BACKGROUND

The Plaintiff, Mr Luigi Rosata, suffered personal injury when he tripped and fell while walking on a raised section of a footpath on Altona Street, Kinsington (“the footpath”). As a result, the Plaintiff a lower back, left hip and secondary psychology injury.  

The First Defendant, the City of Melbourne, was sued on the basis that it was responsible for the inspection, maintenance and repair of the footpath.  

The Second Defendant, Citywide Service Solutions Pty Ltd, had been joined as a party by the First Defendant to inspect, maintain and repair the footpath on its behalf at the time of the Plaintiff’s injury. 

THE LAW

The preliminary question pursuant to Rule 47.04 of the County Court Civil Procedure Rules 2018 raises a relatively narrow point of statutory construction concerning Part VBA of the Wrongs Act 1958 (“the Act”) which precludes recovery of damages for non-economic loss, unless the Plaintiff suffered a “significant injury”. 

Section 28LE of the Act 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.” 

Section 28LF(1) of the Act provides:- 

“For the purposes of this Part injury to a person (other than a psychiatric injury) is a significant injury if –  
(a) … 
(b) A Medical Panel has determined under Division 5 that the degree of impairment of the whole person resulting from the injury satisfies the threshold level;…” 

Section 28LZH of the Act 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 injury 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.”

MEDICAL EVIDENCE

Unusually, in the present case, there were two (2) conflicting independent Medical Panel determinations of the same medical question as to ‘whether Mr Rosata’s impairment satisfied the threshold level of significant injury.’ 

In November 2021, the First Defendant referred the Plaintiff to a Medical Panel whom initially determined that the Plaintiff’s degree of impairment satisfied the threshold level.  

In May 2022, the First Defendant joined the Second Defendant, who then referred the Plaintiff for a supplementary assessment where the Medical Panel convened that the Plaintiff’s impairment did not satisfy the threshold level of significant injury.  

SECOND DEFENDANT’S ARGUMENT

The Second Defendant submitted that by reason of s28LZB of the Act, the Parliament contemplated inconsistent determinations by separately convened Medical Panels. Accordingly, the supplementary decision by the Medical Panel proposed by the Second Defendant ought to apply in this case.  

DECISION

The Honourable Court was required to determine which medical assessment was to be accepted in relation to the Plaintiff’s claim against both Defendants. 

The Court held that on November 2021, pursuant to s28LZG of the Act, a Medical Panel in this proceeding determined that the Plaintiff’s impairment satisfied the threshold level of significant injury.  

The meaning and operation of s28LF(1) and s28LE 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. 

Therefore, the Court must apply the determination in accordance with s28LZH of the Act “in any proceeding on the claim”. 

Ultimately, the Court held that the first determination of the medical question of significant injury in relation the Plaintiff’s claim, applies to all and any Respondents, against whom the claim is made, including the Second Respondent.  

The Court therefore, rejected the Second Defendant’s argument asserting:- 

“In my view, s28LZB contemplates consolidation of concurrent referrals prior to a determination of the Medical Panel, and does not apply to the very different circumstances of this case.” 

CONCLUSION

The Court ultimately found that the Medical Panel’s determination on November 2021 has effect that the Plaintiff’s injury in this proceeding is a significant injury. The restriction in s28LE therefore, no longer applies and the Plaintiff is entitled to recover damages for non-economic loss against the First and Second Defendant.  

The Second Defendant was ordered to pay the Plaintiff and First Defendant’s costs on a standard basis. 

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