AZP v Victims Compensation Fund Corporation

NCAT Administrative and Equal Opportunity|2014-09-12

reasons for decision 1AZP claims statutory compensation by way of an application lodged in November 2010, in which he alleges that he suffered a psychological or psychiatric compensable injury as a result of a home invasion which occurred at his residence at Arcadia in the State of New South Wales on 3 November 2010. 2I note that AZP has been self-represented in relation to the application for compensation and subsequent appeal. 3On 12 November 2010 AZP submitted the Application to the Victims Compensation Tribunal ("the Tribunal"). 4I note that the application was lodged within the statutory period required by section 26 of the old Act. 5On 14 June 2011 approval was given for AZP to see an Authorised Report Writer (ARW) for the purpose of establishing evidence of a compensable injury in accordance with Schedule 1 Clause 5 (1) of the old Act. The reason for the delay being that the Tribunal needed to ensure the passage of a significant period of time between the incident which gave rise to the claim, and the date of assessment. 6On 3 July 2012 the Tribunal advised AZP that the matter was listed for determination at the first available opportunity on or after the month of October 2012. 7I note that AZP was reminded of the need to ensure that all relevant evidence to establish the claimed compensable injuries must be received prior to the listing date. 8AZP provided material in connection with a claim for expenses under section 18 of the Act on 12 September 2012. 9On 6 May 2013, the Compensation Assessor determined that AZP was not entitled to compensation and issued a detailed Notice of Determination under section 29 of the old Act. As a preliminary step the Assessor found that AZP was the victim of an act of violence. The Notice of Determination, which was (inter-alia) in the following terms, advised: ...The applicant alleges that on 3 November 2010 at his residence at X Road Galston, he was awoken by voices and banging noises outside his residence. (AZP) asserts he recognised the males voices and went and hid, fearing he was going to be attacked. The males continued to verbalise threats to (AZP) as he hid from them. The offender then vandalised and damaged his residence after breaking into it. .... An 'act of violence' is established in this matter, pursuant to s.5 of the Act. I find no detrimental nor impacting s.24 nor s.30 (1) issues on the evidence before me. I note the offenders were convicted of aggravated break, enter and steal and malicious damage offences relating to this matter. .... Firstly, (AZP) has not indicated which of the psychological disorder injuries under the Act he is seeking compensation for in this matter. From the description though of the act of violence, I cannot find that it constitutes an armed robbery, kidnapping or an abduction offence. Consequently (AZP) is not eligible to seek compensation for a 'chronic psychological /psychiatric disorder that is moderately disabling' as only those abovementioned offences potentially attract compensation for this injury. In the alternative, I have considered whether the ARW report might establish a 'chronic psychological/psychiatric disorder that is severely disabling for (AZP). 10The Assessor went on to examine the presence of the Category 2 Psychological / Psychiatric Disorder compensable injury, and in the absence of sufficient evidence, dismissed the application.

Grounds of Appeal 11The Notice of Appeal was lodged on 9 August 2013. The Grounds of Appeal are: (1)I suffered severe PTSD, was unable to work, due to flashbacks and panic attacks / anxiety. (2)I attended Counselling for over 12 months attending 2-4 per month. (3)I had to relocate home because of further threats of violence. Particulars of appeal were filed in support of the application. (i)I was employed at the time of the incident and lost my job due to inability to concentrate, due to lack of sleep, antidepressants for PTSD.

Application of the old Act 12On 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"). AZP was advised of this by a letter from the Registrar of the ADT dated 16 August 2013. 13However, 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. 14On 22 October 2013, the Registrar of ADT wrote to AZP 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 24 January 2014. 15However, 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. 16Further, 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. 17As 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 18AZP 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, pursuant to section 38 (1). The application turns on an interpretation of uncontroversial facts and AZP's credibility is not in issue.

