Motor accident benefits referral dismissed: no expense claimed and no decision to review (TASCAT, 2026)

What happened

The applicant and her son were in a motor vehicle accident on 30 November 2010, when her stationary car was hit from behind by a truck. Under the Tasmanian motor accident compensation scheme, that gave them an entitlement to certain benefits from the Motor Accidents Insurance Board (the Board) for injuries from the accident. Those benefits are called "scheduled benefits" — a list of payments, including medical, psychological and therapeutic costs, set out in regulations.

On 21 January 2026 the applicant filed a referral with the Tribunal. A referral is the way a person asks the Tribunal to review what the Board has decided or paid. Her referral did not name any particular payment or entitlement the Board had withheld. Instead it said the Board had not rehabilitated her and her son back to their pre-injury condition of living independently, that her parents had provided unpaid care and support for 15 to 16 years, and it asked why the Board had not returned them to that condition.

The Board arranged for the applicant to be assessed by a consultant clinical neuropsychologist in January 2026. His report, which the Tribunal read for context, concluded there was no evidence she had sustained a traumatic brain injury, that her cognitive function was intact, and that she had attributed difficulties that were psychological in nature to a brain injury. He recommended she see a clinical psychologist with expertise in functional neurological disorder.

The matter went through a directions hearing, a conciliation conference and a teleconference, none of which resolved it. The decision records that the applicant found the process very difficult, that the Registry sent her the Tribunal's Trauma Informed Practice sheet and invited her to say what would make her more comfortable, and that she had contacted a range of service providers who could not assist her. The Board then raised a jurisdiction objection in writing. Directions were made for both sides to file submissions on that point. The applicant filed none. The applicant's son took no direct part, and the Tribunal noted the material did not show any basis on which she could run the case for him.

What each side wanted

The applicant argued that the Board had failed in what she said was its duty to return her and her son to their pre-injury condition, or as close to it as possible, and asked the Tribunal to address that failure. The Board argued the Tribunal could not deal with the referral at all: she had not made a claim for a scheduled benefit, the Board had not refused to pay one, and the Board had made no determination about her entitlement, so she was not a "person aggrieved" under either limb of s 28(2) of the Motor Accidents (Liabilities and Compensation) Act 1973.

What the tribunal decided

The Tribunal made a single order: "The applicant's referral is dismissed." No money was ordered to be paid by either side, and the published orders record no costs order.

The Tribunal dismissed the referral under s 89(1)(a) of the Tasmanian Civil and Administrative Tribunal Act 2020, which allows a proceeding to be dismissed if it is misconceived or lacking in substance. It held the referral did not raise a justiciable issue — that is, a question the Tribunal has legal power to answer — and that it could not be amended into one.

The Tribunal added that its decision said nothing about whether the applicant or her son still experience consequences of the accident, or about their entitlement to scheduled benefits generally.

Why the tribunal decided it that way

Section 28(1) of the Motor Accidents (Liabilities and Compensation) Act 1973 gives the Board the job of deciding whether a person is in a class who may be paid scheduled benefits, whether they have a right to a particular benefit, and how much. Section 28(2) then lets a person who is aggrieved refer the matter to the Tribunal in two situations: where the Board has made a determination under s 28(1), or where the Board has refused or failed to make a payment of a scheduled benefit. The Tribunal's role under that section is to review what the Board has done; the Act does not give it a general power to tell the Board how to run a person's rehabilitation.

The Tribunal first satisfied itself that it had jurisdiction to deal with the referral at all, applying the approach in an earlier Supreme Court decision which treated the question as one of evidence rather than jurisdiction once a matter has been referred. It then applied the reasoning in Hall v Motor Accidents Insurance Board, where it was held that the Board has no legal obligation to pay medical expenses unless they have actually been incurred and are reasonable and necessary, and that before a referral based on a refusal to pay, the expense must have been incurred and the refusal notified to the claimant. The Tribunal said it adopted that reasoning but with reservations, noting observations by a Supreme Court judge in Rush that a strict application of Hall could create practical, financial and procedural difficulties for claimants, and that the correctness of Hall had not been argued.

Even allowing for the possibility that the Tribunal could deal with an identified future expense, the applicant had identified no expense at all — none incurred, none prospective, and no treatment or therapy that might lead to one. The Board had neither refused a payment nor made a determination that she or her son were not entitled to benefits. Her referral was, in the Tribunal's words, a contention that the Board had not caused them to recover, without identifying the steps the Board should take.

The Tribunal described the referral as a plea for assistance it had no power to entertain. It is a creature of statute, with no inherent power to make declarations or to require the Board to act in general terms. Until the Board refuses to pay an expense that has been incurred, or determines that a person is not entitled to scheduled benefits, or perhaps refuses to indemnify an identified future expense, there is nothing for the Tribunal to decide. On the son's position, the Tribunal noted he was four at the time of the accident almost 16 years earlier, so he was not a child whose parent could act for him under reg 5 of the Motor Accidents (Liabilities and Compensation) (Tribunal) Regulations 2019, though nothing turned on that given the outcome.

What this means if you are in a similar position

If you are in a similar position with a statutory compensation body, this decision shows how narrow a review right can be. A tribunal that exists to review decisions can usually only act once there is a decision to review: a specific claim that was made, and a specific answer that was given. A general sense that the organisation has not done enough, however genuinely felt, is not something the tribunal has power to rule on, because the legislation does not give it a power to supervise how a scheme is run.

It also shows why the paperwork trail matters. The Tribunal here could point to no expense, no treatment, no invoice and no written refusal. The decision records that in the motor accidents scheme the obligation attaches to costs that have been incurred and are reasonable and necessary, so the claim and the response to it are what create something a tribunal can look at. The Tribunal was careful to say that dismissing the referral did not decide anything about whether the applicant or her son were entitled to benefits, and the Supreme Court observation it quoted noted there was nothing stopping a claimant putting a further or different claim for expenses to the Board.

In practice, most people in this kind of dispute start by putting the claim to the insurer or scheme in writing — setting out the injury, the specific treatment or expense, and what is being asked for — so that there is a clear written claim and a clear written answer. If the answer is a refusal and the person disagrees with it, that is the point at which an application or referral to the tribunal is normally made.

How to apply: our step-by-step guide to a TASCAT application. More decisions: TASCAT cases and other civil disputes.

Source: Kirk v Motor Accidents Insurance Board [2026] TASCAT 137 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.