Issued under s 7.36(1) of the Motor Accident Injuries Act 2017

1. On the issue of liability for the claim, the insurer's insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty.
2. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act 2017, I specify the amount of damages for this claim as $2,177,315.
3. The amount of the claimant's costs, taking into account the amount of damages assessed in respect of this claim is $111,777.09 inclusive of GST.
4. Attached to this certificate are reasons for my assessment.

Issued under s 7.36(1) of the Motor Accident Injuries Act 2017

1. On 18 July 2019 Amar Ul Haq (claimant) sustained injury in a motor vehicle accident. His vehicle was stationary at a red light when the insured's vehicle reversed into the front of his vehicle at low speed (the accident).
2. The claimant alleges he sustained the following injuries:

(a) injury to the cervical spine;

(b) injury to the lumbar spine, and

(c) psychological injury.

1. I am asked to assess damages pursuant to the provisions of the Motor Accident Injuries Act 2017 (the MAI Act) in respect of the injury sustained by the claimant.
2. Transport Accident Commission (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the MAI Act. The insurer has admitted liability for the claim.
3. I am asked to assess damages in respect of the following:

(a) non-economic loss;

(b) past economic loss, and

(c) future economic loss.

(a) the reliability of the claimant's evidence;

(b) the injury sustained by the claimant, and

(c) the extent of the claimant's incapacity for work.

1. The matter was listed for assessment conference on 6 March 2025. The claimant was represented by Mr Del Monte of counsel instructed by Mr Stephen Matthews and Ms Fatima Reslan of Turner Freeman, Lawyers. The insurer was represented by Mr John Turnbull, senior counsel instructed by Ms Wendy MacDonnell of Holman Webb, Lawyers.
2. Mr Del Monte did not seek to rely upon any further oral evidence of the claimant but relied upon the claimant's statements dated 14 November 2019, 26 March 2020, 12 April 2021,

30 November 2021, 11 May 2023 and 14 February 2025. 3. The claimant was cross examined by Mr Turnbull. 4. At the end of the cross-examination Mr Turnbull sought an adjournment to obtain a transcript of the claimant's evidence to enable the insurer to determine if an application was to be made to the Personal Injury Commission (Commission) to refer the matter for further medical assessment as to permanent impairment pursuant to s 7.20 of the MAI Act in relation to both the physical and psychological injury. 5. The adjournment was granted where it was not opposed by the claimant on the basis the insurer agreed to pay Mr Ul Haq an advance of $30,000 and where it was agreed Mr Turnbull will not cross-examine Mr Ul Haq further if the application for a further medical assessment was refused. 6. On 15 April 2025 an application was made by the insurer to refer the matter back for an assessment of permanent impairment. That application was opposed by the claimant. 7. On 30 May 2025 I issued an interlocutory determination where I declined to refer the matter for a further assessment of permanent impairment pursuant to s 7.24(1) of the MAI Act. 8. The matter was listed for a further preliminary conference on 17 June 2025. I was informed there would be no further evidence only oral submissions. I directed the insurer to upload written submissions by 15 July 2025 and the claimant to upload written submissions by

12 August 2025. On the basis the parties wished to make additional oral submissions the matter was listed for a further assessment conference on 24 October 2025 noting it would only take one to two hours. 9. On or about 2 September 2025 the claimant uploaded a message to the portal indicating counsel was unavailable on 24 October 2024 and asking if the matter could be relisted for teleconference late in the afternoon if necessary to address any issues raised. In response I suggested I was happy for any further date to be left in abeyance on the basis it can be slotted in late one afternoon at short notice if it is necessary to clarify any issue. On that basis and noting I had a period of scheduled leave approaching I suggested I would issue a decision no later than 31 October 2025. The response received from the insurer suggested there was some confusion as to what was proposed. 10. Accordingly, I listed the matter for a preliminary conference on 9 September 2025. I was informed the parties did not wish to make further oral submissions. I made the following directions: * I vacate the assessment conference listed on 24 October 2025; * I will provide my certificate and reasons for decision on or before 31 October 2025, and * I will relist the matter if necessary to raise any further matter with the parties.

1. The claimant provided statements dated 14 November 2019, 26 March 2020, 12 April 2021, 30 November 2021, 11 May 2023 and 14 February 2025. He also gave evidence when the matter was listed for assessment conference on 6 March 2025.
2. The claimant was 24 years of age at the date of accident and is now 31 years of age. He is married with two young children.
3. The claimant sustained injury to his lower back and underwent an L4/5 discectomy and laminectomy in Pakistan in 2012.
4. The claimant competed a Bachelor of Commerce in Pakistan in 2015.
5. Between 2015 and 2016 the claimant worked as a procurement manager in a restaurant in Pakistan called Howdy Restaurant.
6. The claimant came to Australia in 2016 on a student visa. On arrival in Australia the claimant enrolled in a Master of Commerce at Charles Sturt University.
7. Between mid-November 2016 and mid-September 2017, the claimant worked as an on-site co-ordinator for a warehouse called Mate Workforce where he was responsible for managing and training the employees.
8. Whilst not referenced in his statements the claimant was questioned about his attendance on Dr Prasad on 7 July 2017. He agreed he attended Dr Prasad complaining of low back pain because he wanted time off college, having failed three subjects. He agreed he had lied to the doctor about pain in his back. He also conceded he lied to the university about the reason he wanted time off.
9. Records from Charles Sturt University demonstrate the claimant's application for a leave of absence was because he could not concentrate on his studies because of back pain and he had failed three subjects in two semesters because of the pain. He stated his doctor recommended he take a rest. He was granted leave of absence from 24 July 2017 to

27 October 2017. In an email dated 6 September 2017 the university identified the claimant's unsatisfactory progress but offered him one more chance to prove his academic ability. His Academic Transcript shows the claimant had enrolled and withdrawn from nine subjects from 2016 to 2018. 10. The claimant worked at a BP Service Station at Smeaton Grange from November 2017 until May 2018. From May 2018 until March 2019 the claimant worked as a driver for Uber, Uber Eats and Ola. 11. Between March 2019 and the accident date the claimant asserted he worked as an on-site co-ordinator for Pro Cleaning, although tax invoices furnished by the claimant show he worked as a sub-contractor for Proclean NSW Pty Limited (Proclean). Mr Ul Haq states he was earning approximately $1,000 to $2,000 per week. 12. The claimant changed his course of study enrolling in a Master of Business Administration (MBA) at Universal Business School Sydney, part of Group Colleges Australia. The course dates were 7 May 2018 to 1 May 2020. Mr Ul Haq stated he had completed five subjects and expected to complete the course by the end of 2020. 13. Mr Ul Haq reported he married in December 2018, and his wife and his in-laws insisted he go to Pakistan to meet them. He also wanted to visit his father who was recovering from surgery and to assist his brother with his engagement. 14. He took a break during Semester 1 in 2019 and had planned to resume his studies in the next semester which was due to commence in early August 2019. There are several inconsistencies in relation to the claimant's evidence associated with this study break. 15. In his statement dated 14 November 2019 the claimant stated as follows:

"13. After the surgery to my lumbar spine in 2012 I was coping well.

1. On occasion I would get some minor back pain following the surgery however for the majority of the time it was OK and it did not prevent me from working or studying.
2. I note that in early 2019 I did consult a doctor regarding some lower back pain and I was referred for an MRI. However that pain was not ongoing and I did not end up seeking review with any specialist as I did not have any significant ongoing lower back pain."
3. In his statement dated 12 April 2021 the claimant stated as follows:

"20. On 15 January 2019 I consulted Dr ChingChing Zhao and complained of back and neck pain as I knew I would need to apply for time off college.

1. At the time, I was experiencing some back pain as a result of my previous injury for which I underwent surgery in Pakistan in 2012. This was not unusual or uncommon and the pain was not constant but only occurred from time to time.
2. I obtained an MRI referral from Dr ChingChing Zhao during my consultation with him on 15 January 2015.
3. On 22 January 2019, I underwent an MRI scan on my back and neck and I returned to Dr Zhao on 24 January 2019 for a review.
4. Dr Zhao referred me to a specialist, Dr Randolf Gray, however I never made an appointment to see him or any other specialist as my back pain was very mild, occasional and manageable. It was not a great concern for me and did not cause me problems.
5. On 13 February 2019, I applied to reduce my study load and continue at one unit per semester instead of three.
6. I knew that I would not be able to manage a full study load while travelling to Pakistan.
7. However, it is very difficult to apply to reduce my study load. It was easier to say that I wanted to reduce my study load due to medical reasons rather than wanting to go overseas to see family for personal reasons.
8. My father told me that I should go to the GP and also get a referral for an MRI to submit to college as he believed it would be easier to get approval for a study load reduction if I had an MRI.
9. ...
10. Although it was true that I had some occasional back and neck problems, this was not the main reason why I chose to reduce my study load.
11. I chose to reduce my load so that I could go to Pakistan to satisfy my family commitments.
12. My previous back and neck pain was not constant or extremely painful. It was very manageable and it did not affect my studies, work or daily life in general."
13. Mr Ul Haq agreed he only attended the Universal Business School for the first three and a half months at 16.1% of the time. He said that was because he was working and he had to work so he could pay the fees. He was unable to recall whether his attendance for the following four months was only 29.5% of the time. He agreed his attendance at 40.6% of the time between 21 January 2019 and 3 May 2019 was because he was working and because he travelled to Pakistan.
14. When cross examined during the assessment conference Mr Ul Haq agreed he lied when he told Dr Zhao on 15 January 2019 that he had a slow increase in back pain running down his right leg. He conceded he needed a deferment from the Universal Business School whilst he travelled to Pakistan and he thought the easiest way to do that would to be to get an MRI, and say he had problems with his back that needed treatment. He stated it was true that he was using his back as an excuse to get time off college. When asked whether he did have pain in his back at that time Mr Ul Haq said "very occasionally".
15. Significantly, the claimant told Dr Home that whilst he had intermittent symptoms of low back pain, he could not recall leg symptoms. Dr Home reported the claimant said he had undergone the MRI scan in January 2019 to satisfy requirements to travel to Pakistan and to obtain a clearance certificate.
16. Mr Ul Haq stated prior to the accident he had rare pain in his back, occurring maybe once a month.

