BBD v Victims Compensation Fund Corporation
[2014] NSWCATAD 176
•21 October 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BBD v Victims Compensation Fund Corporation. [2014] NSWCATAD 176 Hearing dates: On the papers Decision date: 21 October 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: P H Molony, Judicial Member Decision: The claim for statutory compensation is dismissed
Catchwords: Victim Support and Rehabilitation - act of violence - compensation threshold not reached Legislation Cited: Act 1996
Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2013Category: Principal judgment Parties: BBD (Applicant)
Victims Compensation Fund Compensation Fund Corporation (Respondent)Representation: BBD (Applicant in person)
File Number(s): 137306 Publication restriction: Section 64 (1) (a) of the Civil and Administrative Tribunal Act: An order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal).
reasons for decision
Background
BBD who is aged 22 claims compensation for injuries which he received on 14 August 2010 in Gymea when he was assaulted by an unidentified person. The Compensation Assessor was satisfied that BBD had established that he was the victim of an act of violence committed in the course of the commission of an offence, which had caused him injury. The evidence established that BBD had not made a complaint to Police for more than two weeks after the assault. As a consequence the Assessor, applying s 30 of the Victims Support and Rehabilitation Act 1996, considered that delay was significant and determined to dismiss BBD's application for statutory compensation.
Application of the old Act
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 The Victims Support and Rehabilitation Act 1996 ("the old Act") was repealed and replaced by the Victims Rights and Support Act 2013 ("the new Act"). BBD's solicitors were informed that the appeal would be determined under the new Act.
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.
On 16 August 2013 clause 16 of the Victims Rights and Support Regulation 2013 ("the Regulation") commenced operation. This provided that appeals which were pending as at 3 June 2013 are to be determined under the old Act. Since Clause 16 of the Regulation commenced BBD has been advised of it by the Registrar and given the opportunity to make final submissions. BBD has done so.
On 1 January 2014, the NSW Civil and Administrative Tribunal was established and on its establishment the Administrative Decisions Tribunal was abolished (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013). By reason of cl 7 of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before the NSW Civil and Administrative Tribunal (NCAT), with the provisions of the old Act continuing to apply.
Grounds of Appeal
The Notice of Appeal did not set out specific grounds of appeal. In a letter dated 16 January 2014 BBD explained that during the time between the assault and his complaint to Police he had been seeking medical treatment, which included surgery to repair a displaced fracture of the left orbital floor and maxillary antrum. He had not been aware of any requirement to report the offence within a reasonable time.
BBD also referred to various parts of the evidence and indicated his disagreement with them. I have considered each of them in making this decision.
Decision on papers
BBD 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).
On appeal BBD has not sought to rely on any further evidence.
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.
Act of Violence
BBD 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.
(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) Except as provided by subsections (3A) and (3B), a series of related acts is two or more acts that are related because:
(a) they were committed against the same person, and
(b) in the opinion of the Tribunal or compensation assessor:
(i) they were committed at approximately the same time, or
(ii) they were committed over a period of time by the same person or group of persons, or
(iii) they were, for any other reason, related to each other.
(3A) An act is not related to another act if, in the opinion of the Tribunal or compensation assessor, having regard to the particular circumstances of those acts, they ought not to be treated as related acts.
(3B) 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.
The evidence establishes that early in the morning of 15 August 2010 BBD, who had been attending a night club at Gymea, was assaulted by an unknown person while standing in the region of a taxi rank. At that time Police were aware of the assault and spoke with BBD. COPS Event E44351186 noted -
Police did speak with a person who Police believe to be the victim, although he did not wish to provide any information or his details. Police offered him an ambulance, he stated he had only a split lip and did not want an ambulance.
Police gave the person(s) who they be believed to be of interest with respect to the assault a move along direction.
The evidence established that later that day BBD was attended by his GP who noted that BBD had been assaulted the night before, sustaining a head injury and loss of consciousness. BBD had a CT scan the next day, which reported a fracture of the left orbital floor and maxillary antrum. He was referred to a Dr David Sherring, a maxilla-facial surgeon. On 20 August 2010 BBD had surgery in which mini-plates were placed at the left zygomatic suture and the left zygomaticomaxillary buttress. Dr Sherring's progress notes reveal that the surgery was successful, although BBD experienced some changes in sensation. Some months after the surgery, on 29 November 2010, Dr Sherring noted that -
Sensation continues to improve over sutaneous distribution of left ION, residual deficit to light touch and pin prick all areas.
On 3 September 2010 BBD contacted Police with respect to the assault and made a statement. In it he said that, "I can't remember the incident at all." He said he was "moderately" affected by alcohol at the time. He outlined his course of medical treatment and said that he been in severe pain ever since the incident, and had been unable to attend work.
