Christian Summerhayes v Victims Compensation Fund Corporation

[2010] NSWDC 327

CITATION:	Christian Summerhayes v Victims Compensation Fund Corporation [2010] NSWDC 327
JUDGMENT DATE:	14 December 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	1. I extend the time for Mr Summerhayes to institute his appeal to 30 September 2010. 2. I grant leave for him to appeal to this Court from the determination of the Tribunal. 3. I affirm the determination of the Tribunal.
CATCHWORDS:	CIVIL LAW - appeal from decision of Victims' Compensation Tribunal - claim for compensation for a chronic psychological or psychiatric disorder - victim of an assault while a psychiatric patient - whether decision of Tribunal involved an error of law - submission that there was misconduct or impropriety in the exercise by the Tribunal of its power - submission that rejection by the Tribunal of his application to present further evidence was wrong - submission that not provided with procedural fairness or natural justice - submission that Tribunal reached the wrong conclusion on the evidence - no evidence of any misconduct or impropriety by Tribunal - discretion not to admit evidence not legal error - no evidence of procedural unfairness of lack of natural justice - recommendation that Attorney-General consider some form of ex gratia payment
LEGISLATION CITED:	Victims Support and Rehabilitation Act 1996 s 39(1)
PARTIES:	Christian Summerhayes Victims Compensation Fund Corporation
FILE NUMBER(S):	2010/207088
SOLICITORS:	Mr Summerhayes self-represented Mr M Ting for the Victims' Compensation Tribunal

JUDGMENT

1. This is my judgment on an appeal to the District Court by Christian Summerhayes from his unsuccessful case in the Victims’ Compensation Tribunal. The case in the Victims’ Compensation Tribunal was itself an appeal. It came from an assessor who had dismissed Mr Summerhayes’ claim for a psychological or psychiatric injury.

2. Very briefly what happened to bring about this case is that Mr Summerhayes was psychiatric patient in the Royal North Shore Hospital at St Leonards on 10 July 2007 when he was attacked by another male patient who came from behind and scraped the sharp end of a pen down Mr Summerhayes’ neck. That left him with a sizeable scar and a laceration. The other patient also squeezed Mr Summerhayes and held his arms tight and hurt his back.

3. As a result of that incident Mr Summerhayes claimed statutory compensation under the Victims (Support and Rehabilitation) Act 1996. Relevantly to this appeal he claimed compensation for a chronic psychological or psychiatric disorder. The claim went to an assessor who dismissed the claim. The claim then went on appeal to the Victims’ Compensation Tribunal which dismissed that aspect of the claim.

4. When a person appeals from an assessor to the Victims’ Compensation Tribunal that Tribunal determines the appeal on the evidence which was before the assessor. If special grounds exist the Tribunal may, by leave, receive further evidence and material. In this case Mr Summerhayes put forward to the Tribunal further evidence which the Tribunal rejected. It also, as I said, ultimately rejected his appeal on this aspect of the case.

5. Mr Summerhayes’ appeal to me, in the District Court, essentially concerns these two decisions, that is the determination not to give Mr Summerhayes leave to put forward further evidence and the ultimate determination to dismiss that aspect of his appeal. It is therefore important to understand how an appeal from the Victims’ Compensation Tribunal to the District Court works.

6. The Victims (Support and Rehabilitation) Act (which I will refer to as “the Act”) provides that an applicant such as Mr Summerhayes “may, with the leave of the District Court, appeal to the District Court on a question of law arising in any determination of the application by the Tribunal”. That was a reference to s 39(1) of the Act. The Act makes it very clear that it is not my job to review the case already heard by the assessor and by the Tribunal and to make up my own mind about the merits of the appeal. My job is to examine the decision of the Tribunal to see whether it is affected by any legal error.

7. Mr Summerhayes supported his appeal with comprehensive and articulate written submissions. He appreciated, it seems to me, that the issue for me to determine involved a question of law. His submissions can be generally classified as follows-

1. He alleges misconduct or impropriety in the exercise by the Tribunal of its power.
2. He says that the rejection of his application to present further evidence was wrong.
3. He says that he was not provided with procedural fairness or natural justice and, so far as that category is concerned, he referred to some relevant case law.
4. He said that the Tribunal reached the wrong ultimate conclusion on the evidence.

8. In addition to those four categories, Mr Summerhayes made it very clear in his written arguments and in his oral arguments before me yesterday that he was telling the truth in everything that he asserted. I should say at the outset that I do not doubt at all that Mr Summerhayes is a truthful person and was making an effort to tell the truth. I will make reference to that again so far as one or two of the grounds or categories are concerned.

