Al-Khafaji v Insurance Australia Limited t/as NRMA Insurance

In the matter of Al-Khafaji v Insurance Australia Limited t/as NRMA Insurance, the primary dispute centred around a claim for injuries sustained in a motor accident. The claimant, Mr Al-Khafaji, alleged injuries to his cervical and lumbar spine from an accident in October 2020. He later added a claim for a thoracic spine injury. The dispute was heard and determined by the NSW Civil and Administrative Tribunal (NCAT), a tribunal with jurisdiction under the Motor Accidents Injuries Act 2017. The NCAT was required to decide on the nature and extent of the claimant's injuries and whether they were minor or non-minor under the Act.

The legal issues that arose in this case included the identification and causation of the injuries claimed by Mr Al-Khafaji, and whether the injuries constituted minor or non-minor injuries under the Motor Accidents Injuries Act 2017. Another critical issue was whether the claimant was ready for assessment, especially considering he had not yet undergone a cervical foraminotomy surgery at the time of the assessment. The court had to assess whether the delay in surgery affected the assessment or the classification of the injuries.

The NCAT panel found that the matter was not delayed or deferred due to the age of the claim or the accident, and it was likely that further assessment would occur after the surgery. The panel determined that there were no thoracic fractures caused by the accident and that there was no radiculopathy in the cervical or lumbar spine, hence all injuries were classified as minor. However, the panel expressed a preliminary view that the cervical foraminotomy surgery was caused by the accident, and it was likely to change the classification of the cervical spine injury from minor to non-minor due to the nature of the surgery involving cutting of skin and excision of bone or tissue.

The NCAT ordered that the matter be referred back to the insurer for reconsideration in light of the panel’s findings and views, particularly regarding the potential change in the classification of the cervical spine injury post-surgery. The tribunal also made an order for the insurer to pay the claimant’s costs of the review.