BDJ v Victims Compensation Fund Corporation

NCAT Administrative and Equal Opportunity|2014-11-03

reasons for decision 1BDJ claimed compensation by way of an application lodged in November 2011 in which she alleged that she had been the victim of domestic violence and a sexual assault at the hands of her then partner at Blackbutt in the State of New South Wales on the evening of 29 / 30 August 2011, and suffered compensable injuries. 2I note that BDJ was initially legally represented by DMS Lawyers and more recently by Good Legal in relation to the application for compensation and subsequent appeal. 3On 22 November 2011 BDJ's solicitors submitted the Application to the Victims Compensation Tribunal ("the Tribunal"). 4Over the following 12 months, arrangements were made for BDJ to see an Authorised Report Writer (ARW) for an assessment in accordance with Clause 5 of Schedule 1 of the Victims Support and Rehabilitation Act 1996 (the old Act), as well as two applications for an interim award of statutory compensation pursuant to section 33 of the old Act. In order to make an interim award the compensation assessor determined that BDJ was the victim of an act of violence and suffered a compensable injury above the minimum threshold of $7,500.00 statutory compensation. 5Interim awards were made on 4 September 2012 and 22 November 2012, apparently in reliance on the provisions of section 33 (1) (a) concerning severe financial hardship, however the section generally provides that an interim award can be made (subject to finding act of violence and compensable injury above the threshold) for any reason (as per section 33 (1) (c ). The total of the two interim awards was $9,250.00 and this amount appears based on the minimum award that BDJ could be paid when her claim was finally determined. This approach avoided any potential debt recovery action by the Fund. 6On 4 January 2013 the Tribunal advised BDJ's solicitors that the matter was listed for determination at the first available opportunity on or after the month of February 2013. In that letter the solicitors were 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. 7On 23 January 2013 BDJ's Solicitors submitted what appears to be a 'completed' expenses summary. Whilst this document (dated 3 July 2012) accurately summaries the expenses, it did not comply with the requirements of clause 7 (2) of the Victims Compensation Rule 1997, (the Rule). The Solicitors advised that BDJ did not have any receipts of invoices for medications and personal items claimed under the expenses component of her claim. The Rule requires that these matters be substantiated by such evidence. 8On 5 February 2013, the Compensation Assessor determined that BDJ 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 up to 30 August 2011, a person in the course of the commission of offences that involved violent conduct, has caused injury to the applicant (satisfying section 5 (1) (a), (b) & (c ) of the Act). I also consider that the evidence establishes related acts, constituting a single act of violence pursuant to section 5(3) and (4) of the Act. (In respect of compensable injury) Therefore, while the report establishes the presence of psychological / psychiatric disorder, exacerbated by the incident that is the subject of this claim, I do not consider that the content of the ARW report establishes that the incident that is the subject of this claim was the substantial contributor to the applicant's impairment in functioning. .......... (In respect of the award for compensable injury of sexual assault) ... Noting the evidence of psychological or psychiatric harm, it is my view that an award in the high range of this compensable injury is appropriate. I note the claim for financial loss under section 18 of the Act., as itemised on the expenses summary form, however in the absence of documentation substantiating the loss, I do not consider these amounts to be established. 9The Assessor then made an award for the compensable injury of Sexual Assault (Category 2) at the top of the available range - ($25,000.00).

Grounds of Appeal 10The Notice of Appeal was lodged on 22 March 2013. The Grounds of Appeal are: (1)The Assessor erred in determining that compensation for the injury was as a sexual assault Category 2 instead of Category 3; (2)The Assessor erred in making no allowance for past medical expenses for medication purchased from chemist. 11Full particulars in support were provided by BDJ's solicitors. They detail matters by way of submissions relating to the Grounds of Appeal, and also deal with the receipt of fresh evidence in respect of ground 2. 12On 6 May 2013 the then Chairperson of the Victims Compensation Tribunal, Magistrate Lulham, began to hear the appeal. The Chairperson issued a 'Memorandum' to the appellant's Solicitors dated 6 May 2013, which addressed the issue of the lack of corroborative medical evidence in respect of the serious bodily injury prong of the Category 3 Sexual Assault appeal. The matter was adjourned for further consideration in Chambers in the week commencing 27 May 2013.

