FPJ v Commissioner of Victims Rights

Request for internal review

1. On 2 September 2022, FPJ's solicitors completed and lodged a request for internal review of the decision regarding the recognition payment, together with written submissions and further medical evidence.
2. FPJ's solicitors submitted that she was eligible for a category C recognition payment on the basis that she was the victim of an assault that resulted in grievous bodily harm. They also submitted evidence in support of the claim for actual loss of earnings, but I have not set out those submissions in this decision.
3. In relation to the review of the recognition payment, FPJ's solicitors stated, relevantly: We submit that the psychological injuries sustained by the applicant falls into a category C injury as defined in section 35(3)(c) of the Act and as determined in BMF v Commissioner of Victims Rights [2016] NSWCATAD 54 (BMF). In BMF, the Senior Member referred to Haoui v R [2008] NSWCCA 209 which stated that "(p)rovided the harm is a "really serious injury", then there is "grievous bodily harm"." What amounts to "really serious injury" is defined in the case law as to be taken as its ordinary natural meaning.
4. FPJ's solicitors argued that she has been seeing her counsellor for 18 months and that the supporting evidence indicates that: (1) she has PTSD related symptoms, including recurring nightmares, flashbacks, heart palpitations; (2) suffers from concurrent insomnia and significant sleep disturbance, hyperarousal and reduction in ability to concentrate since the violence; (3) she has significantly increased anxiety; and (4) she had pre-existing conditions, namely PTSD, depression and anxiety, which has been aggravated by the act of violence. They argued that FPJ has suffered a dramatic and sustained increase in symptoms of anxiety and depression and an acute exacerbation of her PTSD symptoms.
5. Accordingly, FPJ's solicitors argued that the "egg-shell psyche" principle should apply to their client and the relied upon the Tribunal's decisions in BMF, BWL v Commissioner of Victims Rights [2015] NSWCATAD 235 and the decision of the Spigelman CJ sitting in the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249.
6. On 14 October 2022, a Senior Assessor issued a Notice of Review Decision, which determined that FPJ was the primary victim of an act of violence and that she was eligible for a category D recognition payment, but that financial assistance for actual loss of earnings was not approved.
7. In relation to the recognition payment, the Senior Assessor stated, relevantly: 16. I have read the Certificate of Injury prepared by (name provided), Social Worker and Counsellor on 13 May 2002… This states that (FPJ) has been the victim of domestic violence wherein several incidents have occurred resulting in police being called, an ADVO being put in place and charges being laid. 17. In her consultations with (FPJ), (FPJ) has presented as significantly distressed, crying repeatedly and being unable to continue speaking at times. (FPJ) also reported experiencing heart palpitations, insomnia, recurrent nightmares, insomnia, and increased feelings of anxiety and depression. (The Counsellor) provides a provisional diagnosis of PTSD-related symptoms, concurrent insomnia, and significantly increased anxiety. (She) also states that (FPJ) suffered from pre-existing PTSD, depression and anxiety related to previous experiences of domestic violence. 18. I have also read three support letters written by (the Counsellor), one dated 3 March 2022 and two dated 1 September 2022. The first states that in the aftermath of the violence perpetrated in mid-2021, (FPJ) "experienced and demonstrated acute stress and symptoms that correlate with post-traumatic and stress symptoms". This led to (FPJ) having to cancel two work contracts for her business. 19. One of the letters on 1 September 2022 states that (FPJ) has been in counselling with (the Counsellor) for a period of 18-months and states that as a result of the violence perpetrated by the named offender, (FPJ) has suffered a dramatic and sustained increase in symptoms of anxiety and depression, and an acute exacerbation of post-traumatic stress disorder symptoms. The second confirms that (FPJ) was unable to work between 19 and 26 June 2020 and 18 and 20 July 2021 as a result of the violence perpetrated by the named offender… 26. I have carefully considered the available evidence and do not consider, on the balance of probabilities, that the injuries sustained reach the high threshold of grievous bodily harm. I have considered the counselling evidence available, written by (the counsellor). This makes it clear that (FPJ) has seen an increase in her severity of her symptoms of anxiety, depression, and post-traumatic stress disorder. However, (the counsellor) has not indicated that (FPJ) meets the diagnostic requirements of PTSD, anxiety or depression as a result of the act of violence. Additionally, the evidence does not indicate that (FOPJ) has undergone in-patient care or other intensive treatment which may indicate that the severity of the injuries reaches the threshold of grievous bodily harm. 27. Furthermore, while (the counsellor) states that the act of violence has resulted in an aggravation of pre-existing conditions which were suffered by (FPJ), I do not consider that there is sufficient evidence which establishes that this aggravation is so serious as to be considered grave…
8. I note that a copy of this decision was emailed to FPJ's solicitors under cover of a letter from the respondent dated 14 October 2022. Accordingly, I am satisfied that the decision was served in accordance with the provisions of 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 9 November 2022, the Tribunal received the current application for administrative review, which sought review of the decision dated 4 October 2022 on the following grounds: 1. (FPJ's) psychological injury was serious enough to meet the threshold of grievous bodily harm. 2. (FPJ's) psychological injury is a direct result of the violence she suffered and includes PTSD, anxiety and depression. (FPJ) is eligible for a Category C payment. 3. The Internal Review Assessor erred in its decision.
3. The matter came before Senior Member McAteer for a directions hearing on 2 December 2022, at which MS R Cavanagh appeared for FPJ and Ms K Douch appeared for the respondent. The Senior Member made a non-publication order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). He ordered the respondent to file and serve its documents under s 58 of the ADR Act by 9 December 2022 and ordered FPJ to file and serve any further evidence and submissions by 13 January 2023. He ordered the respondent to file and serve any written submissions by 27 January 2023 and listed the matter for hearing on 3 February 2023.
4. However, on 19 January 2023, Principal Member Simon extended the time for compliance with the procedural orders at the request of the parties.
5. At the hearing of the matter on 3 February 2023, Ms Cavanagh appeared for FPJ and Ms Douch appeared for the respondent. The Senior Member made the following orders: 1. The proceedings are part heard to be finalised on the papers pursuant to s 50(2) of the NCAT Act by consent. 2. Leave to the applicant's solicitor to issue summons within 14 days o the General Practitioner (GP) for the applicant or other medical provider. 3. The applicant is to file and serve any further medical evidence and submissions concerning a Category C injury on or before 17 March 2023. 4. The respondent is to file and serve any further submissions in reply on or before 6 April 2023. 5. The matter is reserved to be finally determined on the papers after 11 April 2023.

