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[2009] VCAT 2372
respondent. Respondent's determination affirmed. The applicant succeeded on whether an act of violence had occurred but obtained no compensation award: the loss-of-earnings claim was exhausted by prior TAC...
The Tribunal decided that Jafaro was a primary victim under the Act even though the driver was having an epileptic fit and could not be treated as voluntarily driving dangerously. The Act's definition of criminal act covered that kind of legal incapacity. But Jafaro had already received at least the maximum $20,000 available for loss of earnings, and the evidence did not show that her family visit to Ethiopia was undertaken to assist her recovery. The refusal of an award was therefore affirmed.
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2,500 words · generated 02/10/2026
On 3 January 2000, Brendan Folvig drove through the main shopping centre in Footscray. His vehicle went out of control, collided with part of the building occupied by the Forges discount department store, and struck pedestrians. Fatima Gulcan was killed. Mitike Jafaro was also struck, either by the car or by debris from the collision, and suffered physical injury and trauma.
1 cited instrument linked from this judgment.
The evidence described a developing episode before the collision. Dean, a passenger in Folvig's vehicle, heard what he described as a gurgling sound. The car continued through an intersection and around a roundabout, then stopped at traffic lights. It began rolling into an intersection and then accelerated. Dean was attempting to reach the brake or ignition and thought the car might strike a bus. The evidence from Dean, a local general practitioner and a government expert supported the finding that Folvig was in the process of an epileptic fit.
Folgiv's epilepsy had been diagnosed in 1997, and a blood test showed anti-convulsant medication at the lower end of the therapeutic range. He was not charged with an offence arising from the incident. In an earlier proceeding arising from the same event, the Tribunal had found that Gulcan's surviving family members could receive assistance under the Victims of Crime Assistance Act 1996 (Vic), notwithstanding the driver's fit. The current proceeding concerned Jafaro's application after the Victims of Crime Assistance Tribunal refused assistance.
Jafaro's claim raised three distinct questions. First, did the incident meet the Act's threshold of an act of violence, given the driver's involuntary conduct? Second, could she obtain further loss-of-earnings assistance after receiving payments from the Transport Accident Commission (TAC)? Third, could the cost of a trip to Ethiopia, a visa fee and the cost of air-freighting presents be treated as expenses assisting recovery?
The Tribunal answered the first question in Jafaro's favour but rejected the two claims for money. The formal order was that the respondent's determination be affirmed. The supplied reasons do not use a consistent numbered-paragraph sequence for the Tribunal's own reasoning, so this analysis identifies passages by their section and subject rather than assigning paragraph numbers that are not shown.
The statutory gateway was the Act's definition of a primary victim. Section 7(1) described a primary victim of an act of violence as a person injured or killed as a direct result of an act of violence committed against them. Section 3 defined an act of violence by reference to a criminal act or series of criminal acts, and defined a criminal act to include conduct that would constitute a relevant offence if the person had not been incapable of criminal responsibility because of a specified incapacity or lawful defence.
The parties accepted that dangerous driving under s 64 of the Road Safety Act 1989 (Vic) would be a relevant offence if its elements were established. Jafaro argued that dangerous driving was assessed objectively, so Folvig's lack of awareness of danger would not prevent the offence. She relied on R v Coventry and R v Scholl for the objective standard of dangerous driving. The respondent accepted the objective character of that standard but argued that the prosecution would still have to prove that Folvig was driving. It relied on Jiminez v The Queen, which states that the driving forming part of the offence must be conscious and voluntary.
The Tribunal rejected the contention that Folvig could have been convicted of dangerous driving while in the fit. It reasoned that, although the vehicle physically responded to movements of Folvig's body, those movements were involuntary. The Tribunal inferred that his foot pressed the accelerator during a spasm. Applying Jiminez, it concluded that Folvig was not “driving” in the legally relevant sense at that moment.
