Anthony Muilwyk v Victims Compensation Fund

Anthony Muilwyk v Victims Compensation Fund - [2005] NSWSC 153 - NSWSC 2005 case summary — Zoe

[11]

JUDGMENT 1 His Honour: This is a claim for relief in the nature of certiorari pursuant to s 69 of the Supreme Court Act brought by the plaintiff, Anthony Muilwyk, in respect of a decision of the Victims Compensation Tribunal ("the Tribunal") refusing to allow him compensation for shock under the Victims Support and Rehabilitation Act 1996 ("the Act"). The relief sought was resisted by the Victims Compensation Fund ("the Fund"). The plaintiff asserts that the reasons of the Tribunal disclose an error of law on the face of the record of the Tribunal: see s 69(3) of the Supreme Court Act. By reason of s 69(4) the face of the record of the Tribunal includes the reasons given for its determination to refuse compensation for shock. 2 On 6 June 1998 the plaintiff was at the bar of a hotel in Narrandera when he witnessed a group of men attacking a security guard outside the hotel. In an effort to assist the guard, the plaintiff held the hotel door open and called out to him to come inside. In doing so, Mr Muilwyk was himself attacked and punched to the face a number of times. As a result, he suffered a laceration above his right eye, which required two internal sutures and seven external sutures, a laceration inside his lower lip and facial bruising. 3 On 22 March 1999 he made a claim for compensation under the Act for scarring and shock as a result of the assault upon him. On 1 March 2001, a compensation assessor dismissed the claim. The plaintiff then appealed against that decision to the Tribunal pursuant to s 36 of the Act. 4 The Tribunal, constituted by a Magistrate, dealt with the appeal without a hearing in accordance with s 38(2) of the Act. In a decision dated 17 August 2001, the Tribunal allowed the appeal in relation to the claim for scarring, awarding $3,600 compensation for this injury, but dismissed the appeal in relation to the claim based upon shock. It is against this aspect of the decision of the Tribunal that the plaintiff seeks relief from this Court. 5 Section 39 of the Act provides an avenue of appeal from a decision of the Tribunal to the District Court on a question of law. On 11 December 2001, the plaintiff filed a Notice of Appeal in the District Court at Wollongong setting out ten grounds of appeal against the decision of the Tribunal. On 17 February 2004, the appeal was dismissed by consent of the parties without a hearing on the merits. 6 The present proceedings were commenced by a summons filed on 7 May 2004. The plaintiff asks this Court to quash the determination of the Tribunal in refusing him compensation for shock and seeks to have the matter remitted to the Tribunal to be heard and determined according to law.

[15]

(5) On an appeal, the District Court may only: (a) affirm the determination of the Tribunal, or (b) 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 with the decision of the District Court on the question of law concerned. 9 It should be noted that the plaintiff has no right of appeal to the District Court, leave must first be obtained before the appeal will be heard. If leave were granted, the appeal is limited in that, firstly, it is only in respect of an error of law and, secondly, the matters that can amount to an error of law for the purposes of an appeal are constrained by s 39(3). 10 There is a discussion as to the relevance of a statutory right to appeal to the exercise of this Court's power to grant relief by way of judicial review in Macksville & District Hospital v Mayze (1987) 10 NSWLR 708. This discussion was in relation to an argument that the provision of a statutory appeal in the legislation then being considered inferentially limited the right to appeal against an order coming within the ambit of the legislation to the prosecution of an appeal under the statute. In that case, like the present, an appeal had been commenced under the statutory scheme but had not proceeded to a determination on its merits. Rather the appellant had chosen to seek relief in the nature of certiorari in the Supreme Court alleging a breach of natural justice by the decision maker against whom the appeal lay. 11 The considerations referred to by Kirby P in that discussion are no doubt relevant to a consideration of whether the Court would grant relief in the exercise of its discretion notwithstanding that the Fund did not argue that the provisions of the Act had inferentially withdrawn the discretion of this Court to grant judicial review. One of the matters to be considered is the nature of the relief that can be granted under the statutory scheme as compared with the relief offered by this Court. 12 The plaintiff argued that he was required to bring the present proceedings to obtain relief from the order of the Tribunal because he is precluded from bringing his case to the District Court by reason of the limits upon an appeal from the Tribunal to that Court. In particular he asserts that s 39(3)(a) of the Act would have prevented him from litigating the issues raised by the present proceedings. It was argued that the determination of the Tribunal to refuse him compensation for shock was a determination as to whether an injury is a "compensable injury" within the meaning of the Act and hence outside of the ambit of matters that can be determined by the District Court. 13 The Fund argued that the District Court was not precluded from considering an appeal on the issues that the plaintiff seeks to litigate in the present proceedings. It contended that the plaintiff's complaint is really that the Tribunal failed to be satisfied that he was suffering an injury amounting to shock for the purposes of the Act because it refused to rely upon the evidence placed before it in proof of that injury. In this regard the plaintiff maintains that the Tribunal took into account irrelevant material and denied the plaintiff procedural fairness by rejecting evidence as unreliable without hearing the evidence. These complaints, so the Fund asserts, were not excluded by s 39(3)(a). 14 Section 39(3)(a) was considered in Victims Compensation Fund Corp v Ainsworth (2001) 51 NSWLR 468 at 473. Mason P said at [41]:

