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[2003] NSWCA 112
respondent. Appeal dismissed with costs; Burke ACCJ's award for the respondent upheld (para 39).
The worker alleged PTSD from an assault and alternatively a psychological injury from his working conditions. The Commissioner rejected the assault and PTSD causation. An intermediate judge ordered a new hearing limited to whether the work conditions caused psychological injury. At the new hearing the worker's counsel conceded the assault claim would not be relitigated; no application was made under s 17(4) to reopen the assault finding. The new judge rejected the nature-and-conditions claim. The Court of Appeal held there was no error of law: the remitter was properly construed as limited, the parties' concessions were operative, s 17(4) was not invoked, and the claimant failed to prove an alternative work-related trauma sufficient to establish PTSD. Appeal dismissed with costs.
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Renato Reodica (the worker) sued the State Rail Authority claiming incapacity from psychological injury. He ran two linked claims: (1) PTSD caused by a physical assault by a colleague, Mr Garcia, on 6 October 1995; and (2) a broader psychological injury (anxiety, depression or adjustment disorder) caused by the nature and conditions of his employment on and after August 1993. Commissioner Turner heard the original contested matter, rejected the worker's account of the physical assault and found that the worker had not discharged the onus of proving PTSD causally linked to the employment (paras 4–6, 10).
On appeal to Geraghty CCJ the worker succeeded on a narrow ground: the Commissioner had not addressed the broader 'nature and conditions' claim (para 6). Geraghty CCJ ordered "a new hearing" (para 11). The State Rail Authority appealed that order to the Court of Appeal, which dismissed the appeal. In that first appeal Mason P construed the remitter as implicitly confined to the nature and conditions claim, noting it would be unjust to reventilate the physical assault or the PTSD claim tied to it (para 12, quoting para 50 of the President's judgment).
At the new hearing before Burke ACCJ the worker's counsel expressly accepted he could not run the physical assault claim which had been rejected by Commissioner Turner, and conducted the hearing on the narrower issue of whether the terms and conditions of employment produced a psychological injury (paras 15–16, 24–25). The worker tendered the previous record, gave some further evidence, and relied on psychiatric reports from Dr Westerink and Dr Clark (paras 16–21). Burke ACCJ found there may be a PTSD-compatible symptomatology, but in the absence of the assault he could not identify any alternative work-related trauma meeting the DSM-IV criteria for PTSD and made an award for the respondent (paras 19–21, 22). The worker appealed to the Court of Appeal on points of law. Tobias JA (with Mason P and Handley JA agreeing) dismissed the appeal with costs (paras 1–3, 39).
The Court's reasoning turns on three interlinked propositions:
Construction of the remitter: a remitter (order for "a new hearing") must be read in the context of the reasons which produced it. Although Geraghty CCJ's bare order said "a new hearing", his reasons clearly identified the Commissioner’s failure to address the nature and conditions claim as the basis for the remitter. The Court therefore read the remitter as confined to that fault (paras 11–13, 32–33).
Parties' conduct and prosecutorial choices: where parties, and particularly counsel for a party, concede issues out of a re-hearing, the court conducting the re-hearing may accept those concessions and frame the hearing accordingly. Tobias JA quoted Vakauta to emphasise that parties may, with the concurrence of the judge, limit issues and procedure (para 25). Here the worker's counsel accepted he could not run the physical assault claim before Burke ACCJ (paras 15, 24). The Court treated that concession as operative; litigants are ordinarily bound by the conduct of their counsel (para 27).
The appellate and reconsideration pathways: s 17(4) of the Compensation Court Act 1984 gives the Compensation Court a discretionary power to reconsider its decisions for error of fact or law. If the worker wished to have Commissioner Turner's adverse factual finding about the assault re-opened, the proper course was to apply under s 17(4). No application was made. In those circumstances the remitted judge was not obliged to, and did not err in declining to reopen, issues finally determined by the Commissioner (paras 28–31). Relatedly, s 17(1)’s requirement of deciding upon the "real merits and justice of the case" can require finality where reventilation of issues would be unjust (para 34).
Applied to the facts, the Court concluded that (a) the remitter was confined to the nature and conditions claim; (b) the worker's counsel had conceded the assault claim could not be relitigated and no s 17(4) application had been made to revisit it; and (c) on the psychiatric evidence the PTSD diagnosis was tied to a traumatic event that had been rejected by the original fact-finder, and there was no adequate alternative work-related traumatic event proved to satisfy DSM-IV criteria. Thus there was no error of law in Burke ACCJ's approach or outcome (paras 31–38).
