Moules v Transport Accident Commission
[2021] VSC 436
•26 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 02895
| LUKE MOULES | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 June 2021 |
DATE OF JUDGMENT: | 26 July 2021 |
CASE MAY BE CITED AS: | Moules v Transport Accident Commission |
MEDIUM NEUTRAL CITATION: | [2021] VSC 436 |
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ADMINISTRATIVE LAW — Victorian Civil and Administrative Tribunal — Application for leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and appeal if leave is granted— Transport Accident Act 1986 (Vic), ss 67 & 68 – ‘Claim for compensation under this Act … in a form approved by the Commission’ – ‘Injury manifested’ – ‘Injury first manifests itself’ – Hyland v Transport Accident Commission (1999) 30 MVR 281 considered and discussed — Appeal allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | ADB Ingram QC with J Valiotis | Fortitude Legal |
| For the Respondent | CP Young QC with RL Kaye | Solicitor to the Transport Accident Commission |
HIS HONOUR:
A The circumstances
On 4 September 2005, Robert Farquharson drove a vehicle into a dam near Winchelsea. His three young sons were in the vehicle and subsequently drowned. Mr Farquharson was later found guilty of their murders.
The boys’ mother, Cindy Gambino, was advised of the incident. At that time, she was in a relationship with Stephen Moules, who is the father of the applicant. It seems that the three boys were close to the applicant and his younger brother, Zack.
On the day of the incident, Ms Gambino attended the dam together with Mr Moules and his sons. At that time, the applicant was eight years old. In a signed statement dated 30 July 2019, the applicant stated –
Once my father found the scene of the transport accident, he spent close to an hour diving into the dam to try and save Jai, Tyler and Bailey to no avail. It was dark and it was cold, and I remember my father’s vehicle’s headlights were the only thing lighting the scene up. I recall that me and my brother, Zack, as well as Cindy were hysterical. I could see bubbles in the dam. I thought that my father might die as well. We were all distraught. I recall emergency services crews attending.
Despite my father’s attempts, he could not retrieve the boys. They were dead. A major part of me died that night as well, I was only 8 years old at the time. I relive these scenes in my mind every day.
It seems that the applicant had suffered behavioural difficulties and some psychological distress prior to the incident. The details are unclear. Stephen Moules had earlier separated from the applicant’s biological mother. The applicant had some counselling at that time. The evidence refers to his biological mother as having had a problem of substance abuse. The family situation was later described as ‘complex’ and it was recorded that there was a ‘vast history of emotional and physical abuse by mother’.[1]
[1]Joint Court Book (‘JCB’) 150.
In his statement, the applicant described the home life of his family after the incident as having been ‘destroyed’. Ms Gambino suffered from symptoms of psychiatric disturbance identified at some point as post-traumatic stress disorder (‘PTSD’). Stephen Moules seems also to have suffered and later sought to access statutory benefits from the respondent.
There has been no issue but that the incident was a ‘transport accident’ within the meaning of the Transport Accident Act 1986 (Vic) (‘the Act’); nor has it been in issue that the applicant now suffers PTSD as a result.
Nonetheless, in the period of about two and a half years following the transport accident, the evidence does not record the applicant as having presented to his general practitioner for reasons of distress or behavioural disturbance. That may be explained, in part, by the turmoil within his family. However, he did present to his GP for other reasons in that time, and did come to present for such reasons from about February 2008, by which time he was ten years old.
In a period of years that then followed, the applicant presented to the Winchelsea Medical Clinic on several occasions in connection with behavioural and other issues. He had a sequence of mental health plans and was referred to several counsellors or psychologists. The details relating to that sequence of treatment appear incomplete, but on 20 January 2011 the applicant and his father were recorded by the applicant’s GP, Dr McDonald, as ‘feel[ing] there may be an underlying depression’ and, consequently Dr McDonald, commenced him on a trial of an anti-depressant, Sertraline (Zoloft). Further prescriptions of Sertraline followed.
In that period, the applicant was recorded as having problems of ‘mood and anger control’[2] and, in March 2011, was referred by his GP to Dr Cooper, paediatrician. In the referral letter, dated 17 March 2011, Dr McDonald considered that ‘there may have been an underlying depressive illness’, for which the applicant had been trialled on Sertraline. Dr McDonald identified that there was ‘some concern regarding his behaviour and whether there is a possibility of a diagnosis of ADHD’.
[2]JCB 198.
The applicant attended Dr Cooper once, on 30 June 2011. At that time, he was 14 years old. Dr Cooper reported to Dr McDonald, relevantly, as follows –
History
14-year old boy, presents for my opinion regarding disruptive behaviour seen both at home and school. Luke has always had difficulty with self-regulation with poor concentration at school and frequent impulsive behaviours – started ‘acting out’ at school from grade 5 – recently left Colac College (was close to expulsion) and commenced at Christian College in Geelong – currently in Year 8 – behaviour at Colac College marked by frequent clashes with teachers and other students – easily frustrated and angers with outbursts – steals and lies – achieves to grade standard academically – no obvious learning difficulties
This is on the background of a complex social situation –
Luke’s parents separated when he was young – he lives with his father Stephen – his mother Natalie has substance abuse issues and this is a source of stress for Luke – Luke’s stepmother Cindy has lived with the family for the past three years – she tragically lost her three sons, one of whom was a friend of Luke’s, four years ago – she has subsequently suffered from Post Traumatic Stress Disorder – she is emotionally labile and has a conflictual relationship with Luke – Luke clashes frequently with his older brother Zac. Luke was recently commenced on sertraline 50 mg daily currently with some initial positive benefits that have now worn off.
Luke has seen three psychologist[s] in the past two years – he verbalised that he did not feel they were helpful as they taught him anger management techniques which were difficult to put in place – they didn’t allow him to ventilate and explore his feelings regarding family issues.
Examination Height 158.5cm Weight 65 kg
When I spoke with Luke alone he spoke in a very forthright and honest manner – easily engaged, showed some good insight – Luke is desperate to do well at his new school Christian College but feels likely that he will ‘lose it’ with the teachers soon as he has a very ‘short fuse’
Reactive affect – didn’t present as obviously depressed or anxious.
Stepmother Cindy spoke at length about her own emotional issues.
Stephen obviously distressed by Lukes (sic) current behaviours.
Opinion
Significant emotional issues – particularly marked by angry outbursts – in a boy with longstanding poor self-regulation – current difficult behaviours may be due to a combination of underlying attention deficit disorder and family issues – possibility of post-traumatic stress disorder – very complex presentation and too difficult to work out in one session but clear that family and Luke need momentum and immediate interventions.
The evidence also included Dr Cooper’s clinical note relating to the attendance on 30 June 2011. The note was undoubtedly the foundation for the report to Dr McDonald. There are some differences between the two. In particular, in respect of the reference to the ‘possibility’ of PTSD, the note reads ‘possibility of something like post-traumatic stress disorder’. Further, and in regard to the history of the applicant’s stress arising from his mother’s substance abuse issues, the note reads ‘mother has substance abuse issues and Luke talked about this at length with me today as a source of stress’.
In the report, Dr Cooper proposed a management plan including a trial of Strattera (which is a medication for ADHD) and counselling with a psychologist, Andrew Winter. It was proposed that the applicant be reviewed eight weeks later. That does not seem to have occurred. It is not clear whether the applicant ever attended Mr Winter.
The applicant was thereafter recorded as having trialled Strattera, and also continued to be written prescriptions for Sertraline.
In this context, on 10 November 2011, the applicant attended Dr McDonald who recorded both the reason for visit and diagnosis as being ‘ADHD’. A prescription was printed for Sertraline. Later that year, after the applicant expressed that he was experiencing negative side effects from the medication, Dr McDonald recorded a plan to reduce and ultimately cease Strattera.
