Judgment date: 16 November 2010, Dogon v Redmond &
Ors  NSWSC 1329, Supreme Court of New South
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
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.
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,
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
The claimant's application for judicial review was heard by
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  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
The decision in Dogon v Redmond demonstrates that the
material error contemplated by s 63 may extend to a failure to give
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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