[19]

The section to which reference was made in that judgment was in terms similar to s 39 of the Act presently under consideration. 17 Brownie AJA agreed with both the judgments of Meagher JA and Stein JA. 18 There is clearly a distinction between a decision of the Tribunal that there was no evidence of a compensable injury and a finding that the injury suffered did not amount to a compensable injury under the Act. The first type of finding is not one that falls within the ambit of s 39(3)(a), whereas the latter type of finding does. It was the latter type that was the subject of the appeal in Crowley. The limitation in s 39(3)(a) is premised on the basis that there is no issue that an injury exists. The only issue is whether the injury, as found by the Tribunal, is a compensable one or into which description of compensable injuries it falls. A decision by the Tribunal that it is not satisfied that any injury exists is a different issue than that to which s 39(3)(a) is directed because it is antecedent to the decision of whether the injury, as found, is a compensable one. 19 This, as I understand it, is the approach taken by at least some judges in the District Court and the Fund has not challenged the correctness of that interpretation in any case where it has been applied. 20 I am not prepared to dismiss the summons on purely discretionary grounds. I do not wish to suggest that this Court will always entertain an application for judicial review notwithstanding that there is a statutory system of appeal. The preferable course is that the statutory scheme be followed and a claimant for compensation should not expect to be able to circumvent the limitations imposed upon that scheme by simply bringing an application for judicial review in this Court. However, in the present matter the application was heard in full, chiefly because there was an issue as to the meaning of s 39(3)(a) and because on the face of it the reasons for the Tribunal in dismissing the claim gave cause for concern as to whether the plaintiff had received a fair determination of his claim. Yet, for reasons not fully explained, he had abandoned an arguable appeal to the District Court without any clear benefit to himself.

[23]

