Sumner v Country Fire Authority

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 05180

DALE SUMNER	Plaintiff
v
COUNTRY FIRE AUTHORITY	Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2024
DATE OF JUDGMENT:	10 July 2024
CASE MAY BE CITED AS:	Sumner v Country Fire Authority
MEDIUM NEUTRAL CITATION:	[2024] VSC 403

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ADMINISTRATIVE LAW — Judicial review — Volunteer compensation scheme established by Country Fire Authority Regulations 2014 (Vic) — Plaintiff’s claim for compensation for delayed onset post-traumatic stress disorder accepted by defendant — Later decision by defendant to terminate plaintiff’s entitlement to compensation — Whether Authority required to act fairly and reasonably in considering plaintiff’s claim — Whether Authority’s decision legally unreasonable — Whether Authority failed to have regard to mandatory considerations — Whether Authority had regard to an irrelevant consideration — Decision set aside — Country Fire Authority Act 1958 (Vic) ss 2, 6, 6B, 6I, 110 — Country Fire Authority Regulations 2014 (Vic) regs 75, 83, 92.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S Gold and Ms Y Al-Azzawi	Robinson Gill Lawyers
For the Defendant	Ms R Kaye KC with Ms M Cameron	TG Legal + Technology

TABLE OF CONTENT

Compensation for CFA volunteers — relevant provisions

CFA’s reasons for decision

Post-traumatic stress disorder

Grounds of review

Did the CFA have to act fairly and reasonably in considering Mr Sumner’s claim?

Was the CFA’s decision legally unreasonable?

Did the CFA fail to have regard to matters that it had to consider?

Did the CFA consider irrelevant matters?

Disposition

HER HONOUR:

In September 1992, at the age of 19, Dale Sumner became a volunteer firefighter with the Lakes Entrance brigade of the Country Fire Authority (CFA). He remained a member of the brigade until October 2016, when he resigned and moved to Queensland. During his 24 years as a volunteer with the CFA, Mr Sumner attended many incidents, including house fires, motor vehicle accidents, and bushfires, and was exposed to a number of traumatic events. At times, he suffered from depression and anxiety, but he attributed this to other life events, including the untimely death of his mother in 2003.

Not long after relocating to Queensland, Mr Sumner began to suffer increased psychological distress, and he sought treatment from his general practitioner and a psychologist, Ms Tessa Hall. He was referred to a psychiatrist, Dr Scott Jenkins, who in August 2018 diagnosed Mr Sumner to be suffering from major depression, anxiety, and post-traumatic stress disorder (PTSD). In Ms Hall’s opinion, the PTSD was directly related to his work with the CFA and his repeated exposure to trauma through that work.

In September 2018, Mr Sumner made a claim for compensation from the CFA, under the compensation scheme for volunteer brigade members established under Pt 6, Div 1 of the Country Fire Authority Regulations 2014 (Vic) (CFA Regulations).

The CFA investigated Mr Sumner’s claim and arranged for him to be assessed by an independent psychiatrist, Dr Wasim Shaikh. In a report dated 23 October 2018, Dr Shaikh diagnosed Mr Sumner with PTSD of delayed onset, with depressive symptoms subsumed within the diagnosis of PTSD.[1] Dr Shaikh considered Mr Sumner’s service with the CFA to be a significant contributing factor to his condition of PTSD. On that basis, the CFA accepted Mr Sumner’s claim for compensation. Dr Jenkins’ diagnosis of PTSD was later confirmed by two other psychiatrists, Dr Gregor Schutz and Dr Chris Grant.[2]
[1]In a later report dated 10 April 2020, Dr Shaikh confirmed his diagnosis of PTSD, but said that the evidence suggested the history of Mr Sumner’s delayed onset PTSD went back only to 2018. Prior to that, from 2003, Dr Shaikh considered that major depressive disorder was present, related to work and other personal stressors rather than his volunteer service with the CFA.
[2]Report of Dr Gregor Schutz dated 3 September 2019; report of Dr Chris Grant dated 22 March 2022.

The CFA paid compensation covering reasonable medical costs and replacement labour to Mr Sumner from late 2018. Mr Sumner continued to work five days a week in his business managing a resort, receiving compensation for the cost of replacement labour for the remaining two days. In 2021, again based on Dr Shaikh’s opinion, the CFA agreed to meet expenses associated with an assistance dog recommended by Mr Sumner’s treating practitioners.

In February 2023, the CFA referred Mr Sumner for an assessment by yet another psychiatrist, Associate Professor Peter Doherty, to assist in reviewing Mr Sumner’s entitlement to weekly payments for replacement labour and his request for physiotherapy. Associate Professor Doherty examined Mr Sumner on 28 February 2023, and reviewed the previous reports and clinical records provided by the CFA. In Associate Professor Doherty’s opinion, the previous diagnoses of delayed onset PTSD were wrong, and Mr Sumner had a longstanding anxiety disorder unrelated to his experiences as a CFA volunteer.

By letter dated 11 April 2023, the CFA advised Mr Sumner that it proposed to determine to terminate his entitlements to weekly payments and medical and like expenses, on grounds including that he did not suffer an injury which entitled him to compensation. The CFA invited Mr Sumner to provide it with any further evidence, information, and submissions he wished it to consider, before finalising its proposed determination.

During May and June 2023, Mr Sumner provided the CFA with submissions and further information, including a letter from Dr Jenkins dated 8 June 2023 and a medico-legal report prepared by a sixth psychiatrist, Dr Nathan Serry, dated 25 May 2023. Dr Jenkins confirmed his opinion that Mr Sumner was suffering from PTSD caused entirely by his service with the CFA. Dr Jenkins listed symptoms consistent with that diagnosis including ‘intrusive memories, re-experiencing, sleep disturbance, nightmares, global anxiety, hyper vigilance, exaggerated startle reflex, foreshortened sense of future, and social withdrawal.’ In Dr Serry’s opinion, Mr Sumner had ‘chronic PTSD with comorbid features of general anxiety and secondary depression’ related to his volunteer work with the CFA and specifically to certain traumatic incidents.

On 4 September 2023, after obtaining and considering a supplementary report from Associate Professor Doherty dated 30 July 2023, the CFA determined that Mr Sumner was no longer entitled to weekly payments or medical and like expenses, primarily on the basis that he did not suffer an injury which entitled him to compensation. The CFA provided Mr Sumner with a letter setting out the reasons for its determination, to which I will refer in detail below. The decision took effect on 2 October 2023.

In this proceeding, Mr Sumner seeks judicial review of the CFA’s decision to terminate his entitlements to compensation. He contends that the decision was legally unreasonable, that the CFA failed to have regard to mandatory considerations, that it had regard to irrelevant considerations, and that the decision was not open to an administrator of a compensation scheme acting reasonably and fairly in consideration of the claim. He seeks an order in the nature of certiorari, quashing the CFA’s decision to terminate his entitlement to compensation.

The issues for determination in the proceeding are:

(a) Did the CFA have to act fairly and reasonably in considering Mr Sumner’s claim?

(b) Was the CFA’s decision to terminate Mr Sumner’s entitlements to compensation legally unreasonable?

(c) Did the CFA fail to have regard to matters that it had to consider?

(d) Did the CFA consider irrelevant matters?

For the reasons that follow, I have concluded that:

(a) The CFA had to make a legally reasonable decision, having regard to the scope, purpose, and objects of its powers under Pt 6, Div 1 of the CFA Regulations. The CFA’s decisional freedom in determining a claim for compensation is limited by the fact that, although it has no medical expertise of its own, it is the only body with power to make a decision on the merits of a claim having regard to all of the available medical evidence. Where the medical evidence conflicts, the CFA is not free to form its own opinion, but must decide which evidence it prefers by a process of reasoning. The purpose and objects of the CFA’s powers include the establishment of a volunteer compensation scheme for the benefit of volunteers, and supporting the recruitment and retention of volunteers in order to provide a fully volunteer fire fighting service. The standard required of an insurer, to act reasonably and fairly in consideration of a claim, cannot be transposed to judicial review of the exercise of a statutory power. The relevant standard is legal reasonableness.