Application of the old Act 13The following day, 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"). 14By the time that the Tribunal further considered the appeal on 7 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"). 15On 7 June Magistrate Lulham (now sitting as a Deputy President of the Administrative Decisions Tribunal (ADT) ) issued a Memorandum to BDJ's Solicitors. This memorandum outlined the changes to the Victims Compensation Scheme, in so far as they impacted on BDJ's Appeal. 16The Tribunal Member in his interlocutory appeal decision of 7 June 2013 specifically drew the solicitor's attention to the fact that under the new regime, any successful appeal would result in a lower award of Victims Compensation for BDJ. Details of those permutations were set out in the decision. The Tribunal Member provided the opportunity for BDJ's Solicitors to consider whether they wished to withdraw the appeal in order to accept the more beneficial determination. 17By letter dated 19 June 2013 BDJ's Solicitors confirmed that they were instructed to withdraw the appeal. 18On 19 June 2013 the Tribunal member formally dismissed that appeal, affirmed the Compensation Assessor's decision and awarded costs. 19However, 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. 20On 8 October 2013 Victims Services wrote to BDJ's solicitors advising them of those subsequent amendments, and invited them to seek advice relating to the earlier withdrawal and the application of Clause 16 of the Regulation to their previously lodged appeal. 21On 31 December 2013, a Judicial Member of the ADT determined the reinstatement issue on the papers and gave leave to reinstate the appeal filed 27 March 2013 and withdrawn on 19 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. BDJ's solicitors were given the opportunity to make final submissions prior to the reserved date of 31 January 2014. 22However, 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. 23Further, 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. 24As 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 25BDJ 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. 26Section 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 27Section 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. 28In essence the Assessor found that BDJ 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 BDJ's claim.

Has BDJ sustained a compensable injury? 29In the current matter the evidence indicates that BDJ has suffered actual physical bodily harm, and psychological harm as a direct result of the act of violence. Based on the circumstances of the act of violence, I find, that BDJ is eligible for the compensable injury of: either Domestic Violence or Sexual Assault. I note that the Assessor awarded $25,000.00 for the compensable injury Category 2 sexual assault which is the maximum of the available range for that injury. The compensation assessor clearly had regard to the circumstances of the assault and the injuries sustained and other impacts on BDJ when reaching the maximum quantum (in the range of $10,000 - $25,000). 30There is evidence of a claim for financial loss as a direct result of the compensable injury, which I will address shortly.. 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. 32Schedule 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. 33The appeal does not press the fact that the original claim was based on BDJ being eligible to receive an award of statutory compensation for the compensable injury of: Category 2, chronic psychological or psychiatric disorder that is severely disabling. 34However, for completeness having had regard to the evidence on file as contained with the ARW report, I am not satisfied that BDJ 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 (or the aggravation, acceleration, exacerbation or deterioration of an existing condition) - in accordance with clause 4 of Schedule 1 of the old Act. Whilst there is some evidence that the act of violence aggravated, accelerated, or otherwise exacerbated BDJ's symptoms and level of disability, it would not allow any award equivalent to the existing award to be made This is due to both the provisions of section 11 of the old Act, and the operation of Clause 3 of Schedule 1 of the old Act. (emphasis added). 35Buckley 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."

