Aldridge v Victims Compensation Fund Corporation

[2008] NSWSC 724

CITATION:	Aldridge v Victims Compensation Fund Corporation [2008] NSWSC 724
HEARING DATE(S):	4 March 2008
JUDGMENT DATE :	17 July 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Rothman J
DECISION:	(i) Judgment for the first defendant on the summons; (ii) The summons is dismissed; (iii) Liberty for any party to apply within 7 days for any order for costs.
CATCHWORDS:	ADMINISTRATIVE LAW – victims compensation – prerogative writ – findings of fact not challenged – no error of law – proceedings dismissed.
LEGISLATION CITED:	Victims Support and Rehabilitation Act 1996
CATEGORY:	Principal judgment
CASES CITED:	Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
PARTIES:	Dawn Aldridge (Plaintiff) Victims Compensation Fund Corporation (First Defendant) Victims Compensation Tribunal (Second Defendant)
FILE NUMBER(S):	SC 13847/2007
COUNSEL:	J Raine (Plaintiff) S Free (First Defendant) Submitting appearance (Second Defendant)
SOLICITORS:	Fosters Lawyers (Plaintiff) Crown Solicitor's Office (Defendants)
LOWER COURT JURISDICTION:	Victims Compensation Tribunal
LOWER COURT FILE NUMBER(S):	86384
LOWER COURT JUDICIAL OFFICER :	Magistrate Gilmore
LOWER COURT DATE OF DECISION:	17 May 2004

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

17 JULY 2008

13847/2007 Aldridge v Victims Compensation Fund Corporation & Anor

JUDGMENT

1 HIS HONOUR: Dawn Daphne Aldridge (Ms Aldridge) alleges that she was the victim of a number of assaults for which she sought compensation under the Victims Support and Rehabilitation Act 1996 (“VSR Act”). A Compensation Assessor dismissed her application, from which dismissal Ms Aldridge appealed to the Victims Compensation Tribunal. On 17 May 2004, the Victims Compensation Tribunal (“Tribunal”) dismissed her appeal against the Assessor’s determination.

2 Ms Aldridge applies to the Court for orders quashing the determination of the Tribunal and of the Compensation Assessor. These orders are sought on the basis of alleged errors on the face of the record. The Victims Compensation Tribunal, which is the second defendant in these proceedings, submits to any order of the Court, save as to an order for costs.

Background

3 Ms Aldridge claims to have been sexually and physically assaulted by her de facto partners over the period from 1973 to 1990. The assaults were said to have occurred at Mt Druitt and Walaga Lake Aboriginal Mission, Bermagui. Three de facto partners were identified who, it was said, perpetrated these assaults. Two of those alleged offenders were deceased at least at the time of February 2003.

4 On 21 February 2003, the plaintiff applied for compensation under the VSR Act and detailed the above information in that application.

5 The application form for compensation (Tender Bundle, p 14) requires evidence of the injuries in respect of which compensation is claimed. The applicant completed it in a manner which indicated that the information would be provided “following receipt of report at conclusion of counselling”.

6 The application form was accompanied by a statement (Tender Bundle, p 19 et seq), which asserts the following:

(a) Ms Aldridge is Aboriginal and was born in Gunnedah in the early 1950’s. She is unaware of her exact birth date.

(b) Her parents were itinerant workers and she lived with them from time-to-time and at other times with her Aunt and Uncle. She recalls living at various times at Moruya, Bega, Newcastle and Mt Druitt. Ms Aldridge never went to school and is unable to read.

(c) Ms Aldridge has 8 children by three different partners. The statement identifies each of the children and the father of each.

(d) Ms Aldridge commenced a relationship with the first of the partners when she was approximately 18 or 19 and states that she “was subjected to regular and severe domestic violence by the fathers of my children”.

(e) The statement then sets out some relevant details of each of the relationships and gives some indication of the timing of the relationships.

7 Of the first relationship, she identifies the person as Aboriginal and a very heavy drinker. Ms Aldridge identifies a time, about 6 or 7 months after her child Gail was born, when Ms Aldridge was living with her mother at Mt Druitt. At that time, she returned to live with her then partner and, shortly after their relationship recommenced, Ms Aldridge claims “he bashed me”. She states that she went to the police station and was sent home; the police officer remarking that it was only a domestic violence issue. Gail was born in January 1973. Ms Aldridge asserts that between that time and shortly after her child Sandra was born in 1977, she was subjected to many assaults. Ms Aldridge did not seek medical attention for any of the assaults because she was, she says, frightened.