On that same day, 10 November 2011, Ms Gambino telephoned the respondent concerning the applicant. It seems that in or in connection with that telephone call, a representative of the TAC partially filled out a written ‘general claim for compensation under the Transport Accident Act 1986’, using information provided orally by Ms Gambino.[3]
[3]JCB 42.
That information included the following description of injury that appeared in the partially completed claim form: ‘post-traumatic distress disorder, delayed onset’.
In the course of argument on the appeal, Senior Counsel for the respondent submitted that the ‘irresistible inference’ was that the diagnosis recorded in the partially completed claim form had its origins in the ‘possibility’ proffered earlier that year by Dr Cooper. Senior Counsel for the applicant theorised that it may also have had origins in Ms Gambino’s personal experience of PTSD.
In any event, the partially completed form was sent by the respondent to Ms Gambino on 10 November 2011 under cover of a letter that requested, in substance, that the form including authority to release medical information, be checked, completed, witnessed, dated and returned to the respondent in order that it ‘can … make a decision about Luke’s claim’.[4] It was said that this needed to occur before any payments could be made. The form was not returned as requested and, accordingly, it is evident that no claim was then processed or payments made.
[4]JCB 102.
In the period of years that followed, it seems that the applicant behaved aberrantly in various respects, and engaged in substance abuse. He left school and commenced in mostly manual employments. His problem of substance abuse may have continued until 2019.[5] At that time he appears to have been employed as a concreter.
[5]JCB 130-131.
In any event, in June of 2013 the applicant’s medical records state that he ‘still ha[d] an issue with Depression, OCD’. The applicant continued on Sertraline and may still have been on that medication in the following year.
On 17 December 2013, Mr Moules telephoned the TAC and requested another copy of the claim form, which was re-sent. The form was again not completed and returned.
The applicant had relatively few attendances on his GP between 2014 and 2018, and seemingly only one that referred to any behavioural concerns. No mental health plans appear to have been prepared in that period, nor do any referrals appear to have been written for reasons of mental health.
On 25 May 2018, the applicant turned 21 years old. That has a significance by reason of s 68(3) of the Act. The present application does not turn on that fact, or sub-s 68(3).
By late 2018, the applicant had solicitors acting for him and at that time sought to advance his claim on the respondent for statutory benefits.
In that context, on 23 November 2018 the applicant supplemented, corrected, completed and signed the previously only partially completed claim form. That form was received by the respondent on 26 November 2018.
The supplemented and corrected details in the claim form included an elaboration upon the description of injury to read: ‘post-traumatic stress disorder, delayed onset. Nervous shock. Psychological/psychiatric’. The earlier words in that description were typed – as had appeared in the form partially completed in 2011. The latter words were added, apparently in the applicant’s handwriting.
The form was also altered to correct the pre-completed suggestion that there had been no treatment by a psychologist or psychiatrist prior to the transport accident. In that regard, the further completed information included the handwritten statement ‘counselling when parents separated’.
The declaration and authority to release medical information was also completed, signed and witnessed.
After the completed form was submitted, the respondent requested that the applicant attend Assoc Prof Damodaran, consultant psychiatrist. The applicant was by then 22 years old.
On 5 June 2019, Assoc Prof Damodaran took a detailed history from the applicant. The applicant is recorded as having informed Assoc Prof Damodaran that from the time of the dam incident ‘onwards’ he had been ‘finding it difficult to focus on anything and his behaviour completely changed’. He gave a history of recurrent night terrors, ongoing rumination and ‘flashbacks about the whole experience’ as well as a history of similar symptoms in more recent times.
Assoc Prof Damodaran recorded that –
According to him [the applicant] he had never told this story in such great detail to anybody and he was quite distressed when he was talking about the story. Mr Moules reported that from then onwards it significantly affected him.
In that regard, in respect of the psychological treatment obtained during the applicant’s childhood, Assoc Prof Damodaran stated –
Mr Moules reportedly had seen a paediatrician and he had seen multiple psychologists during his childhood. He could not communicate with them as according to him he thought that no-one was understanding his predicament.
Relevant to the transport accident, Assoc Professor Damodaran diagnosed as follows –
Based on the available information and examination, I am of the opinion that Mr Moules developed chronic post-traumatic stress disorder with residual features as a direct result of the transport accident and not related to any physical injury. He also had polysubstance abuse in current remission which I believe could be contributed to in some degree by the transport accident.
In respect to psychiatric illness unrelated to the transport accident, Assoc Prof Damodaran stated –
From the available information Mr Moules also had pre-existing conduct disorder and attention deficit disorder which currently is in remission and he had completely changed his life around. It is quite possible that his traumatic experience and the post-traumatic stress disorder especially in the (sic) childhood might have played a part in the perpetuation of his conduct disorder and also might have played a part in some of the attentional difficulties, as traumatic symptoms can have an impact on the overall attention and concentration especially in the developing brain.
Overall, Assoc Prof Damodaran expressed the following opinion –
Based on the available information and examination, I am of the opinion that Mr Moules is suffering from chronic post-traumatic stress disorder with residual features along with polysubstance abuse in partial remission along with ADHD, attention deficit disorder along with conduct disorder and possible oppositional defiant disorder in remission.
Mr Moules needs to be referred to a psychologist for targeted psychological therapy to assist him in relation to the trauma and trauma-related psychological symptoms which are currently affecting his overall functioning. Mr Moules’ prognosis is guarded, however he has made significant changes in his life and lifestyle and it is important to maximise and utilise this achievement that he made and to engage him in therapy and he may require therapy for at least 24 months.
Finally, as to the time at which applicant’s ‘condition’ arose, Assoc Prof Damodaran stated –
Based on the available information and examination, I am of the opinion that Mr Moules is suffering from post-traumatic stress disorder and this is directly related to the transport accident and the traumatic nature of the transport accident and the symptoms arose immediately after the exposure to the transport accident and this resulted in the development of psychiatric symptoms over a period of time.
The respondent rejected the applicant’s claim for compensation, by reference to the statutory time limits stated in ss 67 and 68 of the Act. By letter dated 11 July 2019, the respondent stated, relevantly –
Following review of your claim and medical documentation received it has been confirmed that you were traumatically effected (sic) immediately from the time of the accident and sought treatment for injuries related to the accident as early as 2008.
Assoc Prof Damodaran’s report dated 13 June 2019 indicates that your mental health injuries manifested since your developmental period and therefore your TAC claim has been lodged outside of timeframe.
The Act does not provide for the statutory time limits to be extended by the Court.
B Reviews
The applicant sought an internal ‘pre-issue review’ of the decision, which the respondent came to affirm by letter dated 5 September 2019.[6] It seems to have been in that context that the applicant made and provided his written statement dated 30 July 2019.
[6]JCB 32.
The applicant then applied for review by the Tribunal. Before the Tribunal, the applicant came to emphasise two contentions, namely –
(a) that his claim had been ‘validly lodged’ within the meaning of s 67 of the Act by Ms Gambino on the telephone with the respondent on 10 November 2011; and
(b) even if his claim was not then ‘validly lodged’, it was ‘validly lodged’ in writing on 26 November 2018, as that was within one year of the applicant’s injury having ‘first manifested itself’ within the meaning of sub-s 68(1)(d) of the Act.
It seems to have been in that context that the applicant relied upon a written and signed statement of his father, Stephen Moules, dated 5 May 2020.
The Tribunal hearing took place on 19 May 2020. No oral evidence was given.
