Saleh v Victims Compensation Fund Corporation

Saleh v Victims Compensation Fund Corporation - [2012] NSWDC 217 - NSWDC 2012 case summary — Zoe

[13]

Tribunal Hearing/Appeal 26The appellant appealed to the VCT. The VCT - here consisting of one member - conducted an appeal under section 38 of the Act. That was a hearing de novo. 27Ground 3 of the Grounds of Appeal was that: "The Assessor erred in [the] decision not to award compensation for the compensable injury being a psychological disorder and skull: depressed fracture requiring operation which was found in his determination as having been sustained by the appellant as a result of the assault." 28The VCT disallowed the appeal. The Tribunal - at [36] - assessed compensation on the basis of all injuries received by the appellant as a result of the act of violence. Counsel for the respondent points out that that covered brain injuries. It was noted that the amount to which the appellant would be entitled under the Act "... is $50,000 for the injury: "Brain damage: serious impairment of social/intellectual functions." 29It appears to have been assumed - at [46] - that "compensation received under the Workers Compensation Act should have included a consideration of the psychological injury." 30The VCT - at [47] went on to say: "Under this Act, on the basis that I have determined the matter, the appellant is entitled to $50,000 for the brain injury and would receive no compensation for any other injury." 31While expressing great sympathy for the appellant, the VCT dismissed the appeal on the basis that subparagraph 30(3)(a)(ii) precludes the appellant from receiving compensation under the Act and "...accordingly an award for compensation should not be made in favour of the appellant." 32It is from this order that the appeal is lodged pursuant to section 39. The appellant seeks that the matter be remitted back to the VCT. 33Counsel for the appellant has indicated that, if the order is made, the further claim would be only for psychiatric and psychological injuries suffered as a result of the incident. It would not include a claim for the physical injuries suffered including the broken skull and related physical matters taken into account in the workers compensation award.

[22]

Appellant 49In amplification of the overall submission that there has been a denial of natural justice, the appellant submits that the VCR Act does not prevent recovery by the appellant in these circumstances. 50Sections 10, 14 and 17 of the VCR Act refer to the term "injury". Moreover, Schedule 1 of the Act lists separate injuries for which compensation is payable. The appellant is provided with an opportunity under the legislation to claim for injuries. Further, he has to elect for the first, second and third most serious of the injuries. However, the appellant goes on to submit that there is nothing in the legislation that provides a separate definition of an "injurious event" - for example an act of violence - which means the claim could be limited to damages arising out of the one injurious event. 51As an essential part of this submission, the appellant's case is that what is involved here is a separate injury and, in particular, a separate psychiatric injury which is separately defined under Schedule 1 of the VCR Act. Here the appellant has been compensated for a brain injury under the workers compensation scheme, not for a separate psychiatric injury. That was what was sought in the Bridging Form. 52Mr Del Monte on behalf of the appellant refers to the second reading speech of the then Attorney General, which made it clear that injury was different from an "injurious incident." He submits that the second reading speech adopted a deliberate use of the word "injury" which was reflected in the legislation. 53Mr Del Monte submits that a necessary implication of this is that the legislation permits a claimant to receive compensation for an injury and for the Tribunal to go behind the basis for the award for that injury, to see precisely what is being compensated for. This may require both a qualitative and quantitative assessment. 54The appellant goes on to refer to the decision of Uren v VCFC (per Walmsley SC DCJ) which involved the payment of a workers compensation payment and relevant lump sum payments. His Honour stated that there is nothing in the Act which prevents compensation being payable simply because an applicant has received a sum exceeding the VCT's jurisdictional limit. In particular, the VCT is not precluded "from awarding compensation when more than its jurisdictional limit has been recovered elsewhere". 55Mr Del Monte seeks to rely on that authority to buttress his submission that there is a judicial recognition of a distinction between the amount paid and the reasons for payment. In essence, his submission is that what the appellant is seeking is not a double dipping for the same injury but seeking damages based on a very different, and distinct, form of injury.

[25]

Error of Law 60An error of law will occur where a decision maker ignores evidence which is relevant, credible, significant and which otherwise might lead to an erroneous view on the facts: Minister for Aborginal Affairs v Peko-Wallsend (per Brennan J at 60-61; Gibb CJ at 30 ff; Mason J at 39). 61Further, while a decision-maker may examine in part such relevant information (in that case the ex parte information) he is not entitled to fail to advert to it at all. The nature of the material to be taken into account depends also on "...the subject matter, scope and purpose of the statute..." (per Mason J at 40). 62It is clear that errors of law which are of no relevance do not warrant the setting aside of a decision and the remittance of the matter back to the relevant decision-maker - see Victims Compensation Fund v Crowley at [4]. 63However, I do not regard the error of law in this instance as being of no consequence. The failure to have regard to - rather than to simply refer to - the nature of the award, meant that there was a failure to take into account a consideration relevant to the decision. 64Here the nature of the legislation, its effect and purpose - as well as the specific requirement that the assessor have regard to the subject of workers compensation - mandates that such a payment, the nature of it and what it covers, needs to be considered. If the effect of the legislation was to be as submitted on behalf of the Tribunal, it would have been easy for the Legislature to have simply said that such a payment assessed under the workers compensation scheme meant that no victims compensation was to be paid. The wording used must mean that the basis for the workers compensation payment needs to be regarded to determine whether, and if, the double-dipping prohibition is applicable given the other award. 65The evidence in relation to the award and what it covered - particularly in relation to its coverage of the claim for psychiatric/psychological injuries, was evidence of "...salient facts which give shape and substance" to the Tribunal's decision (per Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend at 61). The regard which the VCT was to have to the award was a matter which should have been brought to the appellant's attention by the VCT so the appellant could have made submissions. 66The way that award is to be regarded and what it covers is a matter to be properly considered by the VCT, not by this Court. This Court can only remit the matter for determination by the VCT in accordance with the proper procedure required by the Act. That includes the way the VCT should have regard to the relevant matters specified.

[27]

Consideration 68The legislation clearly requires the decision maker - here the VCT - to make an assessment and, in the process, to "have regard to" other compensation payable or paid. The VCT must consider the nature of the award, the basis of that award and how, for example, that other award is either different from, or identical to, the basis of the claim under the victims compensation regime. 69What is clear from the second reading speech accompanying the introduction of the legislation is that the assessors and the VCT are to ensure that there is no double-dipping. In other words, to ensure that an award for victims compensation is not made where the recipient has already received compensation for the same injury. 70I see no basis in the Act for a restrictive interpretation which would prevent a decision maker from making an award simply by virtue of the fact that another award had been made. Indeed, in my view, such an approach would run contrary to the established approach to the interpretation of beneficial legislation. 71The claim for psychiatric and/or psychological compensation arose after the incident and may well have dated from the time of the epileptic seizure and sequelae. However, that is a matter for determination by an assessor not by this Court. This Court can only act in this instance as an appellate court if an error of law is made out. 72In my view an error of law occurred here as a result of the approach adopted by the VCT in regarding the receipt of the workers compensation payment as precluding an award of compensation. The proper approach would have been for the VCT to: (1)have regard to the award - including the nature of it and what was covered by it; (2)to hear submissions as to what impact that would have on the claim for victims compensation amongst other things. That would include affording the appellant an opportunity to make submissions as to whether an award for psychiatric/psychological injuries is appropriate; and (3)to consider the claim for victims compensation against the relevant criteria -particularly to ensure there was no double-dipping.

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