DLO v Commissioner of Victims Rights

[2018] NSWCATAD 240

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DLO v Commissioner of Victims Rights [2018] NSWCATAD 240
Hearing dates:	On papers
Date of orders:	16 October 2018
Decision date:	16 October 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	(1)   The time for filing the application is extended to the date 10 May 2018 pursuant to s 41 of the CAT Act. (2) Pursuant to s 63 (3) (c) of the ADR Act the review decision dated 15 November 2015 is set aside and the following decision is made by way of substitution: (a) DLO is awarded a recognition payment in the sum of $5,000 pursuant to cl 12 of the Regulation.
Catchwords:	Victims Rights and Support – administrative review –leave to proceed out of time – reasonable time to lodge application – reasonable explanation for delay – no jurisdiction to review decisions regarding financial assistance for immediate needs or economic loss - recognition payment – whether the applicant suffered grievous bodily harm
Legislation Cited:	Victims Rights and Support Act 2013 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Victims Rights and Support Regulation 2013 (NSW) Administrative Decisions Review Act 1997 (NSW)
Cases Cited:	AM v R [2012] NSWCA 203 BJR v R [2008] NSWCCA 43 Haoui v Regina [2008] NSWCCA 209 Kooragang Cement Pty Ltd v Bates 35 NSWLR 452 Overall v R 71 A Crim R 170 R v Woodland [2007] NSWCCA 29 Regina v Remilton [2001] NSWCCA 546 Regina v Shannon [2003] NSWCCA 106 Regina v Sumeo [2002] NSWCCA 271 Regina v Williams [2005] NSWCCA 14 Roger Lee Vann v Craig Michael Palmer [2001] ACTSC 12 Turner v Commissioner of Police NSW Police Force [201] NSWCATAP 27 Vikramdeep Singh v Department of Public Prosecutions ((NSW) [2006] NSWCCA 333
Category:	Principal judgment
Parties:	DLO (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: DLO (Applicant in person) H Martin, Victims Services (Respondent)
File Number(s):	2018/00146816
Publication restriction:	A Non-Publication Order is made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of private individuals, and other information which might identify them.

REASONS FOR DECISION

1. These proceedings relate to a claim for counselling, victims support and a recognition payment lodged by the applicant known by the pseudonym DLO before the Commissioner of Victims Rights (the Commissioner).

2. The application was lodged before the Commissioner under the provisions of the Victims Rights and Support Act 2013 (‘the Act’) on 3 September 2015. It alleges that DLO was the primary victim of acts of violence that occurred on 21 November 2013, at Cowra NSW and that she was assaulted and robbed by two named offenders. She alleges that she suffered physical injuries, including an acquired brain injury, and a psychological injury as a result of the acts of violence.

3. The application also alleges that she was the victim of fraud on 23 November 2013, as a result of unauthorised use of her stolen credit card by one or both named offenders, but there is no evidence that she suffered any injury as a result.

4. The incident was reported to NSW Police on 22 November 2013 and the COPS Event report indicates that DLO complained of pain to her left wrist and soreness to her mouth and nose and she was visibly shaken. It also indicates:

…This matter has the appearance of a drug deal gone wrong. The victim has no credibility and has not Police told (sic) the full story in her initial statement. As such Police propose to take no further action. The problems with a potential prosecution were explained to the victim. She became defensive and said she didn’t want to go to court anyway. She stated that she had a sore nose and lips however her injuries were not visible and she did not require medical treatment.

5. In a lengthy handwritten statement in support of the application, DLO described that she had been bashed and robbed by six different people between November 2013 and June 2014, and she also alleged mistreatment by NSW Police. She said that one night she “went to see a lady about a matter and took something to defend myself with, because it was her husband that had hit me before told me he should strangle me – that he’d break my legs & that he’d kill me”. She also stated, “We got into a fight – (he) came around 7 strangled me till I lost consciousness & then bashed my head till it was a mess. I was arrested for it & sent to jail. I was only defending myself.”

