved judgment.BEACH JA, R OSBORN JA, FORBES AJA 1Part VBA of the Wrongs Act 1958 (Vic) (the Act) contains provisions which restrict the ability of individuals, who suffer personal injury in certain circumstances,1from claiming damages for non-economic loss (pain and suffering, and loss of enjoyment of life). The two County Court proceedings the subject of the present applications in this Court are claims for damages for personal injury. Each claim is a claim to which pt VBA of the Act applies.2In the first proceeding, Luigi Rosata alleges that he suffered injury when he tripped and fell while walking on a raised section of footpath in Kensington. He claims damages for his alleged injury from City of Melbourne and Citywide Service Solutions Pty Ltd (Citywide) (the Rosata proceeding). In the second proceeding, Samih Kabbout alleges that he slipped and fell at the premises of Crown Melbourne Ltd (Crown). He claims damages for his alleged injury from Crown and Ikon Services Australia Pty Ltd (Ikon Service) (the Kabbout proceeding).3Section 28LE of the Act prohibits a person from recovering damages for non-economic loss in any proceeding to which pt VBA applies unless the person has suffered ‘significant injury’ as defined in s 28LF of the Act.24One of the ways by which a claimant can satisfy the significant injury requirement in s 28LE is by obtaining a determination by a Medical Panel under div 5 that the degree of impairment of the whole person resulting from the claimed injury satisfies the ‘threshold level’3 as defined in s 28LB of the Act.4 Section 28LZH of the Act requires a court, in any proceeding on a claim, to accept the determination of a Medical Panel made under div 5 of pt VBA of the Act, on the issue of whether or not an injury satisfies the threshold level as a determination of whether or not the injury is or is not significant injury for the purposes of pt VBA.5Another way by which a claimant can satisfy the significant injury requirement in s 28LE is by a respondent to a claim failing to provide a response to material provided by the claimant as required by s 28LWA of the Act within the time specified in s 28LWA(3).5 Such a failure results in a deemed acceptance of the claimant’s certificate of assessment.6 If that certificate specifies that the degree of impairment resulting from the claimant’s injury satisfies the threshold level then the significant injury requirement is met.76The difficulty that has arisen in the proceedings currently before the court relates to the subsequent joinder in each case of a second defendant: in the Rosata proceeding, the joinder of Citywide; and in the Kabbout proceeding, the joinder of Ikon Services.7In the Rosata proceeding, as a result of the parties’ purported compliance with the provisions of pt VBA of the Act, there are now two different and competing Medical Panel determinations on the question of whether the degree of impairment resulting from Mr Rosata’s claimed injury satisfies the threshold level. Specifically, there is a Medical Panel determination which was made on 5 November 2021, when Mr Rosata’s claim was only being brought against City of Melbourne. That determination states that Mr Rosata’s injury satisfies the threshold level. And then there is a second Medical Panel determination, made on 3 November 2022, following a referral made by Citywide after it was joined as the second defendant in the Rosata proceeding. That determination states that Mr Rosata’s injury does not satisfy the threshold level.8Mr Rosata and City of Melbourne contend that the first Medical Panel determination is binding and that the second determination is invalid or of no effect. Thus, they contend that Mr Rosata is entitled to recover damages for non-economic loss against both City of Melbourne and Citywide. To the contrary, Citywide contends that the second Medical Panel determination is valid and that it prevents Mr Rosata from being able to recover damages for non-economic loss from Citywide.9In the Kabbout proceeding, there is a Medical Panel determination which was made on 15 December 2021, when Mr Kabbout’s claim was then only being brought against Crown. The determination was that Mr Kabbout’s injury did not satisfy the threshold level. Subsequently, but before Ikon Services was joined as a second defendant, Mr Kabbout served a certificate of assessment, and the prescribed information required by s 28LT of the Act, on Ikon Services. Ikon Services ultimately failed to respond to material provided by Mr Kabbout within the time provided in s 28LWA(2) of the Act. Absent the issues raised in these proceedings, the failure by Ikon Services to respond within the time provided in s 28LWA(2) would result in a deemed acceptance by it of Mr Kabbout’s certificate of assessment pursuant to s 28LWA(3) of the Act.10Mr Kabbout contends that, notwithstanding that the Medical Panel determination unfavourable to him prevents him from recovering damages for non-economic loss from Crown, he is able to recover such damages from Ikon Services as a result of its deemed acceptance of the certificate of assessment that he served on it in accordance with s 28LWA(3). To the contrary, Ikon Services contends that the Medical Panel determination is ‘hierarchically superior’ to any deemed acceptance and governs Mr Kabbout’s claim against both Crown and Ikon Services, preventing Mr Kabbout from recovering damages for non-economic loss against either of them. Crown has chosen not to contest the issue in this Court.

The proceedings at first instance

The Rosata proceeding

11On 31 January 2023, Judge Tsikaris ordered the trial of the following preliminary question in the Rosata proceeding:

Which Medical Panel Opinion is required to be accepted by the Court as a determination of the question of whether [Mr Rosata’s] degree of impairment has satisfied the threshold level of significant injury pursuant to s 28LZH of the Act in [Mr Rosata’s] claim against [Citywide]?

12The trial of the preliminary question was conducted before Judge Fraatz on 16 March 2023. On 2 May 2023, pursuant to reasons delivered on 28 April 2023,8 his Honour made an order that the first of the two Medical Panel determinations (being the Medical Panel determination that Mr Rosata’s impairment resulting from his injury satisfied the threshold level) was required to be accepted by the court pursuant to s 28LZH of the Act in Mr Rosata’s claim against Citywide.

The Kabbout proceeding

13On 16 June 2023, pursuant to s 76(1) of the County Court Act 1958, Judge Purcell made an order referring the following question to this Court in the Kabbout proceeding:

Whether, in accordance with Part VBA of the Wrongs Act 1958, and including but not limited to section 28LZH(2), the County Court of Victoria in this proceeding is required to accept the Medical Panel determination of 15 December 2021, referred to the Medical Panel by [Crown], such that the determination is binding on the Court, and governs all claims in respect of non-economic loss damages made by [Mr Kabbout] as against all Defendants including [Ikon Services]?

The proceedings in this Court

14In the Rosata proceeding, Citywide seeks leave to appeal against the order made by Judge Fraatz answering the preliminary question unfavourably to it. Citywide’s proposed ground of appeal is that his Honour erred in the construction of s 28LZH when he held that the Medical Panel determination made first in time was required to be accepted by the court in relation to Mr Rosata’s claim against it.15This is the hearing of Citywide’s application for leave to appeal in the Rosata proceeding (and, if leave is granted, the appeal) and the hearing of the question referred by Judge Purcell pursuant to s 76(1) of the County Court Act 1958 (Vic) in the Kabbout proceeding.

