Insurance Australia Ltd t/as NRMA Insurance v Kyeremeh

Procedural background

1. The first defendant, Perita Kyeremeh, was injured in a motor accident on 12 May 2022. (As she was the claimant in the Commission, it is convenient to call her the "claimant" here.) There was a dispute between the claimant and the other party's insurer as to whether her injuries were "threshold injuries" for the purposes of the Motor Accident Injuries Act 2017 (NSW) (the Act). Injuries properly characterised as threshold injuries entitle the injured party to certain statutory benefits for a period of 52 weeks. However, there is no entitlement to damages where the only injuries are threshold injuries: s 4.4.
2. The question as to whether the specified injuries were threshold injuries was referred to a medical assessor (Dr Bodel). Dr Bodel carried out an assessment on 24 October 2023, resulting in a certificate issued on 22 January 2024. The certificate identified three injuries, each of which was found to be a threshold injury for the purposes of the Act.
3. On 14 February 2024 the solicitor for the claimant sought to review the determination of medical assessor Bodel. Pursuant to s 7.26 of the Act, the procedure is to apply to the President of the Commission to refer a medical assessment to a review panel for review. Such an application may be made "only on the grounds that the assessment was incorrect in a material respect": s 7.26(2). The President is to arrange for a medical assessment to be referred to a review panel, "but only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application": s 7.26(5).
4. On 27 March 2024, a delegate of the President determined that she was satisfied in the terms of s 7.26(5) and accordingly the review application was referred to a review panel. The review has not yet occurred.

Application for judicial review

1. On 26 June 2024, a day before the expiry of the three-month limitation period, [1] the insurer filed a summons in this Court seeking judicial review of the delegate's decision. The first defendant was the claimant; the third defendant was the President of the Commission. Inappropriately, the delegate was named as the second defendant, but was correctly removed as a party prior to the hearing.
2. The grounds of review identified four jurisdictional errors as invalidating the decision. In substance, these were that in all the circumstances, the decision made was not reasonably open to the delegate.
3. In seeking to review the decision, the insurer accepted that there was no statutory obligation on the delegate to give reasons and did not complain about the cursory statement of reasons which was provided. Accordingly, the insurer accepted that its challenge was limited to the kind of exercise identified by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation, [2] namely that it may be inferred from a review of the material before the delegate that the decision in fact reached was only capable of explanation on the ground that there had been some reviewable error. Absent reasons, that is most unlikely to be an error on the face of the record and must be capable of identification as a jurisdictional error. So much was accepted by counsel for the insurer.
4. The claimant has not been represented in this proceeding: she did not file an appearance. The evidence demonstrated that she had been served with material and notified of the date fixed for hearing. In ruling that the matter should proceed as planned, I made the following observations: "I am satisfied that all of the material relevantly relied on by the plaintiff has been provided to Ms Kyeremeh. I also am satisfied that she is aware of the listing today, and that is because she sent an email to the plaintiff (which has been provided to the Court) indicating that she is overseas. She said in the email that she wanted the hearing this morning to be adjourned. She was advised that if she wished that to happen she should make an application to the Court. The plaintiff noted that it would be opposed. She has not made that application. Because I do not think she wishes to participate in the hearing today, the hearing will proceed. The only further matter is that she might, if she had wished to be present in some form and listen to the proceedings, have sought to join the proceedings by way of an AVL. That has not happened either."
5. In the absence of an active defendant the application was unopposed. That gave rise to the need to consider two preliminary issues unassisted, namely one as to jurisdiction and the other as to discretion.

