Australia: Proper Officer correct in concluding there was reasonable cause to suspect a MAS Assessor failed to properly consider the question of causation

Curwoods Case Note
Last Updated: 25 May 2011
Article by Ian Jones

Published date: 20 May 2011.
Judgment date: 20 May 2011.
Farache v Motor Accidents Authority of NSW and Ors [2011] NSWSC 446 Supreme Court of NSW1.

In Brief

  • The failure of a MAS Assessor to include in his Reasons any reference to causation of a neck injury gives rise to a suspicion that the MAS Assessor failed to properly consider the question of causation.
  • The Proper Officer correctly concluded that, in considering a MAS Application for Review, there was reasonable cause to suspect the medical assessment was incorrect in a material respect, namely failure to properly consider the question of causation.


The claimant commenced proceedings in the Supreme Court of New South Wales claiming an order in the nature of certiorari setting aside a decision of the Proper Officer of MAS on the basis that the Proper Officer had erred in allocating a MAS Application for Review to a Review Panel.

The claimant had sustained injuries in a motor vehicle accident on 14 January 2008. The claimant alleged injuries to her neck and right shoulder. A dispute arose between the claimant and the insurer as to the claimant's entitlement to damages for non-economic loss arising out of her accident related injuries.

An Application for Assessment of a Whole Person Impairment Dispute was lodged at MAS and allocated to Dr Dixon. On 26 March 2010, Dr Dixon issued a Certificate and Reasons certifying that injuries to the neck and right shoulder caused by the motor vehicle accident gave rise to a permanent impairment which, in total, was greater than 10%.

Dr Dixon had made available to him at the time of examination of the claimant the Ambulance report and clinical notes of Hornsby and Ku-ring-gai Hospital relating to the claimant's admission on the day of the accident. Dr Dixon was also provided with a short report of the claimant's general practitioner, Dr Hong.

The contemporaneous medical records from the Ambulance Service and Hornsby and Ku-ring-gai Hospital made no reference to any injury to the neck. Dr Dixon did not specifically note this in providing a summary of the relevant documentation provided to him, but did refer to the contemporaneous complaints made by the claimant of right shoulder symptoms.

The insurer lodged a MAS Application for Review on 19 April 2010 in which it was contended that Dr Dixon failed to address the issues of causation in relation to the allegation of an injury to the neck. The claimant lodged a Reply and the Proper Officer resolved, after reviewing the documentation, to allocate the Application to a Review Panel.

In particular, the Proper Officer considered the effect of s 58 of the Act and noted that the words the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident make it implicit in any assessment that there will be a consideration of causation of a claimant's symptoms and impairments. The Proper Officer noted an absence of any clear explanation by Dr Dixon as to how he formed his conclusions in relation to causation of the cervical spine injury. The Proper Officer was satisfied that there was reasonable cause to suspect that the assessment may be incorrect in a material respect.

Before the claimant filed the Summons in the Supreme Court, the Review Panel examined the claimant and issued a Certificate and Reasons on 30 July 2010. No challenge was made to the Review Panel Certificate and Reasons by the claimant.

Supreme Court Proceedings

The claimant submitted that there was no material error disclosed in the MAS Certificate of Dr Dixon in the terms of the proper application of the Medical Assessment Guidelines. It was stated that these Guidelines made it abundantly clear that addressing the issue of causation was a matter for the MAS Assessor to undertake and, as Dr Dixon had stated that the neck injury was caused by the motor accident, there was no reason to suspect he had failed to properly consider and determine the question of causation; Dr Dixon having:

  1. obtained a history from the claimant which included complaints of occipital headache;
  2. reviewed radiological evidence;
  3. conducted an examination of the claimant; and
  4. reviewed the available medical records

The position of the insurer did not appear to be entirely understood by the claimant. In lodging the MAS Application for Review, the insurer alleged that the material respect in which the assessment was incorrect was error as to causation of the alleged neck injury and it was on that basis that the review had been granted by the Proper Officer. It was insufficient for Dr Dixon to simply state that some injuries were caused by the motor accident and one was not. Dr Dixon failed to analyse issues of causation at all and there was no mention by him in his Reasons of the absence of a contemporaneous record of neck pain in the medical records. Dr Dixon failed to explain how he overcame the issue of causation.


Justice Hislop noted that the question of causation of the neck injury was a significant issue in the dispute between the parties. This issue had been clearly raised by the insurer in both the initial Application allocated to Dr Dixon and in the Application for Review. His Honour was satisfied that the failure of Dr Dixon to include in his Reasons any reference to causation aspects of the neck injury or the Ambulance records, and his failure to make any analysis of the question of causation in respect of the neck injury in his conclusions or elsewhere in his Reasons gave rise to a suspicion that Dr Dixon failed to properly consider, or overlooked considering, the question of causation.

Justice Hislop was satisfied that the claimant had not demonstrated that the Proper Officer erred in concluding that there was reasonable cause to suspect that the Certificate and Reasons of Dr Dixon were incorrect in a material respect having regard to the particulars set out by the insurer in the Application for Review.

His Honour dismissed the Summons.


Justice Hislop has found no error in the Proper Officer's decision to refer the dispute to a MAS Review Panel on the basis that Dr Dixon had failed to give proper reasons for his causation findings. The facts of this matter are similar to those in Dogon v Redmond and Ors2 where Justice Hulme made similar findings.

Justice Hislop confirmed that where there is contemporaneous evidence contained in medical records before a MAS Assessor, those records need to be analysed and explained in light of the ultimate conclusions expressed as to the injuries caused by the accident.

This decision reinforces the recommendation expressed in the Curwoods Case Note on Dogon v Redmond and Ors3that 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, an Application for Review under s 63 may be made.

1. Justice Hislop

2. [2020] NSWSC 1329

3. Ibid

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.

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.