8 The injuries to which she attests resulted from her then partner punching her in the ears and eyes, and her being hit around the head and being kicked in the back. She attests to losing consciousness many times after being hit with a saucepan and other utensils. She also attests to a scar over her left eye as a result of one of the bashings. As a result of her desperation she went to Walaga Lake Mission.

9 Her statement also attests to similar conduct perpetrated against her by her second partner. This man was also Aboriginal and an alcoholic. Ms Aldridge’s statement states that she was “subjected to regular bashings”. Her second partner used to punch her in the face, the head and kick her all over her body. Again, she attests to having lost consciousness as a result of the assaults. She did not report it to the police because of the attitude of the police on the earlier occasion referred to above.

10 Her statement in relation to the second of her partners attests to the following incident:

“I remember that not long after Shirley’s birth I became pregnant again. When, I was about eight months pregnant Thomas bashed me over my body with a childrens [sic] iron wheelbarrow. I remember that after that bashing I was taken to Bega Hospital where I gave birth to a stillborn child. My baby died because of the bashing I had received from Thomas.”

11 Shirley was born in 1980. Ms Aldridge became pregnant again and another child (Thomas Junior) was born in 1984. The bashings, she says, continued and, early in the pregnancy relating to Thomas Junior, her partner burnt her on the leg with a fire poker, for which she was admitted to Bega Hospital. As a result of the burns on her leg, she was required to receive skin grafts.

12 Her statement attests to similar bashings during the pregnancy for her child Blake who, she says, was born with a brain injury that she attributes to the bashings that she received while she was pregnant. When Blake, who was born in 1985, was about six months old, her partner, Ms Aldridge asserts, broke her arm whilst assaulting her. For that, she went to Bega Hospital and later Queanbeyan Hospital and screws were inserted into her arm.

13 There are other incidents to which Ms Aldridge attests in relation to her second partner.

14 In relation to the third partner, who was also Aboriginal and an alcoholic, Ms Aldridge attests that, once more, she was the subject of domestic violence, because of which she ended the relationship just before her last child, Lawrence, was born.

15 Further, Ms Aldridge attests in her statement:

“For the past 20 years or so I have had numerous admissions to psychiatric hospitals and wards. These have included Rozelle, Gladesville, Kempsey, Casino and Sutherland Hospital. I have recently been receiving help from the Mental Health Service at Sutherland. There I receive ongoing assistance from professional staff.

This assistance has helped me and I now feel much stronger and feel that I am now able to confront the results of the domestic violence to which I was subject.”

16 The injuries and disabilities for which Ms Aldridge made a claim for compensation were: psychiatric and psychological disorders; scarring to face, arms and legs; partial loss of hearing; partial loss of sight; and back injury.

17 Ms Aldridge, or those representing her, filed with the statement a report of Ms Alyson Evans, approved counsellor, with the Gymea Lily, Psychotherapy Centre. That report states:

“Ms Aldridge was the victim of domestic violence with the three partners she was involved with over a period of approximately 20 years. She reported that she had been repeatedly physically assaulted, including being thrown over a balcony whilst pregnant causing her baby to be born with fluid on the brain. She was also burnt, kicked and suffered fractures. She reported experiencing chronic pain due to previous injuries. In addition, she reported being emotionally abused and in a constant state of fear and tension. She has suffered from depression and anxiety as well as low self esteem and low self worth.”

18 On 7 March 2003, the Director of Victims Services, Ms Claire Vernon, wrote to Ms Aldridge’s solicitors (Baker Ryrie Rickards Titmarsh) notifying them that the claim number was 86384 and notifying them that, on 28 February 2003, the Assessor had granted an extension of time. The letter reminds them that it is the applicant’s onus to establish that the applicant was a victim of an act of violence and, as a consequence, has sustained compensable injury.

19 The aforementioned letter from Ms Vernon notes that the application filed did not include a nomination of the compensable injuries in terms of the Table of Injuries in Schedule 1 to the VSR Act. The letter encloses a Bridging Form, which is asked to be returned.

