Rae v The Nominal Defendant

Background

1. On 29 July 2014, the plaintiff was injured in a motor vehicle accident that occurred in New South Wales ("the accident"). He lodged a claim for personal injury damages sustained in the accident with SIRA against the defendant.
2. The plaintiff claims an entitlement to damages for non-economic loss. Under s 131 of the Motor Accidents Compensation Act 1999 (NSW) ("the MAC Act"), such damages are only compensable where the claimant has sustained a degree of whole person impairment ("WPI") greater than 10%. As the defendant disputed the plaintiff's claim, the plaintiff was required to undergo an assessment of his degree of impairment under Part 3.4 of the MAC Act.
3. On 20 January 2016, the plaintiff applied for an assessment of his WPI.
4. On 6 May 2016, Assessor Alan Home issued a certificate determining that the plaintiff's WPI was not greater than 10%.
5. On 28 June 2019, the plaintiff applied for a further assessment of permanent impairment which included, for the first time, a claim in respect of respiratory obstructive sleep apnoea.
6. On 31 July 2019, the defendant filed a reply.
7. On 18 November 2019, the Medical Assessor conducted a further assessment. On 20 November 2019, the Medical Assessor issued a certificate and reasons in which he certified that the plaintiff's injuries gave rise to a WPI which was not greater than 10%. In his decision, the Medical Assessor determined that the plaintiff's sleep apnoea was not caused by the accident.
8. The plaintiff made an application to the Proper Officer for the matter to be referred to a Medical Assessors Review Panel pursuant to s 63 of the MAC Act.
9. On 24 February 2020, the Proper Officer dismissed the plaintiff's application on the basis that there was not reasonable cause to suspect that the Medical Assessor's decision was incorrect in a material respect.
10. The plaintiff says that there are a number of jurisdictional errors and/or errors of law on the face of the record in both the Medical Assessor's decision and the Proper Officer's decision. Alternatively, he claims that in making their decisions, both the Medical Assessor and/or the Proper Officer constructively failed to exercise their statutory power.

Extension of time

1. The first issue that needs to be addressed is whether the plaintiff should be granted an extension of time in relation to the filing of the summons.
2. The plaintiff requires an order under r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) extending the time for him to bring these proceedings with respect to the Medical Assessor's decision. The basis for the extension is that it was appropriate for the plaintiff to first exhaust his review rights under the MAC Act before commencing proceedings in this Court. The approach taken by the plaintiff is an approach recently endorsed by this Court: see Slade v Insurance Australia Limited t/as NRMA [2020] NSWSC 1031 at [22] per Wright J, citing Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [91] to [92].
3. The plaintiff adopted the correct approach by exhausting his statutory appeal rights before seeking judicial review in this Court. The insurer does not challenge the application for an extension of time. In my view, it is appropriate that I grant an extension of time up to and including 25 May 2020.

The statutory regime

1. Sections 57 to 58, 60 to 61, 131 and 133 of the MAC Act are relevant to these proceedings. They read: "Part 3.4 Medical assessment 57 Definitions In this Part: medical assessment matters means any of the matters referred to in section 58. medical assessor means a person appointed under this Part to make an assessment under this Part. medical assessors review panel means a panel of medical assessors convened under this Part to review an assessment under this Part. medical dispute means a disagreement or issue to which this Part applies. 57A Motor Accidents Medical Assessment Service (1) The Authority is to establish in association with its operations a unit, to be known as the Motor Accidents Medical Assessment Service. (2) The Service is to consist of medical assessors and such members of staff of the Authority as the Authority determines. 58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters): (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident, (c) (Repealed) (d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. (e) (Repealed) (2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor. … 60 Medical assessment procedures (1) A medical dispute may be referred to the Authority for assessment under this Part by either party to the dispute or by a court or claims assessor. (2) The Authority is to arrange for the dispute to be referred to one or more medical assessors. (3), (4) (Repealed) 61 Status of medical assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. (3) (Repealed) (4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party. (5) If a certificate as to any matter is rejected under subsection (4), the court is to refer that matter again for assessment under this Part and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings. (6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part. (7) Except as provided by subsection (6), a court may not substitute its own determination as to any medical assessment matter. (8) This section: (a) does not prevent a court from referring a matter again for assessment under this Part (as provided for by section 62), and (b) does not require a court to refer a matter again for assessment under this Part if the matter is not a medical assessment matter. (9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence. … Part 5.3 Damages for non-economic loss 131 Impairment thresholds for award of damages for non-economic loss No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. … 133 Method of assessing degree of impairment (1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part. (2) The assessment of the degree of permanent impairment is to be made in accordance with: (a) Motor Accidents Medical Guidelines issued for that purpose, or (b) if there are no such guidelines in force--the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition. (3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury."

