ASD v Victims Compensation Fund Corporation

[2013] NSWADT 242

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

ASD v Victims Compensation Fund Corporation [2013] NSWADT 242

Hearing dates:

On the papers

Decision date:

30 October 2013

Jurisdiction:

Victims Support Division

Before:

P H Molony, Judicial Member

Decision:

1. The appeal is dismissed.

2. Cost of the appeal are allowed in the exercise of my discretion in the sum of $500 inclusive of GST.

Catchwords:

Victims Support and Rehabilitation - leave to rely on further evidence refused - special grounds - exceptional circumstances - chronic psychological disorder

Legislation Cited:

Victim Support and Rehabilitation Act 1996
Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2012

Cases Cited:

Akins v National Australia Bank (1994) 34 NSWLR 155
Commonwealth Bank of Australia v Quaid (1991) 178 CLR 134
Marshall v Victims Compensation Fund Corporation (2000) NSWDC 8
Victims Compensation Fund Corporation v Sarah Jane Hill (2000) NSWCA 75
Wilson v The Prothonotary (2000) NSWCA 23

Category:

Principal judgment

Parties:

ASD (Applicant)
Victims Compensation Fund Corporation (Respondent)

Representation:

CM Lawyers (Applicant)
Victims Compensation Fund Corporation (Respondent)

File Number(s):

137040

Publication restriction:

S 126 Administrative Decisions Tribunal Act 1997 applies

reasons for decision

Background

1. ASD who is aged 45 claims compensation for injuries which she received on 19 June 2009 when she was the victim of a robbery in a Sydney suburban car park, having just withdrawn a large sum of money from a nearby bank. The Compensation Assessor was satisfied that ASD had established an act of violence in the course of the commission of an offence and that she had sustained psychological harm as a consequence. The Compensation Assessor was not satisfied that ASD had satisfied the criteria to receive compensation for a Category 2 psychological disorder, as she claimed, and for that reason dismissed the application for compensation.

Application of the old Act

1. On 7 May 2013 the New South Wales Government introduced into Parliament an Act which changed the form of support provided to victims of violent crime in New South Wales. The Victims Support and Rehabilitation Act 1996 ("the old Act") was repealed and replaced by the Victims Rights and Support Act 2013 ("the new Act"). ASD's solicitors were informed that the appeal would be determined under the new Act.

1. The Victims Compensation Tribunal was abolished and pursuant to Clause 14 of Schedule 2 of the new Act appeals to it are taken to have been commenced before the Administrative Decisions Tribunal. As a Judicial Member in the Victim Services Division of the ADT I have been directed by the President of the ADT to hear the appeal and, in doing so, may exercise all the functions that the Victims Compensation Tribunal had immediately before the commencement of the new Act.

1. On 16 August 2013 clause 16 of the Victims Rights and Support Regulation 2012 ("the Regulation") commenced operation. This provided that appeals which were pending as at 3 June 2013 are to be determined under the old Act. ASD's solicitors had previously made submissions on the basis of the appeal proceeding under the old Act. Since Clause 16 of the Regulation commenced ASD has been advised of it by the Registrar and given the opportunity to make final submissions. ASD has done so.

Grounds of Appeal

1. The Notice of Appeal sets out the ground that the Compensation Assessor erred in fact and law by -

• Dismissing ASD's claim for compensation.
• Dismissing her evidence.
• Dismissing her claim for compensation for a Category 2 psychological disorder.
• Not applying clause 8 of the schedule of injuries.

1. ASD provided particulars in support of the appeal. I have considered them and taken them into account in deciding this appeal.

Decision on papers

1. ASD has not applied for the appeal to proceed by way of hearing and I am satisfied that the matter can be properly determined without a hearing (s 38(2) of the old Act).

1. Section 38(3) of the old Act provides that the appeal from a determination of a Compensation Assessor is to be determined "on the evidence and material provided to the Assessor". I have read and considered the whole of the evidence before the Compensation Assessor. I have taken it all into account even though I may not refer specifically to all the evidence and material in these reasons.

1. Section 29(2) of the old Act provides that in order to make an award of compensation the Tribunal must be satisfied that -

... on the balance of probabilities, that the person to whom the application for that compensation relates:

(a) is a primary victim, secondary victim or family victim of an act of violence, and

(b) is eligible to receive the amount of compensation provided by the award.

Application to Submit Further Evidence and Material

1. Section 38(3) of the old Act provides that -

"An appeal from a determination of a compensation assessor is to be determined on the evidence and material provided to the compensation assessor. However, the Tribunal may, by leave, receive further evidence and material if it considers that special grounds exist or if the evidence or material concerns matters occurring after the determination appealed against"

1. ASD seeks leave for the Tribunal to receive into evidence a medico-legal report from Dr Emad Girgis, clinical psychologist dated 17 June 2013, after the decision was made by the Compensation Assessor.

