ADMINISTRATIVE LAW — jurisdictional error — judicial review of Review Panel decision — Motor Accident Injuries Act 2017 (NSW) — where plaintiff underwent spinal surgery to treat other injuries suffered in an accident — whether the surgical removal of bone from facet joints in the spine resulted in further “injury” as defined in s 1.4 — where plaintiff suffered permanent physiological change as the result of the surgery — consent, therapeutic intent and successful treatment of symptoms of other injuries irrelevant to assessing physical consequences of surgery and whether they fall within definition of injury — error established — Panel’s certificate set aside
Quick Take
1Under s 1.4 of the Motor Accident Injuries Act 2017 (NSW), whether surgery necessitated by a motor accident causes further 'bodily injury' is determined by comparing the physical state of the injured person's body before the accident with its state after the surgery; consent to the surgery, its therapeutic intent, and whether it successfully alleviated symptoms of other injuries are all irrelevant to this assessment.
2The surgical removal of bone from a person's spine, where that surgery was reasonable and necessary as a consequence of injuries sustained in a motor accident, constitutes a further 'injury' within s 1.4 because it results in an identifiable and permanent physiological change or disturbance — namely, the spine is no longer intact — and such injury to bone falls outside the definition of 'soft tissue injury' in s 1.6 and is therefore not a threshold injury.
3The obiter observations in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 at [53]-[54], which doubted whether a foraminotomy could constitute an injury absent evidence of identifiable detrimental impact on symptoms or functioning, were made without the benefit of a detailed factual assessment and do not state the correct legal test under the Act.