Further evidence and written submissions

1. The applicant's current solicitors filed the following further documents: 1. Certificate of Injury issued by FPJ's counsellor dated 19 January 2023 - Exhibit A2; 2. Letter from FPJ's counsellor dated 19 January 2023 - Exhibit A3; and 3. Written submissions dated 27 January 2023.
2. The Respondent filed its bundle of s 58 documents on 12 December 2022 - Ex R1 and written submissions dated 31 January 2023.
3. I note that in Ex A2, FPJ's counsellor stated that FPJ has been a regular counselling/social work client since 13 January 2021. She stated that as a result of the act of violence, FPJ has engaged in regular (often fortnightly) ongoing counselling since then as a therapeutic treatment for the PTSD, anxiety and depression. She also stated that FPJ had also consulted with her GP for support and that she continues to deal with the ongoing PTSD, anxiety and depression resulting from the act of violence and would continue to receive regular counselling in 2023.
4. I note that In Ex A3, the FPJ's counsellor confirmed that consultations with FPJ are ongoing.
5. In their written submissions, FPJ's current solicitors argued that the Senior Assessor erred in finding that the applicant was the victim of an assault not resulting in grievous bodily harm and by not interpreting the Act as beneficial legislation.
6. In relation to the issue of "grievous bodily harm", FPJ's solicitors noted that s 4 of the Crimes Act 1900 (NSW) defines this to include any permanent or serious disfiguring of the person. At common law the words are given their ordinary and natural meaning. "Bodily harm" needs no explanation and "grievous" means "really serious". They also argued that the fact that the alleged offender is FPJ's eldest son has caused her severe psychological pain, which has been debilitating.
7. FPJ's current solicitors referred to the Tribunal's decisions in the following matters: 1. BWQ v Commissioner of Victims Rights [2015] NSWCATAD 197 (BWQ); 2. BMF; 3. CRT v Commissioner of Victims Rights [2017] NSWCATAD 174 (CRT); and 4. Chemler.
8. In BWQ, the Tribunal held: 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. 17. (In 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.
9. In BMF, the Tribunal held that psychological injury can amount to grievous bodily harm and that grievous bodily harm means "serious bodily injury".
10. In CRT the Court (sic. Tribunal) found 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. This decision confirms that whilst 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.
11. Even in circumstances where the applicant appears to have a pre-existing psychological injury, the "egg-shell psyche" principle adopted by Spigelman CJ in Chemler applies and in this matter, the evidence indicates that the applicant's "egg-shell psyche" was aggravated as a result of the act of violence.
12. FPJ's current solicitors concluded that the medical evidence should be sufficient to satisfy the Tribunal, on the balance of probabilities, that she suffered grievous bodily harm as a direct result of the act of violence that is the subject of this application.
13. FPJ's current solicitors argued that the Act is beneficial legislation and that it ought to be interpreted liberally and beneficially and in favour of the grant of benefits to an applicant. Awarding a category C recognition payment would help to acknowledge the really serious psychological injury from which she continues to suffer as a result of the act of violence.
14. FPJ's current solicitors concluded that there are no s 44 factors of relevance and that the correct and preferable decision would be to approve a category C recognition payment in the sum of $5,000.
