Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AWK v Victims Compensation Fund Corporation. [2013] NSWADT 251 Hearing dates: On the papers Decision date: 07 November 2013 Jurisdiction: Victims Support Division Before: P H Molony, Judicial Member Decision: 1. The appeal is dismissed. 2. No order as to costs. Catchwords: Victims Support and Rehabilitation - compensable injury - chronic psychological or psychiatric disorder - ARW reports - there must be a diagnosed psychological condition - expert report should clearly explain the basis on which diagnosis made Legislation Cited: Victim Support and Rehabilitation Act 1996 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2012 Cases Cited: Commonwealth of Australia v Smith [2005] NSWCA 478 South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 Tame v State of New South Wales [2002] HCA 35; 211 CLR 317; 191 ALR 449; 76 ALJR 1348 Category: Principal judgment Parties: AWK (Applicant) Victims Compensation Fund Corporation (Respondent) File Number(s): 137133 Publication restriction: s 126 Administrative Decisions Tribunal Act reasons for decision Background 1AWK who is aged 44 claims compensation for psychological injuries which he claims to have received on 6 July 2010 when he was the victim of a robbery at home. The robbery occurred when two men, posing as plain clothes police officers gained entry to his house on the pretext that they had a search warrant. The Compensation Assessor was satisfied that AWK had established an act of violence in the course of the commission of an offence, but was not satisfied that AWK had established that he suffered from a psychological/psychiatric disorder as a result. Application of the old Act 2On 7 May 2013 the New South Wales Government introduced into Parliament an Act which changed the form of support provided to victims of violent crime in New South Wales. The Victims Support and Rehabilitation Act 1996 ("the old Act") was repealed and replaced by the Victims Rights and Support Act 2013 ("the new Act"). AWK's solicitors were informed that the appeal would be determined under the new Act. 3The Victims Compensation Tribunal was abolished and pursuant to Clause 14 of Schedule 2 of the new Act appeals to it are taken to have been commenced before the Administrative Decisions Tribunal. As a Judicial Member in the Victim Services Division of the ADT I have been directed by the President of the ADT to hear the appeal and, in doing so, may exercise all the functions that the Victims Compensation Tribunal had immediately before the commencement of the new Act. 4On 16 August 2013 clause 16 of the Victims Rights and Support Regulation 2012 ("the Regulation") commenced operation. This provided that appeals which were pending as at 3 June 2013 are to be determined under the old Act. AWK's solicitors had previously made submissions on the basis of the appeal proceeding under the old Act. Since Clause 16 of the Regulation commenced AWK has been advised of it by the Registrar and given the opportunity to make final submissions. AWK has done so. Grounds of Appeal 5The Notice of Appeal sets out AWK's' ground of appeal. They are, in summary, that - * The report from Mr Anthony Pignataro, a clinical psychologist and Authorised Report Writer (the ARW) dated 30 August 2012 found that he did present with symptoms of psychological harm and was moderately affected by the incident. * The Compensation Assessor was satisfied that he otherwise satisfied the statutory requirements to be victim's compensation. 6AWK's provided particulars in support of the appeal. I have considered them and taken them into account in deciding this appeal. Decision on papers 7AWK has not applied for the appeal to proceed by way of hearing and I am satisfied that the matter can be properly determined without a hearing (s 38(2) of the old Act). 8Section 38(3) of the old Act provides that the appeal from a determination of a Compensation Assessor is to be determined "on the evidence and material provided to the Assessor". I have read and considered the whole of the evidence before the Compensation Assessor. I have taken it all into account even though I may not refer specifically to all the evidence and material in these reasons. 9Section 29(2) of the old Act provides that in order to make an award of compensation the Tribunal must be satisfied that - ... on the balance of probabilities, that the person to whom the application for that compensation relates: (a) is a primary victim, secondary victim or family victim of an act of violence, and (b) is eligible to receive the amount of compensation provided by the award. Act of Violence 10AWK has to establish an act of violence to be entitled to compensation. Section 5 of the Act relevantly provides; (1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons: (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons, and (c) that has resulted in injury or death to one or more of those persons. 11Having read COPS event E409205307 and the history AWK provided to the ARW I am satisfied that on 6 July 2010 two persons posing as detective gained entry to AWK's home on the pretext that they held a warrant to search for stolen goods. They searched his home and seized electronic equipment and a large sum of cash from a safe. While AWK and his wife became suspicious during the course of the robbery, they did not voice those suspicions as they were scared of the consequences and believed one of the offenders may be armed. He had his hand "over his pocket the whole time." That belief also was consistent with the pretext that the offenders were plain clothes police. 