Mandoukos v Allianz Australia Insurance Ltd [2026] NSWSC 911
Key takeaways
- Surgery undertaken to treat an accident-related injury may itself constitute an injury for the purposes of the Motor Accident Injuries Act 2017 (NSW) (MAIA).
- The definition of ‘injury’ in s 1.4 of the MAIA captures all bodily injuries caused by a motor accident, including injuries resulting from surgery undertaken with a therapeutic intent to treat primary injuries caused by the accident.
- An improvement in symptoms following surgery does not preclude a finding that the surgery caused a bodily injury, particularly where the procedure involved a permanent alteration to the claimant’s physiology.
Background
In January 2019, Mr Mandoukos was injured in a motor vehicle accident. In July 2020, he underwent a C5/6 cervical foraminotomy to treat ongoing cervical spine pain arising from injuries sustained in the accident. The surgery involved the removal of bone from the facet joints and resulted in some improvement in his symptoms, although he continued to experience residual symptoms.
Mr Mandoukos had previously argued, unsuccessfully, that radicular pathology arising after the accident transformed his injury into a non-threshold injury.[1]
He subsequently brought a further application under s 7.24(2) of the MAIA, arguing that the spinal surgery, which was required because of the accident, caused an ‘injury to bone’ and therefore constituted a non-threshold injury. That argument depended on first establishing that the surgery had resulted in an ‘injury’ within the meaning of the MAIA.
A Medical Review Panel accepted that the surgery was a consequence of the injuries Mr Mandoukos had sustained in the accident. The Panel therefore found that the surgery was reasonable, necessary and causally related to the accident. However, it determined that the surgery did not constitute an ‘injury’ for the purposes of the MAIA because it had improved Mr Mandoukos’ symptoms overall and did not have an ‘identifiable detrimental impact upon the Claimant’s symptoms or function arising from the surgery’. As a result, the Panel considered it unnecessary to determine whether the alleged injury was a threshold or non-threshold injury. Mr Mandoukos sought judicial review of that decision.
Issues
The issue before the Court was whether the physical consequences of surgery undertaken to treat accident-related injuries could constitute an ‘injury’ for the purposes of s 1.4 of the MAIA.
The Insurer’s position was that surgical treatment did not fall within the definition of ‘injury’ in s 1.4, although it conceded that the position may be different where surgery resulted in a deterioration of symptoms.
Decision
Schmidt AJ held that the Panel had erred by focusing on the purpose of the surgery when determining whether the removal of bone from the facet joints was an ‘injury’ under the MAIA.
Her Honour found that the relevant question was not whether the surgery itself was an injury, but whether the surgical removal of bone and other physical consequences of the procedure resulted in further bodily injury within the meaning of s 1.4 of the Act.
The Court observed that the meaning of ‘injury’ under the MAIA includes any bodily injury which results from a motor accident, ‘irrespective of whether the injury was caused directly during the accident, or as the consequence of later surgery which the accident made reasonable and necessary’.
Her Honour emphasised that the Review Panel had failed to acknowledge that the surgery caused a permanent change to Mr Mandoukos’ body and, in doing so, resulted in further bodily injury. Her Honour also observed that surgery will commonly involve physical changes to the body, including damage to skin, flesh and blood vessels, even where the procedure is performed for a therapeutic purpose.
The Court determined that the surgical removal of bone constituted a bodily injury. As the surgery was undertaken as a consequence of the accident-related injuries, the resulting injury was also regarded as having been caused by the accident.
Schmidt AJ further held that Mr Mandoukos’ consent to undergo surgery for the purpose of treating his accident-related injuries was not relevant to whether the removal of bone from the facet joints constituted an injury. Her Honour noted that the definition of injury in s 1.4 of the MAIA is:
“not concerned with intentional acts which cause injury. Nor with the therapeutic intent of surgery. The Act being concerned as it is with injury which has resulted from a motor accident, the definition including bodily injury, which may or may not be a soft tissue injury.”
Her Honour concluded,
“But for the accident, he would not have suffered either the soft tissue injury which the surgery inflicted, nor the damage to his spine which resulted. But for the accident, it would have remained intact.”
The Court ultimately accepted Mr Mandoukos’ argument that the surgery resulted in a non-threshold injury, allowing him to recover damages.
Why the decision is important
This Supreme Court decision adopts a remarkably broad interpretation of the concept of injury.
Some disquiet may attach to the notion that a surgical procedure with both the intent and outcome of reducing symptoms may nonetheless constitute an injury in its own right. More so if it is accepted, perhaps as a matter of common sense, that injury must be associated with harm. After acknowledging that Mr Mandoukos’ procedure involved removal of a bone, the Court added that “the surgery itself caused further soft tissue injuries”.
The Court’s rationale is that surgery inevitably involves a process of harm before achieving its objective of good. The reader may ask, can the same logic apply to other procedures, such as an injection of anaesthetic which involves piercing the skin? Would a claimant, upon departing their doctor’s surgery, having undergone an injection to treat their pain, assert the injection caused them a new injury?
The decision may also represent a departure from the observations, albeit obiter, of the NSW Court of Appeal in Mandoukos v Allianz Insurance Ltd [2024] NSWCA 71. In that case, the Court held that it was neither necessary nor appropriate for it to determine whether the surgery resulted in an injury within the meaning of the MAIA, as that issue did not fall within the medical dispute then before it. However, the Court observed:
‘….on the assumption that the removal of bone during the foraminotomy procedure could be a personal or bodily injury as defined in the Act…. my provisional view is that that would be a “different” injury from the injury to Mr Mandoukos’ cervical spine sustained at the time of the motor accident. The foraminotomy procedure occurred some 18 months after the motor accident… It is also of a different character from an assault or impact upon the body consequence upon the forces of the motor accident.’ (emphasis added)
Schmidt AJ rejected the significance of consent and therapeutic purpose in this context. Her Honour observed that the definition of injury in s 1.4 of the MAIA is “not concerned with intentional acts which cause injury. Nor with the therapeutic intent of surgery“. Rather, the focus is on whether the accident ultimately resulted in bodily injury.
Thus, application of the ‘but for’ test arguably leads to confidence that the correct outcome was achieved in permitting a finding that a non-threshold injury was caused by the accident. Uninjured, Mr Mandoukos would not have required removal of a bone from his body.
If the Court’s reasoning in this case is not challenged, claimants and insurers will need to pay close attention to operative reports and surgical findings to determine whether a procedure has resulted in any structural change to the body. Where surgery involves the removal of bone or another anatomical alteration, there may be a basis for a finding that the claimant has sustained a non-threshold injury. However, such cases are likely to be uncommon, as many claimants who undergo surgery will already have sustained a non-threshold injury in the first instance.
This article was written by Solicitor Liam Barrera and Principal Lawyer Andrew Gorman. For further information or advice on any related matters, please contact Andrew.
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