The relevant Guidelines

1. Under s 133(2) of the MAC Act, the assessment of the degree of permanent impairment is to be made in accordance with the Motor Accidents Medical Guidelines or the fourth edition of the American Medical Association Guides ("the AMA4").
2. The Medical Assessment Guidelines, effective 1 October 2018, dictate the obligations of the Medical Assessor and Review Panel in these proceedings.
3. The plaintiff referred to cls 9.10 and 9.11 of the Medical Assessment Guidelines. They relevantly state: "9.10 When a dispute is considered ready to be allocated for assessment, an officer of MAS shall determine the way in which an assessment is to proceed and may: 9.10.1 request that a claimant attend a medical or other examination or examinations at a designated location (see clause 9.11); 9.10.2 request that one or more Medical Assessors assess the dispute on the documentary material provided, having considered any submissions from the parties on this issue (see clauses 9.11 and 9.12); … 9.11 In the case of clauses 9.10.1 and 9.10.2, an officer of MAS shall: … 9.11.5 provide the Assessor or Assessors with: 9.11.5.1. a copy of the application and reply and all documents and material in support of the application and reply; 9.11.5.2 the notification letter sent to the parties under clause 9.11.4; 9.11.5.3 a copy of any certificates and reasons previously issued by MAS in relation to the same claimant, not limited to the same matter, after the parties have been provided with a copy of these documents; and 9.11.5.4 details of any other Assessor allocated to also assess the dispute and the injuries referred to them, if the dispute is to be assessed by more than one Assessor."
4. Finally, cl 13.2 of the Medical Assessment Guidelines reads: "13.2 The certificate shall include written reasons for the determination in the form approved by the Authority."
5. SIRA has also issued Motor Accident Permanent Impairment Guidelines ("the Permanent Impairment Guidelines") for assessing the degree of permanent impairment arising from motor accident injuries. The edition of the Permanent Impairment Guidelines relevant to these proceedings was issued in 2018.
6. In Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 ("Boyce") the Court of Appeal held that a failure to comply with the Permanent Impairment Guidelines can constitute a constructive failure to exercise jurisdiction: see Boyce at [9], [14] to [22], [41], [44], [49] to [51], [66] per Basten JA (Macfarlan JA agreeing) and at [108] per Sackville AJA.
7. Clause 1.5-1.7 of the Permanent Impairment Guidelines relevantly reads: "1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident… Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. 1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: 1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 2. The alleged factor did cause or contribute to worsening of the impairment, which is a non- medical determination.' This, therefore, involves a medical decision and a non-medical informed judgement. 1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."

The Medical Assessor's decision

1. On 20 November 2019, the Medical Assessor issued his certificate and reasons in relation to the plaintiff's application for further review. The Medical Assessor stated that he had seen and considered the files relating to Medical Assessor Home's review, in addition to the parties' further application and reply forms and relevant supporting documents. The Medical Assessor also conducted an assessment of the plaintiff, who attended unaccompanied.
2. Although the injuries listed for assessment included injuries to the cervical spine, right ankle, right shoulder and chest, only the assessment in relation to the plaintiff's sleep apnoea is relevant to this judicial review.
3. Under the heading "Pre-Accident Medical History and Relevant Personal Details", the Medical Assessor relevantly stated (p 3): "At the time of [the accident] he was employed as a machine operator. Following the accident, he was initially unable to return to this occupation due to pain and discomfort in his neck and right ankle. Eventually it was decided he would not be able to return to heavy work in the future. He obtained work as a part time bus driver, an occupation he had carried out in the past. He worked for several months before being made full time. During this period, he was also being investigated for palpitations and a heart problem. He reported that he was also having panic attacks around this time. For these reasons he ceased driving a bus and due to his cardiac condition, his commercial vehicle license was also medically removed. He is not working at the current time. He states that he is unable to obtain a pension as his wife continues to work."
4. Under the heading "History of Symptoms and Treatment Following the Motor Accident", the Medical Assessor relevantly wrote (p 4): "In late 2018 it was reported to Dr Cytra that he was noted to be snoring at night. At the time he was noted to have a body mass index of 32. He was referred for a sleep study, which was reported as showing severe sleep apnoea. A recommendation was made that he be followed up by a Sleep Physician and should have a trial of a CPAP machine. Due to financial reasons this has not been gone ahead with. He does have a mandibular advancement splint."
5. Under "Current Symptoms", the Medical Assessor continued (p 5): "With respect to his recently diagnosed sleep apnoea he reports that he tends to go to bed at night between 9-10PM. He will then get up 3-4 times overnight; at least 3 of those to go to the toilet. Whilst he does not use a CPAP machine, he is using a mandibular advancement splint to help him breathe whilst he is asleep. This appears to have improved his ability to get a good night's sleep. He tends to wake up in the morning and get up around 7.30AM. His wife has told him that he continues to shore but not as much as before he used the mouth splint. He reported that he is a non-smoker and has no history of asthma, bronchitis or pneumonia. … [The plaintiff] continues to see Dr Cytra every 4-5 weeks. He is currently having no physiotherapy and does very little exercise. He takes 2 Panadol 3 times a day. He reported that by taking the medication before going to bed it helps him to sleep by dulling the pain."
6. The Medical Assessor noted at pp 8-9 that "there was no mention made of sleep apnoea or sleep problems", nor any documentation concerning sleep apnoea in the plaintiff's initial application for assessment before Medical Assessor Home.
7. Under the heading "Summary of Relevant Additional Documentation Provided for the Further Assessment", the Medical Assessor relevantly stated (pp 10-11): "I note the sleep study report of Dr Banerjee, Sleep Physician dated 10.09.18. Dr Banerjee diagnosed severe obstructive sleep apnoea with hypoxaemia. He recommended a CPAP trial. I note the Independent Medical Examination report of Professor David Bryant dated 29.03.19. Professor Bryant noted that he had an Epworth Sleepiness Score of 8/24. He obtained a history that he would awake at night with a feeling of choking and the fact that he could not breathe. He would also awake on occasions due to pain in the neck and his right ankle. [The plaintiff's wife] had also told Professor Bryant that her husband rarely snored before the accident but had snored quite heavily since the accident. He reported that he is currently using a mandibular advancement device. Professor Bryant also noted that [the plaintiff] believed that he had put on weight after the accident, but the general practice notes revealed that on the 04.05.12 Mr Rae was 108kgs and on the 05.08.13 he was 118 kgs. From this information Professor Bryant found that there was no significant increase in weight following [the accident]. Professor Bryant confirms that there is severe obstructive sleep apnoea with an apnoea hypopnoea index of 69 per hour with oxygen saturation going down to 59%. I noted on page 4 of his report Professor Bryant stated: 'He gives no history of regular snoring or a sleep disturbance or of day time somnolence prior to [the accident] and I am therefore of the opinion that it is more probable than not that his sleep apnoea has developed since the motor vehicle accident.' 'Obesity is one of the main factors contributing to the development of obstructive sleep apnoea. [The plaintiff's] history suggests that he may have put on some weight since [the accident] although the records of his GP indicate that it is probable that his weight is not greatly different to his weight in the year or two prior to [the accident] and that some other factor is likely to have been the major cause with development of sleep apnoea.' Professor Bryant then opines that a lack of exercise in the period following the accident may have led to the development of his sleep apnoea. He quoted one article, which proposed that the mechanism for developing sleep apnoea is weight independent shift in fluid from the legs in sedentary people to the brain area at night especially among individuals with significant fluid retention and his associated cardiac disease. Whilst I agree with Professor Bryant that the major cause we see is in fact obesity, it has been proposed that fluid retention may be another cause especially in those with heart disease. This is currently a research hypothesis and needs further research to confirm whether it is the case or not. I note that [the plaintiff] has developed heart disease since the accident and was noted to have an arrhythmia when he was in the hospital with a bundle branch block. His heart condition has not been diagnosed as being associated with [the accident]. Additionally, I note that nowhere within the documentation did Professor Bryant state that his sleep apnoea was causally related to [the accident]."
8. The Medical Assessor relevantly concluded (p 11): "With respect to sleep apnoea I note that [the plaintiff's] weight did not increase after the accident. I note that the proposed criteria for development of sleep apnoea secondary to fluid retention and movement of fluid at night continues to be a hypothesis and has not yet been confirmed with further research. Additionally, I note that in [the plaintiff's] case I believe that if he does have fluid retention it is associated with [his] heart condition, which has not been shown to be related to [the accident]. In conclusion, I believe that his sleep apnoea is related to his obesity with a body mass index greater than 30, which was present prior to [the accident] and has continued to be present."
9. On this basis, the Medical Assessor concluded that the plaintiff's sleep apnoea was not caused by the accident. The Medical Assessor determined that the plaintiff suffered a final WPI of 4% in relation to his injury to the right ankle/hindfoot, but no other compensable injuries arising out of the accident.