As a result of BBD's statement Police then made further inquiries with respect to the assault. They obtained a statement from a witness which said -
There was a bloke standing near the corner close to where we were standing and he was calling numerous people names and being abusive. I think I asked him to stop as I considered it pretty offensive. There were other males standing near the corner who I didn't know he started becoming abusive towards them.
I saw one of the males in the group, he was abusing walk up to him and punch him in the face. The bloke that was hit I'm pretty sure he dropped to the ground and the group that he was abusing and the guy that hit him ran off. I can't describe them at all as it was so long ago only that they were males.
We hung around and noticed the Police arrived fairly quickly and the Police pulled us aside thinking that we had something to do with it. We told them what we saw and that we were on our way home and willingly gave our details to the Police officers.
Police were unable to identify BBD's assailant.
I am satisfied that BBD sustained injury when he was assaulted by an unknown male person at Gymea early in the morning of 15 August 2010. He suffered injury as a result of that assault. BBD has therefore established an act of violence under s 5(1) of the old Act.
Has BBD sustained any what compensable injury?
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.
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. 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, namely 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).
- That where an act of violence results in a compensable injury "because of the aggravation, acceleration, exacerbation or deterioration of an existing condition" for the standard amount to be reduced to allow for the proportionate amount attributable to the pre-existing condition (clause 4).
Schedule 1 also contains special provisions relating to specified types of compensable injury. These include psychological or psychiatric disorder, sexual assault, burns and scarring and domestic violence. With respect to psychological or psychiatric disorder 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.
Clause 8 of schedule 1 deals with the situation where an injury is not referred to in Column 1 of the Table to the Schedule, but in the opinion of the Compensation Assessor is similar to an injury in the Table and has caused symptoms or disability lasting at least six weeks." There, the compensation is that payable for the similar injury.
In the present case BBD specified three compensable injuries/injury. These were -
- A chronic psychological disorder that is disabling.
- A blowout fracture of the of the orbit bone cavity containing eyeball.
- A fractured malar and/or zygomatic -cheek bones.
With respect to the claim for compensation for a chronic psychological disorder in order to be eligible for compensation under the old Act BBD must establish that as a result of the act of violence BBD he suffered a Category 2, chronic psychological or psychiatric disorder that is severely disabling.
The only evidence with respect to BBD's psychological injury is the report from Tom Benjamin, Psychologist, an authorised report writer, dated 28 September 2011. In this report Mr Benjamin speculated that BBD may have possible brain dysfunction or injury as a result of the assault. He has not been assessed further in this regard, and there is no evidence of BBD suffering a brain injury or cognitive impairment beyond Mr Benjamin's speculation.
Mr Benjamin diagnosed BBD as suffering from anxiety and PTSD as a result of an assault in which -
A gang of youths estimated at 14-15 years of age assaulted him. He was kicked in the face so hard it knocked him out and he sustained a fracture of the left side of his face.
This description of the assault is at odds with all the other evidence as to the circumstances of that event.
For BBD to succeed in his claim for a Category 2 chronic psychological disorder it is necessary for him to prove that this disorder is both severely disabling and chronic.
Those words "severely disabling" should be given their ordinary meaning. In the Macquarie Concise Dictionary "severe" in connection with an illness has the meaning of "grave". "Disabling" has the meaning "to weaken or destroy the capability of; cripple; incapacitate".
The word "disabling" is not defined in the old Act. There has been considerable discussion as to the meaning of the word in the context of the Act. Some help is obtained from the Second Reading Speech in Parliament. When introducing the new compensable injury of "psychological or psychiatric disorder" into the Victims Compensation Bill the Minister Mr Dyer stated;
"The new injury category will require diagnosis of a long term psychological injury which results in severe impairment of the person's ability to function in their usual day to day activities." (Hansard 11.12.1998).
Thus to be eligible for Category 2 compensation AVM's impairment has to be more than mild or moderate. It has to be such as to be considered severely or seriously incapacitating or disabling. Buckley v Victims Compensation Fund Corporation (2004) NSW SC 513 at [34], per Greg James J, is authority for the proposition that it is a matter for the Assessor or Tribunal Member to determine whether the "affectation" and "incapacitation" caused by the act of violence amount to a condition that is overall within the meaning of the statutory compound phrase "severely disabling."
Mr Benjamin did not record BBD's psychological symptoms in any detail, nor did he evaluate how those symptoms have impacted on his ability to function. He did record that BBD had been experiencing psychological symptoms since the assault but did not record what they were. At the time of his psychological assessment BBD was working. He has continued to do so.
