Muston v VCFC [2002] NSWDC 11

New South Wales District Court

CITATION : Muston v VCFC [2002] NSWDC 11 TRIBUNAL : Victims Compensation Tribunal PARTIES : Robert Andrew Muston Victims Compnesation Fund Corporation FILE NUMBER(S) : 37 of 2002 CORAM: Twigg DCJ CATCHWORDS: disability - psychological or psychiatric disorder LEGISLATION CITED: Victims Support and Rehabilitation Act 1996 Walker v Victims Compensation Fund Corporation, 1999 NSWDC at 22; CASES CITED: Owen v Victims Compensation Fund Corporation [1999] NSWDC 16 ; Couley v Victims Compensation Fund Corporation [1999] NSWDC 6 DATES OF HEARING: 24 May 2002 DATE OF JUDGMENT: 24 May 2002

JUDGMENT:

HIS HONOUR JUDGE TWIGG QC: Robert Andrew Scott Muston of Nambucca Heads was injured on 27 March 1998 when he was assaulted whilst he was sitting on a chair on the verandah of his home at Nambucca Heads. He was taken to hospital by ambulance and the ambulance report and hospital notes are part of the medicals that are part of the Tribunals file, which is exhibit A.

Mr Muston spent from 27 March 1998 till 31 March 1998 at the Macksville District Hospital.

He made an application under the Victims Support and Rehabilitation Act 1996 for compensation, and initially, by a determination, his application was refused by an assessor. There was finally a determination by way of appeal to a Magistrate within the permitted limits of the Act, and that order of the Magistrate was to dismiss the appeal.

From that decision Mr Muston makes appeal to this, the District Court, pursuant to s 39(1) of the Victims Support and Rehabilitation Act 1996. That permits an applicant for statutory compensation, with the leave of this Court, to appeal to the District Court on a question of law arising in any determination of the application by the Tribunal. Thus, I am restricted to determining whether the Magistrate, in that appeal on 13 February 2002, has made an error in law.

The amended notice of motion presented by the appellant's solicitor, Mr Perry, of Perry and Smith, has attached to it a statement which gives a number of matters of law which are said to be the basis for this appeal. I shall summarise those, although they are eloquently and precisely set out in Mr Perry's written document.

In addition, I was helped by written submissions from Mr Perry, and the cases of which he courteously gave me a copy, being respectively the case of Walker v Victims Compensation Fund Corporation , a decision of the Chief Judge of this Court, reported in 1999 NSWDC at 22, the decision of Owen v The Tribunal , a decision of his Honour Judge Puckeridge on 29 November 1999, and the decision of Cooley v VCFC , delivered again by his Honour Judge Puckeridge on 29 November 1999. I have taken guidance from each of their Honours' decisions in relation to error of law in relation to interpretation of other assessments.

Essentially, the appeal is that the Magistrate was in error in two ways, namely:- 1 Finding that the psychological injury must result in a severe impairment of the person's ability to function in their day to day activities, and that the evidence does not establish that his illness has resulted in some material impairment, or severe impairment, in an important area of his usual day to day activities. 2 That there was no medical evidence presented that he suffered skull concussion lasting at least one week.

The point is emphasised that the Magistrate referred to the second reading speech of the Minister who introduced this amending Act, where the words "severe impairment" is used. However, although the Magistrate referred to it, he clearly referred to the evidence before him, which would indicate that there must be some material impairment in the important area of day to day functioning.

The submission is strongly made that the Magistrate fell into error because he did not, on the balance of probabilities, assess the medical evidence that was before the Magistrate.

As to that, firstly, the point is submitted that it must be a proper inference from the Tribunal to infer that the victim suffered from concussion. That, from the medical dictionary, is:- "A traumatic injury to tissues of the body such as the brain, as a result of a violent blow, shaking or spinning."

"Moderate" is also helpfully referred to its dictionary meaning by Mr Perry.

As to that physical injury, one only has to look at the hospital records, particularly the ambulance report, which shows in the Glasgow Coma Scale and other pupil responses, that the determination that subsequently he was alert on 28 March, orientated and later feeling much better, makes clear that at the time immediately he was picked up by the ambulance, and subsequently in hospital, there was no concussive injury. One only has to look at the first page of the report to see that the initial injuries were referred to as "lacerations to scalp, bruising right arm, and some injury to the face and shoulder."

The subsequent reading that I make of the hospital reports and ambulance reports do not refer to concussion. Nor in there any material upon which such a finding could be made.

The submission is made, however, that on the material before the Tribunal, the Tribunal ought to have inferred that there was a concussive injury, and that the error comes from the failure of the Magistrate to recognise that.

Further, in relation to psychological, or psychiatric disturbance, there was a report before the Tribunal of Dr Christine Salisbury, an eminent Clinical Psychologist, who is an authorised reporter with the Tribunal. She found, in her summary at p 1, that Mr Muston sustained a head injury, lacerations to the scalp, bruising to his right arm, face and shoulder. She lists in her report the subjective complaints of Mr Muston that he made to her when she interviewed him on 13 December 1999.

It should be noted that Dr Salisbury is not a treating doctor, but was making a report for the purpose of medico-legal report to the Tribunal. Whilst the appellant did have some counselling, as arranged, there is no evidence before the Tribunal that he had any treatment for any depressive order.

The finding of Dr Salisbury is that Mr Muston had a moderate depressive illness. It is noticeable that she did not refer him for any treatment, nor recommend any psychological or neuro-psychological treatment.

I have made a review, carefully, because I was allowed access to the Tribunal's file overnight, and I see no error, either in applying the proper tests on the balance of probabilities, or his assessment of the material before him. He says, on p 4 of this appeal:- "It is apparent that the appellant has suffered as a consequence of the assault of 27th March 1998, but in my view on the issue of psychological or psychiatric disorder the evidence is insufficient to establish on the balance of probabilities that the appellant's depressive disorder is moderately disabling."

That is a finding of fact in which, in my view, the Tribunal was perfectly entitled to come to. Indeed, on my review of the evidence it is the only conclusion that he could have come to.

I find no error of law in the manner of dealing with this case by the Magistrate, and the appeal is dismissed.

Mr Maiden, any application? MAIDEN: No your Honour, there's no application. HIS HONOUR: Any application Mr Perry in relation to costs? PERRY: No your Honour. HIS HONOUR: I dismiss the appeal. I make no order as to costs of the appellant in this appeal, nor of the Tribunal and its representatives.

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