1. In his 12 April 2021 statement Mr Ul Haq states on 18 July 2019 his vehicle was stationary at a red light when the vehicle in front of him reversed at speed into the front of his vehicle. He said as a result his car moved backwards and his body forcefully lunged forwards and backwards. He reported the front side bonnet, bumper bar and front panel of his car was damaged. Following the collision, he experienced pain in his neck and back which has continued to increase together with pain going down his arms and legs.

1. Mr Ul Haq says he has been unable to work in any capacity since the accident. He also asserts he has been unable to return to study.
2. Mr Ul Haq described constant pain in his neck and back and difficulty with lifting, carrying, bending, crouching and twisting. He reported difficulty with strenuous tasks including cooking and cleaning.
3. He reported extreme difficulty with sleeping with initial and middle insomnia.
4. He reported headaches and limitation in driving, although his licence has now been suspended. He reported difficulty with concentrating, noting he was in constant pain and discomfort.
5. Mr UI Haq stated he experienced depression and had flashbacks. He has become irritable and frustrated. He described being emotionally volatile, moody and easily triggered.
6. Mr Ul Haq reported not working has taken a toll on his mental health and his family has been financially strained.
7. Mr Ul Ha q consulted Dr Bisham Singh and on 8 August 2020 he underwent L4/5 decompression and fusion performed by Dr Khong. In his statement dated

30 November 2021 Mr Ul Haq stated he had had a poor outcome from the lumbar fusion surgery, and he continued to experience debilitating pain. A spinal stimulator was approved by the insurer. He reported he started to use a walking stick to assist his mobility although in his statement dated 14 February 2025, he said he had recently stopped using the walking stick due to pain in his right wrist. 8. He has undergone injections to his cervical spine and came under the care of Dr Alister Ramachandran, pain management specialist who he consulted for the first time on

4 November 2020. 9. Dr Ramachandran inserted a spinal stimulator on 18 January 2022 and again on

13 December 2022. The claimant stated the spinal stimulator had only a limited effect on reducing his pain. He also trialled medications including Endone, Naprosyn, Targin, Panadeine Forte and Lyrica. These medications were not beneficial and have ceased. 10. The claimant and his family moved to Dubbo in May 2022 when his wife obtained full time work there. 11. The claimant consulted Dr Bijay Pandey at Wellington Medical Centre and commenced medicinal cannabis. 12. The claimant states his psychological state continued to decline. On 10 October 2022 the claimant asserts he attempted to commit suicide by overdosing on his prescription medications. He was taken by police and ambulance to Dubbo Base Hospital under the Mental Health Act 2007 (NSW). He was discharged on 12 October 2022. 13. Mr Ul Haq was questioned about the alleged suicide attempt in October 2022. He said it was a suicide attempt although conceded he told the hospital that he'd taken an increase in his medication because he had pain and acute stress regarding insurance but had no intention to commit suicide. 14. The claimant consulted Dr Al Khawaja due to ongoing back pain on 20 March 2023. The claimant underwent further surgery, namely a second posterior L4/5 fusion and osteotomy under the care of Dr Al Khawaja on 24 May 2023. He underwent rehabilitation including physiotherapy under the care of Dr Ahmed Hassan at Matilda Rehab Centre returning home in June 2023. 15. In October 2023 Dr Al Khawaja recommended physiotherapy. The claimant attended Megan Veraing at Precision Healthcare in Dubbo. He reported ongoing numbness at the top of his feet as well as increased burning in his legs. He complained of thoracic spine pain and pain in his back. He also attended hydrotherapy numerous times. He was prescribed medicinal cannabis which resulted in the suspension of his driver's licence. 16. Mr Ul Haq reported he returned to see Dr Al Khawaja in April 2024 with no improvement in his back pain. He stated whilst the results of a SPECT scan were normal his pain was abnormal. He underwent review with Dr Ramachandran. 17. In his statement dated 14 February 2025 the claimant stated he: * has constant lower back pain radiating into his legs and toes; * has numbness and burning in his legs and toes about five or six times a week; * has weakness in his legs; * has pain exacerbated by prolonged sitting, standing and walking; * has difficulty lifting, carrying and bending; * struggles to stand for longer than 10 minutes before he starts to feel pain; * feels an intense aggravation of pain when sitting; * needs support with dressing in underwear, tight pants and t-shirts; * struggles with washing himself below the waist; * has trouble putting on shoes and socks and tying shoelaces; * struggles to participate in domestic chores; * feels depressed most of the day; * has lost friendships and his relationship with his wife has become strained; * avoids talking to family and feels embarrassed by his condition; * becomes overwhelmed and stressed and cries often; * has lost interest in activities and rarely attends outings; * is isolated and remains quiet and disengaged; * is anxious about leaving the house, although he goes to the shops with his wife two or three times a week * showers only every two days and has irregular eating patterns; * constantly feels exhausted with interrupted sleep; * finds it hard to concentrate including when reading or watching television; * feels hopeless and worthless; he feels he has let his family down and has lost confidence in his recovery, and * cannot drive because his licence has been suspended due to his cannabis use but even before it was suspended, he could only drive in his local area. 18. Mr Ul Haq stated he smokes three to four cannabis cigarettes daily to help with pain although it leaves him feeling disorientated and detached. He says the cannabis helps him to function physically. 19. Mr Ul Haq stated he has not had any capacity for work since the accident and that his condition has continued to worsen. He does not consider he has either the physical or psychological capacity to maintain employment. 20. Mr Ul Haq stated he relies upon his wife and his sister-in-law to attend to parenting and house duties. He received statutory payments from the insurer until July 2024 when they ceased. 21. In his statement dated 14 February 2025 Mr Ul Haq commented on the surveillance footage relied upon by the insurer. In footage dated 30 January 2024 the claimant is seen in his driveway with another man beside a boat he says he purchased in the middle of 2023. The footage shows Mr Ul Haq selling the boat. He states at the time he was taking cannabis and Gabapentin. Mr Ul Haq stated he purchased the boat in the hope he could spend time with his family on the lake and improve his mental health. He stated:

"Unfortunately, the boat was a disaster. I couldn't physically do what I need to do with the boat to get it into and out of the water. I found even the slightest movement in the boat painful. I became short tempered and angry and fought with my family because of this".

1. Mr Ul Haq was questioned at the assessment conference about this footage. He could not recall if he was able to bend down and wind down the dolly wheel on the front of the boat although he conceded he helped lift up the trailer by bending over and helping to put it onto the tow ball. He also agreed he bent over to lift up a small plastic container of fuel and placed it in the boat using his right arm. When it was suggested that he was not struggling to stand when he was captured on the video Mr Ul Haq stated he was on cannabis which allowed him to move more freely.
2. When questioned about what he alleged he could not do to get the boat into the water Mr Ul Haq said he never took the boat to the water. When it was suggested to Mr Ul Haq that this statement was inconsistent with the assertion in his statement that he found even the slightest movement in the boat painful he purported to suggest he was referring to a test boat. Mr Ul Haq agreed he knew that driving a boat would cause him pain because that is what happened when he got his licence, but he still bought the boat, although he alleged that he never used it. I agree with counsel for the insurer that the claimant was dissembling in this evidence.
3. Mr Ul Haq stated there are occasions when he has to do something that causes discomfort, for example, he has had to mow the lawn on occasions, but he requires heavy medication and cannabis to do so. Following those activities Mr Ul Haq stated he requires rest and recovery. He also asserted he becomes disorientated due to the side effects of the medication.
4. Mr Ul Haq when questioned conceded he takes his prescribed medications every day. He was asked about his limitations at the assessment conference. He stated he could lift a three-litre bottle of milk but when he carries it from the car in the driveway to the kitchen he starts to feel pain. He stated this had been the case since soon after the accident.
5. Mr Ul Haq stated the problems with his neck had not got better since the accident. He has problems turning his neck left and right and problems looking up and down.

