Saleh v Victims Compensation Fund Corporation

Facts: Act of Violence 4The appellant is a forty six year old man who was assaulted by a person referred to as "EG" on 12 November 2006 in Oxford Street, Sydney. 5EG had been drinking in a bar in Oxford Street between 6:00am and 7:00am that morning. He was informed that a friend's car was being vandalised. He left the bar and approached the vehicle. He became involved in an argument with the appellant. EG went to the rear of the vehicle and removed a baseball bat. He struck the appellant on the right side of his skull twice. The appellant fell to the ground and suffered bleeding from his skull. 6EG handed himself into the Surry Hills Police Station on 22 November 2006. He was charged and convicted of maliciously inflict grievous bodily harm with intent. That conviction occurred on 8 March 2008 when he was sentenced to a term of periodic detention of 18 months with a non-parole period of 12 months. 7The assessor determined that the appellant had established an act of violence pursuant to paragraphs 5(1)(a), (b) and (c) of the Act. There is no challenge to that finding, nor, as I understand it, to the medical or other evidence before the VCT.

Medical Evidence 8There were a number of reports and clinical notes from St Vincent's Hospital before the Tribunal. Those include a report from a neurological surgeon, Dr Fearnside, of 30 June 2009. Dr Fearnside noted that as a result of the blows from the baseball ball, the appellant was admitted to St Vincent's Hospital. He was suffering a non-displaced fracture of the right squamous temporal bone and an acute subdural haematoma which had a maximum of 10mm of depth. A right frontoparietal craniotomy was performed and the subdural haematoma drained. 9Thereafter the appellant was managed in the Intensive Care Unit and transferred to the Royal Ryde Rehabilitation Hospital on 4 December 2006. He was discharged on 11 December 2006.

Brain Injury/Nervous System Injuries 10The appellant had a poor recall of information and a mild planning deficit with poor concentration on his release from the Royal Ryde Rehabilitation Hospital. There was also some loss of sensation and dexterity. The cranial insertions have left a contour in his skull. 11Several months later he had a seizure which was followed by subsequent seizures. He is now being treated with anti-epileptic medication. The appellant has been diagnosed as suffering from post traumatic epilepsy and daily headaches.

Sequelae/Psychiatric and Psychological Injuries 12The appellant has had continuing psychiatric issues. He has not worked since the incident. 13There is no issue but that those matters flowed from the incident. The respondent does not concede that a Category Two psychiatric or psychological illness has been established. 14There was both psychiatric evidence - Dr Dinnen's report of 15 November 2010 and psychologist evidence - Mr Thomas O'Neill's report of 20 July 2010. That appears to have been filed after the Bridging Form (Exhibit 1: Tab 6) was stamped at the Tribunal on 20 June 2010: see below "Amendment sought".

Workers Compensation 15The appellant commenced proceedings under the WC Act. A Certificate of Determination of consent orders tendered before the VCT indicates that the appellant received $30,000 for permanent impairment pursuant to section 66 of the WC Act and $40,000 for pain and suffering pursuant to section 67 of the WC Act. That consent Determination was dated 12 May 2010. 16The report of Dr Fearnside of 30 June 2009 sets out the opinion that there had been 21% permanent whole person impairment. That figure of 21% was the same as that adopted by the Workers Compensation Tribunal. There was no reference to psychological or psychiatric injuries in that report. The Tribunal repeated the assessment of the permanent whole person disability at 21% - [24]. To the extent relevant, section 67 provided for compensation for pain and suffering resulting from the permanent impairment. 17At the first hearing of the VCT, the assessor noted that he did not have the specific documents before him "detailing precisely what the breakdown of the amounts awarded were for (ie. what specific injuries and percentage impairment loss) as part of the determined workers compensation matter." The Tribunal reiterated that at [25] in relation to the compensation for pain and suffering. The Chairperson found - at [27] - that "the medical evidence establishes that the appellant suffers from a secondary psychological injury."

