ATX v Victims Compensation Fund Corporation - [2015] NSWCATAP 42 - NSWCATAP 2014 case summary — Zoe

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ATX v Victims Compensation Fund Corporation

[2015] NSWCATAP 42

NCAT Appeal Panel|2014-12-11

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2014-12-11

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

Introduction

ATX has appealed against a decision of the Administrative and Equal Opportunity Division of the Tribunal that she was not entitled to compensation under the Victims Support and Rehabilitation Act 1996 (NSW) (the repealed Act). She is entitled to appeal on a question of law but must obtain the Tribunal's leave before appealing on other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b).
We have decided to give leave for the appeal to proceed on grounds other than a question of law. That ground is that the Tribunal, through no fault of its own, was unaware that some hand written notes that ATX had made about the way her former husband had treated her had been filed in the proceedings but not brought to the attention of the Member.
One other error that affected the Tribunal's decision was that the Tribunal found that ATX had not adduced any evidence from an allied health professional when she had. That evidence, which was also before the compensation assessor who made the original decision, was a report from clinical psychologist, Leah Giarratano, in relation to the psychological impact of the alleged sexual assaults by ASX's former husband. This report was commissioned by the Director, Victims Services at ATX's request. The Tribunal quoted the report but from the available reasons did not take it into account in determining whether there had been an "act of violence".
The second error was that the Tribunal applied dictionary definitions to the terms "domestic violence" and "sexual assault" when assessing the threshold issues under section 5(1) and (2) of the repealed Act, rather than statutory definitions.
A further ground of appeal, which we have rejected, was that the Tribunal erred by failing to admit fresh evidence from ATX's treating psychiatrist.
Having decided to give leave for the appeal to proceed, we set aside the Tribunal's decision. Rather than directing the Tribunal to reconsider the application, we have decided to exercise the function of the Tribunal at first instance and determine the merits of ATX's application: NCAT Act, s 81(2). We make an award for the compensable injury of Category 3 Sexual Assault in the sum of $25,000.00.

[2]

Legislative scheme under repealed Act

Section 29(2) of the repealed Act provides that: (2) An award of statutory compensation must not be made unless the compensation assessor is satisfied, 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.
An "act of violence" is defined in s 5: 5 Act of violence (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. (1A) For the avoidance of doubt, the reference to an offence in subsection (1) (a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person's age or mental illness or impairment. (2) For the purposes of this section, violent conduct extends to sexual assault and domestic violence (as defined in the Dictionary). (3) Except as provided by subsections (3A) and (3B), a "series of related acts" is two or more acts that are related because: (a) they were committed against the same person, and (b) in the opinion of the Tribunal or compensation assessor: (i) they were committed at approximately the same time, or (ii) they were committed over a period of time by the same person or group of persons, or (iii) they were, for any other reason, related to each other. (3A) An act is not related to another act if, in the opinion of the Tribunal or compensation assessor, having regard to the particular circumstances of those acts, they ought not to be treated as related acts. (3B) An act is not related to any earlier act in respect of which an award of statutory compensation has been made if it occurs after the award was made. (4) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence.
Sections 11 and 14 relates to "compensable injuries" and the compensation payable to primary victims: 11 Compensable injuries described by reference to act of violence (1) This section applies when the schedule of compensable injuries specifies, as a compensable injury, all injuries received as a direct result of a specified act of violence and specifies a single standard amount or range of compensation for all of those injuries. (2) An applicant for statutory compensation may elect whether to claim compensation of that single standard amount or range or to claim compensation of the total standard amounts for each of the injuries received by the applicant (subject to any discount rates or other provisions in the schedule of compensable injuries). (3) In the absence of an election, the person determining the application is to make the election. 14 Compensation payable to primary victims other than for expenses reimbursed under section 14A (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. (2) A primary victim who dies ceases to be eligible for statutory compensation, but a family victim may then become eligible for statutory compensation under this Act. Any pending application for compensation made by or on behalf of the primary victim does not survive the death of the primary victim. (3) Statutory compensation under this section is not payable for financial loss to the extent that Victims Assistance has been awarded for that loss.
An appeal to the Tribunal from a determination of a Compensation Assessor is to be determined "on the evidence and material provided to the Assessor." That general rule has two exceptions which are set out in s 38(3): 38 Determination by Tribunal of appeals and references (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.