1. Mr Adil is currently employed as the CEO of Maranatha House Aged Care. He provided a statement dated 5 November 2024.
2. Mr Adil completed a Bachelor of Business Administration in India in 2017. He moved to Melbourne and completed a Master of International Finance and Accounting at Deakin University in 2019. He was initially employed by Deloitte Australia, interning there in his final semester before progressing to a casual contract role.
3. In September 2019 he commenced employment with Maranatha House Aged Care in Wellington. He was initially employed as a financial officer earning $45,000 plus superannuation per year. In August 2020 he moved into the position of human resources manager earning $70,000 to $90,000 plus superannuation per year. In about July 2022 he was appointed acting chief executive officer (CEO) and in November 2022 he was offered the contract role for the CEO earning $243,225 plus superannuation per year.
4. Mr Adil stated the claimant's educational background is similar to his own and in his opinion, if Mr Ul Haq had been physically and psychologically well, he would have been a strong candidate for the type of roles held by Mr Adil.
5. Mr Adil stated if Mr Ul Haq had completed his MBA, he would have considered employing him in a managerial position on a starting salary of $100,000 to $120,000 per year plus superannuation. After five years Mr Adil considered Mr Ul Haq would have been able to pursue CEO roles.

1. In the Application dated 26 July 2019 the claimant reported he was stopped at a red light when the vehicle in front of him reversed into the front of his vehicle.
2. He described his injuries as back and neck with pain going down arms and legs. In relation to any injury affecting the same or similar parts of his body the claimant recorded:

"Back and neck pain aggravated by accident. Lower back surgery in Pakistan in 2012".

1. Mr Griffiths provided a report at the request of the insurer dated 19 March 2021. He concluded given that the insured reversed into the claimant this should be regarded as a frontal impact. He notes the airbags did not deploy and the damage to the claimant's vehicle was limited to the top lock panel, the left headlamp panel and brackets, and the right headlamp panel and brackets. He concluded the velocity change undergone by the claimant's vehicle was between 5 and 10 km/h.
2. Mr Griffiths concluded the claimant could not and did not receive an exacerbation of his pre-existing cervical and lumbar pathology in the accident.

1. Mr Johnston provided reports at the request of the claimant dated 14 August 2022 and

2 April 2023. He reported the insured vehicle had some minor damage across the rear bumper cover. The cost of the repair was $1,672.83. A photograph of the claimant's taxi shows damage to the front grille, front bumper and the front of the bonnet. The cost of the repair was $4,881.24. 2. He concluded contrary to the opinion of Mr Griffith that the accident occurred at speeds between 12 and 13 km/h. Whilst it was a low-speed collision the claimant's pre-existing pathology made him more susceptible to injury and increased the statistical likelihood of long-term injuries.

1. The claimant sustained a lower back injury and underwent an L4/5 discectomy of the lumbar spine in Pakistan in 2012.
2. On 7 July 2017 the claimant consulted Dr Lakshman Prasad, general practitioner (GP) in respect of low back pain "worse since last night, gradually improving with rest". Dr Prasad reported difficulty in studying because of chronic pain. The records of Charles Sturt University record a leave of absence because of chronic back pain.
3. On 15 January 2019 the claimant saw Dr Zhao who recorded "since 2016 has had slow increase in back pain with right leg radiculopathy exacerbated". The claimant was referred for an MRI scan.
4. An MRI of the cervical spine dated 22 January 2019 concluded:

"There is a left lateral disc bulge at the C4/5 level resulting in narrowing of the left exit foramen. Therefore, on dynamic movement there may well be irritation of the left C5 root. No canal stenosis is seen at any level."

1. An MRI of the lumbar spine dated 22 January 2019 concluded:

"Previous right laminectomy at L4/5 level is seen. There does appear to be broad-based minor posterior recurrent disc bulge abutting the right L5 root as it emerges from the thecal sac. ... No canal stenosis is seen at any level."

1. On 24 January 2019 the claimant was reviewed by Dr Zhao who recorded that the report of pain was not consistent with the imaging. He recorded "patient originally stating back pain, neck pain radiating up to the head. Now also reporting intermittent left arm burning sensation, left thigh burning sensation, right shin burning/numbness". He referred the claimant to a specialist. The claimant did not consult the specialist because, he says, his symptoms resolved.

1. On 29 July 2019 the claimant consulted Dr Sebastian Calvache-Rubio, GP when he reported another vehicle reversed onto his taxi on 18 July 2019. In respect of pre-existing injuries, Dr Calvache-Rubio recorded "lower back and neck injury, L4/5 discectomy and laminectomy (2012)". He recorded the following symptomatology:

"Consistent headaches, worsening of previous neck pain and stiffness, radiating to L) shoulder and L) arm, burning sensation now happening more often. Worsening lower back pain radiating to bilateral hips and legs, L>R, pins and needles in L) foot, trouble sleeping, flashbacks, anxious and cautious to drive."

He diagnosed aggravation of cervical spine radiculopathy, aggravation of lumbar spine radiculopathy and acute stress disorder. He reported issues with driving, self-care and personal hygiene, and with domestic duties. He certified the claimant unfit for work and referred him to a physiotherapist, a psychologist and for MRI scanning.

1. On 28 August 2019 Mr Carl Neilsen, psychologist reported sleep disturbance, irritability, flashbacks, avoidance, hypervigilance, impairment memory and concentration. He also noted social withdrawal and restriction in recreational activities. He diagnosed post-traumatic stress disorder and recommended CBT (cognitive behavioural therapy) and exposure therapy.
2. The claimant underwent an MRI of the cervical spine on 23 September 2019. The report reads:

"Findings: Cervical lordosis is preserved. No fracture. No abnormal bone signal. The ligamentous structures are intact. Facets align normally. No cord oedema.

At C3/4 no central canal narrowing. Mild right sided foraminal narrowing secondary to uncovertebral disc.

At C4/5 there is no central canal narrowing. There is moderate to advanced narrowing on the left side secondary to uncovertebral disc. Mild narrowing on the right side.

At C5/6 no central canal narrowing. Mild narrowing of the right exit neural foramen secondary to facet disease in uncovertebral disc.

At C6/7 no central canal narrowing. No foraminal narrowing. At C7/T1 no central canal or foramina! narrowing.

Comment: There is foraminal narrowing on the left side at C4/5."

1. The claimant underwent an MRI of the lumbar spine on 24 September 2019. The report reads:

"Findings: There is straightening of the lumbar lordosis. Conus terminates at approximately Li level. No abnormal bone signal. No evidence of acute fracture. No listhesis identified.

L3/4: No central canal narrowing. Mild facet disease.

L4/5: There is disc dehydration at L4/5 with a broadbased disc bulge. This does not cause significant central canal narrowing. There is mild effacement of the lateral recesses however no overt impingement. No foraminal narrowing. Mild facet disease.

L5/S1: No central canal narrowing. No foraminal narrowing.

Disc dehydration at L4/5 level with minimal narrowing of the lateral recesses. No central canal or foraminal narrowing identified. Mild to moderate multilevel facet arthrosis."

1. On 11 October 2019 Dr David Khong, neurosurgeon reported the claimant presented with neck pain and bilateral arm pain, lower back pain and bilateral leg pain. He sought to reassure Mr Ul Haq that he may improve with non-operative management. He also recommended he try another neuropathic agent such as Lyrica or Endep if the Gabapentin did not work and an anti-inflammatory such as Mobic.
2. On 17 October 2019 Dr David Kumagaya, psychiatrist diagnosed an adjustment disorder with mixed anxiety and depressed mood. He noted a three-month history of depressive and anxious symptoms including a labile mood, irritability, decreased enjoyment in previously enjoyable activities, anxiety with his financial and employment situation, insomnia, and concentration difficulties. The claimant ruminated on the accident.
3. On 19 December 2019 Dr Kumagaya revised the diagnosis to major depressive disorder.
4. On 29 October 2019 the NSW Ambulance Service reported back pain with a mental health/behavioural problem.
5. On 22 January 2020 Dr Khong reported ongoing lower back pain radiating to the left thigh, numbness and burning of the posterolateral left thigh, pain and numbness in the left calf and top of the foot. He recommended surgery.
6. On 10 March 2020 Dr Bhisham Singh, orthopaedic and spine surgeon assessed the claimant and concluded his prognosis was guarded without surgical intervention. He agreed with Dr Khong that the claimant should undergo L4/5 decompression and fusion. On the cervical spine he reported the claimant had left sided foraminal stenosis secondary to disc bulging at C4/5, and right sided disc bulging at C3/4 with foraminal stenosis. He suggested he trial conservative treatment and injections but noted he may need cervical spine surgery should symptoms remain.
7. An MRI scan of the lumbar spine dated 23 July 2020 reported the following impression:

"Borderline progression of disc herniation at L4/5 level with potential irritation of traversing right L5 nerve root."

1. On 15 April 2020 Dr Kumagaya reported ongoing depressive and anxious symptoms with little improvement. He reported ongoing low mood, preoccupation regarding functional limitations, diminished interest in activities, diminished energy and sleep disturbance. He diagnosed major depressive disorder with anxious distress.
2. On 22 May 2020 Dr Khong reported worsening lower back pain radiating down both legs globally. He reported the presence of a black disc at L4/5 which was likely causing his pain. He was having great difficulty mobilising and need assistance even to go to the bathroom.
3. On 8 August 2020 the claimant underwent an anterior interbody L4/5 fusion under Dr Khong.
4. On 30 September 2020 Dr Khong reported Mr Ul Haq complained his back pain was worse after the surgery. His left leg pain had improved. Dr Khong recommended physiotherapy and referral to a chronic pain specialist.
5. An MRI scan of the cervical spine dated 12 November 2020 reported the following conclusion:

"C4/5 demonstrates left foraminal narrowing. Compared to the prior CT of 09/2019, there is no change in appearances."

