Case: Mandoukos v Allianz Australia Insurance Ltd [2026] NSWSC 911
Why This Case Matters
The NSW Supreme Court has confirmed that surgery required because of a motor vehicle accident may itself amount to a separate injury under the Motor Accident Injuries Act 2017.
This is an important decision for people injured in motor vehicle accidents who undergo surgery after their accident. Even where the original injury is considered a “threshold injury”, the physical effects of accident-related surgery may result in a non-threshold injury, potentially affecting a person’s entitlement to benefits and compensation.
What Happened?
Mr Mandoukos was injured in a motor vehicle accident in 2019. He had a pre-existing neck condition from an earlier accident, but his symptoms worsened after the 2019 accident.
As a result of his ongoing symptoms, he underwent cervical spine surgery known as a C5/6 foraminotomy. The procedure involved removing part of the bone in his neck to relieve pressure on nerves.
The matter eventually came before a Review Panel, which accepted that:
- the surgery was causally related to the accident;
- the surgery was reasonable and necessary; and
- the surgery improved Mr Mandoukos’ symptoms.
A Review Panel accepted that the surgery was related to the accident, was reasonable and necessary, and had improved Mr Mandoukos’ symptoms. However, it determined that the surgery was simply treatment rather than an “injury” for the purposes of the Motor Accident Injuries Act 2017.
Mr Mandoukos challenged that finding in the Supreme Court.
The Key Question
The Court was asked to determine:
Can surgery required because of an accident amount to an “injury” under the Motor Accident Injuries Act?
This question was important because injury to bone is not classified as a threshold injury under s 1.6 of the Act. If the physical consequences of the surgery amounted to an injury to bone, Mr Mandoukos may therefore have sustained a non-threshold injury. That distinction was significant because a finding of non-threshold injury would entitle him to ongoing statutory benefits under the Act, whereas a threshold injury finding limited his entitlement to pursue further statutory benefits and a common law claim.
The Court’s Decision
The Supreme Court found that the Review Panel had made an error of law and set aside its decision.
The Court held that the correct question was not whether the operation itself was “treatment”, but whether the physical consequences of the surgery caused bodily injury.
Because the surgery permanently altered Mr Mandoukos’ spine by removing bone, the Court found that it constituted a further bodily injury under the Act.
Key Findings
The Court confirmed that:
- The focus should be on the physical effects of surgery, not whether the procedure was treatment.
- A surgical procedure can cause a new bodily injury if it permanently changes the body’s structure.
- It does not matter that the surgery was consented to, successful, or intended to improve symptoms.
- Removal of bone is a form of bodily injury.
- Injury to bone is not a threshold injury under the Motor Accident Injuries Act.
What Does This Mean for Injured Claimants under CTP?
This decision may assist Claimants who:
- were injured in a motor vehicle accident;
- later required surgery because of those injuries; and
- have been told their injuries are only threshold injuries.
Where surgery causes a permanent structural change to the body, such as the removal of bone or damage to other non-soft tissue structures, that consequence may be considered a separate injury for the purposes of the Act.
Practical Implications
The case highlights the importance of obtaining medical evidence that clearly explains the physical consequences of surgery. That evidence should identify whether the surgery caused physical changes that fall outside the definition of “soft tissue injury” in Motor Accident Injuries Act.
Relevant surgical consequences may include:
- removal of bone;
- nerve injury;
- scarring;
- altered anatomy;
- damage to cartilage, ligaments, tendons or other non-soft tissue structures; or
- other permanent structural changes to the body.
The focus should be on what physically changed in the body as a result of the surgery, rather than whether the surgery was beneficial or successful.
Where the surgical consequences involve injury to bone or other structures that are not captured by the Act’s definition of “soft tissue injury”, those consequences may support a finding that the claimant has sustained a non-threshold injury. This is important because the dispute is not simply whether surgery occurred, but whether the physical result of that surgery produced an injury that falls outside the threshold injury category.
Takeaway
The decision in Mandoukos v Allianz confirms that the focus is not simply on why surgery was performed, but on what physical consequences the surgery caused. Where accident-related surgery results in a permanent structural change, such as the removal of bone or injury to other structures outside the s 1.6(2) definition of “soft tissue injury”, that consequence may support a finding of non-threshold injury under the Act.
For injured claimants, this decision may provide an important pathway to challenge threshold injury findings and pursue further statutory benefits and, where available, a common law claim following a motor vehicle accident.
If you have been injured in a motor vehicle accident and have been told your injuries are threshold injuries, Turner Freeman Lawyers can assist you to understand your rights and options. Contact us today.