The plaintiff's submissions

1. The plaintiff submitted that the Medical Assessor was under a duty to make his determination in accordance with the MAC Act, the applicable Guidelines and the AMA4. These required the Medical Assessor to apply the correct law of causation.
2. The plaintiff submitted that the Medical Assessor failed to determine whether the subject accident, resulting injuries and treatment could have caused, and actually caused, the plaintiff's sleep apnoea. Under cls 1.5-1.7 of the Permanent Impairment Guidelines, the Medical Assessor was required to apply common law principles of causation embracing s 5D of the Civil Liability Act 2002 (NSW), including the application of the "but for" test and/or the test of material contribution. The accident need not be the sole cause of the plaintiff's condition, but only needs to be a cause which is more than negligible.
3. The plaintiff submitted that the Medical Assessor failed to have regard to detailed evidence of sleep apnoea being diagnosed shortly after the motor accident, including the 2014 report of cardiologist Dr Hisham Hallani noting a history of possible obstructive sleep apnoea; the 2015 reports of cardiologist Dr Raul Amor reporting the plaintiff's symptoms of sleep apnoea and recommending sleep testing; and the 2016 report of Dr Amor confirming the diagnosis of obstructive sleep apnoea.
4. The plaintiff submitted that in circumstances where the evidence was plain that he did not suffer from sleep apnoea prior to the motor vehicle accident, but did suffer from it as early as September 2014, the Medical Assessor ought to have found that the motor accident was a cause of the sleep apnoea. This was demonstrated by the clear documentary evidence following the accident and the unchallenged history presented by the plaintiff and his wife.
5. As such, in determining the cause of the plaintiff's sleep apnoea condition, the Medical Assessor failed to apply the correct law of causation, such that he fell into error and failed to comply with his statutory duty. As such, his decision should be set aside.

The defendant's submissions

1. The defendant submitted that in his decision, the Medical Assessor was required to determine the "disagreement" between the plaintiff and the defendant as to whether the degree of permanent impairment of the plaintiff as a result of the injury caused by the accident is greater than 10%. Relevantly, the Medical Assessor was required to determine whether the plaintiff's sleep apnoea condition was caused by the accident.
2. The defendant submitted that the Medical Assessor's determination that the plaintiff's sleep apnoea was not caused by the accident complied with his statutory duty. In his reasons, the Medical Assessor noted that the plaintiff was referred for a sleep study in 2018, which demonstrated severe sleep apnoea. This is the first time that the plaintiff was definitively diagnosed with sleep apnoea as a consequence of a sleep study.
3. The Medical Assessor noted that on examination, the plaintiff weighed 100 kgs, with a Body Mass Index of 33.8, placing the plaintiff in the "obese" category. The Medical Assessor correctly noted that there was no documentation concerning sleep apnoea in the original application for assessment of permanent impairment.
4. The Medical Assessor also noted the 2018 sleep study report of Dr Banerjee with a subsequent diagnosis of severe obstructive sleep apnoea. Thereafter, the Medical Assessor considered the report of Professor Bryant, being the primary evidence upon which the plaintiff relied in support of the application for further assessment. The Medical Assessor noted the history provided by the plaintiff's wife that the plaintiff had rarely snored before the accident, but had snored quite heavily since the accident.
5. He noted the finding of Professor Bryant that there had been no significant increase in weight following the accident, and that the plaintiff suffered from obstructive sleep apnoea. Having quoted directly from Professor Bryant, the Medical Assessor undertook a careful and well-reasoned analysis of the issues traversed by Professor Bryant in his report.
6. The defendant noted that the Medical Assessor expressly referred to the hypothesis of Professor Bryant that the lack of exercise in the period following the accident may have led to the development of sleep apnoea. The Medical Assessor referred to the article quoted by Professor Bryant in his report. The Medical Assessor agreed with Professor Bryant that the major cause of sleep apnoea was obesity, although it was proposed that fluid retention may be another cause, especially in those with heart disease.
7. The Medical Assessor noted that the theory relating to fluid retention was a research hypothesis which needed "further research to confirm whether it is the case or not". It was noted that the plaintiff had developed, and been diagnosed, with heart disease since the accident, although it was clear that this was not associated with the accident. The defendant submitted that the Medical Assessor correctly noted that nowhere within the documentation did Professor Bryant "categorically state that his sleep apnoea was causally related to his motor vehicle accident". For these reasons, the defendant submitted that the Medical Assessor correctly determined that the plaintiff's sleep apnoea was not caused by the accident, and that his decision was not in error.