1. On 21 April 2021 Dr Khong, reported the claimant felt his back pain was worse post-operatively. His leg pain had improved but he reported burning in soles of both feet. He reported left sided neck pain rated at 9/10 radiating to the left trapezius and left elbow. He recommended surgery, namely a left C4/5 foraminotomy.
2. On 18 June 2021 Dr Khong reported the claimant continued to complain of lower back pain and intermittent leg pain which he thought was getting worse. He noted the request for a left C4/5 foraminotomy had been denied.
3. The claimant was referred to Dr Alister Ramachandran, pain specialist. Following a trial the claimant had a spinal stimulator inserted on 18 January 2022.
4. On 16 March 2022 a psychologist conducted a telehealth consultation. It was reported the claimant had not seen any obvious improvement with the stimulator, but it could take around three months. He reported he felt stuck physically and mentally. He was cranky and irritable, he had no friends left, he had no social interaction, and no one liked him, his wife included. He expressed frustration with the insurer who questioned his capacity, people stared when he walked with a stick, he had lost intimacy with his wife, he tried hard to maintain his mood but was not optimistic and lacked hope for positive change.
5. On 10 October 2022 the claimant presented to Dubbo Base Hospital with Police and Ambulance under a mental health order following an overdose of medication. The clinical notes report the overdose was taken in the context of pain along with wanting to end his life although the hospital reported the impression was that "pain and acute stress regarding insurance led to increased medication use but with no suicidal intent".
6. On 6 December 2022 Dr Ramachandran reported the claimant's worsening pain had resulted in significant functional decline and he presented with high levels of depression. Problems listed including secondary deconditioning, fear and avoidance behaviour, tendency to catastrophize, litigation issues and multiple social stressors.
7. On 13 December 2022 the claimant underwent a spinal cord stimulator lead revision at Nepean Hospital. On 9 February 2023 he reported ongoing persistent pain.
8. Mr Ul Haq commenced treatment with Wellington Aboriginal Corporation on 22 July 2022 and on 13 February 2023 Dr Pandey, GP referred the claimant to the prescribing physician at CANN I HELP for medicinal cannabis. He also referred Mr Ul Haq to Ms Karen Wallace, psychologist.
9. On 20 March 2023 Dr Al Khawaja noted the CT scan showed the fusion may not be complete at the L4/5 level and he requested approval for a posterior L4/5 fusion.
10. On 24 May 2023 Dr Al Khawaja performed an L4/5 posterolateral interbody fusion.
11. Mr UI Haq was reviewed by Dr Shane Cameron, rehabilitation physician on 10 July 2023. He noted the claimant's gait was changeable where he mobilised to the clinic with a flexed left sided antalgic gait but a normal gait pattern when walking to his car. He noted normal tone, reflexes, coordination and sensation. Power was said to be difficult to assess but was inconsistent in both sitting and lying positions. Functionally, he found his upper limbs were normal. He reported he could sit to stand and walk without too much issue despite voicing difficulty with same. Dr Cameron reported Mr Ul Haq had chronic lumbosacral back pain with no obvious persistent acute neurological factors evident on imaging. However, he noted depressive features and recommended psychological and psychiatric intervention.
12. Mr Ul Haq was referred to Rehab Services. An Activities of Daily Living Assessment (ADL) on 31 July 2023 found the accident had caused the claimant difficulty with sitting and standing, lifting and carrying, and pushing and pulling. Domestic activities impacted included cleaning, meal preparation, gardening, yard maintenance and personal care.
13. On 15 August 2023 Dr Al Khawaja reported Mr Ul Haq had increasing pain in his back and numbness on the feet. On examination he reported limitation of lumbar spine movements but normal jerks with slight decreased sensation on both feet which he thought could be subjective. He also reported increasing neck pain although he did not notice any major weakness of his upper limbs and his reflexes were normal.
14. On 13 October 2023 Dr Ramachandran recommend the claimant have a psychiatric evaluation with Dr Susheel Manambrakkat.
15. The claimant attended physiotherapy with Precision Health Care between 6 December 2023 and 18 March 2024. On 31 January 2025 it was recorded the claimant was suffering from chronic pain but was not receptive to ongoing education around pain management. It was suggested any improvement was likely to be slow and given the complexities of chronic pain he may not improve at all.
16. On 30 April 2024 Dr Al Khawaja reported Mr Ul Haq was continuing to complain his pain had not improved although on 27 June 2024 he reported a SPECT scan and a CT scan both looked good.

1. Dr Gehr provided a medicolegal report dated 7 January 2020. Dr Gehr did not think the pre-existing conditions were relevant and concluded the claimant's condition was entirely attributable to the accident. He diagnosed a soft tissue injury with left radiculopathy of the lumbar spine and a soft tissue injury with left radiculopathy of the cervical spine.

1. Dr Rastogi assessed the claimant and provided reports dated 16 April 2020,

10 September 2022, 30 March 2023 and 29 October 2024. 2. In his reported dated 16 April 2020 Dr Rastogi reported the claimant made a full recovery with no lifting or physical restrictions following the 2012 back injury and subsequent surgery. 3. On 10 September 2022 Dr Rastogi reported even though the claimant had undergone a L4/5 anterior lumbar interbody fusion on 8 August 2020 he had not noticed any shift in his pain. Chronic pain with loss of function had culminated into major depressive disorder. He noted the claimant had received psychological counselling every fortnight for almost two years. He had trialled Duloxetine, Mirtazapine, Quetiapine, Endep and Targin with limited success. 4. On 30 March 2023 Dr Rastogi reported the claimant was pervasively depressed, was sad and had lost confidence. Socially he was withdrawn and have become introverted and reclusive. He was smoking cannabis every day. 5. Dr Rastogi assessed the claimant on 29 October 2024. He reported significant chronic pain and functional limitations despite multiple surgeries had impacted the claimant's social and vocational functioning. He reported Mr Ul Haq presented with depressed mood, significant anhedonia, cognitions of worthlessness, hopelessness and a sense of despair. He had immense guilt for being a burden and a failure as a provider. He had anxiety with ruminations, excessive fears and poor decision making. He reported the claimant's relationship with his wife was strained, he had lost friendships, and had lost interest in social and recreational activities. 6. He diagnosed a persistent major depressive disorder with chronic pain disorder. He reported the prognosis was guarded where his depression was maintained by financial and vocational losses, functional deconditioning and loss of role and identity. Dr Rastogi reported the claimant was unfit to work in any capacity and was permanently incapacitated. He assessed a 22% whole person impairment (WPI).

1. Dr Rosenthal assessed the claimant for the insurer and provided reports dated 4 February 2022, 27 September 2022 and 9 December 2023.
2. In relation to his pre-existing condition Dr Rosenthal reported he had undergone an L4/5 discectomy in 2012 and at the time of the accident he had some very intermittent lower back pain of a minor nature, but those symptoms were not the same as he experienced after the accident.
3. In relation to causation of the lumbar spine injury Dr Rosenthal found the claimant had a pre-disposition to injury and was an outlier by reference to the normal general population. Dr Rosenthal found the L4/5-disc injury had progressed between the pre-and post-injury MRI scans. He stated the claimant had developed an L5 radiculopathy which had not been present prior to the accident. He concluded the progression of the L4/5-disc injury was a direct result of the accident. He concluded the L4/L5 anterior lumbar interbody fusion performed by Dr Khong was causally related to the accident and was reasonable and necessary in the circumstances.
4. In relation to the cervical spine Dr Rosenthal found the pre-accident and post-accident MRI scans indicated there had been no change in the disc bulge at C4/5. Whilst the claimant reported new symptoms in his left upper limb Dr Rosenthal did not find any objective evidence of radiculopathy. He concluded it was more difficult to attribute causality for any proposed surgery to the cervical spine.
5. When he assessed the claimant on 4 December 2023 Dr Rosenthal reported he complained of constant low back pain going to his legs and toes. He had neck pain radiating to the left elbow. He also reported numbness and burning in his legs and toes, he used a stick to walk and generally felt weak in his arms and legs. Dr Rosenthal thought the claimant was unlikely to have any significant future improvement.
6. He diagnosed the following injuries:
   • an L4/5 disc prolapse which required multiple surgical procedures;
   • a soft tissue injury to the cervical spine, and
   • a chronic pain syndrome as a result of his injuries.
7. Dr Rosenthal assessed 5% WPI in respect of the cervical spine, 20% WPI in respect of the lumbosacral spine and 1% for scarring.