15. In relation to the issue of grievous bodily harm, the respondent referred to the decision of Beazley JA (as her Honour then was) in Haoui v Regina [2008] NSWCCA 209 (Haoui): 137 The trial judge informed the jury that the third element of the offence, namely, that the impact caused "grievous bodily harm" was in dispute. His Honour directed the jury to look at "the seriousness of the injury that Mr Mousselamani suffered". The trial judge correctly directed the jury as to the meaning of "grievous bodily harm" and also directed them that this was a question of fact for their determination. His Honour informed the jury that the challenge was whether the injury amounted to "grievous bodily harm" which, he explained, "simply means really serious bodily injury". No challenge is made to this direction, although the adverbial qualification of "simply", should, in my view be avoided as it might be considered to downplay the seriousness of the injury for the purposes of the section. His Honour also directed the jury that it was a question of fact for their determination as to whether the injury amounted to "grievous bodily harm". His Honour pointed out that the injury did not need to be permanent, or long lasting, or life threatening. His Honour reiterated that "grievous bodily harm" meant that the injury was "a really serious one".
16. The threshold for grievous bodily harm is higher than that for actual bodily harm and the threshold for the latter was considered by the Court of Criminal Appeal in Shu Qiang Li v R [2005] NSWCCA 442 at [45]: A further matter is that, if the victim had been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would be likely to have amounted to "actual bodily harm" (see R V Lardner, unreported, NSWCCA, 10 September 1998.
17. The respondent referred to the following decisions of the Tribunal: 1. BXB v Commissioner of Victims Rights [2015] NSWCATAD 173. There was evidence before the Tribunal that the applicant was undergoing counselling and treatment by way of prescription medicine, but despite noting that the impacts of the act of violence were quite devastating, the Tribunal did not find that grievous bodily harm was suffered as there was no report from a clinical psychologist or psychiatrist that established that the applicant had suffered a serious psychological or psychiatric condition, that arose as a direct result of the act of violence and that it had a debilitating and long term impact on the applicant. 2. EMT v Commissioner of Victims Rights [2021] NSWCATAD 39. In that matter, while the treating GP expressed the view that the applicant suffered PTSD and prescribed medication for anxiety, neither the psychologist nor the mental health social worker formally diagnosed PTSD. The Tribunal was not satisfied that the evidence provided a safe climate for accepting a diagnosis of PTSD as a direct result of the act of violence and it was not satisfied that the injury could be considered "really serious". 3. CZU v Commissioner of Victims Rights [2017] NSWCATAD 240. The Tribunal accepted that the act of violence had a significant impact upon the applicant and that she required psychological treatment for her depressive disorder and symptoms of post-traumatic stress. However, there was no evidence before the Tribunal that supported a finding that the applicant's condition required either treatment by a specialist psychiatrist or medication. It was also noted that the treating psychologist referred to symptoms of post-traumatic stress but did not formally diagnose a post-traumatic stress disorder. The Tribunal was not satisfied on the evidence that the applicant's injury was "really serious". 4. FNA v Commissioner of Victims Rights [2022] NSWCATAD 388. The Tribunal considered whether the applicant had suffered grievous bodily harm for the purpose of considering an extension of time. In that matter, the applicant suffered physical injuries and was diagnosed with an adjustment order by the treating GP. In relation to the adjustment disorder, there was no evidence that the applicant required or received any treatment from either a psychiatrist or psychologist. The Tribunal was not satisfied that the evidence provided a safe climate for a finding that the applicant suffered grievous bodily harm.
18. The respondent argued to the effect that the applicant's medical evidence does not establish that she suffered grievous bodily harm as a result of the psychological injury caused by the act of violence.
19. The respondent concluded that the correct and preferable decision is for the Tribunal to affirm the decision of the Senior Assessor dated 14 October 2022.

