ARU v Victims Compensation Fund Corporation [2016] NSWCATAD 87 | Case summary

NCAT Administrative and Equal Opportunity|2015-12-04

Reasons for decision

On 22 November 2014 the Tribunal made a decision which affirmed the decision of the compensation assessor under the Victims Support and Rehabilitation Act 1996, and dismissed ARU's claim for victims compensation. (See ARU v Victims Compensation Fund Corporation [2014] NSWCATAD 203).

Legislative Background / Jurisdiction

ARU's proceedings are brought entirely under the provisions of repealed legislation, the former Victims Support and Rehabilitation Act 1996 - ( the 'old Act'). This was because notwithstanding the repeal of the old Act on 3 June 2013, all appeals before the former Victims Compensation Tribunal not finally determined, would by regulation be dealt with by the new Tribunal under the old legislation. (See Clause 16 of the Victims Rights and Support Regulation 2013).
On 3 June 2013 the Victims Rights and Support Act 2013 (the new Act), replaced the old Act. In addition all pending appeals before the former Tribunal were transferred to the Administrative Decision Tribunal (ADT). However on 1 January 2014 the ADT was abolished and all pending and fresh matters were dealt with by the newly created New South Wales Civil and Administrative Tribunal (NCAT) which is the Tribunal for the purpose of these proceedings.

Appeal

Following the 24 November 2014 decision to dismiss the application in December 2014 ARU commenced an appeal before the Appeal Panel of the Tribunal. In separate proceedings involving other parties the Appeal Panel had already determined that there was jurisdiction to hear an appeal such as that brought by ARU, (see ATX v Victims Compensation Fund Corporation [2014] NSWCATAP 71).
On 30 September 2015 the Appeal Panel decided ARU's appeal. There were five grounds of appeal. ARU was successful in respect of one ground of appeal and as a result the appeal was allowed and the matter was remitted back to the Administrative and Equal Opportunity Division of NCAT for reconsideration in accordance with these reasons. (See ARU v Victims Compensation Fund Corporation [2015] NSWCATAP 211).
In that decision the appeal panel found the following error in the decision of the Tribunal in first instance. At paragraph 61 through to paragraph 67 the Appeal Panel observed the following: 61. The Tribunal concluded (at [64]): I find having examined all of the evidence that ARU's psychological injuries arose predominantly not as a direct result of the act of violence, but as an indirect result of other acts of violence for which ARU has not claimed and is in all probability, not entitled to claim. That is, the weight of cogent evidence is that previous and subsequent events (which could be termed acts of violence against other members of ARU's immediate family), has been the significant contributor to his current psychological / psychiatric state. ...(emphasis added) 62. The Tribunal then went on to state (at [68]): Whilst there is some evidence that the act of violence had an impact on ARU's functioning, I am not satisfied on the evidence before me that the impact is the major or significant basis for the claimed compensable injury. (emphasis added) 63. After considering cl 4 of Schedule 1 of the 1966 the Tribunal commented (at [72]): Whilst there is evidence of an existing condition as referred to in the 2008 Report, in my view whilst the evidence indicates that the act of violence had an impact which may have aggravated exacerbated or accelerated that condition, other significant post act of violence factors (as detailed in the material above) contributed to ARU's development of his condition. Additionally, there is significant evidence that those matters were all as an indirect result, rather than as a direct result. 64. While the Tribunal correctly stated the test of causation (see [39], [55], [62]), in applying that test the Tribunal fell into error by in effect imposing a requirement that ARU's Separation Anxiety Disorder and Global Learning Disorder must be not only a direct result of the subject act of violence but also that the subject act of violence is the major or significant cause of that injury (see [64] and [68]). In reaching that conclusion, we are mindful that the reasons for the decision are not to be "construed minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. 65. What the provision required was for the Tribunal to identify the injury, if any, that had been inflicted directly as a result of the act of violence. If the injury was an exacerbation or aggravation of a previous condition, as it appears the Tribunal thought it was (see [72]), its task was to assess the difference between the status of ARU's condition before the act of violence and its subsequent aggravated state. And the relevant difference to be assessed was the difference directly referable only to the act of violence itself -- no easy fact-finding task admittedly. 66. In attempting that task, it was no doubt necessary to consider ARU's condition as a whole, then to consider to the degree to which it could be apportioned between factors that were directly connected with the act of violence and factors that had no connection or an indirect connection. This was required to enable the Tribunal to make the ultimate assessment of what effect, if any, direct effect the act of violence had upon ARU. The Tribunal did not reject the evidence that supported a finding that the act of violence had directly impacted upon ARU. It simply could not be satisfied that its impact was of "major or significant" effect. In effect, the Tribunal reversed the test that it was required to apply. 67. For these reasons, we find that the Tribunal erred in its application of s 7 of the 1996 Act.
The question to now consider is the application of section 7 of the old Act to the evidence and material before the Tribunal.