20 By letter dated 16 April 2003 (and, it seems, received on 17 April 2003), the plaintiff’s solicitors replied to the above mentioned letter and enclosed a completed Bridging Form.

21 Ms Vernon replied by letter dated 28 April 2003, noting that the claim was for both psychological injury and domestic violence. The letter required the applicant to elect whether she was claiming compensation for all injuries received as a direct result of the domestic violence, or whether she was claiming compensation for the psychological or psychiatric disorder said to arise from the act of violence: see s 11 of the VSR Act.

22 By letter dated 10 July 2003, the solicitors acting for Ms Aldridge made clear that their primary claim was for an award of compensation for the psychological or psychiatric disorder (Category 2). However, in the alternative, they sought an award of compensation for the compensable injury of Domestic Violence.

23 Before that letter was sent and received, the Director, Ms Vernon, by letter dated 28 May 2003, reported (not surprisingly) that the police had no record of the incident (or incidents) of domestic violence between 1 January 1973 and 31 December 1990. Given the indication by Ms Aldridge in her statement of the attitude of the police, it would be unlikely, assuming the truth of the statement, that there would be any police record of any such report.

24 The letter of 28 May 2003 seeks additional information from the applicant relating to the incident “(i.e. statement made at police station, name of police officer to whom the matter was reported etc.) … to assist the Tribunal in obtaining the report”. Further, the letter states:

“If the applicant is unable to supply any further information, a Statutory Declaration prepared by the applicant, confirming that the matter was reported, the police station and any other relevant details may be provided to assist the Tribunal in processing the claim.”

25 Ms Aldridge filed a statutory declaration under the Oaths Act 1900 that had been declared on 11 June 2003 in which she repeats, in the form of a statutory declaration, the effect of earlier statements made.

26 On 11 December 2003, the Director, by then Mr Le Breton, gave notice of the listing of the application for determination by an Assessor “at the first available opportunity in the month of March 2004”. The correspondence includes the following advice:

“All material and evidence to be relied upon, including reports, submissions, invoices, receipts, photographs, workers compensation details, loss of earnings schedules, and other documentation that you feel is necessary to support your claim, should be submitted to the Director at least 7 days prior to 1 March 2004

It is the responsibility of the applicant or their solicitor to establish that the applicant is a victim of any act of violence as required under … the … Act. The applicant must also demonstrate that they have sustained a compensable injury as set out in Schedule 1 of the Act….

The application will be determined solely upon the documentation before the Assessor on the date of determination.” (Emphasis in original.)

27 On 8 March 2004, an Assessor with the Victims Compensation Tribunal dismissed Ms Aldridge’s application for compensation. The reasons for dismissal are short (Tender Bundle, Exhibit A, p 43).

The Assessor’s Determination

28 The Assessor’s reasons for dismissal refer to domestic violence incidents that were said to have taken place between 1972 and 1990 by three alleged offenders, each of whom was, at the time, the applicant’s de facto partner. It notes that none of the matters seem to have been reported to police and that police have no record of any incident during that period. It then recites that the onus is on the applicant to establish, on the balance of probabilities, that she has been the victim of an act of violence. The reasons recite the provisions of s 5(1) of the VSR Act and the definition therein of “act of violence” and notes:

“I have read the statutory declaration and statement of the applicant. I also note solicitor’s submissions. There are no specific details provided in respect of particular incidents. Police have no record of any matter ever being reported, no statement was ever provided to police and hence there was never any investigation of any offence and the applicant’s allegations were never put to the alleged offenders. I further note that there is no medical or any other corroborative evidence from the period in question.

Due to the above factors I cannot be satisfied that an act of violence is established and the application must be dismissed.”

The Appeal

29 On 7 April 2004, an appeal, dated 5 April 2004, was filed against the Assessor’s determination. It lists four grounds and particularises submissions in support of those grounds. Those grounds suggest error in the Assessor noting that no matters were reported to the police and that no specific details were provided in respect to the particular incidents. The grounds also claim, in effect, that the Assessor was in error in not finding that, on the balance of probabilities, the applicant had established that she had been the victim of an act or acts of violence.

30 Further, the appeal suggested error in failing to take account of the report of Ms Evans (referred to earlier) and the report of Ms Edwina Birch. Ms Birch is a consultant clinical psychologist whose report was filed with the Victims Compensation Tribunal on or about 9 July 2003 in support of Ms Aldridge’s claim.