Resolution

1. Clauses 1.5-1.7 of the Permanent Impairment Guidelines are set out earlier in this judgment. Clause 1.7 reflects the "factual causation" test provided in s 5D(1)(a) of the Civil Liability Act, being the "but for" test at common law.
2. Clause 1.6 of the Permanent Impairment Guidelines requires the Medical Assessor to not only find that the accident could have caused the sleep apnoea, which is a medical determination, but also that the accident did cause the sleep apnoea, which is a non-medical determination. Clause 1.6 provides that the Medical Assessor's determination as to causation "involves a medical decision and a non-medical informed judgment".
3. In his decision, the Medical Assessor referred to the report of Dr Banerjee dated 10 September 2018. Dr Banerjee diagnosed the plaintiff as suffering from severe obstructive sleep apnoea, and recommended a CPAP trial. The Medical Assessor also considered at length the report of Professor Bryant, who opined that as the plaintiff had not given a history of snoring or sleep disturbance prior to the accident, it was Professor Bryant's opinion that it was "more probable than not" that his sleep apnoea had developed since the accident.
4. The Medical Assessor stated that he agreed with Professor Bryant that obesity is one of the main factors contributing to the development of obstructive sleep apnoea. However, the Medical Assessor noted that the evidence from the plaintiff's general practitioner in 2012 and 2013 was that the plaintiff's weight had not increased after the accident. The Medical Assessor also noted that Professor Bryant's hypothesis that the movement of fluid retention at night is merely a hypothesis which might explain the development of sleep apnoea, and is a theory which has not been confirmed with further research. Moreover, it was the Medical Assessor's opinion that such fluid retention, were it to have contributed to the plaintiff's sleep apnoea, would be associated with his heart condition, which on the evidence before him was not attributable to the accident.
5. The plaintiff contends that the Medical Assessor failed to properly apply the test for causation prescribed by the MAC Act and the Permanent Impairment Guidelines in reaching his determination. I do not agree. The Medical Assessor was required to make a medical determination as to whether the accident could have caused the plaintiff's sleep apnoea. The Medical Assessor was then required to make a non-medical determination as to whether the accident did in fact cause the sleep apnoea. In his decision, the Medical Assessor clearly set out his reasons for considering that obesity was the cause of the plaintiff's sleep apnoea, and that he did not accept Professor Bryant's hypothesis for causation concerning the movement of fluid retention at night. As the plaintiff's body mass index had not substantially changed since the accident, it was the Medical Assessor's conclusion that his sleep apnoea was not caused by the accident.
6. I note, as did the Proper Officer in these proceedings, that in Allianz Australia Insurance Limited v Mackenzie [2014] NSWSC 67, Hoeben CJ held at [36]-[39] that a "positive finding" is to be made when determining causation. It is not enough that an injury which arises after an accident is to be attributed to that accident "in the face of insufficient evidence to the contrary" ([36]).
7. Finally, the plaintiff submitted that the Medical Assessor incorrectly summarised Professor Bryant's opinion by stating that "nowhere within the documentation did Professor Bryant state that [the plaintiff's] sleep apnoea was causally related to [the accident]." In my view, whether this statement may be characterised as a finding of causation on the part of Professor Bryant is not determinative of the Medical Assessor's finding as to causation. Regardless of Professor Bryant's conclusion, it was open to the Medical Assessor, in the exercise of his discretion, to arrive at his own determination as to whether or not the plaintiff's sleep apnoea was in fact caused by the accident.
8. For these reasons, it is my view that in reaching his conclusion, the Medical Assessor sufficiently discharged his statutory duty under the MAC Act and relevant guidelines. His finding on causation was not in error. This ground of judicial review fails.

Ground 2 - failure to take into account relevant considerations and/or denial of procedural fairness

The plaintiff's submissions

1. The plaintiff submitted that the Medical Assessor was required to take into account the material that was before him in evidence as part of the plaintiff's application, including the following documentation and submissions before the Medical Assessor concerning sleep apnoea: 1. the report of Dr Hallani dated 16 September 2014, noting a history of possible obstructive sleep apnoea in circumstances where the plaintiff and his wife gave clear evidence that the plaintiff had no sleep issues sleep prior to the accident; 2. the report of Dr Amor dated 3 June 2015, diagnosing the plaintiff with possible obstructive sleep apnoea and noting that the plaintiff reported snoring, waking up tired and daytime somnolence; 3. the report of Dr Amor dated 7 December 2015, noting that the plaintiff was not active, most likely due to sleep apnoea, and recommending sleep testing; and 4. the report of Dr Amor dated 4 March 2016, confirming the diagnosis of sleep apnoea.
2. The plaintiff submitted that in light of this evidence, the Medical Assessor's finding that the plaintiff's sleep apnoea was "recently diagnosed" in September 2018 was incorrect. Rather, there is plain and detailed evidence of sleep apnoea arising shortly after the accident and, importantly, during the plaintiff's period of convalescence. The plaintiff submitted that in these reports and submissions presented a clearly articulated argument to the Medical Assessor which he ignored.
3. The plaintiff referred to Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; 73 ALD 321; 77 ALJR 1088; [2003] HCA 26 at [24], where Gummow and Callinan JJ stated: "[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice."
4. The plaintiff says that the Medical Assessor's failure to deal with this evidence and submissions amounted to a practical injustice of the relevant type so as to give rise to a denial of procedural fairness, on the basis of the principles identified in Frost v Kourouche (2014) 86 NSWLR 214, where Leeming JA stated at [31]-[32], [41]: "[31] It was common ground that the panel was obliged to accord procedural fairness to Ms Kourouche. The 'common law' usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power: Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [97]. Gummow, Hayne, Crennan and Bell JJ placed quotation marks around 'common law' to explain that it was unproductive and a false dichotomy to ask whether the obligation to accord procedural fairness was a common law duty or an implication from statute, once it is observed that the principles and presumptions of statutory construction are part of the common law. [32] It was also common ground that the content of the obligation upon the panel to accord procedural fairness extended to confronting the applicant with inconsistencies and providing him or her with an opportunity to respond. That is consistent with what has often been held, in a wide range of contexts, including Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 587 ('the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it'). It is reflected in cl 1.43 of the Permanent Impairment Guidelines: Guidelines for the assessment of permanent impairment of a person injured as a result of a motor vehicle accident, dated 1 October 2007, which (like the Medical Assessment Guidelines) bound the members of the panel by reason of s 65(1) of the Act. … [41] Ultimately, the question of the content of the obligation to accord procedural fairness is one of practical justice. Gleeson CJ said that 'Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice': Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]. In connection with the Act, in McKee at [8], Allsop P said that 'procedural fairness would require any and all necessary steps to ensure a fair hearing'."
5. The plaintiff noted that the defendant does not submit that the Medical Assessor dealt with this evidence. Rather, the defendant's contention seems to be that it is irrelevant that the Medical Assessor made this error because he formed his own view on the cause of the sleep apnoea. The plaintiff submitted that this position is wrong at law. The Medical Assessor reached his determination on the basis that the plaintiff's sleep apnoea was only evidenced in 2018, without relevant consideration of the evidence that the plaintiff reported suffering ongoing symptoms of sleep apnoea from 6 weeks after the accident.
6. The plaintiff submitted that by failing to take the evidence and submissions into account, the Medical Assessor denied the plaintiff procedural fairness. For those reasons, the plaintiff submitted that the Medical Assessor's decision is invalid and ought to be quashed.

