Australia: MAS Referrals Cannot Be Confined So As To Exclude Consideration Of Causation

Curwoods Case Note
Last Updated: 27 April 2010
Article by Andrew Gorman

Motor Accidents Authority of NSW v Mills [2010] NSWCA 82

NSW Court of Appeal1

In Brief

  • A Court or Claims Assessor does not have the power to bind a Medical Assessor on the issue of causation.
  • A certificate under Pt 3.4 of the Act of the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is conclusive evidence of the degree of that permanent impairment and its causation by the motor accident.


Mr Mills alleged that he injured his back in a motor accident which occurred on 10 April 2000. This was disputed by the Nominal Defendant and the matter was referred to MAS. In December 2003 a MAS Assessor made a finding that no back injury was caused by the accident.

District Court of NSW – Coorey DCJ

During the course of the trial, the Court reached a finding that the back injury was caused by the accident and referred the question of impairment back to MAS for further assessment pursuant to s 62 of the Act. The order (which was made prior to October 2008) was in the following terms:

"The Court refers only the question of the extent of the plaintiff's whole person impairment and not the question of whether or not that impairment (or injury giving rise to it) was caused by the accident, the subject of these proceedings".

An application by MAA to intervene was subsequently granted but the Court declined to vary the order.

Court of Appeal – Giles JA, Tobias JA and Handley AJA

The MAA sought relief in the nature of certiorari on the basis of a jurisdictional error. It contended that the Court had no power to make the referral to MAS on terms which excluded the issue of causation.

Giles JA, with whom the others agreed, concluded:

"74. In my opinion, in doing so, his Honour went beyond the power conferred by s 62(1). That comes from the terms of s 62(1) and its place in the scheme as described in the preceding paragraphs. S 62(1) spoke of referral again of "a matter referred for assessment under this part". The original matter referred had both the elements of causation and of degree of permanent impairment. The section should be understood in accordance with its terms, that is, referral of that matter again. In accordance with the scheme, both elements were for the Medical Assessor, and the Court could not decide them. The Judge's finding made for the purpose of deciding that there should be referral again under s 62(1) did not bind the parties in the assessment, and he could not make an order binding on the parties to prevent the Medical Assessor determining the issue of causation".

In answer to Mr Mills' submission that it was inappropriate for a Medical Assessor to make binding conclusions on causation which could well involve non medical issues including the credit of the injured person, the Court gave the following response:

"79. The submissions face the difficulty that the degree of permanent impairment as a result of the injury caused by the motor accident (s 58(1)(d); s 131) was unequivocally for the Medical Assessor, including the element of causation. That was accepted in Pham v Shui at [96] and it was correctly so held in Ackling v QBE Insurance (Australia) Limited [77] [79]. The legislature accepted such constraints as there may have been on investigation or being provided with materials, and dealt with that amongst other possible deficiencies in a medical assessment by what I have called the safety valve of a Court's power to refer again. The legislature having chosen to provide the threshold in s 131 of the Act and brought it within the scheme for medical assessment under Pt 3.4, the possibility of anomaly was met by the safety valve".


On the face of it, the prohibition on a Court or CARS Assessor of binding a MAS Assessor on causation may give rise to injustice. The Medical Assessor has, after all, limited scope for testing a claimant's credibility and fairly evaluating competing evidence as to the cause of impairment. However, the legislature created a safety valve in the form of the power to refer again under s 62(1)(b). Relevant evidence and submissions can be put to MAS as part of the referral. Such a referral is not constrained by the need to demonstrate deterioration or additional relevant information within the confines of s 62(1)(a). The availability of that mechanism should not be overlooked.

Whilst it was not essential to their determination in this case, the Court of Appeal has given a strong indication that the conclusiveness of a certificate on the issue of causation is now settled. This would appear to apply equally to certificates issued under the post October 2008 scheme.

1 Giles JA, Tobias JA, Handley AJA

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.

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