Australia: Section 63 reviews: A denial of natural justice alone may not be sufficient to render a medical assessment incorrect in a material respect

Curwoods Case Note
Last Updated: 21 February 2012
Article by Dewashish Adhikary and Andrew Gorman


Judgment date: 14 February 2012

Lewis v Motor Accidents Authority of New South Wales & Ors [2012] NSWSC 56

Supreme Court of New South Wales1

In Brief

  • A denial of natural justice, without more, does not render a medical assessment incorrect in a material respect.
  • The entitlement to review is not governed by the process by which conclusions are reached unless the process gave rise to a reasonable suspicion that the findings were incorrect in a material respect.
  • The mere fact that a contested statement made during the course of a medical assessment might not be able to be corroborated cannot be a reason for dismissing it as possibly giving rise to a suspicion that the assessment was incorrect. Each case must be considered upon its own merits.


In the course of an assessment of whole person impairment on psychiatric grounds, the medical assessor allegedly exhibited bias by making reference to his personal circumstances (being adopted). He also allegedly pressured the claimant to concede that she felt relieved by her recovery from an unrelated medical condition. The claimant sought review under s 63 on the ground that this bias, or the alleged refusal to allow the claimant an opportunity to be heard about her medical condition rendered the assessment "incorrect in a material respect".

A second ground for complaint related to the medical assessor's application of the test of causation. The medical assessor had stated that he was "inclined to believe" that the claimant's condition was not attributable to the accident.

The proper officer rejected the claimant's first complaint on the ground that the issue of denial of procedural fairness is a matter for the court and not one which impacts upon s 63. The proper officer dismissed the second complaint on the ground that, read as a whole, the reasons for the assessor's conclusions demonstrated no error.

Relevant Law

Section 63 of the Motor Accidents Compensation Act 1989 states that a party may apply for a review of a medical assessment on the ground of error. The proper officer must be satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect.

Supreme Court

Rejecting the claimant's challenge on the ground of procedural fairness of the Assessor, Adams J stated, at 7:

"In my view, a mere denial of natural justice, whether it be by way of bias or a refusal to enable the plaintiff a reasonable opportunity to be heard in respect of her medical condition will not of itself make the 'medical assessment...incorrect in a material respect'. To my mind the incorrectness in question is confined to the medical findings and expression of opinion by the Assessor. The possibility of a review is not concerned with the process by which these conclusions were reached unless the process (whatever its procedural characterisation) gave rise to a reasonable suspicion or reasonable cause to suspect that the conclusion or findings were incorrect in a material respect".

The court stressed that it is the potential for material error that unfairness might cause which is the crucial issue, not the unfairness per se.

With regard to causation, Adams J concluded, at 18:

"An inclination is not, on its face, the appropriate test, though it may mean the same as 'it is probable' which is not incorrect. However, I think that the doctor simply used an inapt vernacular term."

The court added, at 20:

"The Motor Accident Act Guidelines essentially proposes 'the material contribution' test which is not, to my mind, significantly different from the 'substantial contributing factor' test, 'substantial' and 'material' meaning virtually the it happened, the assessor did not actually specify the test of causation that he applied. His report makes it clear, however, that there were a number of possible factors that may have given rise to the plaintiff's condition and he certainly did not apply a test that required the accident to be the sole or even major contributing error is established."

The court also made the following observations with regard to the "word against word" argument "because of its possible significance in other cases" stating:

"It is not at all impossible that a claimant may wish to contradict an Assessor's report either as to history or examination or even conclusion based upon a statement of what occurred during the assessment. The mere fact that such a statement might not be able to be corroborated cannot be a reason for dismissing it as possibly giving rise to a suspicion that the assessment was incorrect. Each case must be considered upon its merits. There can be no automatic dismissal of a contradiction simply because there is no corroboration for it."


This case provides a further illustration of the narrow compass available to disturb the determinations of the proper officer in response to review applications. The process by which a medical assessor reaches his or her conclusion is not ordinarily a matter which invokes the section. Rather, the issue for the proper officer to address is confined to the specific findings and expressions of opinion by the assessor. Of course that is not the end of the matter; it is open to a party to challenge, by way of administrative review, any assessment which is allegedly reached via a route of procedural unfairness.

Insurers should also remain cognisant of the relief afforded by s 61(4) of the Act, which permits a court to reject a certificate as to the matters certified in it on the ground of denial of procedural fairness (if admission of the certificate would cause substantial injustice).

The judgment is also useful for its comments in relation to uncorroborated allegations made in the course of a medical assessment. In effect, just because there is no corroboration of a claimant's allegation that he or she said something not accurately reported by the assessor, does not automatically rule out a challenge under s 63.


1Adams J

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