The serious bodily injury claim. 36BDJ's Solicitors make a claim for Category 3 sexual assault relying on the provision of: 'unlawful sexual intercourse in which serious bodily injury is inflicted, and / or a pattern of abuse involving category 1 or category 2 sexual assault.' (Clause 6 (c) of Schedule 1 of the old Act). 37In respect of the serious bodily injury claim, I note the solicitor's submissions concerning the lack of case studies on the Victims Services webpage. Under the old Act, injury is defined. Injury means (a) actual physical bodily harm or psychological or psychiatric harm. (See dictionary following Schedule 4 of the old Act). Helpfully, under the old Act, the Chairperson issued Guidelines (for compensation assessors) under section 65 of the old Act. 38The section 65 Guideline on Injury addresses the minimum requirement to find the presence of 'injury'. It is helpful as a starting point. The Guideline is as follows: S.65 Guidelines - Injury section 5(1)(c) The dictionary definition of 'injury' under the Victims Support and Rehabilitation Act 1996 was: (a) actual physical bodily harm, (b) psychological or psychiatric disorder. This definition is now changed. As a result of various amendments to the Act some of which commenced on 22 December 2006 injury is now defined as (a) actual physical bodily harm (b) psychological or psychiatric harm. The new definition of injury will apply to all matters determined after the legislation is enacted. In the absence of physical injury, new and existing claims will no longer require the presence of a psychological or psychiatric disorder as listed in the DSM IV in order to establish 'injury' for the purposes of section 5 of the Act. To establish psychological or psychiatric harm, consideration should be given to the following elements - In R -v- Donovan [1934] 2 KB 498 at 509 when discussing harm the Court said, "its ordinary meaning includes any hurt or injury calculated to interfere with the health or comfort of V. Such hurt or injury need not be permanent but must, no doubt, be more than merely transient or trifling." Actual bodily harm came to be seen as including psychological or psychiatric harm following Donovan. The Court said that, "if a person is caused hurt or injury resulting, not in any physical injury, but an injury to his state of mind for the time being, that is within the definition of 'actual bodily harm'." R-v- Miller [1953] 2 All ER 529 at 534. Later in the Australian case of T -v- The State of South Australia & Anor (1992) Aust Torts Reports 81 - 167, which related to a criminal injuries compensation case, the Court said "If the practical effect of the relevant conduct was to bring about a morbid situation in which there had been something more than transient deleterious effect upon an applicant's mental health and wellbeing, so as adversely to affect that person's normal enjoyment of life beyond a situation of mere transient sorrow and grief then, in the relevant sense, the person has sustained mental injury." The Court specified that this must be something more than mere sorrow and grief. Each matter will need to be considered on a case by case basis, assessing both the facts and the degree, in order to be satisfied that the requisite threshold for 'harm' is met. There must be the presence of medical evidence that establishes that psychological or psychiatric harm is present, however, as per 'T' it may be necessary to examine the facts of the 'violent conduct' (s-5 (1) (a) (b) of the Act), and weighing them with a consideration of the medical evidence (s-5 (1) (c) of the Act), in order to be satisfied that the element of injury is made out. It may be that Compensation Assessors will need to give greater amplification to their reasons when establishing both the presence (or absence) of psychological or psychiatric harm in applicable matters in their written Notices of Determination. C. Brahe Chairperson Victims Compensation Tribunal. 22 December 2006 39These Guidelines remain in force for consideration of all matters relating to the old Act. They set out the minimum requirements for bodily injury or actual physical bodily harm. Their authority and purpose comes from the words of the section (65) in the old Act. 40Other references in the old Act to the term 'serious' or 'seriously' coupled with the term 'injury' or 'injured' arise at section 24 (5) of the old Act. That section concerns the narrow exception to the ineligibility of convicted inmates to recover victims compensation irrespective of the type of assault inflicted upon them. The provision provides that (in such instances) the ineligible applicant only becomes eligible if the Tribunal Member determines that special circumstances exist if the convicted inmate is seriously and permanently injured as a result of the act of violence concerned. (Emphasis added) 41The 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). 42Having regard to the 16 years of cases dealing with victims compensation under the old Act, it is clear that the Category 3 sexual assault provisions were to deal with the most serious matters. Usually a category 3 award involving serious bodily injury, arises in an instance where an offender injures the victim in such a way so as to either disable the victim (long or medium term), or where the sole sexual assault or unlawful sexual intercourse, is accompanied by the most violent of assaults. The Category 3 provisions tend towards matters at the extreme end of the spectrum concerning an incident, or a prolonged abuse over many days, weeks months or years constituting a pattern. Other provisions recognise aggravating circumstances such as an assault in company, involving use of an offensive weapon etc. 43I have considered the charges that the offender was breached with, the proof material associated with those charges in the criminal context, the lack of any medical evidence to establish the fracture and other claimed significant injuries, and the general meaning of the word 'serious', when considered in the context of the old Act. As a result I am not satisfied that the actions of the offender resulted in the infliction of serious bodily injury on BDJ during the course of the digital penetrations constituting unlawful sexual intercourse / sexual assault.

