FKW v Commissioner of Victims Rights

Internal review

1. On 14 February 2022, FKW's solicitors applied for an internal review of the Assessor's decision and made submissions and a Certificate of Injury provided by the treating psychologist dated 20 January 2022.
2. FKW's solicitors argued that the Assessor's analysis of the prior medical evidence was "a harmful and disadvantageous assessment" as the presence of pre-existing injuries is relevant to exacerbation and it is clear that FKW sought medical and psychological assistance on several occasions during the years that she was in contact with the offender. They also stated, relevantly: …It is also well understood that there are significant barriers to reporting domestic and family violence. A recent survey of Australian health care staff in allied health, maternity and mental health divisions, found that up to 70% of women experiencing domestic and family violence go undetected by hospital staff. The applicant continues to experience serious and complex psychological harm arising from this act of violence. In the certificate of injury (the author) refers to domestic violence by the offender, notes that the applicant feared for her life and describes the applicant's presentation as: Depressed and anxious mood, suicidal thoughts with some plan and intent, self-destructive behaviours such as drug addiction, irritability, low motivation and self-confidence. (The author) diagnoses the applicant as experiencing "complex trauma (anxiety & depression), Benzodiazepine dependence" and identifies the impact of the offender's violence on pre-existing conditions: FKW has been substance dependent which had been aggravated by her relationship with (the offender). FKW also has a pre-existing diagnosis of Complex Trauma prior to her relationship with (the offender), however this relationship and the violence that it entailed exacerbated her symptoms. There is a causal link between the act of violence and the injuries. Senior Member Riordan in CRT v Commissioner of Victims Rights [2017] NSWCATAD 174 (CRT) noted that the Act does not require proof that the act of violence is the sole cause of psychological or psychiatric injury, provided that the injury directly resulted from the act of violence. Senior Member Riordan also found in CRT that "serious bodily injury" must be interpreted based on the ordinary dictionary definitions and in the context of psychological or psychiatric harm, must be more than trifling, be of grave aspect and/or give cause for apprehension In the later decision of EGM v Commissioner of Victims Rights [2020] NSWCATAD 181 (EGM) Senior Member Riordan at [35] stated: Based upon the evidence that EGM suffered a psychological injury as a result of an act of violence, and that she continues to suffer significant ongoing symptoms, I am satisfied that her psychological injury can properly be described as "really serious". We submit that on the balance of probabilities, the applicant was the victim of domestic violence causing a cumulative psychological injury that continues to have a deleterious effect and impact on the applicant's mental state and day to day life which is severe and amounts to grievous bodily harm.
3. Accordingly, FKW's solicitors argued that she is eligible for a category C recognition payment in the sum of $5,000.
4. On 23 March 2022, a Senior Assessor issued a Notice of Review Decision, which determined that FKW was the primary victim of an act of violence and that she was eligible for category D recognition payment in the sum of $1,500. The Senior Assessor stated, relevantly: 27. Sadly, the evidence establishes that FKW has suffered from multiple traumas since she was a child, which have contributed to her diagnosis of Complex Trauma, substance abuse, self-harming and suicide attempts. Significantly, the hospital records indicate that these serious mental health issues were present prior to FKW entering into a relationship with the offender. Further, the majority of the hospital records both before and after FKW had been in the relationship, make no reference to domestic violence as a contributing factor in FKW's mental health presentation. 28. What I am left with is the report from MERIT which explains that FKW had been abstinent from drugs for a 12-month period while in a relationship with the offender, but following the physical assault in April 2019 she relapsed for one month and up until July 2019 she experienced symptoms of anxiety which negatively impacted upon her ability to address her substance use. The report traces FKW's substance abuse back to her traumatic childhood experiences. 29. Ms (name provided) similarly states that FKW experienced stress and anxiety as a result of domestic violence but does not elaborate further, which Ms (name provided) refers to multiple traumas impacting FKW's mental health but does not explain what they are. (Name provided) simply states that the domestic violence exacerbated FKW's mental health conditions and aggravated her drug dependence. 30. Based on the evidence provided, I am unable to make a clear distinction between FKW's pre-morbid functioning sufficient to find that her psychological injuries caused by the act of violence are so serious as to be grievous in nature. It is evident that FKW has suffered multiple significant traumas over an extended period of her life which have all contributed to her current presentation. Accordingly, I cannot be satisfied that the act of violence forming the basis of this application has caused the serious psychological conditions FKW experiences, or aggravated and exacerbated these conditions to such an extent that the aggravation or exacerbation alone amounts to grievous bodily harm.
5. I note that a copy of the Senior Assessor's decision was emailed to FKW's solicitor under cover of a letter from the respondent dated 23 March 2022. I am therefore satisfied that the decision was served as required by the Act.