31 Ms Birch’s report corroborates the history (albeit obtained from Ms Aldridge) and gives a history of psychiatric illness including schizophrenia. Her opinion was in or to the following effect:

“Ms Aldridge has suffered domestic violence over a period of twenty years….

Ms Aldridge became a victim in early childhood and was an easy prey for aggressive males. Her mental illness would have contributed to the ease with which she could be victimised. Over the years she had suffered considerable emotional and physical pain from abuse; however it was masked by mental illness and alcohol abuse. As she has gained more control over her mental illness, she is reflecting on her life and has developed a depressive illness as a consequence….

Ms Aldridge continues at risk of abuse and exploitation. This may be an issue if she is to receive compensation….”

32 The appeal was dealt with on the papers and without hearing. The Magistrate member of the Victims Compensation Tribunal recited the Assessor’s determination as one in which the Assessor “was not satisfied the Appellant has established she was the victim of an act of violence”.

33 The Magistrate, correctly in my respectful opinion, noted that the fact that the police had no record of any report would not be decisive in determining the veracity of Ms Aldridge’s claim. However, he remarked that the injuries claim to have been suffered would have required medical attention (and on Ms Aldridge’s statement did have medical attention) and yet no medical report was provided corroborating the injuries or their timing.

34 The learned Magistrate recites the terms of s 5 and the definition of “act of violence” and notes that it extends to domestic violence. The Magistrate also notes that the appellant had been legally represented throughout the matter.

35 The Magistrate carefully examined the nature of the injuries that were alleged and noted that, in a number of cases, those injuries were said to have been treated in hospitals. His Honour then says:

“I would not [have] thought it too difficult to obtain hospital records in relation to that injury. A contemporaneous complaint that her partner had assaulted her causing the arm fracture would have been of significant assistance to the Appellant establishing her claim.” (Tender Bundle, Exhibit A, p 51.)

36 The learned Magistrate then notes that, despite the Assessor’s comment that no medical evidence had been made available to corroborate the claims made, leave had not been sought to file additional material for the appeal. Similar comments are made in relation to other incidents that were said to have resulted in hospital attendance. The Magistrate then notes:

“It seems that the Appellant’s claim of being subjected to domestic violence between 1973 and 1990 surfaced recently when her Mental Health Case Manager at the Sutherland Community Health Team became involved in the matter. The Appellant had been diagnosed with schizophrenia.

The Mental Health Case Worker told Ms Birch that the Appellant’s

‘ psychiatric history is chaotic, compounded by alcohol and frequent moves. If she does not take her medication she becomes ill and with extreme paranoia, auditory hallucinations and aggression .’


If her allegations of domestic violence are in fact true, this is a very sad case. Had there been one piece of contemporaneous corroborative evidence to support her claims, I would have had no difficulty in finding an act of violence established.

The reports of Ms Evans and Ms Birch are persuasive; however, they did not see the Appellant until 2003 and in my view little probative weight can be given to their opinions on the question of fact in issue.

Whilst it is possible the Appellant was the victim of domestic violence during her relationships with her three partners, extending over a period of 17 years, I am not satisfied the evidence is sufficient to establish as a question of fact that her claims are more probably than not, true.”

37 The Magistrate accordingly dismissed the appeal.

38 I agree with the comment of the learned Magistrate. If the allegations Ms Aldridge makes of domestic violence were true, this is an extremely sad case.

Is There an Error of Law?

39 Fundamentally, Ms Aldridge, through her counsel, alleges the same error of law in both the determination of the Assessor and in the determination of the Appeal. That error of law is said to be the failure to consider a fundamental precondition to the exercise of jurisdiction of the Assessor (and on Appeal, the learned Magistrate).

40 The fundamental precondition is that it was necessary for each of the Assessor and Magistrate to determine whether, in accordance with the provisions of s 5(3) of the VSR Act, the series of acts which were alleged to be acts of domestic violence were “related acts”.

41 As I understand the submission put by counsel on behalf of Ms Aldridge, it is to the following effect:

(a) The application that was made related to a number of acts of domestic violence.