(b) The CFA’s decision to terminate Mr Sumner’s entitlements to compensation was legally unreasonable. As the sole arbiter of the merits of Mr Sumner’s claim, it changed its mind about his entitlement to compensation on the basis of a single medical opinion that was contrary to all of the opinions it had previously accepted. It did so without engaging with the reason why Associate Professor Doherty held a different opinion, and without considering whether it should accept the premise of his opinion. The CFA’s reasons for decision disclosed no intelligible foundation for preferring Associate Professor Doherty’s opinion and its underlying premise.

(c) In failing to notice and engage with the real reason why Associate Professor Doherty’s opinion differed from the other medical opinion, the CFA failed to have regard to matters that it had to consider. It did not fail to consider Mr Sumner’s current trauma symptoms, which were noted by Associate Professor Doherty in his first report.

(d) Associate Professor Doherty’s opinion was relevant, and the CFA was permitted to have regard to it.

I therefore will make an order setting aside the CFA’s decision.

Compensation for CFA volunteers — relevant provisions

The CFA is constituted under the Country Fire Authority Act 1958 (Vic) (CFA Act) for ‘the more effective control of the prevention and suppression of fires in the country area of Victoria’.[3] Section 6B provides that the objective of the CFA in performing its functions and exercising its powers under the CFA Act is to:

(a) contribute to a whole of sector approach to emergency management;
(b) promote a culture within the emergency management sector of community focus, interoperability and public value;
(c) support the effective and sustainable recruitment, development and retention of volunteer officers and members, including those located in the Fire Rescue Victoria fire district, to deliver capability in the provision of the Authority’s services.

[3]Country Fire Authority Act 1958 (Vic), s 6 (CFA Act).

Section 6F of the CFA Act recognises that the CFA is a fully volunteer fire fighting service under the command and control of a paid Chief Officer and supported where necessary by other paid staff. Section 6I provides:

The Authority has a responsibility to develop policy and organisational arrangements that encourage, maintain and strengthen the capacity of volunteer officers and members to provide the Authority’s services.

Section 2 of the CFA Act expresses Parliament’s intention that the CFA and Fire Rescue Victoria[4] establish processes that will ensure that they:

(a) promote collaboration and coordination between fire services agencies to best meet the safety needs of the community; and
(b) recognise the importance of maintaining capacity to respond to peaks in demand for fire services within fire services agencies; and
(c) recognise and value the contribution of volunteer brigades; and
(d) recognise that both volunteer firefighters and career firefighters are vital to delivering safe and sustainable fire services; and
(e) maintain the ability of fire services agencies to respond to critical incidents, to prevent and suppress fires and to protect life and property.

[4]Fire Rescue Victoria has a cognate objective: Fire Rescue Victoria Act 1958 (Vic), s 2A. Fire Rescue Victoria provides for fire suppression and fire prevention and other emergency response services in the Fire Rescue Victoria fire district — broadly, the urban areas of Victoria: Fire Rescue Victoria Act, s 7(1).

Under s 110 of the CFA Act, the Governor in Council may make regulations for purposes including the establishment of a compensation scheme for volunteer officers and members of a brigade, and the payment of compensation to such persons in the case of an incident causing personal injury to that person.[5] The objectives of the CFA Regulations include providing for compensation for personal injury of volunteer members of brigades.[6]
[5]CFA Act, s 110(1)(g), (ga).
[6]Country Fire Authority Regulations 2014 (Vic), reg 1(f) (CFA Regulations).

Part 6, Div 1 of the CFA Regulations provides for compensation for members, including members of volunteer brigades such as Mr Sumner. A member’s entitlement to compensation is set out in reg 75, relevantly:

(1) If a member, in the course of, or arising out of, performing service as a member—
(a) suffers a personal injury; or
…
the member is entitled to compensation.

The phrase ‘service as a member’ is defined in reg 74 to include a range of matters, including attendance at a fire or other incident and carrying out duties under the CFA Act or CFA Regulations.

A claim for compensation may be made to the CFA in accordance with reg 78.

Regulation 83 provides, relevantly:

Determination of claims
(1) The Authority must—
(a) enquire into the circumstances of every claim lodged; and
(b) determine the claim as soon as possible.

(2) In determining a claim for compensation, the Authority—
(a) has power to do all things necessary or expedient to determine the claim for compensation; and
(b) must give consideration—
(i) for a claim relating to injuries sustained before 1 July 2014, to the matters set out in sections 5, 5AC, 5AE, 5B, 82, 82A, 82B, 82C, 82D, 83, 86, 88, 89, 90, 91 (except subsection (2)), 92 (except subsection (7)), 93, 93CE, 93E, 93EA, 93F, 96, 96A, 97, 98, 98A, 99AAA, 99, 99AA, 99AC, 99AD, 99A, 100, 111 and 112 of the Accident Compensation Act 1985; or
(ii) for a claim relating to injuries sustained on or after 1 July 2014, to the matters set out in sections 92, 98 and 98A of the Accident Compensation Act 1985 and sections 3, 6, 7, 27, 39, 40, 41, 42, 43, 44, 45, 46, 50, 52, 53, 54, 55, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 152, 156, 158, 160, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 222, 223, 224, 226, 228, 229, 231, 232, 542 of, and clause 25 of Schedule 1 to, the Workplace Injury Rehabilitation and Compensation Act 2013—

with any variations that are necessary, and in so far as they are not inconsistent with these Regulations; and
…

The CFA considered relevant provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act) in determining Mr Sumner’s claim. This was presumably on the basis that, while Mr Sumner experienced a number of traumatic events before 1 July 2014, his claimed PTSD did not arise until after that date. In any event, the parties agreed that there is no material difference between the provisions of the WIRC Act specified in reg 83(2)(b)(ii), and the provisions of the Accident Compensation Act 1985 (Vic) (AC Act) specified in reg 83(2)(b)(i).

Regulation 84 provides that a member is not debarred from compensation in respect of personal injury caused to the member in the course of or arising out of service as a member by reason only that the member was not, at the relevant time, a ‘worker’ within the meaning of the AC Act or the WIRC Act, as the case may be.

Regulation 88 provides:

Medical certificates and examinations
(1) The Authority may, from time to time, require a member who is receiving compensation payments from the Authority to attend any medical, rehabilitation, vocational or like examination with a medical practitioner or health professional nominated by the Authority.
(2) If a member—
(a) unreasonably fails to provide a certificate required by the Authority; or
(b) unreasonably fails to attend or undergo a medical or like examination required by the Authority; or
(c) unreasonably obstructs an examination referred to in paragraph (b)—

the Authority may suspend compensation payments until the certificate is provided, the examination takes place or the obstruction ceases.
(3) The Authority must pay the cost of medical or like examinations referred to in subregulation (1).

Regulation 90 allows for the CFA to increase weekly payments at the request of the member receiving compensation, while reg 91 allows the CFA to reduce weekly payments on one or more of the grounds specified. Regulation 92 provides:

Termination of weekly payments
The Authority may, in accordance with regulation 93, terminate weekly payments on one or more of the following grounds—
(a) there is not, or is no longer, an entitlement to weekly payments;
(b) the member has returned to work;
(c) the member’s current weekly earnings have altered by reason of a change in employment circumstances;
(d) the Authority considers that the member unreasonably did not accept—
(i) an offer of suitable employment; or
(ii) an offer of suitable employment which would result in increased weekly earnings or greater employment opportunities;

(e) if the member accepted an offer of suitable employment, the Authority considers that the member—
(i) did not actively take up the employment; or
(ii) took up the employment but did not make a reasonable attempt to continue in, or carry out that employment;

(f) the Authority considers that the member did not make every reasonable effort to—
(i) participate in an occupational rehabilitation service or return to work plan; or
(ii) return to work in suitable employment; or
(iii) participate in assessments of the member’s capacity, rehabilitation progress and future employment prospects when requested to do so from time to time by the Authority or its health professionals;

(g) the Authority considers that the member’s capacity or availability for employment has been materially reduced due to a cause that—
(i) is within the member’s control; and
(ii) is not related to the personal injury entitling the member to weekly payments.

