AYV v Victims Compensation Fund Corporation

Grounds of Appeal 10The Notice of Appeal was lodged on 22 July 2013. The Grounds of Appeal are: (1)Incorrect assessment of injuries prior to assault. (2)Incorrect assessment of injuries due to assault. (3)Incorrect assessment of future work +/or cause.

Application of the old Act 11On 7/05/2013 the New South Wales Government introduced legislation that changed the form of support provided to victims of violent crime in New South Wales. The Victims Support and Rehabilitation Act 1996 ("the old Act") was repealed and replaced by the Victims Rights and Support Act 2013 ("the new Act"). The legislation came into force on 4 June 2013 and the Tribunal was then abolished and, by operation of Clause 14 of Schedule 2 of the new Act, appeals to it were taken to have been commenced before the Administrative Decisions Tribunal ("ADT"). AYV was advised of this by letter from the Registrar of the ADT dated 31 July 2013. 12However, on 16/08/2013, Clause 16 of the Victims Rights and Support Regulation 2013 ("the Regulation") commenced operation. This provided that despite the repeal of section 36 of the repealed Act, if a notice of determination of a compensation assessor was served before the repeal and an appeal could have been duly made in accordance with section 36 (3) (a) if it were still in force, an appeal may be made after 3 June 2013 as if section 36 (other than section 36 (2) and (3) (b) ) were still in force. 13On 15 October 2013, the Registrar of ADT wrote to AYV advising him of the ADT's guideline for dealing with the appeal and the opportunity to make final submissions prior to the reserved date of 10 January 2014. 14However, the ADT was abolished from the date of commencement of the Civil and Administrative Tribunal Act 2013 No 2 and Clause 7(1) of Schedule 1 Savings, transitional and other proceedings, provides: All unheard proceedings in an existing tribunal are taken, on and from the establishment day, to have been duly commenced in NCAT and may be heard and determined instead by NCAT. 15Further, Clause 7(3) provides: For the purposes of subclauses (1) and (2): (a) NCAT has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and (b) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply. 16As a Senior Member in the Administrative & Equal Opportunity Division of the NCAT, I have been directed by the President of the NCAT to hear the appeal and, in doing so, to exercise all the functions that were exercised by the Tribunal immediately before the commencement of the new Act.

Decision on the papers 17AYV has not applied for the appeal to proceed by way of hearing and I am satisfied that the matter can be properly determined without a hearing under section 38(2) of the old Act.

Act of violence 18Section 29(2) of the old Act provides that in order to make an award of compensation the Tribunal must be satisfied that: ... 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. 19In essence the Assessor found that AYV was a victim of an Act of violence in accordance with the provisions of section 5 (1) of the old Act. Having considered all of the evidence and other material on file, I make that finding that the elements of section 5 (1) are made out. I also make a finding that there are no relevant section 24 or section 30 issues that would impact on AYV's claim.

Whether to receive further evidence 20Section 38 (3) of the old Act provides that the appeal from a determination of a Compensation Assessor is to be determined "on the evidence and material provided to the Assessor". I have read and considered the whole of the evidence before the Assessor. I have taken it all into account even though I may not refer specifically to all the evidence and material in these reasons. 21Section 38(3) of the old Act provides as follows - "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" 22AYV seeks leave for the Tribunal to receive into evidence the following material - Neuropsychological Assessment Report of Clinical Neuropsychologist dated 2 June 2014. 23The 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. 24In 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]. 25In 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." 26The Court also identified the legislative purpose for s 38(3) - "26 The mischief that led to 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)" 27This Tribunal's Victim Support Division: Transitional Appeals: Guideline. A copy of which was sent to AYV, advises that - If a party seeks to rely on new evidence or material that party must either identify the special grounds on which the evidence or material should be received or establish that the evidence or material concerns matters occurring after the determination appealed against. [old Act, s 38(3)] 28This is not an exceptional case, which would justify setting aside one or more of the "special grounds" requirements. 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 Assessor's determination? 29In my view the evidence could not have been provided earlier. The matters that the assessor concluded could not have been reasonably foreseen by AYV. I note that AYV was self- represented and operating under significant impediments since the act of violence. Whilst AYV was put on notice about the need to file medical evidence prior to determination, due to the complexity of his own existing medical documentation and history, the fact that no neurological reports were obtained under section 65 of the old Act to distil the specific issues pertinent to his claim, and the myriad medical problems facing AYV and the fact that they both arose and were exacerbated in part by different stressors, meant that his claim could not be easily assessed. 30In addition I note that the Assessor did not adjourn the matter and call for a specialist report under section 65. This is not a criticism of the Assessor or the listing practices of the Tribunal. In fact either approach at that juncture may have seemed impractical as the legislation that in effect abolished the scheme under which AYV's claim was being determined, was introduced into the Legislative Assembly the day following the Assessor's determination. The subsequent provisions of Clause 16 of the Regulation introduced in August 2014 were apparently not envisaged in the Bill as initially introduced.

Is the evidence credible? 31The evidence is no less credible (on the face of it) than any of the earlier evidence supplied by AYV. Whilst I note the Clinical Identifier placed on the report, it is my role to determine the matter as I see fit having regard to the provision of the legislation, and all the evidence before me.