9. In addition also to the four categories Mr Summerhayes referred to the evidence of a doctor and a psychologist who provided reports for the Tribunal. The psychologist was Dr Leah Giarratano and the doctor was Mr Summerhayes’ treating psychiatrist, Dr Amano. In his submissions Mr Summerhayes reviewed the evidence of Dr Giarratano that was before the Tribunal and also made reference to material from Dr Amano which was not before the Tribunal in the sense that it constituted the further evidence that he wished the Tribunal to consider but which the Tribunal rejected.

10. I will consider Mr Summerhayes’ appeal by reference to the four categories of errors which he claims occurred in the Tribunal. The first category concerns misconduct or improper exercise of power by the Tribunal. Mr Summerhayes makes some severe criticisms of the Tribunal and its process of deliberations and what it took into account. He argues that the Tribunal abused its power and abused the exercise of its discretion. He argues further that it took advantage of the fact that he was legally unrepresented. I do not accept any of those claims. It is particularly important to say that I find no evidence whatsoever in the determination of Mr T.G. Cleary, who comprised the Tribunal, of any of the misconduct or improper exercise of power which Mr Summerhayes claims occurred. In this context I make reference again to Mr Summerhayes making it clear to me that he was at all times telling the truth. I repeat that I do not doubt that. The fact that I reject his submission or argument under this category does not mean that I conclude that he is not telling the truth. He is obviously asserting what he sees as having occurred from his perspective but it is important, as the appeal judge, to make it very clear that there was no evidence that I could find whatsoever that fell into this category.

11. I move now to the second category which concerns the wrongful rejection of the further evidence from Dr Amano. It is again important to bear in mind that I am considering this appeal on a question of law and not on the question whether or not I would make the same decision. It is clear to me from reading Mr Cleary’s decision that his Honour was well aware of the correct legal principles to apply. He was aware that special grounds needed to exist; he made reference to the relevant authorities and case law on what such an expression might mean. He rejected the further material by reference to some of those criteria. I do not see any error in the discretion which was exercised by his Honour in that process.

12. Once again it is important for me to emphasise that this is not the same as saying that I would have made the same decision. In fact for reasons which will become apparent towards the end of my judgment I myself would not have made the same decision. I myself would have accepted the further evidence from Dr Amano. I would have accepted Mr Summerhayes’ argument that it was not until he became aware of the significance of the rejection of Dr Giarratano’s evidence by the assessor that he appreciated the importance of obtaining further evidence from Dr Amano. Nevertheless it is my job to look for legal error and I cannot find any legal error in the discretion which was properly exercised by the Tribunal.

13. I turn to the third category of error claimed by Mr Summerhayes which involved procedural unfairness and a lack of natural justice. Once again I can find no evidence of either of these. It is apparent that the Tribunal and Mr Summerhayes engaged in correspondence. Mr Summerhayes made his further evidence available to the Tribunal and supported it by arguments. As it happened the Tribunal did not accept those arguments and rejected the further evidence. The Tribunal took into account the medical and psychological evidence which it had before it. It assessed that evidence by reference to the Act and the categories of injury which are referred to in that Act and it made its decision. It elected that it did not need to hear Mr Summerhayes in person and could determine the case on the papers but there was clearly an opportunity for Mr Summerhayes to make written submissions and the Tribunal referred to a number of written submissions which had been provided by Mr Summerhayes. I repeat that I can see no basis for any legal error because of procedural unfairness or lack of natural justice.

14. The final category of error claimed by Mr Summerhayes is that the wrong decision was made on the evidence. In this case the Tribunal considered the detailed report of the psychologist Dr Giarratano who in turn made reference to some views of Dr Amano about Mr Summerhayes. Set out in Mr Summerhayes’ written submissions are extensive excerpts from Dr Giarratano’s report. Having concluded that the evidence was sufficient to establish that Mr Summerhayes, as a result of an act of violence, suffered psychological or a psychiatric disorder, namely post traumatic stress disorder, the Tribunal went on to conclude that that disorder was chronic in the sense that it was long term. That was a finding which was in accordance with the Table which is part of Schedule 1 to the Act. However the Tribunal in accordance with that Table had to further determine whether the disorder was severely disabling. It had to determine that because of the definition contained in the Table. (I add here that the definition concerns the category 2 disorder, not the category 1 disorder which is not relevant to this case.) The Tribunal correctly applied its mind to this question and concluded as follows:

“Whilst his disorder has adversely impacted on him, I am not satisfied that the evidence is sufficient to establish that the appellant’s chronic psychological or psychiatric disorder, namely, post traumatic stress disorder has resulted in severe impairment in his ability to function in his usual day to day social and educational activities. That is, I am not satisfied that his post traumatic stress disorder is severely disabling .”

