Maguire v VCFC

[2002] NSWDC 22

New South Wales

District Court

CITATION:	Maguire v VCFC [2002] NSWDC 22
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Troy Andrew Maguire Victims Compensation Fund Corporation
FILE NUMBER(S):	7072; 7073 of 2002
CORAM:
CATCHWORDS:	contributory behaviour - causation - s30(1)
LEGISLATION CITED:	Victims Support and Rehabilitation Act 1996
CASES CITED:	Associated Provincial Picture Houses Limited v The Wednesbury Corporation (1948) 1 KB 223; Victims Compensation Fund v Scott Brown and others (2002) NSWCA 155; Victims Compensation Fund Corporation v Ainsworth (2001) 51 NSWLR 466; March v Stramare (1991) 171 CLR 506; Chappel v Hart [1998] HCA 55
DATES OF HEARING:	5 December 2002
DATE OF JUDGMENT:	5 December 2002

JUDGMENT:

HIS HONOUR JUDGE FINNANE: The applicant seeks leave to appeal to this Court on a question of law concerning a determination by the Victims Compensation Tribunal constituted under the Victims Support and Rehabilitation Act 1996. The application for leave to appeal appears by way of notice of motion and includes the determination appealed against and the questions of law on the grounds of the appeal.

I consider for reasons that will become obvious that there are important questions of law which arise in this application and I grant leave to appeal.

The determination appealed against was a determination by a magistrate on 8 July 2002. He sat as the tribunal hearing an appeal against the determination of an assessor.

The facts that are referred to in the determination show that on 18 September 1997 at 11pm the appellant, Troy Andrew Maguire, was in his home when a man called Barton knocked on the door. The appellant opened the door and Mr Barton struck him on the head with a piece of wood. The appellant was a guest in the house at the time.

Mr Barton later, it would appear, pleaded guilty to an offence of assault occasioning actual bodily harm. The appellant produced medical evidence to support his claim or claims. There were two claims that he was making. One was that he had suffered brain damage causing moderate impairment of social or intellectual functions and the other was that he had suffered psychiatric or psychological disorder. His claim was for a category 1 disorder, that is, chronic psychological or psychiatric disorder that is moderately disabling.

The appellant, according to the tribunal, suffered an act of violence and the magistrate found that an act of violence as defined by s 5 had been established. Section 5 of the Act provides that,

“An act of violence means an act or a series of related acts whether committed by one or more persons that has apparently occurred in the commission of an offence and that has involved violent conduct against one or more persons and that has resulted in injury or death to one or more of those persons.”
The Act itself has its object set out in s 3. Those objects are beneficial objects. They are:

“(a) to provide support and rehabilitation to the victims of crimes of violence by giving effect to an approved counselling scheme and a statutory compensation scheme,
(b) to enable compensation paid under the statutory compensation scheme to be recovered from persons found guilty of the crimes giving rise to the award of compensation,
(c) to impose a levy on persons found guilty of crimes punishable by imprisonment for the purpose of funding the statutory compensation scheme, and
(d) to give effect to an alternative scheme under which a court may order the person it finds guilty of a crime to pay compensation to any victim of the crime.”


It is perfectly obvious, as I have said, that this could be regarded as legislation which has as its essential object the beneficial object of assisting persons who are victims of crimes of violence.

Persons eligible for statutory compensation under s 6 are amongst others a primary victim of an act of violence. A primary victim as defined in s 7 is as follows:

“A primary victim of an act of violence is a person who receives a compensable injury or dies as a direct result of that act.”

The essential question in any determination whether by an assessor or by the tribunal is whether the applicant is, if a primary victim, a person who in fact has received a compensable injury as a direct result of the act of violence. In this case the evidence before the magistrate was that the applicant alone was the victim and hence in terms of s 7 he was potentially a primary victim.

The appeal before me, to succeed must raise before me a question of law arising in a determination of the tribunal. It is not sufficient for the appellant to succeed that he persuades me that the magistrate has made a decision with which I do not agree. It is not sufficient that the appellant shows that there are factual findings which are hard to understand or findings which I certainly would not have made. If all that is revealed in the decision of the tribunal are factual findings, even if they be erroneous factual findings, I have no jurisdiction to intervene.

If I do decide that a question of law is involved I cannot myself make a determination as to what compensation should be given. All that I am entitled to do is to either affirm the determination of the tribunal or set it aside and remit the matter to be considered and determined again in accordance with my decision on the question of law concerned.

There are a number of matters that are said to raise questions of law. There are eight such matters and then there are nine grounds of appeal.

The first one is whether the learned magistrate erred in taking into account submissions from the bar table and a guilty plea on behalf of the offender in determining to reduce the amount of compensation payable to the applicant. Secondly, whether the learned magistrate erred in taking into account the allegation that noise emanated from the premises on which the applicant was a visitor in determining to reduce the amount of compensation payable to the applicant.

