Was the decision, that the plaintiff's psychological disorder was not severely disabling, affected by jurisdictional error?
- It is quite clear that the ARW's Report fully supported the plaintiff's claim that he suffered the compensable injury of Psych Cat 2. Acceptance of the ARW Report would have legally entitled the plaintiff to a finding that he had suffered that compensable injury. The issue which arises is whether the delegate was entitled to reject the opinions expressed by the ARW.
- The delegate's reasons for refusing to find in favour of the applicant are encapsulated at [44] of his reasons set out above (at [32]). He appears to infer that the ARW Report does "point to a severe impact on the applicant's functioning". Curiously, Dr Lenning's report of 19 May 2002 appears to give him cause, because of the absence of the expression of an opinion, as to diagnosis. Likewise Mr Comino's reports, because they indicated some progress. The delegate seems to have regarded these matters as constituting a conflict in the material before him and because there was an absence of evidence from treating health professionals and no evidence of ongoing treatment he said:
"I cannot make a finding on the limited and somewhat disparate evidence that is before me that the applicant's psychological injury is severely disabling on him". [sic]
- It is important to bear in mind that the statutory language defines Psych Cat 2 as "chronic psychological or psychiatric disorder that is severely disabling". The delegate directed himself that this category of compensable injury has three elements. The first is a psychological disorder. The delegate made it clear that this required a recognised psychiatric disorder, such as a disorder recognised in Diagnostic and Statistical Manual of Mental Disorders, 5th Edition ("DSM-5"), rather than mere psychological symptoms. The second element is one of chronicity and the third element relates to the consequence of the disorder, that is to say, the effects on the sufferer must be severely disabling.
- The delegate saw the second and third elements as being mere questions of fact for him while the first element obviously depends upon the expression of expert opinion.
- I am not convinced that the delegate's approach is correct. First, the statutory expression is obviously a composite or compound concept that should be considered as a whole. There is not necessarily any difficulty in recognising that there may be different elements or aspects to the composite idea but breaking it up into those elements and considering each of them separately is likely to mislead a decision maker. Secondly, I am not convinced that the question of chronicity is always a mere question of primary fact, not depending upon expert opinion. Chronicity may be part of the diagnostic criteria that an expert diagnostician needs to consider. The delegate's definition of chronic as "longstanding duration" may not match the medical definition of what may properly be regarded as a chronic disorder (CB 11;[32]).
- Having said this, I acknowledge that these errors were not material. It seems tolerably clear that the delegate accepted that the plaintiff suffered from a chronic psychological disorder, although he does not expressly say so. However, I have drawn this inference because Mr Ting concedes in his written submissions (Defendant's Submissions ("DS") at [2]) that the decision not to award statutory compensation "was based on a finding that the plaintiff's psychological injury was not "severely disabling"". And at DS [6] it is stated "it is common ground that the plaintiff was diagnosed with psychological disorders". Mr Ting confirmed that there was no issue that the plaintiff suffered a chronic psychological disorder in oral argument (26.15 - 27.10T).
- I am prepared to act on this basis, however, in recording his findings (CB 13 [46]), the delegate rolled his conclusion up in a compendious way by saying:
"I do not find the compensable injury of "psychological or psychiatric disorder category 2: chronic disorder that is severely disabling" established."
This rather suggests he was not satisfied of the existence of any of his three elements. Given the conclusions of the ARW, it would have been irrational for the delegate to have rejected the contention that the plaintiff suffered from a chronic psychiatric or psychological disorder. The reports of Dr Lenning and Mr Comino were not to the contrary. They were written for a different purpose and they both accepted, it seems to me, that there were ongoing psychological issues which needed further treatment. The opinion of neither of them is capable of being read as inconsistent with the opinions expressed by the ARW.
- In my opinion, the delegate misdirected himself as to the meaning of "severely disabling". I am prepared to accept, as the delegate stated (CB 11; [33]) that the expression severely disabling should be given its ordinary meaning. However, this does not mean that the concept is not to be informed by expert evidence from a psychiatrist or a psychologist. Moreover, one can accept that severe must mean something which is more serious than a mild or moderate disability, as the delegate expressly decided. Indeed one should refine it: severe means something more serious than a moderate disability.
- But the delegate fell into error (at [34]) when he defined severe by reference to the Macquarie Dictionary's definition as "extreme", "serious" and "grave". He then married this by reference to the GAF scale. From this document he drew examples of "severe" impairments as including: that a person stays in bed all day, has no job, home or friends. Again, the delegate seems to have taken a somewhat unnecessary, and uncalled for, truncated approach to the process of interpretation.
- Dictionaries may be useful aids in determining the ordinary meaning of a word or phrase. In House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498, Mason P said (at [28]):
"A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time-to-time and place-to-place. However, they do not speak with one voice even if published relatively concurrently. They can illustrate the usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose."
- Following his Honour's approach, in Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 ("Comcare v Martinez"), Robertson J said:
"…in statutory interpretation it is one thing to use a dictionary definition to identify a range of possible meanings of a word: it is another to treat those different words in the definition as if they were synonyms for the word in its statutory context."
- Finally I will refer to Lee v Showmen's Guild of Great Britain [1952] 2 QB 329 ("Lee v Showmen's Guild") at 338. Sommerville LJ said:
"[i]t is often fallacious in considering the meaning of a phrase consisting of two words to find a meaning which each has separately and then infer that the two together cover the combination so arrived at. The two together may … have acquired a special meaning of their own."
- It is also important to bear in mind that in the interpretation or construction of a statute one is generally searching for the legal meaning of the word or phrase in its statutory context. As Beazley ACJ said in Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697; [2013] NSWCA 145 at 85:
"[n]or can the meaning of a word as a matter of ordinary English usage override the necessity to construe the statutory language in context."
- For my part the meaning of the expression "severely disabling" to the extent to which it should be separated from the composite expression is: "more than moderately disabling; seriously disabling." In my judgment the delegate fell into error when he defined severe separately from disabling as meaning "extreme, serious or grave" by reference to The Macquarie Dictionary definition. The error falls into the categories identified by Robertson J in Comcare v Martinez and Sommerville LJ in Lee v Showmen's Guild.
- It was also an error to then consider disabling separately by reference to the GAF, a tool or aid for the use of qualified experts. In particular, with respect, it was an error to cherry-pick from that publication an example of severe impairment as including: a person who stays in bed all day, has no job, home or friends. First, impairment is not necessarily the same thing as disability. Secondly, if, as I believe, in the statutory context the expression severely disabling means more than a moderate or serious disability, Psych Cat 2 obviously will cover a range of different cases. These will extend from merely to somewhat more than moderately disabling to the catastrophically disabling. The example plucked from GAF by the delegate is more consistent with the high end of that range than a condition that has only just crossed its threshold. In my judgment this misdirection; asking himself the wrong question was material to the delegate's decision and constitutes jurisdictional error.