On 15 June 2020, the Tribunal affirmed the decision of the respondent.[7] It is from that decision that the applicant seeks leave to appeal on a question of law.[8]
[7]Moules v Transport Accident Commission (Review and Regulation) [2020] VCAT 642.
[8]Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148.
C The present proceeding
The applicant relies upon a notice of appeal dated 9 July 2020. The notice of appeal relies upon enumerated grounds stated as follows (with the particulars of each ground omitted) –
1.The learned Senior Member erred in law by failing to properly construe the words ‘must be lodged with the Commission’ with reference to its context in the definition of ‘lodged’, for the purpose of consideration of the claim and subsequent determination by the TAC of the claim’s acceptance or rejection.
2.In construing the meaning of the word ‘lodged’ the learned Senior Member took into account matters which were irrelevant or extraneous to his interpretative task, and not warranted by the text of the statute or in the alternative failed to take into account relevant matters.
3.The learned Member construed the meaning of the term ‘in the case of injury, if no injury manifested itself at the time of the transport accident, after any injury first manifests itself’ incorrectly and in a manner which would lead to anomalous and harsh results in particular to the Applicant, being a minor at the time of the transport accident and relevant application for compensation.
4.The learned Senior Member failed to provide adequate reasons for his decision.
The respondent accepts that the application for leave to appeal gives rise to questions of law.
In the course of argument, primary focus fell upon two ‘points’, namely –
(a) whether the Tribunal had erred in law in approaching the question posed by sub-s 67(1) of the Act, particularly whether the applicant’s claim for compensation had been ‘lodged’ with the respondent by Ms Gambino via telephone on 10 November 2011; and
(b) whether the Tribunal had erred in law in approaching the questions posed by sub-s 68(1)(d) of the Act, particularly whether injury had ‘manifested itself at the time of the transport accident’ or had first manifested itself within one year prior to the applicant’s making of his claim for compensation on 26 November 2018.
D Grounds 1 & 2: s 67 – ‘claim for compensation … lodged’
As at 10 November 2011, s 67 of the Act, which is entitled, ‘Form of claim’, was in the following terms –
(1) Subject to sub-section (3), a claim for compensation under this Act –
(a) must be in a form approved by the Commission; and
…
(c) must be lodged with the Commission.
(1A)An authority to release information in a claim for compensation has effect and cannot be revoked until a claim is finally determined.
(2)A defect, omission or irregularity in a claim for compensation does not affect the validity of the claim and the claim must be dealt with in accordance with this Act unless the defect, omission or irregularity relates to information which is not within the knowledge of the Commission.
As pointed out by Senior Counsel for the respondent in the course of argument, sub-s 67(1)(a) had been amended on 1 July 2011 so as to substitute the words ‘in a form approved by the Commission’ for the earlier words ‘in the prescribed form’.
In argument, Senior Counsel for the respondent went to the written forms, as they appeared in the Regulations both prior to and after amendment of the Act. He said that after 25 October 2011 the relevant form was no longer prescribed by the Regulations, but continued to be used, and was the form used and partially completed by the representative of the respondent in connection with the telephone discussion with Ms Gambino on 10 November 2011. It was that form, partially completed, which was sent to Ms Gambino by the respondent following the call.
That form comprised 12 pages with 45 separate sections either partially or wholly pre-completed in typed text to be corrected (if necessary) or completed (if applicable). The 45th section was a declaration and authority to release information, to be signed and witnessed.
In that general context, before the Tribunal and in this Court, the applicant submitted that the plain words of s 67(1) did not require that the written form be used or that it be completed, signed and witnessed as had, in substance, been requested in the respondent’s letter to Ms Gambino dated 10 November 2011. Senior Counsel for the applicant submitted that the requirements to that effect sought to be imposed by the respondent’s letter dated 10 November 2011 had no basis in s 67 of the Act.
The nub of the applicant’s submission was that by telephoning the representative of the respondent on 10 November 2011 in the course of which the representative populated certain parts of the form, the applicant had thereby ‘lodged’ a claim because the respondent had assigned a claim number (which appeared at the top of each page of the partially completed form) and had recorded in the form, it was said, ‘sufficient’ information concerning the applicant’s claim, particularly his name, his claimed injury, the claimed circumstances of his injury and the identity of treating practitioners.
In that regard, the applicant relied upon authorities from other statutory contexts, particularly the decision of the Full Federal Court in Angus Fire Armour Australia Pty Ltd v Collector of Customs.[9] I do not regard the authorities relied upon by the applicant as giving any significant assistance to me in performing the present task of construing s 67 of the Act.
[9](1988) 19 FCR 477.
In any event, the applicant’s argument did obtain additional momentum from the fact that whilst the form of s 67(1) has not since been relevantly further amended the respondent has since late 2013 commenced to accept the lodgement of claims for compensation via telephone.
In that connection, however, the Act was amended on 20 November 2013 so as to delete sub-s 67(1A), which appears above, and to insert a new s 67A which reads –
(1)A person who makes a claim for compensation under this Act must, as soon as practicable after being requested to do so by the Commission, sign an authority to release relevant medical or other information to the Commission for the purpose of processing, accessing or otherwise managing the claim.
(2)An authority to release information must be in a form approved by the Commission.
(3)An authority to release information has effect and cannot be revoked until a claim is finally determined.
(4) A person may sign more than one authority to release information.
The practical effect of those amendments was to separate the provision of a signed authority for the release of relevant medical or other information from the process of making a claim for compensation. In effect, Senior Counsel for the respondent submitted, the amendments facilitated or enabled the introduction of the practice by which claims came to be received by telephone.
In this context, and not unimportantly, the deletion of sub-s 67(1A) removed the requirement that, in effect, a relevantly irrevocable authority to release information be included ‘in a claim’, which underscored the fact that the earlier approved form for such a claim was in a form that was written and signed.
In argument, however, Senior Counsel for the applicant did not regard these amendments as having made any difference to the proper construction of s 67(1) of the Act.
The reasons of the Tribunal referred to these and other features of the underlying circumstances, the applicant’s claim for compensation, the Act and its statutory history.
The Tribunal also referred to the evidence concerning the practices of the respondent in accepting claims for compensation in 2011 and found as follows -
[41]I accept what the TAC’s practices actually were in 2011 is an important consideration here. At that time, TAC required claims to be ‘lodged’ in written form. It did not accept lodgements by telephone.
[42]In my view, it cannot be said that a claim was effectively lodged with the TAC, when it was given to it in a form (orally) which it did not at that time have any facility to receive it in.
The Tribunal’s determination of the present issue proceeded upon those findings. At [54] of its reasons, the Tribunal determined that ‘there was no lodgement of the claim under the Act’ until the claim form was completed and returned to the respondent.
In that context, Senior Counsel for the applicant submitted that the Tribunal had misconstrued s 67, because, it was said, insufficient regard had been afforded to the breadth of the term ‘lodged’. Counsel submitted that the word ‘lodged’ did not mandate the provision of a signed and completed written form, and submitted that the Tribunal had, in effect, read words into the statute.[10]
[10]The applicant relied upon Deal v Father Pius Kodakkathanath (2016) 258 CLR 281.
I do not accept that the applicant has made out the grounds of appeal directed to the Tribunal’s approach to and construction of s 67 of the Act.
Senior Counsel for the respondent identified, correctly, that s 67 must be read as a whole and that its terms are directed to an ‘approved’ form in which a claim upon the Commission is to be lodged. In this regard, I accept that the construction of sub-s 67(1) of the Act favoured by the applicant is to give too much work and content to the single term ‘lodged’.
