Allsop v VCFC

Effectively, the assessor concluded that a report of one Stephen Woods did not address the elements of "shock" as defined in Schedule 1(5) of the Act . In coming to this conclusion, the assessor considered that the report was prepared in the context of counselling and although it was noted that the appellant was diagnosed with post traumatic disorder it was considered that no testing had taken place to ground the author's conclusion. The assessor also noted that the appellant was first seen over two years since the incident and that there was no mention of any subsequent events that may have affected the appellant. The assessor also referred to no details concerning any disabilities which may have been sustained. Photographs of the appellant were also noted.

The appeal against this decision was dismissed on 4 October last year. The Tribunal affirmed the assessor's determination and made no order for costs of the appeal. For the purpose of the appeal before the District Court it is appropriate to reflect and focus upon the decision of the Tribunal dated 4 October 2001.

By way of background which is of some assistance to this Court in considering the overall circumstances of this matter, I note in the affidavit of Deborah Allsop that she refers to her son being a victim of the robbery on 11 May 1997. She indicates that towards the end of March or the beginning of April 1999 she attended upon John Meehan, solicitor, with her son to discuss a possible victims compensation claim for her son. In April 1999 the solicitor lodged an application for compensation on behalf of her son who was at that time under 18 and the application was therefore made in her name. She received confirmation from Mr Meehan that the application for compensation had been lodged.

She then deposes that over the next 18 months she received intermittent correspondence from the solicitor with respect to the claim although she asserts that these letters mainly related to counselling. I pause to reflect that there is no evidence at all from Mr Meehan before me in this appeal. In any event, noting that the deponents have not been required for cross-examination I will accept what Ms Allsop says as fact, that she received intermittent correspondence only and that they did in fact relate to counselling. She deposes that on 12 February 2001 she received a letter from Mr Meehan indicating the determination of the Tribunal and that an award was declined in her son's favour.

She asserts, and there is no evidence to contradict this, that up until receiving that letter she was not aware that further medical evidence had to be submitted to the Tribunal or that the Tribunal required a medical report from a psychologist or psychiatrist. She asserts, and again there is nothing to contradict this, that at no time was she advised by Mr Meehan that such a medical report was required. She asserts, and again there is nothing to contradict this, that she had not lodged a claim for compensation before. Neither had her son. She relied purely upon Mr Meehan for the preparation of the application and her son's claim. There is no reason to doubt that, given that neither the appellant nor had his mother ever made a claim before.

I also note what is set forth by the appellant himself and that largely follows the facts as set forth in the affidavit of his mother and I accept what he says in that affidavit as to his position in relation to any contact that he had with the solicitor over that period of time. He asks this "Court to overturn the decision of the Victims Compensation Tribunal, handed down on 4th October 2001."

I note in the Tribunal file there is a detailed report of Dr Leonard Lee dated 29 March 2001 which of course postdated the decision of the assessor but predated the decision of the learned Tribunal. I note what is set forth in that report and indeed it does indicate a rather unfortunate position for this young appellant and there is nothing more I really need to say about that because the report really speaks for itself. What is of significance, however, is to determine whether the learned Tribunal committed an error of law and whether there was a misdirection on its part, whether it took into account irrelevant circumstances and other matters as raised by Mr Trevallion who appears for the appellant today. By virtue of s 38 subs 3 of the Victims Support and Rehabilitation Act 1996 an appeal from a determination of a compensation assessor needs to be determined on the evidence and material provided to the compensation assessor. However, the Tribunal may by leave receive further evidence and material if it considers that special grounds exist or if the evidence or material concerns matters occurring after the determination appealed against. There are various powers vested in the Tribunal in relation to the decision of the assessor.

The appeal before this Court is limited to a question of law and on appeal by virtue of s 39 subs 5 of the Act this Court may affirm the determination of the Tribunal or it may set aside the determination and remit the matter to be considered and determined again by the Tribunal either with or without the hearing of further evidence in accordance of the decision of the District Court on the question of law concerned. So that is the statutory framework against which this appeal needs to be considered.

The learned Tribunal referred to the determination of the compensation assessor dated 2 February 2001. The Tribunal also noted that the act of violence was established. The appeal was noted to have been one which was lodged within time. The learned Tribunal indicated in its decision that the file and, I presume, the file which has been reproduced before me as an exhibit, had been read. The learned Tribunal was satisfied that the appeal could be dealt with in the absence of a hearing. Reference was made to the grounds of appeal which challenged the assessor's rejection of the claim that the appellant suffered the compensable injury of shock lasting over 28 weeks but not permanent. The learned Tribunal considered the question of submissions and indicated that the submissions firstly addressed the question of leave for the additional material to be submitted. I note in the Tribunal's file there is a lengthy submission prepared on behalf of the appellant and in this regard I am referring to the letter from Messrs Marsdens to the Registrar of the Tribunal of 27 April 2001. That letter goes into considerable detail in relation to the background of the matter as well as referring to specific portions of Dr Lee's report. There is no doubt that the Tribunal took all of that into account.