Before this decision the law already recognised several discrete propositions:
This judgment reinforces those pre-existing principles and clarifies their application in the compensation context. After Reodica:
Thus Reodica does not create new law but applies and ties together principles on remitters, counsel conduct, and s 17 reconsideration in a workers' compensation setting.
Paragraph 32: "It is tolerably clear that paragraph 63 ... was intended ... to be read in the context of paragraphs 58-62 ... with respect only to those issues that there should be a new hearing."
Paragraph 25 (quoting Vakauta): "The parties to a civil action may relax the rules of evidence and procedure..."
Paragraph 29: "Although ... in the absence of such an application Commissioner Turner's decision ... created an issue estoppel, there is authority ... that issue estoppel can have no application where there is a claim for reconsideration pursuant to s.17(4)..."
Paragraph 34: Quotation of s 17(1): "A decision of the Court in a matter shall be upon the real merits and justice of the case."
Paragraph 36–38: Tobias JA summarises Burke ACCJ's approach: PTSD may exist but causation not established absent assault; no alternative trauma identified.
This judgment will be most pertinent where:
In short, the authority matters where finality, remitters, counsel concessions and psychiatric causation intersect.
(Within the text of the judgment Tobias JA cites and applies prior authority: Vakauta on party-limited procedure (para 25); Hardaker and Schipp on the breadth of s 17(4) reconsideration (para 30); Merdonic and CSR Ltd v D'Arcy on alternative procedures and appeals (para 29).) The decision itself applies those authorities and demonstrates readiness of the Court of Appeal to enforce finality where the statutory reconsideration pathway is not used and where the remitter is read in context of reasons.
Practically, lower courts and tribunals should treat remitter orders as susceptible to contextual construal, be alert to counsel concessions at re-hearing, and expect that appellants must actively invoke statutory reconsideration mechanisms if they want earlier factual findings reopened. Reodica will be cited for the proposition that a remitted hearing may be confined and that a party who elects not to pursue a previously-lost factual case cannot later claim procedural unfairness unless reasonable steps (for example an application under s 17(4)) were available and taken.
The boundary between what a remitter authorises and what a remitting court may be taken to have implied remains fact-specific. Reodica construes an otherwise broad order by reference to reasons. How broadly will courts apply that approach when remittal reasons are less explicit? The decision provides a framework but not a precise test for close cases (paras 11–13, 32–33).
The decision emphasises counsel concessions. There remains a tension where a litigant claims his counsel's concession was given under a misunderstanding of law from a prior appellate remark. The Court noted the appellant's counsel may have been influenced by Mason P's remark in the first appeal but stated the concession bound the appellant unless s 17(4) was invoked (paras 26–31). How readily will courts relieve a litigant who seeks to overturn counsel’s concession in the face of an adverse factual finding? Reodica resists such relief.
The role of s 17(4): the Court reiterated its availability but did not consider circumstances in which a remitted judge should, of his own motion, revisit earlier factual findings. The judgment implies that absent an application, the remitted judge need not reconsider (paras 28–31). The limits of a judge's duty to raise reconsideration sua sponte remain unresolved.
Psychiatric causation: Reodica shows that where psychiatric evidence closely ties the diagnosis to a specific event previously rejected on the facts, the claimant faces a high hurdle to prove alternative causation. The decision does not address in detail how courts should approach cases where psychiatric evidence is more equivocal or where alternative, cumulative stressors are plausibly causal. That remains a live evidentiary issue in compensation law (paras 17–21, 36–38).
Interaction with issue estoppel and public policy: The judgment recognises that s 17(4) can displace issue estoppel but requires application. The balance between finality and the corrective power of reconsideration in the face of established injustice is left to the exercise of judicial discretion; Reodica demonstrates the Court will require formal invocation of statutory powers rather than informal reopening.
Conclusion
Reodica v State Rail Authority is a practical, procedural decision reinforcing finality in Compensation Court litigation where remittal reasons constrain the scope of a re-hearing, and where parties' counsel reasonably confine the issues without pursuing statutory reconsideration. For practitioners the lesson is clear: if a claimant wishes a previously rejected factual finding reopened, an express application under the available statutory mechanism must be made; otherwise concessions at re-hearing and contextual construction of remitters will determine the scope of litigation and the prospect of relief.