1. The concept of "special grounds" in s 38(3) has been considered in many cases. In Victims Compensation Fund Corporation v Sarah Jane Hill (2000) NSWCA 75 Court (Mason P, Sheller JA and Foster AJA) referred with approval to the test laid down for "special grounds" by the Court of Appeal in Akins v National Australia Bank (1994) 34 NSWLR 155 [at 160]. Clarke JA (with whom Sheller and Powell JJA agreed on this point) said:

"Although it is not possible to formulate a test which should be applied in every case to determine whether special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need to be met before fresh evidence can be admitted. These are;

1. It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

2. The evidence must be such that there must be a high degree of probability that there would be a different verdict;

3. The evidence must be credible.

1. In Wilson v The Prothonotary (2000) NSWCA 23 Heydon JA (with whom Sheller JA agreed) said [at 47];

"The tests (from Akins) are general principles or conditions applying to the generality of cases but the statutory discretion is capable of being exercised even if the tests are not all satisfied although such an exercise might only occur in exceptional circumstances."

See also Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140].

1. In Victims Compensation Fund Corporation v Sarah Jane Hill the Court of Appeal observed, at [31];

"There appears no reason why those principles should not apply to S38(3), despite the fact that the appeal to the Tribunal is not an appeal from a court to a court."

1. The Court also identified the legislative purpose for s 38(3) -

"26 The mischief that led to the enactment of s 38(3) was described by the Attorney General in debate in Committee on the Bill which became the Victims Compensation Act 1996. He explained why the Government opposed certain amendments (which were later rejected in the Legislative Council):

The Government takes the view that the amendments would undermine an essential element of the reform package. One of the difficulties in the existing scheme is the excessive litigation to which victim compensation claims give rise. There is a problem with applicants who, being legally represented before the Victims Compensation Tribunal, run a relatively perfunctory case and then, after taking advantage of the current right to an appeal de novo to the District Court, introduce a great deal more evidence and produce more extensive material.

(Parliamentary Debates, Legislative Council, 15 May 1996)"

1. A reading of the report from Dr Girgis reveals that it does not concern matters that have occurred since the determination by the Compensation Assessor. Rather, it provides a fresh analysis and diagnosis of the psychological impact of the act of violence on ASD, one which points to it having a more severe impact on her psychological well-being.

1. There is no evidence before me relating to why Dr Girgis' was not and could not have been obtained with reasonable diligence before the application was determined by the Compensation Assessor. ASD acknowledges in submissions the "reasonable diligence" requirement, but does not address why the Dr Girgis' report was not obtained before the application was considered by the Compensation Assessor. Rather, the submissions argue that Dr Girgis' report provides evidence of "high probative value" with respect to the severity of ASD's psychological condition which was not apparent to the Compensation Assessor. In my view, this is an attempt by ASD to introduce further psychological evidence in an effort to address deficits in her case found by the Compensation Assessor. It is illustrative of the mischief that s 38(3) sought to remedy.

1. Further, while the report diagnoses ASD with a Major Depressive Disorder and well as Post Traumatic Stress Disorder (PTSD) it is not apparent to me that acceptance of the report in evidence will lead to a different result on appeal. This is so as the enumeration of the effects of ASD's condition in Dr Girgis' report, is not so qualitatively different that it would result in my reaching a different finding.

1. I also note that in submissions ASD relied on the decision of Graham DCJ in Marshall v Victims Compensation Fund Corporation (2000) NSWDC 8 with respect to the meaning of "special grounds" in s 38(3). The decision was made a month before the Court of Appeal decided Victims Compensation Fund Corporation v Sarah Jane Hill (2000) NSWCA 75. It is inconsistent with the decision of the Court of Appeal as to the meaning of "special grounds" and therefore is not one I will follow.

1. As a consequence I am not satisfied that special grounds exist justifying the admission of Mr Girgis' report.

1. Further, I am not satisfied that ASD has made out any exceptional circumstances which would otherwise justify the Tribunal exercising the discretion to grant leave to ASD to rely on Dr Girgis' report. This is not an exceptional case, which would justify setting aside one or more of the "special grounds" requirements. The following observation which the High Court (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) made in Commonwealth Bank of Australia v Quade [1991] HCA 61, at [6] is apposite -

"If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which might have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence."

1. Leave to adduce Dr Girgis' report on appeal is refused.

Act of Violence

1. ASD has to establish an act of violence to be entitled to compensation. Section 5 of the Act relevantly provides;

(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.

1. Having read ASD's statement to Police dated 10 June 2008 and COPS event E3796677 I am satisfied that on 9 June 2009 ASD was the victim of a robbery in a car park in a Sydney suburb, having just withdrawn $50,000 for a nearby bank. The circumstances of the robbery are succinctly summarized in the COPS event report -

The victim obtained the cash from the bank and walked back to her car at the location. As she sat in the driver's seat, she placed her bag containing the cash on the passenger seat. The suspect opened the front passenger door and grabbed the victim's bag.