That did not end the statutory inquiry. The Act's definition of criminal act expressly contemplated that conduct might constitute an offence if the person had not been incapable of criminal responsibility. The difficult interpretive question was whether the incapacity had to concern the mental element of the offence, as the respondent submitted, or could encompass involuntariness as a fundamental requirement of criminal responsibility.
The Tribunal preferred the broader construction. It reasoned that the criminal law generally punishes voluntary acts, and that “fault element” in the statutory definition was broad enough to include that requirement, whether characterised as part of mens rea, actus reus or a distinct principle. It also followed the earlier Gulcan determination as a matter of comity and consistency, relying on the approach to consistency discussed in Anteden Pty Ltd v Glen Eira City Council. The Tribunal said independently that it considered the earlier reasoning correct. It therefore treated the fit as a legal incapacity for the Act and concluded that Jafaro was a primary victim.
The compensation claims involved different statutory requirements. For loss of earnings, s 8 permitted assistance subject to the stated limit, s 16 required specified other payments to be taken into account and deducted, and s 17 limited assistance to a period of up to two years after the act of violence. Jafaro had received at least $20,000 in TAC loss-of-earnings benefits. Applying the approach taken in Vaughan v Victims of Crime Assistance Tribunal, the Tribunal treated those benefits as exhausting the Act's $20,000 maximum for that loss. It rejected the proposed claim for months 19 to 24, just as it did not accept a separate “top up” claim for the earlier period.
For the travel expenses, s 8(3) allowed other expenses in exceptional circumstances if they were actually and reasonably incurred, or reasonably likely to be incurred, to assist recovery. The Tribunal assumed for the purpose of its decision that exceptional circumstances had been established. It nevertheless found the necessary recovery connection missing. The trip was prompted by the illness of Jafaro's mother, and there was no medical or psychological evidence that the visit would assist recovery. The Tribunal considered that an expense must be incurred for that purpose, not merely be capable of improving someone's spirits.
This decision applied the statutory wording as it stood in the proceeding. It did not purport to amend the definition of criminal act or establish a general rule about all incapacity provisions. Its significance lies in how the Tribunal applied the Act to involuntary conduct during an epileptic fit.
Before the decision, the Tribunal had already addressed the same incident in the Gulcan family claim. That earlier determination concluded that the fit was a legal incapacity under the Act. In Jafaro, the respondent urged a different result, distinguishing incapacity affecting a required fault element from the absence of voluntary conduct needed to prove the physical element of driving. The Tribunal declined to depart from the earlier determination. It invoked comity and the importance of consistency in legal decision-making, while also endorsing the earlier result on its own reasoning.
The decision therefore supports a reading of “fault element” that is not confined to conventional questions of intention or awareness. In this statutory setting, it encompassed voluntariness. At the same time, the Tribunal did not hold that dangerous driving itself had been proved despite the fit. It expressly rejected that route: the conduct was involuntary and did not amount to driving for the offence. The statutory incapacity definition supplied the path to primary-victim status.
On offsets, the decision followed Vaughan's interpretation of the interaction between the maximum award and s 16 deductions. The Tribunal adopted the approach that the prima facie amount is fixed under s 8 and relevant payments from other schemes are then deducted. Its practical result in this case was that TAC benefits at least equal to the statutory maximum left no further loss-of-earnings assistance.
On recovery expenses, the decision treated s 8(3) as requiring both a relationship to recovery and a purpose of assisting recovery. It rejected a broad inference that expenditure that might be uplifting automatically qualifies. The decision does not state that only medical treatment can qualify, but it emphasises the need for specific evidence connecting the claimed outlay with recovery and its purpose.
The decision should be read within its own limits. It was a VCAT review determination on the particular statutory language and evidence before Deputy President Macnamara. The source does not describe a later appeal or a subsequent legislative amendment, and does not establish how later courts treated the reasoning.
The central statutory interpretation passage says that “fault element” is broad enough to cover “the fundamental requirement of the criminal law” that a punishable act be voluntary. In plain English, the Tribunal treated voluntariness as part of the criminal-responsibility threshold that the Act's incapacity definition could address. The statutory assistance claim did not fail merely because an involuntary act could not support an ordinary criminal conviction.