1. Dr Bentivoglio assessed the claimant and provided a report dated 11 August 2022. He diagnosed:
   • exacerbation of pre-existing C4/5 foraminal stenosis;
   • exacerbation of L4/5 disc prolapse;
   • C5 radiculopathy from neck, shoulder, and arm pain, and
   • depressed supinator reflexes consistent with C5 radiculopathy.
2. Dr Bentivoglio acknowledged the existence of the pre-existing injury but concluded the injury had been exacerbated by the accident.
3. He concluded the claimant had made no improvement and would have difficulty getting any form of work. He said restrictions would include not lifting more than 5kg and avoiding repetitive activities including bending and lifting.

1. Dr Home provided a report dated 12 April 2022. He reported non-organic clinical signs reflecting a behavioral component to the claimant's presentation. He referred to the report of Mr Griffiths and concluded it was not medically plausible that the mechanism of the accident would cause intervertebral injury in either the cervical or lumbar region.
2. He compared the MRIs of the lumbar spine both pre-and post-accident and concluded there was no new pathology caused by the accident. Dr Home stated:

"It is noted that the post-accident MRI scans of the cervical spine demonstrate the same pathology as that evident on the pre-accident scans of January 2019 with MRI scans of the cervical spine demonstrating a left sided disc bulge, narrowing of the left exit foreman at C 4/5. The previous MRI scans of the lumbar spine demonstrate post- surgical changes at L 4/5 associated with a recurrent broad-based posterior disc bulge abutting the right L5 nerve root as it emerges from the thecal sac."

1. Dr Home reported that the claimant had chronic lower back pain re-commencing in 2016 associated with right leg radiculopathy symptoms and additional symptoms on the left upper extremity. He concluded that the symptomatic cervical spondylosis and the symptomatic lumbar spondylosis necessitating the L4/5-disc fusion surgery were injuries not caused by the accident.
2. Whilst Dr Home found the claimant's condition was not caused by the accident, he noted the claimant had been largely incapacitated since mid-2019. He found the claimant could return to work in a part time sedentary role for 20 hours per week.

1. In his report dated 11 September 2022 Dr Korber compared the 22 January 2019 MRI scan and the 24 September 2019 MRI scan of the lumbar spine and concluded:

"In the lumbar spine there has been an alteration in the size of the posterior disc bulge/protrusion at the L4/5 level, with some postero-inferior migration of disc that was not present on the pre-accident study."

1. Dr Korber also compared the 22 January 2019 MRI scan and the 23 September 2019 MRI scan of the cervical spine and concluded:

"With the limitation of no clinical history and no description of the accident, simply comparing the images of pre- and post-accident, in the cervical spine there has been no change."

1. Dr Korber provided a supplementary report dated 22 September 2022 after he was provided with a copy of the claim form, and the clinical records of Dr Calvache-Rubio commencing on 29 July 2019. Dr Korber noted the previous low back injury and discectomy in 2012. He concluded:

"It is reasonable that the motor vehicle accident caused a new superimposed injury at L4/5 level when taking into account the contemporaneous record and imaging findings."

1. The claimant was assessed by Mr Cipriani at the request of the insurer. He provided a report dated 3 July 2023. Mr Cipriani administered psychometric testing. Mr Cipriani reported the claimant exhibited pain behaviour during the four-hour examination. He concluded the claimant's symptoms were indictive of compensation seeking malingering consistent with somatic symptom disorder with predominant pain. He found the claimant was deliberately exaggerating and fabricating symptoms.
2. Significantly, the claimant had undergone a second lumbar fusion approximately three weeks earlier. Medical Assessor Hong opined that the psychometric testing was misplaced so soon after fusion surgery.
3. On 11 August 2023 Dr Kumagaya stated the psychometric testing is rarely diagnostic on its own and requires consideration alongside the broader clinical picture. He noted Mr Ul Haq had been diagnosed with major depressive disorder with anxious distress by two psychiatrists, himself and Dr Rastogi in addition to three treating doctors Dr Calvache-Rubio, Dr Morgan Mo and Dr Trisha Lai providing a "remarkable level of diagnostic coherence" with respect to his psychological injury. Dr Kumagaya also reported psychometric testing is vulnerable to inaccuracy when applied to an acutely depressed and anxious individual. He noted Mr Ul Haq had problems with concentration, persistence and pace and that the application of psychometric testing over four hours was likely to lead to inaccurate findings. He also suggested it was likely to be unreliable when administered to persons with English as their second language and when applied to sociocultural backgrounds in which the results had not been validated. Dr Kumagaya concluded the opinion of Mr Cipriani did not cause him to alter his opinion and he did not agree with the diagnosis of somatic symptom disorder.
4. On 1 December 2023 Dr Rastogi reviewed the report of Mr Cipriani. He reported it was not common for psychiatrists to use psychometric testing to diagnose a psychiatric injury stating it was used to assess personality style and for screening of mental health conditions, generally where there are inconsistencies or exaggeration in clinical presentation. Noting the testing was performed over four hours Dr Rastogi stated it was vulnerable to inaccuracy due to the difficulty in sustaining attention for that length of time. Dr Rastogi said it did not cause him to alter his opinion which was based on clinical examination and the assessment of the treating team. He concluded the claimant's substandard performance can be explained by the presence of pain with anxiety and reduced cognitive and executive functioning.

1. The claimant relies on the reports of Mr Peter Tingle dated 22 May 2021 and

23 January 2024, in support of his economic loss claim. Mr Tingle assessed the Claimant as unfit for his pre-accident employment as a cleaning service supervisor, uber driver, procurement manager or onsite coordinator and console operator in an unrestricted or safe manner. 2. Mr Tingle found the claimant was unlikely to have any capacity at all for at least two years given his overall functional deterioration. With ongoing support and treatment, he considered the claimant may acquire a capacity for volunteer work in the future on a part-time basis. Noting the claimant had been out of the workforce and his skills were out of date Mr Tingle concluded the claimant would require occupationally based training if he was to secure meaningful work on a longer-term basis and for that to occur the claimant's mental health would need to improve significantly. He did not think this would occur in the foreseeable future. 3. But for his injuries, Mr Tingle says the claimant had very good prospects of completing his MBA and gaining employment as a business administrator or as a business or general manager. In those roles the claimant had the potential earning capacity of between $86,320 per annum ($1,305 net per week) and $152,484 per annum ($2,142 net per week).

Functional Capacity Report of Kate Thompson of Good Rehab

1. Ms Kate Thompson, rehabilitation consultant of Good Rehab assessed the claimant on

16 January 2025 and provided a report dated 3 February 2025. 2. Ms Thompson found strong evidence of pain behaviours including self-limiting movements. She concluded the claimant was capable of recommencing employment at a minimum of 25 hours per week in a sedentary, remote role. Specific restrictions would be required including working from home, the ability to vary posture regularly, commencement on a part time basis and the use of an electronic sit-stand desk. 3. Suitable roles included call or contact centre operator, database administrator or clerical and office support worker earning $32,500 to $48,734 gross per year in a part time position or $56,680 to $68,140 in a full-time role. 4. Ms Thompson found, in the unlikely event the claimant competed his studies his earning potential would have increased to a maximum of $80,000 to $100,000 per annum. 5. Ms Thompson opined that Mr Adil was not a comparable employee to Mr Ul Haq having regard to the divergence in their academic and career trajectories. Mr Adil holds a Master of Accounting and International Finance from Deakin University and has progressed through several high-level finance roles leading to his current position as CEO of Maranatha House whilst Mr Ul Haq's academic progress prior to the accident was of multiple deferments and his professional experience as procurement manager and onsite coordinator are not at the senior management level achieved by Mr Adil. 6. Ms Thompson suggested given the deferrals and the claimant's struggles to maintain focus on his coursework as evidenced by his failure of a number of subjects it was plausible that without the accident, he might not have completed his MBA in a timely manner, if at all. 7. In assessing the objectivity of the opinion expressed by Mr Thompson the claimant submits it should be noted she was not provided with the Certificates of Medical Assessor Bodel, the Certificate of the Review Panel, the report of Dr Korber, the report of Dr Rastogi and the report of Grant Johnston, biomechanical engineer.

1. Medical Assessor Bodel determined the injury to the lumbar spine caused by the accident was not a minor (threshold) injury. He found clinical signs of radiculopathy in the left leg consistent with injury to the L4/5 disc. He certified the injury to the cervical spine caused by the accident was a soft tissue whiplash associated disorder, which was a minor (threshold) injury.
2. He also certified that the L4/5 anterior lumbar interbody fusion recommended by Dr Khong was related to the injury caused by the accident and was reasonable and necessary in the circumstances.

1. In his certificate dated 7 March 2023 Medical Assessor Bodel certified that the lumbar spine injury was not a minor (threshold) injury for the purposes of the MAI Act.
2. Medical Assessor Bodel noted that the main complaint of pain was the lower part of the back and referred pain into both legs. He also reported intermittent neck and left arm pain. He reported the anterior lumbar interbody fusion of the L4/5-disc injury had made things worse and subsequently a spinal stimulator was inserted.
3. Medical Assessor Bodel addressed in some detail the question of causation of the lumbar spine injury. He confirmed that the claimant told him he completely recovered within six months of the 2012 discectomy. However, notwithstanding that history Medical Assessor Bodel concluded the complaint of pain in July 2017 reflected the type of intermittent minor discomfort one would expect given the claimant's previous laminectomy and discectomy.
4. Referring to the medical attendances on 15 January 2019, 24 January 2019 and the alleged attendance on 12 March 2019, Medical Assessor Bodel stated:

"Mr Ul Haq clearly indicated to me that there was a very clear reason for these medical attendances, and it had very little, if anything, to do with the status of his back pain. He indicated that the purpose was to obtain medical evidence which he could then present to his educational institution, to allow him to take leave of absence from his coursework for a period of about 3 or 4 weeks, to return home to Pakistan for the purposes of his younger brother's engagement. He states that because of the patriarchal nature of the family in Pakistan, he was expected by his father to be there, and he couldn't do so without forfeiting the whole semester of study if he could not establish a medical reason for that change.