On page 2 of the judgment of the determination under the heading “Reasons for not making an award or for reducing the amount of compensation payable” the magistrate comes to a conclusion that if an award is to be made in his view there should be a reduction in that award of five percent. He refers to s 30(1) of the Act which for relevant purposes says that 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.”


The magistrate took into account in determining this question a number of matters. First of all he said that the appellant detailed the circumstances of being at his friend’s house celebrating. They had a couple of drinks and the music was on but not loud when there was a bang on the front door. When he opened the door he was confronted by a male person who hit him over the head with a wooden baton. For his safety he charged this person pushing him to the ground and taking the baton off the offender. In submissions to the Magistrate’s Court it was indicated that the cause of the appellant’s behaviour was loud music and noise emanating from the premises in which the appellant and his friends were celebrating.

Question one, it would seem to me in the questions of law posed, must pick up this paragraph. The magistrate then in considering these reasons for not making an award said:


“It seems to me from the evidence or material before this tribunal that the appellant indirectly contributed to the injury sustained by him in the assault. I am satisfied that the reason why the offender resorted to violence was because of the loud noise emanating from the premises in which the appellant and his friends were celebrating, this noise included the playing of loud music.”

There are two points to be made. Firstly, there was in fact no evidence before the tribunal that would justify the magistrate coming to that conclusion. It is an illogical conclusion but it is not its illogicality alone that enables me to find an error of law. It is clear that a fact finder can illogically make an erroneous finding of fact. However, in determining whether or not to reduce an amount the magistrate is required by s 30 to consider any behaviour of the primary victim in this case because it is only the primary victim who is making a claim.

There was no evidence whatsoever that the primary victim did anything. There was no evidence that the primary victim played loud music and noise. The only evidence was the primary victim opened the front door. There was in truth no evidence before the magistrate at all that could have entitled him to conclude that the primary victim had engaged in any behaviour that indirectly contributed to the injury.

The magistrate in my opinion wrongly directed himself about the meaning of s 30 and instead of applying a test about the behaviour of the primary victim he applied some test not referred to in the Act about not the behaviour of the primary victim but loud noise emanating from premises. There is no warrant whatever for the magistrate, the tribunal or the assessor to make any reduction unless the clear terms of s 30 are made out. If they are not made out there is no legal basis for coming to that conclusion. I therefore conclude that the magistrate’s determination that an award if made should be reduced by five percent is erroneous.
There is a secondary reason that I would come to this conclusion. The behaviour concerned has to directly or indirectly contribute to the injury. Even if it were established, and it has not been, that the appellant played loud music, there could be no causal connection whatsoever between the playing of loud music and somebody violently assaulting him. What s 30 is obviously concerned about is something far removed from this situation.

This section has to be regarded, as I have said, as beneficial legislation. That is made clear by the decision of the President of the Court of Appeal Mason J in the Victims Compensation Fund v Scott Brown and others (2002) NSWCA 155. Hence in construing the legislation that has to be kept in mind.

The next questions to which I should turn are in paragraphs 3 and 4 and they are whether the learned magistrate erred in rejecting the applicant’s claim for the compensable injury of psychological or psychiatric disorder on the grounds that the applicant had failed to obtain a report from an authorised report writer and whether the learned magistrate erred in rejecting the applicant’s claim for compensable injury of psychological or psychiatric disorder without alerting the applicant to the need to obtain a report from an authorised report writer and without affording the applicant an opportunity to do so in circumstances where the application was determined without the benefit of a hearing and in the absence of the applicant.

The assessor and the tribunal are bound to apply the provisions of the Act. Pursuant to s 38 the tribunal may conduct a formal hearing. If that is done the hearing is to be conducted in accordance with Schedule 2 of the Act. However, if the tribunal is satisfied the matter can be properly determined without a hearing the tribunal is to proceed to determine the matter accordingly.

Sub-section (3) provides that an appeal from a determination is to be determined on the evidence and material provided to the compensation assessor but the tribunal may by leave receive further evidence and material if it considers special grounds exist or if the evidence or material concerns matters occurring after the determination appealed against. The section goes on to say that the tribunal is to determine the matter in accordance with the relevant provisions of Division 5.

Division 5 sets out in ss 25 to 35 all the provisions relating to the lodging of applications and their determination by assessors plus the tribunal is to exercise the powers of the assessor and consider what is before the assessor unless it considers that more evidence should be obtained. The tribunal may without limiting the generality of ss (4) affirm or set aside any determination, remit the application to be considered and determined again by a compensation assessor and is obliged to do that if further evidence and material could reasonably have been provided to the compensation assessor.