In that regard, the terms of sub-s 67(1), read as a whole –
(a) were directed expressly to the ‘form’ of claims for compensation under the Act;
(b) were in mandatory terms (‘must’);
(c) required that a claim ‘be in a form approved by the Commission’;
(d) required that the ‘form approved’ be ‘lodged’ with the Commission.
It is apparent from the flow of the sub-section that the form of a ‘claim’ depends upon such a form being ‘approved’ and that it was that form of claim which ‘must’ be ‘lodged’ with the Commission, in the sense of being placed with it for consideration, acceptance or rejection.
Further, as explained by Senior Counsel for the respondent –
(a) there was no evidence below that the provision of information by telephone in a manner that might partially populate a written claim form, but without any completion of that form or the provision of a signed and witnessed authority by which access to medical information might be provided, could comprise a form then ‘approved’ by the Commission;
(b) indeed, the Senior Member found on the evidence that claims were not then accepted or lodged by telephone, which dictated that the applicant had not then satisfied the requirements of s 67;
(c) further, whilst the relevant text of sub-s 67 has not since changed, what has changed is that other parts of s 67 have come relevantly to be amended and, consequently, the making of claims by telephone has become a form – or manner – accepted and therefore approved by the Commission.
I accept those submissions, and reject the submission that such a construction requires words to be read into s 67. As noted, read as a whole, s 67 both contained the words ‘form approved’ and required that such a form be adopted. In the present instance it was not; at least not in 2011.
Further, while there is an element of seductive allure to the applicant’s submission that the provision via telephone and recording in a partially completed form of the claim number, applicant’s name, claimed injury, circumstances of injury and the identity of treating practitioners might be thought to be ‘sufficient’, particularly in light of the later instituted practice of the respondent of receiving claims made via telephone, the fact remains that in November 2011 it was not, in the language of sub-s 67(1)(a), a ‘form approved by the Commission’. Those words have controlled the nature of the required form of claim at all relevant times, and at the time in question the form of claim was not via any particular combination of information received via telephone.
Both then and now, the statutory question is not whether those or any other elements of information might be thought objectively to be ‘sufficient’; what was and is required is that the claim be in a form approved which is ‘lodged’ with the Commission. In the present instance, the short point is that in and relevantly after November 2011 no such ‘approved’ form of claim was ‘lodged’.
In that regard, I reject the submission that the Tribunal misconstrued s 67.
I should add that while Senior Counsel for the applicant submitted that the actions of the parties were not relevant to the issue of construction – which might strictly speaking be true – it is nonetheless striking that in the present instance neither party seems to have acted in a manner that suggested that a claim had been ‘lodged’ by Ms Gambino via telephone on 10 November 2011. In this regard, the contemporaneous actions of the parties – both in 2011 and, later, in 2013 – were and are consistent with the construction of s 67 which the Tribunal acted upon and which I accept to be correct.
The applicant also advanced a fall-back submission based in s 67(2) of the Act, to the effect that there was merely a ‘defect, omission or irregularity in a claim for compensation’ which did not affect the validity of the ‘claim’ said to have been made in November 2011. I do not accept that submission. In November 2011, no claim for compensation had been made by the applicant within the meaning of sub-s 67(1). Sub-section 67(2) can only operate to cure a defect, omission or irregularity in a claim actually made.
It follows that grounds 1 and 2 must be rejected.
E Ground 3: s 68 - ‘manifestation’ of injury
Ground 3 is directed to the proper construction and application of s 68 of the Act, which is entitled ‘Time for making claim under Part 3’.
Sub-s 68(1) states –
A person –
(a) who is injured; or
(b) who is a dependent or a surviving partner of a person who dies –
as a result of a transport accident to which Part 3 applies may make a claim for compensation under that Part within one year –
(c) after the accident or death; or
(d)in the case of injury, if no injury manifested itself at the time of the transport accident, after any injury first manifests itself.
[Emphasis added]
The sub-sections of s 68 are directed to time limits by which a claim for compensation must be made. As I have noted, there is no power to extend those times.
That said, sub-ss 68(1)(d), (2) and (3) are essentially ameliorative in operation. In the case of sub-s 68(1)(d), a claim may be made, in effect, within one year of first manifestation of injury that did not manifest ‘at the time of the transport accident’.
In the present context, both parties relied upon the decision of BW Beach J in Hyland v Transport Accident Commission,[11] in which his Honour considered the construction of sub-s 68(1)(d). That sub-section has since been amended in respects which neither party relied upon as affecting the correctness of his Honour’s approach.
[11](1999) 30 MVR 281.
In Hyland, the plaintiff had suffered significant orthopaedic injuries in a transport accident in 1989 and later developed consequential psychiatric injury in the nature of major depressive disorder. A Deputy President of the Tribunal found, on the evidence, that the psychiatric injury had manifested itself in excess of 12 months prior to the lodgement of the plaintiff’s claim.
On appeal, the plaintiff contended that the Deputy President had erred in failing to apply a ‘subjective test’. It was submitted, in substance, that the application of s 68 –
is to be determined according to when the claimant for compensation himself or herself became fully aware of the precise nature of the injury he or she was suffering.
In that regard, the plaintiff submitted that ‘manifestation’ occurred when he ‘first learned of the diagnosis of his psychiatric problems in 1998 when first told of his diagnosis by his psychiatrist’.
The defendant contended that the test is ‘objective’ and does not depend upon ‘subjective recognition by the person suffering the injury or of diagnosis by a medical practitioner’. The defendant submitted that the section ‘merely requires that the injury is shown plainly or displayed’. In that regard, the defendant relied upon a dictionary definition of the verb to ‘manifest’ as being to ‘show plainly to eye or mind; be evidence of, prove; display, events (quality, feeling), by one’s acts etc’.
The Deputy President had accepted the construction of sub-s 68(1)(d) contended for by the defendant, and stated –
The language of s 68(1), when given its ordinary meaning, provides merely that the injury be manifest, that is, in plain view, and does not require that it be recognised by the sufferer, or by his or her diagnostician.
His Honour referred to those and other aspects of the reasoning of the Deputy President with evident approval and, at [26], stated –
In my opinion the Deputy President made no error of law in the matter. The ordinary meaning to be given to s 68 is that the test is objective. There is no requirement whatsoever that the Tribunal must consider the state of mind of an applicant at the time it determines his or her application. As the Deputy President stated – all that is required is that the injury be shown plainly or displayed. The evidence before the Deputy President demonstrated that the plaintiff’s psychiatric injury first manifested itself in 1995 and possibly even in 1989. In that situation I consider the Deputy President made no error in the matter.
As I have noted, in the Tribunal, and before the Court, both parties accepted the correctness of Hyland. Where they differed was in the emphasis or significance sought to be attributed to certain aspects of the present evidence that were, in turn, said to show ‘objectively’ when psychiatric injury – particularly PTSD – was ‘manifest’ or ‘first manifest’.
In that regard, the applicant submitted that the first point at which a diagnosis of PSTD was made – and thus, it was said, injury ‘manifest’ – was when the report of Assoc Prof Damodaran was received, in June 2019.
In some respects the applicant’s submission went close to reviving the proposition that whether or not injury is ‘manifest’ is to be determined by reference to whether and when the injury has been diagnosed and advised to and therefore appreciated by the applicant.
In this connection, the applicant referred to authorities such as M & J Rawlings Builders and Contractors v Rawlings[12] and Cavenett v Commonwealth of Australia,[13] both of which, in different ways, address the subjective state of mind of the particular claimant. The reasoning in those cases is, however, a product of their particular statutory contexts, which are, in each case, different to the present; even if, in a broad sense, some similar issues might be said to arise.
[12](2010) 30 VR 444 (‘Rawlings’).