Hearing of remitted appeal

The applicant prepared written submissions dated 30 November 2015 at the remitted hearing. Crucial to the consideration of those submissions was an accompanying bundle of material (referred to as 'Bundle A') which was tendered in the Appeal Panel hearing, and a medical report which post- dates the Tribunal's dismissal of the application (Medical report of S. Borenstein dated 17 March 2015).
The material (Bundle A) comprised material selected to be tendered by the applicant from the overall material that had been filed and received by the Tribunal up until the time of the November 2015 dismissal. It comprised in excess of 330 folios of material and had been prepared to assist the applicant's appeal. This was however an agreed bundle between the applicant and the respondent before the Appeal Panel.
At the hearing on 4 December 2015 the applicant sought to tender the report of S. Borenstein Consultant Clinical Psychologist dated 17 March 2015. As this application is in effect considered under the provisions of the old Act (see paragraph 2 above and the earlier decisions of this Tribunal), the applicant requires leave of the Tribunal to receive the report.

Consideration of fresh evidence

Section 38 (3) of the old Act provides: 38 Determination by Tribunal of appeals and references (1) Except as provided by subsection (2), the Tribunal is to proceed to determine a matter the subject of an appeal or reference to it under this Division without a hearing. (2) The Tribunal is to conduct a hearing into the matter if the Tribunal is satisfied that it cannot properly determine the matter without a hearing. Any such hearing is to be conducted in accordance with Schedule 2. (3) An appeal from a determination of a compensation assessor is to be determined on the evidence and material provided to the compensation assessor. However, the Tribunal may, by leave, receive further evidence and material if it considers that special grounds exist or if the evidence or material concerns matters occurring after the determination appealed against. (Emphasis added).
The fact that this application was appealed before the former Victims Compensation Tribunal, the District Court of NSW, the ADT and NCAT (including the Appeal Panel), makes the history and litigation course of this matter somewhat unusual if not unique. In that regard section 38 (3) could have been traversed at any of the stages referred to above (other than the District Court) and in fact fresh evidence was obtained on a number of occasions during that history, but predominantly of the Tribunal's own volition under the provisions of section 28 of the old Act and section 65A. 28 Medical examinations (1) A compensation assessor may require an applicant for statutory compensation to undergo an examination (not being an examination that is unreasonable, unnecessarily repetitious or dangerous): (a) by a duly qualified medical practitioner, or duly qualified psychologist, specified by the assessor, or (b) by a duly qualified medical practitioner or duly qualified psychologist belonging to a class of medical practitioners, or class of psychologists, specified by the assessor. (2) The costs of any such examination are to be paid for out of the Compensation Fund. 65A Inquiries and investigations Subject to section 27 (2), a compensation assessor may, in connection with exercising the functions of a compensation assessor under this Act, make such inquiries and undertake such investigations as the assessor considers necessary.
In this regard the Tribunal was previously able to obtain evidence of its own motion, and that evidence could be used in the consideration of the claim. Whilst it is fair to observe that claimants could make submissions on the veracity of certain material and seek to challenge it, because of the nature of the material sought by the above provisions, the Tribunal out of necessity was required to have regard to the material. Claimants usually however were confined to making submissions as to weight. In addition, matters dealt with by compensation assessor's in first instance were non-adversarial in nature and on appeal the main consideration was that procedural fairness and natural justice was afforded of any applicant.
I make the above observations merely to illustrate that evidence and material can come in at a late stage, and if it is sought by the decision maker, then no criteria need to be satisfied under section 28 or 65A of the old Act.
The receipt of fresh evidence to be tendered by a claimant at any stage post compensation assessor is governed by the concept of special grounds as referred to in section 38 (3). The concept of "special grounds" in s 38(3) has been considered in many cases.