6. On 10 November 2015, an Assessor (Client Claims) determined that an act of violence was established on the balance of probabilities and approved payment of a Category D recognition payment in the sum of $1,500. However, the claim for financial assistance for immediate needs or economic loss for dental work was not approved. The Assessor determined, relevantly:

13. I have considered the letter from Dr (name provided), GP, that confirms (DLO) attended his surgery on the 23 November 2013 and reported the assault. Dr (name provided) does not appear to have provided any treatment for any injuries at that time but says (DLO) saw Dr (name provided) on the 3 December 2013 for a headache that she said was as a result of the assault she had suffered on the 21 November 2013.

14. I have also considered the counselling reports of (name provided) but these reports appear to refer to alleged domestic violence by an ex-client and do not reflect the same incident that is the subject of this application.

15. It is not necessary to have a conviction in order to succeed in an application for victims support. While I note that the police decided not to proceed with charges against the alleged offenders in this case, I consider that on the balance of probabilities, (DLO) was the victim of violent behaviour in circumstances that appears (sic) to have occurred in the commission of an offence and that (DLO) suffered some physical injuries as a result. …

20. Having had regard to the evidence, I find no issues relevant to section 44 of the Act…

7. In relation to the claim for financial assistance for immediate needs, the Assessor determined that there was no report from the treating dentists that indicate that the proposed treatment was required as a direct result of the injuries suffered on 21 November 2013. She was not satisfied that the treatment expenses that DLO now wished to incur some two years later are for measures that needed to be taken urgently and as a direct result of the act of violence to secure her safety, health or wellbeing pursuant to s 26 (1) (b) of the Act. She also rejected the claim for financial assistance for economic loss (due to the dental expenses).

8. On 12 November 2015, the Commissioner posted a copy of the Notice of Decision to DLO under cover of a letter dated 10 November 2015.

9. On 11 December 2015, the Commissioner received a letter from DLO dated 3 December 2015, in which she requested a review of the decision. She stated, relevantly:

…I was offered $1,500 but I do not feel my injuries were fully considered. I am seeking legal advice re appealing the decision. I was the victim of 6 serious physical assaults in a 12-month period and have lifelong health issues to content (sic) with, as a result. I am on permanent very strong pain relief medication which means that a lot of the hours of the day that I should be awake is actually spent in bed unable to do every tasks (sic). I need assistance in everyday life to be able to function and stay living in my home. I have very minimal supports available to me…

10. The Commissioner acknowledged receipt of the request for review by letter to DLO dated 21 December 2015, but the time to provide further information was later extended to 10 February 2016. However, a further extension was granted and the time to lodge further information was extended to 2 March 2016. However, on 2 March 2016, a solicitor that DLO consulted requested a further deferral of the review application to enable her client to consult another Law Firm regarding the matter. The review was then deferred and a further extension of time was granted until 25 May 2016.

11. On 7 May 2016, DLO sent a further hand-written letter to the Commissioner, in which she again referred to the multiple assaults and she stated, inter alia:

…I am surpose (sic) to receive $5,000.00 emergency needs and $5,000 recognition payment for what I have been through – what I am going thru, what I have to live with – My psychologist who deals with acquired brain injuries told me I am (illegible)… I am allowed to get 2 teeth repaired each year, through the dental plan and I have 7 fillings to get done, teeth removed & replaced… Do you require some photos of my injuries – if you have a mobile phone no. I can send them thru…

12. Victims Services subsequently served Notices to Produce Documents on Cowra Information & Neighbourhood Centre Inc, Cowra Community Health, Dr McMasters and Anna Robilliard, requiring production of records relating to assaults alleged to have been committed against DL on or around 1 November 2013 to 1 June 2014.

13. On 1 November 2016, the Senior Assessor issued a Deferral of Review Decision under s 9 of the Act, pending receipt of medical evidence from Mr McMasters, psychologist. The decision indicates that the only application that was the subject of the review was that relating to the assaults in November 2013. The Senior Assessor stated, relevantly:

13. If the applicant wishes to lodge further claims in relation to the other reported assaults, I would like to advise her that the time limit to do so would be 2 years from the date of the act of violence. If any of the alleged assaults were perpetrated by a person she had a domestic or intimate relationship with, the time limit would be 10 years.