Preliminary issues

1. The decision sought to be reviewed is not a final decision determining the rights of either party. It would, in a judicial context, be described as interlocutory. It merely allows that the plaintiff's entitlement to recover damages remains undetermined until the medical review is undertaken. That gives rise to a question as to whether relief is available under s 69 of the Supreme Court Act by way of judicial review.
2. In Hot Holdings Pty Ltd v Creasy [3] Brennan CJ, Gaudron and Gummow JJ stated that "for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing."
3. There is no doubt that the determination of the medical assessor, and of the review panel if there is to be a review, will finally determine the claimant's rights to damages, if adverse. On the other hand, a favourable finding (that the injuries were not all threshold injuries) will simply permit the claim for damages to go ahead. The decision of the delegate in the present case leaves the relevant rights unresolved by providing for a further assessment by a review panel. Usually, setting aside such a decision will not be a decision having an effect on legal rights because it will merely require that the application for review be reconsidered. However, in the present case, a finding that the referral to the review panel was not available will effectively prevent review and leave the determination of the medical assessor as a final determination, precluding any claim for damages. However, the decision under review (which is the relevant decision) does not have that effect.
4. Many of the cases dealing with the availability of certiorari to quash a decision which may affect legal rights have turned upon the fact that a preliminary inquiry may be taken into account in some way by the ultimate decision-maker. [4] That is not this case: this case has a greater similarity to those involving review of committal proceedings in the criminal jurisdiction. [5]
5. My tentative view is that this decision would not attract review for the purpose of a quashing order, being an order in the nature of certiorari for the purposes of s 69 of the Supreme Court Act. It would be surprising if the change in procedure effected by that provision had removed the substantive constraints on issue of the prerogative writs in accordance with the general law. Nor is it to be assumed that declaratory relief might be available in relation to the invalidity of a decision which could not be set aside under s 69, on the basis that legal rights were not affected. However, in the absence of opposition to the leave sought and in the absence of argument, I do not propose to dismiss the proceeding on that basis.
6. At least in theory, there remains an issue as to whether the proceedings should be dismissed on a discretionary basis. Whether or not an order in the nature of certiorari is technically available, there would be good reason to discourage the taking of judicial review proceedings in the Supreme Court simply to avoid a claimant enjoying a review of an adverse medical assessment by way of a further medical assessment by a review panel. There is clearly an inequality of financial resources available to the respective parties and the Court should not be seen to countenance proceedings brought by the better-resourced party purely to prevent a further medical assessment being undertaken, unless the existence of a dispositive error is clearly established.
7. The potential costs of this proceeding suggest that there may be a broader motive underlying it, namely discouraging delegates from too readily acceding to applications for review of a medical assessment sought by a claimant. However, in circumstances where, if the insurer is correct and the claimant's case is hopeless, the review will not change the outcome, and, if it does, the insurer will be able to challenge that outcome, there would be, on a discretionary basis, grounds for refusing relief.
8. Because no such issue was raised as between the parties, and no submissions were addressed to this matter, even if otherwise appropriate, relief should not be refused on that basis.
9. It is to be hoped that both of these preliminary considerations would be properly addressed if proceedings of this kind arise in the future.