(a) Compensation is payable only if the symptoms and disability persist for more than 6 weeks. (b) The injury comprises conditions attributed to post traumatic stress disorder, depression and similar conditions. (c) The psychological symptoms include anxiety, tension, insomnia, irritability, loss of confidence, agoraphobia and pre-occupation with thoughts of self-harm or guilt. (d) The physical symptoms include alopecia, asthma, eczema, enuresis and psoriasis. (e) Relevant disabilities include impaired work or school or other educational performance, significant adverse effects on social relationships and sexual dysfunction. 24 It should be noted that the clause describes the injury of shock by four criteria: the cause of the injury, the psychological symptoms, the physical symptoms and the resultant disability. The clause is not seeking to define shock and is not limiting the types of symptoms or disabilities that might arise from such an injury. It is rather attempting to give an indication of the kind of injury that would fall within the scope of shock for the purposes of compensation under the Act. It is perhaps doing no more than indicating that the injury should be a significant one in its effects upon the claimant both as to symptoms and disabilities. However, there must be a relevant disability before there can be a compensable injury. 25 The Tribunal determined not to have a hearing pursuant to s 38(2). There was before the Tribunal a psychiatric report that indicated that the plaintiff had reported symptoms to the psychiatrist attributable to post traumatic stress disorder. There was also a statement by the plaintiff's wife as to the psychological effects upon him of the incident in which he received the injury. The Tribunal referred to both of these documents in giving reasons and quoted from parts of them. Notwithstanding that the reasons of the Tribunal are to be taken as the face of the record of the Tribunal, there was a dispute as to whether the psychiatric report and the wife's statement were incorporated as part of the reasons. It was unnecessary to determine this dispute in order to resolve the proceedings before me. 26 There are at least two facts that should be borne in mind when considering the reasons of the Tribunal for refusing the plaintiff compensation for shock: the first is that the Tribunal decided that a hearing was unnecessary; the second is that the reasons for its determination were apparently considered and in writing. The first matter is important when considering how the Tribunal approached the material before it. The second is significant because this Court will often take a more robust view when considering infelicities of language or errors in reasoning given in an ex tempore judgment immediately at the conclusion of a hearing than it might where the reasons have been given in a written judgment delivered after reflection. 27 The Tribunal in its reasons noted that the plaintiff had seen the psychiatrist 8 months after the incident in which the plaintiff was injured and on one occasion for assessment and report. It also noted that the assessment was "based generally on self-reporting questionnaire/inventory techniques employed by many psychologists". The Tribunal also noted that the report is "completely subjective" and quoted from two passages of the report as indicating that the psychiatrist was relying upon reports of the plaintiff as to the effects of the incident upon his social life and his "occupational functioning". 28 The Tribunal focused its attention on the requirement that there be a disability of the kind set out in cl 5(e). Reference was made to a judgment of the Chief Judge of the District Court indicating that the effect of the shock needed to be significant but that the sub clauses of cl 5 were merely illustrations of how that fact could be proved. The Tribunal then stated:

[26]

Category 1, chronic psychological or psychiatric disorder that is moderately disabling Category 2, chronic psychological or psychiatric disorder that is severely disabling 31 Apparently there was a document issued by the Chairperson of the Tribunal that attempts to offer guidance as to the way the new injuries are to be approached. Included in this guide is a reference to the word "disabling" as used in Schedule 1 of the Act and some comments made as to how the term should be interpreted having regard to the policy behind the Act as gleaned from the relevant Minister's words in explanation for the provisions of the Act. The effect of the passage quoted by the Tribunal from the document, which I will not reproduce in this judgment, is that a psychological or psychiatric disorder is disabling for the purposes of the scheme of compensation where "it results in some material impairment in an important area of day to day functioning". 32 Counsel for the plaintiff was critical of the use made of this material by the Tribunal. He argued that the Tribunal erred in law in taking account of this material, not only because it was material that was not before the compensation assessor and, thus the use of it was in breach of s 38 of the Act, but also because the guide related to the provisions of the Act that post-dated this claim. The submission was that the material should have had no bearing on the Tribunal's determination of the appeal, particularly because cl 5, as it existed at the time the injury was inflicted, did not differentiate between moderate and severe disabilities. The issue under the operative cl 5 was whether the symptoms of injury and disability persisted over the period specified in cl 5(a). 33 However, during the course of argument the plaintiff's counsel conceded that there was nothing in the guide, or at least that part quoted by the Tribunal, that was not relevant to a consideration of the term "disabilities" in cl 5 as it applied to the claim. The document was merely being used by the Tribunal to emphasise the point that it had already made in the reasons; that it was not any adverse effect on a person's life of a psychiatric disorder, such as Post Traumatic Stress Disorder, that would result in a disability for the purposes of the Act. Although the new cl 5 referred to moderately and severely disabling disorders, the Tribunal did not incorporate such a distinction into its reasons. There is no substance to the complaint in relation to this part of the reasons 34 Similarly there was complaint made about the Tribunal's reference to, and quote from, a paper given by a psychiatrist at a judicial conference in Melbourne in 1995. The part of the paper referred to in the reasons concerned the value of psychological testing, the subjective nature of these tests and the need for a proper evaluation of the results before use was made of them. The quote concluded with the statement that information from psychological tests "simply cannot be taken at its face value". 35 The Tribunal referred to this material as support for the proposition that it had already stated, at least implicitly, earlier in its reasons; being that there should be a cautious approach to the acceptance of the findings of the psychiatrist based upon self-report of the claimant. I doubt that the Tribunal needed to inform itself of the views of a person who is said to be a "leading forensic psychiatrist" to reach a conclusion that it should approach assessments based on self-reports as possibly being unreliable. There was no error of law merely because the Tribunal referred to this material.