The defendant's submissions

1. The defendant submitted that the Medical Assessor's reference to the "recently diagnosed" sleep apnoea was not the "crucial foundational finding" in determining the issue of causation. Moreover, the defendant submitted that the Medical Assessor's reference to the plaintiff's sleep apnoea being "recently diagnosed" in September 2018 was correct.
2. In his reasons, the Medical Assessor correctly referred to the diagnosis of severe obstructive sleep apnoea by Dr Banerjee in September 2018. The Medical Assessor considered the opinion of Professor Bryant and the research referred to in his report. He carefully considered the possible causes for sleep apnoea, including those hypothesised by Professor Bryant.
3. Having considered the possible causes, by reference to relevant research, the Medical Assessor ultimately determined that the sleep apnoea was related to the plaintiff's obesity, which was present prior to the accident and continued to be present after the accident.
4. The defendant submitted that contrary to the plaintiff's submission, the fact that the sleep apnoea was "recently diagnosed" was not a finding, let alone a "crucial foundational finding", for determining that the sleep apnoea was not caused by the accident.
5. The plaintiff has submitted that as early as 16 September 2014, Dr Hallany obtained a history of sleep apnoea that had arisen following the accident. The defendant submitted that this characterisation of Dr Hallany's report is incorrect and misrepresents the contents of that report. To the contrary, Dr Hallany had obtained a background history of mild to moderate obesity with "possible" obstructive sleep apnoea, which does not suggest that the condition had developed since the accident. Rather, the objective evidence is that the plaintiff had suffered mild to moderate obesity well before the motor vehicle accident.
6. Regardless, counsel for the defendant submitted that the plaintiff did not include references to these earlier reports in his submissions before the Medical Assessor. Rather, he relied on the additional reports of Dr Banerjee and Professor Bryant, and only referred to these reports in his submissions before the Medical Assessor. As such, the earlier reports of Drs Hallany and Amor were not mandatory considerations, and are not relevant considerations for the purposes of this judicial review.