[4]

The Tribunal's decision

The initial appeal to the Tribunal raised three grounds: 1. The Assessor erred in not finding the offence of domestic violence was satisfied. 2. The Assessor erred by not awarding the claim for psychological injury with our client having a GAF rating of 48 indicating serious symptomology. 3. The Assessor erred in finding there was no sexual assault.
The Tribunal set out the history of the matter before the compensation assessor, noting that on the evidence before the compensation assessor, ATX had failed to establish that she was the victim of an "act of violence" within the meaning of section 5(1) of the repealed Act. The compensation assessor's decision noted the following matters:

there was no supporting medical evidence contemporaneous to the claimed incidents, and predating the lodgement of the claim;
there was a lack of supporting police evidence; and
there was a lack of detail provided by the applicant and her solicitors.

The Tribunal determined to refuse to admit the further evidence of ATX's treating psychiatrist as it was not satisfied that special grounds were made out, or that in the absence of special grounds there were exceptional circumstances for the receipt of the material: repealed Act, s.38(3). In particular the Tribunal took issue with the weight that could be attached to the report because its findings and conclusions were merely assertions and were not supported by any accounts or other material referred to in the report.
The Tribunal then examined the issue of whether ATX had established that she was a victim of an act of violence in accordance with s 5 of the repealed Act. After setting out all the relevant provisions of s 5 the Tribunal stated, at [44] - [46], that: [44] The Macquarie Dictionary defines "domestic violence" as personal violence committed by one member or former member of a household against another." It defines "sexual assault" as "sexual activity inflicted on a person without their consent" and "(in some jurisdictions) a statutory crime replacing rape, divided into categories according to the degree of violence accompanying sexual intercourse." [45] Based on these definitions and the evidence that was available to the compensation assessor, I am not comfortably satisfied that ATX has discharged her onus of proving that she was the victim of any act(s) of violence for the purposes of Section 5(2) of the repealed Act. [46] Therefore, the Appeal must be dismissed.

[8]

Rejection of further evidence

The final ground of appeal was that the Tribunal had wrongly refused to accept evidence from ATX's treating psychiatrist as "further evidence" under s 38(3). ATX does not appeal against the Tribunal's finding not to accept a statement from ATX dated 14 May 2013.
At [26] to [30] the Tribunal set out the legal principles which apply when determining whether the Tribunal should admit further evidence. One of the requirements was said to be that the evidence "could not have been obtained with reasonable diligence for use at the trial": Victims Compensation Fund Corporation v Sarah Jane Hill (2000) NSWCA 75. The Tribunal found that ATX had not asked her psychiatrist for a report until 4 May 2013, more than two months after the compensation assessor's determination. Another requirement was said to be whether, if the evidence were admitted, there would be a high degree of probability that there would be a different decision. The Tribunal held that because the report was so short, lacked detail, contained "bald assertions" and was not accompanied by his clinical notes, this requirement had not been satisfied. While the Tribunal accepted that the psychiatrist's evidence was credible, it was not accepted as further evidence because, in the Tribunal's view, it did not meet the other requirements.
ATX did not dispute that the psychiatrist's report could have been obtained prior to the compensation assessor's determination. But ATX submitted that it was her understanding, based on cl 5, Schedule 1 to the repealed Act, that there was no need to obtain such a report since a report had already been obtained from an Allied Health Professional.
However, on consideration of the Tribunal's reasons in respect of the decision not to receive the report of the psychiatrist, there is no apparent error of law. The observations and findings by the Tribunal in respect of the minimal probative value of the report are consistent with our assessment of the contents of that report. Further, there appears to be no demonstrative error in the reasoning process on this point, so as to constitute an illogical or irrational reasoning process.
Because the Tribunal through no fault of the its own or the parties', did not have the hand written notes before it the appeal should be re-determined. The delay in finalising this matter has persuaded us that we should determine the merits of the application ourselves rather than remit the matter to the Tribunal at first instance: NCAT Act, s 81(2).