In reaching that conclusion his Honour correctly applied the definition of the category 2 psychological or psychiatric disorder as is contained in the Act.

15. His Honour went on to say that it seemed evident to him that Mr Summerhayes’ “pre-existing mental illness of schizophrenia, combined with the adverse impact of his post traumatic stress disorder (as a result of the ‘act of violence’) have resulted in a severe impairment of his ability to function in his usual day to day activities.” Accordingly his Honour concluded that he was not satisfied that Mr Summerhayes had received a compensable injury as a direct result of what his Honour had found was an act of violence on 10 July 2007 in that the severe disablement resulted from the combined impact of Mr Summerhayes’ mental illness and his post traumatic stress disorder. He also concluded that the evidence was not sufficient for him to find a category 2 disorder “in that it has not been established that the proven disorder is severely disabling.”

16. Mr Summerhayes challenges those findings, arguing that his Honour reached the wrong conclusion. Mr Summerhayes argued that the Tribunal was “incorrect in his judgment and as a result erred in law.” That is in para 5 of Mr Summerhayes’ written submissions attached to his amended summons. I myself do not find any legal error in the Magistrate’s conclusion. As I said he took into account the evidence, applied the correct provisions of the Act and reached the conclusion which his Honour did. It seems to me that that conclusion was open to his Honour to reach and I find no error of law.

17. For completeness what I should have done and I will do now is to make reference to the paragraphs in Mr Summerhayes’ written submissions which touch upon the various categories. In paras 3, 6, 9, 23, 29, 30, 31 and 32, Mr Summerhayes makes reference to arguments which I have classified into category 1. In paras 4, 8, 9, 17 to 21, 22, 23, 24 and 26, Mr Summerhayes makes reference to arguments which I have classified into category 2. In paras 6, 8, and 9 he has made reference to arguments which I have classified into category 3. I should add in that regard that I have looked at the cases which he referred to in those paragraphs. In paras 5, 7, 27, 28, 29 and 32, Mr Summerhayes makes reference to the arguments which I have classified into category 4.

18. Mr Summerhayes’ oral submissions in court yesterday supported his written submissions including his submission that the wrong conclusion had been made and that he is telling the truth and that there was a legal error in rejecting the further evidence.

19. I should add that so far as category 4 is concerned I would also find that essentially that issue raises for determination the question whether the injury is an injury specified in the Table of compensable injuries or whether it is a compensable injury of a particular description and that is said by s 39(3) of the Act specifically not to be a question of law and I would reject the argument for that reason as well.

20. As I said Mr Summerhayes made reference in his submissions to some of the further evidence from Dr Amano which he asked the Tribunal to consider but which it rejected. In para 17 of his written submissions he referred to a report from Dr Amano which said that Mr Summerhayes’ post traumatic stress disorder “appears to meet criteria for category 2 (chronic and seriously disabling)” - that is a reference to category 2 in the Table in Schedule 1 to the Act. In addition, Mr Summerhayes referred to a report of Dr Amano dated 19 October 2009 where Dr Amano said it appeared to him that Mr Summerhayes “has a psychological injury that is chronic and severely disabling category 2”. The doctor went on to say that the post traumatic stress disorder - I infer the disorder brought about by the act of violence - “definitely worsened his underlying Schizo-affective Disorder”. In a further report of 15 October 2009 the doctor makes reference to extensive hospitalisation and to Mr Summerhayes’ psycho-social functioning being “severely affected by the assault”.

21. As I said, to my mind I would have accepted Mr Summerhayes’ argument that the further evidence should have been considered and if I were making the decision I would have considered that evidence along with the evidence of Dr Giarratano and considered that Mr Summerhayes’ condition fell within category 2. But as I said this is a case where the law which it is my duty to apply does not give me the scope to allow this appeal.

22. However I would make the following observations and recommendation based upon the fact that I myself would have allowed Dr Amano’s reports as further evidence and that the combined medical evidence to my mind presented a good case for the injury falling within category 2.

23. I would recommend to the Attorney General that serious consideration be given to some form of ex gratia payment being made to Mr Summerhayes. I might add in light of one of the Tribunal’s findings that it might assist Mr Summerhayes if he was to obtain reports from the psychologist, or perhaps the psychiatrist, or both, specifying the extent to which the act of violence aggravated any pre-existing condition and the extent of the disorder as a result of the aggravation as well as the post traumatic stress disorder as distinct from the impact of any underlying pre-existing condition.

24. For the reasons which I have given I would therefore dismiss this appeal. I should add in deference to the respondent the Tribunal was represented by Mr Matthew T J Ting, solicitor, who also supplied written submissions which were very helpful and he was also of assistance to me in his oral submissions.