Regulation 93 prescribes the procedure for increasing, reducing, or terminating weekly payments to a member.

The expression ‘medical and like expenses’ is defined in reg 74 to mean, relevantly:

reasonable costs of the medical, hospital, nursing, personal and household, rehabilitation and ambulance services received by a member because of the personal injury;
…

The obligation to pay compensation in the form of medical and like expenses is not spelled out in the same way as the obligation to make weekly payments of compensation, but is clearly implied from the text and structure of Pt 6, Div 1 of the CFA Regulations.[7] The parties agreed that the power to terminate payment of medical and like expenses was similarly to be implied.[8]

CFA’s reasons for decision

[7]CFA Regulations, regs 74 (definition of ‘medical and like expenses’), 77(1)(d), 86(1)(b), 86(3)(b), 86A(1), 87, 94.

[8]Transcript, 17 May 2024, 48:16-49:8, 66:5–26.

Determination to accept claim for compensation — 30 October 2018

On 30 October 2018, a compensation advisor at the CFA wrote to Mr Sumner in relation to his claim. After noting the details of the claim, the letter stated:

We value your Volunteer service highly and looking after your wellbeing is imperative to us. For this reason, we provide support and compensation for CFA Volunteers who are injured in the course of their service and our scheme operates similarly to the Victorian WorkCover System.

The letter advised that Mr Sumner’s claim had been accepted for reasonable medical expenses:

We have reviewed all information and are pleased to advise that the CFA accepts liability for reasonable medical expenses for your Post Traumatic Stress Disorder sustained as specified on your claim form and as noted above.

In relation to replacement labour, the letter noted that the CFA was currently paying replacement labour for two days per week, as recommended by Mr Sumner’s psychologist, Ms Hall. In view of Dr Shaikh’s opinion that Mr Sumner was capable of full-time work, the CFA intended to seek further information from Ms Hall and then a supplementary report from Dr Shaikh to determine if he agreed with providing this ongoing support.

The evidence does not include the CFA’s reasons for its subsequent decision to pay for replacement labour. I note that Dr Shaikh was initially of the opinion that there were no restrictions on Mr Sumner’s capacity to work and that he could work seven days per week. In a subsequent report dated 10 April 2020, Dr Shaikh opined that Mr Sumner had capacity to work as a hotel manager for five days a week, but would struggle to work for more than that, as his anxiety and mood disturbances would be a barrier.

Notice of proposed determination to terminate compensation — 11 April 2023

On 11 April 2023, Nicole Fauvelle, the CFA’s General Manager, Health Safety and Wellbeing, wrote to Mr Sumner giving formal notice that the CFA proposed to determine that he is no longer entitled to weekly payments or medical and like expenses on the following grounds:

(a) You do not suffer an injury which entitles you to compensation;
(b) You do not require medical and like expenses because of an injury which entitles you to compensation;
(c) There is no longer an entitlement to weekly payments as you do not suffer any incapacity for work which results from, or is materially contributed to by, a CFA-related injury.

The reasons for this proposed determination were then set out. After briefly noting the history of Mr Sumner’s volunteer service and claim for compensation, the letter made detailed reference to the clinical records of the general practices he attended between 1998 and April 2017. Various references to stress, work pressure, family matters, anxiety, depression, and prescribed medication were noted. It further noted that there was no mention of CFA-related traumas or symptoms attributed to service with the CFA until 2018, after Mr Sumner’s relocation to Queensland.

The letter continued:

12.CFA recently arranged for you to be independently examined by psychiatrist Associate Professor Peter Doherty on 28 February 2023 for the purpose of reviewing your entitlements. In his report dated 17 March 2023, A/Prof Doherty stated:
(a) The clinical records of your general practitioners make it clear work stress was the significant contributor to the stress and depression of 2003.
(b) There is no contemporaneous evidence of any significant persistent psychological reaction to traumatic incidents during your CFA volunteering.
(c) You continued to volunteer for CFA up until 2016, apparently untroubled by various significant events.
(d) You were socially anxious and had a full array of symptoms typical of social anxiety disorder.
(e) In his opinion, the attribution of your anxiousness, avoidance, fear of judgment and trepidation to a psychological reaction to your incidents as a volunteer was mistaken.
(f) Your clinical presentation was not that of delayed expression of PTSD as symptoms were not reported before you attended a psychologist in 2017 and were initially told you had PTSD.
(g) He considered you had a longstanding, constitutional anxiety disorder, which was evident over the years and exacerbated by work issues.
(h) He considered the diagnosis of PTSD was wrong and did not believe you had a delayed onset/expression PTSD.
(i) He did not diagnose a psychiatric condition due to or as a consequence of your experiences as a CFA volunteer.
(j)There was no CFA-related condition interfering with your capacity for work.

13.CFA accepts the opinion of A/Prof Doherty that you do not suffer any psychiatric condition due to your experiences as a CFA volunteer and your current condition is a constitutional anxiety disorder.
14.While CFA acknowledges other doctors have reached different conclusions, CFA prefers A/Prof Doherty’s opinion because:
(a) CFA considers A/Prof Doherty is the only doctor who has thoroughly analysed the clinical records of your previous general practitioners and all other relevant materials, had proper regard to the lack of contemporaneous evidence of trauma symptoms from CFA and considered the alternative diagnosis of a constitutional anxiety disorder.
(b) There is no evidence that your treating psychologist or treating psychiatrist have had access to the complete clinical records of your previous general practitioners or have been advised of your history of work-related and personal stressors over many years.
(c) Psychiatrist Dr Gregor Schutz, who examined you at your solicitors’ request and provided an independent report dated 3 September 2019, did not have access to the clinical records of Cunninghame Arm Medical or Bairnsdale Medical Group and appears to have been under the impression there had been no unrelated stressors, which CFA considers inconsistent with the entries in the clinical records dating back to 2003.
(d) Psychiatrist Dr Chris Grant’s independent report for CFA dated 22 March 2022 makes no reference to the history in the clinical records of Cunninghame Arm Medical and Bairnsdale Medical despite those records being available to him. Dr Grant also reported he was not aware of any pre-existing psychiatric condition unrelated to CFA service. CFA is unable to accept Dr Grant’s opinion regarding the causation of your condition in those circumstances.
(e) Psychiatrist Dr Wasim Shaikh, who initially provided an independent report for CFA dated 23 October 2018, did not at that stage have access to the records of Cunninghame Arm Medical or Bairnsdale Medical Group. While he did have those records by the time of his later report dated 10 April 2020, A/Prof Doherty thoroughly analysed all of the clinical records, reviewed the reports of Dr Shaikh and others and gave a detailed explanation for reaching a different conclusion, which CFA considers persuasive.

15.CFA acknowledges it has previously paid weekly payments /replacement labour and medical and like expenses for your claimed CFA injury and also paid compensation for permanent disability and pain and suffering in respect of that injury based on the previous medical reports of Dr Shaikh and Dr Schutz.
16.CFA’s previous acceptance of your claims was based on the evidence available at the time. While CFA will not revisit past payments, it is entitled to reconsider your current entitlement to compensation in light of further significant evidence it has obtained, including the report of A/Prof Doherty and the clinical records of Cunninghame Arm Medical Centre and Bairnsdale Medical Group, which were not available at the time your initial claim for compensation was accepted.

After referring to relevant provisions in the CFA Regulations and WIRC Act, the letter repeated the proposed determination that Mr Sumner was no longer entitled to compensation. It stated that the CFA was willing to consider any further evidence, information, or submissions he wished to provide, and set a deadline for the provision of any further material.

Determination to terminate compensation — 4 September 2023

On 4 September 2023, Ms Fauvelle wrote again to Mr Sumner, giving formal notice that the CFA had determined that he was no longer entitled to weekly payments or medical and like expenses, primarily on the basis that he did not suffer an injury which entitled him to compensation. Ms Fauvelle set out the reasons for the CFA’s determination, commencing with a reference to her letter of 11 April 2023 and summaries of the further submissions and information provided by Mr Sumner, including the report of Dr Serry and the letter from Dr Jenkins.

