No Reasons Required: Supreme Court Reinforces The Limits Of Medical Panel Judicial Review

The Victorian Supreme Court has confirmed that different respondents may separately refer the same medical question to differently constituted Medical Panels. In Baressi v Cross Yarra Partnerships & Ors [2026] VSC 666, the Court also held that a later panel is not bound by an earlier panel’s decision and is not required to provide reasons for its determination.

Facts 

In 2023, two respondents, City of Melbourne and Transport of Victoria were separately served with Certificates of Impairment from an orthopaedic surgeon in relation to an alleged shoulder injury. The injury was the result of the plaintiff’s e-bike striking loose concrete on a bike path on Royal Parade where it diverted into a service lane necessitated by roadworks connected to the Melbourne Metro Project. 

The respondents both referred the plaintiff to the Medical Panels, who concluded that the claimed injury satisfied the threshold level (first panel). Proceedings were issued in the County Court of Victoria shortly thereafter. 

Two years later, the plaintiff joined two additional respondents (Cross Yarra Partnerships and Downer EDI). The same Certificate of Assessment was served, and they both referred the plaintiff to the Medical Panel (second panel). 

With the second referral, there were different documents provided to the second panel, who ultimately determined that the claimed injury fell below the threshold level. 

The decision of Rosata makes it clear that the provisions of pt VBA of the Wrongs Act (the Act) permits such a course of events. 

The plaintiff sought an order quashing the determination made by the second panel. The two practitioners who examined and determined the second panel decision were joined to the proceedings for the purpose of the judicial review but (as per the usual course) did not appear or have legal representation. 

Grounds for Appeal 

The plaintiff appealed the decision to the Supreme Court on the grounds that the second panel:

1. lacked power to determine the same question that had been previously determined by the first panel;
2. failed to perform, or misunderstood, its statutory task by misconstruing s 28LZG(4) of the Act, and thereby committed ‘jurisdictional error’ by not providing detailed reasons for the determination;
3. assessed the plaintiff’s degree of WPI as not satisfying the threshold level and this was ‘legally unreasonable’; and 
4. erred by failing to deal with the reasons of the first panel. 

Court’s Decision

Clements J dismissed the appeal in full, concluding that: 

1. Different respondents can make separate referrals

Part VBA of the Wrongs Act permits different respondents to refer the same medical question separately to a Medical Panel. Where that occurs, a later, differently constituted Panel is not required to engage with the reasoning of an earlier Panel, explain why it differs from that Panel, or otherwise “deal with” the earlier Panel’s reasons. 

The plaintiff submitted that the second panel erred in not dealing with the determination by the first panel. Clements J rejected this submission for several reasons including that there was nothing expressly provided for in the provision of pt VBA, such a position would be inconsistent with Rosata, the relevant statutory task is for a Panel to reach its own determination of the medical question asked and if the first panel’s reasons were relevant to the second panel, the latter did not ignore or overlook them. The second panel determination expressly states that the Panel “noted the certificate of opinion and reasons of opinion from a differently constituted Medical Panel.” 

2. Medical Panels are not obliged to give reasons

Neither the Wrongs Act 1958 (Vic) nor the common law imposed an obligation on the Medical Panel to give reasons for its determination. Consequently, alleged inadequacies in reasons which the Panel nevertheless chose to provide could not themselves establish jurisdictional error or legal unreasonableness. 

In respect of the plaintiff’s injury, Clements J stated that the second panel used its clinical experience to assess the range of motion of the plaintiff’s right shoulder resulting only from physical factors, it did not matter what the cause or causes were for the reduced range of motion (being the reason for the second panel’s determination that the plaintiff did not meet the threshold). It does not matter if the second panel did not give reasons as to what caused the reduced range of motion as there was no obligation to do so under the Act. 

3. Error concerning s 28LZG(4) was not jurisdictional

The Panel had misconstrued the prohibition in s 28LZG(4) by stating the specific degree of impairment and explaining how they arrived at their decision using the AMA Guides. However, the Court held that the error did not amount to a jurisdictional error, because it affected only the extent of the reasons provided and could not realistically have produced a different determination of the medical question. 

Key Takeaway 

Clements J has been faithful to Rosata and confirms the position that where different defendants make separate Medical Panel referrals concerning the same plaintiff, the second panel in time does not have to review the proceeding panel’s decision or be in any way bound by that decision. 

Their decision reinforces that there is no statutory or common law duty under pt VBA to provide reasons and any deficiencies in the reasons does not amount to jurisdictional error or legal unreasonableness. This decision therefore highlights the significant limitations on a party’s ability to challenge a medical panel determination.