Claim for Victims Compensation: Nature of Injuries and Amounts Claimed 18The application under the VCR Act sought compensation for the following injuries: (1)Brain damage $50,000 (2)Skull: subdural haematoma requiring evacuation $1,800 (3)Skull: depressed fracture requiring operation $720

Amendment Sought 19That was subsequently altered on 1 June 2010 by a Bridging Form, amending the nomination of the injuries for which compensation was sought. The amendment sought was: (1)Category two: chronic psychological or psychiatric injury which is severely disabling. $30,000-$50,000 (2)Skull: subdural haematoma $1,800 (3)Skull: depressed fracture $720 20That amendment was made pursuant to the Bridging Form. An issue has arisen during the hearing of this appeal as to whether that was before the VCT. The respondent submitted that the appellant was not permitted to change the nominated injuries in his initial application. It was also submitted that the form was incorrect in that it was for use in the situation where no injury had previously been nominated. That submission was made as one of the bases for the VCT not determining the psychiatric injury nominated. 21This amendment must have been accepted by the VCT when it appointed Dr Dinnen as an Authorised Report Writer. Authorised reporters are only approved by the VCT, which pays for their report, when a psychological injury is nominated. The report itself refers to the author, Dr Dinnen, as being in that category. 22In my view, it was clear that that amended application was before the VCT. It was certainly filed over a year before the hearing and bears the VCT registry stamp. Even if it was not precisely the correct form, it demonstrated the clear intention to amend the injuries nominated. It resulted in the procedure of nominating an Authorised Report Writer and was not communicated as being a problem to Mr Saleh's legal representatives until the course of submissions in this Court.

Evidence of Workers Compensation Award Before Chairperson 23The initial determination of the VCT and the Chairperson's review on appeal were paper-driven: the decisions were based on the written material before the VCT. No further evidence was sought from the representatives for the applicant.

Assessment 24The VCT held that the $70,000 received by the appellant in this matter under sections 66 and 67 of the WC Act was for the "non-economic loss aspect of his injury" which would be "the $50,000 which he claims is compensation for injury under this Act". 25The VCT made no findings as to psychological or psychiatric injury.

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.

Error of Law Asserted 34The appellant submits that that hearing was conducted in circumstances where there was an error of law by virtue of: (1)The approach adopted by the VCT in effectively concluding that the receipt of the workers compensation payment precluded any other claim for damages arising from that incident; (2)Given that approach, the failure to provide the appellant with an opportunity to make submissions on the question of whether there was an entitlement to make a claim for damages for psychiatric/psychological injuries arising from the incident; and (3)Denying the applicant the opportunity to make submissions on what the workers compensation payments were for. 35In each case, the appellant submits that there has been a denial of procedural fairness and accordingly an error of law. Moreover, that that denial of a proper hearing resulted in an improper determination of the central issue in the application.

Relevant Provisions 36S 30 of the VCR Act, in particular subsection 3, which provides as follows: "In determining the amount of statutory compensation to award to a person, the compensation assessor must have regard to: (a) any amount that has been paid to the person or that the person is entitled to be paid: (i) by way of damages awarded in civil proceedings, or (ii) under any other Act or law (including workers compensation), or (iii) under any insurance or other agreement, and (b) any other amount that has been received by the person or that (in the opinion of the assessor) is likely to be received by the person, in respect of the act of violence to which the application for statutory compensation relates." 37The VCR Act limits the award for compensation to a maximum of $50,000. 38The second reading speech of the Victims Compensation Bill by the then Attorney-General, makes it clear that victims compensation should only be paid to the extent not recoverable under workers compensation legislation, in other words, to prevent what is commonly referred to as 'double-dipping'.

Amounts Covered by Workers Compensation Act 39It was, and is, agreed that the compensation for permanent impairment under section 66 would not include compensation for a secondary psychological injury. In determining this aspect of the matter, the VCT noted that section 65A of the WC Act, relating to special provisions for psychological and psychiatric injury, provides that no compensation is payable in respect of permanent impairment which results from a secondary psychological injury. 40Here is seems clear that the medical evidence establishes that the appellant may suffer from a secondary psychological injury, at the least. However, that is a matter for the VCT.