The victim grabbed her bag and struggled with the suspect. The suspect ripped the bag from the victims had causing a finger injury to the victim which bled. The suspect ran from the victim to a block on the other side of ...Street. The victim went to ...Police Station and reported the matter.

The offender was later arrested and charged with aggravated robbery and was subsequently found guilty of the alternate indictment of robbery.

1. I am satisfied that the robbery occurred as described above, and that ASD suffered injury as a result. ASD has therefore established an act of violence under s 5(1) of the old Act.

Factors affecting eligibility to receive or amount of victim's compensation

1. I am satisfied that none of the factors set out in s 24 of the old Act that operate to affect a victims eligibility for compensation under the old Act apply in ASD' case.

1. Similarly, having regard to all the factors to which the Tribunal must have regard under s 30 of the old Act, I am satisfied that none of them would justify my refusing to make an award of compensation ASD's favour, or in reducing the compensation payable to ASD.

Has ASD sustained any what compensable injury?

1. Section 14(1) of the old Act provides -

(1) The statutory compensation for which a primary victim of an act of violence is eligible comprises:

(a) compensation for compensable injuries received by the victim as a direct result of the act of violence, and

(b) compensation for financial loss incurred by the victim as a direct result of any such compensable injury.

1. Section 17 then provides that -

(1) Compensation for compensable injuries is payable in accordance with the schedule of compensable injuries.

(2) Unless the amount of compensation is required or authorised to be reduced by this Act, the amount of compensation payable is the standard amount calculated in accordance with the schedule.

1. The Table to Schedule 1 to the old Act specifies compensable injuries under the Act and the "single standard amount" or range of compensation payable as a result of an act of violence: see s 10 and s 17. As authorised by s 13 the schedule also contains provisions prescribing, among other things, how compensation is to be calculated where a victim has received more than one compensable injury. This requires payment of the full standard amount for the most serious injury, 10% of the next most serious standard amount, 5% for the third most serious injury, and nothing for further injuries (see clause 3).

1. Schedule 1 also contains special provisions relating to specified types of compensable injury. With respect to psychological or psychiatric disorders clause 5 provides -

(1) For the purposes of establishing whether there is a compensable injury of psychological or psychiatric disorder, an application relating to statutory compensation for such an injury must be accompanied by a written assessment of the applicant's condition prepared by a qualified person chosen from a list of qualified persons designated by the Director.

(1A) In determining such an application, the Tribunal or compensation assessor concerned is not required to have regard to any report or assessment other than the assessment referred to in subclause (1).

(2) The Director may suspend or revoke the designation of a person under subclause (1).

(3) The compensable injury of psychological or psychiatric disorder (category 1) applies only in relation to an act of violence that has apparently occurred in the course of the commission of any of the following offences:

(a) armed robbery,

(b) abduction,

(c) kidnapping.

1. In the present case ASD specified three separate compensable injuries. These were:

• Psychological injury severe, i.e. Category 2
• Injury to arm.
• Injury to neck.

1. There is however no evidence before me as to the nature of the claimed injuries to ASD's neck and arm (which arm is not specified). There is no evidence as to nature and duration of any symptoms, impairment or disability ASD suffered as result of those alleged injuries, and no medical evidence relating to them. As a consequence I am not satisfied that they are compensable injuries.

1. On appeal ASD's has pressed her claim that her injury is a Category 2 psychological or psychiatric disorder.

1. The professional evidence before the Tribunal with respect to ASD's psychological or psychiatric disorder is contained in the psychological report from Authorised Report Writer and Clinical Psychologist Dr Manmoud Abu-Arab ("the ARW") dated 24 May 2010. He assessed ASD on 19 May 2010, nearly a year after the robbery. The Tribunal is not required to have regard to any report or assessment other than the ARW report: see clause 5(1A) of Schedule 1 of the old Act.

1. ASD told the ARW that she is a married woman with three children, and then aged 7, 9 and 11. She is a qualified pharmacist, who had worked in her father's pharmacy since her graduation. She worked part-time when she had children and told ARW that, "in the last few years she has been working from home doing administrative work for her pharmacy business."

1. The ARW wrote -

[ASD] reported that since the accident she has been experiencing fears and apprehension, especially when she is reminded of the act of violence, such as when the police call her to attend court or to provide further information. She has been unable to attend her pharmacy and work face to face with customers. She has been fearful of attending banks. She has never attended the Arab Bank since the accident. The victim reported that a man was accused of the robbery as his fingerprints were present on the patient's car. At a later stage, she realised that he was one of her customers in the chemist. Therefore, she is aware that she is known to the alleged offender and she is fearful of attending her chemist and working there. [ASD] was planning to return to manage her chemist after her youngest son turned 6 years, but after the accident she lost hope of doing so.