14. According to Ms Robilliard’s report, the applicant said that the worst of the 6 assaults was the one perpetrated… in November 2013m though she did not seek medical treatment immediately following the incident.

15. In order to approve a Category C recognition payment, it would need to be established that an act of violence was “an assault resulting in grievous bodily harm”. At present, there is insufficient medical evidence on file for me to conclude that the applicant sustained grievous bodily harm as a direct result of being assaulted by…

…

16. On 29 July 2016, Victims Services sent a request for documents to Patrick McMasters, a brain specialist who the applicant has received treatment from. To date, a response has not been received. I am of the view that clinical notes or a report from Mr McMasters may provide relevant information for my assessment of (DLO’s) internal review application…

14. On 13 December 2016, Victims Services sent a further request for production of records to Dr McMasters. On 16 December 2016, he responded by way of an email to the Commissioner, in which he stated that he is a Senior Psychologist employed by Corrective Services. He stated, relevantly:

…Note (DLO) was with this service as a result of her incarceration and subsequent parole for the offence of aggravated enter dwelling with intent inflict ABH… The focus was not specific to clinical neurological assessment of ABI post assault trauma associated with her claim, so I have attached all relevant information on file regarding probable ABI CS NSW looked at in this context.

15. Mr McMasters stated that DLO’s defence solicitor commissioned a psychological report from Ms Robilliard, which focussed on some of the salient features and recommended a comprehensive neuro-psychology assessment for her court appearance. However, he did not know whether this had occurred. Corrective Services undertook an internal Acquired Brain Injury Screening Questionnaire, based upon self-report, after which he organised a Cognitive assessment re memory capacity. The results from that assessment indicated that DLO was not suitable for group CBT programs.

16. On 11 September 2014, Ms Robilliard, Forensic Psychologist, issued a detailed report that set out a history of the assaults and robbery that are the subject of this application. Under the heading “Summary and Clinical Opinion”, she stated, relevantly:

29. …In December 2012 she was charged with driving under the influence of prescription and illegal drugs. She said that about a month earlier she had been a victim of an assault and robbery and she was struck a number of times on the face. She did not receive medical attention at the time. Subsequently she noticed marked memory problems, marked speech impairment, headaches, a sense of confusion and loss of appetite. The aetiology of these symptoms could be due to an acquired brain injury and symptoms of post-traumatic stress disorder subsequent to being the victim of the robbery. At the time, she said she could not remember if she had taken her medications or not and probably took them more often than prescribed…

…

32. DLO’s clinical presentation over the 3-hour period of our meeting was unusually labile and variable… The history of reported incidents of head injuries sustained in the 12 months leading up to the period of the index offences leaves open the question of acquired brain injury. Brain injuries especially in the frontal region can be evidenced in reduced behavioural controls, emotionally labile behaviour and tearfulness amongst other things. DLO’s clinical presentation was marked by all three. Neuropsychological testing could help to elucidate her condition and clinical presentation more precisely, especially with regard to memory impairment which was one of her primary complaints.

33. In addition to any organic impairment that may be demonstrated, entrenched personality attributes and symptoms of post-traumatic stress disorder associated with the many assaults upon her she described, would be contributing to her clinical presentation now and her behaviour over the period of her index offences…

17. On 30 December 2016, the Senior Assessor issued a Notice of Review Decision, which he affirmed the decision of the Assessor dated 15 November 2015. In making that decision, the Senior Assessor stated, relevantly:

27. In assessing which category of recognition payment to approve, the relevant injury must be supported by medical evidence from a suitably qualified medical practitioner. I am unable to accept (DLO’s) own finding that the act of violence caused her to sustain a brain injury. This assertion has not been supported by the medical evidence that is on file, particularly in the context of (DLO) having been the victim of 6 separate assaults in a 12-month period…

29. A category D recognition payment is payable under section 36 (1) (e) of the Act and, pursuant to clause 12 of the Regulation, the prescribed amount of recognition payment under category D is $1,500.

