Budd v Victims Compensation Corporation Fund

LEGISLATION CITED: Victims Support and Rehabilitation Act 1996

Bridgman v The Victims Compensation Fund Corporation [2008] NSWDC 153 CASES CITED: Beale v The Government Insurance Office of New South Wales (1997) 48 NSWLR 430 East Side Scaffolding v Kazic [2008] NSWCA 146 Pettit v Dunkley (1971) NSWLR 176

PARTIES: Pamela Joan Budd (Plaintiff) Victims Compensation Fund Corporation (Defendant)

COUNSEL: G McGrath (Plaintiff) J McAteer, solicitor (Defendant)

SOLICITORS: Remington & Co Solicitors (Plaintiff) Victims Compensation Fund Advocacy Unit (Defendant)

1 HIS HONOUR: This appears to be an application by the plaintiff for an order that an appeal from a decision of the Victims Compensation Tribunal be upheld. The orders sought appear to constitute an appeal, and if so, pursuant to s 39(1) of the Victims Support and Rehabilitation Act 1996, the leave of this court is required, and the appeal can only be on a question of law.

2 While there appears to be a defect in the form of the application, in the course of argument, I was able to determine from the grounds set out in the summons and the material tendered by the plaintiff, that the plaintiff alleges that the decision of the Tribunal, constituted in this case by its chairperson on 5 August 2008, contains three alleged errors of law.

3 These are first, an error in failing to consider the plaintiff's application for leave to call further evidence relating to the alleged loss of teeth as a result of an act of violence. Two, an error in failing to hold that there was sufficient evidence that the act of violence caused, in whole or part, a category 2 chronic psychological or psychiatric disorder. And three, and I find little to distinguish this from the second alleged error, in the alternative, the Tribunal failed to give sufficient reasons for holding that the act of violence did not cause a category 2 chronic psychological or psychiatric disorder.

4 The history of this matter is that the plaintiff, Ms Budd, alleged that certain acts by her former neighbour, Ms Gardiner, constituted acts of violence, and that this act or acts of violence exacerbated a psychological disorder, which she claims now to be "severely disabling". The matter was considered by a compensation assessor and a report was prepared by a Mr Jeremy Freeman, a clinical psychologist who is an Approved Report Writer appointed under the Act. Mr Freeman interviewed the plaintiff at her home, because one of the matters of which she complains is agoraphobia. After considering this report, Assessor Stephenson found: "Overall, based on the evidence before me I am not persuaded that the applicant was more likely than not the victim of an assault, deemed or otherwise, perpetrated by the alleged offender. In the absence of such a finding section 5(1)(b) is not made out nor, consequently, has an act of violence in terms of section 5(1) been established. In this circumstance I have no choice but to dismiss this application."

5 The matter was then brought on appeal to the Tribunal. The amended grounds of appeal are comprehensive, and they are in evidence before me. In addition, the Tribunal had before it, not only the report of the Approved Report Writer, but also the report of a Mr Hugo Rodriguez dated 19 February 2007. It appears that Mr Rodriguez is the treating psychologist, and had formed a number of opinions relating to the plaintiff.

6 At this stage, it is worthwhile referring to some provisions of the Act, and I am not going to set them out in detail. Section 7 of the Act describes a "primary victim". It is not in dispute that the plaintiff, if she is a victim of an act of violence, is eligible for statutory compensation pursuant to s 6. The schedule of compensable injuries is set out in Schedule 1. Clause 5 of that schedule provides that the Tribunal must consider an assessment of the applicant's condition prepared by a qualified person. It is not in dispute that Mr Freeman was such a person. Clause 5(1A) provides that: "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)". Clause 4 provides for reduction of the standard amount "if the act of violence results in a compensable injury because of the aggravation, acceleration, exacerbation or deterioration of an existing condition."