INTRODUCTION 1 MASON P: I agree with Tobias JA. 2 HANDLEY JA: I agree with Tobias JA. 3 TOBIAS JA: This an appeal from a decision of Burke ACCJ arising out of a claim for compensation by the appellant in respect of incapacity alleged to have arisen from psychological injury sustained by him in the course of his employment with the respondent. His Honour rejected the appellant's claim and made an award in favour of the respondent. HISTORY OF THE LITIGATION 4 The appellant made two claims. The first was that he suffered post-traumatic stress disorder (PTSD) as a consequence of a physical assault on his person by a Mr Garcia, a fellow employee, on the morning of 6 October 1995. The second was that on and after August 1993 the nature and conditions of his employment placed stress and strain upon him resulting in psychological injury. 5 The matter commenced originally before Commissioner Turner of the Compensation Court on 11 November 1997 and, after a contested hearing, the Commissioner delivered judgment on 27 January 1999 in which he rejected the appellant's claims and thus made an award in favour of the respondent. In so doing he rejected the appellant's allegation that he was physically assaulted by Mr Garcia on 6 October 1995. He further held that the appellant had not met the onus in respect of the PTSD in its alleged relationship to the nature and conditions of his employment prior to and including 6 October 1995. 6 The appellant appealed to a judge of the Compensation Court against the Commissioner's decision upon the basis that the latter had erred in law in failing to properly address the appellant's claim that the nature and conditions of the appellant's employment with the respondent resulted in psychological injury in the form of anxiety, depression or adjustment disorder. It was argued that the Commissioner had, in effect, confined himself to considering only the claim of PTSD having been caused by the alleged physical assault by Mr Garcia. The matter came before Geraghty CCJ who, on 26 November 1999, held that the Commissioner had committed an error of law in failing to address his mind to the nature and conditions claim which the appellant had, albeit without much enthusiasm, pursued before the Commissioner. Accordingly, his Honour upheld the appeal and ordered "a new hearing". 7 The respondent appealed the decision of Geraghty CCJ to this Court which, on 20 December 2000, dismissed the appeal with costs (the first appeal). The judgment of this Court was delivered by Mason P (with whom Meagher JA and Fitzgerald JA agreed). The President agreed with Geraghty CCJ that the Commissioner had not in his reasons for judgment addressed the broader case encapsulated in the nature and conditions claim as a possible cause of psychological injury and that, as there was some evidence capable of supporting such a claim, the Commissioner had erred. Accordingly, the President held that in the circumstances the appellant was entitled to have the wider psychological injury case addressed by the Commissioner despite the unwillingness of his then counsel to perceive and press clearly such a case. 8 The new hearing was held before Burke ACCJ who on 1 February 2002 rejected the claim based on the nature and conditions of the appellant's employment and made an award in favour of the respondent. It is against that award that the appellant appeals to this Court. Such an appeal is confined to points of law: Compensation Court Act 1984, s.32(1) (the Court Act). THE ISSUES BEFORE THIS COURT 9 The appellant submits that Burke ACCJ erred in law in, essentially, the following respects:
(a) that his Honour should have determined all the appellant's claims for compensation including his claim that he was subjected to a physical assault by Mr Garcia on 6 October 1995 which resulted in his suffering PTSD (the physical assault claim) because: (i) the terms of the order of Geraghty CCJ for a new hearing were unconfined as to the issues or claims to be re-heard, and (ii) s.17(1) and/or (4) of the Court Act obliged his Honour to consider all of the appellant's claims for compensation including the physical assault claim;
(b) that even if his Honour was correct in not reconsidering the physical assault claim, nonetheless he erred by precluding himself from considering whether the appellant suffered from PTSD caused by trauma other than the alleged physical assault in circumstances where there was some medical evidence that the appellant's PTSD may have been sustained as a consequence of events occurring both prior to and on 6 October 1995. In essence, it was submitted that with respect to this aspect of the matter, his Honour asked himself the wrong question. THE EVIDENCE AND FINDINGS RELEVANT TO THE ISSUES 10 As I have noted, Commissioner Turner rejected the evidence of the appellant that on 6 October 1995 he had been physically assaulted by Mr Garcia. It was, of course, acknowledged that no appeal lay from that finding to the Compensation Court as the finding was one of fact and an appeal from the Commissioner to a judge of the Court only lay with respect, relevantly, to a point of law: Court Act s.34A(1). 