Rosata v City of Melbourne and Anor

1. By his Amended Statement of Claim dated 10 May 2022, Mr Rosata alleges that each defendant owed him a duty of care at common law; further, or in the alternative, that the City of Melbourne owed him a statutory duty of care in accordance with s40(1) of the Road Management Act 2004.
2. The facts relevant to the proceeding are set out in the affidavit of Emanuele Carbone, sworn 21 December 2022.
3. The relevant procedural history is as follows:

(a) on about 9 July 2021: > > > (i) Dr David Kennedy completed a certificate of assessment that Mr Rosata's degree of impairment resulting from his injury is more than 5 per cent;[1] > > > > (ii) the plaintiff's solicitors served the certificate of assessment and the prescribed information pursuant to s28LT(2) of the Act on the City of Melbourne; > > (b) on 11 August 2021, the City of Melbourne referred the medical question of significant injury to the Medical Panel, pursuant to s28LWE of the Act; > > (c) on 5 November 2021, the first Medical Panel made a determination that the plaintiff's injuries satisfied the threshold level of significant injury, pursuant to s28LZG(3) of the Act ("first Determination"); > > (d) on 15 January 2022, Mr Rosata commenced the proceedings against the City of Melbourne by Writ and Statement of Claim; > > (e) on 31 May 2022, Mr Rosata joined Citywide as the second defendant; > > (f) on 2 June 2022, the plaintiff served the certificate of assessment of Dr Kennedy and the prescribed information pursuant to s28LT(2) of the Act on Citywide. It also provided Citywide with a copy of the first Determination; > > (g) on 30 June 2022, apparently without objection from Mr Rosata, Citywide referred the medical question of significant injury to the Medical Panel pursuant to s28LWE of the Act; > > (h) on 3 November 2022, a separately convened Medical Panel determined that the plaintiff's injuries did not satisfy the threshold level of significant injury, pursuant to s28LZG(3) of the Act ("second Determination").

4. In this context, the preliminary point for determination is as follows:

"Which Medical Panel Opinion is required to be accepted by the Court as a determination of the question of whether the plaintiff's degree of impairment has satisfied the threshold level of significant injury pursuant to s28LZH of the Act in the plaintiff's claim against the second defendant?"[2]

1. Unsurprisingly, Mr Rosata submits that he is entitled to rely upon the first Determination.
2. Citywide submit that it is entitled to rely upon the latter determination of the Medical Panel, which would preclude Mr Rosata from recovering damages for non-economic loss against it.
3. The relevant principles - which are not in dispute - are set out in the detailed written submissions filed by Mr Rosata and Citywide in support of their respective positions.
4. The task of statutory construction must begin with a consideration of the statutory text. So must the task of statutory construction end. The text must be considered in its context, which includes legislative history and intrinsic materials. Understanding context has utility if, and insofar, as it assists in fixing the meaning of the statutory text. Legislative history and intrinsic materials cannot displace the meaning of the statutory text.[3]
5. In Project Blue Sky Inc v Australian Broadcasting Authority,[4] the majority stated:

"... the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the cannons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning ... ."[5]

1. Although the City of Melbourne did not file written submissions, Mr O'Brien, on its behalf, addressed the purpose of the 2003 amendments to the Act, including as articulated by Premier Bracks in the Second Reading Speech. In his submission, the purpose of the legislation of eliminating minor claims in a cost-effective and efficient manner, akin to the procedure in WorkCover and Transport Accident claims, suggested that the first Determination must bind both parties in respect of Mr Rosata's claim.

1. In my view, the literal or grammatical meaning of the text in the Act, in particular, within Part VBA, is clear. Further, that meaning is consistent with the purposes of the statute and the canons of construction referred to me in argument.
2. Part VBA restricts recovery of damages for non-economic loss. Section 28LE provides as follows:

"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."

(1) For the purposes of this Part injury to a person (other than a psychiatric injury) is 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; ... ."

1. The Court is required to accept a determination of the Medical Panel in any proceeding on "the claim". Section 28LZH provides as follows:

"(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."