[13][2007] VSCA 88.
On the other hand, the respondent identified particular findings of fact made in the reasons of the Tribunal which, it was said, were ‘unchallenged’. In large part, that was to emphasise, the findings of the Tribunal, made by reference to the report of Assoc Prof Damodaran, that the applicant’s symptoms of psychiatric injury arose ‘immediately after the exposure to the transport accident’ and that the injury ‘manifested itself from the time of the transport accident’. However, the respondent also referred to the ‘additional matter’ relied upon by the Tribunal as ‘reinforcement’, namely that ‘the injury was described by Ms Gambino to TAC by telephone on 10 November 2001 as “post traumatic stress disorder, delayed onset”’.
From that point, the respondent emphasised what was said to have been the ‘diagnosis’ of PTSD made by Dr Cooper in June 2011 and, more latterly, the confirmed diagnosis of PTSD made by Assoc Prof Damodaran in June 2019. In that regard, Senior Counsel emphasised that Dr Cooper was a paediatrician, not a psychologist or psychiatrist and, so it was submitted, his report dated 30 June 2011 had identified injury in the nature of PTSD and attributed the transport accident as a cause. It followed, in effect, that the injury must then have been ‘manifest’.
Senior Counsel also submitted that there were facts referred to in the history taken by Assoc Prof Damodaran, and his analysis, which meant that ‘there were things in plain view from which a diagnosis could be made’. It was submitted that the only reason that the injury was not earlier diagnosed was the applicant’s non-engagement with treatment after seeing Dr Cooper in June 2011. It was submitted by the respondent that Assoc Prof Damodaran was, in effect, merely ‘diagnosing now what was in plain view’ in 2011.
Whilst Senior Counsel for the respondent acknowledged that, by reason of the reasoning in Hyland, diagnosis ‘is not wholly to the point’, the fact is that the respondent’s submission itself was directed to determining the issue of early ‘manifestation’ by reference to what was said to be an ‘availability’ of ‘diagnosis’ informed to a considerable extent by a detailed history first obtained by Assoc Prof Damodaran in June 2019.
The competing submissions of the parties tend to highlight the need properly to understand what, in Hyland, BW Beach J meant by the ‘objective’ test.
In that regard, his Honour confirmed that ‘manifestation’ of injury did not depend upon the subjective state of mind of the claimant or, implicitly, a ‘diagnostician’. In that sense, while each party has presently sought to deploy aspects of the analysis undertaken by and diagnosis reached by Assoc Prof Damodaran in June 2019, it is important that that analysis and diagnosis – reached, as it was, on a particular history obtained many years after the transport accident – ought not be seen as singularly determinative of the statutory question; at least not without considering the whole of the other evidence relevant to the determination of the issue.[14]
[14]See, in a cognate context, Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605, [17]-[18].
Further, at least one other case in the Tribunal appears to have deliberated upon the question ‘to whom’ injury must be plainly be shown or displayed. The answer to that question is in BW Beach J’s determination that injury must be discerned ‘objectively’, and not necessarily or only by reference to the state of mind of the applicant, a ‘diagnostician’ or, logically, the subjective state of mind of any particular other person. In order to be ‘manifest’ within the meaning of that term as used in sub-s 68(1)(d), the relevant evidence, viewed as a whole, must ‘plainly show or display’ the injury – in a sense, externally to the eye or mind of any particular witness – at the relevant time or times. That is an assessment, and determination, to be made by the trier of fact on the whole of the evidence.
As was acknowledged in argument, what must be ‘manifest’ in the sense of plainly shown or displayed is not only ‘injury’, but that the transport accident was a cause of that injury, or, put another way, that the injury was ‘resulting from a transport accident’. That must follow from the form of the s 68, but also from the form of other provisions in the Act – particularly, sub-s 3(3) and 3(4).[15] It can hardly be said to have been the intention of Parliament that ‘manifestation’ is to be determined by the display of injury or symptoms of injury regardless of how they might be said to have been caused.
[15]See also, Gennimatas v Transport Accident Commission (2002) 5 VR 547.
That raises a related issue, namely the particular problems presented by psychiatric injuries – as to symptoms, diagnosis and the attribution of causation.
It is very common for the cause of psychiatric injuries to be multifactorial. For that reason, it is also common for the causation and diagnosis of psychiatric injuries to be both obscured by other features (sometimes for lengthy periods of time) and debateable. Very often ‘diagnosticians’ will not agree on any one diagnosis of psychiatric injury or its cause or causes.
Further, whether or not a particular history or complex of symptoms amounts to psychiatric injury relating to a particular cause is very often a question determined clinically by psychologists or psychiatrists; and the relevant diagnostic manuals emphasise the need for diagnosis by experts and in a clinical setting. Matters of this nature were touched upon in the reasoning of the Court of Appeal in Rawlings,[16] albeit in the different statutory context there present.
[16]Rawlings (n. 12) [46]-[49].
It follows that in the present context care should be taken not to allow such considerations to lead away from and therefore to displace the ‘objective’ determination of ‘manifestation’ of ‘injury’ identified by BW Beach J in Hyland, which is not necessarily to be determined by the state of mind of any particular witness, or ‘diagnostician’, and therefore not necessarily to be determined by any particular or singular expression of opinion as to diagnosis or ‘availability of diagnosis’.
This is another way of saying what is evident from the reasoning of his Honour in Hyland: ‘manifestation’ of injury at a particular time does not necessarily depend upon a diagnosis of injury at or in relation to that time. What matters is that injury resulting from the transport accident was objectively ‘manifest’ at that time; that is, externally to the mind of any particular witness. On the whole of the evidence, an injury resulting from a transport accident – even a psychiatric injury – might be ‘manifest’ even if no precise, or perhaps any, diagnosis has been proffered.
This is, of course, not to say that evidence of an opinion or diagnosis proffered at a particular time by a particular ‘diagnostician’ or other expert (or even a lay witness) is irrelevant to the statutory question. A claimant presenting with identifiable symptoms and a psychiatric diagnosis reached by a treater that is considered to be related to a transport accident will very likely be important evidence of the manifestation of injury at the particular time. However, as I have sought to emphasise, what is important is that the question be determined ‘objectively’, as at the particular time, and by reference to the whole of the relevant evidence relating to the issue at that time.
In this context, when sub-s 68(1)(d) speaks of manifestation of injury it draws a distinction between manifestation ‘at the time of the transport accident’ and manifestation ‘after any injury first manifests itself’. Albeit that it is very common for both physical and psychological injuries to manifest themselves after the date of injury, the statutory words appear to distinguish between injuries manifesting in and ‘at’ the time of a transport accident and injuries that were not manifest ‘at’ that time and are only ‘first’ manifest at some later time.
In this overall context, it is therefore important that it be appreciated that the ‘objective’ determination of ‘manifestation’ of injury, particularly in psychiatric cases, must ultimately resolve into a question of fact and degree – as to whether, ‘objectively’ and ‘manifestly’ at the particular time, there was an injury related to the transport accident. As I have sought to emphasise, that task must be undertaken by reference to the whole of the evidence, and not by reference to singular or selected elements of the evidence that might be sought to be posited as proxies for the determination of the statutory question.
At this point I should turn to the approach taken by the Tribunal to the determination of the present question. In that regard, at [68] of its reasons, the Tribunal correctly referred to Hyland. The present issue then came to be determined as follows –
[80]Mr Bourke submitted that the contentions by the applicant confuse manifestation with diagnosis.
