Rae v The Nominal Defendant

1. [1]

   HER HONOUR: This is a judicial review of a medical assessor and a proper officer of the State Insurance Regulatory Authority of NSW (“SIRA”).

2. [2]

   By summons filed 25 May 2020, the plaintiff relevantly seeks the following orders:

   1. (1)

      an order in the nature of certiorari, or alternatively, a declaration setting aside or declaring invalid the decision of Medical Assessor Mark Burns in his capacity as a medical assessor of SIRA (“the Medical Assessor”) dated 20 November 2019 (“the Medical Assessor’s decision”);

   2. (2)

      an order in the nature of certiorari, or alternatively, a declaration setting aside or declaring invalid the decision of Proper Officer Sophie Jones in her capacity as a proper officer of SIRA (“the Proper Officer”) dated 24 February 2020 (“the Proper Officer’s decision”);

   3. (3)

      an order in the nature of mandamus remitting the matters to SIRA for allocation to a different medical assessor and/or proper officer to re-determine the matters according to law; and

   4. (4)

      an extension of time to commence these proceedings in respect of the Medical Assessor’s decision to the date of the filing of the summons.

3. [3]

   The plaintiff is William Rae. The first defendant is the Nominal Defendant. The second defendant is SIRA. The third defendant is the Medical Assessor. The fourth defendant is the Proper Officer. The second, third and fourth defendants have filed submitting appearances. The plaintiff relied on the affidavit of his solicitor, Nassir Bechara, dated 7 July 2020. For convenience, I will refer to the Nominal Defendant as the defendant throughout this judgment.

4. [4]

   The plaintiff seeks an extension of time to commence the proceedings in respect of the Medical Assessor’s decision. This application is not opposed.

Background

1. [5]

   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. [6]

   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. [7]

   On 20 January 2016, the plaintiff applied for an assessment of his WPI.

4. [8]

   On 6 May 2016, Assessor Alan Home issued a certificate determining that the plaintiff’s WPI was not greater than 10%.

5. [9]

   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. [10]

   On 31 July 2019, the defendant filed a reply.

7. [11]

   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. [12]

   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. [13]

   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. [14]

    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. [15]

   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. [16]

   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. [17]

   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. [18]

   Sections 57 to 58, 60 to 61, 131 and 133 of the MAC Act are relevant to these proceedings. They read:

2. [19]

   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”).

3. [20]

   The Medical Assessment Guidelines, effective 1 October 2018, dictate the obligations of the Medical Assessor and Review Panel in these proceedings.

4. [21]

   The plaintiff referred to cls 9.10 and 9.11 of the Medical Assessment Guidelines. They relevantly state:

5. [22]

   Finally, cl 13.2 of the Medical Assessment Guidelines reads:

6. [23]

   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.

7. [24]

   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.

8. [25]

   Clause 1.5-1.7 of the Permanent Impairment Guidelines relevantly reads:

The Medical Assessor’s decision

1. [26]

   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. [27]

   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. [28]

   Under the heading “Pre-Accident Medical History and Relevant Personal Details”, the Medical Assessor relevantly stated (p 3):

4. [29]

   Under the heading “History of Symptoms and Treatment Following the Motor Accident”, the Medical Assessor relevantly wrote (p 4):

5. [30]

   Under “Current Symptoms”, the Medical Assessor continued (p 5):

6. [31]

   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. [32]

   Under the heading “Summary of Relevant Additional Documentation Provided for the Further Assessment”, the Medical Assessor relevantly stated (pp 10-11):

8. [33]

   The Medical Assessor relevantly concluded (p 11):

9. [34]

   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.

10. [35]

    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.

11. [36]

    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.

12. [37]

    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.

13. [38]

    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.

14. [39]

    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.

15. [40]

    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.

16. [41]

    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.

17. [42]

    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.

18. [43]

    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.

19. [44]

    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.

20. [45]

    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.

21. [46]

    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.

22. [47]

    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.

23. [48]

    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”.

24. [49]

    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.

25. [50]

    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.

26. [51]

    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.

27. [52]

    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]).

28. [53]

    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.

29. [54]

    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.

30. [55]

    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. (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. (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. (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. (4)

       the report of Dr Amor dated 4 March 2016, confirming the diagnosis of sleep apnoea.

31. [56]

    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.

32. [57]

    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:

33. [58]

    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]:

34. [59]

    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.

35. [60]

    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.

36. [61]

    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.

37. [62]

    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.

38. [63]

    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.

39. [64]

    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.

40. [65]

    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.

41. [66]

    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.

42. [67]

    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.

43. [68]

    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.

44. [69]

    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]:

45. [70]

    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:

46. [71]

    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.

47. [72]

    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.

48. [73]

    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.

49. [74]

    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.

50. [75]

    In his submissions before the Medical Assessor, the plaintiff relied on the following relevant new material at [3.3]:

51. [76]

    The plaintiff’s submissions to the Medical Assessor also referred to sleep apnoea under the heading “The Applicant’s Sleep Disorder” as follows:

52. [77]

    In his report dated 29 March 2019, Dr Bryant relevantly opined (pp 2-4):

53. [78]

    Dr Bryant did not refer to the reports of Drs Hallani and Dr Amor in his report.

54. [79]

    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.

55. [80]

    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.

56. [81]

    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. [82]

   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:

2. [83]

   The Proper Officer then set out cls 1.5-1.7 of the Permanent Impairment Guidelines, before continuing:

3. [84]

   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.

4. [85]

   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.

5. [86]

   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:

6. [87]

   For those reasons, the plaintiff submitted that the Proper Officer’s decision is invalid and ought to be quashed.

7. [88]

   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.

8. [89]

   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.

9. [90]

   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.

10. [91]

    As such, the defendant submitted that the Medical Assessor’s determination was devoid of error.

11. [92]

    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. [93]

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

Costs

1. [94]

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

   1. (1)

      An extension of time is granted for the plaintiff to commence these proceedings up to and including 25 May 2020.

   2. (2)

      The decisions of the Medical Assessor dated 20 November 2019 and the Proper Officer dated 24 February 2020 are affirmed.

   3. (3)

      The plaintiff’s summons filed 25 May 2020 is dismissed.

   4. (4)

      The plaintiff is to pay the first defendant’s costs on an ordinary basis.