[30]

The Tribunal gave no reasons justifying or explaining that conclusion. It seems that the Tribunal was not declining to act upon the statement of the wife as a whole but only these two passages. Presumably the Tribunal was not concluding that on no occasion could a wife give independent evidence of a disability suffered by her husband, such a proposition is so absurd that I would not infer that this is what the Tribunal was intending to convey. The Tribunal might have thought that the wife was merely relying upon self-reports by the plaintiff in the same way as the psychiatrist. But that is clearly not correct. The wife was conveying what she perceived to be the change in the plaintiff's social behaviour since the incident at the hotel. The perception would not necessarily be limited to self-report by the plaintiff. No doubt her conclusion was based on, not only what the plaintiff said, but also his behaviour, demeanour, and any perceived change in his pre injury routine. 38 True it is, as the Tribunal pointed out, there was no material from any of the plaintiff's friends or acquaintances as to any perceived change in the plaintiff's behaviour. But the absence of that material did not mean that the Tribunal should simply disregard the statement of the wife out of hand because in some unstated way it lacked objectivity. 39 I have already noted that the Tribunal had determined that there should not be a hearing. There was no argument before me as to the consequence of such a decision. However, I am troubled by the fact the Tribunal can of its own motion determine that a hearing is not warranted and yet reject material before it that is prima facie reliable and relevant to the determination of the appeal. Presumably, before the Tribunal decides to proceed without a hearing, it has considered the material before it and reached the view that the appeal can be determined on the basis that the material is generally credible and should be acted upon by the Tribunal. Having come to that decision, it seems to me to be unfair for the Tribunal to proceed to determine the appeal by refusing to act on the material before it or some part of it. 40 If in the present case the Tribunal had some concern as to whether to accept the plaintiff's wife's statement because of her lack of objectivity, it should, in my opinion, have given the plaintiff the benefit of a hearing in respect of her evidence. If the Tribunal were not prepared to take that step, then it should act upon the wife's statement as being some evidence of the disability claimed by the plaintiff. The refusal to take into account the statement of the wife, especially for the reason stated by the Tribunal, is in my opinion an error of law and would warrant the setting aside of the decision.

[33]

The plaintiff submitted that views expressed in the passage of the reasons were so extraordinary that they revealed that the Tribunal had prejudged the matter. 42 The passage contains a number of errors. Firstly, the fact that the plaintiff was required to step down as a union representative may or may not be a disability affecting his work performance, but it is capable of amounting to a significant adverse effect on social relationships within the terms of cl 5(e). In any event the disabilities referred to in the clause are merely indicative of the types of disabilities that might result from the compensable injury of shock. They are not, and do not purport to be, an exhaustive list of the relevant disabilities. This is an interpretation of the clause that the Tribunal had seemed earlier in its reasons to accept and was the effect of the judgment of the Chief Judge of the District Court quoted two pages earlier. The fact that a person by reason of Post Traumatic Stress Disorder could no longer continue to hold a position on some board or committee for a charitable organisation could clearly amount to a disability within the terms of the clause. I can see no reason to distinguish between that situation and being unable to act as a voluntary union representative. 43 Next the description of the injury suffered by the plaintiff as being a "black eye" was inaccurate and inconsistent with the earlier finding that it had left scarring for which the plaintiff was entitled to compensation. The common notion of a "black eye" does not include any permanent scarring nor does it require any significant medical treatment such as the insertion of sutures. With respect, I believe that the Tribunal was attempting to trivialise the injury for the sake of its argument that it was not the type of injury that would result in a psychiatric disorder to the type of person that the plaintiff was. 44 In any event the type of injury suffered is irrelevant to the issue of whether the plaintiff was suffering from shock. I would have thought it was common knowledge that Post Traumatic Stress Disorder can occur even though no injury was occasioned to the victim. It is the effect upon the person of the traumatic situation in which he or she finds himself at the time the act of violence is committed. If the line of reasoning set out in this paragraph of the reasons was in any way relevant to the task of the Tribunal, the relevant starting point was the nature of the incident in which the plaintiff was injured and its effect upon him at the time of the injury. 45 However, the Tribunal's way of reasoning in this passage set out above is based upon assumptions of fact for which there was not the slightest evidence before the Tribunal. There is a limit to what material the Tribunal can take into account in determining the appeal in accordance with s 38. Generally the Tribunal is bound to consider only the material before the assessor. Of course all decision makers take into account to varying degrees general knowledge and the common experiences of persons within the community. The law relating to the evidence of matters of common knowledge is contained in s 144 of the Evidence Act. Even allowing for some considerable latitude to the Tribunal in the matters it can take into account in determining an appeal, especially as it is not bound by the laws of evidence, it was unfair, in my opinion, for the Tribunal to act upon the assumptions it made in that paragraph without one jot of evidence to support them. 46 I do not believe that there is any common knowledge available to a court or tribunal about how persons behave "in the robust pursuit of union endeavours" or the type of person who is "a union representative in the metal industry" or the effect of injuries or a traumatic event on the psychiatric well being of such a person. It seems to me simply to be a case of stereotyping of the worst kind. But even if there were some basis upon which those findings might fairly be made as a matter of generality, there was no basis upon which those findings could be applied to the plaintiff or the situation in which he found himself at the hotel when the injury was occasioned to him. 47 However, I do not have to decide whether these findings amount to an error of law on the face of the record, or indicate pre-judgment vitiating the determination of the appeal, as the plaintiff contends or amount to a denial of procedural fairness. There is a respectable argument that they amount to all three. There is in my view a clear error of law that runs throughout the whole of the Tribunal's findings and warrants the quashing of the order.