Analysis
[81]In my view the submission is correct. Associate Professor Damodaran directly addressed the question as to when the applicant’s symptoms arose. The last substantive paragraph of his report is as follows:
Based on the information and examination, I am of the opinion that Mr Moules is suffering from post-traumatic stress disorder and this is directly related to the transport accident and the traumatic nature of the transport accident and the symptoms arose immediately after the exposure to the transport accident and this resulted in the development of psychiatric symptoms over a period of time.
[82]The report by Associate Professor Damodaran is the only expert report produced to the Tribunal in this proceeding which considers the applicant’s history and diagnosis in any kind of comprehensive way. It is the only report which provides a clear diagnosis, or which addresses the question of when symptoms arose. It indicates this was immediately after the exposure to the transport accident.
[83]In my view, this is compelling in relation to the question of when the injury manifested itself for the purposes of s 68(1): it requires the conclusion that the injury manifested itself immediately after the transport accident in 2005. Accordingly, the time limit in s 68(1) was not satisfied.
Later, the Tribunal essentially confirmed that finding, in the following terms –
[90] In this case, there is similarly ample evidence of manifestation of Mr Moules’ injury, from the time of the transport accident in 2005, and over the succeeding years. Applying the decision in Hyland, in accordance with the evidence set out above, I find that the injury was ‘shown plainly’ or ‘displayed’ from the time of the transport accident. This is despite the fact that a definitive diagnosis was only made in 2019. Manifestation and diagnosis are different things.
Thereafter, at [91] and [92], the Tribunal sought to reinforce that finding by reference to ‘additional matters’, namely the reference to ‘post traumatic stress disorder, delayed onset’ in the telephone call of Ms Gambino with a representative of the respondent on 10 November 2011 and what was described as ‘the incongruity of manifestation being said to have occurred after the claim was made [in November 2018]’.
In my view, the error in the approach of the Tribunal lies, ultimately, in a failure to conduct an analysis of the whole of the evidence in order to answer the statutory question ‘objectively’. Albeit that the Senior Member referred to Hyland, and evidently intended to apply the approach there identified, the statutory question, up to the point of the Tribunal’s reasons at and including [90], appears to be answered entirely and only by reference to matters arising out of the report of Assoc Prof Damodaran in June 2019. In that regard, at least the following may be said –
(a) the reference, at [81] of the Tribunal’s reasons, to the opinion of Assoc Prof Damodaran to the effect that ‘symptoms arose immediately after the exposure to the transport accident’ does not compel the conclusion, apparently drawn by the Tribunal at [83], that such symptoms – or, more particularly, psychiatric injury relating to the transport accident – were plainly shown or displayed at the time of the transport accident or, necessarily, at any time in the sequence of years that followed until the applicant attended Assoc Prof Damodaran in June 2019;
(b) in that regard, as I have earlier noted, Assoc Prof Damodaran recorded in his report that the applicant had said that had been unable to communicate with the paediatrician and psychologists seen during his childhood and had never told ‘this story in such great detail to anybody’;
(c) further, that aspect of the underlying history is confirmed by the contemporaneous records, in that there is no record that the applicant conveyed such a history to any of those early practitioners – including the paediatrician, Dr Cooper;
(d) in that regard, as I have also earlier noted, the applicant was at that time of the transport accident only eight years old, had a history of behavioural disturbance prior to the transport accident and does not seem to have been presented to his GP for assessment or treatment for behavioural disturbance on 4 September 2005 or at any time in the period that followed shortly thereafter;
(e) indeed, subsequent to the transport accident, as I have noted, the applicant sought and obtained no treatment for behavioural disturbance for some two and a half years and then, when he did, there is at best essentially one debateable reference in the contemporaneous material (that being in the report and clinical note of Dr Cooper) linking his presentation to the transport accident as opposed to other causes such as the impact of the behaviour of his biological mother, other conditions such as depression and ADHD and aberrant conduct arguably unrelated to any specific stressor;
(f) in respect to Dr Cooper, to suggest that the presentation of the applicant in June 2011 was, in effect, clearly to present with symptoms of PTSD relating to the transport accident, is – for reasons explained in further detail below – to read somewhat too much into the report and clinical note of Dr Cooper and to seek to interpret them with the benefit of what was made much more apparent in a history given to and opinion proffered by Assoc Prof Damodaran some eight years later, in June 2019; and
(g) finally, it is notable that Assoc Prof Damodaran recorded the applicant’s conduct disorder and attention deficit disorder to be ‘pre-existing’ and did not express the view in his report that the symptoms of the applicant’s PTSD – in a then very young child – were ‘manifest’ in the sense of objectively and plainly shown or displayed to the eye or mind at the time of the transport accident.[17]
[17]It is debateable whether any such expression of opinion would have been within Assoc Prof Damodaran’s expertise. I express no concluded view concerning the question.
The short point, is that while the Tribunal evidently sought to take account of the approach to the statutory question identified in Hyland, it ultimately determined the question primarily and perhaps only by reference to the opinion and report of Assoc Prof Damodaran – which did not itself answer the statutory question.
Further, that approach was, in essence, not to approach the question objectively and by reference to the whole of the relevant evidence. Rather, it was to collapse the task of answering the statutory question into an acceptance of the opinion and report of a particular ‘diagnostician’.
As I have sought to explain, while the opinion and report of Assoc Prof Damodaran could be said to be relevant to the determination of the statutory question, it was not primarily or alone determinative of that question. To approach the determination of the statutory question in that manner indicates that, ultimately, in my view, the Tribunal must be said to have misconstrued it.
No different conclusion arises from the Tribunal’s ‘reinforcement’ findings, or observations, made at [91] and [92] of the reasons based in the reference to PTSD in the telephone call with Ms Gambino on 10 November 2011 and the applicant’s contention below that manifestation of injury occurred after the claim was lodged with the respondent on 26 November 2018.
Neither finding, or observation, was evidently intended to stand alone – each was seemingly identified as ‘reinforcing’ the earlier finding based in the report of Assoc Prof Damodaran. In that sense, neither may be said to ameliorate the error made in approaching the statutory question in the manner identified above.
Further, each such finding, or observation, was somewhat awkwardly conceived of as ‘reinforcing’ the determinative finding at [90]. That finding was seemingly based in the first part of sub-s 68(1)(d) – that injury was shown at or from the time of the transport accident in September 2005. However, the matters identified at [91] and [92] occurred much later than the time of the transport accident in September 2005 and, in context, it is not easy to see how either of them could say anything or anything compelling about ‘manifestation’ of injury at that much earlier time.
Even if the finding at [91] – in respect of the telephone call with Ms Gambino on 10 November 2011 – were to be said to amount to an implicit finding that ‘manifestation’ occurred ‘long before’ a year prior to 26 November 2018, for reasons explained earlier, that Ms Gambino spoke of the applicant having suffered ‘post-traumatic stress disorder, delayed onset’ relating to the transport accident does not alone determine, objectively, that such an injury was then ‘manifest’.
In that regard, as was acknowledged in argument, the origin of Ms Gambino’s reference to PTSD is likely to have been in the opinion of Dr Cooper expressed some months prior to the telephone call. However, Dr Cooper’s opinion was no more than that PTSD was ‘a possibility’. Indeed, his clinical note was expressed in even more diffident terms: ‘possibility of something like post-traumatic stress disorder’. In each document, Dr Cooper’s overriding impression was that it was a ‘very complex presentation and too difficult to work out in one session’.
In respect to the applicant, Dr Cooper spoke more directly of ‘a combination of underlying attention deficit disorder and family issues’ and prescribed a trial of Strattera directed to that condition. That trial seems to have been continuing at the time of Ms Gambino’s telephone call to the respondent and, indeed, on that very day, the applicant’s GP seems to have seen him and recorded a diagnosis of ADHD, not PTSD.
