ATX v Victims Compensation Fund Corporation

Legislative scheme under repealed Act

1. Section 29(2) of the repealed Act provides that: (2) An award of statutory compensation must not be made unless the compensation assessor is satisfied, on the balance of probabilities, that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.
2. 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.
3. 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.
4. 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.

The application

1. ATX applied under the repealed Act for compensation as a primary victim of physical and sexual assault by her former husband for the period from 1 June 1994 to 14 September 2009. On 18 February 2013 a compensation assessor delegated under the repealed Act refused the application.
2. On 9 May 2013 ATX appealed to the Victims Compensation Tribunal, as it was then known. However before that appeal had been heard, that Tribunal was abolished and, on 1 January 2014, ATX's appeal was transferred to the NSW Civil and Administrative Tribunal. On 21 February 2014 the appeal was dismissed by a Senior Member siting in the Administrative and Equal Opportunity Division.
3. ATX then appealed that decision to the Appeal Panel of the Tribunal. The Appeal Panel has jurisdiction to hear this appeal: ATX v Victims Compensation Fund Corporation [2014] NSWCATAP 71.
4. The grounds of appeal are that: 1. The report from [ATX's] treating psychiatrist should have been admitted on appeal. 2. The report of the Authorised Report Writer, Dr Leah Giarratano, should have been given more probative value. 3. The Assessor erred in finding that no journal articles were previously submitted.

The Tribunal's decision

1. 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.
2. 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.

1. 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.
2. 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.

Absence of hand written notes from evidence before Tribunal

1. The Tribunal stated, at [24], that: Contrary to the assertions contained in the particulars, no "journal articles" or other factual evidence from ATX or medical evidence from any treating doctor or allied health professional was lodged prior to the determination.
2. The determination to which the Tribunal was referring was the determination of the Compensation Assessor. The "journal articles" were 10 pages of hand written notes detailing ATX's recollections of how her former husband had treated her. ATX's solicitor had sent those notes to Victims Services under cover of a letter dated 16 November 2011. The Compensation Assessor did not identify those notes or take them into account when the application was assessed on 18 February 2013. They were not with the material that Victims Services sent to the Tribunal when ATX appealed.
3. On the basis of the statutory declaration of ATX's solicitor, Gerard Morson, dated 20 March 2014, we are satisfied that the hand written notes were provided to Victims Services but that for an unknown reason they were not taken into account by the Compensation Assessor and were not forwarded to the Tribunal when ATX appealed.
4. While the absence of the handwritten notes does not amount to an error of law on the Tribunal's part, it is a basis on which leave should be granted for ATX to appeal: Collins v Urban [2014] NSWCATAP 17. The notes are evidence from ATX as to the circumstances of the alleged assaults. They are directly relevant to the issue of whether ATX was the victim of an act of violence. The Tribunal should have taken them into account.

The Tribunal's failure to give weight to the psychologist's report

1. The Tribunal was mistaken when it found at [24] that ATX had not adduced any "medical evidence from any treating doctor or allied health professional prior to" the compensation assessor's determination. In fact, there was in evidence a detailed report from Dr Leah Giarratano, a clinical psychologist. The Tribunal quoted from that report in its reasons but did not refer to it when reaching its conclusion. These report writers are 'allied health professional' and the report was provided under the Authorised Report Writer (ARW) scheme. Clause 5 (1) and (1A) of Schedule 1 to the repealed Act provided that: 5 Psychological or psychiatric disorder (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 Tribunal's failure to refer to Dr Giarratano's report when reaching its conclusion meant that we cannot be satisfied that the Tribunal gave it any weight.

Was ATX the victim of an "act of violence?"

1. 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.
2. The terms "sexual assault" and "domestic violence" are defined in the repealed Act and those definitions should have been applied: repealed Act, Schedule 1, cl 5 and 7A.

Rejection of further evidence

1. 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.
2. 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.
3. 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.
4. 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.
5. 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).

Evidence

1. The application will be determined on the basis of the following evidence:

• ATX's application for compensation;
• police reports;
• ATX's hand written notes;
• Dr Giarratano's ARW report; and
• a photo of ATX's arm purportedly showing cigarette burns she administered by way of self-harm;

1. To constitute an act of violence as defined in s 5 (1)( a) and (b), there needs to be evidence that an act or series of related acts committed by one or more persons, apparently occurred in the course of the commission of an offence, and involved violent conduct against the person.

Application Form

1. The Application Form declared in May 2011 provides the following evidence at Part 4 under the heading 'Briefly describe what happened' : Emotional and verbal abuse on a daily basis. Occasional physical assaults which included him punching, hitting and kicking me. I was sexually assaulted numerous times during the course of our marriage

Police Material

1. The police material comprises copies of notebook entries, COPS Events and a police investigation summary. That material does not disclose evidence of any 'violent conduct' or assault against the person, but does provide evidence as to the basis for ATX's attendance on the police station, and her reluctance to proceed further at that time in providing evidence of criminal matters to police. The police material also refers to ATX's schizophrenia and major depression, and the fact that she is being treated by a psychiatrist.