Act of violence 19Section 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. 20In essence the Assessor found that AZP was a victim of an Act of violence in accordance with the provisions of section 5 (1) of the old Act. The circumstances of the act of violence became a necessary consideration as the only compensable injury before the Assessor, was an injury in the nature of a chronic psychological or psychiatric disorder that was disabling. 21The circumstances of the incident are relevant due to the operation of Clause 5 (3) of Schedule 1 of the old Act. The Clause provides: 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. 22The Compensation Assessor made the following relevant comment in their determination: 'From the description though of the act of violence, I cannot find that it constitutes an armed robbery, kidnapping or abduction offence'. 23The Compensation Assessor does not outline which evidence they considered in reaching this conclusion. The description of the incident appears in numerous places in the material before the Assessor. The Application Form, Police material associated with the investigation of the incident and the charging and prosecution of the offenders, and the recollection of the incident as reported to the Authorised Report Writer (ARW).

Evidence of act of violence 24In the application form, at Part 3, AZP declares that he: Was asleep in my bed when I heard voices outside and banging, got out of my bedroom and went and hid before intruders come through my walls with weapons looking to attack me and my belongings. They also attacked my vehicle. The below 2 offenders were charged but police have ongoing investigations where there are up to five people involved in the incident. ('below' referring to the next entry on the Application Form) 25The COPS Event provides the following evidence: At about 9:30am the victim has received a phone call from a friend telling the victim to make sure he locked his doors tonight because the "B........... Boys" are on a rampage. The victim secured his house and went to bed. (Elsewhere in the Event: ) The victim received a phone call from a mutual friend of the (offenders) family. He told the victims to lock his windows and doors as the POI's were on a rampage. The victim got up and prepared his premises for an attack. About 10:45 the victim has woken to banging and yelling outside the front of his house. The victim heard the people say "you better come out or we will come in and get you". The victim has heard a second voice say, "Yeah if you don't come out we will come in no matter what". The victim has heard a lot of repeated kicks to the wall of his house. (Elsewhere in the Event: ) He then heard someone kicking at the front door. He heard (NB) say words to the effect of "Come on c... If you don't let us in were coming in to get ya". Another person said, "we can't get through this door it looks like we're going to have to go through the wall". Then another said, "F... it lets go through the wall". The victim has got out of bed and quickly walked out the back of his house and hid underneath a tarp which was located in his backyard. (Elsewhere in the Event: ) At this stage the victim got out of bed and walk past the area they were trying to get in. [sic] The victim walked to the rear of the house and hid. He could hear the persons breaking through the fibro walls and enter the house and start smashing things. He heard his dog barking and the persons attempting to get rid of the dog. The victim attempted to ring '000' on his mobile phone but had no reception. He heard glass smashing and a voice saying "where is he, where is he". The victim has told police that he recognised one of the voices to be POI 1 (NB) and another voice to be POI 2 (CB). While the victim was hiding he continued to hear glass smashing and realised they had gained access to the house by breaking down the wall. The victim told police that he kept hearing things being broken and his property being pulled out of his bedroom. The victim stated to police that he was in shock and scared for his safety. 26The ARW Report provides the following evidence: On 3 November 2010 at approximately 10:40pm he was woken up by his dog barking and someone yelling at him from the front of his house. (AZP) reported that someone called out " come out the front we are going to kill you" so he let his dog out and the dog attacked the men but was beaten and kicked. He identified the men and the B........ brothers and believes there were four of them. (AZP) reported that he managed to get out of his house and hide in his boat. He reported that he was terrified and lay there in fear of his life afraid to move. He reported that the men "trashed" his house and smashed his car windows. He reported that he could hear his dog yelping and felt guilty that he was hiding instead of confronting the B.....'s. 27I note that the evidence in the COPS Event and Application Form are in effect contemporaneous accounts, and the report to the ARW is nineteen months after the incident. It would appear that AZP was trapped at his address unable to leave because of the serious corporal violence being threatened against him, and the significant malicious damage occurring. 