The letter then referred to a supplementary report obtained from Associate Professor Doherty, providing his comments on the further information provided. It summarised Associate Professor Doherty’s supplementary report of 30 July 2023:

(a) His previous opinion had not changed.
(b) He disagreed with the opinions of Dr Schutz and Dr Shaikh, noting there is no such condition as delayed onset PTSD.
(c) The concept of delayed expression of PTSD occurs where the symptoms do not meet the full criteria for at least six months, but there is no condition resulting in PTSD symptoms coming forth years after the traumatic event.
(d) In your case, typical symptoms of PTSD were not present up to August 2018. What was present was depression and anxiety, which was well-documented in your general practitioners’ notes.
(e) When you ceased volunteering in October 2016, you were enjoying your work as a second lieutenant. You ceased volunteering due to your desire to change your lifestyle by relocating and undertaking different work in management and hospitality.
(f) Before October 2016, there was no clinically significant distress or impairment in social, occupational or other areas of functioning as required for a diagnosis of PTSD in DSM-5.
(g) Dr Jenkins’ comment that all PTSD criteria were met was not correct and was not supported by the contemporaneous clinical records when you were volunteering.
(h) The fact you had detailed the traumatic incidents in your CFA service reflected your obsessionality, not symptoms of PTSD such as avoidance or re-experiencing.
(i) Your attendance at distressing, traumatic incidents was not in itself sufficient to warrant the diagnosis of PTSD.
(j) The hallmark symptoms of PTSD, such as avoidance, heightened threat and re-experiencing in totality were not present. No diagnosis of PTSD could have been made on the documented history up until August 2016 on the symptoms you reported.

The CFA’s reasons for preferring Associate Professor Doherty’s opinion to those of Dr Jenkins and Dr Serry followed:

12. CFA considers Dr Jenkins’ opinion regarding the causation of your condition carries limited weight given there is no evidence he had access to and considered the complete clinical records of your previous general practitioners detailing your history of work-related and personal stressors over many years.
13. In addition, while Dr Serry had access to the treating records, CFA considers his opinion that you did not appear to have had any unrelated mental health issues cannot be reconciled with the records, and his report does not adequately address or explain the lack of objective evidence of symptoms of PTSD relating to your CFA service for many years after the claimed incidents.
14. CFA does not accept your condition was incorrectly diagnosed in 2003 due to your treaters’ lack of knowledge of PTSD, which CFA considers to be speculation. CFA prefers A/Prof Doherty’s opinion you did not suffer symptoms of PTSD during your CFA service, which CFA considers more consistent with the objective and contemporaneous medical evidence.
15. Given the above, CFA is unable to accept the opinion of Dr Serry regarding the nature and causation of your current condition, which CFA considers overlooks and fails to adequately address the lack of objective evidence of PTSD symptoms relating to your CFA service for many years, the significant evidence of non-CFA related factors primarily relating to work pressure/stress and the possible alternative diagnosis of your condition given those considerations.
16. CFA continues to prefer the opinion of A/Prof Doherty, who CFA maintains is the only doctor who has had proper regard to the lack of objective evidence of trauma symptoms from your CFA service and adequately considered the alternative diagnosis of a constitutional anxiety disorder.
17. While CFA again acknowledges its previous payments of compensation in the form of weekly payments/replacement labour, medical and like expenses and permanent disability compensation based on the medical evidence available at the time, CFA has reviewed your current entitlement having regard to the further significant evidence that has come to hand since your claim for compensation was initially accepted, including the reports of A/Prof Doherty and the records of Cunningham Arm Medical Centre and Bairnsdale Medical Group.

On that basis, the CFA maintained that Mr Sumner did not suffer from any injury that entitled him to compensation. After referring to regs 75, 83, and 92 of the CFA Regulations, and ss 39, 160, and 224 of the WIRC Act, the letter again advised that the CFA had determined to terminate Mr Sumner’s entitlements to compensation on the basis that he did not suffer a compensable injury, with effect from 2 October 2023.

Post-traumatic stress disorder

There were numerous psychiatric reports in evidence, many of which referred to the diagnostic criteria for PTSD in ‘DSM-5’, the shorthand reference to the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. The diagnostic criteria for PTSD in adults include a history of exposure to a traumatic stressor, and symptoms from each of four symptom clusters — intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity — that persist for more than one month, cause significant distress or functional impairment, and are not due to other causes.

Dr Schutz’s report annexed the DSM-5 criteria for PTSD in full, as follows:

Criterion A: stressor
The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (1 required)
1. Direct exposure.
2. Witnessing, in person.
3. Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental.
4. Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect nonprofessional exposure through electronic media, television, movies, or pictures.

Criterion B: intrusion symptoms
The traumatic event is persistently re-experienced in the following way(s): (1 required)
1. Recurrent, involuntary, and intrusive memories. Note: Children older than 6 may express this symptom in repetitive play.
2. Traumatic nightmares. Note: Children may have frightening dreams without content related to the trauma(s).
3. Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. Note: Children may reenact the event in play.
4. Intense or prolonged distress after exposure to traumatic reminders.
5. Marked physiologic reactivity after exposure to trauma-related stimuli.

Criterion C: avoidance
Persistent effortful avoidance of distressing trauma-related stimuli after the event: (1 required)
1. Trauma-related thoughts or feelings.
2. Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations).

Criterion D: negative alterations in cognitions and mood
Negative alterations in cognitions and mood that began or worsened after the traumatic event: (2 required)
1. Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol or drugs).
2. Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., “I am bad,” “The world is completely dangerous.”).
3. Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences.
4. Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt or shame).
5. Markedly diminished interest in (pre-traumatic) significant activities.
6. Feeling alienated from others (e.g., detachment or estrangement).
7. Constricted affect: persistent inability to experience positive emotions.

Criterion E: alterations in arousal and reactivity
Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (2 required)
1. Irritable or aggressive behavior.
2. Self-destructive or reckless behavior.
3. Hypervigilance.
4. Exaggerated startle response.
5. Problems in concentration.
6. Sleep disturbance.

Criterion F: duration
Persistence of symptoms (in Criteria B, C, D and E) for more than one month.
Criterion G: functional significance
Significant symptom-related distress or functional impairment (e.g., social, occupational).
Criterion H: attribution
Disturbance is not due to medication, substance use, or other illness.
Specify if: With dissociative symptoms.
In addition to meeting criteria for diagnosis, an individual experiences high levels of either of the following in reaction to trauma-related stimuli:
1. Depersonalization: experience of being an outside observer of or detached from oneself (e.g., feeling as if “this is not happening to me” or one were in a dream).
2. Derealization: experience of unreality, distance, or distortion (e.g., “things are not real”).

Specify if: With delayed expression.
Full diagnosis is not met until at least 6 months after the trauma(s), although onset of symptoms may occur immediately.

These are diagnostic criteria to be applied by appropriately qualified and experienced health practitioners, not legal criteria to be applied by judges. I set them out here because of their relevance to the grounds of review in this proceeding.

Grounds of review

Mr Sumner’s originating motion identifies four grounds of review of the CFA’s determination to terminate his entitlements to compensation:

(a) Ground 1 is that the CFA fell into jurisdictional error by forming a decision in a manner that was legally unreasonable and making a legally unreasonable decision, by accepting Associate Professor Doherty’s opinion over the opinions of four other psychiatrists and accepting his premise that there is no such condition as delayed onset PTSD;

(b) Ground 2 is that the CFA fell into jurisdictional error by failing to consider mandatory relevant considerations, in particular by failing to give proper and genuine consideration to Mr Sumner’s current trauma symptoms, their cause, and medical consensus that the condition of delayed onset PTSD exists;

(c) Ground 3 is that the CFA fell into jurisdictional error by considering an irrelevant consideration, being Associate Professor Doherty’s opinion that it is not possible to suffer delayed onset PTSD;

(d) Ground 4 is that the CFA made a decision that was not open to an administrator of a compensation scheme acting reasonably and fairly in consideration of the claim.