The Tribunal also stated that Folvig was not “driving in any relevant sense” for the dangerous-driving offence while the fit caused involuntary movements. Put simply, the physical fact that the car moved in response to his body did not establish the legally required act of driving. This reasoning drew on Jiminez, not on the objective-danger test alone.
The decision's treatment of s 8(3) is equally important. It said that expenditure must not only have, or be reasonably thought to have, a recovery-promoting effect; it “must also be incurred for that purpose”. In everyday terms, an applicant needs to show why the expense was undertaken, as well as how it relates to recovery. The Tribunal found that the purpose shown here was visiting an ill family member, not assisting recovery from the incident.
Finally, the order distinguishes the threshold issue from the monetary outcome. Jafaro succeeded on whether there was an act of violence, but did not obtain compensation. That distinction matters when reading the result: primary-victim status did not itself establish that every claimed expense or loss was payable.
The reasoning is most directly engaged where an applicant seeks assistance under the same statutory scheme, injury is linked to conduct that would ordinarily be a relevant offence, and evidence suggests that the person responsible acted involuntarily because of a physical episode such as an epileptic fit. The decision shows that the analysis may need to separate whether the conduct meets the elements of the offence from whether the Act's special definition of criminal act addresses incapacity.
A second feature is the distinction between an objective offence standard and the requirement of voluntary conduct. Evidence that conduct created a real or potential danger does not necessarily answer whether the person was voluntarily performing the relevant act. The Tribunal treated proof of “driving” as a necessary question, even though the dangerousness of the manner of driving was assessed objectively.
The precedent is also relevant to claims where the applicant has already received compensation for the same loss from another scheme. Here, the overlap concerned loss-of-earnings payments from TAC and an Act-based maximum of $20,000. The decision's application of Vaughan makes the source and amount of prior payments material to the calculation.
For s 8(3) claims, the trigger is an expense said to assist recovery that is not obviously treatment or rehabilitation. Jafaro's claim concerned travel to visit family, a visa fee and freight costs. The Tribunal focused on the purpose for which the expense was incurred and the evidence linking it to recovery. The decision therefore highlights the importance of distinguishing an expense arising from personal or family circumstances from one incurred for the statutory recovery purpose.
These are descriptions of the fact patterns addressed in the reasons, not conclusions about how another case would be decided. The outcome in any further matter would depend on the relevant statutory text and evidence.
The supplied judgment does not identify any later court or Tribunal treatment of Jafaro. It therefore provides no basis to say that later decisions followed, distinguished, limited or overturned it.
The authorities discussed within Jafaro have more specific relationships to its reasoning. The Tribunal applied Jiminez to the voluntary-act question. It referred to Hill v Baxter in describing the fit as an “Act of God”. It considered Anteden in support of consistency between Tribunal decisions and followed the earlier Gulcan determination concerning the same incident. It applied its own prior approach in Vaughan when calculating the loss-of-earnings offset.
The judgment records that no appeal was brought against the Gulcan determination, but that does not establish later treatment of Jafaro itself. The reasons also quote Vaughan's paragraphs [23] and [26] when explaining the deduction approach. Those paragraph references belong to Vaughan, not to numbered paragraphs of the Jafaro reasons. No further case history or later citation analysis can be drawn from the supplied text.
The decision leaves open how broadly its construction of “fault element” applies to other offences and other forms of incapacity. Its conclusion concerned dangerous driving, where the Tribunal regarded voluntary driving as fundamental. The reasons do not decide whether every absence of voluntary conduct will meet the Act's definition, or how the analysis operates for offences with different elements.
There is also a boundary question between incapacity affecting a fault element and incapacity that prevents proof of an external element of an offence. The respondent argued that being “driving” was part of the externals of the offence. The Tribunal's answer was that voluntariness is sufficiently fundamental to fall within “fault element”, regardless of the doctrinal label. The supplied reasons do not explore every possible category of act or omission.
