Australia: Review available where MAS Assessor fails to explain causation findings

Curwoods Case Notes
Last Updated: 29 November 2010
Article by Peter Hunt

Judgment date: 16 November 2010, Dogon v Redmond & Ors [2010] NSWSC 1329, Supreme Court of New South Wales1

In Brief

  • A MAS Assessor is required to give proper reasons for his or her causation findings.
  • Where a MAS Assessor fails to give proper reasons for his or her findings on causation, the aggrieved party may seek a Review under s 63 of the Motor Accidents Compensation Act 1999.


The Supreme Court of NSW handed down its decision in Dogon v Redmond & Ors on 16 November 2010, when Hulme J delivered an ex tempore judgment.

His Honour dismissed an application by the claimant to set aside a decision by the Proper Officer to refer a permanent impairment dispute to the MAS Review Panel.

The Claimant was injured in a motor accident on 28 January 2007. She alleged injuries to various parts of her body including to the left shoulder and left wrist. The causation of the left shoulder and left wrist injuries were, however, in dispute.

MAS Assessment

The claimant's permanent impairment was assessed by MAS Assessor Lethlean on 14 April 2010. Contrary to the insurer's submissions, Dr Lethlean found that the left shoulder and left wrist injuries were caused by the motor accident and assessed the claimant's permanent impairment, for all injuries, above the 10% WPI threshold.

When considering the issue of causation, Dr Lethlean stated:

"Pain was widespread following the MVA of 28.01.07. There is no ambulance or hospital report suggesting left shoulder or left wrist lesions. The first reference is that of Dr M Giurgis – report of 29.11.08. Ultrasound of the left shoulder was performed 24.01.08, and MRI scans of the wrist 04.03.08 and 16.04.08. The ultrasound findings are not specific to trauma. The effusion in the left wrist is noted. There is no indication in GP notes of antecedent shoulder and wrist difficulties on the left.
"I have accepted that the left shoulder and left wrist injury was sustained in the MVA of 28.01.07."

In seeking a review of his assessment, the insurer submitted that Dr Lethlean erred in finding that the left shoulder and left wrist injuries were caused by the accident, given the delay in complaint, noting that there was a period of 12 to 13 months between the accident and the investigations of the Claimant's left shoulder and left wrist in January 2008 and March 2008, respectively.

Decision by Proper Officer

The Proper Officer accepted the insurer's submissions that there were reasonable grounds to suspect that the assessment by Dr Lethlean was affected by material error.

The Proper Officer concluded:

"In the absence of any clear explanation by the Assessor as to how he formed his conclusions in relation to causation of the claimant's left shoulder and wrist injuries, I am satisfied that there is reasonable cause to suspect that the assessment may be incorrect in a material respect."

Supreme Court

The claimant's application for judicial review was heard by Hulme J.

His Honour observed that, in order to obtain relief, the claimant had to show that the Proper Officer's decision was affected by error of law; in this case, that there was no reasonable cause to suspect that the medical assessment was incorrect in a material respect.

At paragraph 12, Hulme J concluded that no error had been demonstrated in the Proper Officer's decision. His Honour agreed with the Proper Officer that Dr Lethlean's reasons on causation were inadequate. Specifically, Hulme J stated:

"I of course accept that the reasons of an assessor under the Motor Accidents Act `are not to be construed minutely and finely with an eye keenly attuned to the perception of error' – see Insurance Australia Limited v Motor Accidents Authority of New South Wales; Kelly v Motor Accidents Authority of New South Wales [2007] NSWCA 314. But a mere recitation or summary of the evidence as appears in the passage quoted from Dr Lethlean's conclusions followed by a statement "I have accepted that the left shoulder and left wrist injury was sustained in the MVA of 28.01.07" does not seem to me to comply with his obligations."

As such, the claimant's Summons was dismissed with costs.


The decision in Dogon v Redmond demonstrates that the material error contemplated by s 63 may extend to a failure to give proper reasons.

Justice Hulme found no error in the Proper Officer's decision to refer the dispute to the MAS Review Panel on the grounds that the MAS Assessor had failed to give proper reasons for his causation findings.

Specifically, Hulme J found that a MAS Assessor must do more than merely outline the evidence of complaint and then state a conclusion. By failing to explain how he was satisfied that the disputed injuries were caused by the accident, notwithstanding the delay in documented complaint, Hulme J found that Dr Lethlean's reasons were inadequate.

Given this decision, we recommend that the causation findings in MAS reports be carefully reviewed to see whether proper reasons have been given for conclusions reached. In the event that the conclusions on causation are not properly explained, a Review Application under s 63 may be made.

1. R S Hulme J

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