(b) The Assessor would only be empowered to determine whether there was an “act of violence” if the acts of violence were “a series of acts” and “related acts” within the meaning of s 5(3) of the VSR Act.

(c) Since no specific reference is made to s 5(3) of the VSR Act, the Assessor (and the Tribunal) must have dealt with the matter as an allegation of a single act of violence.

(d) There is a requirement under s 5(3) of the VSR Act that the Assessor and/or Tribunal must form an opinion in circumstances where more than one act is the subject of application that there are multiple acts which are related acts for the purpose of determining the existence of an “act of violence”.

42 The submission is misconceived. It is misconceived both as to the construction of the VSR Act and as to the understanding of the determination of the Assessor and of the Tribunal.

43 It is necessary to set out the provisions of s 5 of the VSR Act. It is in the following terms:

“ 5 Act of violence
(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.
(1A) For the avoidance of doubt, the reference to an offence in subsection (1) (a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person’s age or mental illness or impairment.
(2) For the purposes of this section, violent conduct extends to sexual assault and domestic violence (as defined in the Dictionary).
(3) An act is related to another act if:
(a) both of the acts were committed against the same person, and
(b) in the opinion of the Tribunal or compensation assessor, both of the acts were committed at approximately the same time or were, for any other reason, related to each other.
However, an act is not related to any earlier act in respect of which an award of statutory compensation has been made if it occurs after the award was made.
(4) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence.”

44 Section 6 of the VSR Act renders, relevantly, a primary victim of an act of violence to be eligible for statutory compensation. Section 7 of the VSR Act defines a primary victim of an act of violence as a person who receives a compensable injury. Section 10 sets out that there is a schedule of compensable injuries in Schedule 1 and s 11, as has already been noted, requires an election by an applicant for compensation, as to whether the applicant seeks the damages applicable to the particular injury or damages in the range arising from injuries caused by a particular kind of offence mentioned in the Schedule. It is unnecessary to set out the other detailed sections of the VSR Act dealing with the kind of compensation that is payable and exceptions thereto.

45 It is however necessary to examine the provisions of ss 23 and 25 of the VSR Act, they are:

“ 23 Eligibility to receive compensation in respect of same act of violence
(1) A person is not eligible to receive more than one award of statutory compensation in respect of the same act of violence (except as provided by subsection (1A)).
(1A) This section does not prevent a person from receiving an award of statutory compensation to which section 14 applies in addition to an award of statutory compensation for prescribed expenses in respect of the same act of violence.
Note: However, section 14 (3) prevents a person from being granted compensation for financial loss to the extent that statutory compensation for prescribed expenses has been awarded for that loss. Further, under section 14A (6), statutory compensation for prescribed expenses is not payable to a person to the extent that the person has been awarded statutory compensation to which section 14 applies in respect of the same act of violence.

(2) No more than one award of compensation may be made with respect to any one application for statutory compensation.
(3) A person is eligible to receive statutory compensation in respect of the same act of violence in only one of the capacities of primary victim, secondary victim or family victim.”

“ 25 Lodging of applications
(1) An application for statutory compensation may be made:
(a) by a primary victim, secondary victim or family victim of an act of violence, or
(b) by any other person, on behalf of such a victim, who has a genuine interest in the welfare of that victim.
(2) An application:
(a) must be in the form required by the rules, and
(b) must be accompanied by such documentary evidence (such as medical certificates) as may be required by that form, and
(c) must be lodged with the Director.
(3) An application may also be lodged with the registrar of a Local Court. In that case, the registrar is to forward the application to the Director as soon as practicable after it is so lodged.”

46 From the above provisions, it can be seen that the statute requires that a person seeking compensation make an application for that compensation in the form required by the rules, accompanied by documentary evidence (as may be required by that form) and lodging the form with the Director.

47 A person is not eligible to receive more than one award of statutory compensation for the same act of violence. Nor may an applicant receive more than one award of compensation from one application.

48 Nothing in the Act prohibits an application being for more than one act of violence from which application one award of compensation could be made, being the total of the compensation payable for each such act of violence. However, pursuant to the terms of s 5, and in particular s 5(3) of the VSR Act, a series of related acts is treated as “an act of violence” and would not give rise to more than one amount of compensation under the Schedule.