Part VBA of the Act

16We have already described the effect of some of the relevant provisions in pt VBA of the Act. It is now necessary to describe the provisions of pt VBA in greater detail.17Part VBA is headed, ‘Thresholds in relation to recovery of damages for non-economic loss’. It is divided into seven divisions and contains 53 sections (ss 28LB to 28LZT). It deals with the issues of what constitutes significant injury; how a claimant can satisfy the significant injury requirements of the Act; the procedures to be followed for making a claim for damages for non-economic loss; the procedures to be followed by, and in relation to, Medical Panels in relation to the issue of significant injury; and the effect of Medical Panel determinations on court proceedings.18The restriction on the recovery of damages for non-economic loss is, as we have already said, contained in s 28LE of the Act. That section provides:

A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.

What is significant injury?

19Section 28LF (contained in div 2 of pt VBA) is headed ‘What is significant injury?’. It describes what is, and what is deemed to be, significant injury.20First, the section provides that an injury to a person is significant injury if the injury is:

•
‘loss of a foetus’;9
•
‘psychological or psychiatric injury arising from the loss of a child due to an injury to the mother or the foetus or the child before, during or immediately after the birth’;10or
•
‘loss of a breast’.11

For these injuries, no threshold level needs to be satisfied by the claimant.

21Secondly, s 28LF provides that an injury to a person is significant injury if:

•
the degree of impairment of the whole person resulting from the injury has been assessed by an approved medical practitioner12 as satisfying the threshold level, unless a Medical Panel13 has made a determination as to the threshold level;14
•
a certificate of assessment has been issued under s 28LNA that an approved medical practitioner is unable to determine the degree of impairment because the injury has not stabilised, but is satisfied that the degree of impairment will satisfy the threshold level once the injury has stabilised, unless a Medical Panel has made a determination as to the threshold level;15 or
•
a Medical Panel has determined that the degree of impairment resulting from the injury satisfies the threshold level.16

22Thirdly, s 28LF provides that an injury to a person is deemed to be significant injury if:

•
an agreement is given under div 4 of pt VBA to waive the requirement for assessment in respect of the injury;17
•
the injury is deemed under s 28LZG(10) or s 28LZGA(4) to be significant injury as a result of the certification by a Medical Panel, in the circumstances set out in those sections, where the injury has not stabilised;18 or
•
a court makes a determination of significant injury under s 28LZN in respect of a claim that the court is satisfied should be dealt with urgently ‘because of the imminent death of the claimant ... and ... the injury if assessed ... would be significant injury’; or in respect of a claim that the court is satisfied ‘relates to a cause of action that survives for the benefit of the estate of a deceased person ... and ... the deceased person died from a cause other than the injury to which the claim relates ... and ... the injury to which the claim relates, if it had been assessed ... would be significant injury’.19

Assessment of impairment

23Division 3 of pt VBA (containing ss 28LG to 28LNA) is headed ‘Assessment of impairment’. It deals with the methods by which assessments of the degree of impairment resulting from an injury are required to be made. For present purposes, it is not necessary to summarise all of the provisions of this Division. There are, however, three provisions to which reference should be made.24Section 28LL(1) provides that if a person has more than one impairment resulting from injuries which arose out of the same incident, all of those impairments must be included in the one assessment.25Section 28LN(1) provides that, ‘subject to s 28LNA and this section, an approved medical practitioner who makes an assessment of the degree of impairment ... must provide to the person seeking the assessment a certificate of assessment’. Section 28LN(2) provides that the certificate of assessment must state whether the degree of impairment satisfies the threshold level but must not state the specific degree of impairment. Section 28LN(3) provides that if not all the injuries have stabilised, a certificate of assessment can only be provided if the injuries that have stabilised are sufficient to determine a degree of impairment that satisfies the threshold level.26Section 28LNA deals with the circumstance where an approved medical practitioner is unable to determine the degree of impairment because the injury has not stabilised. The section provides that if, at the end of six months after the first assessment, an approved medical practitioner is still unable to determine the degree of impairment but is satisfied that the degree of impairment will satisfy the threshold level once the injury has stabilised, the approved medical practitioner may issue a certificate of assessment so stating.20

Procedure for claim for non-economic loss

27Division 4 (containing ss 28LO to 28LXA) is headed ‘Procedure for claim for non-economic loss’. It deals with procedures for establishing and contesting significant injury in non-economic loss claims.28Section 28LO provides that a claimant may, in writing, ask the respondent to waive the requirement for an assessment of the degree of impairment.21 ‘Claimant’ is defined in s 28LB to mean ‘a person who makes or is entitled to make a claim for damages that relate to the injury to a person caused by the fault of another person’; and ‘respondent’ is defined in the same section, ‘in relation to a claim’, to mean ‘the person against whom the claim is made’.29A request under s 28LO must be in the prescribed form (if any) and include the prescribed information (if any).22 A respondent to whom a request is made must respond in writing within 60 days after receiving it.23 The response must state whether the respondent is a proper respondent to the claim, or whether it requires further information in order to decide whether it is a proper respondent to the claim, or whether it believes that it is not a proper respondent to the claim and if so, the reasons for such belief and give any information that may help the claimant to identify the proper respondent.24 If the respondent accepts that it is the proper respondent to the claim, it must state whether it agrees to waive the requirement for the assessment of the degree of impairment ‘because the injury is significant injury’, or request that the claimant obtain such an assessment.2530Section 28LP deals with the circumstance in s 28LO(3)(c) where a respondent advises a claimant that it requires further information to decide whether the respondent is a proper respondent to the claim. The claimant is required to give the respondent the information the respondent reasonably needs to make that determination; and the respondent must then (within 60 days) respond in the manner required by s 28LO, accepting or disputing that it is a proper respondent, and stating whether it agrees to waive the requirement for an assessment or whether it requires the claimant to obtain an assessment.26

31Section 28LQ deals with the circumstance in s 28LO(3)(d) where a respondent disputes that it is a proper respondent. The section provides for the claimant (within 14 days of receiving the respondent’s response) to give written notice to the respondent that it either accepts that the respondent is not a proper respondent to the claim or it considers that the respondent is a proper respondent to the claim and requires the respondent to respond to the notice.27 If the claimant maintains that the respondent is a proper respondent, the respondent is then given a further period of 14 days to state that it agrees to waive the requirement for an assessment of the degree of impairment ‘because the injury is significant injury’, or to request that the claimant obtain an assessment of the degree of impairment.2832Sections 28LO(4), 28LP(3) and 28LQ(4) provide that if a respondent fails to respond within the times referred to in those sections, ‘the requirement for the assessment of degree of impairment cannot be waived by the respondent’.33Section 28LR is headed ‘Can a respondent bind any other respondent?’. It provides that:

An agreement under this Division by a respondent to a claim that the assessment is not required because the injury is significant injury does not bind any other respondent.