12After the offenders left the robbery was immediately reported to Police. One of the offenders has subsequently been charged with aggravated breaking and entering and committing a serious indictable offence, and convicted. 13I am satisfied that the robbery occurred as described above. On balance I accept that one of the offenders was apparently armed. AWK has therefore established that he was a primary victim of violent conduct that occurred in the course of the commission of an offence. Factors affecting eligibility to receive or amount of victim's compensation 14I am satisfied that none of the factors set out in s 24 of the old Act that operate to affect thet victims eligibility for compensation under the old Act apply in AWK' case. 15Similarly, having regard to all the factors to which the Tribunal must have regard under s 30 of the old Act, I am satisfied that none of them would justify my refusing to make an award of compensation AWK's favour, or in reducing the compensation payable to AWK. Has AWK sustained any what compensable injury? 16Section 14(1) of the old Act provides - (1) The statutory compensation for which a primary victim of an act of violence is eligible comprises: (a) compensation for compensable injuries received by the victim as a direct result of the act of violence, and (b) compensation for financial loss incurred by the victim as a direct result of any such compensable injury. 17Section 17 then provides that - (1) Compensation for compensable injuries is payable in accordance with the schedule of compensable injuries. (2) Unless the amount of compensation is required or authorised to be reduced by this Act, the amount of compensation payable is the standard amount calculated in accordance with the schedule. 18Schedule 1 contains special provisions relating to specified types of compensable injury. With respect to psychological or psychiatric disorder clause 5 provides - (1) For the purposes of establishing whether there is a compensable injury of psychological or psychiatric disorder, an application relating to statutory compensation for such an injury must be accompanied by a written assessment of the applicant's condition prepared by a qualified person chosen from a list of qualified persons designated by the Director. (1A) In determining such an application, the Tribunal or compensation assessor concerned is not required to have regard to any report or assessment other than the assessment referred to in subclause (1). (2) The Director may suspend or revoke the designation of a person under subclause (1). (3) The compensable injury of psychological or psychiatric disorder (category 1) applies only in relation to an act of violence that has apparently occurred in the course of the commission of any of the following offences: (a) armed robbery, (b) abduction, (c) kidnapping. 19In the present case AWK specified one compensable injury, namely a chronic psychological order that is disabling. 20The following medical evidence was before the Compensation Assessor: * The ARW report. * A report dated 30 August 2012 from Dr Renee Stanton, a dentist. * A referral made of AWK by Dr Lourice Ghaly, GP, to Dr Leslie FT Lim, Psychiatrist. * A short report dated 9 July 2009 address to Dr Ghaly from Dr Lim. It reads - Many thanks for referring Johnny whom I saw today. As you know he suffered a home invasion in June or July last year and his life has fallen apart since then. He (and his wife too judging from his history) is suffering symptoms of both PTSD and depression. His business is also failing because of, and adding to their emotional distress. Johnny is very agitated and obviously distressed today. I am starting him on Pristiq 50 mg mane and increasing the dose to 100 mg in 4 days. I will arrange to see him to continue treatment. * Treating notes from Dr Lim. * A counselling report from Nabil Malak, a social worker, dated 8 July 2011 21The Compensation Assessor only had regard to the ARW report when making his determination. There is no requirement that he consider any other medical evidence. Clause 5 of Schedule 1 to the old Act relevantly provides - (1) For the purposes of establishing whether there is a compensable injury of psychological or psychiatric disorder, an application relating to statutory compensation for such an injury must be accompanied by a written assessment of the applicant's condition prepared by a qualified person chosen from a list of qualified persons designated by the Director. (1A) In determining such an application, the Tribunal or compensation assessor concerned is not required to have regard to any report or assessment other than the assessment referred to in subclause (1). 22Importantly, sub-clause (1A) does not prohibit the compensation assessor or the Tribunal on appeal from considering other medical evidence, but does not require that consideration be given to other reports or assessments. 23The ARW took a developmental history from AWK which he described as "unremarkable." AWK reported "positive relations" with his family but said that - Financial pressure and the loss of the business have aggravated his mental state following the robbery in which a large sum of money was stolen. 