Consequential Surgery And The Meaning Of “Injury” Under The Motor Accident Injuries Act 2017: Mandoukos v Allianz Australia Insurance Ltd [2026] NSWSC 911

The NSW Supreme Court has set aside a Personal Injury Commission Review Panel decision concerning the definition of “injury” under the Motor Accident Injuries Act 2017 (NSW) (‘MAI Act’).

In Mandoukos v Allianz Australia Insurance Ltd [2026] NSWSC 911, Schmidt AJ held that spinal surgery (removal of a bone) necessitated by accident-related injuries resulted in an “injury” for the purposes of the MAI Act.

Mr Mandoukos was injured in a motor vehicle accident in January 2019. Although earlier assessments found his cervical spine injury to be a threshold injury, ongoing symptoms led to a C5/6 foraminotomy in July 2020. The procedure involved the surgical removal of bone from facet joints in his cervical spine.

A Medical Assessor subsequently determined that the surgery had caused an injury to bone and therefore resulted in a non-threshold injury. The insurer successfully challenged that decision before a Review Panel.

The Review Panel accepted that the accident materially contributed to the need for surgery, that the procedure was reasonable and necessary, and that bone was removed during the operation. Nevertheless, it concluded that the surgery was not an “injury” under the MAI Act because it was undertaken with the Claimant’s consent, for a therapeutic purpose, and had improved rather than worsened his symptoms.

Schmidt AJ rejected that reasoning. Her Honour held that the Review Panel had focused on the purpose of the surgery rather than its physical consequences for the Claimant’s body. The statutory definition of injury in s 1.4 is concerned with “personal or bodily injury”. On the Review Panel’s own findings, the surgery permanently altered the Claimant’s spine through the removal of bone. That physiological change constituted a further bodily injury.

Schmidt AJ stated at 125:

“On Mr Mandoukos’ case, the Panel’s approach also led it to incorrectly concentrate on a comparison between his position immediately before and after the surgery. Rather than on what the Act required. A comparison of the state of his spine before the accident, with its state after the surgery. The definition of injury being concerned, as it is, with 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.”

The Court held that consent, therapeutic intent and the successful alleviation of symptoms were irrelevant to determining whether a bodily injury had occurred. The question was whether the surgery produced a physical change or disturbance to the Claimant’s body. In circumstances where the Claimant’s spine was intact before the accident and permanently altered by surgery required because of the accident, the Review Panel’s conclusion that no injury had occurred was not available.

Conclusion

The decision is significant because it confirms that consequential bodily injuries resulting from reasonable and necessary accident-related treatment may themselves fall within the MAI Act.

It also reinforces the distinction between the concepts of “injury” and “threshold injury”, with the Court noting that injury to bone does not fall within the statutory definition of soft tissue injury

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