34If a claimant does not request a waiver, or if a respondent responds with a request that a claimant obtain an assessment, or fails to respond, then s 28LT requires a claimant to serve on the respondent a copy of a certificate of assessment on which the claimant intends to rely, accompanied by the prescribed information (if any)29 in the prescribed form (if any) unless that information has already been provided under s 28LO.35Section 28LU is headed ‘Multiple respondents’. It provides:

(1)
If there are 2 or more respondents to a claim, one of the respondents (the respondents’ claim manager) may act for one or more of the other respondents, with the agreement of those other respondents, for the purposes of the claim.
(2)
The respondents’ claim manager—
- (a)
  may exercise the powers and perform the duties conferred by this Part in relation to the claim and the claimant for all respondents for whom the respondents’ claim manager acts; and
- (b)
  must act as far as practicable with the agreement of the other respondents for whom the respondents’ claim manager acts.
(3)
Action taken or an agreement made by the respondents’ claim manager in relation to the claim is binding on each respondent for whom the respondents’ claim manager acts so far as it affects the claimant.
(4)
If the respondents’ claim manager acts beyond the scope of the respondents’ claim manager’s authority under the agreement referred to in subsection (1), the respondents’ claim manager is liable to each other respondent who is a party to the agreement for any loss suffered by the other respondent.

36Sections 28LW, 28LWA and 28LWB provide for the exchange of information between the claimant and the respondent upon whom a copy of a certificate of assessment is served in terms very similar to those contained in ss 28LO, 28LP and 28LQ. Under s 28LW, the respondent is required to respond within 60 days stating whether it is a proper respondent, unable to decide if it is a proper respondent or believes that it is not a proper respondent to a claim and, if it is a proper respondent, either that it accepts the assessment or it intends to refer (or has referred) a medical question30 to a Medical Panel for determination. Section 28LW(3), however, provides that the respondent must state that it is a proper respondent to a claim if it has already so stated under either s 28LO or s 28LP.37Section 28LWA deals with the circumstance where a respondent asks for additional information under s 28LW(2)(c). As with s 28LP, the claimant is required to give the respondent the information it reasonably needs to decide whether it is a proper respondent to the claim; and the respondent must then (within 60 days) respond in the manner required by s 28LW, accepting or disputing that it is a proper respondent, and stating whether it accepts the assessment or whether it intends to refer (or has referred) a medical question to a Medical Panel for determination.38Section 28LWB deals with the circumstance of a respondent disputing that it is a proper respondent to a claim. Again, as with s 28LQ, the section provides for the claimant (within 14 days) to either accept or reject the respondent’s assertion that it is not a proper respondent to the claim. Similarly, if the claimant maintains that the respondent is a proper respondent, the respondent is then given a further period of 14 days to state that it is a proper respondent and whether it accepts the assessment, or whether it has referred or intends to refer a medical question in relation to the assessment to a Medical Panel for determination.39Sections 28LW(4), 28LWA(3) and 28LWB(4) deal with the failure by a respondent to respond within the times referred to in those sections differently from ss 28LO(4), 28LP(3) and 28LQ(4) in relation to a respondent’s failure to respond within the times referred to in those earlier sections. Sections 28LW(4), 28LWA(3) and 28LWB(4) provide that if a respondent fails to respond within the times referred to in those sections, ‘the respondent is deemed to have accepted the assessment’.40Section 28LWC is headed ‘Can a respondent bind any other respondent?’. It provides that:

An acceptance under this Division by a respondent to a claim of an assessment does not bind any other respondent.

41Section 28LWE provides that a respondent, on whom a copy of a certificate of assessment is served, may refer a medical question in relation to that assessment to a Medical Panel for determination. Section 28LWE(1) provides that the referral is required to be made within 60 days of receiving the certificate and required information under s 28LT, or within 60 days of receiving any additional information provided under s 28LWA, or within 14 days of receiving notice under s 28LWB that the claimant still considers the respondent to be a proper respondent to the claim. A respondent may not refer a medical question to a Medical Panel if the respondent has, or is deemed to have, accepted the assessment.31 Similarly, if a respondent advises the claimant under any of ss 28LW, 28LWA or 28LWB that it intends to refer a medical question to a Medical Panel, but does not refer the question within the time required under s 28LWE(1), the respondent is deemed to have accepted the assessment at the expiration of that required time.

Procedure of Medical Panel

42Division 5 (containing ss 28LY to 28LZL) is headed, ‘Procedure of Medical Panel’. It deals with the powers and procedures of a Medical Panel in relation to medical questions referred to it under div 4.32 For present purposes, it is not necessary to summarise all of the provisions of this division. There are, however, seven sections in div 5 to which reference must be made.43Section 28LZ contains a number of provisions dealing with the procedures of Medical Panels. First, a Medical Panel ‘is not bound by rule of practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit.’33 Secondly, a Medical Panel ‘must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows’.34 Thirdly, the Minister administering the Act may issue guidelines for the procedures of Medical Panels, ‘for the purposes of ... ensuring procedural fairness in the procedures of Medical Panels ... and ... facilitating the proper administration of the Medical Panels’.35Fourthly, the Convenor36 ‘may give directions as to the procedures of Medical Panels ... but must not give directions inconsistent with any guidelines issued by the Minister’.37Finally, so far as s 28LZ is concerned, a Medical Panel must comply with any relevant guidelines and directions given or issued under the section.3844Section 28LZA requires a respondent referring a medical question to a Medical Panel to provide a notice in writing in the prescribed form (if any) setting out the medical question and ‘any other prescribed information’. Regulation 9 of the Regulations specifies this prescribed information. Additionally, directions given by the Convenor pursuant to s 28LZ39 (the Convenor’s directions), in dealing with material that must or may be provided, describes the rights of the claimant and the respondent who has referred a medical question to a Medical Panel to provide medical reports/records, surveillance information and submissions to the Medical Panel.40 The section does not provide for information to be given to a Medical Panel by respondents other than the referring respondent, save where s 28LU is engaged.45Section 28LZB, headed ‘What if there is more than one referral in relation to an assessment?’, provides:

The Convenor may direct that referrals by 2 or more respondents to the Medical Panel that concern the same assessment be consolidated.

46Section 28LZG(1) prohibits a Medical Panel from determining the degree of impairment of a person unless it has made an assessment of the degree of impairment in accordance with div 3. Section 28LZG(2) provides that, after making its assessment, the Medical Panel must give the claimant and the respondent its determination of the medical question which, in accordance with s 28LZG(4), must state whether the degree of impairment resulting from the injury satisfies the threshold level; or if the injury has not stabilised, a certificate under s 28LZG(5), that it is unable to determine the medical question because the injury has not stabilised, but that it is satisfied that the degree of impairment will satisfy the threshold level once the injury has stabilised;41 or if sub-s (5) does not apply, it may issue a certificate under s 28LZG(6) that it is unable to determine the medical question because the injury has not stabilised and fix a time for a further assessment of the degree of impairment of the person (to be performed within 12 months of the first assessment).4247Section 28LZGA deals with further assessments undertaken by Medical Panels in accordance with s 28LZG. There is provision in the section for the respondent to waive the requirement for a further assessment, in which case the respondent is deemed to have accepted the assessment in the certificate served under s 28LT.43 Additionally, if, at the end of 12 months after the first assessment, the Medical Panel certifies that it is still unable to determine the medical question because an injury has not stabilised, the injury is deemed to be significant injury.4448Section 28LZH, being the section referred to in the preliminary question tried in the Rosata proceeding, and also in the question referred to this Court in the Kabbout proceeding, is the critical section for the purposes of these proceedings. The section is headed, ‘Effect of determination as to threshold level’, and provides:

(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.