I will consider these grounds under the following headings and in the following order:

(a) Did the CFA have to act fairly and reasonably in considering Mr Sumner’s claim?

(b) Was the CFA’s decision to terminate Mr Sumner’s entitlements to compensation legally unreasonable?

(c) Did the CFA fail to have regard to matters that it had to consider?

(d) Did the CFA consider irrelevant matters?

Did the CFA have to act fairly and reasonably in considering Mr Sumner’s claim?

Mr Sumner’s submissions

Mr Sumner said that legal reasonableness is typically a condition of the lawful exercise of a statutory power, based on the presumption that Parliament intended the decision-maker to act rationally, and not capriciously or illogically. He submitted that the requirements of legal reasonableness depend in large part on the particular statutory context.[9] He emphasised that ‘not every rational decision is reasonable’, and said that reasonableness also involves impartiality and ‘a certain continuity and consistency in making decisions’.[10]
[9]Referring to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [26] (French CJ), [68] (Hayne, Kiefel, and Bell JJ) (Li); Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, [2]–[3], [9] (Allsop CJ) (Stretton); Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, [63].
[10]Quoting Li, [25], [30] (French CJ).

Mr Sumner also referred to authorities to the effect that remedial legislation is to be construed beneficially.[11] He submitted that, as the administrator of a beneficial compensation scheme, the CFA was obliged to exercise its decision-making powers fairly and justly, giving fair and genuine consideration to all of the available evidence. He said that, in contrast with workers’ compensation and transport accident schemes, there is no merits review of a decision of the CFA on a claim for compensation. Judicial review is the only avenue available to an aggrieved member. Mr Sumner argued that this places a heavy burden on the CFA to ensure that the interests of the member are fairly and judiciously considered.
[11]Referring to Bull v Attorney-General (NSW) (1913) 17 CLR 370, 384; State Trustees v Transport Accident Commission [2002] VSC 428, [25]; Marsh v Transport Accident Commission [2020] VSC 228, [34].

Mr Sumner pointed out that the CFA does not bring its own expert knowledge to bear in considering a member’s claim for compensation, in contrast with a medical panel appointed to determine a medical question in a workers’ compensation case. For that reason, he said that it is even more incumbent on the CFA to give proper consideration to expert material, to conduct fair investigations, and to exercise reasonableness and fairness in forming and making decisions under the scheme.

In Mr Sumner’s submission, the framework of the scheme requires the CFA to act as an even-handed arbitrator of compensation entitlements under the scheme. He said that the CFA is not permitted to act in a self-interested way to unreasonably limit its liability under the scheme, for example by ignoring evidence it considers to be unfavourable to it. Mr Sumner argued that the CFA is required to conduct a fair review of the medical evidence and engage with the issues raised by that evidence, and is not permitted to ‘cherry pick’ evidence that favours its own interest.[12]
[12]Referring to Colella v Hannover Life Re of Australasia Ltd [2013] VCC 620, [181]–[183] (Colella v Hanover), upheld on appeal in Hannover Life Re of Australasia Ltd v Colella [2014] VSCA 205, [6].

CFA’s submissions

While the CFA accepted that legal reasonableness is an essential element of its decision-making under the volunteer compensation scheme, it emphasised the stringency of that standard.[13] It cautioned against deploying the concept of unreasonableness to achieve merits review, even if the Court disagrees emphatically with the outcome.[14] It noted that the task for the Court is not to assess what it thinks is reasonable, as if in an appeal, but rather to ‘evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful’.[15]
[13]Referring to Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, [11] (Kiefel CJ).
[14]Referring to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [96] (Crennan and Bell JJ); Stretton, [92] (Wigney J).
[15]Quoting Stretton, [12] (Allsop CJ).

The CFA distinguished its position as the administrator of a statutory compensation scheme from that of an insurer considering a claim on a policy, where the insurer is obliged to act fairly and reasonably in considering the claim.[16] The CFA rejected the suggestion that a failure to act fairly and reasonably could be a ground for judicial review of its decision in this case.
[16]Referring to Colella v Hannover, [69].

Consideration

Reasonableness is a condition of the exercise of a statutory power, which is ‘a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute’.[17] That is to say, the statutory context sets the bounds of legal reasonableness and delineates the area of decisional freedom within which a lawful decision may be made.[18]
[17]Li, [90] (Gageler J).
[18]Stretton, [7], [11]–[12] (Allsop CJ), [92] (Wigney J); Eden, [62]–[63], referring to Li, [24], [29] (French CJ), [66]–[67] (Hayne, Kiefel, and Bell JJ), [105] (Gageler J), Stretton, [7], [11] (Allsop CJ), [55], [62] (Griffiths J).

As the CFA submitted, the standard of legal unreasonableness is stringent, and does not permit me to review the merits of the decision, or to substitute my own view of what was reasonable. The task is ‘to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful’.[19]
[19]Stretton, [12] (Allsop CJ).

Here, the CFA’s decision was made under Pt 6, Div 1 of the CFA Regulations, specifically regs 83 and 92. The scope, subject matter, and purpose of Pt 6, Div 1 may be discerned from the CFA Regulations and from the CFA Act, under which the CFA Regulations were made.

As to the scope of the CFA’s powers under Pt 6, Div 1, it is notable that the CFA is the sole administrator of the compensation scheme. Under reg 83, it must enquire into the circumstances of a claim and determine it as soon as possible, giving consideration to the matters set out in the relevant provisions of the AC Act and the WIRC Act.[20] It has power to do all things necessary and expedient to determine the claim.[21] The CFA’s power to terminate weekly payments under reg 92 may be exercised only on the grounds set out in reg 92(a) to (g) — relevantly here, that ‘there is not, or is no longer, an entitlement to weekly payments’ — and in accordance with the procedure required by reg 93. Both powers are governed by reg 75, which provides that where a member suffers a personal injury in the course of, or arising out of, performing service as a member, the member is entitled to compensation.
[20]CFA Regulations, reg 83(1), (2)(b).
[21]CFA Regulations, reg 83(2)(a).

I accept Mr Sumner’s submission that it is relevant to the scope of the CFA’s powers to determine and terminate claims for compensation that it is not an expert decision-maker and must rely on medical opinion; unlike a medical panel, its function is not to form its own opinion on a medical question. It is also relevant that the compensation scheme provides no avenue for merits review of the CFA’s determinations. In my view, these two matters limit the decisional freedom of the CFA in determining a claim for compensation, because it is the only body with power to make a decision on the merits of a claim having regard to all of the available medical evidence. Where the medical evidence conflicts, the CFA is not free to form its own opinion, but must decide which evidence it prefers by a process of reasoning.

As to the purpose and objects of these powers, the evident purpose of Pt 6, Div 1 is to establish a volunteer compensation scheme for the benefit of volunteers who are injured or whose property is damaged in the course of their service.[22] In the absence of the scheme, volunteers who provide fire fighting services in country Victoria would not have access to the no-fault compensation entitlements available to paid staff.[23]
[22]CFA Regulations, reg 1(f).
[23]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 3 (definition of ‘worker’).

A secondary purpose of Pt 6, Div 1 is to assist the CFA to achieve its objective of supporting ‘the effective and sustainable recruitment, development and retention of volunteer officers and members’ in order to provide a fully volunteer fire fighting service.[24] The volunteer compensation scheme is an organisational arrangement designed to ‘encourage, maintain and strengthen the capacity’ of volunteers to provide the CFA’s services.[25] It also supports the objectives relating to interaction between fire services, in s 2 of the CFA Act, including recognising and valuing the contribution of volunteer brigades, recognising that volunteer firefighters are vital to delivering safe and sustainable fire services, and maintaining the abilities of fire services agencies to respond to critical incidents.[26] All of these objectives would be more difficult to achieve if volunteers did not have the comfort of knowing that, if they are injured in the course of their service, they are entitled to compensation including their medical and like expenses.
[24]CFA Act, ss 6B(c), 6F: see [14]–[15] above.
[25]CFA Act, s 6I.
[26]CFA Act, s 2(1)(c), (d), (e).

