[2005] VCAT 1758

Ms J. Davis, Counsel, instructed by Mulcahy Mendelson, Round and Darling

Ms M. Britbart, Counsel, instructed by Victorian Government Solicitor

1 Mr Vaughan was the victim of an assault on 23 January 2004 in the course of his employment.

2 It is accepted that as a result he is to be regarded as a 'primary victim' for the purposes of the Victims of Crime Assistance Act 1996. He sought compensation for loss of earnings under that statute together with an award of special financial assistance. On 21 April the Victims of Crime Assistance Tribunal constituted by Ms Felicity Broughton, awarded Mr Vaughan special financial assistance but declined to award him compensation for loss of earnings in light of WorkCover payments which he had received and would thereafter receive under the Accident Compensation Act 1985.

3 Under the Accident Compensation Act Mr Vaughan received benefits of $324 per week for the first 13 weeks after his injury being 95% of his pre-injury average weekly earnings and thereafter his benefits were at the rate of 75% of his pre-injury earnings at $256.00 per week. Mr Vaughan seeks an award under the Victims of Crime Assistance Act representing the difference between the earnings which he would have derived had he not been injured and the benefits which he has been receiving under the Accident Compensation Act 1985.

4 The Victims of Crime Assistance Act 1996 provides a variety of forms of assistance and compensation. Part 2 of the Act provides for assistance to primary victims (Division 1), secondary victims (Division 2), related victims (Division 3), assistance for funeral expenses (Division 4), and stipulates for certain 'limits on assistance' (Division 5).

5 Since Mr Vaughan is a primary victim, Divisions 2 to 4 of the part are irrelevant to his case. Turning then to Division 1 of Part 2. Section 8 provides for an upper limit of assistance to primary victims in the sum of $60,000 'plus any financial assistance awarded in accordance with Section 8A'. Mr Vaughan received an award of special financial assistance under Section 8A and no issue arises with regard to it and so that section can be put to one side. Section 8(2)(c) provides for the award of an amount to a primary victim:

Of up to $20,000 for loss of earnings suffered, or reasonably likely to be suffered, by the primary victim as a direct result of the act of violence.

6 The limitations on primary victims' entitlements apart from the overall limit of $60,000 referred to in Section 8 are to be found in Division 5 of Part 2. Since these provisions are central to the present dispute I set out Sections 16 and 17 in full. Section 18 is irrelevant.

16. Other entitlements to be taken into account

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

(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 non-statutory, 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.

Assistance for loss of earnings awarded by the Tribunal is for earnings lost by the primary or secondary victim as a direct result of total or partial incapacity for work during a period of up to 2 years after the occurrence of the act of violence.

7 Ms Broughton accepted that Mr Vaughan has suffered a total loss of earning capacity as a result of his injury and that this total loss will continue to the end of the period of two years after his injury which is the end point for loss of earnings for a primary victim under Section 17 of the Act. She noted that compensation for loss of earnings during the two year limit laid down by Section 17 would, on the basis of Mr Vaughan's pre-accident weekly earnings have totalled $25,151.80, yet by virtue of Section 8(2)(c) of the Act no more than $20,000 could be awarded to Mr Vaughan for loss of earnings.

8 Next, she noted that as at the date of her determination, 21 April 2005, Mr Vaughan had already received benefits of $15,679.80 under the WorkCover scheme. An award for loss of earnings under the Victims of Crime Assistance Act to the date of her determination without regard to the WorkCover benefits received, would have entailed an award of $18,620.60 which would be within the limits laid down by Sections 8 and 17. This was an amount which exceeded the WorkCover benefits which Mr Vaughan had already received by $2,940.80. She concluded nevertheless, that it was not appropriate to award this sum on the basis that in light of Mr Vaughan's condition and loss of earning capacity he would receive at least this amount in additional WorkCover payments within the period of two years after his injury. Ms Broughton's conclusion as to the likely continuing receipt of WorkCover benefits was not challenged before me.

9 Mr Broughton concluded that in the circumstances absent any WorkCover benefits Mr Vaughan would be entitled to an award of $20,000 for loss of earnings under the Victim of Crime Assistance Act 1996. She considered however that it was mandatory for her to reduce that sum by the amount of WorkCover compensation actually received by Mr Vaughan by virtue of Section 16(a)(ii) of the Act and that she was entitled in the circumstances to reduce the potential award by the further amount of $2,940 on the basis of continuing WorkCover entitlements during the two year period from the date of injury by virtue of Section 16(b)(i) of the Act.

10 Accordingly the claim for an award for loss of earnings failed. Ms Broughton said:

If the total paid or to be paid by way of WorkCover payments exceeds $20,000, the balance available to the applicant is nil. The applicant is therefore not entitled to an award for loss of earnings.

11 Ms Davis, Counsel for the applicant, submitted that her client was entitled to an award of compensation for the amount being the gap between the WorkCover payments made or which would be made within the two year period laid down by Section 17 of the Act.