11 The relevant paragraphs of the judgment of Geraghty CCJ relating to the present issues are as follows: 56. It seems to me that, while the doctors did not support a diagnosis of nature and conditions leading to a post-traumatic stress disorder, they did in some muted form support the possibility that a psychological injury was covered by the nature and conditions of his employment, however that injury might be classified. 57. While the nature and conditions allegation was not fully pleaded and while the Commissioner was probably put off this line by the pleading of a post-traumatic stress disorder, rather than a psychological injury, both these matters demanded his attention, particularly after he had refused to accept the worker's evidence as to the fact of a physical assault. 58. I have no idea of the strength of the worker's case as to the nature and conditions claim. Maybe he is condemned to failure on that point too, but that does not concern me here. I do not need to decide it. An opportunity should be provided to have that case determined. 59. I find: 60. THAT in his judgment the Commissioner did not deal with all the issues, focussing his attention only on the fact of a physical assault of 6 October. 61. THAT he did not address his mind to the verbal assault and its effect, and more importantly, to the nature and conditions of the appellant's work, and to the medical evidence in relation to this as a possible cause of a psychological injury. 62. For these reasons, I uphold the appeal. 63. I order a new hearing. 12 It will be noted that Geraghty CCJ did not, in paragraph 63 of his judgment, expressly confine any "new hearing" to the issue referred to in paragraph 61 being the issue in respect of which he had held that the Commissioner had erred in law in failing to address. In the first appeal this aspect of the matter was referred to by the President in the following terms: 50. I take it to be implicit that the new hearing is to be confined to the nature and conditions claim as a possible cause of psychological injury other than PTSD. It would be unjust for the physical assault claim or the PTSD injury claim to be reventilated. 13 Further, as the President recognised in paragraphs 53 and 54 of his judgment, the appellant's application (even as amended) confined itself to a claim that the relevant injury was PTSD and the Commissioner had, correctly, held that the nature and conditions of employment claim could not have resulted in PTSD in light of the diagnostic criteria in DSM-IV and the medical evidence in the case. His Honour thus concluded (paragraph 56) that the medical evidence before the Commissioner was relevant material in the nature and conditions of employment case advanced by the appellant if it was not tied exclusively to PTSD. 14 It is thus apparent that, at least so far as the evidence before the Commissioner was concerned, the claim that the appellant suffered from PTSD was exclusively tied to the alleged physical assault whereas the terms and conditions of employment claim, at its highest, was capable of being viewed as causing a psychological illness but not PTSD. It is in this context, including the finding that there was no physical assault, that the President's remark in the second sentence of paragraph 50 of his judgment that it would be unjust to have reventilated the PTSD injury claim must be viewed. 15 When the matter came before Burke ACCJ on 30 January 2002, it became clear that the then counsel for the appellant accepted that he could not run his client's case upon the basis that the appellant suffered PTSD as a consequence of an alleged physical assault that had been rejected by the Commissioner. The transcript of that hearing is replete with concessions by counsel for the appellant that he could not rely on any physical trauma in support of the appellant's alleged psychological condition. Accordingly, the appellant conducted the case before Burke ACCJ on the basis that the only issue was whether the appellant sustained a psychological injury as a consequence of the terms and conditions of his employment on and prior to 6 October 1995 including an alleged verbal assault or altercation which occurred on that day and to which the Commissioner had referred in paragraph 61 of his judgment. 16 Before Burke ACCJ the appellant tendered the whole of the record before the Commissioner. The only additional evidence tendered before his Honour was some further oral evidence from the appellant and Dr Westerlink and a report of Dr T O Clark dated 25 June 2001. Dr Clark was not required for cross examination. 17 The evidence of Dr Westerlink before the Commissioner and repeated before Burke ACCJ was that the appellant was suffering from PTSD. He was asked to assume that there had been no physical assault and whether that altered his opinion in any way so far as the appellant's condition was concerned. His response was that it altered it "marginally" but that most of the symptoms exhibited by the appellant were a combination of the hostility that he felt in his work environment and his ability to adjust to being moved around in his job. He referred to his anxiety disorder as being a culmination of a number of adverse factors. The following exchanged between the doctor and counsel for the appellant then took place: Q. Doctor, what is your diagnosis as far as Mr Roedica is concerned, assuming that there was no physical assault under - that results from the work environment? A. He has an anxiety disorder with episodic depression. He has some features of post-traumatic stress disorder but I couldn't make a full diagnosis of post-traumatic stress disorder. 