Application for Administrative Review

1. This Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
2. On 26 April 2022, the Tribunal received the administrative review application, which sought a review of the respondent's decision dated 23 March 2022 on the grounds that the decision maker erred: (1) in finding that FKW was a victim of an assault not resulting in grievous bodily harm; and (2) in not interpreting the Act as beneficial legislation.

Procedural directions

1. The matter came before Senior Member McAteer for directions on 17 June 2022. Ms K McDonald appeared for the applicant and Ms K Douch appeared for the respondent. The Senior Member made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), prohibiting the broadcast of FKW's name. He extended the time for FKW to lodge the application to 26 April 2022, ordered FKW to file and serve any further medical and other evidence by 29 July 2022 and ordered the respondent to file and serve any submissions by 19 August 2022. He ordered FKW to file and serve any submissions by 2 September 2022 and listed the matter for hearing on 23 September 2022.

The hearing

1. The matter came before me for hearing on 23 September 2022. Ms McDonald appeared for FKW and Ms Douch appeared for the respondent. The only issue for determination was whether FKW was eligible for a category C recognition payment on the basis that she was the victim of an assault resulting in grievous bodily harm.
2. I have considered all of the available evidence in this matter including the documents lodged by the respondent under s 58 of the ADR Act and the Police records filed with the respondent's written submissions. However, I have not referred to each document individually in this decision.

