Bridgeman v Victims Compensation Fund Corporation

[2008] NSWDC 153

CITATION:	Bridgeman v Victims Compensation Fund Corporation [2008] NSWDC 153
HEARING DATE(S):	19 June 2008
JUDGMENT DATE:	18 July 2008
JURISDICTION:	District Court Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	1. The Summons (and the Notice of Motion which preceded it) are dismissed. 2. Leave to appeal is refused. 3. The determination of the Victims Compensation Tribunal of 30 January 2008 is affirmed. 4. The Appellant is to pay the costs of the Respondent on the ordinary basis.
CATCHWORDS:	VICTIMS COMPENSATION - appeal on question of law from decision of Victims Compensation Tribunal - whether late evidence should have been received by the Tribunal - whether the Tribunal gave adequate reasons - whether the Tribunal's decision was so unreasonable on the facts as to amount to an error of law
LEGISLATION CITED:	Victims Support and Rehabilitation Act 1996
CASES CITED:	Advanced Gaming Technologies Pty Limited v Ahearn [1999] NSWSC 45 Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Buckley v Victims Compensation Fund Corporation [2004] NSWSC 513 Cook v Midpart Pty Limited [2008] NSWCA 151 Eastside Scaffolding v Kazic [2008] NSWCA 146 Madden v New South Wales Ministerial Corporation [1999] NSWSC 196 Maksoudian v J Robins & Sons Pty Limited (1993) 9 NSWCCR 642 Skalkos v Assaf [2002] NSWSC 1221 Southern Tableland Health Service v Solomon (1999) NSWCCR 235 Victims Compensation Fund Corporation v Hill [2000] NSWCA 75 Wilson v The Prothonotary [2000] NSWCA 23
PARTIES:	Caroline Bridgeman (Appellant) Victims Compensation Fund Corporation (Respondent)
FILE NUMBER(S):	16/08 at Gosford
COUNSEL:	Mr R Quickenden (Appellant) Mr McAteer (Respondent)
SOLICITORS:	Brazel Moore Lawyers (Appellant) Victims Compensation Fund Corporation (Respondent)

JUDGMENT

The proceedings and the issues
1. Between October 2004 and April 2005 Ms Bridgeman was subjected to serious harassment, intimidation and threats of violence by her neighbour, whilst residing at her house in Quakers Hill. By reason of her neighbour’s conduct Ms Bridgeman suffered a psychological condition, as a result of which she was forced, at the age of fifty-one, to move away to a new location.

2. The neighbour’s conduct was held by the Victims Compensation Tribunal to constitute an “act of violence” sufficient to make Ms Bridgeman a “primary victim” within the meaning of the Victims Support and Rehabilitation Act 1996: s 5(1) and s 6(a). It was further held that her psychological condition was a ”compensable injury”, thus making her eligible for statutory compensation under the Act: s 7(1).

3. Ms Bridgeman lodged an application for compensation under the Act. The ensuing proceedings resulted in two assessments by compensation assessors, and two appeals to the Victims Compensation Tribunal.
The issue in the second of those appeals was whether the chronic psychological or psychiatric disorder from which Miss Bridgeman was suffering was “moderately disabling” (a Category 1 disorder) or “severely disabling” (a Category 2 disorder): see Schedule 1 of the Act in the Table at p 9 of 12.

In a decision delivered on 30 June 2008, the Tribunal determined that the appellant’s disorder was not “severely disabling”. The decision was couched in the following terms:

“...it is my view that the evidence is not sufficient to establish, on the balance of probabilities, that the Appellant’s chronic psychological or psychiatric disorder has resulted in severe impairment in her ability to function in her usual day to day activities. Whilst her chronic disorder is disabling, I am not satisfied, on the balance of probabilities, that her chronic disorder is severely disabling.

I am not satisfied that the evidence is sufficient to establish the compensable injury of ‘Category 2 chronic psychological or psychiatric disorder that is ‘severely disabling’ in that, the evidence is not sufficient to establish the disorder is ‘severely disabling’.

The appeal will be dismissed and the assessor’s determination will be affirmed.”

