Trazivuk v Motor Accidents Authority of New South Wales

The case of *Trazivuk v Motor Accidents Authority of New South Wales* concerned a claimant seeking a further medical assessment for non-economic loss following a motor vehicle accident. The claimant had received an initial assessment that fell below the threshold for non-economic loss. Two decisions by a claims assessor had refused to refer the claimant for a further assessment under section 62 of the *Motor Accidents Compensation Act*. The claimant argued that these refusals constituted jurisdictional error.

The primary legal issues before the court were whether the claims assessor had erred in law in refusing to refer the claimant for a further medical assessment. Specifically, the court considered whether the assessor had incorrectly interpreted their powers, failed to address the claimant's assertions of procedural unfairness and bias, and whether the reasons provided for the refusals were legally sound. The court also examined whether the assessor had correctly applied the principles established in *Stead* regarding the threshold for non-economic loss and whether any identified errors, if they existed, were material to the outcome.

The court, by majority, found no jurisdictional error in the claims assessor's decisions. Regarding the first refusal, the court determined that the assessor had not misread the claimant's assertions and was entitled to consider whether a fresh assessment would likely alter the outcome concerning the non-economic loss threshold. The court held that a denial of procedural fairness was not determinative of whether a further referral was warranted. The assessor's consideration of the bias allegation was also found to be adequate. The second refusal was not vitiated by adopting the reasons for the first, nor by a failure to consider the risk of injustice. Even if the assessor's reasoning regarding the conditions for a further assessment was flawed, the majority found it to be immaterial because no new circumstances justifying a referral had arisen since the first refusal. Furthermore, the majority concluded that the *Stead* test had been satisfied.

Leave to appeal was granted, and the filing of the notice of appeal was dispensed with. The appeal was dismissed with costs.