Tag: Mandoukos

#54 – Supreme Court finds Consequential Surgery Constitutes “Injury”

Decision

Mandoukos v Allianz Australia Insurance Ltd [2026] NSWSC 911

Sixty-Second-Or-Less Summary

A motor accident causes a threshold injury to the Claimant’s cervical spine. The Claimant, however, subsequently undergoes cervical surgery which involves the removal of some bone.

Does the consequential surgery constitute a non-threshold injury?

In Mandoukos v Allianz, the Supreme Court concluded that bodily changes caused by consequential surgery can constitute a non-threshold injury if those changes fall outside the definition of “soft tissue injury” in s 1.6(2) of the Motor Accident Injuries Act 2017 (MAIA).

Importantly, however, the Supreme Court accepted that bodily changes caused by the consequential surgery constituted an “injury” as defined by section 1.4 of MAIA.

Principles

✅ A Claimant is not entitled to ongoing statutory benefits or common law damages if their only injuries are threshold injuries as defined by section 1.6 of the Motor Accident Injuries Act 2017 (MAIA).

✅ Bodily changes caused by consequential surgery constitute an “injury”, as defined by section 1.4 of MAIA.

✅ Bodily changes caused by consequential surgery will constitute a “non-threshold injury” if those changes fall outside the definition of “soft tissue injury” in section 1.6(2) of MAIA.

Facts

On 8 January 2019, the Claimant swerved to avoid a motor vehicle which made a turn in front of his vehicle and collided with a light post.

The accident caused a cervical strain and aggravation of pre-existing C5/6 degenerative disc disease.

The Claimant, however, subsequently underwent a C5/6 foraminotomy, which involved removing a segment of bone. There was no dispute that the surgery was related to the motor accident and was both reasonable and necessary.

The primary Medical Assessor concluded that the consequential surgery resulted in injury to bone and the partial or complete rupture of ligaments and tendons. The primary Medical Assessor proceeded to certify that the injuries sustained during the consequential surgery were not threshold injuries.

The Review Panel, however, determined that the changes to the Claimant’s body, caused by the surgery, did not constitute an “injury“, as defined in section 1.4 of MAIA. The substance of the Review Panel’s reasoning was that a change to a person’s body does not constitute an “injury” unless the person suffers some detriment. In this dispute, the surgical procedure was voluntarily undertaken and was to the Claimant’s overall benefit.

Given the Review Panel finding that the changes caused to the Claimant’s body by the surgery did not constitute an “injury”, the question of whether those changes constituted a threshold injury did not even arise.

The Claimant sought Judicial Review in the Supreme Court.

The Supreme Court’s Decision

The Supreme Court found that the Review Panel erred for the following reasons:

🟪 The Review Panel focussed, unduly, on the purpose of the surgical procedure and focussed too little on the changes to the Claimant body caused by the surgery.

🟪  The dispute required the Review Panel to consider the physical results of the surgery which included an incision to allow access to the bone which had to be removed.

🟪  The Review Panel also erred by concentrating on the difference between the Claimant’s condition before and after the surgical procedure. In assessing whether the accident caused the Claimant an injury, the Review Panel should have concentrated on the difference between the Claimant’s condition post-surgery with the Claimant’s condition before the motor accident.

🟪  The definition of “injury” in section 1.4 of MAIA is not concerned with whether the injured person has consented to surgery or whether the surgery caused further harm or damage to the injured person’s body.

🟪 The definition of “injury” in section 1.4 captures all bodily injuries caused by a motor accident, including those which result from surgery pursued for a therapeutic purpose.

🟪 The fact that the surgery had some success in alleviating the Claimant’s symptoms is irrelevant to the question of whether the surgery itself caused further bodily injury.  

My Perspective

Subject to any appeal, the Supreme Court’s decision in Mandoukos resolves the doubt created by obiter remarks made by the Supreme Court and the Court of Appeal regarding whether bodily changes wrought by consequential surgery can constitute an “injury” in the absence of detriment.

