Australia: Proper Officer made MAS decision on irrelevant considerations

Curwoods Case Note
Last Updated: 27 October 2012

Mitrovic v Motor Accidents Authority of New South Wales [2012] NSWSC 1231

Jurisdiction: Supreme Court of NSW1

In Brief

  • Previous MAS assessors' certificates with reasons for decisions and applicants omitting alternative Whole Person Impairment (WPI) ratings are irrelevant considerations in determining whether or not an application for further assessment will be referred for review.
  • The Proper Officer must make the determination on the grounds set out in s62 of the Motor Accidents Compensation Act 1999 (New South Wales) (the Act)
  • In the context of an application for further assessment, the Proper Officer must consider whether the Claimant's deterioration or the additional information provided with the Claimant's application is capable of having a material effect on the outcome of the previous assessment.


The Claimant was injured on 13 June 2006 as a pedestrian in a motor vehicle accident.

The Claimant was referred to Medical Assessors McCarthy and Prior to determine whether she was entitled to claim for non-economic loss. The Medical Assessors found that the motor vehicle accident did not cause the Claimant's brain and psychological injuries. Both the assessors declined to provide whole person impairment ratings on that basis.

The Claimant lodged a Medical Assessment Service 4A application for further assessment of the brain and psychological injuries.

The Claimant relied on medical opinion in reports from Miroslav Milenkovic (Clinical Psychologist), Dr Beran (Neurologist), Dr Sokolovic (Consultant and Forensic Psychiatrist) and articles by Laurence Miller entitled "Atypical Psychological Responses to Traumatic Brain Injury: PTSD and Beyond"; "Not just malingering, Syndrome diagnosis in traumatic brain injury litigation".

The three doctors agreed that Claimant's condition had deteriorated. Dr Sokolovic's opinion was that the motor accident had caused the Claimant's disability and rendered her dependent on full-time care.

The Defendant's argued that Dr Beran's opinion appeared to support MAS Assessor McCarthy's view that there was no traumatic brain injury. The two articles included in the application referred to Post Traumatic Stress Disorder (PTSD) after traumatic brain injury.

On 17 February 2012, the Proper Officer refused to refer the Whole Person Impairment for further assessment. The Claimant sought judicial review of the Proper Officer's decision in the Supreme Court of NSW's supervisory jurisdiction.

In the Claimant's grounds for judicial review, the Claimant argued that the Proper Officer erred as follows:

  1. Taking into account an irrelevant consideration, namely that the Claimant needed to specify a WPI rating;
  2. The Claimant was denied procedural fairness by not being given a chance to make further submissions in the light of the Proper Officer's comments on WPI;
  3. The Proper Officer did not properly apply the test in s62 of the Act and failed to make her own assessment in accordance with that section; and
  4. The Claimant took issue with the Proper Officer finding that the Claimant's submission did not address the issue of causation.

Irrelevant Consideration

In her judgment, Associate Justice Harrison approved of the Proper Officer's method of asking herself rhetorically for the reasons for her decision regarding whether or not the deterioration of the Claimant's injury and the additional relevant information about the injury was capable of having a material effect on the outcome of the previous assessment, as required by s62(1A) of the Act.

The Proper Officer summarised the submissions of the Claimant and the Defendant in her reasoning. She quoted part of the Defendant's submissions:

"Assessor McCarthy certified that the alleged head injury, concussion, cognitive impairment and post-traumatic amnesia were not caused by the subject motor vehicle accident. They also note that Assessor Prior found that the claimant had a dementing illness with or without complication by psychotic depression, not causally related to the subject accident."

The Proper Officer then stated:

"The submissions provided by the applicant do not address issues of causation nor do their submissions or the report they submit include any whole person impairment rating such to be capable of materially altering the outcome of the previous MAS assessments (emphasis added)

Given that in relation to both brain injury and psychological injuries, the previous MAS assessments determined that these injuries were not related to the motor vehicle accident, the claimant's solicitors have not adequately satisfied the requirement to be:

  1. such as to be capable of having a material effect on the outcome of the previous assessment.'

As such I have determined that the application shall not be referred for further assessment."

In respect to the first grounds, the Claimant argued that s62 does not require the applicant to provide a WPI rating. The correct test is that the Proper Officer evaluate the Claimant's deterioration and the material submitted as per the section as she stated above.