28Section 86 of the Crimes Act 1900 provides for the offence of Kidnapping. The form of indictment reads that: the (accused) on (date) at (location) in the State of New South Wales took / detained (victim) without his / her consent and with intent to hold him/ her to ransom / with intent to obtain an advantage, namely (state advantage). The aggravated offence occurs (for the purposes of this application) when the offence is committed in company. 29It is not necessary for the element of ransom to be present on the facts as an 'advantage'. The Elements of the offence as set out in the Proof Material to the Crimes Act 1900 are: [27-18,155.1] Basic Offence (1) The accused took or detained the victim; and (2) this was done without the consent of the victim; and (3) the accused did this with the intention of either: (i) holding the victim to ransom; (ii) obtaining any other advantage [27-18,155.5] Aggravated offence (repeat elements of basic offence and in addition): and (4) either: (i) the accused was in the company of another person or persons or (ii) immediately before, at the time of , or immediately after the commission of the offence actual bodily harm was occasioned to the victim (Emphasis added) (Butterworths Criminal Practice and Procedure NSW) 30In the areas of victims compensation, the District Court has dealt with interpretation of the facts in respect to whether the elements of a kidnapping offence are made out. In Kyriakopoulos v Victims Compensation Fund [2007] NSWDC 304, Johnstone DCJ made the following observations: (Para 3) The words "detaining" and "taking" are defined. Detaining is defined to include: "causing the person to remain where he or she is". Taking is defined to include: "causing the person to accompany another person and causing a person to be taken". It is to be noted that these definitions are inclusive and not exclusive. I refer therefore to the meaning of detain, the ordinary meaning of detain. (Para 4) In the New Shorter Oxford English Dictionary the various meanings of "detain" include: 'Place or keep in confinement; keep as a prisoner; keep from proceeding; hold back, delay or stop." The definition in the Macquarie Dictionary (revised third edition) include: "To keep from proceeding; keep waiting, delay; to keep under restraint or in custody". (Para 11) The solicitor for the Fund submits that the facts do not support a conclusion that Mr Kyriakopoulos was detained. He says at most it can only be that he was caused to go back into his own abode, having tried to prevent the intruders from entering his house. The evidence does not support a conclusion that he was stopped or prevented from going anywhere else. This is confirmed by the fact that he was able to make a phone call, notwithstanding their presence. (Para 12) Clearly Mr Kyriakopoulos was assaulted, and the facts might not support a conclusion of kidnapping if one were only to look at the ordinary sense of the word or what people might understand it to mean in common parlance. I might also observe that it is not to the point that the facts supported one crime or constituted another crime such as an assault. The only issue is whether these facts support a conclusion that there was a kidnapping within the meaning of s 86. Very simply that means, or the issue is, whether he was detained, either within the extended meaning in the Act or within the ordinary meaning of the word in the dictionary. (Para 13) In my view the facts support a finding that Mr Kyriakopoulos was held under restraint and prevented, or his free will impeded, from doing or going where he wanted to go. ... (Para 14) In my view, therefore, the facts established do constitute a kidnapping within the meaning of the Act and I therefore conclude that the Victims Compensation Tribunal made an error of law in that regard. 31Having considered all of the evidence reproduced above, and noting the guidance from the proof material and the judgment of Johnstone DCJ, I find that AZP was detained at his premises during a home invasion / rampage, involving multiple offenders, with the advantage being, to damage or destroy AZP's property and if possible injure, harm or kill AZP. In essence, once the Compensation Assessor found that the incident constituted an 'offence against the person' by satisfying the statutory expression of 'violent conduct' against one or more persons' (s-5 (1) (b) of the old Act) then it followed that the facts supported an offence tied to the person (as set out in Schedule 1 (Clause 5 (3) ), as opposed to a property based offence. It is possible that in determining the circumstances of the offence the Compensation Assessor having traversed section 5 (1) (a) (b) and (c) looked to the actual criminal charges which proceeded - all being property based offences. 32I am satisfied that subject to the medical evidence, the facts support the availability of either a Category 1 or Category 2 psychological or psychiatric compensable injury as the facts do constitute a kidnapping within the meaning of the Crimes Act 1900 and the old Act. Nothing turns on what offences, on the available evidence, prosecuting authorities (Police etc) ultimately decided to bring the offenders before the Court. 33Section 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.