Applicant's submissions

1. I note that on 11 August 2022, the Tribunal received FKW's submissions dated 4 August 2022. However, FKW did not file any further evidence in support of the application.
2. In relation to the issue of "grievous bodily harm", FKW referred to the Tribunal's decision in BWQ v Commissioner of Victims Rights [2015] NSWCATAD 197 (BWQ), as authority for the principle that psychological injury can amount to "grievous bodily harm".
3. Section 4 of the Crimes Act 1900 (NSW) defines "grievous bodily harm" to include any permanent or serious disfiguring of the person. At common law, the words are given their ordinary and natural meaning. "Grievous" means "really serious": DPP v Smith [1961] AC 290; Haoui v R [2008] NSWCCA 209 at [137], [160]. Further, the way in which grievous bodily harm may be inflicted varies substantially and may be assessed by reference to the viciousness of the attack and severity of the consequences: R v Kama (2000) 110 A Crim R 47.
4. FKW's solicitors purported to quote from the Tribunal's decision in BWQ, at [16] - [17], but I note that they misquoted these paragraphs and I have set them out in full as follows: 16. There is evidence about treatment, counselling and also medical treatment by way of prescription medication and there is expert psychological and psychiatric evidence before the Tribunal that establishes a serious psychological or psychiatric condition arising as a direct result of the violence and having a debilitating and serious long-term impact and effect on the applicant. The evidence indicates that the psychological symptoms continue. 17In my view, the applicant is significantly impaired in her functioning and based upon the available evidence I am satisfied that she is entitled to a category C recognition payment on the basis that she suffered grievous bodily harm arising from a psychological condition that has had a serious impact upon her.
5. FKW's solicitors last referred to the Tribunal's decision in BMF v Commissioner of Victims Rights [2016] NSWCATAD 54 (BMF) and noted that the Tribunal held that psychological injury can amount to "grievous bodily harm: and that "grievous bodily harm" means "serious bodily injury".
6. In CRT the Tribunal held that "serious bodily injury" must be interpreted based upon ordinary dictionary definitions and in the context of psychological or psychiatric harm, must be more than trifling, be of grave aspect and/or give cause for apprehension.
7. CRT is authority for the proposition that while the Act requires an applicant to establish, on the balance of probabilities, that they suffered an injury as a direct result of the act of violence, the act of violence does not have to be the sole cause of the injury. Even in circumstances where the applicant appears to have a pre-existing psychological injury, the "eggshell skull principle" adopted by Spigelman CJ in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 (Chemler) at [40] applies and the applicant's eggshell psyche was aggravated as a result of the act of violence perpetrated by the offender.
8. In summary, FKW's solicitors argued that grievous bodily harm "has been interpreted to mean an injury that" is really serious; can be assessed by reference to the viciousness of the attack and severity of the consequences; is debilitating and has a serious long-term impact and effect; is more than trifling, is of grave aspect and/or gives cause for apprehension; and can include the exacerbation of a pre-existing injury.
9. FKW's solicitors stated that the offender's attack on FKW in April 2019 was vicious. The supporting medical evidence, while not particularly detailed, does say that the act of violence exacerbated the pre-existing Complex Trauma, which can include symptoms or traits of: being or feeling trapped; feeling ashamed; not feeling safe and being able to trust; low self-esteem; difficulty managing feelings; using unhealthy coping mechanisms such as alcohol or drugs, self-harm, over-or-under eating or over-working; and affecting a person's ability to manage relationships and their daily life.
10. FKW's solicitors argued that an exacerbation of any of these very serious symptoms is not slight or negligible, but is of grave aspect and should give cause for apprehension. The medical evidence also confirms that FKW needed therapeutic intervention to manage the symptoms that were exacerbated by the act of violence some 19 months after the act of violence occurred. On that basis, they argued that the psychological injuries that were exacerbated by the act of violence continued to have a debilitating effect on the entirety of FKW's life and had a detrimental impact on her daily functioning.
11. FKW's solicitors also argued that the Act is beneficial legislation and that it should be interpreted liberally and beneficially and that awarding FKW a category C recognition payment helps to acknowledge the really serious psychological injuries she continues to suffer as a direct result of the violence that she experienced.
12. Otherwise, FKW's solicitors argued that there are no s 44 factors that warrant either a decision not to approve financial support or to reduce the amount of financial support that is approved. They concluded that the correct and preferable decision is to award FKW a category C recognition payment in the sum of $5,000.

Respondent's submissions

1. The respondent lodged written submissions on 19 August 2022, which argued that the correct and preferable decision is to affirm the decision dated 23 March 2022.
2. The respondent argued that FKW had not suffered grievous bodily harm because why FKW had produced medical evidence that verified that she suffered injury, the evidence does not support a finding that she suffered grievous bodily harm as a direct result of the act of violence, because: 1. FKW has not been diagnosed with a serious psychological or psychiatric condition arising as a direct result of the act of violence; 2. While the treating psychologist states that FKW's previous complex trauma (anxiety and depression) was aggravated by the act of violence, there is no particularisation of the nature or extent of such aggravation to support a finding of really serious injury; 3. The medical evidence does not indicate that FKW was prescribed medication to treat the injury sustained as a direct result of the act of violence. While there is reference to aggravated benzodiazepine dependence, there is no further particularisation of this in circumstances where the medical evidence indicates that the applicant has a history of illicit benzodiazepine use; 4. While the MERIT report indicates that the applicant's capacity to address her substance abuse was negatively impacted for a period of 1 month following the release of her former partner from prison, this impact is confined to a period of one month and there is no further particularisation of the impact of the domestic violence on the applicant's daily functioning; 5. The medical evidence does not indicate that the applicant underwent ongoing treatment from the psychologist. In this regard, no further appointments were recorded in the Certificate of Injury and Victims Services' records indicate that FKW has used 3 of the 22 hours of approved counselling; and 6. The medical evidence does not indicate that the applicant was referred to a psychiatrist to treat the injury sustained as a direct result of the act of violence. While there have been various admissions to hospital within the relevant period, these admissions do not reference the act of violence.
3. In response to FKW's submissions, the respondent stated that "grievous bodily harm" "denotes a higher threshold than serious bodily injury" and argued that the findings made in BMF do not support FKW's submissions as the matter involved "really serious" physical injury.
4. Further, the decision in CRT considered the meaning of "serious bodily injury" for the purposes of s 35(2)(b) of the Act and not grievous bodily harm. While FKW lists various symptoms that may be associated with complex trauma, that is not evidence that she suffered from those symptoms and does not assist the assessment of injury in this matter.
5. The respondent concluded: 35. Finally, while the purpose of the Act is beneficial, it does not follow that a Category C recognition payment is payable in respect of each act of violence involving a physical assault. In this regard, we note the findings in the matter of Victims Compensation Fund Corporation v Brown [2003] HCA 54 at [33]: To begin consideration of issues of construction by positing that a "liberal", "broad", or "narrow" construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require. 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… As Spigelman CJ said: "…The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence "[t]he Court is not required to give the most expansive possible interpretation of such circumstances"

