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Dealing with Diversity Jurisdiction - a Case Note on Searle v McGregor [2022] NSWCA 213

Dennis Denuto famously said, “it’s the Constitution, it’s Mabo, it’s justice, it’s law, it’s the vibe and aah no that’s it, it’s the vibe”

The Constitution establishes the composition of the Australian Parliament and outlines how the federal and state Parliaments share power.  It recognises some individual rights (such as freedom of religion) and implies others (such as freedom of speech). 

On its face, it has nothing whatsoever to do with motor accidents. 

Yet for a small but significant class of people, the Constitution has a fundamental impact on how motor accident claims are handled.

The recent Court of Appeal decision in Searle v McGregor [2022] NSWCA 213 has taken an important step in clarifying matters for this particular group of people.

Case Note: GIO Insurance (Australia) Ltd v Taouk [2021] NSWPICMP 193

Important takeaways from the decision in GIO Insurance (Australia) Ltd v Taouk [2021] NSWPICMP 193:

  • Where the examination findings of the initial Assessor are not in dispute, a physical re-examination of the Claimant is not necessary, and is consistent with the objects of the PIC to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible” (see Section 3(c) of the Personal Injury Commission Act 2020).
  • Although not determinative of causation, a lack of contemporaneous records of an injury will be a relevant factor, particularly if the contemporaneous records are detailed and are suggestive of “precision in questioning and recording”.

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