18. A copy of the review decision was posted to DLO on 3 January 2017, under cover of a letter from the Commissioner of that date.

19. However, on 18 January 2017, the Commissioner received an undated letter from DLO, in which she stated that she would not be signing the letter dated 3 January 2017 and returning it. She complained that it had cost her more than $1,500 to obtain the medical reports and accused the Commissioner, inter alia, of believing “Police lies” and of being “as cruel as the Police”. She also said that she does not have a carer; that she cannot do anything that involves water because her arms are too damaged and weak to start the pump; she cannot eat because she can’t carry a gas cylinder anymore and just lays in bed for days on end ‘just wasting away’. She said that $30,000 minimum would be required for hospital and surgery ‘to repair the damages’ and that $1,500 would not even pay for a coffin, although she then stated that she is ‘not suicidal’.

20. No response from the Commissioner is in the documents before me.

Application for Administrative Review

21. On 10 May 2018, DLO applied for administrative review of the Senior Assessor’s decision on the following grounds:

Cowra Police didn’t know I had acquired brain injuries. I have not been cared by anyone or any hospital so it wasn’t known. Victims Services did not believe I was the victim of grievous bodily harm – I bled inside my skull because Cowra Police, not neurosurgeons, left me in a corner 21.11.13 while police celebrated Clarke’s 7 yrs in prison – we are regional NSW and Cowra & Orange Base Hospital – (scary).

22. The application does not indicate the date upon which DLO was notified of the review decision. However, as the application was lodged approximately 15 months later, it was clearly filed late. In relation to this issue, the application indicates:

I didn’t know what time I had but I can’t remember 2 mins ago – short term memory loss – and im now bedridden so im not able to be a psychiatrist & solicitor & police officer & jury in 2 yrs.

23. This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (‘the ADR Act’), which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

24. The application came before Senior Member McAteer for Directions on 8 June 2018. There was no appearance by or on behalf of DLO, but Ms Martin appeared for the Commissioner. The Commissioner provided documents under s 58 of the ADR Act that appeared to be comprehensive and complete. The Senior Member listed the matter for Directions on 13 July 2018 and ordered DLO to advise the Tribunal by close of business on 11 July 2018, via an NDIS Coordinator if appropriate, who would be attending on the next occasion and whether that attendance would be in person or by telephone. He ordered the Commissioner to file and serve any material in reply by close of business on 11 July 2018.

25. On 13 July 2018, Senior Member McAteer conducted the further directions hearing. DLO appeared by telephone and Ms Martin again appeared for the Commissioner. He listed the matter for further Directions on 10 August 2018 and he ordered DLO to give to the Tribunal and the Commissioner correspondence outlining her current personal circumstances and whether she consents to the Tribunal determining the matter based on evidence already filed (dispensing with the need for an oral hearing) or whether she requires further time to obtain any further evidence on or before 3 August 2018.

26. On 10 August 2018, Senior Member McAteer conducted a further directions hearing. DLO appeared by telephone and Ms Martin appeared for the Commissioner. He ordered that the matter be determined on the papers at the first available opportunity after 1 September 2018 and ordered DLO to file and serve any material upon which she relies on or before 24 August 2018. He ordered the Commissioner to file and serve any reply on or before 7 September 2018.

27. On 28 August 2018, the Commissioner filed written submissions and stated that a copy had been served upon DLO.

The evidence

28. DLO submitted a large volume of hand-written material in support of the application for administrative review. However, it appears that much of this information relates to other incidents, and not to the assaults that are the subject of the current application. DLO appears to believe that her application for victims support relates to all the alleged acts of violence that she has described.

29. I have set out the evidence and submissions that I consider relevant to the issues that I am required to determine.

30. I have also considered the evidence from medical practitioners, psychologists, social workers and disability advocates that has been lodged in support of the application. While I have not set this out in detail in this decision, I have set out the evidence that I consider relevant to the issues that I am required to determine, namely: (1) whether the act of violence resulted in actual bodily injury or grievous bodily harm and (2) whether there are any factors under s 44 of the Act that justify the refusal to award victims support or a decision to reduce the amount of that support.