24The ARW reported the following "psychological sequelae" of the act of violence - 18. [AWK] reported the following upon recollection. He reported that he was in disbelief and shock. He reported that he had difficulty expressing in words feelings and that seeing his wife teary and emotionally distressed was painful to him. As he was recounting his initial reaction, he became teary and paused on two occasions as he spoke of his distress at seeing his wife weep continuously. He reported that he was unable to do much following the robbery and that anger was emerging as police took almost 90 minutes from the time of his call to attend his home to discuss the robbery with him. 19. [AWK] reported that following the robbery, he had concerns for his family's safety and security. He relocated his family to another house. He reported that he could not sleep that night and that there were ongoing dreams of the individuals involved. He denied that he was physically threatened at the time of the robbery. He reported ongoing anger of the time police took to react to his request for assistance. No further details were provided by him. 20. In summary [AWK] experienced shock and disbelief following the robbery. 25The ARW's report set out details of AWK's symptoms and outlined his self-report of the effects of the act of violence on him. He commented that AWK - ... is experiencing symptoms associated with the robbery that have been aggravated by the loss of financial resources to sustain the family business. 26With respect to functional status and disability the ARW wrote - 24. [AWK] reported that current functioning had been disturbed following the robbery and the closure of the market stalls. He reported that he was currently managing the online business, which was difficult to do. This was posing a challenge at this time. He was without full-time business activity. 25. [AWK] reported that there was a mild reduction in social activity. He reported that while not avoiding public venues, he was suspicious of men in small gatherings. He also preferred to stay at home with his wife, [name] who was not coping with the robbery. Relations with his wife were affected. He reported marital tension, which was also confirmed by his wife, [name]. 26. [AWK] denied concerns with self-care. He reported maintaining adequate personal hygiene. While he reported sleep was affected for limited duration, appetite and weight were unaffected. Although there is a concern with sleep duration because of outside noise at night, he continues to sleep uninterrupted for at least five hours. Sleep is without intrusive dreams. This may suggest a level of anticipatory anxiety is evident. 27. I believe [AWK] is experiencing some disturbance in psychological functioning following the robbery. In terms of assessing overall functioning on the Global Assessment of Functioning (GAF) Scale, [AWK] has functioning that falls within the 51-60 range, which is in the moderate range. This is an estimate based on the change in the level of functioning since the robbery. He is without full-time business activity. His business activity was affected by the loss of money following the robbery. There is also marital tension that arose following the robbery as his wife, [name], comes to terms with the robbery. While he is also cautious of men in small gatherings, it has not affected his capacity to attend social venues. He tends to prefer to stay at home with his family. 28. In summary, [AWK] was moderately affected by the robbery. 27The ARW noted that AWK presented well and appropriately. He was properly oriented, apparently unimpaired, and displayed appropriate insight and judgment. The ARW noted that he had administered a number of psychometric tests to AWK. He offered the following opinion - 32. [AWK] experienced a robbery that adversely affected his mental state. There were no reported pre-existing concerns with mental state. Functioning has changed. It is moderately affected. Since the robbery, his business activity has stalled due to a lack of finances. He is without work and there is concern for his current financial state, given the theft of money. While there was business pressure prior to the robbery because of the economic downturn, the subsequent theft of money kept at home made his position to continue to operate his retail and wholesale toy distribution business untenable. Current marital tension exists following the robbery, which is contributing to his current mental state. 33. [AWK] has developed a presentation of mixed anxiety and depression following the robbery of moderate severity. Findings from the clinical data obtained suggest that the pattern of symptoms do not suggest the presence of PTSD, but do suggest that a psychological disturbance following the robbery has occurred in addition to marital tension and business difficulties following it. 34. [AWK] has not sought psychiatric and psychological assistance. He would benefit with assistance, given the symptom pattern noted and the marital tension that exists. I have suggested to him to consider intervention offered by Victims Services, which is available to him. 28Importantly the ARW did not diagnose AWK with a recognised psychiatric or psychological disorder or disorder. The ARW did recognise that AWK is manifesting symptoms of psychological disturbance as a result of the act of violence and subsequent events in his personal life, but did not diagnose him with a recognised psychiatric illness. The reference to a Global Assessment of Functioning (GAF) showing moderate impairment is difficult to reconcile with the ARW's other comments with respect to ARW level of functioning, and the absence of a specific diagnosis. 