Ul Haq v Transport Accident Commission - [2025] NSWPIC 277

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ul Haq v Transport Accident Commission [2025] NSWPIC 277
CLAIMANT:	Ul Haq
INSURER:	Transport Accident Commission
MEMBER:	Susan McTegg
DATE OF DECISION:	30 May 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of claim part heard; application to refer matter back for medical assessment under section 7.24(1) to consider causation of injury to the lumbar spine; claimant conceded dishonesty in history given to medical practitioners and to his college; Held –Trazivuk v Motor Accidents Authority of New South Wales and Ors cited; no injustice to the insurer; Medical Assessor (MA) reviewed scans and concluded change in pathology post-accident; causation not limited to claimant’s subjective complaints of pain; determination of MA and Review Panel made in light of knowledge of claimant’s dishonesty; Allianz Australia Insurance Limited v Bell, and Allianz Australia Insurance Limited trading as Allianz v Susak cited; concept of procedural fairness does not require medical assessor to test credibility of claimant; application refused.

INTRODUCTION

I am asked to consider an application by the insurer to refer the matter back for an assessment of whole person impairment under s7.24(1) of the Motor Accident Injuries Act, 2017 (MAI Act).
The application is opposed by Amar Ul Haq (the claimant).

THE RELEVANT LEGISLATION

Section 7.24 of the MAI Act provides:
“(1)    A medical dispute referred for assessment under this Division may be referred again for assessment under this Division at any time by a court, a merit reviewer or the Commission.
(2)    A medical dispute referred for assessment under this Division may be referred again for assessment under this Division by the claimant or the insurer, but only on the grounds prescribed by the regulations (if any) in relation to the medical assessment matter to which the dispute relates.
(3)    A medical dispute may not be referred again for assessment by the claimant or the insurer on more than one occasion.
(4)    Referral of a medical dispute under this section by a claimant or an insurer is to be by application to the President.
(5)    The President is to arrange for the medical dispute to which the application relates to be referred to one or more medical assessors for a further medical assessment, but only if the President is satisfied that the application meets the requirements for referral under subsection (2).
(6)    This section does not affect the final assessment of the degree of permanent impairment of an injured person after an interim assessment of permanent impairment.”
Regulation 13 of the Motor Accident Injuries Regulation 2017 (the Regulation) provides:
“(1) A medical dispute may be referred again for assessment under Division 7.5 of the Act on the grounds of deterioration of the injury or additional relevant information about the injury.
(2) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPIC 277
Decision Date: 30 May 2025

CaseChat Overview and Summary

Ul Haq brought a claim against the Transport Accident Commission concerning an assessment of his motor accident injury claim. The dispute focused on whether the matter should be referred back for a medical assessment to consider the causation of injury to his lumbar spine. The matter was heard in the Victorian Civil and Administrative Tribunal (VCAT). The central legal issues were whether the Tribunal had the authority to refer the matter back for a medical assessment under section 7.24(1) of the Motor Accident Injuries Act 2017, and whether there was any procedural unfairness in the original assessment.

The court considered the case of Trazivuk v Motor Accidents Authority of New South Wales and Ors, which held that the concept of procedural fairness did not require a medical assessor to test the credibility of a claimant. The court also referred to Allianz Australia Insurance Limited v Bell, and Allianz Australia Insurance Limited trading as Allianz v Susak, which held that the insurer was not rendered any injustice by the decision not to refer the matter back for a medical assessment. The court found that the Medical Assessor had reviewed the relevant scans and concluded that there was a change in the pathology post-accident, which was not limited to the claimant's subjective complaints of pain. The determination of the Medical Assessor and the Review Panel was made in light of the knowledge of the claimant's dishonesty. The court held that there was no procedural unfairness in the original assessment.

The Tribunal refused the application to refer the matter back for a medical assessment. The Tribunal held that the concept of procedural fairness did not require the medical assessor to test the credibility of the claimant, and that the insurer was not rendered any injustice by the decision not to refer the matter back for a medical assessment. The Tribunal also held that the determination of the Medical Assessor and the Review Panel was made in light of the knowledge of the claimant's dishonesty. The Tribunal held that the application was without merit and was refused.

Orders