TING: May I suggest the making of the orders at this stage being that as is mentioned yesterday allowing leave to appeal outside the time limit.

HIS HONOUR: Yes, thank you I need to do that, I need to. So the orders I will formally make just to clarify them before I make them, I have to grant leave out of time, I have to grant leave to appeal which you - you oppose leave out of time, which I have decided, grant leave to appeal which you don’t oppose and dismiss the appeal, they’re the three orders.

TING: It would be the three, the determination of the Tribunal and--

HIS HONOUR: Is that right, where is that?

TING: Section 39.

HIS HONOUR: Yes, show me the Act. I will hear from you in a moment Mr Summerhayes.

TING: Section 39 para 5.

HIS HONOUR: I see, you’re right, so really there is only the two leave questions and affirming the determination of the Tribunal.

TING: Yes, and we won’t be asking for an order as to costs.

HIS HONOUR: Mr Summerhayes?

APPELLANT: Yes. Your Honour what I would like to tell you is that at the moment my main concern is in relation to my mental state. What I would like to let you know is that I am going to make an appointment to see my psychiatrist because I am concerned about the impact of this decision on my life. What I need to do is I need to try to stay out of hospital as a result of this particular decision and also I have to try not to become fearful of you and of the District Court--

HIS HONOUR: It is important, yes.

APPELLANT: and in relation to the decision because of the issue because I suffer from schizo-affective disorder, stresses can impact on me in a very adverse way. What I need to do also, I need to find out if I have any further rights of appeal regarding this decision and to seek any further help in relation to that issue should that be warranted--

HIS HONOUR: That’s right.

APPELLANT: --but at the moment I am concerned in relation about my mental state but I will make an appointment to see my psychiatrist earlier to discuss how I am feeling and also in terms of trying to set a strategy to be able to manage my depression and also to manage any further early warning signs of schizo-affective disorder which may arise as a result of this decision.

HIS HONOUR: Yes. That sounds very sensible with respect Mr Summerhayes.

APPELLANT: That’s what I need to do because it is very important because after this decision of 17 November the next day I ended up in the ICU Unit of Hornsby Hospital.

HIS HONOUR: Yes, it had an impact.

APPELLANT: It had a very serious impact on me so that is what I need to do, so I am letting you know because I am a truthful person--

HIS HONOUR: I understand that, I have said that.

APPELLANT: --and I need to be able to truthfully go about ensuring that my mental state remains stable in the process.

HIS HONOUR: That is very important and it is good to see that you are very aware of that as a mental health patient.

APPELLANT: Absolutely.

HIS HONOUR: You are obviously aware of it and aware of the fact that you need support, that is very good.

APPELLANT: I don’t want to become fearful of you in relation to walking out the door and then having a consuming fear of you and also of the District Court meaning that I don’t want to develop a syndrome where I am afraid to even mention the District Court’s name.

HIS HONOUR: Good. that sounds like a very sensible--

APPELLANT: I am just giving you an example of the severity of the impact.

HIS HONOUR: How it could affect you.

APPELLANT: Absolutely.

HIS HONOUR: I understand that.

APPELLANT: Thank you your Honour.

HIS HONOUR: Now two things Mr Summerhayes. One is I will now direct that a transcript be prepared in respect of this judgment. Now that could take days, weeks, probably not before Christmas. It will come to me and then I correct it in the sense that I tidy up the grammar and the punctuation and things like that, but the substance remains the same. Did you give my Associate an address?

APPELLANT: Yes here it is. I have got the address.

HIS HONOUR: Good, good.

APPELLANT: I have got the actual address there.

HIS HONOUR: She will send this to you and it might be helpful to you to show it to the doctor as well, it is a matter for you.

APPELLANT: Thank you your Honour.

HIS HONOUR: I want to make sure you get a copy of it and that will be the New Year some time, these things take time. The second thing is to note that I did make a recommendation that the Attorney General consider an ex-gratia payment. That’s only a recommendation Mr Summerhayes I have no power to do it. As I said the Tribunal made the correct decision so far as a matter of law is concerned and I have just indicated that I would not have made the same decision but the Magistrate made no error and I have just suggested that this be given consideration. They may say no that is not appropriate and just reject it but it is just a recommendation.

APPELLANT: Thank you your Honour, sure, okay.

25. I will now proceed to make some formal orders -

1. I extend the time for Mr Summerhayes to institute his appeal to 30 September 2010.
2. I grant leave for him to appeal to this Court from the determination of the Tribunal.

3. I affirm the determination of the Tribunal.

HIS HONOUR: Nothing else, Mr Summerhayes? Mr Ting?

TING: No your Honour.

APPELLANT: Thank you your Honour.

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