[36]

This statement of the approach being adopted for the determination of the appeal before the Tribunal in my opinion reveals that the Tribunal was unduly restricting the material that it would consider in determining a claim for compensation based upon a psychiatric disorder, such as Post Traumatic Stress Disorder. The restriction imposed is not one found in the Act and is not one that can be supported as a general proposition. 49 The Tribunal proceeded to consider the claim by drawing a distinction between "real evidence" and "self-serving statements". It appears that the Tribunal did not consider that the psychiatric report was "real evidence' and neither, apparently, was the statement of the wife. The Tribunal determined that it required "factual evidence" to prove the disability. I am unsure whether there was a perceived difference between "real evidence" and "factual evidence". However, the latter form of evidence, according to the Tribunal's reasons, would have been found in evidence from work supervisors or from persons with whom the plaintiff socialised before the assault, but not apparently in the statement from the plaintiff's wife. 50 The refusal to give any credence to the psychiatric report so far as evidence of the disability is concerned cannot be supported as a general proposition. I can understand that the Tribunal might give less-weight to matters in the report which are based upon self-report by the claimant. It is a matter of degree. But to go further and assert that the Tribunal will never allow the claim unless there is material from some particular class of witness that the Tribunal is prepared to accept as objective is in my view erroneous as a matter of law. 51 I appreciate that there might be cases where by reason of the circumstances in which the act of violence occurred and having regard to the nature of the act of violence relied upon there might be some scepticism about a finding that the claimant was suffering a psychiatric disorder of the kind with which the Act is concerned or that the disability resulting from such a disorder was as significant as suggested in the material placed before the Tribunal. If that were the case, it is hard to see how the Tribunal could proceed without a hearing. But putting that consideration to one side, the Tribunal might not be prepared to accept the psychiatric opinion for good and valid reasons, including that the evidence was based upon self-reports that the Tribunal did not accept as reliable. The Tribunal might justifiably in such case not be prepared to act on the material without some objective evidence of the significance of the disability claimed. But that is not how the Tribunal approached the present claim. 52 The Fund accepted that if the Tribunal had limited itself in a general way there would have been an error of law on the face of the record. It argued that the Tribunal was not making such a general statement but only commenting upon the particular case before it. I am conscious that I should not read the reasons of the Tribunal with a view to finding error and that I should not be concerned with "looseness in the language...…nor with unhappy phrasing" of the reasons given: Collector of Customs v Pozzolanic (1993) 43 FCR at 287. Further, I should take into account that:

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