Resolution

1. It is common ground that the documents before the Medical Assessor included the reports of Dr Hallani dated 16 September 2014 and Dr Amor dated 3 June 2015, 7 December 2015 and 4 March 2016. Dr Hallani's report notes that the plaintiff's background history includes "[m]ild to moderate obesity with possible obstructive sleep apnoea". Dr Amor's report dated 3 June 2015 notes a clinical diagnosis of "[p]ossible sleep apnoea on clinical grounds", stating that the plaintiff "has symptoms of sleep apnoea namely snoring, waking up tired with daytime somnolence". In his report dated 7 December 2015, Dr Amor recommended a sleep screening test which confirmed the diagnosis. In his report dated 4 March 2016, Dr Amor noted that the plaintiff "also mas moderate sleep apnoea with an AHI of 24 events per hour of sleep and minimum oxygen desaturation to 64%....and his symptoms may be related to this." Dr Amor recommended that the plaintiff undergo a CPAP trial.
2. It is the plaintiff's case that these reports indicate a progression of confidence in diagnosing "possible" sleep apnoea at 16 September 2014, around 6 weeks after the accident, to confirming the presence of the condition in 2016. More broadly, the plaintiff says that his submission before the Medical Assessor that he did not suffer from sleep apnoea prior to the accident, and developed it because of the accident, is a position beyond that extracted by the Medical Assessor in his reasons from Professor Bryant's report (T 18.10-15). It is the plaintiff's case that the absence to these aspects of the plaintiff's submissions leads to the inference that the Medical Assessor failed to take them into consideration.
3. The Medical Assessor did not refer to the reports of Drs Hallani and Amor in his reasons. However, as Adamson J stated in Farr v Insurance Australia Limited t/as NRMA Insurance [2014] NSWSC 1435 at [46]: "[46] …a medical assessor's duty is to come to his or her own opinion and take his or her own history, not to analyse every piece of information from every opinion contained in a document with which he was provided…"
4. Whether the Medical Assessor's failure to refer to these reports is subject to judicial review depends on whether they constitute a "relevant consideration". The issue of whether material before an administrative decision maker is considered a relevant consideration was considered in Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244 per Basten JA at [15], [19]-[22] as follows: "[15] Because the precise nature of the ground was not adequately spelled out, the submissions tended to elide a number of key concepts. First, to describe evidence as 'relevant' to the case of one party is not to identify a 'relevant consideration' for judicial review purposes. All evidence is (or should be) 'relevant' in the broad sense identified in s 55 of the Evidence Act 1995 (NSW), namely that, if accepted, it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue. (It is of no consequence for present purposes that the Evidence Act did not apply to the assessment in its own terms and was expressly not adopted: Motor Accident Authority of NSW Claims Assessment Guidelines, as amended on 1 October 2009, (the Guidelines) para 16.1.) The reference to a 'relevant consideration'; in judicial review is a reference to a factor which, by law, the decision-maker is bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; 66 ALR 299 at 308 (Peko-Wallsend) per Mason J. This ground required that the appellant identify the legal obligation on which it relied to identify what were mandatory factors to be taken into account for the purposes of the assessment. … [19] Although this ground must be dismissed for the reasons given above, it is desirable to return to the first step in the reasoning, namely identifying the legal obligation to take particular evidence into account. No case was referred to which supported a proposition expressed in these terms. In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; 197 ALR 389; 77 ALJR 1088; [2003] HCA 26 at [24] (Dranichnikov), Gummow and Callinan JJ stated: '[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.' [20] A similar point was made by Kirby J at [86] referring to a passage in the judgment of Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 at [81] (Miah) where, after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not, her Honour continued: '[81] However, the present case is, in my view, a clear case of constructive failure to exercise jurisdiction. That is because the delegate failed to consider the substance of Mr Miah's application and could only have failed to do so because he misunderstood what is involved in the Convention definition of "refugee".' [21] Two propositions may be drawn from these statements. First, although not articulated in these terms, a constructive failure to exercise jurisdiction may arise because the statutory conferral of power has not been exercised according to its terms. Thus, in the present case, s 94 of the Compensation Act requires that a claims assessor 'is, in respect of a claim referred to the assessor for assessment, to make an assessment of…the amount of damages': s 94(1)(b). It is, therefore, mandatory that the assessor address the claim and carry out the statutory function. [22] The second point is that neither Dranichnikov nor Miah went so far as to imply an obligation to consider every piece of evidence presented. Further, to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of any no evidence ground) must be accepted as existing to support a particular conclusion. Such a course cannot constitute a failure to take into account a relevant consideration nor a failure to respond to a substantial argument: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; 273 ALR 122 ; 119 ALD 446 ; [2010] HCA 48 at [35] (SZJSS)."
5. As such, a relevant consideration for the purposes of this judicial review is a factor which, by law, the decision-maker is bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; 66 ALR 299 at 308 per Mason J. It is for the plaintiff to identify the legal obligation on which it relies to identify what factors were mandatory.
6. At the hearing of these proceedings, counsel for the plaintiff relied on cl 9.11.5 of the Medical Assessment Guidelines, extracted earlier in this judgment, which states that a Medical Assessor is to be provided with copies of the application, reply and all documents and relevant supporting material. Council for the plaintiff argued on this basis that because the reports of Drs Hallani and Amor were in the material before the Medical Assessor, they were mandatory factors to be taken into account for the purposes of the assessment.
7. For the reasons which follow, I do not agree. On the plaintiff's framing of cl 9.11.5, every document referred to the Medical Assessor would become a mandatory consideration for the purposes of judicial review by virtue of the MAC Act and the Medical Assessment Guidelines. Cl 9.11.5 merely states that all relevant material must be provided to the Medical Assessor. In my view, it cannot be elevated to a statutory imposition requiring a Medical Assessor to consider and identify each document in his decision.
8. Moreover, the context in which the reports of Drs Hallani and Amor were included in the documents before the Medical Assessor is relevant to their exclusion from his decision.