The compensation-offset discussion raises questions beyond the facts presented, including how s 16 operates where other payments are less than the statutory maximum, relate only partly to the same loss, or concern a different period. This case records that the applicant had received at least $20,000 for loss of earnings and that her counsel did not challenge the Vaughan approach. It does not resolve every possible allocation problem.
For s 8(3), the Tribunal required a purpose and a connection to recovery, but the reasons do not set out a comprehensive evidentiary test. They do not say what particular forms of medical, psychological or other evidence would always be sufficient, or whether evidence other than professional opinion could establish the required purpose. The result was based on the record before the Tribunal: no practitioner evidence linked the trip to recovery, and the stated reason for the trip was the mother's illness.
Finally, the formal order affirmed the respondent's determination despite the finding that Jafaro was a primary victim. The reasons explain that result through the failure of the particular monetary claims. They do not establish that every applicant who meets the primary-victim definition will necessarily receive an award, or settle the treatment of other categories of assistance not claimed in this proceeding.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
General List; Victims of Crime Assistance Act 1996; Whether injury caused by dangerous driving whilst driver in course of epileptic fit constitutes 'act of violence' and 'criminal act'; Section 3 Victims of Crime Assistance Act 1996; Whether further compensation for loss of earnings may be recovered where applicant has received more than $20,000 for loss of earnings from Transport Accident Commission relative to same incident; Victims of Crime Assistance Act 1996 Sections 16 and 17; Whether cost of trip to visit family and return recoverable; Victims of Crime Assistance Act 1996 Section 8(3)
Jafaro v Victims of Crime Assistance Tribunal (General) [2009] VCAT 2372
Mr Hancock of Counsel instructed by Mitcham Whitelaw Pty Ltd Lawyers
Ms S. Moore of Counsel instructed by Victorian Government Solicitor
A primary victim of an act of violence is a person who is injured or dies as a direct result of an act of violence committed against him or her.
act of violence means a criminal act or a series of related criminal acts, whether committed by one or more persons, that has -
(b) directly resulted in injury or death to one or more persons, irrespective of where the injury or death occurs;
criminal act means an act or omission constituting a relevant offence or that would constitute a relevant offence if the person had not been incapable of being criminally responsible for it on account of -
(a) age, mental impairment or other legal incapacity preventing him or her from having a required fault element; or
(a) an offence, punishable on conviction by imprisonment, that involves an assault on, or injury or a threat of injury to, a person; or
(b) an offence against Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I of the Crimes Act 1958 or any corresponding previous enactment (sexual offences) or an offence at common law of rape or assault with intent to rape; or
(c) an offence against section 21A(1) of the Crimes Act 1958 (stalking), section 63 of that Act (child stealing) or section 63A of that Act (kidnapping) or any corresponding previous enactment; or
(d) an offence of conspiracy to commit, incitement to commit or attempting to commit an offence referred to in paragraph (a), (b) or (c);
Age, mental impairment or other legal incapacity preventing him or him from having a required fault element
In determining the amount (if any) to be awarded to an applicant, the Tribunal -
(a) subject to paragraph (ab), must take into account and reduce the amount by the total amount of -
(i) any damages that the applicant has recovered at common law; and
(ii) any compensation, assistance or payments of any other kind that the applicant has received -
for the loss, expense or other matter for which assistance is sought from the Tribunal; and
(ab) in the case of special financial assistance under section 8A or an amount under section 13(2)(c), must not take into account any payments under any insurance policy (including life and health insurance) or superannuation scheme that the applicant has received or has not received but is entitled to receive, or would be entitled to receive if he or she applied for them, for the loss, expense or other matter for which assistance is sought from the Tribunal; and
(ac) must take into account and reduce the amount by any amount of financial assistance that the applicant has been awarded or is eligible to be awarded under section 12 of the Transport Act 1983 in elation to the incident to which the application relates; and
(b) in all cases but subject to paragraph (ab), may take into account and reduce the amount by the total amount of -
(i) any compensation, assistance or payments of any kind under any scheme, whether statutory or nonstatutory, including that managed by the Transport Accident Commission and the Victorian WorkCover Authority and that established by the Police Assistance Compensation Act 1968 and any predecessor of any such schemes; and
(ii) any payments under any insurance policy (including life and health insurance) or superannuation scheme -
that the applicant has not received but is entitled to receive, or would be entitled to receive if he or she applied for it or them, for the loss, expense or other matter for which assistance is sought from the Tribunal.