Basis of Determination 41The first instance hearing of the VCT by the assessor made reference - at [48] - that the only way section 30(3) of the VCR Act can be applied is to have regard to the overall effect of the award of compensation under the WC Act and to determine whether an award would amount to double dipping. 42The assessor was satisfied: "That recovery under this act would compensate the Appellant for the same injuries for which he received compensation under the Workers Compensation Act and the payment of compensation under this Act would amount to double dipping."

Compensation for Two or More Injuries 43Rule 6(3) made under the act in relation to compensable injuries provides as follows: "If compensation is sought for 2 or more injuries, the application for compensation is to nominate the most serious injury, the second most serious injury and the third most serious injury (based on the largest, second largest or third largest standard amount payable)." 44It is submitted by counsel for the appellant that "nominate" encompasses a power to elect. The VCT held - at [35] - that there was no basis on which an applicant for compensation can elect not to claim compensation for a particular compensable injury. Nor, having claimed and received compensation for loss of impairment and pain and suffering for serious brain injury under the WC Act, not to claim compensation for that injury under the VC Act. Absent a specific legislative direction to that end, I do not regard that as a proper approach to the interpretation of beneficial legislation - see below [58]. It effectively seeks to force an applicant into one claim. The Bridging Form acted as an amendment bringing before the VCT the other matters requiring a consideration of the medical, psychiatric and psychological reports.

Preliminary Issue 45At the outset of the appeal, the respondents objected to the admission of that part of the appellant's tender bundle which referred to the application to the Workers Compensation Commission and associated documents including the reply. 46I admitted those documents as they seemed to be directly relevant to precisely what was covered in the Consent Determination and the nature and purpose of the payments which both parts of the VCT, namely, the Assessor and then the Chairperson, were required to have regard to under the legislation. I do not regard that course as constituting straying into a "merits review" as was submitted by the respondent.

Relevant Authorities 47I have been referred to the following authorities: Victims Compensation Fund Corporation v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668 Uren v VCFC [2003] NSWDC 2 (per Walmsley SC DCJ) Mason v VCFC (District Court of NSW, 27 May 2003, unreported) (per Williams DCJ) Victims Compensation Fund Corporation v Crowley [2000] NSWCA 378 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Appeal: Submissions 48Both sides provided written submissions which were amplified by oral submissions and arguments.

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.

Respondents 56The respondents submit that the appellant has not identified errors of law he alleges were made by the VCT in its application of subparagraph 30(3)(a)(ii). The respondents submit that the claim is not sustainable and accordingly the decisions of the assessor and the Tribunal should be upheld. 57Ms Boyd refers to the provisions of subparagraph 30(3)(a)(ii) and submits that the section doesn't refer to the term injury in that respect. Rather, one of compensation. The assessor needs to "have regard to" other compensation payable. 58In turn, the structure of the legislation, in particular Schedule 10, is prescriptive, requiring the appellant to have regard to the most serious injury and to make an election accordingly.

Approach to Interpretation 59In Victims Compensation Fund v Brown [2002] NSW CA 155, Spigelman CJ considered the VCR Act and made it clear - at [67] - that a liberal approach should be adopted in the interpretation of this legislation, which has a remedial and beneficial objective.

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.

Claiming for Most Serious Injury 67This issue may be of significance in the interpretation and practice of the scheme and those making such claims. Both sides have addressed this issue - the issue also seems to have been addressed by the assessor and the VCT - at [35]. However, those are matters of practice and procedure for the VCT provided, of course, that there is compliance with the legislation and rules of natural justice.

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.

Conclusion 73I find that the Tribunal erred in law in failing to have regard to the basis of the workers compensation determination, to differentiate the injuries for which compensation had been received by the applicant under the WC Act and those injuries for which compensation was claimed under the VCR Act.

Decision 74Leave should be granted to appeal and for the matter to be remitted to the VCT on the basis of an error of law being apparent. The matter should be remitted to the VCT to determine the claim on the basis set out in the Bridging Form.

Orders

1. Appeal allowed
2. Matter remitted for re-hearing by the Victims Compensation Tribunal
3. Liberty to apply for the matter to be listed on the issue

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: 27 November 2012