49Section 28LZI provides that no appeal on the merits may be made to a court from an assessment or determination of a Medical Panel under div 5.

Proceedings on claim

50Division 6 (containing ss 28LZM, 28LZMA and 28LZN) is headed, ‘Proceedings on claim’. It deals with court proceedings and procedures in respect of claims for damages for non-economic loss to which pt VBA applies.51Section 28LZM requires a claimant who brings a proceeding in a court, in respect of a claim for damages for non-economic loss to file various documents in the court, before the determination of the claim, demonstrating satisfaction or otherwise of the significant injury requirement. Thus:

•
if the claimant intends to rely on a certificate of assessment, a copy of that certificate must be filed;
•
if the claimant intends to rely on the written agreement of any respondent under div 4 to waive the requirement for assessment, a copy of that agreement must be filed;
•
if a Medical Panel has made a determination as to the threshold level under div 5, the claimant must also file a copy of the Medical Panel’s certificate of determination;
•
if the respondent is deemed to have accepted an assessment under pt VBA, the claimant must also file a statement to that effect;
•
if the injury is deemed under s 28LZG(10) to be significant injury, the claimant must also file a statement to that effect, together with a certificate of the Medical Panel under s 28LZG(5); and
•
if the injury is deemed under s 28LZGA(4) to be significant injury, the claimant must also file a statement to that effect, together with the certificate of the Medical Panel under that section.45

52Section 28LZMA provides that a court may, in any proceeding in respect of a claim for the recovery of damages for non-economic loss in respect of an injury to a claimant to which pt VBA applies, stay the proceeding until the claimant has served on the respondent the certificate of assessment and any other information which is required to accompany that certificate when it is served.53Finally, as we have already observed, s 28LZN permits a court (on the application of a claimant) to make a determination of significant injury if the court is satisfied that ‘the claim should be dealt with urgently because of the imminent death of the claimant; and ... the injury, if assessed under Division 3, would be significant injury’.46Additionally, a court may make a determination of significant injury if the court is satisfied that ‘the claim relates to a cause of action that survives for the benefit of the estate of a deceased person ... and ... the deceased person died from a cause other than the injury to which the claim relates ... and ... the injury to which the claim relates, if it had been assessed under Division 3, would be significant injury’.47

Primary judge’s reasons in the Rosata proceeding

54The primary judge in the Rosata proceeding concluded that the preliminary question he was trying fell to be answered by reference to ss 28LE, 28LF and 28LZH of the Act. Noting that the first Medical Panel determination in that case was that Mr Rosata’s impairment satisfied the threshold level, his Honour said:

The meaning and operation of s 28LF(1) and s 28LE of the Act is then clear: once a determination has been made that the degree of impairment of the whole person resulting from the injury satisfies the threshold level, for the purposes of Division 5 of Part VBA, the injury to a person is a significant injury. The Court must apply that determination in accordance with s 28LZH ‘in any proceeding on the claim’.

There is no appeal on the merits from a determination of a medical panel (s 28LZI), and nor does the Act provide an avenue for further referral to the Medical Panel under Division 5. It follows that determination of the medical question of significant injury in relation to a claim applies to any respondent against whom the claim is made.

I reject the submission that ‘the claim’ contemplated in Part VBA should be interpreted in context as being specific to a particular respondent.

Section 28LZH of the Act states that a determination by the Medical Panel under Division 5 must be accepted by a Court in any proceeding on the claim as a determination of significant injury for the purposes of Part VBA. It does not state that the determination is limited in effect to the respondent who referred the medical question in the first instance; and read as a whole, the Act does not operate in that way.

The effect of the first Determination is that there is no longer a restriction on Mr Rosata recovering damages for non-economic loss in respect of his injury in this proceeding: s 28LE. Thereafter, Mr Rosata had no need to serve upon Citywide the certificate of assessment of Dr Kennedy for the purposes of Division 4 of Part VBA, because the first Determination had been made, and it must be accepted by the Court.4855In so concluding, his Honour distinguished an earlier judgment of Judge Tsalamandris in Ceri v Secure Parking Management No 2 Pty Ltd,49wherein her Honour had said:It is also clear that this Part [VBA] contemplates situations in which there may be more than one referral to a Medical Panel. It permits the Convenor of a Medical Panel to consolidate referrals, if two or more respondents refer in respect of the same assessment. However, such consolidation would not be possible if multiple referrals concerning the same assessment are made at different times, and in particular, if a subsequent referral is made by another respondent, after there has already been a Medical Panel determination in respect of the same assessment. While such a situation may be rare, it is possible that there could be two different findings by two separately convened Medical Panels — one in which a plaintiff is found to satisfy the threshold, and one in which it is not. In such a situation, I consider both sub-sections of 28LZH would apply to the relative respondent who referred the matter, in circumstances where sub-sections 28LZH(1) and 28LZH(2) are not put as alternatives, or separated by the word ‘or’.5056His Honour said that, having regard to the factual differences betweenCeri and Mr Rosata’s case, he ‘put that decision [Ceri] to one side’.51 The factual scenario in Ceri was that a deemed significant injury against a first in time respondent existed, but a later in time Medical Panel determination applied favourably to a second respondent. It was in effect, the reverse sequence of events as occurred in the Kabbout proceeding. His Honour concluded, however, that Ceri was a case which considered a different question of statutory construction to that which he was considering.52

Parties’ submissions in this Court

Mr Rosata’s submissions

57Mr Rosata contended that the first Medical Panel determination in his case ‘was and is determinative of the matter’. He contended that the second Medical Panel determination was not authorised by the Act and is of no effect.58In support of these contentions, he submitted that divs 3 and 4 provide a process whereby the question of whether a plaintiff satisfies the significant injury threshold can be determined by a hierarchy of methods — at the pinnacle of which is the determination of a Medical Panel. He submitted that references in ss 28LZH and 28LZG(10) to ‘the Medical Panel’, and not ‘a Medical Panel’ was deliberate — showing that only one medical opinion was envisaged, not multiple opinions.59Mr Rosata submitted that s 28LZH required a court to accept the Medical Panel’s determination in any proceeding that is brought by a plaintiff on the plaintiff’s claim for damages for non-economic loss arising from a given incident. He submitted that it cannot properly be said that he has brought a separate claim against each of the defendants; and that his proceeding for damages is a ‘consolidated claim’ brought by him ‘against multiple respondents to a single claim’.60Referring to the Second Reading Speech for the Wrongs and Limitation of Actions Act (Insurance Reform) Bill 2003, Mr Rosata submitted that the threshold in pt VBA acts only as a gateway for a court to determine whether damages for non-economic loss can be awarded to a plaintiff; and that the reason for requiring a court to accept the Medical Panel’s determination, and to prevent appeals on the merits, was to streamline the procedure for determining the threshold for the recovery of damages for non-economic loss.

