Australia: Challenging MAS Assessments

Last Updated: 18 October 2010
Article by Gerry Tzortzatos
This article is part of a series: Click Challenging MAS Assessments for the previous article.


Final compilation and analysis by: Gerry Tzortzatos

Building on Curwoods Case Notes by: Cherilyn Ribbons, Jennifer Casperson, Nathan Morehead

With valuable assistance from: Andrew Gorman , Peter Hunt, Ian Jones, Belinda Wightley, Jodi Norton, Philippe Paquet, Vanessa Jason, Laurinda Wellings, Andrew Parker





In Brief

Case Examples

Wilkie v Motor Accidents Authority of New South Wales and Anor [2007] NSWSC

Transport Accident Commission of Victoria v Motor Accidents Authority of New South Wales & Ors [2009] NSWSC 940

Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056

De Gelder v Motor Accidents Authority of NSW [2009] NSWSC 1173

Singh v Motor Accidents Authority of NSW [2010] NSWSC 550



In Brief

Case Examples

Bouveng v Bolton [2009] NSWDC 19

Jovica Trazivuk v Motor Accidents Authority of NSW & Ors [2009] NSWSC 1074

Chami v Motor Accidents Authority of New South Wales [2009] NSWSC 1358

Devic v Motor Accidents Authority of New South Wales [2009] NSWSC 1289

Motor Accidents Authority of NSW v Mills [2010] NSWCA 82



In Brief

Case Examples

McKee v Allianz Australia Insurance Limited [2008] NSWCA 163

Rahme v Bevan [2009] NSWSC 58

Pratap v Motor Accidents Authority of NSW and Ors [2009] NSWSC 1325

Sanhueza v AAMI Limited [2010] NSWSC 774

Graovac v Motor Accidents Authority [2010] NSWSC 938

Stojanovic v Motor Accidents Authority of NSW [2010] NSWSC 1090

Meeuwissen v Boden and Motor Accidents Authority of New South Wales [2010] NSWCA 253



In Brief

Case Examples

Darke v El Debal [2006] NSWCA 86

Towell v Schuetrumpe [2006] NSWDC 159


In Brief

Case Examples

Australian Associated Motor Insurers Ltd v Jessel [2007] NSWSC 1351



Claims Handling Tips

When urging the Court to reject a MAS certificate under s 61(4):

  • Note that the power in s 61(4) can only be exercised by a Court after the commencement of proceedings for compensation (as opposed to judicial review proceedings)
  • Demonstrate the risk of injustice if the medical certificate is not rejected and provide evidence in support of the application, for example, surveillance or evidence given during the court proceedings
  • Prepare submissions as to how the outcome might be different if the matter is referred for further assessment
  • If appropriate, provide submissions to assist the Court in making its own assessment of impairment based on the available medical evidence.

In Brief

  • In order to reject a medical assessment certificate pursuant to s 61(4) a Court must be satisfied that a party has been denied procedural fairness
  • A Court cannot conduct a merits review of the medical assessment certificate when considering whether to reject it under s 61(4)
  • Procedural fairness does not require the MAS Assessor to explain the statutory process to the claimant
  • Procedural fairness does not require the MAS Assessor's determination to be entirely consistent with all medical evidence available to them
  • A claimant is not denied procedural fairness if a MAS Assessor rejects complaints made by them
  • If a Court exercises its power to assess the claimant's permanent impairment pursuant to s 61(6), it must do so in accordance with the Medical Assessment Guidelines and AMA 4
  • A party may make an application for the Court to exercise its discretion pursuant to s 61(4) at any time from the commencement of proceedings up to the completion of the substantial hearing.

Case Examples

Darke -v-El Debal [2006] NSWCA 86

  • The claimant had claims for damages arising from two work injuries and a motor accident which were heard concurrently in the District Court. The claimant was assessed by MAS below the threshold in relation to a neck injury which was sustained in the motor accident. The claimant moved the District Court to reject the medical assessment certificate for denial of procedural fairness. The Judge found that the claimant was denied procedural fairness and rejected the certificate, instead making a finding pursuant to s 61(6) that the claimant exceeded the threshold. The insurer appealed the judgment.
  • The Court of Appeal held that if a Court exercises its power to assess the claimant's permanent impairment pursuant to s 61(6), it must do so in accordance with the Medical Assessment Guidelines and AMA 4 as required by s 133.
  • The Court of Appeal held that the dictates of procedural fairness do not require:
    1. the MAS Assessor to provide an explanation of the statutory scheme to the claimant;
    2. the MAS Assessor's determination to be entirely consistent with all medical evidence available to them;
    3. the MAS Assessor to accept all complaints made by the claimant.
    4. The Court of Appeal held that s 61(6) does not entitle the Court to embark on a merits review of the original medical assessment certificate.
    5. The Court of Appeal upheld this ground of the Appeal but referred the matter for a new trial on a number of other issues as the primary judge overlooked critical evidence, failed to address all pleaded causes of action, decided points that had not been argued and failed to give reasons for several key findings

