Surgery does not cause 'injury' for the purposes of the Motor Accident Injuries Act 2017 (NSW)

The Review Panel (Panel) found that the motor accident aggravated a cervical degenerative disease that was previously asymptomatic and materially contributed to the need for surgery performed by Dr McKechnie. The Panel accepted that conservative treatment had failed to alleviate symptoms to any significant degree, and found the surgery reasonable and necessary.

Having established that the surgery was causally related to the motor accident, the critical determinations to be made by the Panel were whether the surgery was an 'injury' for the purposes of the Act, and if so, whether it was a threshold injury.

The Panel found that although the surgery caused a physiological change, it did not constitute an injury for the purposes of the Act, as it was offered with therapeutic intent and did not result in a detrimental impact on Mr Mandoukos' symptoms or functioning. Both Mr Mandoukos and his treating neurosurgeon reported improvement in his symptoms following the surgery.

In considering the ordinary meaning of the word 'injury', the Panel accepted that for a physiological change to be regarded as an injury for the purposes of the Act, it would have need to have 'arisen unintentionally, typically from an external force outside the control of the affected individual, it would not be planned or deliberate, and it would have an overall adverse effect on the individual. In addition, it would not be consented to by a reasonably minded individual'.

The Panel felt that their determination was 'not inconsistent with the High Court's findings in Mahony. The Court found that the original tortfeasor will be liable for the exacerbation of an injury by medical treatment. The Panel does not accept that the decision in Mahony goes as far as to establish that medical treatment undertaken due to an injury necessarily forms part of that original injury.' [Mahony v J. Kruschich (Demolitions) Proprietary Limited (1985) 156 CLR 522].

The Panel noted that 'surgical intervention performed with the intent of treating an injury, such step is noted to be a deliberate act, that is consented to with the explicit aim of reducing or removing a disease, symptom or loss of function. Surgery, when performed in such context, involves predictable, controlled disturbances to bodily tissue with a specific intention to avoid adverse effects of that disturbance'. The step to undergo surgery was a deliberate and considered act which Mr Mandoukos consented to, with the intention that it would provide relief from his cervical spine symptoms.

The Panel also distinguished between impairment and injury, noting that impairment is not necessarily synonymous with injury, rather it is a consequence of an injury. While liability for the consequences of injury and therefore accident-related surgery will generally flow to the Insurer, those consequences do not necessarily constitute an injury for the purposes of the Act.

The Panel revoked the medical assessor's certificate and certified that the referred injury - 'Injury to bone - facet joint - cervical spine - due to foraminotomy surgery performed by Dr McKechnie on 1 July 2020 as a consequence of injury sustained in the MVA on 8 January 2019' does not constitute an injury for the purposes of the Act.

As a consequence, it was not necessary for the Panel to determine whether the injury was a threshold injury, but they did comment that if the surgery was considered an injury for the purposes of the Act, the removal of bone during the surgery would render it a non-threshold injury, as the removal of bone falls outside the definition of soft tissue injury under s1.6 of the Act.