Further, in respect of Dr Cooper, and perhaps unsurprisingly in light of the then age of the applicant, the clinical assessment on 30 June 2011 was also attended by Ms Gambino and the applicant’s father. Neither Dr Cooper’s clinical note nor report record the applicant as having conveyed a history of the kind of classic PTSD symptoms much later received by Assoc Prof Damodaran (nightmares, flashbacks, etc) or, for that matter, having related any of his symptomatology to the transport accident.[18]
[18]In passing, it may be noted that the applicant had also attended Chris Mackey and Associates for psychological assessment and treatment in early 2008. In the course of that treatment he was assessed by questionnaire. Many questions were asked. Two or three of his answers might be said, if isolated and viewed with the benefit of hindsight, to suggest underlying symptoms of a kind complained of much later – albeit several of the relevant answers were identified as occurring only ‘sometimes’ and then in a mild form. Other answers, however, might be said to have indicated other symptoms or conditions. In any event, the evidence does not reveal the clinician or clinicians who administered that questionnaire and treated the applicant at that time to have referred to or diagnosed PTSD or to have linked any of the relevant symptoms complained of to the transport accident.
In that regard, the relevant history most directly attributed to the applicant was recorded in the clinical note as follows: ‘mother has substance abuse issues and and (sic) Luke talked about this at length with me today as a source of stress’. In this sense, Dr Cooper’s report and note are consistent with what the applicant said to Assoc Prof Damodaran many years later: that ‘he had never told this story [ie, the story of the effect of the transport accident upon him] in such great detail to anybody’.
To the extent that PTSD seems to have arisen during the consultation with Dr Cooper and prior to the ultimate expression of it as ‘a possibility’ in the applicant, that seems to have been in the course of the history given by ‘stepmother Cindy’ with reference to herself and in circumstances in which she is recorded as having spoken at length ‘about her own emotional issues’.
The form of Dr Cooper’s note and report would also support the view that the only reference to the transport accident – ‘she tragically lost her three sons one of whom was a friend of Luke’s four years ago’ – was made with specific reference to a history given by Ms Gambino, rather than with any direct reference to anything said by the applicant.
Strikingly, in light of the history much later given by the applicant to Assoc Prof Damodaran, neither the note nor report of Dr Cooper records any history of the attendance of the applicant at the dam on the evening of the incident in September 2005 nor links any subsequent feature of his presentation to any particular aspect of that attendance.
In this context, and perhaps unsurprisingly in light of the history given, Dr Cooper’s diagnosis was focussed upon ‘significant emotional issues … marked by angry outbursts – in a boy with long-standing poor self regulation’.
In this sense, I cannot accept the submission of Senior Counsel for the respondent to the effect that Assoc Prof Damodaran only diagnosed in 2019 what was ‘in plain sight’ at the time of the attendance upon Dr Cooper in June 2011. The situation was complex, involving an adolescent and with little if any focus, at that time, upon his attendance at the transport accident some years before and any psychiatric effect that that might have had upon him.
Nor it is able to be accepted that the reason that no diagnosis of PTSD was confirmed in and after 2011 was because the applicant thereafter disengaged with treatment. It is true that there are only attendances upon the applicant’s GP from that time, however in the period from mid to late 2011 until October 2014 the applicant did attend upon his GP with presentations in connection with behavioural disturbance.
In that period, however, there is no reference in the clinical notes of the Winchelsea Medical Clinic to PTSD as opposed to other conditions such as ADHD, depression and OCD, and it may well be that any suggestion of a possibility of PTSD fell ‘off the radar’. That would be consistent with there having been no return of the partially completed claim form to the respondent, although I acknowledge that the evidence below included no statement from Ms Gambino, and the statement of the applicant’s father does not address the issue.
In any event, as I have noted, consistently with the other evidence, Assoc Prof Damodaran took a history of the applicant being involved in ‘various antisocial behaviour’, including serious substance abuse, apparently in his teens, and was of the opinion that the applicant had suffered a conduct disorder and attention deficit disorder that pre-existed the transport accident and was only in remission at the time at which the applicant saw Assoc Prof Damodaran in June 2019.
That is to say that an objective consideration of the evidence concerning the presentation of the applicant right throughout the period prior to and after mid-2011 tended to show an unstable presentation that was clouded by a range of considerations and mooted psychiatric conditions, in respect of which little connection was plainly shown or made at that time with the transport accident.
This is no more than to say that the fact that one person – Ms Gambino – who herself appears to have suffered from PTSD relating to the transport accident – referred to PTSD in the telephone call with the respondent in November 2011, does not necessarily require a finding, objectively made, that such an injury was then ‘manifest’ in the applicant; in the sense of it being ‘plainly shown or displayed’ that the applicant was then suffering from the symptoms of PTSD or perhaps any other psychiatric injury related to the transport accident.
In any event, the more general point is that in approaching the statutory question objectively, as required by Hyland, the temptation to resolve it by reference to any one fragment of the evidence rather than by reference to the whole of the evidence relevant to the time in question must be resisted. In that regard, care must be taken when approaching evidence of the apparent state of mind or opinions of the claimant, or guardians (such as Ms Gambino) or, for that matter, ‘diagnosticians’ such as Dr McDonald, Dr Cooper or, much later, Dr Damodaran. It is important that the fact that the statutory question must be answered objectively not slip from view.
As to the ‘incongruity’ referred to in the reasons of the Tribunal at [92], to comment upon an incongruity arising from an argument advanced by Counsel does not amount to answering the statutory question. Indeed, the fact that the ‘incongruity’ relates to an event after the claim was lodged in November 2018 rather suggests that the Tribunal was at risk of diverting itself from the statutory question whether, objectively, injury was manifested ‘at the time of the transport accident’ or more than one year prior to the making of a claim for compensation on 26 November 2018.
In any event, as I have already noted, the answer to the statutory question required an objective consideration of the whole of the relevant evidence, which did not occur in the analysis undertaken by the Tribunal. That error is not displaced by comment upon an ‘incongruity’ arising from an argument of Counsel advanced below.
More generally, I have already concluded that when approaching the determination of the present issue by reference to the first part of the above question – namely whether injury was manifested ‘at the time of the transport accident’ – the Tribunal appears to have proceeded upon a misconstruction of the Act. However, in respect to the latter aspect – whether injury was first manifested more than one year prior to the making of the claim in November 2018 – an objective consideration of the evidence may arguably be said to support the view the applicant’s psychiatric condition and its link to the transport accident have become considerably more apparent in recent times.
In part that is so because of the detailed history first given by the applicant to Assoc Prof Damodaran in June 2019, to which reference has already been made, and the fact that no such detailed history of symptoms or their clear linkage to the transport accident seems evident in any of the earlier material, including the note and report of Dr Cooper each dated 30 June 2011.
However, the likely more recent emergence or ‘manifestation’ of the psychiatric injury and its connection to the transport accident tends also to be underlined by the contents of the claim form lodged in November 2018, the applicant’s written statement and the written statement of his father, the latter two of which post-date the report of Assoc Prof Damodaran.
In respect of the claim form, it is notable that the stated details of injury are not there identical to those provisionally inserted for confirmation in November 2011. Indeed, the details have been supplemented by, it seems, the hand writing of the applicant: ‘Nervous Shock Psychological/Psychiatric’. That may well suggest that the presentation of the applicant and, indeed, the connection of his condition to the transport accident, has not remained static since November 2011. The fact that the applicant himself added such further details may suggest that those conditions – and perhaps his psychiatric condition generally, including the referenced ‘post traumatic stress disorder, delayed onset’ – and their connection to the transport accident, may have become more apparent over time and, perhaps, in the period prior to 23 November 2018.