Has AZP sustained a compensable injury above the threshold? 34Schedule 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).

Psychological or Psychiatric injury 35In respect of the claim for a Category 1 or 2 Psychological or Psychiatric Disorder compensable injury, I note the ARW's consideration of a diagnosis of a: 'Posttraumatic Stress Disorder, Chronic', according to the Diagnostic and Statistical Manual of Mental Disorders, DSM IV.' (Pg 9 of ARW Report dated 18 June 2012). It is reasonable to conclude that the disorder had persisted for 19 months at the time of assessment so it can be deemed to be chronic or long term in nature.

Severely Disabling 36Those 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". 37The word "disabling" is not defined in the old Act. There has been considerable discussion as to the meaning of the word in the context of the 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). 38However whilst the ARW opines that he believes that AZP's symptoms severity in respect of disability and functional status have been 'persuasive and chronic', the ARW's assesses his functioning at the time of the assessment under the Global Assessment Functioning (GAF) as a score of approximately 60. (Page 4 ARW Report). 39In addition the ARW opines that AZP has 'gradually learned to cope with his symptoms and they have started to decrease slightly in their severity and intensity'. (ARW Report page 9) 40On the basis of the evidence before me, I am not satisfied that AZP has sustained a psychological or psychiatric disorder that is both chronic and severely 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). 41The 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." 42However it is clear on the evidence before me that AZP is suffering from a chronic psychological or psychiatric disorder that is moderately disabling as a direct result of the act of violence. 43There is a claim for financial loss / expenses under section 18 and or section 14A of the old Act. 44Unfortunately the claim for actual loss of earnings under section 18 (1) (b) has not been particularised in accordance with the provisions of the Victims Support and Rehabilitation Rule 1997. Clause 7 (2) (b) of the Rule provides that: In the case of actual loss of earnings- the name and address of the employer, the period of absence from work and a statement from the employer substantiating those particulars. 45AZP has provided three payslips and a Payroll Advice Summary from the period surrounding the act of violence. However this does not establish that beyond 16 November 2010 that AZP did not work, or was not able to avail himself of sick leave as a result of not being fit to work. All that is before me is evidence of his hours and payments for the periods 20/10/2010 - 26/10/2002, 27/10/2010 - 2/11/2010, 3/11/2010- 9/11/2010 and 10/11/2010- 16/11/2010. Whilst AZP indicates that he reduced his hours and eventually found it necessary to in effect abandon his employment due to his increasing poor concentration, section 18 (1) (b) does not provide for payment in those circumstances, unfortunate as they appear. 46Likewise, any claim for loss of personal effects is limited to $1,000.00 and quarantined to items worn on the victim when the act of violence was committed. AZP's claim is essentially based on loss of personal effects and chattels destroyed in the home during the act of violence. Likewise with the cleaning expenses. The Victims Assistance Scheme now makes provision for payments in some circumstances whereby an applicant receives statutory compensation for injury, (see note to section 14A (2) ). However Clause 7A of the1997 Rule provides that amongst other things, receipts for the cleaning expenses must be provided in order to receive re-imbursement under section 14A of the old Act. 47In the absence of any evidence or other material to satisfy these requirements, all the expense based claims must fail. 48I assess AZP's statutory compensation in the following manner having regard to all of the evidence on file, and the impact that the act of violence has had on his life since the incident: 49Category 1 Chronic Psychological or Psychiatric Disorder that is moderately Disabling: Table 1 to Schedule 1 of the old Act, at maximum: $15,000.00 50Due to the operation of section 19A (1) the amount of $750.00 is to be deducted from all awards of statutory compensation that is less than $20,001.00

Conclusion 51I 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 $15,000.00 with $14,250.00 payable to AZP after the application of section 19A of the old Act.

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: 12 September 2014

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