9. In his submissions before the Medical Assessor, the plaintiff relied on the following relevant new material at [3.3]: "(ii) Medical Report of Professor David Bryant dated 29 march 2019. … (iv) Clinical notes of Dr Dev Banerjee, sleep physician."
10. The plaintiff's submissions to the Medical Assessor also referred to sleep apnoea under the heading "The Applicant's Sleep Disorder" as follows: "4.1 Prior to [the accident], [the plaintiff] instructs that he did not have a history of regular snoring, sleep disturbance or of daytime somnolence. Following the accident, [the plaintiff] instructs that he snores heavily since the accident and he is very restless in bed at night. 4.2 Professor David Bryant in his report dated 29 March 2019 diagnoses [the plaintiff] as suffering from obstructive sleep apnoea and reduced daytime alertness. Professor Bryant opines that it is more probable than not that his sleep apnoea has developed since [the accident]. Professor Bryant opines that he cannot find any evidence of any significant obstructive sleep apnoea prior to the motor vehicle accident in which he was involved. 4.3 In addition, Study Report Summary of Dev Banerjee, sleep specialist dated 13 September 2018, reports that [the plaintiff] suffers from severe obstructive sleep apnoea with sleep disturbance and snoring. The sleep test dated 10 September 2018 contained in Dr Dev Banerjee's clinical notes, discloses the presence of severe obstructive sleep apnoea hypopnoea index of 69 per hour with oxygen saturations going down to 59%. 4.4 Professor David Bryant opines that [the plaintiff] has an impairment of the whole person of approximately 15% as a consequence of reduced daytime alertness as a consequence of his obstructive sleep apnoea. 4.5 It is respectfully submitted that this new material gives rise to additional relevant information about [the plaintiff's] injuries which were not previously taken into account by [Medical Assessor Home] and which, if the matter was to proceed to further assessment, would alter the outcome of the dispute from that certified in the previous assessment. 4.6 It is submitted that this new evidence is considered additional relevant information capable of materially altering the outcome of the previous MAS Assessment and increasing [the plaintiff's] current whole person impairment to 19%."
11. In his report dated 29 March 2019, Dr Bryant relevantly opined (pp 2-4): "He told me that he now obtains very little physical exercise because he feels breathless, because he feels depressed, and because the pain in his neck and in his right ankle… [The plaintiff] told me that he finds it hard to obtain a restful sleep because he is slow to go to sleep and because he wakes up repeatedly during the night. He told me that some of these wakenings appear to him to be caused by a feeling of choking and that he cannot breathe, and some of the wakenings are caused by pain in his neck and in his right ankle and some of them are caused by nightmares related to the accident in 2014. His wife told me that he rarely snored prior to the accident but he has snored quite heavily since the accident and he is very restless in bed at night and she has therefore had to move to sleep in another room. [The plaintiff] told me that he has had a sleep test and has been advised that he does have sleep apnoea and that he should use a nasal CPAP machine. However he is not in a financial position to afford one of these. He does use a mandibular advancement device which does improve his snoring although he does not believe it makes an overall difference to his sleep quality. [The plaintiff] told me that he believes he has put on a substantial amount of weight since the accident. He told me he estimated that his weight prior to the accident was between 90kg and 91kg. However, in my notes from his general practitioner that you sent me, I note that his weight on the 04/05/2012 was 108kg and that on the 05/05/2013 it was 118kg. Weight reduction and alcohol abstention was advised. … [The plaintiff] has a moderate degree of daytime somnolence, as assessed by his Epworth sleepiness score, but it is difficult to distinguish between sleepiness due to sleep fragmentation and sensations of lethargy due to depression. However your client does have evidence of severe sleep apnoea as shown by his sleep test. He gives no history of regular snoring or of a sleep disturbance or of daytime somnolence prior to [the accident] and I am therefore of the opinion that it is more probable than not that his sleep apnoea has developed since the motor vehicle accident. Obesity is one of the main factors contributing to the development of obstructive sleep apnoea. [The plaintiff's] history suggests that he may have put on some weight since [the accident] although the records of his GP indicate that it is probable that his weight is not greatly different to his weight the in the year or two prior to the accident and that some other factor is likely to have been the major cause for his development of sleep apnoea. It is now known that reduced physical activity is a risk factor of moderate to severe obstructive sleep apnoea as shown by numerous studies… It has been found that short term exercise results in significant reductions in sleep apnoea… and it is proposed that the mechanism of the sleep apnoea is a weight independent shift in fluid from the legs of sedentary people in the brain area at night especially among individuals with significant fluid retention (such as those with cardiac disease) causing sleep disordered breathing…."
12. Dr Bryant did not refer to the reports of Drs Hallani and Dr Amor in his report.
13. There were over 1200 pages of material before the Medical Assessor for consideration. At [3.3] of his submissions before the Medical Assessor, the plaintiff only identified the 2019 medical report of Professor Bryant and the 2018 clinical notes of Dr Banerjee as comprising the "new material" on which he relied in relation to his claim for sleep apnoea. Under the heading "The applicant's sleep disorder", the plaintiff also only referred to these reports.
14. The significance of the reports of Drs Hallani and Amor to the plaintiff's case is that they evince an ongoing history of sleep apnoea as early as September 2014, some 6 weeks after the accident. For the reasons given in relation to the first ground, it is my view that the Medical Assessor adequately considered the plaintiff's submission that he did not suffer from sleep apnoea prior to the accident, and developed it because of the accident. The Medical Assessor disagreed with the plaintiff's submissions on causation on the basis that he had determined the plaintiff's sleep apnoea to be caused by his obesity, which was consistent before the accident and up to Professor Bryant's report in 2018. The Medical Assessor was not obligated under the MAC Act or the Medical Assessment Guidelines to refer to every report before him. Rather, he was obligated to explain his path of reasoning in sufficient detail to enable a reader to determine whether he fell into error: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; (2013) 303 ALR 64; [2003] HCA 43 at [56]. His reasons met this standard and were not in error.
15. As such, it is my view that the Medical Assessor did not fail to take into account relevant considerations for the purposes of judicial review. Neither did he deny the plaintiff procedural fairness by failing to refer to reports which were not raised in the plaintiff's submissions in its application before him. This ground of judicial review fails.