12 Ms Davis took me to the structure of the statute. She noted the various classes of assistance for compensation which could be awarded and observed:

Taking a hypothetical example, if the victim had incurred $1,000 for counselling expenses; $500 for medical expenses; $20,000 for loss of earnings and $500 for damage to clothing; all these amounts may be considered by the Tribunal to form part of the total award of compensation [up to the total limit of $60,000].

The starting point therefore in this case is to assess the amount of earnings lost. In this case that amount is in the order of $25,000. The victim is entitled to $20,000 which is the limit of assistance for loss of earnings.

14 She conceded however that Section 16 of the Act required that there be a reduction in the amount of the award. She said that Section 16 of the Act operated to reduce the amount awarded 'under one or all of the heads of S.8 by the total amount of payments received'. She continued:

In a hypothetical case, if the victim had recovered $450 for medical expenses, and $500 for counselling from his health insurance provider, he was only entitled to $550 being the balance outstanding for those two amounts'.

15 She said it could not be the intention of Parliament that a primary victim of crime who suffered his injury away from work would be entitled to the whole of his loss of earnings but that a person injured at work should be limited to the lesser sums provided for in the WorkCover scheme under the Accident Compensation Act. Ms Davis said:

Section 17 provides that assistance for loss of earnings is for earnings lost. The earnings lost equates to the difference between what the victim could have earned and what he has (sic) or entitled to recover under the Accident Compensation Act.

The plain words of the Act require that other amounts (such as AC Act amounts) be taken into account and there be a reduction from the amount of the award. That exercise cannot take place until the amount of the award has been established. Unless there is something - an amount - to be reduced in circumstances where another payment has been made, S.16 is redundant.

17 She referred to Section 35 of the Interpretation of Legislation Act 1984 and the need to prefer a statutory construction that advances the purpose of the statute. She said the purpose of Section 16 was to avoid 'double dipping' and that the construction which she advanced is consistent with that purpose. She referred to a number of passages from the Parliamentary debates at the time of the statute's enactment without suggesting that they directly bore upon the present question merely to say that there is nothing in them inconsistent with the view which she was urging.

18 She referred to Bentley v John-Paul Furlan [1999] VSC 481; [1999] 3 VR 63 at [100] - [106] and [121] - [126] and [156] and [161]. She referred to a decision of Judge Bowman in Tack v Victims of Crime Assistance Commission [2003] VCAT 778 [9].

19 Ms Britbart, counsel for the respondent Tribunal referred to and relied upon Section 1(2)(c) of the statute which stated as one of its objectives:

To allow victims of crime to have recourse to financial assistance under this Act where compensation for the injury cannot be obtained from the offender or other sources.

20 She noted that the objects of the Accident Compensation Act 1985 included the following object:

3(d) To provide adequate and just compensation to injured workers.

Although the VOCA Act is beneficial legislation, this does not mean that too broad or liberal an interpretation of the provisions of the Act should be applied where the legislature demonstrably intended there to be limitations upon the awards of assistance made.

22 She referred to the decision of the High Court of Australia, Victims Compensation Fund Corporation v Brown [2003] 8 HCA 54 at [33] per Heydon J.

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.

24 These issues are significant in a case such as the present because up to the limit of $20,000 in two years, the Victims of Crime Assistance Act offers potentially 100% compensation for loss of earnings resulting from an injury to a victim of crime but the Accident Compensation Act 1985 limits the compensation available under its terms to 95% of pre-injury weekly earnings or 75% depending upon the relevant period and the length of time after injury.

25 Both counsel contended that it was necessary to construe the statute as a whole and have regard to its evident framework. In my view the framework of the statute indicates that the approach adopted by the respondent Tribunal was the correct one. Division 1 of Part 2 provides for the establishment of a prima facie award amount. In the present case with respect to loss of earnings this would be the lesser of $20,000 and the amount of 'loss of earnings suffered, or reasonably likely to be suffered, by the primary victim as a direct result of the act of violence'. That prima facie amount is then scaled back by reference to the matters laid down in Division 5, for present purposes Sections 16 and 17. Section 17 limits the amount of loss to two years and Section 16 requires the deduction of inter alia WorkCover loss of earnings benefits actually received and authorises the deduction of WorkCover payments likely to be received in the future. This is precisely the chain of reasoning and calculation which Ms Broughton followed. The 'amount' referred to in Section 16(a) and (b) is the amount of the prima facie award that would be made in accordance with Division 1 of Part 2.

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.

27 The extensive and illuminating analysis by Ashley J (as he then was) in Bentley v Furlan [1999] VSC 481; [1999] 3 VR 63 does not deal with the present interesting and difficult issue. In my view the tentative conclusion reached by Judge Bowman in Tack's case is not inconsistent with the views which I have expressed. As Ms Britbart for the respondent observed, since the Victims of Crime Assistance Act provides within its own parameters for a more generous potentially 100% compensation for loss of earnings than does the Accident Compensation Act, so long as the loss of earnings benefits relative to a victim of crime under the WorkCover scheme do not reach $20,000 there is no reason why a victim of crime would not be entitled to a loss of earnings award under the Victims of Crime Assistance Act for the difference between his actual loss of earnings over a period and the WorkCover benefits which he received for those loss of earnings.

28 The respondent's determination is affirmed.