49 Where, as is alleged to be the case in this matter, there is more than one act of violence, it is necessary for the Assessor or Tribunal to assess whether any acts of violence are part of a series of related acts, pursuant to the terms of s 5(3) of the VSR Act. If there are a series of related acts, then they will count as only one act of violence and entitle the applicant to only one amount of compensation.

50 It is accurate, as counsel for Ms Aldridge submits, that neither the Assessor nor the Tribunal dealt with whether the acts of violence were a series of related acts. This is because, before determining whether one or more acts of violence amount to a “series of related acts”, the Assessor and/or Tribunal would have to be satisfied that the acts occurred.

51 The substance of the determination of the Assessor, and of the Tribunal, was that they were not satisfied that any of the acts (whether they were a series or otherwise) occurred. It was a consequence of the failure to be satisfied of the occurrence of the acts that the determinations were made against Ms Aldridge.

52 Having received an application for compensation, the only requirement on the Assessor, or the Tribunal, was to determine the application either by dismissing it or by making an award of compensation (see s 29(1) of the VSR Act). If the Assessor or Tribunal comes to a view that the applicant, relevantly, is a primary victim of an act of violence and is eligible to receive one or more amounts of compensation listed in Schedule 1, the Assessor and/or Tribunal is required to make an award of compensation.

53 The provisions of s 5(3) of the VSR Act arise only at the point in time that the Assessor and/or Tribunal is calculating the amount of compensation, having been satisfied, on the balance of probabilities, that the applicant for compensation is, relevantly, a primary victim who has suffered compensable injury.

54 If the application seeks compensation for a number of acts of violence, which the Assessor or Tribunal was satisfied to the requisite standard had occurred, then the calculation of compensation for the award to be made would either be for more than one act of violence (i.e. for all of the acts of violence of which the Assessor or Tribunal is satisfied) or, if all of the acts of violence were held by the Assessor or Tribunal to be a series of related acts, for one act of violence. There may be combinations of those two findings.

55 However, in the present circumstances, neither the Assessor nor the Tribunal were satisfied that any act of violence had occurred. The occasion for the determination of whether one or more acts of violence were a series of related acts had never arisen.

Conclusion

56 For the reasons above, the summons and proceedings must be dismissed and judgment given for the defendant.

57 Two matters should be noted. First, notwithstanding the infelicitous expression by the Assessor that he “cannot’ be satisfied of the act of violence, counsel for Ms Aldridge does not suggest that the Assessor, by that comment, was suggesting that it was impossible to be satisfied. Rather, counsel suggests that the term, infelicitous though it may be, was a statement of fact, namely, that the Assessor “was not satisfied” of the requisite matters. I think that is correct.

58 Secondly, there seems to be some level of injustice associated with any tribunal making findings which, in effect, are findings against the credit of the applicant in circumstances where the applicant has not been heard or cross-examined; and in circumstances where there is no evidence that contradicts the evidence of the applicant. Nevertheless, the mere fact that evidence is adduced before a tribunal, and not contradicted, does not require the tribunal to be satisfied that the evidence is true or accurate. In the current proceedings, the Victims Compensation Tribunal, in its correspondence, made it clear to the solicitors acting for Ms Aldridge that it was necessary to corroborate, to the extent possible, by police reports or medical reports, the events in question. Further, counsel for Ms Aldridge does not rely upon an error of law associated with the findings of fact to vitiate or invalidate the findings. Nor is there a reliance on any denial of natural justice.

59 It is also necessary to note that the claim on behalf of Ms Aldridge in this Court does not rely upon a misuse of the inference in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

60 The only other matter to which I would refer relates to the tragic circumstances of this matter, if the allegations were true. If these allegations were true, and I suspect that they may be, then the medical records, as to the birth, the broken arm, etc., would still be available. Given the relatively recent treatment of Ms Aldridge for her psychiatric condition and the fact that the lack of corroborative material seems to be a result of her then (not current) legal practitioners’ inaction, there seems to be good reason (even in the case of a second application) to grant leave for a further application out of time. There is no prohibition on subsequent applications under the Act and, if corroborative material were available, it would seem to further the purpose of the Act.

61 For the above reasons, the Court makes the following orders:

(i) Judgment for the first defendant on the summons;

(ii) The summons is dismissed;

(iii) Liberty for any party to apply within 7 days for any order for costs.

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