Late application and Extension of Time

31. Section 41 of the Civil and Administrative Decisions Tribunal Act 2013 (the CAT Act) provides for the Tribunal to extend the time for an applicant to make an application to the Tribunal, if the Tribunal believes the applicant has provided a reasonable explanation for the delay in making the application. It provides:

41 Extensions of time

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired.

32. It does not appear that the Commissioner has raised any objection to the lateness of the application, as neither the In-Hearing Orders recorded by Senior Member McAteer nor the Commissioner’s written submissions address the issue. However, it is necessary to consider whether there is a proper basis for extending the time for making the application to the Tribunal.

33. In the case of Turner v Commissioner of Police NSW Police Force [2013] NSWCATAP 27 (Turner), the Tribunal’s Appeal Panel considered whether the applicant had provided a reasonable excuse for the delay. While the governing legislation in that case used the term ‘reasonable excuse’, the Tribunal addresses the issue of the similarity between the terms ‘reasonable excuse’ and ‘reasonable explanation’. I am satisfied that the grounds relied on in that case are sufficient to encapsulate the basis of what constitutes a reasonable explanation for the delay.

34. The decision in Turner refers to the correct approach to be taken by the Tribunal in considering this issue. At para 17, the Appeal Panel held:

57 Late applications to Tribunal

(1) Despite section 55 (1) (d), the Tribunal may, on application by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.

Because providing a "reasonable explanation" or a 'reasonable excuse" is all that the Tribunal has to form an opinion about, other considerations such as the merits of the application for review, any prejudice to either party or the public interest are not relevant. The Tribunal made an error of law by taking these other matters into account in reaching its decision.

The appropriate course is to grant leave to extend the appeal to the merits of the Tribunal's decision: ADT Act, s 113(2). The other option would have been to remit the matter to the Tribunal for further determination. It is quicker and more efficient to determine the issue myself. The only prejudice to Mr Turner of not remitting the matter is that he will be denied the opportunity to appeal to the Appeal Panel against a further decision of the Tribunal. While that is arguably a disadvantage to him, avoiding further delay outweighs that consideration. The question for me to determine is whether Mr Turner has provided a "reasonable excuse for the delay".

35. In the current matter, the applicant has lodged a large volume of handwritten materials that address the nature of her physical and psychological injuries, which allegedly resulted from the assaults that are the subject of this application and other assaults that occurred between November 2013 and June 2014. There is also medical evidence from an Approved Counsellor, a General Practitioner, a Forensic Psychologist and a Pain Management Specialist that describe her injuries and disabilities.

36. On 12 June 2014, Dr Driver, GP, reported that he examined DLO on 13 November 2013, and that she gave a history that she had been bashed by the alleged offenders “the weekend before”. He noted that she was having difficulty expressing herself and that Dr Akhiwar reviewed her on 3 December 2013 for “headache”.

37. In a letter to the Tribunal dated 6 June 2018, Clarissa Battye, NDIS Support Co-Ordinator, stated, relevantly:

(DLO) has an acquired brain injury and psychosocial disability and has suffered numerous trauma that hinders her ability to communicate and advocate for herself hence why she has contacted me…

(DLO) is too unwell both physically and mentally to attend court in Sydney at such short notice. And she has no way of transport. (She) also lives out of town on a property with no internet or mobile phone coverage and is unable to email any correspondence to you…

38. In his report dated 25 August 2015, Dr Thong, Pain Management Specialist, stated:

There are many reasons for her 30 years of pain. Knee injuries at work, back injury, assaulted many times (facial, arms, legs caught in a car, trying to get back in car, thrown into car, head injuries, right arm 11/04/2014), brain injuries. There is thigh pain lying down with sharp stabbing pain up into the abdomen. (She) now lives alone, the people that assaulted her still live in Cowra. She spent the last year in gaol for assault (12 months). In gaol, she was moved about… She returned from gaol and her house and car were trashed. Ongoing problems are memory, executive functioning and word finding…

39. Under the heading “psychological history”, Dr Thong recorded “PTSD, Depression, Anxiety with panic attacks, seeing psychologist – Patrick at Young, attends Cowra Neighbourhood Centre…” He prescribed strong pain medications. When this evidence is considered in addition to the reports from Mr McMasters and Ms Robilliard, and noting that DLO was not legally represented in relation to this application, I am prepared to accept that her explanation for the lateness of making the current application is reasonable in the circumstances.

