BDD v Victims Compensation Fund Corporation

NCAT Administrative and Equal Opportunity|2014-11-19

reasons for decision 1BDD claimed compensation by way of an application lodged in November 2010 in which he alleged that he had been the victim of a serious assault at his residence at Mittagong in the State of New South Wales on the evening of 30 October 2010, and suffered compensable injuries. 2I note that BDD was not legally represented in relation to the application for compensation and subsequent appeal. 3On 15 November 2010 BDD submitted the Application to the Victims Compensation Tribunal ("the Tribunal"). 4On 27 April 2012 the Tribunal advised BDD that the matter was listed for determination at the first available opportunity on or after the month of August 2013. In that letter BDD was reminded of the need to ensure that all relevant evidence to establish the claimed compensable injuries including substantiation of expenses and financial losses must be received prior to the listing date. 5On 7 March 2013, the Compensation Assessor determined that BDD was entitled to compensation and issued a Notice of Determination under section 29 of the old Act. The Determination was (inter-alia) in the following terms: .....(In respect of act of violence) ......Having regard to the evidence I am satisfied, on the balance of probabilities, that an act of violence is established, being that on 30 October 2010, a person in the course of the commission of an offence that involved violent conduct, has caused injury to the applicant (satisfying section 5 (1) (a), (b) & (c ) of the Act). ...... (In respect of compensable injury) The evidence available to assess compensable injury consists of the abovementioned clinical notes and reports. The reports from Bowral Hospital and Mittagong Healthcare Centre indicate that the applicant complained of tinnitus six weeks and then two months after the incident. The applicant was referred to Dr 'G....' who, in his report of 27 April 2011, states that the applicant presented with tinnitus in both ears and that was "extremely distressing" for him. Based on the evidence provided, I consider that the following compensable injury is established, on the balance of probabilities: Head - ear: tinnitus - permanent (moderate). 6The Assessor then made an award for the compensable injury outlined in bold above, which attracted an award of $17,250.00 after the statutory deduction under section 19A of the old Act, in addition to expenses and disbursements.

Grounds of Appeal 7The Notice of Appeal was lodged on 20 March 2013. The Grounds of Appeal are: (1)Tinnitus is severe permanent; (2)It is debilitating causing constant stress and hearing difficulty. 8A letter was attached to the Notice of Appeal / Grounds which provided further particulars by way of submissions. 9The appeal was listed for call-over before the Registrar of the Victims Compensation Tribunal on 16 April 2013 and 14 May 2013. On those occasions various directions were made in respect of submissions concerning the receipt of fresh evidence. Following the lodgement of the Appeal on 20 March 2013, BDD had submitted copies of medical assessments, test results, e-mails and other material in support of his claim for the higher level compensable injury concerning his tinnitus. 10On 15 May 2013 the Registrar of the Victims Compensation Tribunal fixed the matter for hearing in the week commencing 10 June 2013. BDD continued to file extra and updated copies of the fresh material referred to above, over the following weeks.

Application of the old Act 11Whilst BDD's appeal was pending, on 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"). 12By the time that the Tribunal had begun to consider the appeal on 19 June 2013, the new legislation had come into force some days prior on 4 June 2013 and the Tribunal was abolished. 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"). 13On 19 June 2013 Magistrate Lulham (the former Chairperson of the Victims Compensation Tribunal but now sitting as a Deputy President of the Administrative Decisions Tribunal (ADT)) issued a Memorandum to BDD. This memorandum outlined the changes to the Victims Compensation Scheme, in so far as they impacted on BDD's Appeal. 14The Tribunal Member in his interlocutory appeal decision / memorandum of 19 June 2013 specifically drew BDD's attention to the fact that under the new regime, any successful appeal would result in a lower award of Victims Compensation for BDD. Details of those permutations were set out in the decision. The Tribunal Member provided the opportunity for BDD to consider whether he wished to withdraw the appeal in order to accept the more beneficial determination. A response was sought by 5 July 2013 and the matter was adjourned to the week commencing 8 July 2013 for further consideration. 15By e-mail dated 24 June 2013 BDD advised that he would like to withdraw his appeal and accept the initial award from the compensation assessor. 16On 24 June 2013 the Tribunal member formally dismissed that appeal, affirmed the Compensation Assessor's decision and made no order as to costs. Subsequently the award was paid to BDD on 12 July 2013. 17However, 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. 18On 8 October 2013 Victims Services wrote to BDD advising him of those subsequent amendments, and invited BDD to seek legal advice relating to the earlier withdrawal and the application of Clause 16 of the Regulation to his previously lodged appeal. 19On 10 October 2013, BDD advised Victims Services by e-mail that he wished to 'reactivate' his appeal. 20It appears that the Registrar of the ADT arranged for the reinstatement issue to be referred to a Judicial Member of the ADT for consideration. On 19 December 2013 Judicial Member Molony of the ADT determined the reinstatement issue on the papers and gave leave to reinstate the appeal filed 20 March 2013 and withdrawn on 24 June 2013. The decision had regard to a decision of the President of the ADT in the case of BYV v Victims Compensation Fund Corporation [2013] NSWADT 281. BDD was given the opportunity to make final submissions on or before 10 January 2014, as well as other procedural directions. 21However, 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. 22Further, 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. 23As 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 24BDD 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. 25Section 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.