Identifying the material relied on

1. Although the reasoning process adopted by the delegate was not set out in full, some written reasons were provided for the decision. The first five paragraphs of the document set out the background, including identification of the injuries caused by the accident which had been found to be threshold injuries. Those were: "• Cervical spine - C3/C4 mild left facet joint hypertrophy, reversal of usual cervical lordosis centred at C6. • Right shoulder - subacromial/subdeltoid bursitis/serratus anterior subtle partial-thickness tear. • Lumbar spine - disc bulging at L5/S1 contacting the S1 nerve roots in the lateral recesses of the spinal canal, L4/5 demonstrates broad-based disc bulge, pain radiating to right leg, numbness to right foot."
2. There was no dispute that those were the injuries which had been referred to medical assessor Bodel. Although his certificate referred to this as "an injury" there appear to have been three separate injuries relied on by the claimant. Nothing turned on that.
3. The claimant's application for review was set out on a standard form, with a separate document setting out the claimant's submissions in support of the application. That was a five-page document. Many of the statements in it were vague in the sense that they adopted aspects of the statutory language, but without application to the circumstances of the claimant. For example, par 14 purported to be based on "the testimony provided by the [claimant]", presumably to Dr Bodel. The relevant particulars appear from the following passage at pars 14 and 15: "14 Based on the testimony provided by the Applicant Claimant it is submitted that Assessor Dr. James Bodel: a Was not through [sic; scil thorough] in his questioning of the Applicant Claimant to gage [sic; scil gauge] to a sufficient level, the facts of the Applicant Claimant's injuries; b Failed to sufficiently investigate and assess the significant restrictions to movement and the accompanying extreme pain the Applicant Claimant presented with in the Assessment. This pain is in relation to the Applicant Claimant's arms and legs; c Failed to sufficiently investigate and assess the Applicant Claimant's neuropathic numbness and tingling pain radiating from the neck to the right hand; d The Claimant advises she was in severe pain when lifting her arms during the examination and she had severe restriction of movement however the Assessor did not ask her this question or examine her restriction of movement; e Failed to sufficiently investigate the Applicant/Claimant's significantly worsening neuropathic numbness and tingling pain radiating from the back to the legs and right foot; and f Failed to sufficiently investigate the Applicant Claimant's significantly worsening back pain. 15. We note an inconsistency in the Medical Certificate of Assessor Dr. James Bodel. On page 1, 2 & 13 of the Medical Certificate, Dr James Bodel refers to "pain radiating to right leg, numbness to right foot" when addressing the lumbar spine (L5/S1) region. The Applicant Claimant submits that this assessment of the lumbar spine constitutes [sic] further investigation into radiculopathy, which is a non-minor injury. We also note that the radiating pain described herein and in points (b), (c) & (e) enclosed within paragraph 14 are presently worsening, as instructed by the Claimant."
4. On 16 February 2024, the insurer filed a submission in reply, which in large part relied upon the findings made by the assessor. As to the radiological imaging, the insurer submitted that there had been extensive reviews of the imaging by two medical practitioners and that it was "open to the assessor to find that the pathology evidence on imaging was not caused by the subject accident". That may have been so, but the fact that a finding was "open" did not address the statutory test which was to be satisfied at the level of a "reasonable cause to suspect" that the assessment was incorrect. The insurer needed to establish that suspicion based on reasonable cause was not open on the materials before the delegate.
5. The material findings made by the delegate, as recorded in her reasons, were in the following terms: "6 The claimant particularises various grounds in the application which it [sic] says result in a reasonable cause to suspect that the medical assessment was incorrect in a material respect. 7 The claimant notes Assessor Bodel's finding that L5/S1 lumbar spine injury with "pain radiating to right leg, numbness to right foot" was caused by the accident and submits that further investigation into the presence of radiculopathy was required. 8 The claimant submits the assessment was not conducted in accordance with the Motor Accident Guidelines. 9 I am satisfied, having regard to the particulars set out in the application, that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect. 10 The review application is accepted and will be referred to a Review Panel."
6. Although the insurer accepted that the reasons given by the delegate were not (and did not have to be) complete, it inferred that the delegate's finding at par 9 involved an acceptance of the claim set out in par 7 that "pain radiating to right leg, numbness to right foot" might warrant further investigation into the possible presence of radiculopathy. The insurer noted that the assessor had undertaken his investigation meticulously by reference to cl 5.8 of the Motor Accident Guidelines (MA Guidelines), made pursuant to s 1.6(5) of the Act, which he was required to apply, and relevant provisions with respect to a threshold injury set out in the Motor Accident Injuries Regulation 2017 (NSW) (Regulation). No error, the insurer submitted, could be identified in his approach. Although other matters raised by the claimant were not referred to by the delegate, the insurer undertook a similar exercise with respect to the other particulars identified by the claimant in her submissions, set out above.

