Sumner v Country Fire Authority [2024] VSC 403 (10 July 2024) (Richards J) involved a challenge to the decision by the CFA to terminate a former volunteer firefighter’s compensation.

 Mr Sumner was a Country Fire Authority (‘CFA’) volunteer from 1992 until 2016 when he left the CFA and Victoria to move interstate ([1]).  Shortly after his interstate move ([2]) he:

… began to suffer increased psychological distress, and he sought treatment from his general practitioner and a psychologist ….  He was referred to a psychiatrist … who in August 2018 diagnosed Mr Sumner to be suffering from major depression, anxiety, and post-traumatic stress disorder (PTSD).  In [the psychologist’s] … opinion, the PTSD was directly related to his work with the CFA and his repeated exposure to trauma through that work.

Mr Sumner made an application for compensation ([3]).  The CFA arranged for him to be examined by another psychiatrist who agreed with the diagnosis.  Further reports by two different psychiatrists further supported the diagnosis and the finding that Mr Sumner’s volunteering with the CFA was a significant contributor to his PTSD ([4]).

The CFA accepted the claim for compensation and paid compensation for medical costs and to replace Mr Sumner’s labour in his own work as a resort manager. They also agreed to meet the costs of an assistance dog.  Having paid compensation from 2018 to 2023 the CFA arranged for Mr Sumner to be assessed by yet another psychiatrist ([5]).

This psychiatrist, Associate Profressor Doherty, came to a very different conclusion finding that there was no such diagnosis as delayed onset PTSD, that Mr Sumner had a long-standing anxiety disorder and that his mental ill health was not related to his service with the CFA ([6]).  On the basis of that report the CFA invited Mr Sumner to show cause why they should not cease the payment of compensation ([7]).

Mr Sumner provided further medical evidence including a report from his treating doctor and a medico-legal report from another psychiatrist who was also of the opinion that Mr Sumner has PTSD caused by his volunteering with the CFA ([8]).

The CFA obtained another report from Ass. Prof. Doherty and on that basis of that report denied further liability to pay compensation ([9]).  Mr Sumner sought judicial review of that decision in the Supreme Court of Victoria. Judicial review is where the review tribunal, in this case the Court, is required to decide whether the decision maker acted according to law, not whether the decision maker made the ‘best’ decision (see [53]).

Compensation for CFA volunteers

Compensation for CFA volunteers is governed by the County Fire Authority Act 1958 (Vic) s 110(1)(f) and the regulations made under that Act. Part 6 of the Country Fire Authority Regulations 2014 (Vic) deal with compensation.  Regulation 75(1) says:

If a member, in the course of, or arising out of, performing service as a member—

(a) suffers a personal injury; or

(b) …

the member is entitled to compensation.

It is the CFA that determines whether an applicant is eligibile for compensation (r 83).  In making its decision, the CFA is required to have regard to provisions set out in the Accident Compensation Act 1985 (Vic) and/or the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

The review

In his application, Mr Sumner argued ([44])

… 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.

Her Honour Richards J agreed.  She held that the decision of the CFA had to be made in the context of the whole Act ([52]).   

Her Honour noted that the CFA is the ‘sole administrator’ of the scheme. The CFA must rely on medical evidence as it cannot determine the medical issues it is required to consider.  There is no provision for a merit’s review of the CFA’s decision that is no independent tribunal that can review the decision to decide if it was the best decision. In those circumstances, her Honour said, the CFA could not simply adopt the medical opinion that was most favourable to it. It had to consider all the medical evidence and ‘[w]here 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’ ([56]).

Her Honour noted (at [58]):

A secondary purpose of Pt 6, Div 1 [ie the compensation scheme] 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. The volunteer compensation scheme is an organisational arrangement designed to ‘encourage, maintain and strengthen the capacity’ of volunteers to provide the CFA’s services. 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.  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.

Her Honour described the CFA’s decision to terminate compensation as ‘striking’  and ‘a complete reversal of its initial determination’ ([74]).  Its reason was not that Mr Sumner had recovered but that, in the opinion of only one of many health practitioners, he had never suffered PTSD and had never been entitled to compensation ([76]).

The Court was critical of the CFA’s reasoning. The CFA explained to Mr Sumner that they preferred Association Professor Doherty’s opinion has he had looked at more detail at Mr Sumner’s earlier medical history ([78]). But, said the court, that was not the basis for the difference of opinion.  At [80]-[81] her Honour said:

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.

And at [84]-[85]:

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. 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.

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.

The Court accepted Mr Sumner’s arguments and set aside the CFA’s decision.  That is not the end of the matter, however. The CFA could, following the directions of the court, go back and make a fresh decision that may go the same way. They would just need to make sure they truly engaged with the differences between the practitioners and the question of whether or not PTSD symptoms can first manifest years after the exposure to traumatic events.

A comparison with NSW

It is interesting to compare the compensation scheme in NSW. As Justice Richards noted, the Victorian scheme is administered by the CFA and there is no provision to review their decision other than for legal error.

The compensation scheme for volunteer firefighters in NSW is not governed by the Rural Fire Service. Rather it is provided for in the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).  The Scheme is run by an iCare’s Insurance for NSW.   The effect of the Act is to apply the Workers compensation legislation (with some differences) to volunteers.  The Scheme provides for independent process to resolve medical disputes. 

Whilst the NSW Scheme is by no means perfect, it does mean it is not the employer that is managing the scheme.  The scheme is managed by a (reasonably) independent organisation with formal provisions for dispute resolution where the worker and the insurer disagree.   If Mr Sumner’s had been in NSW, rather than having to go to the Supreme Court to set aside a decision that the CFA can remake, the matter would have gone to a medical panel which would have made a decision binding on all parties and, on hopes, a medical panel would have been better are reconciling the conflicting opinions of the doctors than the CFA.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.