In addition to that, he also sought medical leave to reduce his subject load from three to one for that semester only. This would allow him to interrupt the studies, continue with his cohort and then return to the three subjects per semester for the second half of the year, which apparently, he had enrolled to do, but that was interfered with by the motor vehicle accident, which is the subject of this claim.

He undoubtedly had some back pain. He had an MRI scan done which was what he felt was needed to be able to justify the claim that he was making to the educational institution and that is the story that he gives as to the reason behind the MRI scan done at that time. That scan shows a minor bulge at the L4/5 level, which has been the previous operated level, which is a central bulge, and there is no evidence of compromise of the lateral recess or nerve root compression. The subsequent MRI scan, which I have also seen, dated 24 September 2019 shows a completely different appearance to the L4/5 disc which has arisen after the motor vehicle accident."

1. Medical Assessor Bodel noted the photographs showed some visible damage to the front of the vehicle albeit minor. In response to the report of Mr Griffiths Medical Assessor Bodel states:

"I respect the engineering expertise that he brings to this matter, but I am satisfied that the previously vulnerable disc at the L4/5 level could have suffered a material aggravation by the forces involved in this motor vehicle accident."

"The previous pathology is vulnerable to further injury and the forces involved, in my view, are significant enough to cause a material deterioration in the abnormal disc at the L4/5 level, leading to the need for the eventual surgical undertaking.

The important observations from Dr Korber are the change in the appearances of the disc at L4/5 in January 2017 and again in September 2017, with the only intervening force involved being the motor vehicle accident".

1. Medical Assessor Bodel reviewed the imaging dated 22 January 2019 and

24 September 2019 and drew the same conclusion as Dr Korber. He concluded the claimant had suffered a material aggravation to pre-existing pathology at the L4/5 level in the lumbar spine as a result of the accident. Having found signs of a material aggravation and increase in the size of the damaged L4/5 disc he certified the claimant had sustained a non-minor (threshold) injury.

1. Medical Assessor Berry in a certificate dated 24 January 2024 certified a soft tissue injury to the cervical spine was caused by the accident and gave rise to a WPI of 5%. He declined to assess the permanent impairment of the lumbar spine which he found was not permanent.

1. A Medical Review Panel comprising Member Patterson, Medical Assessor Dixon and Medical Assessor Moloney issued a certificate dated 21 August 2024. The Medical Review Panel revoked the certificate of Medical Assessor Berry as to permanent impairment and determined the lumbar spine - anterior and posterior fusion at L4/5 was caused by the accident and gave rise to a permanent impairment of 20%. The injury to the cervical spine was determined to be not caused by the accident.
2. The Medical Review Panel certificate summarized the available medical evidence in respect of causation including the reports of Dr Korber, the report of Dr Home and the certificates of Medical Assessor Bodel and determined the injury to the lumbar spine - anterior and posterior fusion at L4/L5 was caused by the motor accident. The Review Panel did not conduct a re-examination of the claimant where he had undergone surgery and where the main issue for determination was the question of causation. However, in considering the question of causation the Review Panel noted neither party had challenged the certificate of Medical Assessor Bodel dated 7 March 2023 and whilst his findings were not binding, the Review Panel concluded they should be given considerable weight.
3. The Review Panel found the soft tissue injury to the cervical spine was not caused by the accident where Dr Zhao on 24 January 2019, six months before the accident recorded neck pain radiating to the claimant's head (occipital headaches) and to his left arm.

1. Medical Assessor Curtin issued a certificate dated 11 February 2024 in which he certified a 3% WPI in respect of surgical scarring.

1. Medical Assessor Newlyn issued a certificate dated 6 July 2020 in which he certified the claimant had sustained an adjustment disorder with mixed disturbance of emotions and conduct caused by the accident. This was a minor injury.

1. Medical Assessor Hong issued a certificate dated 8 March 2024 in which he certified a major depressive disorder with anxiety was caused by the accident and resulted in a WPI of 18%.
2. As to causation Medical Assessor Hong stated:

"Mr Ul Haq does not have a past psychiatric history. He reported good psychological functioning prior to the subject MVA and engaged in regular employment and study and did not experience abnormal psychological symptoms. The onset of his psychological symptoms was delayed and was directly related to the subject MVA, if his physical injuries and pain are considered to be caused by the subject accident. His psychological symptoms have persisted since the subject MVA.

I have not identified other contributing factors unrelated to the accident in the relevant time frame. I concluded that the subject MVA is the major cause of his current psychological condition."

1. In my interlocutory decision I noted there were inconsistencies in the claimant's evidence, in his statements, in histories obtained by medical practitioners and when questioned during the assessment conference about the extent of his disability and the extent of any pre-existing symptoms.
2. I had the opportunity to assess the claimant during the assessment conference. Whilst he appeared to give his evidence in a straightforward manner his evidence that he had previously been dishonest in his dealings with medical practitioners and with his college give rise to serious questions about the reliability of his evidence.
3. The claimant's evidence that he still had back pain from time to time before the accident was not consistent with paragraph 189 of his statement dated 14 February 2025 where he stated that his previous low back injury had resolved, with the history recorded by Medical Assessor Bodel that he had completely recovered within six months of undergoing an L4/5 discectomy in 2012, with the history recorded by Medical Assessor Newlyn that he had recovered in six to 12 months after the L4/5 surgery or the history recorded by Dr Rastogi that he had made a full recovery.
4. When questioned the claimant agreed he went to a doctor complaining of low back pain on 7 July 2017 because he wanted time off college, having failed three subjects. He agreed he had lied to the doctor about pain in his back. He also agreed he lied to the university about the reason he wanted time off. The claimant agreed he lied to Dr Prasad, the university and the college, for his own purposes.
5. The claimant also agreed he lied when he told Dr Zhao on 15 January 2019 that he had a slow increase in back pain running down his right leg. However, when Dr Home drew the claimant's attention to the imaging of January 2019, he said he did experience intermittent symptoms of low back pain but could not recall leg symptoms. The claimant, according to Dr Home, stated he had undergone the MRI scan in January 2019 to satisfy requirements to travel to Pakistan and to obtain a clearance certificate in that regard.
6. When he was asked whether he told Medical Assessor Bodel that he had been thrown around quite violently on impact Mr Ul Haq said it was a jerk, a big jerk. It was difficult to get Mr Ul Haq to address whether or not he was thrown around violently, but he did agree he was forcibly lunged forward.
7. Mr Ul Haq was also questioned about his use of a walking frame and his use of a wheelchair. His answers were not consistent, although he suggested he may have been confused about the relevant time frames, particuarly where he was being asked to recall what had occurred over a period of six years.
8. The insurer submits the claimant provided many answers that could only be described as dissembling including his evidence in relation to lifting the trailer, his evidence about buying a boat but not using the boat, his evidence concerning his visa situation as well as his evidence about his pre accident back pain.
9. In relation to the boat Mr Tingle reported on 23 January 2024 that the claimant had acquired a boating licence, but he always needed assistance with preparing the boat to be transported to the water, launching it and pulling up the anchor. This is not consistent with the claimant's evidence that he had not used the boat.
10. The claimant submits that since the date of accident his reporting of symptoms has been consistent across clinical and medicolegal contexts which is inconsistent with fabrication. However, the claimant's consistency of complaint does not mean there has not been some exaggeration by the claimant as to the extent of his functional incapacity when reviewed by medical practitoners.
11. Inconsistency in the claimant's presentation was noted by Dr Shane Cameron who the claimant consulted on 10 July 2023. He reported the claimant mobilised with a left sided gait using a right handed single point stick; however when he observed the claimant walk to the carpark he observed a normal gait pattern.
12. The insurer submits the surveillance footage recorded on 30 January 2024 is inconsistent with the assertion made by the claimant in his statement of 14 February 2025 that he struggled to stand for longer than 10 minutes. I agree. The surveillance footage demonstrates that the claimant was able to move around on his feet for well over 30 minutes and was also seen to pick up the front of the trailer. The assertion by the claimant that he had greater freedom of movement on that day because he had taken cannabis is a moot point where he had been taking cannabis regularly.
13. I propose to treat the evidence of the claimant with some caution. I am satisfied there has been some exaggeration by the claimant as to the extent of his functional incapacity.