29Emotional reactions and mental problems alone, however, are not recognised by the law as compensable psychological or psychiatric disorders. Thus in Tame v State of New South Wales [2002] HCA 35; 211 CLR 317; 191 ALR 449; 76 ALJR 1348 Gummow and Kirby JJ explained, with respect to the law of torts, at [193- 194] that - In Australia, as in England, Canada and New Zealand, a plaintiff who is unable affirmatively to establish the existence of a recognisable psychiatric illness is not entitled to recover. Grief and sorrow are among the "ordinary and inevitable incidents of life"; the very universality of those emotions denies to them the character of compensable loss under the tort of negligence. Fright, distress or embarrassment, without more, will not ground an action in negligence. ... ... Properly understood, the requirement to establish a recognisable psychiatric illness reduces the scope for indeterminate liability or increased litigation. It restricts recovery to those disorders which are capable of objective determination. To permit recovery for recognisable psychiatric illnesses, but not for other forms of emotional disturbance, is to posit a distinction grounded in principle rather than pragmatism, and one that is illuminated by professional medical opinion rather than fixed purely by idiosyncratic judicial perception. .... 30In Commonwealth of Australia v Smith [2005] NSWCA 478, Handley JA explained, at [16] - ... the law does not recognise that emotional and mental problems constitute an injury unless they constitute a psychiatric illness that has been recognised as such by "professional medical opinion". Accordingly a plaintiff ... who is aware of all his symptoms, cannot know that he has suffered a mental injury unless he knows that they constitute a recognisable psychiatric illness. Without this knowledge he cannot know that he has suffered something which the law recognises as an injury 31The fact that the ARW has not diagnosed AWK with a recognised psychiatric or psychological disorder means that I cannot be satisfied on the basis of the ARW report that AWK suffers from a compensable injury, being either a chronic psychological disorder that is moderately (Category 1) or severely (Category 2) disabling. 32The referral report from Dr Ghaly to Dr Lim does not assist AWK in this regard. While it recites a list of symptoms affecting AWK in mid 2011 it does not suggest a diagnosis. 33Dr Lim's short report does refer to AWK suffering symptoms of PTSD. Dr Lim however, does not provide any indication of the history or observations he relied on in reaching that assessment. His diagnosis is at odds with that of the ARW, who found that AWK did not satisfy the requirements to be diagnosed with PTSD. 34Dr Lim's report does not satisfy the essential requirements necessary for me to be able to evaluate his opinion objectively. It does not disclose the information he relied on, his reason for reaching his diagnosis, or the criteria he applied in reaching it. 35In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 McColl JA said, in the context of an appeal against a decision of the Workers Compensation Commission (in which, as in this Tribunal, the rules of evidence do not apply) - 130 In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that "[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it". In so saying, I referred with approval (inter alia) to Heydon JA's analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] - [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper's statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that: "... the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert." ... 133 ... the question whether expert evidence relied upon by a party is probative of a matter in issue is determined in accordance with legal principle and is susceptible to review on appeal in accordance with the principles which govern appellate review of findings of fact: see generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. ... 135 It was, therefore, incumbent on the Deputy President to consider the appellant's no evidence submission to determine whether it was "logical and probative" as required by r 70. There having been no objection to the admissibility of Dr Rivett's report, the question for the Arbitrator and the Deputy President was its weight, especially whether it went beyond "a bare ipse dixit": Makita (Australia) Pty Limited v Sprowles (at [86] - [87]). 36As Dr Lim's report does not satisfy the essential requirements for an expert report it is not, in my opinion, logically probative. His notes, which are marginally legible at best, do not advance the position. 37A reading of the counselling report from Mr Malik reveals that it reports on the outcome of counselling provided to AWK, but does not offer a diagnosis or prognosis. Rather, it notes that AWK has been referred to a psychiatrist and a self-help group for ongoing treatment. Thus it does not enable me to conclude that AWK has a Category 1 or Category 2 chronic psychological or psychiatric disorder. 38Similarly, I have formed the view that there is no utility or advantage to be gained by having regard to the dental report from Dr Stanton as there is no claim before the Tribunal for compensation arising from an injury to AWK's teeth. The fact that he has been grinding his teeth since the events of 6 July 2010 does not demonstrate that he has a chronic psychological or psychiatric disorder. 39As a consequence of the above AWK has not satisfied the burden of persuading the Tribunal that he suffered a compensable injury as a result of the act of violence. His appeal is dismissed accordingly. Conclusion 40I make the following orders: 1. The appeal is dismissed. 2. No order as to costs. ********** 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. Decision last updated: 07 November 2013