In Victims Compensation Fund Corporation v Sarah Jane Hill (2000) NSWCA 75 Court (Mason P, Sheller JA and Foster AJA) referred with approval to the test laid down for "special grounds" by the Court of Appeal in Akins v National Australia Bank (1994) 34 NSWLR 155 [at 160]. Clarke JA (with whom Sheller and Powell JJA agreed on this point) said: "Although it is not possible to formulate a test which should be applied in every case to determine whether special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need to be met before fresh evidence can be admitted. These are; 1. It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; 2. The evidence must be such that there must be a high degree of probability that there would be a different verdict; 3. The evidence must be credible.
In Wilson v The Prothonatory (2000) NSWCA 23 Heydon JA (with whom Sheller JA agreed) said [at 47]; "The tests (from Akins) are general principles or conditions applying to the generality of cases but the statutory discretion is capable of being exercised even if the tests are not all satisfied although such an exercise might only occur in exceptional circumstances." See also Commonwealth Bank of Australia v Quaid (1991) 178 CLR 134 at 140].
Continuing In the case of Victims Compensation Fund Corporation v Sarah Jane Hill the Court of Appeal observed, at [31]; "There appears no reason why those principles should not apply to S38 (3), despite the fact that the appeal to the Tribunal is not an appeal from a court to a court."
The Court also identified the legislative purpose for s 38(3) -
The basis of the enactment of s 38(3) was described by the Attorney General in debate in Committee on the Bill which became the Victims Compensation Act 1996. He explained why the Government opposed certain amendments (which were later rejected in the Legislative Council): 'The Government takes the view that the amendments would undermine an essential element of the reform package. One of the difficulties in the existing scheme is the excessive litigation to which victim compensation claims give rise. There is a problem with applicants who, being legally represented before the Victims Compensation Tribunal, run a relatively perfunctory case and then, after taking advantage of the current right to an appeal de novo to the District Court, introduce a great deal more evidence and produce more extensive material.' (Parliamentary Debates, Legislative Council, 15 May 1996)
This is not an exceptional case, which would justify setting aside one or more of the "special grounds" requirements. In my view the term 'exceptional' goes to the facts and evidence of the core matters or reasons for the delay and matters of that nature. Rather than being exceptional the case is somewhat unique in the trajectory of litigation as set out in paragraphs 12 and 13 (above). The following observation which the High Court (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) made in Commonwealth Bank of Australia v Quade [1991] HCA 61, at [6] is apposite - "If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which might have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence."
Could the evidence have been obtained with reasonable diligence for use at the time of the Assessor's determination? In my view, the unusual aspects of this case referred to at paragraphs 11, 12 and 13 (above) create a situation whereby the need for such evidence could not have been contemplated, and as a result would not have been obtained. The applicant's representatives operated in a constantly changing landscape whereby further medical reports were commissioned and rebutted by still further reports. In my view, such a background creates an untenable situation for a fair assessment of a claim.
It follows that as a result of the receipt of the earlier reports, it was not possible for this report (the report of 17 March 2015) to have been provided previously with reasonable diligence, (owing to the fact that this report addresses matters discovered by the operation of section 28 of the old Act - being further Tribunal commissioned medical reports).
The evidence is no less credible (on the face of it) than any of the earlier evidence supplied by ARU. It is provided by a consultant clinical psychologist who is qualified to make a diagnosis (if present).
Is the evidence likely to result in a different outcome? Having read the report, and having regard to my observations in the first instance, and the relevant aspect of the decision of the Appeal Panel in respect of the approach to take to section 7 of the old Act, it appears that there will be a different outcome.
Therefore in the exercise of my statutory discretion I receive the fresh evidence, being the report of S. Borenstein dated 17 March 2015.