The Tribunal indicated that the appellant's solicitor conceded that medico-legal evidence should have been obtained prior to the assessor's determination and sought leave to tender evidence and other material " on the grounds of justice and fairness to the Appellant ." That was effectively the position enunciated on behalf of the appellant. That was noted and recognised by the Tribunal who went on to say that appellant's current solicitor did not act for the appellant prior to the assessor's determination and there is an indication of an inference that the former solicitor was criticised for not obtaining the necessary medical evidence in various matters are referred to in that area. Reference is specifically made to the provisions of s 38(3) of the Victims Support and Rehabilitation Act . The Tribunal recognised that the appeal was to be determined on the evidence and the material available to the assessor. The Tribunal also recognised that it had a discretion, namely, that by leave it could receive further evidence and material if it considers that special grounds exist or if the material concerns matters occurring after the determination appealed against. I am referring directly there to what is set forth in the determination itself. The authority of Victims Compensation Fund Corporation v Hill was referred to as well as other authorities as set forth in the decision.

The tribunal recognised that the appellant alleged that he was not advised at any time that any further evidence was needed and hence the lack of any further evidence being provided to the Tribunal. That is no doubt reflective of what is set forth in the affidavits of the appellant and his mother. They themselves, no doubt, were not advised. However, at all material times the appellant, no doubt through his mother, was represented by the former solicitor. The terms of the retainer of that solicitor are not in evidence but it is common ground that the appellant was duly represented by the solicitor and it could be expected that the solicitor would represent the interest of the appellant and it could be further expected that the appellant would be entitled to have communication as to the progress of the claim from the representative of the appellant.

The Tribunal did not reject that assertion. The Tribunal, however, questioned its accuracy and a chronology of events was set forth to rebut the assertion which was previously made and I note what is set forth on p 3 of the decision. Reference is made to correspondence from the Director of the respondent to the former solicitor dated 17 May 1999. The relevant portion of the letter is reproduced in the decision of the Tribunal and I quote directly, " If you have not done so already, you will need to provide medical reports to verify the injuries claimed. Compensation can only be awarded if there is an injury which appears on Schedule 1 of the Victims Compensation Act 1996. (A copy of this schedule can be obtained from the Tribunal on request) ." The chronology reveals a number of other dates as set forth on p 4 of the determination. Of significance it appears that there is no doubt that on 29 November 2000 the former solicitor was advised in the notice of listing that the application would be determined on or after 15 January in the following year. As the Tribunal noted, and I quote, "In that notice the Appellant's solicitor was advised that " all material and evidence to be relied upon, including reports, submissions... that you feel is necessary to support your claim, should be submitted to the Director at least 7 days prior to the listing date. " There is an indication that there was no response to that notice of listing and the assessor then determined the application on 2 February 2001.

No doubt having in mind the question of notice to the appellant the Tribunal noted that all communications to the former solicitor were addressed to the DX number as set forth in the solicitor's letterhead. There was reference by the Tribunal to the solicitor's responses to previous communications which had been addressed to the same document exchange number. The Tribunal expressed the belief that all other letters and notices were received. There is nothing to indicate that the solicitor acting on behalf of the appellant did not receive any relevant correspondence. Had that been the case then one would have expected something from the former solicitor. Indeed, the learned Tribunal touched upon this aspect of the matter when it referred to no statement from the former solicitor attached to the material sought to be tendered.

The learned Tribunal also said, and I quote, "There is no information in the file that would suggest that the former solicitor accepted the invitation to contact the Victims of Crime Bureau regarding referral to a psychiatrist. I have examined the material presented by the Appellant's current solicitor, including the report of psychiatrist Dr L Lee dated 29 March 2001, for the purpose of discerning whether this material could not have been obtained with reasonable diligence for presentation to the Assessor. Having regard to that material and the submissions in support of its tender, I do not consider in all the circumstances there to be good reason for its admission in the Appeal, nor am I of the view the material concerns matters occurring after the Assessor's Determination. Leave to admit this material is therefore declined."

In the final paragraph of the decision the Tribunal acknowledges that the appellant does not challenge the assessor's finding that Mr Woods' report is not sufficient to establish the compensable injury of shock within the meaning of cl 5 of the Victims Support and Rehabilitation Act. The learned Tribunal examined Mr Woods' report and came to the same conclusion as did the assessor. The Tribunal was not prepared to disturb the determination of the assessor, and dismissed the appeal.

I have been taken to a number of portions of the decision of the Tribunal by Mr Trevallion and I have noted his submissions. It is incumbent upon the appellant to satisfy me that there was indeed an error of law and I have reflected very carefully upon the position overall, particularly having regard to the apparent lack of communication between the former solicitor and the young appellant himself as well as his mother. But the Tribunal was entitled to expect that these matters would have been brought to the attention of the appellant through the appellant's solicitor. It is as simple as that and that is clearly the available inference that one can readily draw from the reasoning process adopted by the Tribunal itself. The Tribunal did exercise a discretion. It did not exercise the discretion in favour of the appellant and clearly the appellant and his mother are no doubt very disappointed at the outcome.

I must say had the report of Dr Lee been before the assessor at the time then the position may well have been different. I cannot take it further than that. I must say I do have some sympathy for this young appellant and that is a sympathy which frankly has considerable foundation. However, sympathy is not a matter that this Court can take into account in determining the outcome of this appeal. The matter does need to be considered within the provisions of the Victims Support and Rehabilitation Act and accordingly, in those circumstances, I now make the following orders.

Firstly, I decline to make the orders sought in the notice of motion. Secondly, the motion is dismissed. The decision of the Tribunal is affirmed.

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