ZURICH V MESTRIC [2016] NSWSC 187

THE CASE

His Honour Justice Adams was considering a decision of CARS Assessor Turnbull to refer a matter back for further medical assessment pursuant to section 62(1)(b) of the Motor Accidents Compensation Act 1999.

Assessor Turnbull had determined that the matter should be referred back as he considered that the claimant had not been afforded procedural fairness because the MAS Assessor failed to bring inconsistencies in medical histories to the claimant’s attention.

FINDINGS

Section 62(1)(b) provides that a CARS Assessor can refer a matter back for medical assessment on one or more occasion.

The issue for determination by his Honour was had Assessor Turnbull correctly exercised the discretion conferred by the section.

The critical question was had CARS Assessor Turnbull failed to consider relevant matters, made any plainly wrong findings of fact and was the decision been open to him.

His Honour dismissed the insurer’s summons.

It was accepted that a CARS Assessor should only refer a matter back to avoid a substantial wrong or miscarriage as per the decision in Trazivuk v Motor Accidents Authority [2010] NSWCA. In that case a CARS Assessor had refused to refer a matter back since he did not believe a different result would occur despite what appeared to be a lack of procedural fairness.

In this instance, the matter had been the subject of two (2) prior MAS assessments. The first determined that WPI exceeded 10%. The second determined WPI did not exceed 10%. By simply inference it was then hard to argue that the outcome may be not be different.

As Assessor Turnbull identified that there had been a lack of procedural fairness by the MAS Assessor in not bringing to the claimant’s attention inconsistencies in medical histories, and giving the opportunity top respond.

LESSON

This decision means that Section 62(1)(b) provides a broad discretion for CARS Assessors although to be exercised carefully.

If an Appeal was to be pursued by Zurich it might be on the basis that the decision by CARS Assessor Turnbull was ultra vires. It is arguable that it the question of procedural fairness in a MAS determination is not a matter that a CARS Assessor should be able to determine. It should be within the domain of the MAS proper officer on an application for Review. Have said that, Section 62 is broadly worded and the Objects of the Act could support this power.

Whenever a CARS Assessor does exercise Section 62 it is imperative they must be satisfied that there would otherwise be some substantial miscarriage or misjustice. The considerable significance on available damages of determinations about whether injuries do or do not exceed WPI of 10% is a factor.

It appears enough that the CARS Assessor considers that the MAS Assessment was not arrived at fairly

It does not even seem necessary for the aggrieved party to take all others steps available before asking a CARS Assessor to apply Section 62(1)(b).