Citywide Service Solutions Pty Ltd v Rosata - [2023] VSCA 281

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Citywide Service Solutions Pty Ltd v Rosata

Details

AGLC: Citywide Service Solutions Pty Ltd v Rosata [2023] VSCA 281
Case: [2023] VSCA 281
Decision Date: 21/11/2023

CaseChat Overview and Summary

Citywide Service Solutions Pty Ltd (Citywide) and Mr Samih Kabbout (Kabbout) sought to appeal against, and to answer a question referred to the Court, concerning the threshold for recovery of damages for non-economic loss in claims governed by Part VBA of the Wrongs Act 1958 (Vic). Citywide sought to appeal the County Court's determination that it was bound by a Medical Panel's determination that Mr Luigi Rosata's (Rosata) injury satisfied the threshold for significant injury. Kabbout sought an answer to the question of whether a Medical Panel determination that his injury did not satisfy the threshold was binding on the Court in his claim against both Crown Melbourne Ltd (Crown) and Ikon Services Australia Pty Ltd (Ikon Services). Citywide and Kabbout contended that the issue of significant injury could be determined differently in the same proceeding as against different defendants. The Court of Appeal found that the issue of significant injury could be determined differently in the same proceeding as against different defendants. The Court found that 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 Part VBA in the context in which it was found. The Court held that, in the Rosata proceeding, the appeal should be allowed and, in the Kabbout proceeding, the referred question should be answered 'No'.

Orders