McKee v Allianz Australia Insurance Limited 
Allsop P, Giles and Basten JJA
A Review Panel has jurisdiction under s 63 to consider
all aspects of the original assessment, not just the material
error asserted by the Applicant.
The NSW Court of Appeal handed down its decision in
McKee v Allianz Australia Insurance Limited on 14 July
The Plaintiff was involved in a motor accident on 9 June
2002 and received injuries to both knees, his left shoulder and
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
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. However,
James J disagreed and dismissed the Plaintiff's
Court Of Appeal
In the Court of Appeal, the leading Judgment was delivered
by Giles JA. While Allsop P generally agreed with his reasons,
Basten JA dissented. Justice Giles' reasoning is
primarily found in paragraphs 27 and 28, as follows:
27...What the Review Panel receives is a reference to
it of the medical assessment. Section 63(2) and (3) do not
cut this down. Section 63(3) provides a filter mechanism.
Section 63(2) in terms limits the grounds for making an
application, although no doubt its effect is that a Review
Panel can not issue a new certificate if it considers that
any incorrectness in the medical assessment was not in a
material respect, but it does not otherwise affect the
performance by the Review Panel of its task of either
confirming the medical assessor's certificate or
issuing a new certificate expressing its own assessment of
the matter or matters referred for assessment.
28 The Review Panel is in my opinion not limited to
the grounds for incorrectness in a material respect
particularised in the application for referral of a medical
assessment. There are sound reasons why this construction of
s 63 should be preferred to one by which the Review Panel can
not go beyond those grounds.
The "sound reasons" identified by Giles
The consequences of a medical assessment are significant
to both parties and it would, therefore be harsh if the
Review Panel were not permitted to act on material errors it
identifies in addition to those raised by the parties (para
The significance of a medical assessment is such that
restrictions on getting it right should not readily be found
to have been intended by the legislature (para 29), and
It would be inappropriate if the members of the Review
Panel were required to issue a certificate which they knew
was incorrect in a material respect merely because the
parties had not raised the error in question (para 30).
The Court of Appeal has, therefore, confirmed the principle
that where a permanent impairment dispute is referred to a
Review Panel under s 63, the panel has jurisdiction to consider
all aspects of the assessment, not just those identified by the
Notably, this principle has been confirmed by the amendments
to be introduced by the Motor Accidents Compensation (Claims
and Dispute Resolution) Amendment Act 2007. Section 63A
The review of a medical assessment is not limited to a
review only of that aspect of the assessment that is alleged
to be incorrect and is to be by way of a new assessment of
all the matters with which the medical assessment is
Section 63A applies to all matters referred to MAS on or
after 1 October 2008.
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
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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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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