Act of violence

1. Section 23(1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act.
2. "Act of violence" is defined in s 19(1) of the Act as follows (relevantly): (1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons: (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons, and (c) that has resulted in injury or death to one or more of those persons. … (3) For the purposes of this section, violent conduct extends to sexual assault and domestic violence. (4) Except as provided by subsections (5) and (6), a series of related acts is two or more acts that are related because - (a) they were committed against the same person, and (b) in the opinion of the Tribunal or the Commissioner - (i) they were committed at approximately the same time, or (ii) they were committed over a period of time by the same person or group of persons, or (iii) they were, for any other reason, related to each other…
3. Section 20 of the Act defines "primary victim" as follows: (1) A primary victim of an act of violence or act of modern slavery is a person who is injured, or dies, as a direct result of that act…
4. The onus is on FKW to prove the allegation that she was the primary victim of an act of violence in the nature of an assault perpetrated by the alleged offender on the balance of probabilities.
5. As required by ss 19(1), (3) and (4) of the Act, I am satisfied on the balance of probabilities that FKW was the primary victim of domestic violence and assault, which was perpetrated by the alleged offender over a period of time from 1 June 2018 to 7 December 2020, and that she suffered physical and psychological injuries as a result.
6. I am also satisfied that the act of violence is a series of related acts as defined by s 19(4) of the Act.

