It has been established practice in serious injury applications that Medical Panel Certificates of Opinion are tendered, but that the Reasons are not. In the case of Yirga-Denbu v VWA [2018] VSCA 35, the Court of Appeal discussed the implications of tendering the Reasons of the Medical Panel.
Background
Mr Yirga-Denbu sought leave from the County Court to commence proceedings for pain and suffering and economic loss. He was granted leave to commence proceedings for pain and suffering.
During the hearing, the Defendant tendered the Medical Panel Certificate of Opinion and Reasons. The Plaintiff objected to the written reasons being tendered.
The Medical Panel had decided that the Plaintiff had capacity to work 20 hours per week as a packer but that the incapacity was not permanent.
When dismissing the economic loss component of the claim, the judge at first instance held that this meant he would increase his hours gradually and could not show that he satisfied a permanent 40% economic loss test.
On appeal
There were a number of grounds of appeal.
When dealing with the issue of the tendering of the Medical Panel Reasons, The Court of Appeal held that there was no error in allowing the Reasons to be tendered in this case. Reasons are typically not tendered because the Medical Panel cannot be compelled to be cross-examined and this means that the potential prejudice of tendering the written reasons outweighs the probative value. The Court of Appeal held that in this case there was limited prejudice because no medical witnesses were called for cross-examination.
The plaintiff was successful with the appeal as the Court of Appeal agreed that the judge at first instance had not taken into account the totality of the evidence. The Court of Appeal were satisfied that he had satisfied the 40% economic loss test and substituted their decision, rather than remitting the case back for rehearing. The Court of Appeal held that the weight of the evidence supported that the Plaintiff would be unlikely to increase his hours to anything more than 25 hours per week.
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Danielle graduated from Monash University with degrees in Law and Arts. After being admitted to practice, she moved to Taiwan for 15 months to teach English, study Mandarin Chinese and see more of the world.
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