The legislative scheme

1. The insurer's analysis requires reference to the legislative scheme. The Act provides in s 1.6 a definition of "threshold injury" in the following terms: [6] 1.6 Meaning of "threshold injury" (1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following - (a) a soft tissue injury, (b) a psychological or psychiatric injury that is not a recognised psychiatric illness. (2) A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. (3) (Repealed) (4) The regulations may - (a) exclude a specified injury from being a threshold injury for the purposes of this Act, or (b) include a specified injury as a threshold injury for the purposes of this Act. (5) The Motor Accident Guidelines may make provision for or with respect to the assessment of whether an injury is a threshold injury for the purposes of this Act. (6) Subsection (5) does not enable the Motor Accident Guidelines to make provision for or with respect to the resolution of disputes by the Commission or medical assessor. Note - The rules of the Commission make provision for these matters.
2. An "injury to nerves" is thus excluded from the definition of "soft tissue injury", and is therefore not a threshold injury. However, the Act permits the making of regulations which may "include a specified injury as a threshold injury": s 1.6(4)(b). The Regulation has that effect: cl 4 relevantly provides: 4 Meaning of "threshold injury", section 1.6(4) of the Act (1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.
3. Thus, the exclusion of "an injury to nerves" from the category of threshold injuries under the Act is partly qualified by cl 4 of the Regulation. The extent of the added category is by no means clear. Not all affected nerves are included; nor all injuries to the spinal nerves. The relevant injury must be to "a spinal nerve root that manifests in neurological signs". The purpose of the adverbial phrase, "that manifests in neurological signs", is unclear. Unless it excludes some class of injury to "a spinal nerve root" it serves no purpose: do all injuries to spinal nerve roots manifest in neurological signs?
4. The inclusion is subject to an exception, namely injury to a spinal nerve root that manifests in neurological signs, "other than radiculopathy". Radiculopathy is not defined, so far as the evidence and submissions went. Much attention was focussed on the MA Guidelines promulgated by the State Insurance Regulatory Authority (known as SIRA). Section 1.6(5) of the Act permits the MA Guidelines to make provision for or with respect to the assessment of whether an injury is a threshold injury: they cannot expand (nor restrict) the class of threshold injuries. If the prescribed method of assessment excludes cases which in accepted medical terminology constitute "radiculopathy", such a result will arguably be invalid. Only a review panel comprising appropriate medical specialists will be able to resolve a possible suspicion that meticulous compliance with the MA Guidelines has achieved a false result.

Guidelines for assessment

1. The MA Guidelines, in cl 5, address the method of assessing "an injury to a spinal nerve root": Soft tissue assessment - injury to a spinal nerve root 5.7 In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential. 5.8 Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with 'Part 6 of the Motor Accident Guidelines: Permanent impairment'. (a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines) (b) positive sciatic nerve root tension signs(see the definitions of clinical findings in Table 6.8 in these Guidelines) (c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines) (d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution (e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. 5.9 Where the neurological symptoms associated with the injured person's injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.
2. The MA Guidelines include a table, which elaborated on the definitions. For example, the term "sciatic nerve root tension signs" is the subject of a definition in Table 6.8 of the MA Guidelines which reads as follows: Sciatic nerve root tension signs Sciatic nerve tension signs are important indicators of irritation of the lumbosacral nerve roots. While most commonly seen in individuals with a herniated lumbar disc, this is not always the case. In chronic nerve root compression due to spinal stenosis, tension signs are often absent. A variety of nerve tension signs have been described. The most commonly used is the straight leg raising (SLR) test. When performed in the supine position, the hip is flexed with the knee extended. In the sitting position, with the hip flexed 90 degrees, the knee is extended. The test is positive when thigh and/or leg pain along the appropriate dermatomal distribution is reproduced. The degree of elevation at which pain occurs is recorded. Research indicates that the maximum movement of nerve roots occurs when the leg is at an angle of 20 degrees to 70 degrees relative to the trunk. However, this may vary depending on the individual's anatomy. Further, the L4, L5 and S1 nerve roots are those that primarily change their length when straight leg raising is performed. Thus, pathology at higher levels of the lumbar spine is often associated with a negative SLR test. Root tension signs are most reliable when the pain is elicited in a dermatomal distribution. Backpain on SLR is not a positive test. Hamstring tightness must also be differentiated from posterior thigh pain due to root tension.