1. Section 28LB of the Act defines various terms used within Part VBA, including:

"claimant means 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";

"medical question in relation to a claim for damages, means a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level";

"respondent, in relation to a claim, means the person against whom the claim is made".

1. Conformably with other legislation, "injury" means personal or bodily injury. There is only one compensable injury pleaded by the plaintiff in his Amended Statement of Claim.
2. Notwithstanding the submissions of Citywide, an interpretation that the words "claimant", "medical question" and "injury" are defined referable to a particular respondent as opposed to a singular "claim" is inconsistent with the language in the Act. The plain language of the statutory text refers to significant injury in the context of a single claim.
3. In the same way, Mr Rosata's "impairment" must be considered under Part VBA of the Act as in respect of a single, indivisible claim arising out of the same cause of action.
4. The preliminary question may be answered by reference to s28LE, s28LF and s28LZH of the Act.
5. On 5 November 2021, pursuant to s28LZG of the Act, a Medical Panel in this proceeding determined that Mr Rosata's impairment satisfies the threshold level of significant injury - the first Determination.
6. 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 significant injury. The Court must apply the determination in accordance with s28LZH "in any proceeding on the claim".
7. There is no appeal on the merits from a determination of a medical panel (s28LZI), 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.
8. I reject the submission that "the claim" contemplated in Part VBA should be interpreted in context as being specific to a particular respondent.
9. 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.
10. 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: s28LE. 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.
11. There is no conflict between this interpretation of the Act and the notice provisions in Division 4 which apply to a respondent served with a certificate prior to a Medical Panel determination, so no issue of procedural fairness arises.
12. Nor does any question of delay, inconsistency or efficiency, because any referral of the (same) medical question which has already been determined by a Medical Panel is invalid for the purposes of Part VBA in this proceeding, as is the second Determination.[6]
13. I was referred to the decision of Ceri v Secure Parking Management No 2 Pty Ltd & Anor,[7] which also considered the operation of Part VBA of the Act. Ceri involved a deemed significant injury binding one respondent, and a subsequent Medical Panel determination applying to another respondent. At paragraph 30, the ruling of her Honour Judge Tsalamandris (as she then was) states:

"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'."

1. Having regard to its different factual circumstances, I put that decision to one side. It is clear on the face of the reasons that her Honour was considering a different question of construction to that which arises under this case. I regard her comments as obiter dicta.
2. I recognise that s28LZB of the Act provides that the Convenor of Medical Panels "may direct that referrals by 2 or more respondents to the Medical Panel that concern the same assessment be consolidated". I do not accept Citywide's submission that by reason of this section, the Parliament contemplated inconsistent determinations by separately convened Medical Panels, and, accordingly, that the second Determination ought apply to Citywide. 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.

1. The Medical Panel's determination of November 2021 has the effect that Mr Rosata's injury the subject of the claim in this proceeding is a significant injury. The restriction in s28LE therefore no longer applies, and Mr Rosata is entitled to recover damages for non-economic loss against both defendants in this proceeding.
2. The determination of the question pursuant to Rule 47.04 is as follows:

The Medical Panel determination made on 5 November 2021 that the plaintiff's impairment resulting from his injury satisfies the threshold level of significant injury is required to be accepted by the Court pursuant to section 28LZH of the Wrongs Act 1958 in relation to Mr Rosata's claim against Citywide Service Solutions Pty Ltd.

1. I order Citywide pay Mr Rosata's and the City of Melbourne's costs on the standard basis, to be assessed by the Costs Court in default of agreement.

[1] The threshold level for a significant injury is an impairment of more than 5 per cent as assessed by an approved medical practitioner in accordance with AMA Guides: see s28LH of the Act

[2] Order of Judge Tsikaris made 31 January 2023

[3] Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

[4] (1998) 194 CLR 355

[6] cf Ognjenovic v Melbourne Croatia Soccer Club Inc (Ruling) [2017] VCC 626

[7] [2019] VCC 640