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. … (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 FPJ to prove the allegation that she was the primary victim of an act of violence in the nature of an assault 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 FPJ was the primary victim of domestic/family violence in the nature of an assault, which was perpetrated by the offender over a period of time from 9 September 2019 and 31 January 2022.
6. I am satisfied that FPJ suffered a psychological injury as a result of the act of violence.
7. In BWL, 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.
8. Accordingly, if I am wrong regarding my finding as to the causation of FPJ's current psychological condition, I am satisfied that the "eggshell psyche" principle applies and that her pre-existing "eggshell psyche" was aggravated and/or exacerbated as a direct result of the act of violence.
9. I am satisfied that the act of violence is a series of related acts as defined by s 19(4) of the Act.

Recognition payment

1. In determining whether the act of violence resulted in grievous bodily harm, I have considered the case law and applied the legal principles discussed by Beazley JA (as her Honour then was) in Haoui.
2. In view of the evidence that FPJ suffered a psychological injury as a result of the act of violence between 9 September 2019 and 31 January 2022 and that she continues to suffer significant ongoing symptoms that require ongoing counselling, I am satisfied on the balance of probabilities that the injury can properly be considered as "really serious".
3. It follows that I am satisfied that she suffered grievous bodily harm as a result of the act of violence and that she is therefore eligible for a Category C recognition payment under s 35(3)(c) of the Act.
4. In view of this finding, it is not necessary for the Tribunal to make any specific determination as to whether the s 35(3)(c) of the Act should be construed beneficially in favour of an applicant.
5. However, I make the observation that the issue of whether or not the Act is beneficial legislation applies where an issue of statutory interpretation arises and that a decision as to the appropriate category of recognition payment that should be approved for an applicant is dependent upon supporting evidence being available when the dispute is determined. In other words, a category c recognition payment, which entitles an applicant to $5,000, should not be approved without evidence that satisfies the threshold of grievous bodily harm.

Section 44 Factors

1. I am satisfied that there are no factors in this matter that justify either a decision to not approve victims support or to reduce the amount of victims support that is approved.

Conclusion

1. For these reasons, I am satisfied that FPJ was the primary victim of an assault resulting in grievous bodily harm and that she is eligible for a category C recognition payment under s 35(3)(c) of the Act.
2. I make the following orders: 1. The decision of the Senior Assessor dated 14 October 2022 is set aside and I make the following decision by way of substitution. 2. FPJ 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: 09 May 2023