1. During the assessment conference the claimant said his low back pain was no better since the accident, and his neck pain was unchanged except for a short time after he had undergone injections. He complained of significant restriction of range of motion in his neck and back.
2. There is only an entitlement to damages for non-economic loss in the event the claimant has sustained a greater than 10% permanent impairment. In submissions dated 16 January 2025 the insurer conceded the finding of the Medical Assessor as to causation of injury was binding in respect of the claimant's entitlement to damages for non-economic loss but that I was not bound by the finding on causation otherwise. I consider it would be nonsense to be bound by the findings on causation as to permanent impairment when assessing non-economic loss but to reach a different conclusion as to causation when assessing economic loss.
3. The insurer relies upon the opinion of Dr Home, occupational physician. In his report dated 12 April 2022 he concluded the pre accident and post-accident imaging demonstrated identical pathology. He relied upon the opinion of Michael Griffiths, biomechanical engineer, to conclude that based on the mechanism of the accident it was implausible that the claimant sustained an acute aggravation of the pre-existing spinal complaint.
4. The opinion of Dr Home as to causation was considered by Medical Assessor Bodel and the Medical Review Panel in concluding injury to the lumbar spine and the subsequent anterior and posterior fusion at L4/L5 was caused by the accident.
5. I prefer the opinion of Medical Assessor Bodel and the Medical Review Panel to the opinion of Dr Home as to causation of the lumbar spine where it is supported by the expertise of Dr Korber, specialist radiologist, and by the opinions of Dr Rosenthal and Dr Bentivoglio. I am satisfied that the determination as to causation of the claimant's lumbar spine injury was not limited to the claimant's subjective complaints of pain having regard to the change in pathology shown on the post-accident imaging as verified by Dr Korber.
6. I have considered the opinion of Michael Griffiths relied upon by the insurer, but noting the test for medical causation does not require scientific certainty I adopt the conclusion of Medical Assessor Bodel that where the previous pathology was vulnerable to further injury the forces involved in the intervening accident were significant enough to cause a deterioration in the abnormal disc at the L4/5 level.
7. I am also satisfied that the determination of Medical Assessor Bodel and the Medical Review Panel as to causation of the lumbar spine was made in light of the knowledge that the claimant had been dishonest in his dealings with his general practitioner and his college as to the extent of his pre-existing symptoms.
8. I also note the claimant was assessed by Dr John Sheehy, neurosurgeon at the request of the insurer on 22 April 2021. The insurer has declined to serve the report of Dr Sheehy leading me to conclude that the opinion of Dr Sheehy does not assist the insurer's case.
9. I find the claimant sustained a material aggravation of the pre-existing L4/5 disc prolapse and that the subsequent anterior and posterior fusion at L4/5 was caused by the accident.

1. The Medical Review Panel concluded the soft tissue injury to the cervical spine had not been caused by the accident having regard to the neck pain reported by Dr Zhao six months pre-accident. However, in his certificate dated 1 June 2020 Medical Assessor Bodel certified the claimant had sustained a soft tissue injury to the cervical spine caused by the accident.
2. In the Application for personal injury benefits dated 26 July 2019 and at the time of his consultation with Dr Calvache-Rubio on 29 July 2019 the claimant reported a worsening of his previous neck pain and thereafter he has consistently reported neck pain and stiffness radiating to both upper limbs.
3. I accept the evidence of Dr Korber and Dr Rosenthal that there was no change in the pre-existing disc bulge at C4/5 caused by the accident.
4. However, having regard to the consistency of complaint following the accident and noting both Dr Rosenthal and Dr Bentivoglio concluded the claimant had sustained an injury to his neck I prefer the opinion of Medical Assessor Bodel over the opinion of the Medical Review Panel.
5. I find the claimant sustained a soft tissue injury to the cervical spine caused by the accident.

1. Shortly after the accident on 29 July 2019 Dr Calvache-Rubio reported psychological symptoms including trouble sleeping, flashbacks and issues with driving. Mr Ul Haq commenced treatment with Mr Neilsen psychologist who diagnosed a post-traumatic stress disorder on 28 August 2019.
2. Dr Kumagaya diagnosed an adjustment disorder with mixed anxiety and depressed mood which progressed to a major depressive disorder. Dr Rastogi diagnosed a persistent major depressive disorder with chronic pain disorder and Medical Assessor Hong also diagnosed a major depressive disorder.
3. I am not persuaded by the opinion of Mr Cipriani that the claimant was malingering where he was not provided with the certificates of Medical Assessor Bodel or the reports of Mr Grant Johnston, consulting engineer. Further, in assessing the opinion of Mr Cipriani I also note the comments of Medical Assessor Hong, Dr Kumagaya and Dr Rastogi as to the diagnostic limitations of psychometric testing, in particular, the application of testing to an acutely depressed and anxious individual who had undergone surgery only three weeks earlier.
4. I agree with Dr Kumagaya that there has been a "remarkable level of diagnostic coherence" with respect to the claimant's psychological injury. I find the claimant has sustained a major depressive disorder caused by the accident.

1. The claimant describes constant pain in his neck and back and difficulty with lifting, carrying, bending, crouching and twisting. He has undergone surgery, namely an L4/5 anterior lumbar body fusion on 8 August 2020 and subsequently a L4/5 posterolateral interbody fusion surgery on 24 May 2023. He has come under the care of a pain management specialist and has had a spinal stimulator inserted. He also suffers from a major depressive disorder for which he has undergone extensive treatment. He is dependent on medicinal cannabis.
2. On 11 August 2022, prior to the second fusion, Dr Bentivoglio reported he considered the claimant would have difficulty getting work and on 9 December 2023 Dr Rosenthal noted restrictions including bending, lifting, twisting, pushing, pulling, standing, sitting, walking, stooping, squatting, crouching, kneeling, leaning, reaching, manual handling and repetitive movements. Dr Rosenthal also reported the claimant should not lift anything heavier than 5 kg and although the claimant can utilise a laptop to send emails, his continuity of work would be restricted as he can only sit for 10 minutes continually without needing to change postures. Dr Rastogi reported the claimant was unfit to work in any capacity. Mr Tingle considered the claimant unfit for his pre-injury employment as a cleaning service supervisor, Uber driver, procurement manager, onsite coordinator or console operator and as of

23 January 2024 considered he would have no capacity for at least two years. 3. Notwithstanding my findings that the claimant has exaggerated the extent of his functional incapacity I am satisfied that he has been totally incapacitated for employment to date having regard to both his physical and psychological impairment caused by the accident. 4. However, I am not satisfied that the claimant has no future capacity for employment. Whilst I am satisfied that the claimant's functional capacity is greater than he asserts I also acknowledge that the ability to stand and move in his driveway and to lift a trailer does not translate to an ability to maintain employment seven hours a day five days a week. However, given the claimant's concession that he has been prepared to lie to achieve his aims and having regard to the discrepancy between his alleged physical capacity and that demonstrated on the surveillance footage I am satisfied with the conclusion of this litigation and ongoing medical support it is likely Mr Ul Haq will have some limited capacity for employment. 5. Mr Tingle, vocational assessor considered with ongoing support, including occupationally based training and improvement in his mental health Mr Ul Haq may have the capacity to return to meaningful work on a longer-term basis. Mr Ul Haq is only 31 years of age with a working life of 36 years. 6. Given my findings that the claimant has exaggerated the extent of his functional incapacity I find, on the balance of probabilities, from a physical perspective that Mr Ul Haq has some residual future capacity for employment on a limited part-time basis. However, it is difficult to be more categorical about any return to employment where, notwithstanding any discrepancy in his physical presentation, there is unanimity in the medical opinion as to the claimant's current incapacity for employment from a psychological perspective and a return to employment will be subject to an improvement in his mental health. 7. I propose to assess damages based on total incapacity for employment for five years discounted by 15% for the usual vicissitudes of life and thereafter, given the uncertainty as to any return to employment I propose to assess damages for future economic loss subject to an increase in the discount for vicissitudes to account for that possibility.

1. Section 1.4 of the MAI Act defines non-economic loss as including pain and suffering, loss of amenity of life, loss of expectation of life and disfigurement. The current maximum payable for non-economic loss is $691,000.
2. The claimant submits an appropriate award is the sum of $500,000 whilst the insurer submits an appropriate sum is $100,000.
3. He has undergone lumbar spine surgery on two separate occasions. He subsequently came under the care of Dr Ramachandran pain management specialist. A spinal stimulator had only a limited effect on reducing his pain and he has trialled various medications without success. Whilst Dr Al Khawaja reported in April 2024 that the scan results were normal it is apparent Mr UI Haq has developed a chronic pain condition, which to date, has been resistant to treatment. He is now dependent on medicinal cannabis leading to the suspension of his drivers licence. He reported an inability to participate in domestic chores.
4. He suffers from a major depressive disorder requiring treatment. He attempted suicide in October 2022. Mr Ul Haq has become irritable and frustrated and he is emotionally volatile. He reported the loss of friends, describing himself as isolated, and reluctant to leave his house. He reported his relationship with his wife is strained. He described a loss of concentration, sleeplessness and has no confidence in his recovery.
5. Even taking into account the claimant's tendency to exaggerate the extent of his functional incapacity the prognosis is poor. Dr Rosenthal thought the claimant was unlikely to have any significant future improvement and Dr Rastogi concluded the claimant was permanently incapacitated. Whilst the accident occurred six years ago the claimant is now only 31 years of age with a life expectancy of 51 years. In the circumstances I consider an appropriate award of non-economic loss to be the sum of $425,000.