18 Dr Westering was then cross examined by counsel for the respondent in which he confirmed that he remained of the view that the appellant suffered from PTSD including anxiety disorder and intermittent depression. He agreed that his anxiety and intermittent depression as well as the PTSD was "all part of the same condition". Having cross examined the appellant to agree that he was happy working for the respondent and doing his job prior to 6 October 1995, that "the whole thing changed when you say Mr Garcia physically assaulted" him on that date and that his nightmares and flashbacks were of the physical assault he allegedly sustained on that day, counsel for the respondent asked Dr Westering the following: Q. No, what I'm getting at is that if he was happy doing his work and happy at his job, and then he has this assault on which the florid and acute symptoms commence, and the nightmares and the flashbacks all go back to the assault, then clearly it is the assault that is the ongoing cause of his problems, is it not? A. Yes. Q. That is the cause to the exclusion of others? A. If there was nothing else, of course. 19 In re-examination Dr Westering was asked the following: Q. Doctor, going back, as far as your - you were asked some questions about your diagnosis of PTSD. A. Yes. Q. Doctor, was that a …………..that at the time that you gave that diagnosis, upon your acceptance of his history to you of a physical assault. A---Yes. Q. Doctor, does the stressor the stressors when in the criteria of DSM4, do they have to be - do they necessarily have to be physical. A---No. In fact, a majority - psychological stressors - assault is perhaps the most common of the traumatic stressors that we see, post traumatic stress disorder, but there is a whole lot of others that can and very often they had psychological stressors, it depends on what sort of an effect it has on the person's perception and if the person perceives that his life is in danger or there is something horrible around and he feels horrified or threatened, that's when you talk about a traumatic stressor rather than stressors in general terms. Q. Even if he were to say that he was happy despite the stressors, could those stressors that you have got a history of be playing a subtle effect upon him. A---I would say so, yes. 20 In his report, Dr Clark recorded the physical assault on 6 October 1995. In particular, he referred to the appellant's assertion that he was so scared that he wet himself and thought that he was going to die. In the light of that history as well as the symptoms that he exhibited it is not surprising that Dr Clark's psychiatric diagnosis was that the appellant had a chronic PTSD with supervening chronic depression or dysthymia. Although Dr Clark opined that the appellant's clinical condition exhibited many features of PTSD and recurring depression, he did not regard these as mutually exclusive diagnoses. However, he considered that it was most probable from a clinical point of view that he had been through "a major traumatic incident". He supported this opinion by reference to the criteria for PTSD from DSM-IV which included the following: A) That the person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others (2) the persons response involved intense fear, helplessness or horror. 21 In response to a question as to whether matters arising from the nature and conditions of his employment alone (excluding the alleged physical assault) were a substantial contributing factor to the development of the appellant's conditions, Dr Clark responded as follows: It seems most probable that the nature and conditions of his work culminating in this contretemps with management and lack of support, was the substantial contributing factor in the development of his condition. This is validated by his reaction, one does not get Post-traumatic Stress Disorder of such magnitude, without there being a stress. It is highly probable that he went through a traumatic time; not simply the assault but his betrayal by the management and their lack of action in getting the police in were contributing factors. 22 As Burke ACCJ pointed out in paragraph 18 of his judgment, this last mentioned opinion of Dr Clark indicated that he appeared to be looking at events that transpired post the alleged physical assault rather than at the terms and conditions of his employment prior to 6 October. His Honour then continued in the following terms: 19. The applicant's case is and always has been that he suffers post-traumatic stress disorder. His symptom complex is pointed out by Dr Westerink and Dr Clark and conforms to the classical criteria for such a diagnosis. There are a number of references to intercurrent anxiety and depression. Dr Westerink has commented on that subject and he has indicated that in his experience 60 to 70 per cent of post-traumatic stress disorder patients evidence anxiety and 80 per cent manifest depression. In other words, such symptomatology is an inherent element of post-traumatic stress disorder and not a concurrent discrete psychiatric conditioning originating from causes other than whatever it is that created the post-traumatic stress disorder. 