Beyond that, I do not accept Mr Sumner’s submission that the CFA was also obliged to act fairly in making the decision, or that the decision can be reviewed on that basis. The standard required of an insurer — to act reasonably and fairly in consideration of a claim — cannot be transposed to judicial review of the exercise of a statutory power. The relevant standard is legal reasonableness, having regard to the scope, purpose, and objects of the power. To also apply a standard of fairness may distract from the stringency of that standard.

Was the CFA’s decision legally unreasonable?

Mr Sumner particularised his first ground of review as follows:

i. It was legally unreasonable for the CFA to have accepted Associate Professor Doherty’s opinion regarding the nature and cause of the Plaintiff’s psychiatric condition in preference to all other opinions, in circumstances where four other independent psychiatric experts and the Plaintiff’s treating psychiatrist otherwise held the same opinion regarding the cause of Plaintiff’s psychiatric condition.
ii. It was legally unreasonable for the CFA to rely on Associate Professor Doherty’s opinion which is based on the premise “[t]here is no such diagnosable and recognised clinical condition as delayed onset PTSD” in circumstances where the premise:
a. failed to consider the individual circumstances and present symptoms of the Plaintiff;
b. was contrary to all other expert medico-legal and treater psychiatric evidence before the CFA.

iii. It was not reasonable for the CFA to have rejected the opinion of Dr Shaikh and Dr Grant on the Plaintiff’s psychiatric condition in circumstances where both independent experts were briefed by it and apprised of the Plaintiff’s clinical records.
iv. It was legally unreasonable for the CFA not to have sought the opinion of, at least, the other independent psychiatric experts instructed by it, namely Dr Shaikh and Dr Grant, regarding the underlying premise of Associate Professor Doherty’s report prior to making its decision.
v. It was not reasonable for the CFA to have accepted Associate Professor Doherty’s opinion over those of Dr Serry and Dr Jenkins in circumstances where Dr Serry and Dr Jenkins consider and comment on the Plaintiff’s current trauma symptoms.

Mr Sumner’s submissions

Mr Sumner put his argument that the CFA’s decision to terminate his entitlements to compensation was legally unreasonable in two different ways.

First, he said that it was unreasonable for the CFA to ‘cherry pick’ the medical evidence by selecting a single opinion adverse to Mr Sumner upon which to base its decision, from the wealth of available medical opinion that was favourable to him. Associate Professor Doherty was the only medical expert to opine that Mr Sumner was not suffering from PTSD. Otherwise, the medical opinion available to the CFA was unanimous that Mr Sumner had suffered and was suffering from PTSD related to his service with the CFA. Mr Sumner placed particular emphasis on the fact that Dr Shaikh and Dr Grant had been engaged by the CFA to provide their independent expert opinions, and that the CFA had previously accepted their opinions. He said that the CFA had provided no substantive explanation of its rejection of their opinions in favour of Associate Professor Doherty’s ‘outlier’ opinion, when both Dr Shaikh and Dr Grant were apprised of Mr Sumner’s clinical records.

Second, Mr Sumner submitted that it was unreasonable for the CFA to accept, without more, Associate Professor Doherty’s premise that there is ‘no such diagnosable and recognised clinical condition as delayed onset PTSD’. He said that the CFA had made no apparent attempt to reconcile that premise with the balance of the expert evidence, including that of his treating psychiatrist. Mr Sumner argued that each of Dr Jenkins, Ms Hall, Dr Shaikh, Dr Schutz, Dr Grant, and Dr Serry had diagnosed him with PTSD in the full knowledge that the traumatic events had occurred many years beforehand. He said that the CFA’s acceptance of Associate Professor Doherty’s premise, without first reconciling it with all of the other medical evidence, or even asking its own independent experts for their view, lacked plausible justification.

In this regard, Mr Sumner sought to rely on a further report of Dr Serry dated 28 November 2023, providing Dr Serry’s opinion on Associate Professor Doherty’s statement that there was no such condition as delayed onset PTSD. Mr Sumner argued that Dr Serry’s further report was admissible because it was relevant to his legal unreasonableness ground of review.[27] He said that the report spoke directly to medical knowledge and principles regarding the nature of PTSD, including where symptoms have a significantly delayed onset, and so was relevant to the legal reasonableness of the CFA’s acceptance of Associate Professor Doherty’s opinion and its underlying premise.
[27]Referring to Ambrose v Eric Jones Stairbuilding Group Pty Ltd [2023] VSC 427, [62]; City of Melbourne v Neppessen [2019] VSC 84, [84]–[87] (Neppessen); Mackenzie v Head, Transport for Victoria [2021] VSCA 100, [153] (Mackenzie).

In his further report, Dr Serry set out the DSM-5 diagnostic criteria for PTSD, referred to a 2016 lecture given by Australian psychiatrist Professor Alexander McFarlane, and referred to his own experience in clinical practice since 1987. Dr Serry opined that the condition of PTSD ‘is by no means a one size fits all condition’ and cautioned that the DSM-5 diagnostic criteria should not be used ‘in cookbook/recipe fashion’. Dr Serry continued:

In my own clinical experience, the expression of PTSD has varied widely with certain patients becoming symptomatic very soon after exposure to a traumatic event and others not beginning to express symptoms which would allow the diagnosis of the condition until some time later, often in response to an event which acts as a trigger for the expression of symptoms which had not until the time of exposure to the trigger been clinically apparent.
It is in my opinion possible for trauma symptoms to emerge or come forth some years after exposure to an initial traumatic event. There is a natural tendency for many individuals who have been exposed to trauma to attempt to “just get on with life” and to attempt to suppress the expression of any symptoms of traumatisation.
This pattern may well continue however it is my clinical opinion that vulnerability to subsequent expression of traumatisation symptoms remains and not infrequently, symptoms are expressed following exposure to a trigger or triggers sometime after the experience of the initial trauma.
Further still I am of the opinion that it is clinically more appropriate to utilise a non binary/syndromal approach which reflects clinical course whilst still adhering to diagnostic criteria rather than to use a categorical approach towards diagnosis.

In relation to whether Associate Professor Doherty’s opinion regarding the onset of PTSD was consistent with peer professional practice, Dr Serry said that in his opinion ‘the condition of PTSD presents in a variety of ways, there not necessarily being a typical form of presentation’. He referred to the opinion of Professor McFarlane that most patients who end up with PTSD are not acutely unwell in the immediate aftermath, and that a gradual build up is typical.

Mr Sumner sought to rely on Dr Serry’s further report to demonstrate that there is no medical consensus that PTSD cannot exist where recorded symptoms arise years after exposure to traumatic events. He said that, while the CFA was not expected to resolve that difference in medical opinion, the premise on which Associate Professor Doherty’s opinion was based was an integral matter about which it ought to at least have made further inquiries.

Mr Sumner further submitted that, if the CFA had made further inquiries about this matter of central importance, there was a realistic possibility that it might have reasoned differently or made a different determination.[28] He said that the failure to examine Associate Professor Doherty’s premise denying the existence of delayed onset PTSD was therefore material to its decision.
[28]Referring to MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, [2]–[3] (Kiefel CJ, Gageler, Keane and Gleeson JJ); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, Beech-Jones J agreeing at [38]) (LPDT).

CFA’s submissions

The CFA denied the suggestion that it had cherry-picked the medical evidence. It said that it had clearly explained in its decision letters why it preferred the opinion of Associate Professor Doherty to the other medical opinions obtained in respect of Mr Sumner’s condition. The CFA denied preferring the opinion of Associate Professor Doherty simply because it was favourable to it. Rather, it said, Associate Professor Doherty was the only doctor who had thoroughly analysed Mr Sumner’s clinical records and properly considered the lack of contemporaneous evidence of trauma symptoms. It referred at length to the explanations given in its letters of 11 April 2023 and 4 September 2023,[29] which it said provided evident and intelligible justification for its preference for Associate Professor Doherty’s opinion over the other medical opinions. The CFA contrasted its consideration of the competing medical opinions with the conduct of the insurer in Colella.[30] It said that it had provided explanations as to why it did not accept the opinions of Dr Shaikh and Dr Grant, based on what they had made of the clinical records that were provided to them.
[29]Set out at [33]–[40] above.
[30]See [49] above.