In respect of the applicant’s statement, dated 30 July 2019, and the effect of the transport accident upon him, the applicant referred to the psychological effects apparent to him at the time of his statement, particularly the reliving of the scenes of the transport accident in his mind ‘every day’. He also listed a large number of psychological effects and diagnoses related to the present. However, in respect to the past, he stated –
11. My life as a child thereafter was permanently damaged. I attended Winchelsea Primary School and struggled with anger and learning difficulties. I was diagnosed with Attention Deficit Hyperactive Disorder (‘ADHD’) and was medicated for this. All I could feel was anger and darkness. I attended Colac Secondary College and continued to struggle with behavioural issues. I was consequently expelled in Year 8 and moved to Christian College in Geelong. I then went to MacKillop School before going to TAFE. I required treatment at Winchelsea Medical Clinic, Psychological counselling at Chris Mackey & Associates and Geelong Paediatric Group. I could not understand what was happening to me.
12. I managed to obtain some work at IGA, but my behaviour continued to go “off the rails”. After my schooling I obtained work in Demolition and Asbestos Removal. I could not control my behaviour, as well as nightmares and flashbacks, and I started engaging in risk taking activities to try to quell my mind. I had to get out of Winchelsea as our family was unfortunately defined by the transport accident and I would have to regularly go past the scene of the transport accident. There was no escape from this.
13. I moved to South-Eastern Victoria and obtained work as a Scaffolder up until around May 2018. I now work as a Concreter and find the physical work rewarding. I try to bury myself with work.
…
15. I know I need treatment for the above, but have not known where to turn and tried to internalise my problems. The Transport Accident Commission (‘the Commission’) had me assessed by medico-legal Psychiatrist, Associate Professor Damodaran, in June 2019, which confirms that I have suffered the severe nervous shock injury and resultant consequences outlined above.
16. Prior to the transport accident I had suffered some psychological issues due to the separation of my biological mother and my father. They had a very difficult relationship, and this affected me. However, my ‘new life’ in Winchelsea prior to the transport accident seemed to be much better, until the transport accident occurred.[19]
[19]JCB 34-36.
Much of that part of the applicant’s statement was necessarily in the past tense, and it may be noted that it did not refer to the circumstances in which he came to complete the claim form lodged with the respondent on 26 November 2018. However, the tone and content of that passage, unchallenged by any cross examination as no oral evidence was given below, tends to support the overall position earlier referred to, namely that the applicant and those around him did not have a clear sense of what was ‘happening’ to him at the time and he did not tell those around him about the details of his internal torment.
That is, the applicant’s appreciation of that torment, and its significance – that is, that it was a distinct psychological injury as opposed to an expression of pre-existing or constitutionally based ‘issues’ – and linkage to the transport accident seems to have become more apparent to him and therefore likely more apparent to others in more recent times, perhaps with his cessation of substance abuse and the intervention of perspective as a function of growing maturity.
Similarly, the statement of the applicant’s father, dated 5 May 2020, confirmed that the applicant was presently ‘still affected’ by the transport accident. However, as to the past, Stephen Moules stated –
14. … The Applicant struggled with major behavioural issues through his schooling and as a result there was major disruption in his life and all of our lives. I recall that the Applicant received some medical and counselling treatment in my presence as he was a minor, but he did not appear to me in the way he expressed himself to have any real comprehension of what was happening, other than that he was struggling with major behavioural issues and, as a result, difficulties with his schooling and life. This seemed to be the focus and all I was trying to do was to get him help though the situation. It was essentially survival mode that we went into.
Notably, the father’s statement does not refer to his knowledge, in earlier times, of the kinds of symptoms referred to in the detailed history given to Assoc Prof Damodaran.
Further, the above passage taken from the father’s statement tends generally to support the proposition that any precise linkage between the behaviour of the applicant during his childhood and the transport accident was at that time unclear, at best, and therefore has become more apparent in recent times. There was, as I have noted, no oral evidence given below, and therefore the applicant’s father was not cross-examined.
As I have indicated, the sequence and content of the above, in a very general sense, tends to suggest that the applicant’s psychiatric condition, and its link to the transport accident, has become more apparent with the passage of time, the intervention of his maturity and perspective, the cessation of substance abuse and a seemingly greater willingness of the applicant to communicate with others concerning his symptoms and their origins.
For those reasons, it is perhaps able to be said that the applicant’s psychiatric injury relating to the transport accident was first plainly shown a year or less prior to 26 November 2018, even if it cannot be concluded on what precise date that manifestation may be able to be said to have occurred.
That said, as I have indicated at various points, the presently available evidence is far from exact and can do no more than suggest in a general sense that such a proposition may be able to be established.
The applicant’s notice of appeal seeks relief including a declaration to the effect that his claim for compensation has been lodged such that he is entitled to benefits under the Act. It will be evident that on the evidence as it stands I am unable to conclude that he is presently so entitled.
However, it will also be evident that below both parties, for their own purposes, sought to emphasise and rely upon the fact and parts of the report of Assoc Prof Damodaran and that that approach may be said to have affected the approach ultimately taken by the Senior Member and, perhaps, contributed to the error that I have identified. That approach may also be said to have affected the manner in which the evidence was prepared, on both sides.
It is, however, unnecessary for me to say anything further. It is sufficient to say that I am satisfied that the Tribunal erred approaching the question presented for determination by sub-s 68(1)(d) of the Act and that ground 3 is, in substance, made out. The appeal should therefore be allowed and, for the reasons that I have endeavoured to explain, the proceeding remitted to the Tribunal to be decided again by reference to such evidence – including further relevant evidence – as may be called.
F Ground 4: Reasons
In addition to the above, as I have noted, the applicant complained in respect of the written reasons of the Tribunal. Those complaints were based in a sequence of Court of Appeal authorities directed to legally insufficient and thereby erroneous reasoning.[20]
[20]Hunter v Transport Accident Commission [(2005) 43 MVR 130; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 37; Dressing v Porter [2006] VSCA 215 and Transport Accident Commission v Kamel [2011] VSCA 110.
It is important to note that most of those authorities are directed to appeals in the nature of a rehearing. The present appeal is on a question of law, and so the applicable analysis and approach to the question of reasoning is or is likely to be more confined.[21]
[21]See, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
In any event, even if the wider approach evident in the cases relied upon by the applicant were to be adopted, there is no legal insufficiency in the Tribunal’s reasons in the present instance. No issue argued below was left undetermined.[22] Similarly, the Tribunal’s reasons are not in a form which leaves the Court unable to determine whether an error of law was made. To the contrary, that such an error was made is evident.
[22]Compare: Hunter v Transport Accident Commission (2005) 43 MVR 130.
More generally, the particulars to ground 4 stated in the notice of appeal make clear that the applicant’s complaints about the Tribunal’s process of reasoning are largely if not wholly co-extensive with the complaints directed to alleged specific errors of law. Complaints and argument of that kind are appropriately determined in connection with the specific errors alleged, which has occurred above. It is not the same thing as legal insufficiency of reasoning.
It follows that ground 4 must be rejected.
G Conclusion
I have accepted ground 3 directed to the construction of sub-s 68(1) of the Act and the question of ‘manifestation’ of injury. The applicant’s other grounds are rejected.
The application for leave to appeal should be granted[23] and the appeal allowed. The order of the Tribunal below should be set aside. The matter should be remitted to the Tribunal, differently constituted, for determination according to law by reference to such evidence as may be called.
[23]Cf., Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48, [28].
I will otherwise hear counsel concerning the form of orders, and costs.
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