I am not persuaded on the evidence that BBD has a Category 2 chronic psychological or psychiatric disorder that is severely disabling.
With respect to BBD's claims for physical injuries the medical evidence does not establish that BBD suffered a blow out fracture of the left orbit bone cavity containing the eyeball. As a consequence that aspect of his claim must fail.
I do accept that that BBD has established a "fractured malar and/or zygomatic-cheek bones" which entitles him to compensation of $4,800. The evidence also establishes that he suffered temporary numbness or loss of feeling in his face of more than 13 week (with recovery expected by Dr Sherring) which, as a second compensable injury, entitles him to additional compensation of $360 (10% of $3,600). His total entitlement to statutory compensation therefore amounts to $5,160.
Factors affecting eligibility to receive or amount of victim's compensation
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 BBD' case. I did consider whether BBD's reported abuse of his assailant constituted an offence to which s 24(3) of the old Act applied so as to preclude BBD being eligible for statutory compensation. That sub-section provides that-
A person is not eligible to receive statutory compensation in respect of an act of violence if it occurred while the person was engaged in behaviour constituting an offence
I am not satisfied that BBD's behaviour at the time constituted an offence.
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 BBD's favour, or in reducing the compensation payable to BBD. That section relevantly provides that -
(1) In determining whether or not to make an award of statutory compensation and in determining the amount of compensation to award, the compensation assessor must have regard to the following:
(a) any behaviour (including past criminal activity), condition, attitude or disposition of the primary or secondary victim concerned that directly or indirectly contributed to the injury or death sustained by the victim,
(b) whether the act of violence was reported to a police officer within a reasonable time,
(b1) whether the act of violence was reported to a relevant health professional or practitioner, or a relevant agency,
(c) whether that victim participated in the commission of the act of violence, encouraged another person to commit the act of violence or otherwise gave assistance to any person by whom the act of violence was committed,
(d) whether that victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or in the arrest or prosecution of any person by whom the act of violence was committed or alleged to have been committed,
(d1) whether that victim failed to take reasonable steps to mitigate the extent of the injury sustained by the victim, such as seeking appropriate medical advice or treatment, or undertaking counselling, as soon as practicable after the act of violence was committed,
(e) such other matters as the compensation assessor considers relevant.
(2) In determining whether a matter relating to a victim was reported to a police officer within a reasonable time, the compensation assessor may have regard to such matters as the assessor considers relevant, including the following:
(a) the age of the victim when the act of violence is alleged to have occurred,
(b) any intellectual or psychiatric disability to which the victim is subject,
(c) the nature of the relationship between the victim and the person or persons by whom the act of violence is alleged to have been committed,
(d) any fear of retaliation by any such person or persons to which the victim is subject,
(e) the nature of any injury alleged to have been sustained by the victim,
(f) any representation made by or on behalf of a police officer to a victim as to whether he or she should withdraw his or her complaint in relation to the act of violence or consent to no further action being taken in relation to the act of violence.
Unlike the Assessor I do not consider that BBD failed to report the matter to Police within a reasonable time.
A consideration of the evidence shows that Police were aware of the alleged assault within a very short time of it occurring. BBD did not want Police to peruse it at that time because he thought that his injuries consisted of a split lip. He consequently discovered that his injuries were more serious and sought and obtained medical treatment. It is clear that he told his medical practitioners that the injuries had been sustained in the assault. Within two weeks of his surgery, when he was still in pain and unable to work, he formally reported the matter to Police. I do not consider that he failed to report the assault within a reasonable time. Similarly I am not persuaded that the abuse one witness says he directed towards his assailant, directly or indirectly contributed to his injuries. The details as to precisely what was said by BBD are not sufficiently clear to enable me to reach such a conclusion
The compensation threshold
Section 20 of the old Act provides -
(1) Statutory compensation is not payable to a single person unless the total amount of compensation payable to that person, as compensation for compensable injuries, is at least:
(a) subject to paragraph (b)-$7,500, or
(b) such other amount as is prescribed by the regulations.
(2) (Repealed)
(3) This section does not apply to statutory compensation payable to family victims or Victims Assistance.
(3A) For the purposes of this section:
(a) the total amount of compensation payable to a person as compensation for compensable injuries is the total amount arrived at after any reduction in that compensation to be made under section 19, 30 or 31 or the schedule of compensable injuries, and
(b) no other reduction in that compensation made under this Act is to be taken into account in determining the total amount of that compensation.
(4) This section applies despite any other provision of this Act.
As BBD's entitlement to compensation totals $5,160, s 20 provides that his entitlement is not payable to him because it does not exceed the compensation threshold of $7,500.
Conclusion
As a consequence BBD's claim for statutory compensation is dismissed.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 21 October 2014
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