[15]

Conclusion

This evidence must be assessed to determine whether, on the balance of probabilities, ATX was the victim of an act of violence. The phrase "on the balance of probabilities" has been interpreted to mean that , "the mind has only to be reasonably satisfied": Reifek v McElroy (1965) 112 CLR 517 at 521-522. Although the Tribunal is not bound by the rules of evidence, we should take into account the matters listed in s 140 of the Evidence Act 1995 (NSW) when making findings of fact. That provision states that: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
The 'gravity of the matters alleged' is a relevant factor. Allegations of domestic violence and sexual assault are serious matters but there is no general rule, as the Tribunal suggested at first instance, that such allegations must be corroborated by other cogent evidence.
The evidence in the hand written notes is not inconsistent with the evidence and material obtained from police and the accounts of her adult daughter. ATX refers to the fact that she was being treated by a psychiatrist at the time. Because of the nature of these proceedings ATX's evidence has not been tested. Despite that, it does not appear to us to be exaggerated or fanciful. In addition it is sufficiently detailed for us to regard it as credible. Based on all the evidence we find that ATX is the victim of an act of violence within the meaning section 5(1) of the repealed Act. In accordance with the provisions of section 5(3) and section 5(4) of the repealed Act, we find that the series of related acts claimed by ATX constitute one act of violence for the purposes of the repealed Act.

[18]

Severely disabling

For ATX to succeed in her claim for a Category 2 psychological disorder she must establish that a disorder is present as a direct result of the act of violence (or due to the exacerbation, aggravation acceleration or deterioration of an existing condition) and that this disorder is both severely disabling and chronic.
Those words "severely disabling" should be given their ordinary meaning. In the Macquarie Concise Dictionary "severe" in connection with an illness has the meaning of "grave". "Disabling" has the meaning "to weaken or destroy the capability of; cripple; incapacitate".
The word "disabling" is not defined in the repealed Act. There has been considerable discussion as to the meaning of the word in the context of the repealed Act. Some help is obtained from the Second Reading Speech in Parliament. When introducing the new compensable injury of "psychological or psychiatric disorder" into the Victims Compensation Bill the Minister Mr Dyer stated: The new injury category will require diagnosis of a long term psychological injury which results in severe impairment of the person's ability to function in their usual day to day activities. (Hansard 11.12.1998).
Therefore to be eligible for a Category 2 psychological / psychiatric compensable injury ATX's impairment has to be more than mild or moderate. It has to be such as to be considered severely or seriously incapacitating or disabling. Buckley v Victims Compensation Fund Corporation (2004) NSW SC 513 at [34], per James J, is authority for the proposition that it is a matter for the Assessor or Tribunal Member to determine whether the "affectation" and "incapacitation" caused by the act of violence amount to a condition that is overall within the meaning of the statutory compound phrase "severely disabling."
We note that ATX: 'has some friends but she prefers to spend time alone than to go out to see them. She stated, "I'd rather phone them. I spend my days alone. I find comfort in my home". She stated that she shops alone without difficulty'. (ARW Report page 4). ' (ATX) was suffering some depression prior to meeting the offender. She has also been diagnosed with chronic schizophrenia.' (ARW Report page 6).
Section 7(1) of the repealed Act provides that the applicant must suffer a compensable injury as a direct result of the act of violence. (Emphasis added).
In respect of ATX's claim for a compensable injury of Chronic Psychological or Psychiatric Disorder that is severely disabling, the ARW refers to her current functional status and disability. The testing and assessment performed by the ARW led to the following conclusions: "(ATX) was suffering some depression prior to meeting the offender. She has also been diagnosed with chronic schizophrenia". … "Regardless, when considering the cause of the chronic PTSD, it should be noted that the violence and sexual assaults that are the subject of this report are of sufficient severity to alone give rise to her current presentation."
Based on the ARW report, we are not satisfied that ATX suffered a compensable injury of Psychological or Psychiatric Disorder Category 2 as a direct result of the act of (violence) alleged in the Application, or on the basis of one of the criteria as provided by Clause 4 of Schedule 1 to the repealed Act.
Based on a consideration of all of the evidence, we are not satisfied that ATX has suffered an alternate compensable injury.

ATX v Victims Compensation Fund Corporation

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