7 The Tribunal noted the grounds of appeal and the nature of the alleged act of violence. The Tribunal then considered a number of reports of the psychologist, including the Approved Report Writer, although, for the reasons I have just stated, it was not necessary for it to do so. It considered not only the report of Mr Freeman, but also of two other psychologists, Ms Hall and Mr Rodriguez, and also apparently a report of a Dr Jungfors. In its decision, the Tribunal set out a number of findings by the various psychologists, and it set those out in detail. It concluded as follows: "Whilst it may be as the ARW suggests that the appellant's behaviour has contributed to the difficulties with her neighbour it does seem on the balance of probabilities that she has been subjected to (a) harassment and accepting what she told the ARW and Dr Rodriguez (b) an assault with a flower pot. I find that an act of violence is established. The appeal is allowed and the determination of the compensation assessor set aside. There is a claim for the loss of 5 teeth. There is no evidence that the appellant has in fact lost 5 teeth but assuming that to be the case then I reject that claim as there is no acceptable medical evidence of any causal link between the act of violence and the loss of teeth. The appellant has not established the compensable injury of a chronic psychological or psychiatric disorder category 2 that is severely disabling as a direct result of the act of violence or as the result of the acceleration, aggravation or exacerbation of an existing condition. The appellant told Dr. Rodriguez of her condition in 1999 and thereafter as a result of conflicts with Centrelink. Whilst the appellant's symptoms may have 'intensified' as a result of the neighbour's actions, the 'intensification' or exacerbation must lead to a compensable injury (clause 4 of schedule 1). The ARW makes it quite clear that there is insufficient evidence to conclude that the alleged harassment and assault by the neighbour caused the appellant to suffer any significant psychological disorder or lifestyle disruption."

8 It is clear from the passage that I have just read, that the Tribunal had regard to the evidence not only of the Approved Report Writer, but also of the opinions of other psychologists. The findings of those psychologists were set out in the decision of the Tribunal. While the Tribunal disagreed with the Assessor's conclusion, it found that there was no evidence to support a finding, either that the plaintiff suffered a psychiatric or psychological disorder category 2, or that any psychiatric or psychological disorder from which she did suffer, was caused by the act of violence.

9 In order for the court to have jurisdiction in an appeal such as this, let alone an application for leave to appeal, it must be established that the Tribunal committed an error of law. That is clear from the decision of Johnstone DCJ in Bridgman v The Victim's Compensation Fund Corporation [2008] NSW DC153, where his Honour applied what Meagher JA said in Beale v The Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at pp 442 to 444, which his Honour set out in his judgment, and East Side Scaffolding v Kazic [2008] NSWCA 146 at para 58.

10 What Johnstone DCJ said in that case, in my view, applies directly here. I emphasise that in Beale's case Meagher JA, at p 443, said "It follows that the reasons need not necessarily be lengthy or elaborate." His Honour went on to say what the functions of the rule that reasons should be given was, and I need not elaborate on that here. The principles set out by Meagher JA, and applied by Johnstone DCJ, are the principles that I apply here.

11 It is quite clear, from the reasoning of the Tribunal, that the Tribunal did consider the psychological reports before it. Mr McGrath says that those findings are set out without comment. In my view, there is no need for comment, because it is quite clear that the Tribunal accepted those findings, and based its decision on at least some of those findings. I was also referred to a number of cases, including Pettit v Dunkley (1971) NSWLR 176, and subsequent cases, establishing the principle that reasons should be given.

12 In my view, what the Tribunal did in this case does not run counter to any of the principles established in that case. The reasoning process of the Tribunal was clear. Those cases also establish that while, in many cases, a failure to give reasons may constitute an error of law, it does not necessarily do so in every case. In this case, I find there was no failure to give reasons, either in respect of the application for leave to adduce further evidence in relation to the loss of teeth, or in relation to the existence, or causation, or severity of the psychological disorder.

13 In respect of both matters, the Tribunal was not satisfied with the evidence before it, and it was quite clear what that evidence was, particularly in the case of the question of causation and nature of the psychological disorder. In relation to the loss of teeth, the onus lay on the applicant to produce medical evidence, which supported her claim, that that condition was a result of the act of violence. It was not clear, on the matter put before the Tribunal, what additional evidence the plaintiff sought to adduce, and in the absence of that material, it would have been impossible for the Tribunal to determine that there was evidence.

14 It is, in my view, sufficient for the Tribunal to say that the evidence before it did not satisfy it of the matters which the Act requires be established. It is not necessary for it to spell out in detail the reasons why the evidence does not so satisfy it. I therefore refuse leave to appeal, and if leave had been granted, I would dismiss the appeal.

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