1. I have accepted that the claimant has been totally incapacity for employment since the accident. Accordingly, I propose to assess past economic loss on the basis of total incapacity.
2. In submissions dated 13 December 2024 the claimant asserts his average earnings with Proclean NSW Pty Ltd between 1 March 2019 and 7 July 2019 were $1,188 gross per week plus some additional cash income from driving taxis.
3. The claimant submits between the date of accident and December 2020, when he graduated from his MBA, he would have earned not less than $1,100 net per week. The claimant asserts on and after 20 December 2020 after graduating from his MBA and for a period of five years thereafter he would have obtained employment as either a business manager in marketing communication, a supply chain manager in general operations, a financial manager or a human resources manager. Based on the opinion of Mr Tingle the claimant asserts he would earn the midpoint of $1,723.50 net per week from 21 December 2020 to date.
4. Accordingly, the claim made for past economic loss is as follows:
   • 18 July 2019 to 30 June 2020 (49 weeks) at $1,100 net per week;
   • 1 July 2020 to 20 December 2020 (25 weeks) at $1,200 net per week, and
   • 21 December 2020 to date at $1,723.50 net per week.
5. In submissions dated 16 January 2025 the insurer assessed the claimant's pre-accident net income at about $800 per week. Allowing $800 net per week from the date of accident to date, at that time, about 5.5 years the insurer calculated past economic loss in the sum of $228,000. In more recent submissions dated 7 July 2025 the insurer submits that allowance was excessive in light of the claimant's admission of lying and that only half of the amount proposed in the earlier submissions should be allowed.

Calculation of the claimant's pre-accident earnings

1. The insurer submits the claimant's pre-accident tax returns show the following:

1. In an undated statement addressed to whom it may concern Atif Iqbal states Mr Ul Haq worked as on-site coordinator from March 2019 to July 2019 under ABN 14 535 127 036. He was paid in cash.
2. The claimant has provided Business Activity Statements (BAS) to verify his income from Uber and Ola for the period July 2018 to March 2019 as follows:

1. The claimant has also provided tax invoices addressed to Proclean NSW Pty Ltd as summarised in the following table:

1. There is some discrepancy between the claimant's earnings disclosed in his 2019 taxation return and the income disclosed in the BAS statements and in the Proclean invoices. However, on the basis the claimant earnt the sum of $56427 gross from his driving work and the sum of $21,387 gross from his Proclean work, a total of $77814 gross per annum in the 2019 financial year I accept he was earning on average $1,100 net per week prior to the accident.

Whether the claimant would have completed his MBA

1. The claimant came to Australia in 2016 on a student VISA. He enrolled in a Master of Commerce at Charles Sturt University but by July 2017 sought a leave of absence because, he says, he had failed three subjects. His academic record shows he withdrew from subjects in 2016, 2017 and 2018 and in an email dated 6 September 2017 the University identified his unsatisfactory progress but offered him a last chance to prove his academic ability.
2. On 28 February 2018 the claimant enrolled in a Master of Business Administration (MBA) at the Universal Business School Sydney. However, he took a break during semester 1 in 2019 to travel to Pakistan and planned to resume his studies in early August 2019 with the result that he had only completed five subjects at the time of the accident. His attendance at the Universal Business School was noted to be 16.1% for the first three and a half months, 29.5% for the following four months and 40.6% for the period between 21 January 2019 and 3 May 2019.
3. Ms Thompson of Good Rehab concluded that given the deferrals and his struggle to maintain focus the claimant may not have completed his MBA in a timely manner, if at all.
4. However, noting the conditions of his VISA I accept that ultimately the claimant would have completed his studies, but I am not convinced he would have done so by December 2020. The claimant commenced his studies at Charles Sturt University in 2016 and by the time he changed universities in 2018 he had enrolled in and withdrawn from nine subjects. Whilst his pattern of study improved at the Universal Business School it is difficult to be categorical about when he would have completed his studies. At best I find the claimant would have completed his course by now. However, in assessing past economic loss I am not prepared to make any allowance for an improvement in the claimant's earning capacity on the basis he would have completed his MBA.
5. Accordingly, I propose to assess damages for past economic loss calculated at $1,100 net per week in the sum of $360,800 calculated as follows:

18.7.2019 to 30.10.2025 (328 weeks) @ $1,100 net per week = $360,800.

1. Pre-accident the claimant was self-employed as a co-ordinator for Proclean and as a driver with Uber and Ola. Accordingly, I do not propose to make any allowance for past loss of superannuation benefits.

1. In assessing future economic loss, I must have regard to the provisions of s 4.7 of the MAI Act which states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in his most likely future circumstances.
2. I am satisfied the accident has caused a change in the claimant's most likely future circumstances where, as a result of injury caused by the accident, Mr Ul Haq has been incapacitated for employment to date and where his future capacity is uncertain but at most it is limited to part time work. I find that in line with such as Medlin v State Government Insurance Commission[1]and Husher v Husher,[2] the loss or diminution in the claimant's earning capacity will result in economic loss.
3. A claim is made for future economic loss in accordance with Mr Adil's forecasted income of $3,198 net per week for the remainder of the claimant's working life. The insurer submits the claimant has exaggerated his level of invalidity and is not fully incapacitated for work. The insurer initially submitted future economic loss should be assessed by way of cushion in the sum of $225,000 including superannuation although in more recent submissions the insurer submits that allowance was excessive in light of the claimant's admission of lying and that only half of that amount should be allowed.
4. The claimant relies upon the opinion of Mr Tingle to assert the claimant had good prospects of completing his MBA and gaining a management position in finance or accounting. The claimant submits Mr Adil is a comparable employee who had a similar educational background to the claimant and whose career progression has led to his current appointment as the CEO of Maranatha House Aged Care.
5. However, I agree with Ms Thompson of Good Rehab. I do not consider Mr Adil to be a comparable employee where the claimant's academic progress prior to the accident was dogged by deferral and his failure to complete subjects. Mr Ul Haq had been enrolled as a student for three years prior to the accident but had only completed five subjects. Mr Adil holds a Master of Accounting and International Finance from Deakin University and progressed through several high-level finance roles before achieving his current role whilst Mr Ul Haq's professional experience as a procurement manager and onsite coordinator are not at the same management level as that achieved by Mr Adil.
6. I do not otherwise accept the opinion of Ms Thompson as to the claimant's capacity for work where her opinion is contrary to the prevailing evidence and where it was expressed in the absence of the certificate of Medical Assessor Bodel, the certificate of the Review Panel and the reports of Dr Korber, Dr Rastogi and Mr Johnston.
7. In considering the claimant's likely earning capacity on completion of his MBA I note Mr Adil suggested he could be employed in a managerial position on a starting salary of $100,000 to $120,000 per annum whilst Mr Tingle concluded he could be employed as a business administrator or as a business or general manager earning between $86,320 per annum ($1,305 net per week) and $152,484 per annum ($2,142 net per week). I propose to adopt the figure of $110,000 per annum or the sum of $1657 net per week as the claimant's current likely earnings uninjured with an increase to $120,000 per annum or $1792 net per week as his likely earnings five years hence. I note the claimant has a future working life of 36 years.
8. I propose to assess damages for future loss of earning capacity as follows:

(d) on the basis of total incapacity for work calculated at $1,657 net per week for the next five years discounted by 15% for the vicissitudes of life, and

(e) thereafter calculated at $1,792 net per week but reduced by 25% for vicissitudes to take into account the possibility of a return to suitable part time employment.

1. I calculate damages for future loss of earning capacity as follows:

(f) $1,657 net per week x 231.5 (multiplier for 5 years on 5% tables) less 15% for vissisitudes = $326,056, and

(g) $1,792 net per week x 833.8 (multiplier for 31 years on 5% tables) x 0.784 (multiplier for 5 years on 5% deferred tables) less 25% for vissisitudes = $878,571.

1. Accordingly, I assess damages for future loss of earning capacity in the total sum of $1,204,627.
2. I assess damages for future loss of superannuation benefits calculated at 14.62 % of the net future wage loss over the next 36 years in the sum of $176,116.

1. The Fox v Wood component being the tax paid on the statutory payments is the sum of $10,772.

1. I assess the claim as follows on the findings set out above:

Future economic loss (including superannuation) 1,380,743

1. The claimant's economic losses are to be reduced by, and the insurer is to have credit for statutory payments pursuant to s 3.40 of the MAI Act.

1. In assessing costs, I note I am required to deduct from the damages assessed the sum of received by the claimant as statutory weekly benefits in accordance with clause 8.6(2) and schedule 1 cl 2(5) of the Motor Accident Injuries Regulation 2017. I was advised statutory payments totalled $203,612.72. Accordingly, I calculated costs on the sum of $1,973,702.28.
2. I refer to the claimant's schedule of costs and disbursements uploaded to the portal on 10 March 2025. No objection was raised by the insurer.
3. Accordingly, I assess the claimant's costs and disbursements in the sum of $111,777.09 in accordance with the attached Damages and Costs Calculator.

[1] Medlin v State Government Insurance Commission (1995) 185 CLR.

[2] Husher v Husher [1999] HCA 47; (1999) 197 CLR 138.