20. On the totality of the evidence and the Court of Appeal judgment counsel for both sides have said that I can't find the man has post-traumatic stress disorder though there seems to be an overwhelming case for it. Certainly, what I cannot find is that if he does have such a condition it results from an assault by Mr Garcia upon the applicant occurring in the course of his employment on 6 October 1995. When he presented to Dr Francesco on 7 October 1995 he obviously had quite observable bruising over a fair area of his chest and was given a certificate for two months off, suggest Dr Francesco though it was of some problem. Patently the applicant had been subject to trauma. The one thing I cannot find is that the trauma is that which he alleges - so if the applicant does suffer a post-traumatic stress disorder as is strongly argued by Dr Westerink and supported by Dr Clark then the trauma which gave rise to it was not the trauma upon which the applicant relies as occurring on 6 October. 21. What else may have happened to him I do not know. That will forever remain one of life's little mysteries but the only thing I can say on the totality of all that evidence is that the applicant has not discharged the onus of establishing that the nature and conditions of his employment divorced from the assault of 6 October 1995 caused a relevant psychological injury productive of incapacity. I, like the commissioner before me, though with a completely different impression of the situation, make an award for the respondent. CONSIDERATION OF THE ISSUES 23 As I have noted the first submission of the appellant is that Burke ACCJ erred by failing to consider and determine all the appellant's claims for compensation including the allegation that he was subjected to a physical assault which resulted in him sustaining PTSD. The first basis of this submission was that the order of Geraghty CCJ that there be "a new hearing" was unconfined with the consequence that what was remitted for a new hearing was all the appellant's claims for compensation including the physical assault claim. It was thus submitted that the views expressed by Mason P in paragraph 50 of his Honour's judgment in the first appeal were obiter and were an unjustified gloss upon the literal terms of the order of Geraghty CCJ that there be a "new hearing". The second basis for the submission was that s.17(1) and (4) of the Court Act mandated a hearing of all the appellant's claims. 24 With respect to the first basis of the submission referred to above, the appellant submitted that had counsel for the respondent wished to limit the issues that were available on the remitter, it was counsel's duty to apply to Geraghty CCJ for an appropriate direction. No doubt such an application could have been made. However, when the matter came before Burke ACCJ there was, as I have already noted, discussion between his Honour and counsel as to whether the issues should be confined by excluding the physical assault claim. Thus the following exchange took place: HIS HONOUR I am not too sure you can - anyway, it does not matter now, it is all up for grabs again, it is a new trial on the AD which alleges all of it, nature and conditions, altercation, verbal and physical assault. MR DAVIS I cannot run on physical assault, your Honour. HIS HONOUR That is right. We have got rid of that. MR DAVIS But it may be that I can run a verbal altercation and nature and conditions. 25 Even if the order of Geraghty CCJ was unconfined in its terms, nonetheless the procedure to be adopted at the "new hearing" and the claims to be litigated therein were at the discretion of Burke ACCJ informed by any agreement or concession of the parties with respect thereto. As McHugh JA (as he then was) said in Vakauta v Kelly (1988) 13 NSWLR 502 at 528: The parties to a civil action may relax the rules of evidence and procedure. They may dispense with proof of issues and, by their pleadings, may even conduct their litigation in accordance with rules which do not correctly represent the substantive law. 26 There was thus nothing in the order of Geraghty CCJ which prevented the parties, with the concurrence of his Honour, from limiting the claims to be litigated at the new hearing. And that is what occurred. The appellant's then counsel was content to exclude from his Honour's consideration that part of his client's claim for compensation which related to the alleged physical assault and which had been rejected by Commissioner Turner. True it is that he was probably influenced in taking that course by what fell from Mason P in paragraph 50 of his Honour's judgment in the first appeal. It may be that the then counsel for the appellant thought that the observations of his Honour in the paragraph referred to had some binding effect although I note that before this Court counsel for the appellant argued that the remarks of Mason P were obiter. If that be so, then it follows that counsel for the appellant before Burke ACCJ was entitled to ignore them or, at least, to argue that his Honour was not bound by them. 27 A further consideration is the well established principle that, as a general rule, litigants are bound by the conduct of their counsel: Crampton v The Queen (2000) 206 CLR 161 at 173. Although there is an exception to that rule with respect to an appellate court entertaining a question of law which is raised for the first time before that court, such an exception has no application where the complaint made before the appellate court for the first time is that the trial judge erred in failing to permit or, as in the present case, require a quite different factual case to be advanced by one of the parties. The position is a fortiori where, as here, that case had been fully advanced and determined on its merits adversely to the appellant by Commissioner Turner in circumstances where no appeal lay from that determination. 