4. Ms Bridgeman now seeks leave to appeal to this court on a question of law from the decision of the Tribunal: s 39(1). She seeks an order that the determination be set aside and the matter remitted to be considered and determined again by the Tribunal on the question of law concerned: 39(5)(b).

5. The questions of law on which it was sought to appeal were:

(i) inadequate or insufficient reasons of the Tribunal;

(ii) failing to comply with procedural fairness;

(iii) applying the law to the facts and reaching an unreasonable conclusion.

It is to be noted that for the purposes of an application to this court “a determination of whether a compensable injury is of a particular description specified in Schedule 1” is not a question of law:

s 39(3)(a).

6. The grounds upon which the appellant relied were set out in the affidavit of Peter Moore dated 26 February 2008 at paragraph 5. At the hearing the appellant only relied on some of those grounds, but also relied upon an additional, fresh ground, as to which the defendant took no objection.

7. In the result the issues for determination, as distilled, were:

(a) whether the Tribunal erred in law by failing to take into consideration, on appeal, an undated letter from Ms Bridgeman attached to the Notice of Appeal (Exhibit 1 at Tab 2);

(b) whether the Tribunal gave adequate reasons;

(c) whether the Tribunal’s decision was wrong in law because it was an unreasonable

conclusion on the facts.

Should the Tribunal have taken the appellant’s letter into account?

8. On appeal from a determination of a compensation assessor, the Tribunal may 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: s 38(3).

9. It was not suggested that the letter contained evidence or material occurring after the determination by the compensation assessor giving rise to the appeal to the Tribunal. In fact the appellant did not set out any basis in the grounds of appeal in the Notice of Appeal to justify the reception by the Tribunal of the letter as further evidence. It was, however, submitted for the appellant that there were “special grounds” for its reception by the Tribunal, namely that it contained relevant material and helped explain the significance of the appellant’s disorder and its severity.

10. The Tribunal considered the legal principles applicable to the consideration of whether ‘special grounds’ existed for reception of the appellant’s letter. It referred to the decisions in Victims Compensation Fund Corporation v Hill [2000] NSWCA 75 at [26] to [31] and Wilson v The Prothonotary [2000] NSWCA 23 at [47]. Having distilled the relevant principles from those decisions the Tribunal concluded:

“Unless special grounds are shown to exist (or exceptional circumstances are established), or the further material concerns matters occurring after the assessor’s determination, and the appeal should be determined on the evidence and material that was before the compensation assessor when the determination was made on 6 November 2006 and 15 May 2007.

I am not satisfied that the Appellant’s statement could not, with reasonable diligence, have been provided to the compensation assessor for consideration. It appears to be credible. There is not a high degree of probability that the reception of the statement would result in a different verdict, on the issue of the compensable injury of ‘Category 2 chronic psychological or psychiatric disorder that is severely disabling’, as it is the report of the authorised report writer that must be used for the purposes of establishing such disorder (Clause 5 of schedule 1 of the Act).

I am not satisfied that the Appellant has established that special grounds exist for leave to be given for the reception of her statement. I am not satisfied that exceptional circumstances have been shown to exist. In the exercise of my discretion, I decline to give leave for the reception of the statement.”

11. It was not suggested that the Tribunal applied an incorrect test, or that it misapplied the test. Indeed in my view, no such suggestions could be made. In short, there was no convincing basis proffered for criticism of the Tribunal’s decision not to receive the letter nor were any additional grounds suggested that might affect the exercise of the discretion: see also Maksoudian v J Robins & Sons Pty Limited (1993) 9 NSWCCR 642; Southern Tableland Health Service v Solomon (1999) NSWCCR 235 at [58].

12. For these reasons I find that the Tribunal made no error of law by declining to give leave to the appellant for the reception of her undated letter, or in failing to give consideration to it.

13. All of that having been said, there was nothing to prevent the Tribunal, nor indeed this Court, if appropriate, from treating certain parts of the letter as a set of submissions from the appellant in support of her appeal (as opposed to receiving it as containing some new evidence or material not before the compensation assessor).