[ASD] reported being anxious when walking the street. She does not feel comfortable when somebody walks behind her or when somebody comes in close proximity to her car.

Since the accident, the victim reported having difficulty falling asleep and maintaining good sleep. She reported outbursts of anger and frequent arguments with her children and husband.

I asked the patient about her mood and she reported being snappy, moody and depressed each time she remembers the accident. She was referred to a victim's counsellor whom she saw for six consultations.

In order to assess the patient's anxiety I used the Post Traumatic Stress Diagnostic Scale (PDS). [ASD] endorsed the following statements on the PDS:

1. Having upsetting thoughts or images about the traumatic event that came into her head when she did not want them to.

2. Feeling emotionally upset when she was reminded of the traumatic event.

3. Experiencing physical reactions when she was reminded of the traumatic event (heart beating fast and feeling anxious).

4. Trying not to think about, talk about or have feelings about the traumatic event (she tries to keep herself busy to avoid remembering the accident).

5. Trying to avoid activities, people or places that remind her of the traumatic event (she has never attended the Arab Bank in Bankstown. Occasionally she goes to the National Australia Bank in Strathfield where she feels safer. Someone else does the cash withdrawals for her business).

6. Feeling distant or cut off from people around her.

7. Feeling emotionally numb.

8. Having trouble falling or staying asleep.

9. Feeling irritable or having fits of anger.

10. Being overly alert.

11. Being jumpy and easily startled.

1. The ARW diagnosed ASD with chronic PTSD. He considered that her "symptom severity is moderate and impairment in functioning is mild." He attributed her condition to the act of violence. He noted that -

I asked the patient whether the act of violence affected her life and she admitted that she was planning to return to work and manage her chemist, but since the accident she has been fearful of doing so, especially when she found the name of the alleged offender on the database of her chemist.

1. The victim confirmed that the act of violence did not affect her ability to perform her household chores and duties. It did not affect her relationships with friends. It did not affect her fun and leisure activities. It did not affect her relationships with family, nor did it affect her sex life.

1. In my view ASD's Category 2 claim is bound to fail. A category 2 chronic physiological or psychiatric disorder is one that is "severely disabling" (see the Table to Schedule 1). The ARW considered that her "symptom severity is moderate and impairment in functioning is mild."

1. Having considered the ARW report I accept that ASD's PTSD has not had a significant effect on her home or social life, but it has affected her capacity to return to her work in her former workplace because the offender was a client of the business. It has led to her being apprehensive and anxious in situations that remind her of the robbery. She avoids places, people and things that she associates with the robbery, such as the bank. She is jumpy and irritable. It is clear that her mood and thinking has been affected by her involvement in the act of violence, with her usual moods and sleep pattern now differing from her previously normal self. She considers that she is not as empathic as she was before the events of 9 June 2009.

1. In my view all of these factors point to ASD having some disability as a result of her PTSD, but not being severely disabled. While both symptoms and impairment can be viewed as contributing to disability, the ARW report does not demonstrate that ASD is severely disabled as a result of the violent conduct. She is able to function normally in most domains of her life, but avoids places and things that remind her of the robbery or are likely to expose her to the offender. Her level of disability does not approach the base level of the continuum of severe disability. As a consequence I am satisfied that she did not suffer a Category 2 psychological or psychiatric injury as a result of the violent conduct.

1. She has also not demonstrated that she suffers from a Category1 psychological or psychiatric disorder that is compensable under the old Act. That is so because that category only applies where the act of violence apparently occurs in the commission of an armed robbery, abduction or a kidnapping: see clause 5(3) of Schedule 1.

1. There is no evidence that the offender who robbed ASD was armed. While ASD submits that she believed that the offender was armed at the time of the offence, she made no mention of such a belief in her police statement. Similarly, when telling the Authorised Report Writer about the robbery, she made no mention of a fear or apprehension that the offender was armed. I am satisfied that the act of violence occurred in the course of a robbery: not an armed robbery, abduction or a kidnapping. As a consequence ASD is not eligible for compensation for a Category 1 psychological or psychiatric disorder.

1. As a result ASD has not established that she suffered a compensable injury as a result of the act of violence, and her appeal must be dismissed.

1. With respect to the issue of costs I propose to allow ASD the maximum professional costs allowable for the appeal, with disbursement fixed at $30.

1. I will not allow any payment towards Dr Girgis' report as it was obtained after the Compensation Assessor's determination and not admitted before the Tribunal on appeal.

Conclusion

1. I make the following orders:

1. The appeal is dismissed.

2. Cost of the appeal is allowed in the exercise of my discretion in the sum of $500 inclusive of GST.

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Decision last updated: 30 October 2013