Recognition payment

1. It is necessary to determine the relevant category of recognition payment that FKW is eligible to receive as a result of her injuries.
2. The respondent approved a category D recognition payment in the sum of $1,500, essentially on the basis that FKW was the victim of an assault not resulting in grievous bodily harm.
3. I note that at first instance, the Assessor effectively determined that category D was appropriate because while the evidence supported a finding that FKW's pre-existing psychological or psychiatric injury had been aggravated as a result of the act of violence, they were not satisfied that the aggravation directly resulted in FKW suffering grievous bodily harm. In other words, the Assessor was not satisfied that FKW suffered grievous bodily harm as a direct result of the act of violence.
4. In effect, s 35(3)(c) of the Act provides that a Category C recognition payment is available in respect of an act of violence involving assault resulting in grievous bodily harm. However, "grievous bodily harm" is not defined in the Act.
5. I have considered all of the evidence lodged with the Tribunal, including the documents lodged by the respondent under s 58 of the ADR Act and the Certificate of Injury dated 20 January 2022. I have also considered the lengthy submissions made on her behalf by her solicitors.
6. The Certificate of Injury dated 20 January 2022, which was completed by FKW's treating psychologist. This clearly indicates that FKW presented on 11 October 2021 and 9 November 2021 with depressed and anxious mood, suicidal thoughts with some plan and intent, self-destructive behaviours such as drug addiction, irritability, low motivation and self-confidence, against a history of domestic violence in her relationship with the offender in which she was "physically, psychologically and emotionally abused… and was in fear of her life from her ex-partner". The psychologist diagnosed "Complex trauma (anxiety & depression), Benzodiazepine dependence".
7. I note that the Certificate of Injury has not been correctly completed by the psychologist, as she did not indicate that this diagnosis was consistent with her findings. However, the form directed her to complete para 11 if there was any inconsistency and she did not complete it. Further, para 12 of the Certificate asked whether the diagnosis was consistent with the incident as described and the psychologist did not complete this. However, the form required the psychologist to complete para 13 if there was evidence of any inconsistency and she did not complete this. In any event, para 15 required the psychologist to list all known or disclosed pre-existing conditions that have been aggravated by the incident. The psychologist answered: (FKW) has been substance dependent which had been aggravated by her relationship with (the offender). (FKW) also has a pre-existing diagnosis of complex trauma prior to her relationship with (the offender), however this relationship and the violence that it entailed exacerbated her symptoms.
8. While the respondent submits that the medical evidence does not indicate either referral to a psychiatrist or that any anti-depressant medication has been prescribed, I note that the Pro-forma Certificate does not seek information regarding prescribed medication and in any event, I consider that any competent medical practitioner would have significant reservations concerning the prescription of medication to a patient with known medication and substance abuse issues. In any event, that issue is not determinative.
9. The respondent has quite properly cited the decision in Haoui regarding the meaning of "grievous bodily harm". That decision was cited with approval by the Court of Criminal Appeal in Am v R [2012] NSWCCA 203, in which Johnson J stated, relevantly: 70. It is an ingredient of a s.33 offence that the offender has inflicted grievous bodily harm. Section 4(1) Crimes Act 1900 defines "grievous bodily harm" to include any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease. At common law, the words "grievous bodily harm" are given their ordinary natural meaning. "Bodily harm" needs no explanation and "grievous" simply means "really serious": R v Overall (1993) 71 A Crim R 170 at 173; Haoui v R [2008] NSWCCA 209…
10. In BMF I found that there was no evidence that supported a finding that the applicant had recovered from her pre-existing psychological injury before the act of violence occurred and I expressed the view that the respondent erred by failing to consider whether the act of violence caused an aggravation, exacerbation or deterioration of the applicant's pre-existing psychological injury.
11. In this matter, it appears that the respondent concedes that FKW's pre-existing psychological injury (Complex Trauma (anxiety & depression)) and her pre-existing Benzodiazepine dependence were aggravated or exacerbated by the act of violence, but that the respondent disputes that the effects of the aggravation or exacerbation satisfy the common law definition of grievous bodily harm.
12. In the matter of BWL v Commissioner of Victims Rights [2015] NSWCATAD 235, in which there was also evidence of a pre-existing psychological or psychiatric injury, this Tribunal determined that the applicant's psychological condition was that such that the "eggshell psyche" principle espoused by Spiegelman CJ in Chemler applied.
13. In the current matter, I am satisfied that the "eggshell psyche" principle applies and that FKW's pre-existing "eggshell psyche" was aggravated and exacerbated as a direct result of the act of violence.
14. It is important to note that the Act does not require the act of violence to be either the main contributing factor or a significant contributing factor to the aggravation or exacerbation.
15. I am also satisfied that there is no evidence before me of any supervening incident that could be considered to break the chain of causation between the act of violence and the ongoing symptoms of the aggravation or exacerbation. On that basis, I am satisfied that the current psychological condition directly results from the act of violence.
16. Based upon a consideration of all of the available evidence, I am satisfied that the act of violence resulted in "really serious injury" of a psychological nature and that it therefore resulted in grievous bodily harm.
17. It follows that I am satisfied that FKW is eligible for a category C recognition payment in the sum of $5,000 pursuant s 35(3)(c) of the Act and cl 14(d) of the Victims Rights and Support Regulation 2019 (NSW) (the Regulation).

Section 44 considerations

1. Section 44(1) of the Act provides that in determining whether or not to approve the giving of victims support and in determining the amount of financial support to be given or recognition payment to be made, I am required to have regard to specific matters.
2. I am satisfied that there are no factors in this matter either support a decision to not approve the giving of victims support or to reduce the amount of victims support that should be given.

Order

1. I make the following orders: 1. The decision of the Senior Assessor dated 23 March 2022 is set aside and I make the following decision by way of substitution. 2. The applicant is eligible for a category C recognition payment in the sum of $5,000. 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: 20 October 2022