The CFA appeared to accept that Associate Professor Doherty’s opinion was premised on a view that there is ‘no such condition as not having PTSD symptoms and then having them come forth years after the traumatic event’. It said that he was entitled to interpret the DSM-5 diagnostic criteria in that way, and that it was entitled to accept the opinion of an eminently qualified psychiatrist as to that interpretation.

The CFA objected to the receipt of Dr Serry’s further report, which post-dated its determination. It said the report did not come within any of the limited exceptions to the general rule in judicial review proceedings, and that the evidence is confined to the material that was before the decision-maker.[31] Specifically, it said that Dr Serry’s further report did not demonstrate that its decision lacked an evident and intelligible foundation.[32] The CFA emphasised that Mr Sumner had opportunities to provide it with further psychiatric opinion about delayed onset PTSD before it made its decision, but had not done so.
[31]Referring to Mackenzie, [153].
[32]Referring to Mackenzie, [153](9), [171]–[176].

Even if Dr Serry’s further report were to be admitted, the CFA submitted that it did not assist Mr Sumner’s case. It said that there was no disagreement between Associate Professor Doherty and Dr Serry that a person might not have the full range of symptoms that would allow a diagnosis of PTSD until some time after a traumatic event. It further argued that Dr Serry’s further report said nothing about whether it is possible to diagnose PTSD in a person who has had no traumatic symptoms whatsoever for many years after the event.

The CFA accepted that no question of materiality would arise if its determination was found to be legally unreasonable.[33]
[33]Referring to LPDT, [6].

Consideration

It is a striking feature of the CFA’s decision to terminate Mr Sumner’s entitlement to compensation that it involved a complete reversal of its initial determination. In October 2018, based on the medical opinion of Dr Shaikh, the CFA accepted liability to pay compensation for Mr Sumner’s PTSD sustained as specified on his claim form. Mr Sumner’s claim form and the evidence he submitted in support of his claim concerned his existing psychological symptoms and their relationship to a number of traumatic events he experienced during his service with the CFA. He made no claim for compensation for any symptoms he experienced during his time as a volunteer.

The CFA’s initial determination was supported by Dr Shaikh and by Mr Sumner’s treating practitioners Dr Jenkins and Ms Hall. Subsequent reports of Dr Shaikh, Dr Schutz, and Dr Grant confirmed the diagnosis of PTSD. For almost five years, the CFA paid compensation to Mr Sumner in respect of his accepted diagnosis of PTSD, displaying ‘a certain continuity and consistency in making decisions’.[34]
[34]Li, [25], [30] (French CJ), quoting D.J. Galligan, Discretionary Powers: A Legal Study of Official Discretion, (Clarendon Press, 1986), 140.

That continuity and consistency ended in 2023, when the CFA decided to terminate Mr Sumner’s entitlement to compensation. The decision was not reached because Mr Sumner had recovered from his previously accepted condition. Rather, it was made on the basis that he had never suffered from PTSD, and had never been entitled to compensation. This sharp change of position was based solely on Associate Professor Doherty’s opinion, which was contrary to that of all of the psychiatrists whose opinions the CFA had previously been prepared to accept.

The CFA’s letters to Mr Sumner of 11 April 2023 and 4 September 2023 explained that it preferred Associate Professor Doherty’s opinion to all of the other opinions available to it because he was ‘the only doctor who has had proper regard to the lack of objective evidence of trauma symptoms’ from Mr Sumner’s CFA service. It set out in detail the consideration given by the various doctors to Mr Sumner’s medical history and clinical records, which it compared unfavourably with Associate Professor Doherty’s consideration of those matters. It placed particular reliance on the attribution of psychological symptoms suffered during Mr Sumner’s CFA service to work stress and unresolved grief, rather than to the traumatic events that he experienced in the course of that service.

With respect, this explanation entirely missed the point of difference between Associate Professor Doherty and all of the other experts. Associate Professor Doherty’s departure from the previous opinions was not due to a different or more thorough assessment of Mr Sumner’s medical history and clinical records. It was because of his asserted premise that there is no such condition as delayed onset (or delayed expression) PTSD, where traumatisation symptoms are not present until years after the traumatising incident. This premise was explained most clearly in Associate Professor Doherty’s second report of 30 July 2023:

The reports by psychiatrists Dr Schutz and Dr Shaikh opined that there had been a delayed onset of PTSD.
There is no such diagnosable and recognised clinical condition as delayed onset PTSD. There is DSM-5, the concept of delayed expression of PTSD where the symptoms typical of PTSD do not meet the full criteria for at least six months. That is, there are symptoms of PTSD following one or more traumatic events, but the array of symptoms and behaviours necessary for the diagnosis of PTSD are not met for at least six months.
There is no such condition as not having PTSD symptoms and then having them come forth years after the traumatic event.
In this case, up to August 2018, typical symptoms of PTSD were not present.

None of the earlier opinions on which the CFA had relied shared this premise. The other experts had not overlooked the fact that Mr Sumner did not show symptoms of PTSD before 2017; the date of onset of his symptoms was just not relevant to their diagnosis.

The CFA’s reasons for decision indicate that it did not recognise the real reason why Associate Professor Doherty’s opinion differed from all the other experts. The difference of opinion had nothing to do with their respective assessments of Mr Sumner’s clinical records. Rather, the difference rested on Associate Professor Doherty’s premise that ‘[t]here is no such condition as not having PTSD symptoms and then having them come forth years after the traumatic event’. It was this premise that led Associate Professor Doherty to look for evidence of trauma symptoms during Mr Sumner’s service with the CFA, and informed his diagnosis of anxiety disorder rather than PTSD.

Had the CFA recognised what underpinned the difference of opinion, it could have attempted to reconcile the difference. It did neither, with the result that there is no intelligible foundation in the CFA’s reasons for preferring Associate Professor Doherty’s opinion and its underlying premise. In circumstances where the CFA was contemplating reversing its long-held acceptance that Mr Sumner suffered from PTSD related to his volunteer service, it was legally unreasonable for it to accept Associate Professor Doherty’s opinion in preference to all of the other expert evidence, without first attempting to reconcile it with that evidence.

In Associate Professor Doherty’s reports, his premise was supported only by reference to the DSM-5 diagnostic criteria for PTSD. Those criteria are set out in full at [42] above, and do not appear to support the premise. While DSM-5 expressly contemplates a diagnosis of PTSD with delayed expression, it does not state that some symptoms must be experienced within a certain period after the traumatic event. Beyond referring to the DSM-5 criteria, Associate Professor Doherty did not explain the premise by reference to published literature or a body of psychiatric opinion.

In my view, Dr Serry’s further report is admissible, because it is relevant to Mr Sumner’s contention that there was no intelligible foundation for the CFA’s acceptance of the underlying premise of Associate Professor Doherty’s opinion.[35] It demonstrates that Associate Professor Doherty’s premise does not represent a general consensus among psychiatrists, and supports the contrary view that there is no typical form of presentation for PTSD and that trauma symptoms may emerge some years after exposure to an initial traumatic event. In other words, it is evidence that there is a real question as to whether Associate Professor Doherty’s premise represents accepted psychiatric opinion. The CFA simply did not engage with this question.
[35]Neppessen, [84]–[87]; Mackenzie, [153](9).

I have reached the conclusion that the CFA’s determination to terminate Mr Sumner’s entitlement to compensation was legally unreasonable having regard to the scope, purpose, and objects of the CFA Act and CFA Regulations, specifically Pt 6, Div 1 of the CFA Regulations.[36] The compensation scheme is established for the benefit of volunteers, and serves the broader purpose of supporting the recruitment and retention of the volunteers who are essential for delivery of fire services in country Victoria. That context highlights the unreasonableness of the CFA’s decision. As the sole arbiter of the merits of Mr Sumner’s claim, it changed its mind about his entitlement to compensation on the basis of a single medical opinion that was contrary to all of the opinions it had previously accepted. It did so without really engaging with the reason why Associate Professor Doherty held a different opinion, and without considering whether it should accept the underlying premise of his opinion.
[36]See [56]–[58] above.

