Yaghoub v Victims Compensation Fund Corporation
[2000] NSWDC 16
•2 August 2001
New South Wales
District Court
CITATION: Yaghoub v Victims Compensation Fund Corporation [2000] NSWDC 16 TRIBUNAL: Victims Compensation Tribunal PARTIES: Robin Yaghoub
Victims Compensation Fund CorporationFILE NUMBER(S): 4153 of 2000 CORAM: Nash A/DCJ CATCHWORDS: shock - further evidence or material - corroborative evidence LEGISLATION CITED: Victims Compensation Act 1996 CASES CITED: DATES OF HEARING: 2/8/01 DATE OF JUDGMENT: 2 August 2001
JUDGMENT:
- HIS HONOUR: This is an application by the applicant Robin Youkhanna Yaghoub for leave to appeal from and, if granted, to appeal from two decisions of a Magistrate comprising the Victims Compensation Tribunal on appeals from an Assessor’s determinations in its files number R48516 and R48517. The result of the hearings in the tribunal was that compensation under the relevant Victims Compensation Act 1996 (“the Act”) was refused.
At all relevant times the applicant was employed as a console operator at the Mobil Service Station in Horsley Drive, Smithfield.
In respect of file number 48517, at about 4.20am on 19 July 1998, the applicant was the subject of an armed robbery at knifepoint, the sum of about $584 and some cigarettes having been taken by the offender.
In respect of file number 48516, at about 9.15pm on 29 August 1998, that is about six weeks after the first robbery, the applicant was again the subject of an armed robbery, the then offender being armed with an unknown weapon which was covered over, but which the applicant believed to be a gun. On this occasion about $230 was taken.
The applicant was not physically injured in either incident but, not surprisingly, was emotionally disturbed thereby.
Having considered all the material in the respective files I do not have to go into any detail in respect of the first incident, although it is clearly relevant background material to the effect on the applicant of the second incident. It is quite obvious that he was very stoic between the incidents and, if the second had not occurred, would probably have been able to carry on at least almost all of his usual activities. However the second incident then occurred and changed his way of life fairly dramatically.
Although I do not need to find positively this way, I agree with the Assessor’s and the Magistrate’s decisions in respect of file number 48517, there being no evidence on which compensation could have been awarded in respect of the first incident.
Consequently I shall concentrate on the evidence relating to what happened to the applicant following the second incident, being in respect of file number 48516. What is alleged by the applicant is that he suffered the compensable injury of “shock” as defined by clause 5 of schedule one to the act.
So far as is relevant to this case, clause five reads:-
- “The following applies to the compensable injury of shock.
(a) Compensation is payable only if the symptoms and disability persist for more than six weeks.
(b) The injury comprises conditions attributed to post traumatic stress disorder, depression and similar conditions.
(c) The psychological symptoms include anxiety, tension, insomnia, irritability, loss of confidence, agoraphobia and preoccupation with thoughts of self harm or guilt.
(d) Relevant disabilities include impaired work performance (and) significant adverse effects on social relationships”.
It appears from the file that the applicant’s solicitors had submitted in a letter that this applicant’s shock comes within the third of these categories. But, of course, if the Assessor and/or Tribunal concluded that the applicant did suffer shock within the meaning of clause 5 of schedule 1 to the Act, it would then be necessary for a decision to be made as to which of those four categories applied and, as I have said, award compensation accordingly.
The task of those whose duty it is to determine applications under the Act is not easy, particularly with the workload and in respect of those of this nature and others which rely on the results of subjective material such as the usual type of back and neck injuries and shock as well, for instance, as continuing disabilities arising from injuries such as fractures and scarring and the like because it is only in exceptional circumstances that oral evidence is permitted to be given.
In such cases it would be wise for the applicant to adduce evidence on Affidavit or Statutory Declaration at least to the extent of confirming on oath or declaration the symptoms complained of from time to time to doctors and or psychologists are true and setting out the actual symptoms up to the date of hearing. However, under the Evidence Act, statements made to those who have supplied reports are admissible as evidence. Naturally it is also not expected that an applicant would be put to more expense than is absolutely necessary in presenting his or her case.
I have had the benefit of well presented written and oral arguments of counsel and I appreciate their assistance.
While the forms used to bring the matter to this court and the content thereof are not appropriate and should have been different, nevertheless counsel for the respondent has sensibly and appropriately not submitted that the application should fail by reason thereof.
The grounds for the application and appeal, if the application is successful, are these, namely that the learned Magistrate comprising the Tribunal, who heard the appeal from the Assessor, erred in law as follows:-
One, in his finding that the appeals can properly be determined without a hearing. Two, in holding, by his decision, that there was no objective independent evidence provided by the appellant against which to measure these claims, which is subjective and based on the self serving statements of the appellant. In his statement in his decision, “The appellant told Doctor Law, “I have no girlfriend now because of the rough way I talk” ”. Doctor Law reported the appellant telling him he had no girlfriend and he had lost his other friends. Doctor Law concluded,
- “Although he has continued to work initially and quite regularly more recently, he has nevertheless suffered from some degree of psychiatric disability. He has lost his girlfriend, he has become socially withdrawn and he has suffered from a lot of symptoms much of the time in the past many months”.
- “There is no objective independent evidence provided by the appellant against which to measure these claims which are subjective and based on the self serving statements of the appellant. The doctor does not expand on what he describes as some degree of psychiatric disability”.