61Mr Rosata submitted that one of the purposes of pt VBA is the ‘speedy resolution’ of disputes in relation to significant injury. In support of that submission, he referred to s 28LZ(2) (the section which requires a Medical Panel to act ‘informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows’) as well as this Court’s decision in Ko v Hall.53 Mr Rosata submitted that permitting multiple Medical Panel opinions would be inconsistent with the purpose of a speedy resolution of disputes in relation to significant injury.62Additionally, Mr Rosata submitted that once the issue of significant injury had been determined by a Medical Panel, ‘finality is necessary in order to maintain public confidence in the administration of justice’. In support of that submission, Mr Rosata referred to the High Court’s decision in D'Orta-Ekenaike v Victoria Legal Aid.5463Relying upon the High Court’s decision in Coco v The Queen,55Mr Rosata submitted that the law presumes that, in the absence of clear and unambiguous language, the legislature does not intend to interfere with basic rights, freedoms and immunities. He submitted that there would need to be unambiguous and unmistakable language in the Act to authorise a redetermination of the issue of significant injury.

City of Melbourne’s submissions

64City of Melbourne submitted that the primary judge in the Rosata proceeding correctly found the second Medical Panel determination invalid because, upon the making of the first Medical Panel determination, the Medical Panel was functus officio.65City of Melbourne submitted that, at a policy level, ‘the singular purpose of the scheme [in pt VBA] was to limit the ability of litigants to make claims for non-economic loss in order to address difficulties in obtaining, and the cost of obtaining, general insurance’. It submitted:Notably, the focus of Part VBA is putative plaintiffs and the limitations upon their ability to recover damages for non-economic loss from anyone. It was no part of the legislative objective of Part VBA to alter rights of contribution between wrongdoers or to differentially effect the rights a plaintiff may have to recover damages for non-economic loss from different wrongdoers responsible for its infliction.5666City of Melbourne submitted that the Medical Panel’s functions and duties are those of an administrative decision-maker or tribunal. It submitted that this characterisation is critical to the question the subject of Citywide’s proposed appeal, namely, the validity of the second Medical Panel determination. Being an administrative decision-maker or tribunal, the Medical Panel could only revisit a question already determined if the relevant empowering enactment conferred that power. City of Melbourne submitted that no power to revisit or self-correct a previous decision is conferred upon the Medical Panel either in terms or by implication.67City of Melbourne submitted that the word ‘claim’, used on multiple occasions in pt VBA, was properly construed as the one claim made by a plaintiff against a defendant or multiple defendants in a case involving more than one defendant. It submitted that pt VBA is concerned with the remedy sought by a claimant in a single claim, not the number or identity of respondents.68City of Melbourne also submitted that the power in s 28LZG(2) is only exercisable once in respect of each medical question referred to the Medical Panel. It submitted that so much is evident from the language of s 28LZG, which provides that, having undertaken an assessment, the Medical Panel must provide the claimant and the respondent with a determination of the medical question, or certification as described in that section. City of Melbourne further submitted that the existence of an express power to defer a determination until such time as it can be made conclusively is inconsistent with the implication of any power to revisit a determination.69Additionally, City of Melbourne submitted that the presence of ss 28LR and 28LWC, providing specifically that an agreement or an acceptance by one respondent does not bind any other respondent, together with the absence of a corresponding provision that a Medical Panel determination made on the referral of one respondent does not bind any other respondent, supported its contention that any first in time Medical Panel determination, no matter the identity of the referring respondent that led to that determination, binds all respondents. It was submitted that if the Parliament had intended that a Medical Panel determination would only bind a referring respondent then this would have been specifically provided for in a provision similar to s 28LR or s 28LWC.70Finally, City of Melbourne submitted that the objectives of expedition, conclusiveness and finality of the Medical Panel determination process in pt VBA would not be achieved if s 28LZH operated so as to permit multiple and potentially inconsistent operative determinations. In support of its submission that the legislature intended Medical Panel determinations to be made expeditiously, conclusively and finally, with no power of redetermination, City of Melbourne referred to multiple provisions in pt VBA, including ss 28LWE, 28LY, 28LZB, 28LZF, 28LZH and 28LZO.

Ikon Services’ submissions

71Ikon Services contended that the answer to the question reserved for the opinion of this Court in the Kabbout proceeding is Yes.72In support of its contention, Ikon Services submitted that the purpose of pt VBA is ‘to provide for thresholds in relation to the recovery of damages for non-economic loss’. It submitted that pt VBA establishes this threshold by the creation of the concept ‘significant injury’. It submitted that the entitlement to recover non-economic loss damages requires significant injury; and whether significant injury exists in fact ‘is determined by a procedural hierarchy of gatekeepers’. It was submitted that, ‘at its zenith’ is the Medical Panel, the determination of which is conclusive. Ikon Services submitted that below the Medical Panel in the hierarchy is a medical practitioner assessment (subject to waiving the need for an assessment). It was submitted that ‘clashes between these gatekeepers are resolved hierarchically’.73Section 28LZH(2) requires a court in any proceeding to accept a determination by the Medical Panel that the degree of impairment does not satisfy the threshold level. Ikon Services submitted that to confine the words in any proceeding merely to proceedings against a respondent that referred the medical question to the Medical Panel, resulting in the determination only being binding on that respondent, would require reading additional words into the section. Ikon Services submitted that there was no basis for this Court to take that approach. It submitted that if the Parliament intended to limit the operation of s 28LZH(2) in that way, then it could have so provided.74Ikon Services observed that s 28LZM(3) requires a claimant to file with the court any Medical Panel certificate, regardless of the claimant’s intention (or lack thereof) to rely on it, and regardless of whether there has been a prior assessment served, or an agreement by one respondent to waive the need for an assessment. Ikon Services submitted that s 28LZM(3) ensures that the court is aware of the existence of Medical Panel determinations, so that they can be given effect to as required by s 28LZH. It was submitted that this reinforced the fact that Medical Panel determinations were the ultimate determinant of whether significant injury was established.75Ikon Services also submitted that a Medical Panel determination is hierarchically superior to the deemed acceptance provisions set out in pt VBA (including those in s 28LF(3)). It submitted that it was ‘inconsistent with the policy of the Act to undermine the position of the Panel as the ultimate arbiter on the merits of whether there is in fact a ‘significant injury’ ... by making its determinations subject to the Deemed Acceptance provisions (or s 28LO for that matter)’.76In relation to the deeming provisions in pt VBA, Ikon Services submitted that these were statutory fictions, capable of being rebutted by the provision of a Medical Panel determination that a particular injury does not in fact satisfy the threshold level.77Ultimately, and albeit that it is not a party to the Rosata proceeding, Ikon Services submitted that the primary judge in the Rosata proceeding was correct in his answer to the preliminary question tried by his Honour and in his reasons at Rosata Ruling [27]–[31].