Another dimension of the unreasonableness of the CFA’s decision arises from the fact that the CFA administers the compensation scheme for the benefit of all volunteers, and to support the viability of the CFA as a volunteer fire service. It is a significant matter for the administration of the scheme for the CFA to deny liability for compensation for delayed onset PTSD, on a basis that may not reflect the general consensus of psychiatric opinion. If the CFA takes a consistent approach in other similar cases, its unquestioning acceptance of Associate Professor Doherty’s opinion that there is no diagnosable and recognised condition of delayed onset PTSD may have consequences for the ongoing capacity of the CFA to provide fire services in country Victoria.

Mr Sumner’s first ground of review is made out.

Did the CFA fail to have regard to matters that it had to consider?

Mr Sumner particularised his second ground of review as follows:

i. The CFA failed to give proper and genuine consideration to the opinion of the Plaintiff’s treating psychiatrist, Dr Jenkins, and in particular, to Dr Jenkins’ report of 8 June 2023 regarding the cause of the Plaintiff’s condition and his current trauma symptoms.
ii. In reaching its decision, the CFA failed to give proper and genuine consideration to the evidence of the Plaintiff’s current trauma symptoms.
iii. In reaching its decision based on Associate Professor Doherty’s opinion, the CFA failed to consider a mandatory relevant consideration, being that the Plaintiff suffers from delayed onset PTSD.
iv. In accepting the premise and Associate Professor Doherty’s opinion, the CFA failed to consider medical consensus about the existence of the condition of delayed onset PTSD.

Mr Sumner’s submissions

Relying on the well-known passage from Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[37] Mr Sumner said that if the matters a decision-maker must consider are not expressly stated in the statute, those matters ‘must be determined by implication from the subject matter, scope and purpose of the Act’.[38] He submitted that taking into account a mandatory consideration required the decision-maker to engage in an ‘active intellectual process’ in which each required matter receives genuine consideration.[39] A decision-maker’s failure to include reference to a matter in its statement of reasons may justify an inference that the matter was not taken into consideration.[40]
[37](1986) 162 CLR 24 (Peko-Wallsend).
[38]Quoting Peko-Wallsend, 39–40 (Mason J).
[39]Referring to Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99, [44] (Bat Advocacy); CD v Central Gippsland Health Service [2022] VSC 462, [447].
[40]Referring to Bat Advocacy, [46]; La’Brooy v Jensen [2021] VSC 89, [70]–[71], [73].

Mr Sumner argued that the CFA’s failure to notice and engage with the real reason why Associate Professor Doherty’s opinion was contrary to all the other medical opinion was a failure to have regard to mandatory considerations, in addition to being legally unreasonable. His arguments in this respect are set out at [61] to [68] above.

In addition, Mr Sumner submitted that the CFA had failed to consider his current trauma symptoms, and the opinions of Dr Jenkins, his treating psychiatrist, and Dr Serry that he was suffering from PTSD related to traumatic incidents during his volunteer service with the CFA. He pointed to a number of trauma symptoms recorded in Associate Professor Doherty’s first report, including nightmares about the relevant events and panic episodes triggered by phones, words, sirens, and the sound of a rescue chopper.[41] Mr Sumner noted that Associate Professor Doherty had attributed all of these symptoms to a constitutional anxiety disorder, in contrast to the diagnoses of PTSD made by all of the other psychiatrists. He argued that this was because Associate Professor Doherty had, wrongly, closed his mind to a diagnosis of PTSD because he considered it could not be diagnosed where trauma symptoms were not present until years after the traumatic events.
[41]Referring to the report of Associate Professor Doherty dated 17 March 2023, [36], [40]–[41], [45], [47]–[48], [50]–[51], [78].

CFA’s submissions

The CFA did not take issue with Mr Sumner’s statement of the relevant legal principles, but emphasised that the Court should not stray into merits review. It submitted that it was apparent from its decision letters that it had taken into account anything that was relevant, and that there was no lack of active intellectual engagement with the materials. It relied on its submissions concerning legal unreasonableness, which are set out at [69] to [73] above.

Consideration

The CFA’s failure to notice and engage with the premise that underpinned Associate Professor Doherty’s opinion was a failure to have regard to a mandatory consideration. In the circumstances of this case, including the statutory context, it was essential to the proper exercise of the CFA’s power to determine the claim that it understand and consider the real reason why Associate Professor Doherty’s opinion differed so markedly from all of the other medical opinions that the CFA had previously accepted. As discussed, it did not do so. The CFA’s reason for rejecting the opinions of the other doctors and preferring Associate Professor Doherty’s opinion, based on his assessment of Mr Sumner’s medical history and clinical records, was beside the point.

I consider that there is a realistic possibility that, if the CFA had engaged with the premise of Associate Professor Doherty’s opinion, and given genuine consideration to whether it should be accepted, it might have reached a different decision.

I do not accept Mr Sumner’s submission that the CFA failed to have regard to his current trauma symptoms. These symptoms were clearly recorded in Associate Professor Doherty’s first report, but his opinion was that they were symptoms of a longstanding constitutional anxiety disorder, and not PTSD. The CFA accepted that diagnosis. The difference in opinion between the psychiatrists was not due to any significant difference in the symptoms they recorded; it arose from their respective approaches to diagnosing delayed onset PTSD.

Mr Sumner’s second ground is made out in relation to the CFA’s failure to notice and engage with the real reason why Associate Professor Doherty’s opinion differed from the other medical opinion. He has not established that the CFA failed to consider his current trauma symptoms.

Did the CFA consider irrelevant matters?

I can deal more briefly with Mr Sumner’s third ground — that the CFA had regard to an irrelevant consideration, being Associate Professor Doherty’s opinion that it is not possible to suffer delayed onset PTSD. I did not understand Mr Sumner to submit that the CFA was not permitted to have regard to the opinion of Associate Professor Doherty, who he accepted was well qualified to given an opinion about psychiatric diagnoses. His argument was that Associate Professor Doherty’s opinion that it is not possible to suffer delayed onset PTSD, and that therefore Mr Sumner could not be suffering from the condition, was contrary to medical knowledge and understanding, and for that reason was an irrelevant consideration.

It is not for me, in a judicial review proceeding, to decide whether Associate Professor Doherty’s opinion about delayed onset PTSD was contrary to medical knowledge or understanding. It was certainly out of step with the other medical opinions concerning Mr Sumner, and the CFA failed to grapple with the real reason for the difference of opinion. The vice was not in having regard to Associate Professor Doherty’s opinion. Rather, it was in accepting it, and its underlying premise, without first attempting to reconcile it with all of the other medical opinions available to it.

Mr Sumner’s third ground is not made out.

Disposition

Mr Sumner has established that the CFA’s decision to terminate his entitlement to compensation was legally unreasonable, and was made without regard to a matter that the CFA had to consider. As a result, the CFA’s decision was affected by jurisdictional error. Mr Sumner seeks an order in the nature of certiorari, setting aside the decision.

The CFA submitted that I should refuse to set aside the decision as a matter of discretion, because Mr Sumner did not provide Dr Serry’s further report before the decision was made, despite ample opportunity to do so. It said that it would be unjust, and would undermine the finality of decision-making, if its decision were to be set aside on the basis of extra evidence that was, without explanation, provided late.

I do not accept that submission. Dr Serry’s further report merely confirmed the legal unreasonableness of the CFA’s decision in this case, which was readily apparent from the material considered by the CFA. I would have reached the same decision without the benefit of Dr Serry’s further report.

I will make an order in the nature of certiorari, setting aside the determination of the CFA made on 4 September 2023 to terminate Mr Sumner’s entitlement to compensation under the CFA Regulations. I will hear the parties on the question of costs.

[2024] VSC 403

10 July 2024