The Proper Officer's decision

1. On 24 February 2020, the Proper Officer dismissed the plaintiff's application for review. Her reasons in relation to the issue of sleep apnoea are as follows: "Sleep apnoea 6. The applicant submits that the Assessor failed to appropriately apply the correct medical and legal principles of causation, failed to give evidence appropriate weight and ignored other evidence. The applicant submits that the Assessor found the claimant's sleep apnoea is related to his obesity, however the accident rendered the claimant incapable of moving and being active and the claimant did not have difficulties with sleeping prior to the accident. The applicant submits there is clear and detailed evidence of sleep apnoea arising shortly after the accident in the period of the claimant's convalescence. 7. The respondent submits in reply that the Assessor clearly read Professor Bryant's report and the earliest diagnosis of sleep apnoea was almost two years after the accident."
2. The Proper Officer then set out cls 1.5-1.7 of the Permanent Impairment Guidelines, before continuing: "9. The Assessor notes under 'History of Symptoms and Treatment Following the Motor Accident' (p. 4): 'In late 2018 it was reported to Dr Cytra that he was noted to be snoring at night. At the time he was noted to have a body mass index of 32. He was referred for a sleep study, which was reported as showing severe sleep apnoea.' 10. In the 'Summary of Relevant Documentation Provided for the Initial Assessment', the Assessor notes (pp.8- 9) the Personal Injury Claim Form dated 19.11.14 does not mention sleep apnoea or sleep problems and there was no documentation concerning sleep apnoea in the original application. 11. The Assessor notes (p.10) the sleep study report of Dr Banerjee dated 19.09.18 diagnosed severe obstructive sleep apnoea with hypoxaemia. The Assessor notes Dr Bryant's independent examination report dated 29.03.19 which included the history given by the claimant's wife that he had rarely snored before the accident but snored quite heavily afterward. Dr Bryant confirmed severe obstructive sleep apnoea. The Assessor states (p.11): 'Whilst I agree with Professor Bryant that the major cause we see is in fact obesity, it has been proposed that fluid retention may be another cause especially in those with heart disease. This is currently a research hypothesis and needs further research to confirm whether it is the case or not. I note that Mr Rae has developed heart disease since the accident and was noted to have an arrhythmia when he was in the hospital with bundle branch block. His heart condition has not been diagnosed as being associated with the motor vehicle accident. Additionally, I note that nowhere within the documentation did Professor Bryant categorically state that his sleep apnoea was causally related to his motor vehicle accident.' 12. The Assessor concludes (p.11): 'With respect to sleep apnoea I note that his weight did not increase after the accident. I note that the proposed criteria for development of sleep apnoea secondary to fluid retention and movement of fluid at night continues to be a hypothesis and has not yet been confirmed with further research. Additionally, I note that in Mr Rae's case I believe that if he does have fluid retention it is associated with heart condition, which has not been shown to be related to his motor vehicle accident. In conclusion, I believe that his sleep apnoea is related to his obesity with a body mass index greater than 30, which was present prior to the motor vehicle accident and has continued to be present.' 13. The applicant submits that following the accident, the claimant was unable to move or be active for significant periods of time. The applicant submits that the claimant did not snore before the accident and did not suffer from sleep apnoea prior to the accident and asks 'If the Claimant's sleep apnoea was caused by his obesity, then the question must be asked - why was it not present prior to the accident?' 14. In Allianz Australia Insurance Limited v Mackenzie & Ors [2014] NSWSC 67 (Mackenzie), Chief Justice Hoeben held at [36]-[39] that there is a requirement for a 'positive finding' to be made in causation. In that case, the Panel erred by accepting that the claimant sustained an injury as a result of the accident 'in the face of insufficient evidence to the contrary' (at [36]). Following Mackenzie, the Assessor was required to make a positive finding in relation to the causation of the claimant's sleep apnoea, if he found it caused by the accident, rather than finding causation established in the absence of evidence to the contrary. 15. The Assessor noted the claimant's weight did not increase after the accident (that is, he was obese before the accident occurred). In making his finding on causation, I am satisfied that the Assessor reviewed the medical evidence and used his professional knowledge to answer the medical and non-medical questions of whether the accident could have caused or contributed to the impairment and did cause or contribute to the impairment. The Assessor outlined current medical research regarding sleep apnoea and did not make a positive finding that the claimant's sleep apnoea was caused by the accident. I am satisfied that the Assessor applied the correct test of causation and had regard to the evidence and his medical knowledge in reaching his finding that sleep apnoea was not caused by the accident."
3. On this basis, the Proper Officer was not satisfied that there was reasonable cause to suspect that the Medical Assessor's decision was incorrect in a material respect on the grounds of the assessment of sleep apnoea.

The plaintiff's submissions

1. The plaintiff submitted that the Proper Officer failed to have regard to or engage with his submissions concerning the Medical Assessor's failure to deal with the relevant material. This failure is a denial of procedural fairness.
2. Additionally, the plaintiff submitted that the Proper Officer's decision is afflicted by legal unreasonableness in the sense established in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, in that: 1. no sensible proper officer acting with due appreciation of her responsibilities would have so decided; 2. the Proper Officer failed to give adequate weight to relevant factors of great importance (namely, the fact that the Medical Assessor's decision was plainly wrong or mistaken and that he ignored clear and vitally important evidence); 3. the decision is a disproportionate response by reference to the scope of the power, in circumstances where the Medical Assessor plainly made a mistake or a fundamental error; and 4. the Proper Officer failed to recognise that the evident mistake or error or failure of the Medical Assessor affects the validity of the entire decision.
3. For those reasons, the plaintiff submitted that the Proper Officer's decision is invalid and ought to be quashed.

The defendant's submissions

1. The defendant submitted that the Proper Officer self-evidently engaged with the plaintiff's contentions in its application for review. The Proper Officer identified the grounds upon which the plaintiff sought review and, in turn, addressed each of those contentions.
2. Consistent with the submissions set out in relation to the two grounds of judicial review, the Proper Officer properly determined that the Medical Assessor had considered all of the evidence, including the primary medical report upon which the plaintiff relied from Professor Bryant.
3. The Proper Officer correctly observed that the earliest actual diagnosis of sleep apnoea was almost 2 years after the accident by a cardiologist, and that the diagnosis of obstructive sleep apnoea was not made until 2018. The Proper Officer correctly dealt with the issue of causation, and in particular, the claim that the Medical Assessor failed to apply the correct test for causation.
4. As such, the defendant submitted that the Medical Assessor's determination was devoid of error.

Resolution

1. The bases on which the plaintiff seeks to argue that the Proper Officer's decision is afflicted by legal unreasonableness are founded in the alleged errors of the Medical Assessor. For the reasons provided in relation to the two grounds of judicial review, it is my view that the Medical Assessor's decision was not in error. In her reasons, the Proper Officer considered the submissions of the plaintiff, which were substantially similar to the plaintiff's submissions in these proceedings. She concluded that the Medical Assessor reviewed the relevant medical evidence and used his professional knowledge to answer the medical and non-medical questions required of him under the MAC Act and relevant guidelines. I have reached the same conclusion. As such, the Proper Officer's decision to uphold the Medical Assessor's decision was not in error, nor did she fail to afford the plaintiff procedural fairness.

Result

1. The result is that the plaintiff's application for judicial review fails.

Costs

1. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the first defendant's costs on an ordinary basis.

The Court orders that: 1. An extension of time is granted for the plaintiff to commence these proceedings up to and including 25 May 2020. 2. The decisions of the Medical Assessor dated 20 November 2019 and the Proper Officer dated 24 February 2020 are affirmed. 3. The plaintiff's summons filed 25 May 2020 is dismissed. 4. The plaintiff is to pay the first defendant's costs on an ordinary basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 November 2020