40. Accordingly, I extend the time for filing the current application to 10 May 2018 pursuant to s 41 of the CAT Act.

Jurisdiction

41. This Tribunal has no jurisdiction to administratively review a decision of the Commissioner with respect to either financial assistance for immediate needs or financial assistance for economic loss.

42. Accordingly, I have no power to review the Commissioner’s decision not to approve financial assistance with respect to the expenses and economic loss claimed in para 33 of the Application for Victims Support.

Recognition Payment and Grievous Bodily Harm

43. DLO alleges that she is entitled to a Category C recognition payment on the basis that she was the victim of an assault that resulted in grievous bodily harm.

44. The term “grievous bodily harm” is not defined in the Act. However, based upon the existing case law, this means “really serious injury”. Some guidance regarding its meaning may be obtained from the decision of the Court of Criminal Appeal (Beazley JA (Johnson and McCallum JJ agreeing) in Haoui v Regina [2008] NSWCCA 209 (Haoui).

45. In Haoui the Court considered its meaning in the context of the Crimes Act 1900 and Her Honour stated (relevantly):

138 The question whether an injury amounts to “grievous bodily harm” has been considered in a vast number of cases. It is not difficult to determine cases at the more serious end of the scale. The following cases fall within that category: complex skull fractures: R v Remilton [2001] NSWCCA 546; R v Williams [2005] NSWCCA 14; severe multiple fractures to a leg and nerve damage to the right side of the face; a closed head injury and facial neurological damage, as well as severe injuries to a knee: R v Shannon [2003] NSWCCA 106 (two victims); fractures to the “middle third” of the face with a complicated laceration of the right ear requiring steel plates and screws, causing ongoing headaches and continuing treatment to the eyes which were sunken as a result of the injury: R v Sumeo [2002] NSWCCA 271; rib fractures in a child: BJR v R [2008] NSWCCA 43.

139 However, there are other injuries, which although “really serious injuries”, are nonetheless less severe than those to which I have just referred. The fact that the concept of “grievous bodily harm” encompasses a range of injury was recognised in R v Woodland [2007] NSWCCA 29; [2007] 48 MVR 360 at [35]. In that case, the victim had sustained significant facial fractures, including a right orbital complex fracture. Simpson J accepted that the victim’s injuries were not “the worst case of grievous bodily harm”, but were far from the low end of the range of injuries amounting to “grievous bodily harm”. Other examples include: a fracture to the left orbit received in a violent kicking incident where it was said that the victim was “seriously injured”, that he had suffered “significant injury”, and where the offence was described as involving “gratuitous cruelty”: Singh v Director of Public Prosecutions (NSW) [2006] NSWCCA 333; 164 A Crim R 284; and facial fractures, including fractures to the victim’s cheekbones and nose which required reconstructive surgery, extending to the insertion of metal plates under the lower eyelid and inside the lining of the mouth the plates to remain in situ permanently: Vann v Palmer [2001] ACTSC 12…

142 In the appellate context in which I am considering whether the injury in this case constituted “grievous bodily harm”, two fundamental matters have to be kept in mind. The first is that there is a range of “really serious injury” and that it is irrelevant that some injuries may not be as serious as others. Provided the harm is “really serious injury”, then there is “grievous bodily harm”. Secondly, the question whether particular harm amounts to “grievous bodily harm” is a question of fact for the jury.