28 Three further points may be noted. The first is that even if then counsel for the appellant had considered that due to what fell from the President in the first appeal, he had no option but to agree to the issue before Burke ACCJ being confined to the terms and conditions of employment claim, there is no doubt that there was nothing in the President's comments in paragraph 50 of his judgment which could have prevented the appellant from applying to Burke ACCJ pursuant to s.17(4) of the Court Act for a reconsideration of Commissioner Turner's decision with respect to the physical assault claim. No such application was made. 29 Although it is true that in the absence of such an application Commissioner Turner's decision with respect to the alleged physical assault created an issue estoppel, there is authority in the Compensation Court itself that issue estoppel can have no application where there is a claim for reconsideration pursuant to s.17(4): Bruce v Grocon Limited (1995) 11 NSW CCR 247 and 264; Warren v Commissioner of Police (1997) 14 NSW CCR 513 at 523. Furthermore, there is authority in this Court that notwithstanding that an appeal lies from a decision of the Compensation Court for an error of law, that fact is no impediment to an application being brought in that court pursuant to s.17(4) of the Court Act for reconsideration of the award: Merdonic v Pongrass Operations Pty Ltd, NSWCA, No. 40500/91, 8 November 1994, unreported; CSR Ltd v D'Arcy (1999) 18 NSW CCR 231 at 244. 30 It is well established that s.17(4) of the Court Act confers a discretionary authority upon the Compensation Court itself to review, and correct, errors of both fact and law: Hardaker v Wright & Bruce Pty Limited (1960) 62 SR(NSW) 244 at 248, 249; Schipp v Herfords Pty Limited (1975) 1 NSWLR 412 at 424. The width of the subsection was described by Owen and Walsh JJ in Hardaker (at 249) in the following terms: Such reconsideration was not necessarily limited to an examination of changed circumstances or fresh evidence concerning the original circumstances. It may, in a proper case, extend to considering whether an error had been made, whether of fact or of law, and to making such new or altered award as the circumstances, when thus reconsidered, appeared to require.
This passage was cited with approval in Schipp by Mahoney JA at 438. 31 It follows that notwithstanding that no appeal lay to a judge of the Compensation Court from Commissioner Turner's decision with respect to the physical assault claim, nonetheless it would have been open to then counsel for the appellant to have made application to Burke ACCJ to reconsider that issue pursuant to s.17(4). Of course, his Honour may have exercised his discretion against so doing but in the absence of any application for him to reconsider Commissioner Turner's decision I cannot see how it can be contended that his Honour erred in law by failing to reconsider the claim on his own motion in circumstances where counsel for the appellant expressly accepted that that claim was not to be relitigated in the hearing which had then commenced. 32 The second point is that, in my opinion, the President was correct when he construed Geraghty CCJ's order that there be a new hearing as being one confined to the nature and conditions claim as a possible cause of psychological injury other than PTSD. It is tolerably clear that paragraph 63 of Geraghty CCJ's judgment was intended by his Honour to be read in the context of paragraphs 58-62 and in particular 61. It was, in my opinion, the decision of his Honour that the Commissioner had failed to address his mind to the verbal assault and its effect and to the nature and conditions of the appellant's work and that it was with respect only to those issues that there should be a new hearing. 33 I see no reason why it was not open to this Court in the first appeal to construe Geraghty CCJ's order with respect to a new hearing in accordance with the decision which his Honour had made and which had informed the making of that order: Cawood v Green & Anor, NSWCA, No. 320/13, 26 June 1974, unreported at page 3 of the judgment of Reynolds JA. Section 34A(5)(a) of the Court Act empowers a judge on the hearing of an appeal from a commissioner to remit the matter to the appropriate commissioner for determination in accordance with any decision of the judge. It is true that, in the present case, Geraghty CCJ did not remit the matter to Commissioner Turner or, for that matter, to any commissioner and it may, therefore, be said that the order he made was pursuant to the power in s.34(A)(b) to make such order in relation to the appeal as his Honour saw fit. Nevertheless in my opinion it was clearly intended by Geraghty CCJ that there should be a new hearing in accordance with his decision that Commissioner Turner had failed to properly address the nature and conditions claim for compensation of the appellant. 34 The third point concerns the appellant's reliance upon the provisions of s.17(1) of the Court Act that A decision of the Court in a matter shall be upon the real merits and justice of the case