That issue was squarely before the Supreme Court, on this occasion, and the Court has confidently concluded that any bodily change caused by consequential surgery falls within the definition of “injury” in section 1.4 of MAIA. It follows that it is not necessary to find detriment. The bodily change caused by the surgery is, itself, sufficient to constitute “injury”.

Whether that injury constitutes a non-threshold injury turns on whether it falls within the definition of “soft tissue injury” in section 1.6(2) of MAIA.

Given the removal of bone from this Claimant’s spine, the injury arising from his consequential surgery was clearly a non-threshold injury.

This decision should also put to an end the speculative argument that aggravation of a pre-existing injury does not constitute an “injury” for the purpose of section 1.4 and is, therefore, not compensable under the CTP scheme.

PJH

#29 – Sharpen Your Pencil – Care Required in Defining the Scope of Medical Disputes

Decision

Fitzsimmons v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPICMP 37

Sixty-Second-Or-Less Read

A Claimant successfully applies for a review of a primary WPI assessment. The Claimant’s facial scarring was assessed by a different primary medical assessor. The review application includes “facial disfigurement” in the list of injuries to be assessed.

Is any impairment caused by the Claimant’s facial scarring before the Review Panel?

In Fitzsimmons v IAG, the Medical Review Panel concluded that it was not required to assessed the Claimant’s scarring impairment. Its reasoning included the fact that the Claimant clarified in correspondence to the Commission that the term “facial disfigurement” was intended to refer to the facial nerve damage assessed by the primary medical assessor. Furthermore, facial nerve injury and facial scarring required different assessment methods.

In Brief

✅ A medical dispute is defined by all the correspondence between the parties and the Commission, including forms, submissions and other correspondence with the Commission during the life of the dispute.

Facts

The Claimant was injured in a motor accident on 18 January 2013 when he was a child. A dispute subsequently developed between the parties as to whether the Claimant’s accident-related injuries gave rise to an impairment exceeding 10%.

At first instance, the Claimant’s WPI was assessed at 9% by two primary Medical Assessors. The Claimant successfully sought a review of the first Medical Assessor’s assessment.

The Review Panel noted that the Claimant’s submissions listed a number injuries, including “mild facial disfigurement”. An issue arose as to whether the inclusion of “mild facial disfigurement” meant that “facial scarring” was an injury which the Review Panel had to assess.

The Review Panel’s Decision

The Review Panel concluded that “facial scarring” was not an injury which the Review Panel was required to assess for the following reasons:

🟪 The Court of Appeal held in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71, that a medical dispute is “a question of fact depending on the ambit of the dispute between the parties at the relevant time having regard to the competing claims made”.

🟪 The further evidence relied upon by the Claimant did not include any assessment of scarring and the expert the Claimant relied upon with respect to his facial disfigurement said that scarring was outside their expertise.

🟪 The Claimant’s scarring was previously assessed by a different primary Medical Assessor and the Claimant had not sought a further or review assessment of that injury.

🟪 Subsequent correspondence between the Claimant’s Solicitor and the Commission made it clear that the scope of the dispute was limited to a left facial nerve injury and did not extend to facial scarring.

🟪 The assessment of permanent impairment caused by facial nerve injury and facial scarring involves the application of different Tables in the relevant permanent impairment guidelines.

My Perspective

The decision in Fitzsimmons provides a useful reminder that in the post-Mandoukos world the parties must be vigilant in their correspondence with the Commission because that correspondence defines the scope of the dispute between the parties. A slip might result in the dispute being inadvertently restricted or expanded.

The Review Panel in Fitzsimmons made it clear, at [68], that the Commission will look beyond the application and reply forms lodged by the parties in order to ascertain the scope of the dispute. Subsequent submissions – or even a post made on the PIC Portal – has the capacity to help define the scope of the dispute.

PJH