The NSW Supreme Court handed down its Decision in McKee v Allianz Australia Insurance Limited on 4 October 2007.
The Plaintiff was involved in a motor accident on 9 June 2002 and received injuries to both knees, his left shoulder and his spleen.
The Plaintiff was referred to MAS and Dr Long found 9% WPI. Importantly, Dr Long allowed 0% WPI for the injury to the Plaintiff’s abdomen and spleen.
A Review Application was lodged by the Plaintiff’s Solicitors. They argued that Dr Long should have allowed 3% WPI for the Plaintiff’s post-traumatic splenectomy. The Proper Officer arranged for the Review Application to be referred to a Review Panel.
Whilst the Review Panel agreed that 3% WPI should have been allowed for the Plaintiff’s spleen injury, the Panel found that Dr Long was wrong to allow 8% WPI for the Plaintiff’s left knee injury. Rather, the Panel found that 6% WPI should have been allowed for the knee.
The result was that the Plaintiff was assessed by the Review Panel at 10%, despite having succeeded on the grounds he advanced.
The Plaintiff argued in the Supreme Court that the Review Panel Certificate was invalid because the Review Panel’s jurisdiction was limited to considering the material error asserted by the Applicant and did not extend to reviewing other aspects of the original assessment
Justice James rejected the Plaintiff’s construction of the Act and found that once a claim was referred to the Review Panel, the Panel had jurisdiction to consider all aspects of the assessment and issue a new Certificate accordingly.
His Honour reasoned as follows at paragraph 62:
"62 Under sub-s (3) and sub-s (4) of s 63 the proper officer is required to be satisfied that there is reasonable cause to suspect that the assessment by the medical assessor was incorrect in a material respect but the section does not provide that the function of the review panel is to determine whether the assessment was incorrect in that respect. What sub-s (4) of s 63 provides is that the review panel may confirm the certificate of assessment of the assessor or revoke that certificate and itself issue a new certificate."
Accordingly, his Honour held that s 63 did not limit the jurisdiction of the Review Panel to considering whether the material error asserted by the Applicant was present. The jurisdiction extended to considering all aspects of the assessment.
Where a party identifies a potential error in a MAS assessment which is against that party’s interest, consideration must be given whether other errors have been made in that party’s favour before applying for Review under s 63.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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