In the learned Magistrate’s decision on the appeal, the clear impression is given to a fair minded reader thereof that in claims for compensation for shock, there is a requirement for “objective independent evidence against which to measure the claimant’s statements”. Effectively this means that there should be corroboration as that is known to the law. There is no such requirement under the civil common law or the relevant statute and consequently, while corroboration in a civil case of this nature is desirable and frequently provided, it is an error of law for it to be required. It is certainly not required where there is no evidence to the contrary of what is stated by the claimant. If, by referring to the applicant’s statements as “self serving”, it is meant that they should be regarded as statements that thereby could be wrong for that reason, it is wrong. If not all, just about all, material presented in a party’s case is self serving.
Similarly the clear impression is given that, despite the evidence being all one way, nevertheless the tribunal of fact may reject it without giving adequate reasons for so doing. This arises from that part of the decision, reading,
- “In the appeal of Button v The Victims Compensation Corporation Fund (26 February 1999) her Honour Judge English said, “There is no rule of law that states a tribunal must believe the evidence because it is all one way. It can accept all or some or none of it” ”.
I do not know the context of her Honour’s statement, which was quoted, obviously with approval, by the learned Magistrate. As far as it went, there can be no argument relating to this quoted statement. However it does not give carte blanche to the tribunal of fact to reject evidence which is all one way. Such evidence can only be rejected if it is so unbelievable, fantastic or clearly wrong, even if not challenged. In any event her Honour should have added, in respect of such evidence, that it ought only to be rejected if the tribunal of fact has and expresses good reason for so doing. This was not done here.
In my view no good reason appears in the learned Magistrate’s decision for rejecting the statements of the applicant and the opinion of the treating doctor. Nor, apart from what some members of the community may feel about such claims, does there appear to be anything in the reports of the treating doctors, who did not see the applicant merely for medico legal purposes, to give rise to suspicions in respect of the material presented in support of his claim. This is a case in which the applicant sought treatment and advice from his general practitioner shortly after the second incident and, for what must have appeared to that doctor to have been very good reason, he referred the applicant to a specialist psychiatrist for treatment and, between that time and the original hearing of his claim by the Assessor, he was subject to many examinations, counselling and medication at the instruction of that specialist.
In the course of his decision, the learned Magistrate quotes Doctor Shea saying at a judge’s conference on 29 June 1995 something which, with respect to him, that is the learned Magistrate, is quite irrelevant to this case. Firstly because it is not evidence and secondly it refers to “psychological tests” which were not conducted. Unfortunately again a fair minded reader of his decision could conclude that the applicant’s symptoms and Doctor Law’s opinions can be rejected without having and stating a good reason for so doing.
While there was no material from the applicant to indicate that, by reason of his symptoms, he in fact lost time from work and that he finally was dismissed from his employment, there was ample evidence which could support a finding of impaired work performance and significant (to him) adverse effects on social relationships in the course of the report of the general practitioner Doctor La and the referral to Doctor Law who saw the applicant on at least 15 occasions up to 24 October 2000.
It is not for me to evaluate this material but it is generally consistent as to various aspects including being easily scared, poor sleep, nightmares, screaming in his sleep, being irritable, having headaches, some palpitations, easily jumpy at work, impaired concentration, some intrusive memories, feeling very nervous, inability to socialise with his friends and his girlfriend leaving him toward the end of 1998. Also there were objective findings on examination that he looked frustrated and dejected with little eye contact, having his head bent down.
Ground one, as to the finding that the appeals can be properly determined without a hearing, raises an issue of general importance to applicants for compensation under the Act and for the Tribunal itself. However I see no reason why this is the type of case that should have been the subject of a hearing before the Tribunal. If the applicant’s advisers wanted more material before the Assessor, it could and should have been done by affidavit or statutory declaration of the applicant and/or anyone else. This ground fails.
Ground two raises a matter of importance as to the approach which should be made to the material placed before the tribunal. Errors of law to which I have referred lead me to the conclusion that this ground has been established and none of them comes within section 39(3)(a) of the Act. Any or all of them could have altered the decision of the Tribunal.
Although not necessary to decide, it seems to me that the only reason for allowing additional evidence on an appeal from an Assessor would be not to determine the extent of the injury at the time of the Assessor’s determination, but for the purpose of it being to endeavour to have the classification of the injury for the purpose of the compensation table being altered because of evidence that was only available between the time of the Assessor’s determination and the hearing of the appeal therefrom. This was not the situation here and no valid complaint can be made on the basis that the learned Magistrate refused to have placed before him additional material.
Indeed, having regard to the way in which the applicant’s case was put, that is the applicant was suffering from shock lasting over 28 weeks (but not permanent) I can see no reason why additional evidence should be allowed by the learned Magistrate even now. Although also not necessary to decide, it seems obvious that Doctor Law’s statement referred to in the learned Magistrate’s decision, without deciding its meaning, namely that the applicant suffered from “some degree of psychological disability”, would mean in this case that he was then, that is on 18 October 1999, and had been suffering from not completely disabling but, nevertheless, symptoms of a post traumatic stress disorder.
In the circumstances I make the following orders:- One: Application for leave to appeal from the determination in file number R48517 is refused.
Two: Application for leave to appeal from the determination in file number R48516 is granted.
Three: The appeal from the determination in file number R48516 is allowed and that determination is set aside. Four: I remit the application in file number R48516 to the Victims Compensation Tribunal to be considered and determined according to law.
As the costs of the appeal in this court relate almost exclusively to file number R48516, I order the respondent to pay the costs of the application and appeal in this court.
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