The driver may have honestly believed that he was driving very carefully and yet may be guilty of driving in a manner which is dangerous to the public. The jury is to determine, not whether the accused was in fact, as a matter of psychology, indifferent or not to the public safety, but whether he was driven in a manner which was dangerous to the public. The standard is an objective one 'impersonal and universal, fixed in relation to the safety of other users of the highway'.
The offence is established if it be proved that the acts of the driver create a danger, real or potential, to the public. Advertence to the danger on the part of the driver is not essential; all that is essential is proof that the acts of the driver constitute danger, real or potential, to the public,
If the applicant did fall asleep, even momentarily, it is clear that while he was asleep his actions were not conscious or voluntary (an act committed while unconscious is necessarily involuntary) and he could not be criminally responsible for driving the car in a manner dangerous to the public. The offence of culpable driving is, in this respect, no different to any other offence and requires the driving which is part of the offence, to be a conscious and voluntary act.
But if a person's condition is such that his actions are unconscious or involuntary, it does not matter what the cause is: he cannot be found guilty of an offence, whether statutory or otherwise, unless the acts which constitute it have been done voluntarily. As we have said, a driver who drives when tired or drowsy may, depending upon all the circumstances, be guilty of driving in a manner dangerous to the public. But if he does fall asleep, his actions during the period of sleep are neither conscious nor voluntary.
(1992) 173 CLR 573, 580
The Tribunal should always be conscious of the importance of consistency in decisions on questions of law, which is fundamental to any system and the attainment of justice.
[23] What divides the parties is the significance of the $20,000 limit for loss of earnings awards established by Section 8(1)(c). The respondent's contention is that every dollar received under the WorkCover scheme for loss of earnings in relation to an injury which may also be the subject of an award under the Victims of Crime Assistance Act is to go in relief and reduction of the prima facie maximum liability that the consolidated fund would have under the Victims of Crime Assistance Act for loss of earnings. The applicant's view is that the amount of the loss for which compensation can be claimed is ascertained only after deduction of amounts recovered for loss of earnings under the WorkCover scheme. From there an applicant is entitled, subject to proving a shortfall from the earnings which he would have received had he not been injured as a result of a crime to up to $20,000 for a period of up to two years. Since an applicant in those circumstances receives no double compensation, Ms Davis said the objective of Section 16 of the Act viz. avoidance of double dipping is achieved.
[26] The clear scheme of the Act is that the WorkCover loss of earnings benefits in the present case should be deducted under Section 16 after the prima facie 'amount' of the loss of earnings award has been fixed in accordance with Section 8. The Act presupposes that the loss being compensated for is the loss which the victim has sustained independently of alternative compensation sources. The object of Section 16 is to require that the public purse in the form of the State Consolidated Funds should be called upon only after other sources of compensation have been exhausted and to the extent that these other sources have not indemnified or compensated the victim.
In exceptional circumstances, there may also be included in the amount awarded to a primary victim within the limit set by subsection (1) an amount for other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the primary victim to assist his or her recovery from the act of violence.
Jafaro
Victims of Crime Assistance Tribunal
(1938) 59 CLR 633
(1992) 173 CLR 572
(1992) 173 CLR 573
Respondent's determination affirmed. The applicant succeeded on whether an act of violence had occurred but obtained no compensation award: the loss-of-earnings claim was exhausted by prior TAC benefits, and the travel-related claim was not shown to have been incurred to assist recovery.