Act of violence 26Section 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. 27In essence the Assessor found that BDD 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 BDD's claim.

Has BDD sustained a compensable injury? 28In the current matter the evidence indicates that BDD has suffered actual physical bodily harm, as a direct result of the act of violence. Based on the circumstances of the act of violence, and the medical evidence, I find, that BDD is eligible for the compensable injury of: Tinnitus as outlined in the Table to Schedule 1 of the old Act. 29The compass of this appeal concerns the severity of the tinnitus condition and whether the evidence either before the assessor (or following the receipt of fresh evidence on appeal), establishes a different compensable injury. 30There is evidence of a claim for financial loss as a direct result of the compensable injury, which was partially addressed by the compensation assessor in the first instance. 31Section 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.

Whether to receive further evidence 32Section 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". As outlined earlier, 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. 33Section 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" 34BDD seeks leave for the Tribunal to receive into evidence the following material -

A letter from Dr S.G. dated 3 April 2013 concerning treatment of BDD for tinnitus.
A report from a medical testing / assessment by Dr C.M. dated 12 April 2013 with associated clinical results.
A letter dated 3 April 2013 from Macarthur ENT.
A receipt dated 12 April 2014 for an audio assessment originally claimed as an expense / disbursement in first instance but not awarded by the assessor. 35The 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. 36In 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]. 37In 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." 38The 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)" 39This Tribunal's Victim Support Division: Transitional Appeals: Guideline. A copy of which was sent to AZR's Solicitor, 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)] 40This 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 time of the Assessor's determination? 41In my view, when one has regard to the Assessors Determination the evidence could not have been provided earlier. The matters that the Assessor concluded could not have been reasonably foreseen by BDD. It appears that there is no reasoning provided as to how the compensation assessor arrived at that particular compensable injury, its severity or seriousness. The decision merely advises that 'based on the evidence provided, I consider that the following compensable injury is established on the balance of probabilities, head - ear: tinnitus-permanent (moderate)'. No extrapolation or examination of the medical evidence occurs. There is a reference to two words from the medical report 'extremely distressing' upon which the compensation assessor appears to qualify their assessment of the level of compensable injury. In the absence of any sufficiency of reasons or other insight into the reasoning process, it is not possible to determine that matter further. The same impediments faced BDD. It is difficult to glean how the compensation assessor arrived at the level of severity of impairment from the decision. 42Irrespective of the compensation assessor's sufficiency of reasons or otherwise, I note that the fresh evidence in essence merely amplifies the medical material that was already before the compensation assessor. On this analysis, it could be argued that BDD could not foresee the need for this further evidence prior to the Assessor's determination. As outlined below, it is debatable whether this evidence (if admitted) is of any great weight to be added to the evidence already before the Assessor in the first instance.

Is the evidence credible? 43The evidence is no less credible (on the face of it) than any of the earlier evidence supplied by BDD.

Is the evidence likely to result in a different outcome? 44Would it more likely than not it assist in a different outcome if it were received? On my assessment, as outlined above, the fresh evidence 'amplifies' the matters relating to a particular compensable injury. I have however formed the view after reviewing the evidence before the compensation assessor and looking at all of the evidence on file, that the fresh evidence is not the basis that this appeal is likely to result in a different outcome for BDD, as nothing of any great import (for reasons which will become self- apparent) turns on it. 45Therefore in the exercise of my statutory discretion I decline to receive the fresh evidence.

Compensable Injury 46The Macquarie Dictionary (3rd Edition) relevantly defines serious as: 'of grave aspect' giving cause for apprehension; critical: a serious illness,' . The Australia Concise Oxford Dictionary (3rd Edition) relevantly defines serious as: 'not slight or negligible (a serious injury; a serious offence). 47The medical evidence indicates that the constant (and permanent) tinnitus in both ears is 'extremely distressing' for BDD. 48Based on a consideration of all of the evidence, I am satisfied that BDD has suffered an alternate compensable injury (for which he is eligible) having regard to all of the provisions the old Act. I am satisfied from both the evidence and material on file before the compensation assessor, and the various submissions provided by BDD as to the day to day impact that the condition is having on his life, that the condition can appropriately be described as 'very serious'. (emphasis added).

Conclusion 49I make the following orders:

Pursuant to section 38 (5) (a) of the old Act, I set aside the decision of the compensation assessor in respect of the section 17 award of statutory compensation, and make an award in the sum of $36,000.00 for the compensable injury of ear: tinnitus- permanent (very serious) and an award for $214.85 actual expenses under section 18 (1) (a) of the old Act. 50I note that the previous award of $18,000 was reduced by the sum of $750.00 pursuant to section 19A of the old Act. As this new award exceeds $20,001.00 the deduction will not apply. The most appropriate way to calculate the award payable is as follows: Section 17 $36,214.85 Section 18 (1) (a) $214.85 Sub Total $36,214.85 (Less award already paid) $17,270.00 Balance of award payable $18,944.85

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: 19 November 2014

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