Citywide and Mr Kabbout’s submissions

78Citywide and Mr Kabbout contended that while ‘claim’ is not defined in the Act, ‘claimant’ is specifically defined in pt VBA as ‘a person who makes or is entitled to make a claim for damages that relate to the injury to a person caused by the fault of another person’.57 The words ‘fault of another person’ identify a process of establishing significant injury between a claimant and a single tortfeasor. Where there is more than one person at fault identified, subject to the operation of the statutory provisions dealing specifically with multiple respondents, significant injury is required to be considered separately in respect of each person at fault identified.79These parties submitted that throughout pt VBA, the text and context demonstrates a process between a claimant and each respondent, including the requirement in s 28LT to serve each respondent, the deeming provisions that apply where time limits are not observed, the specific references to more than one Medical Panel referral and the need for a claimant to file documentation demonstrating all the ways that significant injury has been established.5880These parties also submitted that anomalous outcomes would occur if a single Medical Panel determination was binding on all, or on all subsequent respondents, rendering deeming provisions ineffective and giving rise to breaches of natural justice. Additionally, these parties relied upon the reasoning in Ceri that s 28 LZH permits more than one Medical Panel determination to be binding on a court as to the recovery of damages as each determination relates to the referring respondent.

Consideration

81These 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.82In the Rosata proceeding, the issue is whether there can be multiple Medical Panel determinations brought into existence by the actions of multiple defendants; or whether there can only be one Medical Panel determination (being the first in time) which binds the plaintiff and all defendants. The resolution of that issue also has relevance in the Kabbout proceeding. That said, the specific issue in the Kabbout proceeding is whether a Medical Panel determination obtained by one defendant, which is unfavourable to the plaintiff, can be relied upon by another defendant where that defendant (absent the involvement of the first defendant) would be held to have conceded the issue of significant injury by agreement or waiver.83As we have said, central to the issues in dispute in these proceedings is the proper construction and application of pt VBA, and, in particular, s 28LZH. The principles of statutory construction are well-established and not in dispute in these proceedings. In AB (a pseudonym) v IBAC,59 this Court summarised the relevant principles as follows:In interpreting a statutory provision, the starting point is the text of the provision, considered in the light of its context and purpose. Context includes the legislative context, because the meaning of a provision must be determined by reference to the entire Act. It is permissible to have regard to extrinsic materials in resolving the meaning of the text, particularly in cases of ambiguity. However, legislative history and extrinsic materials cannot displace the meaning of the statutory text. It is also permissible, in determining which competing interpretations of a statute ought be adopted, to have regard to the consequences of each interpretation.6084To differing extents, Mr Rosata, City of Melbourne and Ikon Services (collectively, the One Determination Proponents’) contend that the issue of significant injury cannot be determined differently in the same proceeding; and any Medical Panel determination (of which there can only be one) is determinative of that issue, regardless of any party’s compliance or non-compliance, or engagement, with any of the machinery provisions in pt VBA. For the reasons which follow, those contentions must be rejected.85First, while there is no provision in pt VBA which specifically provides that the issue of significant injury can be resolved differently across defendants in proceedings claiming damages for the one injury, there are a number of provisions which contemplate that possibility. Specifically:

(1)
Section 28LR provides that an agreement by a respondent to waive the requirement for the assessment of degree of impairment does not bind any other respondent.
(2)
Section 28LWC provides that the acceptance by one respondent of a certificate of assessment served by a claimant does not bind any other respondent.
(3)
Section 28LZB provides that the Convenor may direct that referrals by two or more respondents to the Medical Panel, that concern the same assessment, be consolidated.