1. The assessment under cl 5.8 is to be carried out in accordance with Part 6 of the Motor Accident Guidelines: Permanent Impairment (PI Guidelines). The definition of "radiculopathy" set out above is repeated at cl 6.138 of the PI Guidelines. A direction at cl 6.140 reads: "Note that complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings do not by themselves constitute radiculopathy. They are described as non-verifiable radicular complaints in the definitions of clinical findings …."
2. Table 6.8 of the MA Guidelines defines the phrase "non verifiable radicular complaints" as follows: Non-verifiable radicular complaints Non-verifiable radicular complaints are symptoms (for example, shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root, but there are no objective clinical findings (signs) of dysfunction of the nerve root (for example, loss or diminished sensation, loss or diminished power, loss or diminished reflexes).

Application of definitions

1. The insurer dismissed the claims of continuing and worsening pain as not constituting an injury the subject of assessment, nor a criterion for the assessment of threshold injury. So much may be accepted. However, pain may be a symptom of an underlying condition, as the last-quoted definition recognises. It appears that assessor Bodel treated claims of radiating pain as warranting investigation. That investigation did not, in his opinion, reveal evidence satisfying the criteria for radiculopathy. The question is not, of course, whether he was correct, or incorrect, but whether it was open to the delegate to be satisfied that there was reasonable cause for suspicion that the assessment may have been incorrect. There is also a possibility, not excluded by the evidence, that another practitioner would be satisfied that radiculopathy (as the term is used in the Regulation) was present in some degree, whether or not the criteria for its assessment were satisfied.
2. The language used in both the MA Guidelines and the PI Guidelines specifies particular criteria by using medical terminology in a defined sense. This provisions (which were not analysed in submissions) are set out above, not in order to discuss the nature of the exercise to be carried out by the medical assessor, but rather to note the highly technical nature of the exercise and the imprecision which inheres in some of the defined terms (understandably, given the nature of medical diagnosis). It may well be correct, as the insurer submitted, that medical assessor Bodel followed all the guidelines meticulously, but it did not follow that his opinions did not allow of a different opinion by a similarly qualified medical expert. In the absence of specific error and detailed reasons (which might not be capable of being provided by a delegate of the President), it is necessary for the insurer to establish that the state of satisfaction recorded by the delegate was not open on a consideration of all the material before her. [7]

Conclusion based on the evidence

1. Conscious no doubt of the need to place before the Court all the material before the delegate, the solicitor's affidavit prepared for the hearing exhibited that material: the exhibits ran to 650 pages. The Court was not, however, taken to that material and it would not be appropriate to sift through it without direction. However, without undertaking that exercise it is not possible to know whether there were medical findings or opinions contained in it which could have given rise to doubt as to the correctness of assessor Bodel's findings.
2. Accordingly, for this and the other reasons identified above, the plaintiff has not established jurisdictional error on the part of the delegate in forming a state of satisfaction, expressed in the terms of the statutory test, namely that there was "reasonable cause to suspect that the medical assessment was incorrect in a material respect".

Orders

1. The Court makes the following order: 1. Dismiss the further amended summons filed by the plaintiff on 25 July 2024.
2. As the President filed a submitting appearance and the first defendant (the claimant) did not file an appearance at all, there will be no order as to the costs of the proceedings.

Endnotes

1. Uniform Civil Procedure Rules 2005 (NSW), r 59.10.
2. (1949) 78 CLR 353, 360; [1949] HCA 26.
3. (1996) 185 CLR 149, 159; [1996] HCA 60.
4. See M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2022, Lawbook Co) at [15.120], [15.160], [15.240]-[15.280].
5. Op cit at [15.200]-[15.210].
6. Non-bolded italics have been added for emphasis of relevant parts.
7. Avon Downs at 360, discussed at [8] above. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2025