McKee v Allianz Australia Insurance Limited [2008] NSWCA 163
Allsop P, Giles and Basten JJA
In Brief
- 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.
Background
The NSW Court of Appeal handed down its decision in McKee v Allianz Australia Insurance Limited on 14 July 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. However, James J disagreed and dismissed the Plaintiff's Application.
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 JA included:
- 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
29),
- 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).
Implications
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 parties.
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 provides:
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 concerned.
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 s 63.
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.