Did the Tribunal give adequate reasons?

14. It was submitted for the appellant that the reasons given for its conclusion that her condition was not “severely disabling” were inadequate. It was contended that it was inadequate to simply state that the evidence was insufficient to establish the appellant’s condition was ‘severely disabling’, and that the Tribunal failed to explain why, or what facts it took into account in reaching that conclusion.

15. The Court of Appeal has recently reaffirmed that the requirements of an adequate statement of reasons were as formulated by Meagher JA in Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442-444: Eastside Scaffolding v Kazic [2008] NSWCA 146 at [58]. In the present case the Tribunal referred in its reasons to the evidence in sufficient detail, did not overlook any important or critical material, and made findings where required. The relevant principles of law were appropriately applied.

16. As the Court of Appeal said in Beale at [444]:

“It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered...

The costs and delays involved in litigation today are problems which have attracted enormous public attention, a plethora of government inquiries and the attention of the Australian Law Reform Commission. In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal.”

See also Madden v New South Wales Ministerial Corporation [1999] NSWSC 196 at [16]; Skalkos v Assaf [2002] NSWSC 1221; Advanced Gaming Technologies Pty Limited v Ahearn [1999] NSWSC 45; and Cook v Midpart Pty Limited [2008] NSWCA 151 at [55-56].

17. In my view the reasons of the Tribunal sufficiently disclose why the decision was made and adequately explain the essential grounds upon which the decision rested.

18. For these reasons I find that the Tribunal made no error of law by reason of any inadequacy in its reasons.

Was the Tribunal’s decision unreasonable on the facts?

19. It was submitted for the appellant that the determination of the Tribunal that her disorder was not ‘severely disabling’ was contrary to the evidence and that the decision was so unreasonable as to be incorrect as a matter of law. Counsel referred to the decision in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223, and Buckley v Victims Compensation Fund Corporation [2004] NSWSC 513.

20. It was further submitted that there was evidence that the appellant suffered from a chronic disorder that was severely disabling and pointed to the following in support of her contention:

· she cannot visit her grandchildren by reason of the fact that she had to move from her former home;

· her shunning of crowded shopping centres;

· her inability to do doll-making and play tennis;

· that she had to move to get away from her antagonistic neighbour;

· that her quality of life overall has been diminished.

21. All of these facts, however, were taken into account by the Tribunal. Importantly, the Tribunal gave detailed consideration to the medical evidence, being the report dated 18 April 2006 from the clinical psychologist, Kathryn Tiffen, the Authorised Report Writer (Exhibit A). The Tribunal nevertheless concluded that the evidence as to the problems and the difficulties the appellant was experiencing, whilst moderately disabling, were not severely disabling.

22. It is not for this court to re-determine whether the appellant’s condition is severely disabling. Indeed to do so would be to fall foul of s 39(3). It is only necessary to determine whether the decision of the Tribunal is contrary to the evidence when considered in its totality. Clearly it was open to the Tribunal, on that evidence, to come to the conclusion that it did. To do so was not unreasonable.

23. For these reasons I am satisfied that the Tribunal made no error of fact leading to any error of law, and that its determination of 30 January 2008 should be affirmed: s 39(5)(a).

Disposition

24. It follows from my reasons that the Tribunal made no error of law in making its determination of 30 January 2008 and that there is no basis for setting that determination aside.

25. Leave to appeal will, therefore, be refused and the Tribunal’s determination of 30 January 2008 is affirmed.

26. There is no basis for any departure from the normal rule that costs should follow the event: r 42.1 UCPR.

27. The court’s orders will, therefore be as follows:

(a) The Summons (and the Notice of Motion which preceded it) are dismissed.

(b) Leave to appeal is refused.

(c) The determination of the Victims Compensation Tribunal of 30 January 2008 is affirmed.

(d) The plaintiff appellant is to pay the costs of the defendant on the ordinary basis. However, I give leave to the parties to apply to me in respect of that order provided

they do so by 12 noon next Friday 25 July 2008.

(e) The exhibits are to remain in court for 28 days.