New South Wales District Court CITATION : Saab v Victims Compensation Fund Corporation [2001] NSWDC 6 TRIBUNAL : Victims Compensation Tribunal PARTIES : Ali Saab Victims Compensation Fund Corporation FILE NUMBER(S) : 3879 of 2001 CORAM: Nash A/DCJ CATCHWORDS: disability - s39(3) - Schedule 1(5) - shock LEGISLATION CITED: Victims Compensation Act 1996 CASES CITED: DATES OF HEARING: 20/7/01 DATE OF JUDGMENT: 20 July 2001 LEGAL REPRESENTATIVES: Ms Fraser Mr Burchett JUDGMENT: DCC1822 MTN-I .20/07/01 6 HIS HONOUR: This is an application for leave to appeal by the applicant, Ali Saab, against a decision of the Victims Compensation Tribunal arising out of alleged emotional problems from which he not surprisingly suffered at least to some extent following an incident which occurred, the application does not say when, but I am told today that it was on 26 July 1997 when, as a patron of the Beresford Hotel at Surry Hills he went to the toilets and, as he entered that part of the hotel, a man pointed a gun at him. The applicant responded to this in a manner that could only be described as either brave or foolhardy or both by punching the man in the eye. The gun was then discharged and, fortunately for the applicant, shot the perpetrator of the assault in the leg and not the applicant. This must have been a most distressing incident during which in my view, the applicant showed considerable bravery. In his application for compensation pursuant to the then Victims Compensation Act 1996 he effectively stated his injury as being post traumatic stress syndrome and he sought approval for counselling by the St George Counselling Service. He was born on 4 January 1974. Consequently he was aged 23 years at the time of the incident which, quite clearly, as the tribunal's assessor found, was an act of violence. He attended the St George Hospital Community Health Service the next day and was referred for counselling. It is noted in the report of a doctor who seems to be Dr Ali from the St George Hospital that he presented with symptoms of post traumatic syndrome, that he had had then difficulty in sleeping with a nightmare about the incident, was paranoid feeling unsafe and had lost appetite. It seems to me that this report probably refers to not only to the first time that he went to the hospital but also a later time. That is only an inference I draw from the way the report was prepared. He came under the care of a psychologist, Mr Moustapha, at the St George Counselling Centre on 4 August 1997 and has seen Mr Moustapha on a number of occasions thereafter. His application for compensation under the Act was first dealt with by an assessor, Miss Madison, on 8 December 2000. She then revised the determination on 4 January 2001 but came to the same conclusion. Although she accepted the diagnoses of a major depressive episode and of post traumatic stress syndrome and that he exhibited symptomatology associated with a traumatic event, she did not accept that a corresponding disability in accordance with cl 5(e) of the Act had been established, going on to say: "It is simply insufficient for the medico-legal reports (I would add they were psychiatric reports not prepared for medico-legal purposes only) to blandly state that the applicant is not fit to work when there is absolutely no independent evidence suggesting the applicant is not able to work or isn't working as a direct result of the act of violence. Thus I do not accept that Mr Saab has established to the tribunal that he suffered a disability as a direct result of the incident in question. Therefore without all elements of cl 5 of schedule 1 being present and co-existing, a claim for shock for any duration must fail." The applicant appealed to a Magistrate comprising the Victims Compensation Tribunal against that determination. The tribunal stated, inter alia: "In fact the Assessor accepted that there was an act of violence, that the appellant suffered a major depressive episode and exhibited symptomatology associated with the traumatic event but was not persuaded that the medico-legal evidence supported that the appellant suffered the full effects of a shock based injury in accordance with cl 5 schedule 1 of the Act." (emphasis added by me). Reference was made to a letter from a former employer and the tribunal went on to state: "Having read the medical evidence now produced I am in agreement with the Assessor that there is no evidence that establishes a disability pursuant to cl 5(e) of the Act as a direct result of the act of violence." Frankly, both decisions cause me grave concern, particularly the original decision by the Assessor. Without going into detail, it is my view that the material before the tribunal, although not supported by any evidence from the applicant himself, except as in his application to the tribunal, establishes not only that he suffered these serious psychiatric disabilities which in my view constitute injuries, but also that he is continuing to suffer serious disablement as a result of them. Unfortunately I do not need to go into the detail of this. Frankly the decision appals me and I consider it is perverse. The tribunal itself is restricted by what matters can be taken into account. However, the tribunal went so far as to say this, that is to what I have already referred, namely "having read the medical evidence now produced I am in agreement with the Assessor that there is no evidence that establishes a disability pursuant to cl 54(e) of the Act as a direct result of the act of violence." This is effectively rubber stamping the appalling decision of the Assessor and reflects poorly on the tribunal which, of course, did not have to go so far as to express agreement with the Assessor's decision, but that is what it in fact did. As is quite obvious, I disagree with both decisions and I have already noted that, on the letterhead of the tribunal, there is in red letters "assisting victims of crime". This is one victim they should have assisted and did not. I do not have to go into detail. My own view is that this Court ought to be able to interfere with decisions that are completely contrary to the evidentiary material put before the tribunal even though I do consider that it should have been amplified by the applicant himself. Unfortunately, I have come to the conclusion, despite the valiant attempt of Miss Fraser of counsel on behalf of the applicant who has referred me to a number of cases that I do not have to go through in any detail or at all, that this is an attempt to appeal to this Court from a determination "whether it (an injury) is a compensable injury of a particular description specified in that schedule (of compensible injuries)." Consequently, even if I concluded, as I would like to, that this appeal, being against a perverse decision, does raise a question of law, Section 39(3) of the Act specifically states that, for the purposes of s 39, the matter referred to is not a question of law. Section 39(1) provides that the applicant for statutory compensation may, with the leave of the District Court, appeal to the District Court on a question of law arising in any determination of the application by the tribunal. Much as I dislike finding this way, I am constrained by s 39(3) to conclude that the matter attempted to be raised on this appeal, if I granted leave, is not a question of law. Consequently the application for leave to appeal is refused. BURCHETT: Your Honour before I make the application can I say this. HIS HONOUR: What is your application? BURCHETT: I am instructed to seek costs but can I say this before I make that application that my instructing solicitor has told me that she will take out a transcript of your Honour's judgment and will put it before the responsible officers at the tribunal and I am aware that in similar situation where there has been criticism of a decision despite there not being a clearer right that the tribunal has exercised its discretion in respect of leniency in relation to costs. HIS HONOUR: I am pleased to hear this and I would urge that the tribunal give consideration to doing what Mr Burchett has just referred to. BURCHETT: Thank you your Honour and so I am instructed to seek costs on the basis that they do follow the event. HIS HONOUR: I am afraid that costs will follow the event and the applicant is to pay the respondent's costs of the appeal, but I hope they are not collected. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.