86Secondly, the fact that the Convenor is merely empowered, but not required, to direct that referrals by multiple respondents concerning the same assessment be consolidated must admit of the possibility that there will be cases where such referrals have not been consolidated — leading to multiple (and perhaps inconsistent) Medical Panel determinations. Nor is there power to decline a referral on the basis that the claimant has been assessed by an earlier Medical Panel in respect of impairment.87Thirdly, contrary to the submissions made by the One Determination Proponents, there is nothing in pt VBA preventing different Medical Panels from performing their statutory functions and obligations, and providing different determinations in relation to the same injury or claim. Section 28LZI merely provides that there can be no appeal on the merits from the determination of a Medical Panel. In no sense can it be said that a Medical Panel determination between a claimant and one respondent is or could be an appeal on the merits from a Medical Panel determination between that claimant and another respondent. While the provision of a Medical Panel determination or certificate as provided for in pt VBA undoubtedly makes the Medical Panel providing the same functus officio, there is no basis for contending that some other Medical Panel, convened on the request of a different respondent by reference to fresh information, is also functus officio.88Fourthly, the submissions made by the One Determination Proponents that significant injury is determined by a procedural hierarchy of gatekeepers is not supported by the text of the provisions in pt VBA. Part VBA contains detailed and complex provisions, which are best construed by reference to the text of them— rather than some preconceived notion of a ‘procedural hierarchy of gatekeepers’. While the text of the relevant sections show that a Medical Panel determination overrides an assessment by an approved medical practitioner, or a certificate of assessment issued under s 28LNA,61 in an individual case between a claimant and a respondent, there is no foundation in the text of any of the provisions in pt VBA for permitting or requiring a Medical Panel determination between the claimant and some other respondent to override the operation of the provisions of pt VBA so far as they apply between that claimant and the original (or any other) respondent.89Moreover, when one examines s 28LF in the context of the other provisions of pt VBA, one sees not so much a hierarchical structure of gatekeepers, but more a set of gatekeepers that need to be dealt with sequentially in accordance with the relevant machinery provisions of the Act. Thus, it is not so much that a Medical Panel trumps any or all of the other ways by which significant injury may be established— but more the fact that a Medical Panel determination is the way in which a dispute is resolved between a claimant and respondent who are unable to agree and who otherwise comply with the obligations imposed on them by the provisions of pt VBA.90Fifthly, while it is undoubtedly a purpose of pt VBA to promote the speedy resolution of the significant injury issue,62nothing in the Act suggests that this purpose should be achieved at the expense of a proper consideration of the issue or at the expense of ensuring that procedural fairness is accorded to the parties in relation to that issue. To the contrary, s 28LZ makes specific reference to the necessity for the proper consideration of a reference to a Medical Panel and the requirements of procedural fairness in respect of a Medical Panel’s determination.63To that end, we note the Convenor’s directions permit the referring respondent and the claimant to provide relevant material and make submissions to the Medical Panel. The submissions of the One Determination Proponents in this Court would have a respondent, who had no entitlement to provide material or make submissions to the Medical Panel, bound by a Medical Panel determination to which it was not a party. In our view, there is no warrant for any such construction of the Act.91Sixthly, considerations of finality, such as those described in D’Orta-Ekenaike,64 do not assist in the resolution of the issues in the present proceedings. Plainly, questions of finality are relevant in relation to the proper resolution of the significant injury issue in accordance with the terms of pt VBA; and a respondent will not be allowed to relitigate that issue once it has already been determined in relation to that party.65 That does not mean, however, that the language of pt VBA should be tortured to a point where a respondent is bound by a Medical Panel determination to which it was not entitled to provide material or to make submissions on the significant injury issue.92Seventhly, it may be accepted that s 28LZM(3) ensures that the court is aware of the existence of Medical Panel determinations (including determinations that are unfavourable to the plaintiff) so that they can be given effect to as required by s 28LZH. Contrary to the submissions of the One Determination Proponents, however, this does not ‘reinforce’ the fact that Medical Panel determinations are the ultimate determinant of whether significant injury is established. Section 28LZM(3) merely puts the court in a position to give effect to any Medical Panel determination relevant to the plaintiff’s claim for damages for non-economic loss, as required by the terms of ss 28LZH(1) and (2). The existence of those two sub-sections, rather than one single statutory provision stating that a court must accept a Medical Panel determination on the issue of significant injury, shows that s 28LZH, on its face, contemplates that contradictory Medical Panel determinations might exist in respect of the one claim.93Eighthly, there is no substance in the submissions made by the One Determination Proponents that the rejection of their contentions would involve the possible interference with their basic rights, freedoms and immunities. Contrary to the submissions of the One Determination Proponents, pt VBA takes away, or is an impediment, to the rights of the injured claimants whose claims for damages for non-economic loss are caught by its provisions. Part VBA does not take away any rights, freedoms or immunities otherwise possessed by a respondent to whom the Part applies.94Ninthly, while s 28LE expresses the prohibition on a person recovering damages for non-economic loss ‘in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury’, it does not specifically address the issues in dispute in these proceedings. As we have said, those issues fall to be determined on the proper construction of all of the provisions of pt VBA, including s 28LE in the context in which it appears. Specifically, there is no basis for construing the words, ‘has suffered significant injury’ in s 28LE as somehow reducing the significance of a conclusion of significant injury based upon a respondent’s agreement to waive a requirement of pt VBA, or a deeming provision, or by some means other than a determination made by a Medical Panel. Section 28LE, when construed in the context of the other provisions of pt VBA (and, in particular, s 28LZH), prohibits a person from recovering damages for non-economic loss against a specific respondent unless the person injured has satisfied the significant injury requirements of pt VBA in relation to that respondent. That construction is supported by both the machinery provisions in pt VBA and the definitions in s 28LB of ‘claimant’66 and ‘respondent’, to which we have already referred.

95Tenthly, while the absence of a provision in pt VBA corresponding to ss 28LR and 28LWC and providing that a Medical Panel determination made on the referral of one respondent does not bind any other respondent might be thought to provide some support for the construction advanced by the One Determination Proponents, the explanation for the absence of such a provision may simply be that on no view of the provisions in pt VBA could it be contemplated that a Medical Panel determination might bind a respondent who was not a party to that determination and who had not had any opportunity to place relevant material before the Medical Panel which made that determination. Sections 28LR and 28LWC were inserted into pt VBA by the same Act67 as the amendments which were made to s 28LZ providing for the issuing of guidelines so as to ensure procedural fairness in the procedures of Medical Panels. Thus, it may have been thought that the amendments made to s 28LZ (as we have said, made at the same time as ss 28LR and 28LWC were inserted into pt VBA) were sufficient to preclude the suggestion that a Medical Panel determination could have any force in relation to a respondent to whom procedural fairness had not been given. While it is not necessary for us to speculate about these matters, it is sufficient for us to say that we are not persuaded that the absence of a provision similar to ss 28LR and 28LWC in relation to Medical Panel determinations justifies the construction for which the One Determination Proponents contend.96Eleventhly, the requirement to serve a certificate of assessment on each respondent in s 28LT and the power of a court to stay proceeding under s 28LZMA until service on the respondent in compliance with pt VBA, strongly suggests that Mr Rosata was obliged to serve Citywide notwithstanding the existence of a Medical Panel determination applying to City of Melbourne. Equally, Ikon Services, served with the certificate of assessment, was required to comply with the obligations imposed upon it by s 28LW.97Twelfthly, we respectfully agree with the conclusion of Judge Tsalamandris in Ceri68 that both sub-sections of s 28LZH can have application in the one proceeding. As her Honour observed, the circumstances set out in those sub-sections are not put as alternatives, or separated by the word ‘or’. 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.98Further, 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.99During the course of oral argument, the One Determination Proponents emphasised that if their submissions were not accepted, this would lead to ‘multiple processes’ and ‘anomalous outcomes’ in cases where a plaintiff wished to claim damages for non-economic loss from more than one defendant. It was submitted that this would be contrary to the purpose of pt VBA that the significant injury issue be resolved both speedily and efficiently. It was also submitted that the potential for the significant injury issue to be determined differently as between defendants in the same proceeding would have the effect of altering entitlements to contribution.69 The One Determination Proponents observed that the purpose of the amending Act which introduced pt VBA70was expressed in s 1 of that Act to be the amendment of the Act ‘to provide for thresholds in relation to the recovery of damages for non-economic loss’. It was no purpose of the amending Act to alter rights of contribution between parties liable in respect of the same damage.71100The fact that the construction of pt VBA we have preferred might lead to results in some cases that some parties might think less than ideal, and 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.72 That text encompasses the possibility that the significant injury issue might be resolved differently between defendants liable for the same damage — providing, as it does, provisions which entitle each respondent to a claim to utilise and engage with the significant injury provisions in the Act. The fact that additional time might be taken, and additional expense incurred, in a multi-respondent case by any or all of the parties to the claim utilising the provisions of pt VBA which are applicable by their terms to those parties does not permit (much less justify) this Court from construing those provisions in a way which makes them inapplicable because that is an easier outcome with which to deal.101Applying the provisions of pt VBA, and in particular s 28LZH, to the facts in the Rosata proceeding:

•
the claim between Mr Rosata and City of Melbourne is governed by the first Medical Panel determination, permitting Mr Rosata to recover damages for non-economic loss against City of Melbourne; and
•
Mr Rosata’s claim against Citywide is governed by the second Medical Panel determination, resulting in Mr Rosata being unable to recover damages for non-economic loss against Citywide.