Applicant's Evidence

The report provides the following evidence relevant to the claim. The report refers to matters concerning the causation of the applicant's psychological condition. At page 2 of the report an opinion is given that the drive by shooting represents an 85% contribution to the global learning disorder developed by the applicant.
The report also provides the following evidence as to the development and maintenance of the applicant's separation anxiety disorder: The question to be asked is how did the Separation Anxiety Disorder develop, and how was it maintained. The answer is plain and clear. (ARU) developed a chronic psychiatric disorder consequent to his father and family unit being at risk of death and continually threatened over some years, highlighted when (ARU) witnessed a drive by shooting on 3 January 2003.
In addition the report provides material to counter the views and opinions of Dr McMahon's s-28 report in that it asserts that those opinions and views leading to conclusions were based on a misunderstanding of ARU's medical history and limited knowledge of the background of ARU.
Having received this report and based on the material contained within it, I accept the premise outlined above by S. Borenstein.
It follows that having found that the elements of section 5 were made out (see earlier decisions of the current and former (VCT) Tribunal), it is now necessary apply the evidence to the provisions of section 7 in the manner set out by the Appeal Panel.
Section 7 (1) of the old Act provides that: 7 Who is a primary victim? (1) A primary victim of an act of violence is a person who receives a compensable injury, or dies, as a direct result of that act.
Clause 4 of Schedule 1 of the old Act provides that: 4 Reduction of standard amount because of existing condition If the act of violence results in a compensable injury because of the aggravation, acceleration, exacerbation or deterioration of an existing condition of the eligible victim, the standard amount of compensation for the injury is to be reduced by the proportionate amount that the Tribunal or compensation assessor considers is attributable to the existing condition.

Consideration

ARU's condition as a whole presents (in respect of the evidence of S. Borenstein) as: 'a chronic psychiatric disorder consequent to his father and the family unit being at risk of death and continually threatened over some years, highlighted when (ARU) witnessed a drive by shooting on 3 January 2003.' The 'head' disorder is nominated as separation anxiety disorder, however there are a number of other stressors and conditions / factors nominated in his medical history.
In applying the this evidence to the correct approach as set out in paragraph 65 of ARU v Victims Compensation Fund Corporation [2015] NSWCATAP 211, there will be a 15% reduction due to the operation of Clause 4.
I note that at the time of the most recent assessment ARU had suffered from the relevant disorders for approximately 12 years. In that regard, and having regard to the apparent level of debilitation as evidenced from all of the evidence and material before the Tribunal, I assess the statutory compensation payable (before any Clause 4 reduction) to be in the middle of the available range.
I note that in addition to a claim for statutory compensation there is a small claim for finical loss (section 18) which has remained in abeyance due to the history of the matter being dismissed.

Conclusion

I will award compensation in the following manner:
Section 17 compensation for compensable injuries: Psychological or psychiatric disorder Category 2, chronic psychological or psychiatric disorder that is severely disabling $40,000.00 (Less reduction by 15% due to the operation of clause 4) $34,000.00
Section 18 compensation for financial loss: Actual Expenses (18 (1) (a) ). Kip McGrath Tutoring $352.00 S. Borenstein Report of 17/3/2015 (allow) $1,000.00 Total compensation payable (s 17 and 18) $35,352.00
As a condition of the award pursuant to section 32 (1) (b) of the old Act and in conformity with section 46 (1) (b) of the new Act, I direct that the section 17 award of $34,000.00 be payable to the NSW Trustee and Guardian to manage on ARU's behalf until he reaches his majority.
The section 18 amount can be paid to ARU's Tutor by way of re-imbursement in the sum of $1,352.00.

Orders 1. I set aside the decision of the compensation assessor dated 23 July 2010. 2. I make an award of statutory compensation under sections 17 and 18 of the Victims Support and Rehabilitation Act 1996 in the total amount of $35,352-00 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 11 May 2016

Victims Support and Rehabilitation Act 1966(NSW)

ARU v Victims Compensation Fund Corporation

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