Towell v Schuetrumpe [2006] NSWDC 159

  • The claimant was assessed above the threshold at MAS. On Further Assessment the claimant was assessed below the threshold, a decision which was upheld by the Review Panel, although by different means. The claimant commenced proceedings in the District Court and made an application to the Court to reject the medical assessment certificate in accordance with s 61(4).
  • A question arose as to whether the application should be dealt with prior to or during a hearing. The Court held that it was appropriate for such an application to be dealt with either before or during a hearing.
  • The Court also found that, although not explicitly stated in the Act, the Review Panel – like the original MAS Assessor – must determine the extent to which the permanent impairment is caused by the subject accident.
  • Ultimately the Court dismissed the application on the grounds that the Review Panel did not deny procedural fairness by not examining the claimant as there was objective evidence of his pre-existing conditions in the information already before them.


Claims Handling Tips

Before seeking judicial review of a decision of the MAA:

  • Ensure that the MAA has provided reasons for its decision and that any alleged error is demonstrable within those reasons or arising from the lack of proper reasons;
  • First, request that the MAA reconsider its decision and correct any obvious error pursuant to s 61(11);
  • Consider whether the assessor who assessed an injury was suitably qualified to provide such assessment and, if not, request the injury be assessed by an appropriate expert.

In Brief

  • The MAA has an ongoing duty to refer a claimant for assessment by one or more medical assessors until all injuries listed in the Application for Assessment by MAS have been assessed
  • A medical assessment certificate assessing a particular injury by a MAS Assessor not qualified to assess that particular injury is invalid to the extent that it purports to assess such injury.

Case Examples

Australian Associated Motor Insurers Ltd v Jessel [2007] NSWSC 1351

  • The claimant was assessed by MAS at 8% WPI. In his determination the MAS Assessor assessed the claimant's nose injury at 0% WPI but stated that the assessment of the nose injury was outside his area of expertise. The claimant lodged an Application for Review which was dismissed by the MAA. However, in the same decision the MAA stated they considered the assessment of the claimant's injuries had not been completed and arranged an assessment of the claimant's nose injury by a suitably qualified expert. That MAS Assessor assessed the nose injury at 4% WPI and a combined certificate was subsequently issued confirming that the claimant exceeded the threshold. The insurer filed a Summons in the Supreme Court seeking to set aside the decision of the MAA, the further medical assessment certificate and the combined certificate.
  • The Court dismissed the Summons, finding that the original medical assessment certificate was not conclusive evidence of the WPI relating to the nose injury as it fell outside of that MAS Assessor's expertise.
  • The Court also held that the MAA has an ongoing duty to refer a medical issue to one or more medical assessors pursuant to s 60(4) and this duty does not cease simply because a medical assessment certificate has been issued.


The objective of MAS is to determine whether a claimant's injuries arising from an accident exceed a threshold which would entitle them to damages for non-economic loss. Their determinations have a significant impact to the rights of the claimant and insurer. It is important that such determinations are correct in accordance with the law.

There are a number of means by which MAS Assessments may be challenged. In the first instance a party may seek review of a medical assessment certificate. A Court or Claims Assessor has an unfettered discretion to refer a claimant for Further Assessment at any time. The parties are also entitled to refer a matter for Further Assessment on a restricted number of grounds. Finally, a Court may reject a medical assessment certificate and even substitute it with its own determination if procedural fairness has not been observed.

The underlying principle behind the various review mechanisms appears to be that applications and assessments are to be dealt with in a manner that is fair to all parties and which achieves the correct result. However, this principle must be tempered by the need to constrain parties from making meritless applications which delay the resolution of claims.

Having regard to this, it would be preferable that parties present their entire case at an initial assessment, without making assumptions about the availability of a mechanism to challenge a later unfavourable decision. Should such challenge be required, parties need to act in a timely manner and ensure that the grounds submitted for the challenge are as comprehensive as possible. When responding to another parties challenge, a party should provide comprehensive submissions to assist the relevant decision maker to come to the correct conclusion.

Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

This article is part of a series: Click Challenging MAS Assessments for the previous article.
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.