Hill v Victims Compensation Fund Corporation

[1999] NSWDC 10

New South Wales

District Court

CITATION:	Hill v Victims Compensation Fund Corporation [1999] NSWDC 10
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Sarah Jane Hill Victims Compensation Fund Corporation
FILE NUMBER(S):	75 of 1999
CORAM:	Garling DCJ
CATCHWORDS:	s38 - shock - special grounds
LEGISLATION CITED:	Victims Compensation Act 1996
CASES CITED:	Hately v Victims Compensation Fund Corporation
DATES OF HEARING:	27/10/99, 12/11/99
DATE OF JUDGMENT:	27 October 1999

JUDGMENT:

HIS HONOUR: The appellant appeals against a decision of the Victims Compensation Tribunal.

This matter has an interesting history. On 12 January 1997, the appellant was assaulted. The offender was convicted. An application was made for compensation. In support of that application there were two medical reports, one by a general practitioner, Doctor Smith, and one by a psychiatrist, Doctor Delaforce.

The matter went to the Assessor. The Assessor assessed the matter and declined to award any amount for shock. The Assessor was clearly wrong. The only evidence before the Assessor was from Doctor Delaforce who said the plaintiff suffered a post traumatic stress disorder.

The appellant then sought a review. The appellant then sought to have taken into consideration at the review, an affidavit. The affidavit starts off,

"In examining the grounds of the determination of the Victims of Crime Compensation Tribunal, it is noted that the Assessor has referred to references to assaults prior to the matter in question. These matters do not involve physical violence but were matters of verbal harassment. Subsequently to the assault of 12 January I have undergone a change in personality, I am quick to anger, et cetera, et cetera, suffer continual headaches, had a catscan."

That originally I understand was relied on but not in the end - denying that psychological trauma resulted from a break-up with her boyfriend.

The learned Tribunal Member refused to allow that into evidence. In a carefully considered judgment, he concluded that that did not fall into the class of evidence which would be allowed. He did however correct the earlier problem that had arisen, that is, he found that there was shock and made an award.

I find this matter most difficult. It is my understanding that the proceedings before the Tribunal, whilst not necessarily conducted upon the strict rules used in Court, are still proceedings which have to be conducted in a fair manner.

I must say I do not understand how, if a Tribunal has before them or an Assessor has before them, a report of a specialist setting out an opinion, how that opinion can be dismissed unless there is evidence to the contrary.

It seems to me that what happens is the appellant puts forward a claim supported by evidence, the Assessor then without any evidence or submissions to the contrary takes a contrary view. I do not understand how as a matter of fairness, an Assessor can do that unless there was evidence to do it on. I realise that has been corrected, but the reason I am saying this is important.

Basically I accept the view formed by his Honour Judge Delaney in the decision of Hately v the Victims Compensation Fund Corporation an unreported decision of 1 April 1999. His Honour has very carefully gone into this matter, analysed it, and I believe come to the right decision. The Act says in s 38,

"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."

His Honour quite rightly in my view says that for there to be special grounds, it requires the applicant for compensation to show to the learned Member of the Tribunal information which was in terms of the words "special grounds, out of the ordinary or not connected with a failure to act."

In this case, the Assessor makes a basic but very important error. The appellant seeks to rectify that by putting into evidence an affidavit. The affidavit is important. Whilst some of that material may have been available before, it seems to me that the appellant has reacted in a correct manner, that is, by saying "First I'll submit my case to the Assessor, it will be considered on the evidence before the Assessor, and I do not need to take these further steps." But because the Assessor rejects the evidence of a specialist, the appellant then says "I now need to go further." Under those circumstances, those very unusual circumstances, I believe that is special grounds, and I believe that the Tribunal Member should have allowed, under the circumstances, that evidence in and considered it before finally formulating his opinion. It may be in the end it does not change the Tribunal Members's opinion, I do not know, but there is certainly evidence available in the report of Doctor Delaforce which would ground a much larger award on the question of shock. There is evidence also available in the report of Doctor Smith, and it may be if they are taken into consideration in conjunction with this other material, that there may be a higher award.

I stress that I agree with the comments made by his Honour Judge Delaney and that this in my view is a case which falls into those special grounds.

Accordingly, I allow the appeal. The matter will be remitted to the Tribunal for determination according to law and the Tribunal is to pay the appellant's costs, to be agreed or assessed.