Background
Nicolas Mandoukos was injured in a January 2019 motor vehicle accident. The accident significantly aggravated his pre-existing cervical spine condition, causing symptoms that did not respond to conservative treatment. In July 2020 he underwent a C5/6 foraminotomy, during which bone was removed from his facet joints. The surgery improved his symptoms.
A medical assessor found that the accident necessitated the surgery and that the resulting injury to bone was not a threshold injury under the Motor Accident Injuries Act 2017 (NSW). On Allianz’s review, a Review Panel accepted that the surgery was reasonable, necessary and causally related to the accident, but revoked the assessor’s certificate. It concluded that the surgery did not constitute an “injury” because it was therapeutic, consensual and had not detrimentally affected Mandoukos’s symptoms or functioning. Mandoukos sought judicial review of that decision.
The Court’s Holding
Schmidt AJ held that the Review Panel committed jurisdictional error by misapplying the statutory definition of “injury.” The surgical removal of bone permanently altered Mandoukos’s spine and caused further bodily injury, including injury to his facet joints and soft tissues. But for the accident, he would not have undergone the surgery and his spine would have remained intact.
The Court held that the surgery’s therapeutic purpose, Mandoukos’s consent and the improvement in his symptoms did not determine whether it caused bodily injury. The proper inquiry concerned the surgery’s physical consequences, assessed by comparing the state of his body before the accident with its state after the accident-related surgery. Because the Panel’s contrary conclusion was legally unavailable on its own findings, its certificate had to be set aside. The parties were directed to confer on final orders, including costs, within 14 days.
Key Takeaways
- Accident-related surgery can itself cause a further “injury” under the Motor Accident Injuries Act 2017 (NSW), even when the procedure is successful and improves the claimant’s symptoms.
- Consent and therapeutic intent do not negate bodily injury resulting from a permanent physical alteration, such as the removal of healthy bone from spinal facet joints.
- A decision-maker assessing surgical injury must focus on the procedure’s actual physical and psychological consequences, comparing the claimant’s post-surgery condition with the condition before the accident.
Why It Matters
The decision prevents insurers and medical panels from treating beneficial medical treatment as incapable of causing a consequential injury. Under the NSW motor-accident scheme, a permanent bodily alteration may qualify as an injury even where it was deliberately produced by reasonable treatment and relieved the symptoms that prompted the procedure.
The ruling may affect whether claimants whose initial injuries are classified as threshold injuries can pursue damages when accident-related surgery causes additional, non-soft-tissue injury. Any resulting impairment and damages remain matters for assessment under the Act and applicable guidelines.