as supporting the proposition that it was the duty of Burke ACCJ to consider the physical assault claim irrespective of the consensus of the parties that he should not. Of course "the real merits and justice of the case" works in favour of the respondent as well as the appellant. The appellant's case with respect to the physical assault claim had been litigated before Commissioner Turner and determined upon its merits in favour of the respondent. It was in this context that the President in the first appeal observed that it would be unjust for that claim or the PTSD injury claim (which arose out of the assault claim) to be reventilated. In my view, the observation of the President accorded with the requirements of s.17(1) of the Court Act. Absent any application to Burke ACCJ pursuant to s.17(4) to reconsider the issue, s.17(1) dictated that the claim with respect to the alleged assault and the PTSD injury allegedly arising out of that assault should not be relitigated in the new hearing. 35 Accordingly, for the foregoing reasons, Burke ACCJ did not err in law by failing to determine the whole of the appellant's original claim for compensation including his claim that he was subjected to a physical assault by Mr Garcia on 6 October 1995 which result in his suffering PTSD which has incapacitated him. 36 The second submission of the appellant before this Court was that Burke ACCJ erred by precluding himself from considering whether the appellant suffered from PTSD caused by trauma other than the alleged physical assault. The critical findings on this issue are in paragraphs 19, 20 and 21 of his Honour's reasons which I have set out in paragraph 9 above. As I understand his Honour's findings on this issue, he considered that the medical evidence established that the appellant was suffering from PTSD but the issue which concerned him was its cause. Dr Clark's evidence according to his Honour (paragraph 19), was that the appellant's anxiety and intermittent depression were not concurrent, discrete psychiatric conditions originating from some cause other than that which created the PTSD. Equally, Dr Westering confirmed his opinion that the appellant was suffering PTSD together with an anxiety disorder with intermittent depression which were "all part of the same condition". Having expressed the view that it was very difficult for him to assume that a physical assault had not occurred when his patient had told him that it did, Dr Westering when asked whether a verbal (as distinct from a physical) altercation could have caused PTSD in circumstances where the appellant was asserting that he was, prior to that altercation, coping with the stressors that he, Dr Westering, had obtained by way of history from the appellant, responded that that was "possible". In the light of this evidence it is perhaps not surprising that Burke ACCJ was not prepared to find that the cause of the appellant's PTSD was the verbal altercation which occurred on 6 October. In paragraph 20 of his judgment his Honour found that the appellant had been subject to trauma but that trauma was not the trauma constituted by the physical assault upon which the appellant relied but which had been found by Commissioner Turner not to have occurred. Accordingly, his Honour made the findings set out in paragraph 21 of his judgment. 37 In my opinion there can be no doubt that Burke ACCJ did not preclude himself from considering whether the appellant suffered from PTSD caused by trauma other than that relating to the alleged physical assault. He found that the appellant was suffering from PTSD but he was unable, having excluded the alleged physical assault as a source of trauma, to identify any other work-related trauma of such a nature as would cause PTSD in accordance with the criteria from DSM-IV set out in Dr Clark's report. 38 The appellant's case and the medical evidence before his Honour established that the only relevant psychological injury sustained by the appellant was PTSD. It is therefore unsurprising that he found that the appellant had not discharged the onus of establishing the existence of any non-physical trauma occurring during the course of his employment which would have caused that condition. In my opinion, no error of law has been shown with respect to his Honour's findings in this regard. CONCLUSION 39 For the foregoing reasons I am of the opinion that no error of law on the part of Burke ACCJ has been established. Accordingly, the appeal should be dismissed with costs. **********
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Reodica
State Rail Authority
CITATION : Reodica v State Rail Authority [2003] NSWCA 112 revised - 20/05/2003 HEARING DATE(S) : 5 May 2003 JUDGMENT DATE : 20 May 2003
(1988) 13 NSWLR 502
(2000) 206 CLR 161
(1995) 11 NSW CCR 247
(1997) 14 NSW CCR 513
(1999) 18 NSW CCR 231
(1975) 1 NSWLR 412
Appeal dismissed with costs; Burke ACCJ's award for the respondent upheld (para 39).