Journal Entries

1. ATX's hand written notes are in evidence and are now available to be considered. Before us are some nine pages of hand written notes which it is submitted are ATX's journal entries. The entries were created in the weeks and days immediately prior to ATX's assessment by the ARW, Dr L Giarratano. Those entries make numerous allegations of verbal, physical and sexual abuse in a domestic context. ATX provides material indicating that she was forced to witness various sexual acts, placed in a headlock when she attempted to flee, hit, punched and kicked in the arms and legs or backside, pushed onto the lounge and sustaining a bruise, and forced to have sexual intercourse without consent.

ARW Report

1. The report of the ARW Dr L Giarratano arises from an assessment conducted on 6 December 2011. The report is relevant to a consideration of the first two elements of 'act of violence' under section 5(1)(a) and (b) of the repealed Act. It is clear from the report that the ARW had ATX's application, police material, and the hand written notes before her at the time of the interview and assessment.
2. The reported description of the incidents is: "that she was repeatedly sexually assaulted between the period 1 June 2004 and 14 September 2009. She stated that her former partner was the offender and the assaults occurred on a frequent basis during the period.". The detailed description of the nature and form of the sexual assaults is consistent with the journal entries. Under medical history ATX nominated that whilst she had not been subject to other acts of crime, she does have a history of depression and was diagnosed with schizophrenia after being medically treated and assessed early in her relationship with the offender. Again, there is reference to treatment during the nominated period by her psychiatrist.
3. The ARW assessment also included an interview with an informant, ATX's daughter 'E.B.'. That material, as recorded by the ARW, supports ATX's claim. Reference is made to an account of observations of ATX's moods and behaviours since the incidents which are the subject of her claim.
4. In respect of evidence of injury, the third element of an act of violence as defined in section 5 (1)(c) of the repealed Act, the ARW makes a diagnosis of Post-Traumatic Stress Disorder as a result of being subjected to sexual and physical assaults between the period 1 June 1994 and 14 September 2009. This diagnosis is in addition to confirming the pre-existing diagnosis of chronic schizophrenia.

Photograph of ATX's arm supplied to Tribunal

1. This photograph was taken after the determination by the compensation assessor. In accordance with the provisions of section 38 (3) of the repealed Act, the Tribunal may, by leave, receive further evidence and material (in the absence of special grounds), if that evidence concerns matters occurring after the determination appealed against.
2. ATX's solicitors submitted that the photograph is evidence of ATX's self- harm, due to her psychological and or psychiatric disorders arising from the claimed acts of violence. There is an unsworn statement of ATX dated 14 May 2013. That statement is not in evidence, however one paragraph concerns the photograph and matters occurring since the determination appealed against. Paragraph 38 states that the self- harm incident occurred 'on Saturday, 4 May 2013.' We give leave to receive the photograph and paragraph into evidence.

Conclusion

1. 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.
2. 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.
3. 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.

Has ATX sustained a compensable injury?

1. The evidence from the ARW satisfies us that ATX has suffered psychological harm as a direct result of the act of violence.
2. There is no evidence of any claim for financial loss as a direct result of any compensable injury, however there is a claim for costs and disbursements arising from the appeals. Section 14(1) of the repealed 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.
3. Schedule 1 to the repealed Act specifies compensable injuries under the Act and the "single standard amount" or range of compensation payable as a result of an act of violence: repealed Act, s 10.

Chronic psychological or psychiatric disorder that is severely disabling?

1. The appeal presses the ground that ATX is eligible to receive, as an alternative compensable injury, an award of statutory compensation for the compensable injury of: Category 2, chronic psychological or psychiatric disorder that is severely disabling.
2. We are not satisfied on the basis of the ARW report that ATX has sustained a psychological or psychiatric disorder that is both chronic and severely disabling, as a direct result of the act of violence which is subject of this claim.

Severely disabling

1. 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.
2. 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".
3. 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).
4. 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."
5. 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).
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).
7. 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."
8. 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.
9. Based on a consideration of all of the evidence, we are not satisfied that ATX has suffered an alternate compensable injury.

Compensable injury of sexual assault or domestic violence

1. Section 11 of the repealed Act sets out the test when considering compensable injuries by reference to an act of violence. ATX is only eligible to receive an award of sexual assault or domestic violence in accordance with section 11(2). Having regard to the provision that the legislation is to be interpreted beneficially to an Applicant, in the absence of an election by ATX, we elect under section 11(3) to make an award for the compensable injury of sexual assault.

Reasons for not making award or for reducing amount of compensation payable

1. The repealed Act requires the decision maker (having found an act of violence and evidence of a compensable injury for which compensation may be payable), to have regard to any evidence of specific behaviour of an applicant: repealed Act, section 30 (1). However noting the specific provisions of section 30(2) (c) and (d) of the repealed Act, we consider that there are no relevant issues under section 30(1) which would impact negatively on the making of any award for statutory compensation.

Conclusion

1. We make the following orders: 1. Leave is granted for the appeal to proceed on grounds other than a question of law. 2. The decision of the Tribunal is set aside. 3. The decision of the compensation assessor is set aside. 4. ATX is awarded the sum of $25,000.00 for Category 3 Sexual Assault. 5. Costs are awarded in the sum of $1500.00

---

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: 16 March 2015