102Applying the same provisions to the facts in the Kabbout proceeding:

•
Mr Kabbout is unable to recover damages from Crown as a result of the unfavourable Medical Panel determination obtained on Crown’s referral; and
•
Mr Kabbout is able to recover damages for non-economic loss from Ikon Services as a result of it being deemed to have accepted the assessment by operation of s 28LWA(3) of the Act by its failure to respond to material provided by Mr Kabbout within the time specified in s 28LWA(2).

Conclusion

103For the reasons given above:

(a)
in the Rosata proceeding: leave to appeal should be granted; the appeal should be allowed; paragraph 1 of the orders made in the County Court on 2 May 2023 should be set aside and, in its place, there should be an order answering the preliminary question that, in relation to Mr Rosata’s claim against Citywide, by s 28LZH(2), the Court is required to accept the Medical Panel determination made on 3 November 2022; and
(b)
in the Kabbout proceeding: the answer to the referred question is, No, the Medical Panel determination is binding on the Court only in respect of Mr Kabbout’s claim against Crown; it has no effect in relation to Mr Kabbout’s claim against Ikon Services.

In Rosata, Leave to appeal granted.Appeal allowed.In Kabbout, Referred question answered ‘No’.Solicitors for the applicant, Citywide Service Solutions Pty Ltd: Moray & Agnew. Solicitors for the first respondent, Rosata: Carbone Lawyers. Solicitors for the second respondent, City of Melbourne: DLA Piper. Solicitors for the applicant, Kabbout: Slater & Gordon. No appearance by the first respondent, Crown Melbourne Ltd. Solicitors for the second respondent, Ikon Services Australia Pty Ltd: HBA Legal.

[The High Court refused an application by Mr Rosata for special leave to appeal: [2024] HCASL 106. Ed, VR.]

doi: 10.25291/VR/76-VR-499C L ALDENBARRISTER-AT-LAW 1

As to which, see s 28LC of the Act.

Part VBA talks in terms of injuries being or constituting significant injury, rather than injuries being or constituting a significant injury.

See ss 28LF(1)(b) and (2)(b) of the Act.

‘Threshold level’ is defined in s 28LB of the Act to mean:

(a) in the case of injury (other than psychiatric injury or spinal injury), impairment of more than 5 per cent;

(b) in the case of psychiatric injury, impairment of 10 per cent or more;

60 days.

See s 28LN of the Act.

See ss 28LF(1)(a) and (2)(a) of the Act.

Rosata v City of Melbourne[2023] VCC 630 (Rosata Ruling).

See s 28LF(1)(c).

See s 28LF(1)(ca). For completeness, we note that para (ca) of s 28LF(1), which was inserted by s 14(2) of the Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic), may have been erroneously inserted into s 28LF(1), given that s 28LF(1) deals with ‘injury to a person other than a psychiatric injury’. It may be that para (ca) was meant to be inserted into s 28LF(2), which deals with psychiatric injury.

See s 28LF(1)(d).

‘Approved medical practitioner’ is defined in s 28LB of the Act.

‘Medical Panel’ is defined in s 28LB of the Act to mean ‘a Medical Panel under the Workplace Injury Rehabilitation and Compensation Act 2013’.

See ss 28LF(1)(a) and (2)(a).

See ss 28LF(1)(aa) and (2)(aa).

See ss 28LF(1)(b) and (2)(b).

See s 28LF(3)(a).

See s 28LF(3)(aa).

See s 28LF(3)(b).

Which, by the operation of ss 28LF(1)(aa) and (2)(aa), has the effect of providing that the injury is significant injury.

See s 28LO(1).

See s 28LO(1A). As to the prescribed information, see reg 7 of the Wrongs (Part VBA Claims) Regulations 2015 (Vic) (the Regulations).

See s 28LO(2).

See s 28LO(3).

See ss 28LO(3)(a) and (3)(b).

See s 28LP(2).

See s 28LQ(1).

See ss 28LQ(2)–(3).

As to the prescribed information, see reg 8 of the Regulations.

The expression ‘medical question’ is defined in s 28LB, in relation to a claim for damages, only to mean ‘a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level’.

See s 28LWE(2).

See s 28LY.

See s 28LZ(1).

See s 28LZ(2).

See s 28LZ(3).

Defined in s 28LB to mean ‘the Convenor or Deputy Convenor appointed under s 537 of the Workplace Injury Rehabilitation and Compensation Act 2013’.

See s 28LZ(4).

See s 28LZ(5).

Convenor’s Directions as to the Procedures of Medical Panels (under pt VBA of the Wrongs Act 1958) 2015.

See in particular cls 21 to 28 of the Convenor’s directions.

Which, by the operation of ss 28LF(3)(aa) and 28LZG(10), has the effect of deeming the injury to be significant injury.

See also s 28LZG(8), which provides for additional further assessments (but also to be made within the period of 12 months following the first assessment).

See ss 28LZGA(1)–(3).

See s 28LZGA(4). See also s 28LF(3)(aa).

See ss 28LZM(2)–(6).

See s 28LZN(2).

See s 28LZN(3).

Rosata Ruling [27]–[31].

[2019] VCC 640 (Ceri).

Ibid [30] (footnote omitted).

Rosata Ruling[35].

Ibid.

[2020] VSCA 224, [49]–[50] (Ko).

(2005) 223 CLR 1, 49–50[144], 56[166] (D’Orta-Ekenaike).

(1994) 179 CLR 427, 437 (Coco).

Emphasis in City of Melbourne’s submissions.

Section 28LB.

See s 28LZM(2)–(6).

[2022] VSCA 283.

Ibid [123] (citations omitted).

See ss 28LF(1)(a) and (aa) and (2)(a) and (aa).

As to which, see s 28LZ(2) and Ko[2020] VSCA 224, [49]–[50].

See ss 28LZ(2)–(3).

(2005) 223 CLR 1, 49–50[144], 56[166].

Save in judicial review proceedings, as specifically contemplated by s 28LZI(2).

For completeness, we note that in pt VB of the Act, ‘claimant’ is defined more broadly than it is in pt VBA. Specifically, in s 28B in pt VB, ‘claimant’ is defined merely to mean ‘a person who makes or is entitled to make a claim for personal injury damages’ — without the additional words contained in the definition of ‘claimant’ in s 28LB of pt VBA to the injury being ‘caused by the fault of another person’.

The Wrongs and Other Acts (Law of Negligence) Act 2003.

[2019] VCC 640, [30].

As to which, see ss 23B and 24 of the Act.

TheWrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (Vic).

As to the distinction between damage and damages, see Mahoney v J Kruschich (Demolitions) Pty Ltd(1985) 156 CLR 522, 527.

See Hynes v Hynes (2007) 15 VR 475, 488[65]

Citywide Service Solutions Pty Ltd v Rosata

21/11/2023