Mandoukos v Allianz Australia Insurance Ltd

Mandoukos (the appellant) brought proceedings against Allianz Australia Insurance Ltd (the insurer) in the Court of Appeal of New South Wales concerning a dispute arising under the *Motor Accident Injuries Act 2017* (NSW). The appellant had sustained a cervical spine injury and undergone surgery. The core of the dispute involved whether the insurer was obliged to refer a further medical assessment to a review panel, and whether the initial medical assessor had erred in their determination.

The Court of Appeal was required to determine whether the primary judge had erred in dismissing the appellant's application for judicial review. Specifically, the court considered whether the primary judge had correctly identified the question before them, which was not solely whether the medical assessor had committed a jurisdictional error, but rather whether the delegate had erred in refusing to refer the medical assessor's decision to a review panel. Further, the court examined the meaning of a "medical dispute" under the Act and whether the medical assessor was obliged to consider if the surgery itself rendered the injury "non-minor," a matter not included in the dispute referred for assessment.

The Court of Appeal held that the primary judge's approach was flawed as it focused too narrowly on the existence of jurisdictional error in the medical assessor's decision, rather than the delegate's decision to refuse referral. The court clarified that a "medical dispute" under the Act requires an actual disagreement between the claimant and the insurer regarding a relevant medical assessment matter. The court found that the medical assessor was not obliged to consider the impact of the surgery on the classification of the injury as "non-minor" because this issue was not part of the dispute referred for assessment.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the first respondent's costs of the appeal.