46. The decision in Haoui was cited with approval by the Court of Criminal Appeal in AM v R [2012] NSWCCA 203, in which Johnson J stated, relevantly:

70. It is an ingredient of a s.33 offence that the offender has inflicted grievous bodily harm. Section 4(1) Crimes Act 1900 defines "grievous bodily harm" to include any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease. At common law, the words "grievous bodily harm" are given their ordinary natural meaning. "Bodily harm" needs no explanation and "grievous" simply means "really serious": R v Overall (1993) 71 A Crim R 170 at 173; Haoui v R [2008] NSWCCA 209…

47. The Commissioner has submitted that the available evidence fails to verify that DLO sustained the injuries claimed, or that the established injuries were sustained as a direct result of the assault on 21 November 2013. However, I reject that submission.

48. In my view, the evidence and particularly the report of Dr Driver, supports a finding that on the balance of probabilities DLO suffered a head injury because of the assaults on 21 November 2013. This is consistent with the complaints recorded in the COPS Event Report dated 21 November 2013, namely that she complained to Police of pain to her left wrist, soreness to her mouth and nose and that she appeared visibly shaken. The later reports from medical practitioners, psychologists, social workers and disability advocates also contain consistent histories of the injuries that DLO suffered because of the assaults on 21 November 2013 and descriptions of their sequelae, which include a potential acquired brain injury, physical injuries (including dental injuries) and a severe psychological injury (PTSD, depression, anxiety and panic attacks).

49. While the evidence also establishes that DLO suffered injuries because of subsequent assaults that are not the subject of this application, there is no evidence that supports a finding that she had recovered from the injuries caused by the acts of violence on 21 November 2013 before those later events occurred.

50. In Kooragang Cement Pty Ltd v Bates 35 NSWLR 452 (Kooragang), Kirby P (as His Honour then was) said, in relation to a claim for compensation under the Workers Compensation Act 1987, “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate.” After referring to earlier English authorities, his Honour added:

Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.

51. While I note that the Commissioner submits that DLO’s current injuries and disabilities did not directly result from the acts of violence that occurred on 21 November 2013, because she was the victim of later assaults that are not part of the application for victims support, there is no medical evidence before me that supports that submission. I am therefore satisfied, on the balance of probabilities, that the current injuries and disabilities resulted from the assaults on 21 November 2013.

52. While there is no conclusive medical evidence to support a finding of an acquired brain injury, as it appears that formal neuropsychological testing has not been undertaken, the evidence from the medical practitioners, psychologists, social workers and disability support advocates describes injuries that in my view satisfy the definition of “really serious injury”.

53. It follows that I am satisfied that DLO was the primary victim of an act of violence, being an assault resulting in grievous bodily harm. As a result, she is eligible for a Category C recognition payment pursuant to s 35 (3) (c) of the Act and under cl 12 (c) of the Victims Rights and Support Regulation 2013 (the Regulation), she is entitled to a recognition payment in the sum of $5,000.

Section 44 Considerations

54. Section 44 of the Act provides:

44   Reasons for not approving the giving of victims support or for reducing amount of financial support or recognition payment

(1)  In determining whether or not to approve the giving of victims support, and in determining the amount of financial support to be given or recognition payment to be made, the Commissioner must have regard to the following:

(a)  any behaviour (including past criminal activity), condition, attitude or disposition of the primary 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,

(c)  whether the act of violence was reported to a relevant health professional or practitioner, or a relevant agency,

(d)  whether the 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,

(e)  whether the 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,

(f)  whether the 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, as soon as practicable after the act of violence was committed,

(g)  such other matters as the Commissioner considers relevant.

55. In my view, there is no evidence that justifies a decision to not approve the giving of the recognition payment or to reduce the amount of the recognition payment.

Orders

56. I make the following orders:

1. The time for filing the application is extended to the date 10 May 2018 pursuant to s 41 of the CAT Act.

2. Pursuant to s 63 (3) (c) of the ADR Act the review decision dated 15 November 2015 is set aside and the following decision is made by way of substitution:

1. DLO is awarded a recognition payment in the sum of $5,000 pursuant to cl 12 of the Regulation.

**********

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: 16 October 2018