The pattern of abuse claim 44The 'pattern' argument must also fail, predominately because on the available evidence, the weight of evidence points to only two assaults occurring during one incident of detain for advantage / assault over the one evening. In any event even accepting that there were two incidents of unlawful sexual intercourse separated by a period of approximately sixty minutes (if two incidents occurred), on its ordinary meaning, the term pattern does not mean two instances. This finding in no way diminishes the fact that BDJ suffered greatly in what can only be described as a terrible ordeal and assault. 45The Australian Concise Oxford Dictionary (3rd Edition) describes pattern relevantly as: 1. a repeated decorative design on wallpaper, cloth, a carpet, etc. 2. A regular or logical form, order, or arrangement of parts. (Emphasis added) The ordinary meaning of pattern indicates that there must be a series of repeated instances, examples etc. For these reasons two similar instances would not, on my assessment constitute a pattern. 46A category 3 award (when solely based on a pattern of incidents) will usually cover all sexual / indecent assaults committed by the perpetrator against that victim. Sometimes these assaults constitute systemic abuse over a lifetime, resulting in one Category 3 award at the top of the range. In other examples / incidents the prolonged abuse that a victim endured as a child from a particular perpetrator can be quarantined from further abuse as an adult by that same perpetrator, and in that type of example, two claims can succeed, each potentially resulting in a Category 3 award. 47In addition I note the provisions of section 5 (4) of the old Act in respect of the submission concerning whether BDJ could elect to treat her claim as two separate applications. 48For these reasons the category 3 sexual assault ground of appeal must fail. 49Based on a consideration of all of the evidence, I am not satisfied that BDJ has suffered an alternate compensable injury (for which she is eligible) having regard to all of the provisions the old Act.

Whether to receive further evidence 50Section 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. 51Section 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" 52BDJ seeks leave for the Tribunal to receive into evidence the following material in respect of her section 18 claim for financial loss.-

A Pharmacy patient History Report from 1 September 2011 to 4 March 2013 (dated 4/3/2014) from a Pharmacy in Shellharbour NSW.
A Pharmacy patient History Report from 1 September 2011 to 12 March 2013 (dated 4/3/2014) from a Pharmacy in Warilla NSW.
A medical report from Dr 'S.A.' dated 12 December 2012 53The 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. 54In 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]. 55In 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." 56The 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)" 57This 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)] 58This 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? 59On one view, when one has regard to the listing correspondence, the evidence could have been provided earlier. The Rule makes it abundantly clear that the financial loss must be substantiated and the method or manner of substantiation. The Solicitors appear to accept this in respect of their correspondence dated 22 January 2013. However I note that the fresh evidence would satisfy a claim based on section 18 (1) (a). I also note the evidence in Dr 'S.A.'s Report of 12 December 2012. This seems to confirm or verify matters in the Solicitors appeal submissions concerning BJD's inability to obtain the records during 2012.

Is the evidence credible? 60The evidence is no less credible (on the face of it) than any of the earlier evidence supplied by BDJ.

Is the evidence likely to result in a different outcome? 61Would it more likely than not it assist in a different outcome if it were received? On my assessment, as outlined above, the fresh evidence would substantiate a claim based on section 18 (1) (a) of the old Act for financial loss. It would therefore result in a different outcome for BDJ were it to be received.

Consideration 62I have formed the view after looking at all of the evidence on file, that the fresh evidence is the only basis that this appeal is likely to result in a different outcome for BDJ. It is clear from the evidence of the Doctor, coupled with BDJ's Solicitors submissions, that BDJ was not in a position to obtain the evidence during late 2012 or early 2013. Therefore in the exercise of my statutory discretion I receive the fresh evidence.

Conclusion 63I make the following orders: (1)Pursuant to section 38 (5) (a) of the old Act, I affirm the decision of the compensation assessor in respect of the section 17 award of statutory compensation in the sum of $25,000.00 (2)Pursuant to section 38 (5) (a) of the old Act, I set aside the decision of the compensation assessor in respect of section 18, and make an award of statutory compensation for financial loss pursuant to section 18 (1) (a) in the sum of $777.85

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: 04 November 2014

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