Australia: Are mas treatment disputes binding on cars?: Yes ... for the most part!

Curwoods Case Note
Last Updated: 19 April 2013
Article by Laura D'Alessandri and Renée Sadler

Insurance Australia Group Ltd t/as NRMA Insurance v Motor Accidents Authority of NSW [2013] NSWSC 318

Judgment date: 11 April 2013
Jurisdiction: New South Wales Supreme Court1

In Brief

  • MAS Treatment Disputes are binding on CARS Assessors.
  • CARS Assessors are not required to address every piece of evidence before them in their reasons.


The plaintiff suffered severe injuries to his right ankle and right foot in a motor vehicle accident on 14 December 2007. There was no issue as to liability and the claim proceeded to assessment under the Claims and Assessment Resolution Service (CARS) system.

The plaintiff underwent multiple Medical Assessment Service (MAS) Assessments, including a treatment dispute which was assessed by MAS Assessor Gibson who was asked to determine the following:

"28.5 to 34.5 hours a week of domestic assistance arising out of the injuries to the right ankle and foot with washing clothes, placing them on line or in dryer and ironing, vacuuming, dusting and making beds, cleaning bathrooms, cooking evening meal, cleaning the kitchen, washing dishes, shopping, assistance with personal care for showering, getting on and off toilets, chairs and bed and handyman work and gardening from the date of the accident to the date of MAS Assessment ... are reasonable and necessary in the circumstances."

MAS Assessor Gibson issued a MAS Certificate concluding that the listed domestic assistance for the periods indicated was not reasonable and necessary.

The matter was thereafter the subject of a CARS Assessment Conference following which, amongst other heads of damage, CARS Assessor White awarded the plaintiff $165,600 for past attendant care and $739,328 for future attendant care.

In making this award, CARS Assessor White assessed damages for past attendant care services on the basis of a need for an average of 30 hours per week on a gratuitous basis from the date of the accident to the date the Assessment Conference. Thereafter, Assessor White assessed the care requirement at 23 hours per week with 6 hours' gratuitous care and 18 hours' paid care on a commercial basis.

The Insurer filed a Summons in the Supreme Court seeking that the Decision of Assessor White be quashed. The matter was listed before his Honour Justice Harrison.

Grounds of Judicial Review

The Insurer sought Judicial Review on 4 grounds:

  1. The CARS Assessor did not properly consider and apply the findings of the MAS Treatment Dispute;
  2. The CARS Assessor misstated a Submission made by Counsel for the Insurer;
  3. The CARS Assessor failed to refer to medical evidence;
  4. The CARS Assessor failure to note an error in Ms Smith Occupational Therapist)'s approach to future care.

Whether the CARS Assessor properly considered and applied the findings of the MAS Treatment Dispute

The Insurer submitted that the Certificate of MAS Assessor Gibson was conclusive evidence as to domestic assistance and was binding on the CARS Assessor. This was accepted by the plaintiff. The plaintiff however submitted that a distinction should be drawn between the matters certified by the MAS Assessor and those allowed by the CARS Assessor. In particular, MAS Assessor Gibson was not asked to consider assistance with driving, whereas CARS Assessor White allowed 7 hours' driving assistance in her award for past gratuitous assistance. The plaintiff therefore submitted that the CARS Certificate was not necessarily inconsistent with the findings of the MAS Assessor.

Justice Harrison noted that CARS Assessor White made no mention of the MAS Certificate and, in the absence of an explanation in her reasons, he found that the CARS Determination appeared inconsistent with the MAS Certificate.

Justice Harrison found that CARS Assessor White was bound to have considered the MAS Certificate and therefore by not mentioning it had failed to provide adequate reasons, thereby falling into jurisdictional error.

Whether the CARS Assessment misstated a Submission made by Counsel for the Insurer

The Insurer submitted that CARS Assessor White erred by misstating the submission of Mr Ryan, Counsel for the Insurer. In her reasons she stated "Mr Ryan for the Insurer does not rely on the opinion of Ms Beaver". The Insurer submitted that this statement indicated that the Insurer had disposed of its reliance on this report in its entirety, which was not the case.

Justice Harrison found that regardless of this statement, as CARS Assessor White had addressed the correct issue which was before her, ie whether the need for weekly care was greater than 6 hours per week, there was therefore no error of law nor was there a denial of procedural fairness.

Whether the CARS Assessor failed to refer to medical evidence

The Insurer submitted that CARS Assessor White erred by failing to refer to the opinions of Dr Adler and Dr Breit and, in particular, provide reasons as to why their opinions were rejected.

Justice Harrison found that CARS Assessor White's reference to having read all the medical evidence, statements and hearing from the plaintiff was sufficient and that it was not necessary for her to have referred to all the reports and to every piece of evidence presented.

Whether the CARS Assessor failed to note an error in Ms Smith's (Occupational Therapist) approach to future care

The Insurer submitted that CARS Assessor White erred by failing to refer to the error made by Ms Smith, Occupational Therapist, who based her opinion on that of Dr Adler who had assessed the plaintiff's whole person impairment at 46% (significantly higher than the MAS Determination).

Justice Harrison reiterated that it was not necessary for the Assessor to have referred to all the reports and to every piece of evidence presented.

Justice Harrison ordered that the Decision of CARS Assessor White be quashed, based on the first ground sought by the Insurer, and the plaintiff's claim be remitted back to CARS.


This decision confirms the conclusive and binding nature of MAS Determinations, but only insofar as to the issues they certify.

In appropriate cases, consideration should be given to lodging MAS Treatment Disputes relating to claimants' care claims. It should be ensured, however, that the MAS Assessor is asked to certify all aspects of the claimant's care claim.


1 Harrison J

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