Is the evidence likely to result in a different outcome? 32Would it more likely than not it assist in a different outcome if it were received? On my assessment, the fresh evidence amplifies the existing evidence on file. It also clarifies to some extent aspects relating to AYV's brain injury. In essence however there is already sufficient evidence to identify elements of a compensable injury. The fresh evidence provides for the application of Clause 8 and Table 1 to Schedule 1 of the old Act. In the exercise of my statutory discretion I decide to receive the fresh evidence.

Has AVY sustained a compensable injury above the threshold? 33I note that the medical reports dated 1 July 2011 indicate an increase in AYV's unsteadiness following the assault. Chronologically the report shows: He was starting to improve but unfortunately was assaulted 18/3/11 with a concussion. His unsteadiness is worsening - now falling to the right side -? Not seemingly related to leg weakness. (Evans Head Medical Centre report Dr A.T. 1/7/2011) 34The WorkCover Medical Certificate dated 2 February 2012 states: He has actually worsened in his imbalance due to a concussion / assault 18/3/2011. He will go to see a neurologist 18/8//2011. Hi head CT was normal. This is likely an exacerbation of the weakness of the workplace injury. He has been evaluated by Dr T.E., neurologist, on 17/8/2011 who diagnosed him with labyrinthine concussion due to the assault. This will take 6-12 months to resolve. It has compounded his poor balance that was due to the back injury from this work cover claim due to right leg weakness. In the current matter, I note the diagnosis, and finding as to the long term nature and level of disability caused by the chronic condition. 35Schedule 1 contains special provisions relating specified types of compensable injury. These include psychological or psychiatric disorder, sexual assault, burns and scarring and domestic violence. With respect to psychological or psychiatric disorder Clause 5 provides: (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 Director may suspend or revoke the designation of a person under subclause (1). (3) The compensable injury of psychological or psychiatric disorder (category 1) applies only in relation to an act of violence that has apparently occurred in the course of the commission of any of the following offences: (a) armed robbery, (b) abduction, (c) kidnapping. 36I note the ARW's diagnosis of a: 'moderately severe Posttraumatic Stress Disorder (PTSD) of chronic duration'. (Pg 6 of ARW Report dated 27 August 2012). I also note the opinion at page 7 that 'In my opinion, it was reasonable to conclude that (AYV's) exposure to the 18 March 2011 assault was the principal aetiological factor supporting his currently presenting symptoms of PTSD'. I also note the GAF (Global Assessment Functioning scale DSM IV TR) rating of 55 and the SOFAS (Social and Occupational Functioning Assessment Scale DSM IV TR) rating of approximately 45. 37On this basis I am not satisfied that AYV has sustained a psychological or psychiatric disorder that is both chronic and seriously disabling as a direct result of the act of violence. Clause 4 of Schedule 1 of the old Act does not apply to this injury, as I make a finding of fact that the specific compensable injury is not present at the time of assessment. (emphasis added). 38The case of Buckley v Victims Compensation Fund Corporation (2004) NSWSC 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." 39I note the fresh evidence which I have now received. (See paragraph 32 above). Even without that evidence it appears that AYV would be able to substantiate a compensable injury above the threshold having regard to clauses 4 and 8 and Table 1 of Schedule 1 of the old Act. 40From the Neuropsychological Assessment Report dated 3 June 2014 I note the finding that: 'There does appear to be evidence of a traumatic brain injury, at least moderate and possibly severe.' (Page 3.) 'It is suspected that he did sustain at least a moderate traumatic brain injury in the attack, possibly severe but this is difficult to establish given the limited supportive evidence.' (Page 6). 41There is evidence of a claim for financial loss as a direct result of a compensable injury. (s- 18 (1) (a) of the old Act). 42Section 14(1) of the old 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. 43Schedule 1 to the old 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: see s 10. As authorised by s 13 the schedule also contains provisions prescribing, among other things - (1)How compensation is to be calculated where a victim has received more than one compensable injury, namely the full standard amount for the most serious injury, 10% of the next most serious standard amount, 5% for the third most serious injury, and nothing for further injuries (see: Clause 3). (2)That where an act of violence results in a compensable injury "because of the aggravation, acceleration, exacerbation or deterioration of an existing condition" for the standard amount to be reduced to allow for the proportionate amount attributable to the pre-existing condition (see: Clause 4). 44Clause 4 of Schedule 1 of the old Act provides that: 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 that the Tribunal or compensation assessor considers is attributable to the existing condition. 45The High Court has commented on the purpose of the old Act. In VCFC v Brown HCA 54 [2003] at 33 Heydon J said: Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. 46Based on the evidence on the claim, under section 14 (1) (a) of the old Act, the following statutory compensation is payable. Applying Clause 8 of Schedule 1 to Table 1 of the old Act I make a finding of a compensable injury of: Brain Damage: Moderate Impairment (to balance and motor functioning rather than specifically social and intellectual functioning. 47Under Clause 8 (a) and (b) the injury is present and initially assessed at $36,000.00. Applying Clause 4 of Schedule 1 of the old Act I reduce the amount by 40% Clause 4 due to the earlier stressor of 20 October 2010. I also make an award under section 18 (1) (a).

Conclusion 48I make the following orders: (1)Pursuant to section 38 (5) of the old Act, I set aside the decision of the compensation assessor. (2)I make an award of statutory compensation in the sum of $21,600.00 (3)I make an award under section 18 (1) (a) in the sum of: $4,348.20 Total Compensation payable to AYV: $25,948.20

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: 21 August 2014