The Claimant argued that to make the decision about whether WPI would be greater than 10%, the Proper Officer would have been able to examine the application and apply it herself by referring to Chapter 4, AMA4 regarding the "The Nervous System" and chapter 5 of the MAA Guidelines for the Assessment of the Degree of Permanent Impairment at clauses 5.11 and tables 5.1 and 5.2.

These chapters address the clinical dementia ratings (CDR) and set out criteria for rating impairment related to mental status. The Claimant argued that with a working knowledge of those tables the Proper Officer would have been able to see that the material was sufficient to establish a material effect on the outcome of the assessment previously carried out.

The Defendant argued that the comments regarding no WPI rating were not determinative but a mere observation. Further, it was reasonable to expect an applicant to provide a WPI rating in support of the Claimant's submissions that the information submitted could lead to a change of the WPI from lesser than to greater than 10%.

The Court found that the Proper Officer relied on the failure to provide a WPI rating to reach her decision to reject the Claimant's application. This was found to be an irrelevant consideration, which is a long established jurisdictional error when making administrative decisions under statutory power.2

Procedural Fairness

The question of procedural fairness was related to the Proper Officer failing to warn the Claimant that she was required to submit a WPI rating before the Proper Officer gave her decision. That ground became redundant when Her Honour found the WPI was an irrelevant consideration.

Whether Causation was Addressed in the Application

In order to be successful in the dispute as to the degree of impairment, the Claimant had to overcome the causation issue. The Proper Officer stated the causation issue had not been addressed, but the Court found it was. The Defendant argued that the material submitted had only gone to deterioration, but that was not accepted.

Whether the Wrong Approach was Adopted

The Court found that the Proper Officer failed to consider the new material and the Guides when making her decision. Rather, she relied upon the previous MAS Assessments to justify her refusal of the application. As such she had constructively failed to exercise her jurisdiction as an administrative officer.

In the Proper Officer's reasons, she effectively refused the application on the grounds that the previous MAS assessments did not attribute the Claimant's condition to the accident. To her mind, the Claimant had failed to satisfy the requirement that the deterioration and additional information had to be capable of having a material effect on the outcome of the previous assessment, because it had already been decided that it wasn't.

In the Proper Officer's reasons, she effectively refused the application on the grounds that the previous MAS assessments did not attribute the Claimant's condition to the accident. To her mind, the Claimant had failed to satisfy the requirement that the deterioration and additional information had to be capable of having a material effect on the outcome of the previous assessment, because it had already been decided that it wasn't.

The Claimant's argument was that if s62 was properly construed and applied, then the previous assessment was irrelevant or would not be determinative against referral. It was not contemplated that approval for further assessments would be determined by reference to earlier assessments.

The Defendant argued that it was open to the Proper Officer to find on fact that the Claimant had failed to satisfy s62(1A) based on how the case was presented to her and the evidence.

Her Honour referred to the venerable case of Ex parte Hebburn Ltd; Re Kearsley Shire Council3; in which Jordan CJ said that a tribunal's mistake of law does not necessarily constitute a failure to exercise jurisdiction. However if a tribunal (or administrator) misunderstood the nature of the opinion it was to form, among other errors, then it would lead to the jurisdiction being "constructively unexercised". Thus it was open to judicial review, compelling the tribunal to deal with the matter according to law. This judgment has been cited with approval in the Supreme Court of NSW and High Court.4

The Court ruled that the Proper Officer in her reasons showed that she had put undue weight on the previous MAS assessments rather than considering the new material and Guides in respect of psychological injuries. The Proper Officer failed to take into account the criteria for decision making under s62 of the Act and for that reason the Proper Officer fell into jurisdictional error.

As a result, the Proper Officer's decision was set aside and the application was referred back to the MAA for determination in accordance with law.


This case emphasises that a Proper Officer, on making a decision on whether or not a party is entitled pursue a further assessment of the Whole Person Impairment, must give more weight to the additional information and changes to the claimant's condition rather than previous assessments.


1 Harrison AsJ.
2 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (per Mason J) & Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]-[84] (per McHugh, Gummow and Hayne JJ).
3 Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416; (1947) 64 WN (NSW) 107.
4 Galluzzo T/As Riverwood Chemworld Chemist v Dianne Little (No 2)[2012] NSWSC 324 at [19]) and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.

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