In this case the tribunal decided to deal with the matter without a formal hearing. The schedule of injuries is set out in schedule 1. I have referred to the items relating to brain damage and psychological or psychiatric injury. Paragraph 5 of schedule 1 makes provision that for the purpose 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 persons designated by the director. 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 the clause to which I have just referred.

It further provides that compensable injury of a category 1 psychological or psychiatric disorder applies only in relation to an act of violence that has apparently occurred in the commission of an armed robbery, an abduction or a kidnapping. In this case the applicant provided no medical or psychiatric material from a person approved of by the director. In my opinion that meant that the tribunal and the assessor before him was not required to have regard to other reports that were presented.
It follows in my opinion the learned magistrate did not err in rejecting the applicant’s claim for compensable injury for psychological or psychiatric disorder because in the absence of any statement of the type referred to in paragraph 5 of schedule 1 there was no evidence before him that would entitle him to make such a finding.

I also hold that the magistrate or the tribunal did not have any duty to draw attention to the provisions of any part of the Act to the solicitor for the applicant or the applicant. A person who applies for compensation under this Act is bound by the terms of it and must himself take the steps to comply with its provisions. So I reject those claims made under paragraphs 3 and 4.
Paragraphs 5, 6, 7 and 8 deal with the question of brain damage. The magistrate acting as the tribunal dismissed the claim for statutory compensation for compensable injury for brain damage. The grounds in 5, 6, 7 and 8 I do not propose to set out again. They are clearly set out in the questions of law that are raised.

Causation is a very difficult issue to resolve no matter what court in which it is raised. In the case of Victims Compensation Fund Corporation v Ainsworth (2001) 51 NSWLR 466 at para 27 the President of the Court of Appeal, Mason J, addresses the difficult questions that arise that are raised in fact by these four paragraphs in the Notice of Appeal. He says this:

“Whether or not a primary victim has received a compensable injury as a direct result of a particular act of violence may involve a difficult issue of causation. The issue may be one upon which different tribunals of fact legitimately reach opposite conclusions. It is not necessarily a simple matter of common sense notwithstanding frequently encountered judicial injunctions for robust fact finding on such a basis. Policy issues and value judgments may be involved.”

He refers to the well known cases of March v Stramare ((1991) 171 CLR 506) and Chappel v Hart ([1998] HCA 55) and goes on to say:


“The particular statutory language must be kept in mind. (Here the requirement is proof of a direct result.) A determination that the necessary causal link is present or absent will usually involve a question of fact although the reasoning process may reveal an error of law in that the tribunal of fact misdirected itself as to the correct approach to the issue.”

For reasons that will become obvious it is my opinion that that is in fact what has happened here. I have already referred to the finding of fact which the tribunal made that an act of violence has been established. What is then required to be proved is that within the meaning of s 7 that the applicant is a primary victim of an act of violence who received a compensable injury as a direct result of that act. The section says “as a direct result of that act”. The section does not say as a direct and exclusive result of that act or as a direct and only result of that act.

“Injury” is defined in the dictionary for present purposes where we are considering brain damage, as “actual physical bodily harm”. The claim is for brain damage, moderate impairment of social and intellectual functions. It is instructive to look at the ten paragraphs that precede the schedule items in schedule 1. Paragraph 4 provides for a reduction of the standard amount because of an existing condition, that is, if the act of violence results in a compensable injury because of the aggravation, acceleration, exacerbation or deterioration of the existing condition then the standard amount is to be reduced by the proportionate amount the compensation assessor considers is attributable.

There is no provision in the schedule for reducing or eliminating compensation because of a subsequent injury to the same part of the body. In my opinion what the learned magistrate is required to do as a matter of law having found there was an act of violence is to consider the question whether the evidence before him satisfies him that the injury received by the appellant was received as a direct result of the act of violence.
The appellant gave evidence by way of a statement showing that he got a blow to the head by a lump of wood. That could not be doubted to be correct since the offender subsequently pleaded guilty to an offence of doing precisely that. The magistrate refers to the findings of Dr Nelms, the treating general practitioner, who found severe concussion and apparent loss of cognitive function.

The report of Dr Jensen who was treating him for management of a traumatic brain injury and the opinion of Dr Jensen that the appellant had a significant brain injury as a result of an assault over three years ago in which he was allegedly hit over the head with a five kilogram baton. He referred to a subsequent report of Dr McLeod and a subsequent report of Dr Jensen.

These reports in my opinion clearly establish that the appellant had a significant brain injury and there was a causal link between the significant brain injury and the assault.

A report by a psychologist, Ms Musico, expressed an opinion about a current estimate of intellectual functioning which was below average and she was of the opinion he suffered a closed head injury. The magistrate correctly said in my opinion that where a compensable injury is categorised as brain damage a closed head injury would amount to brain damage. He also said the psychologist’s conclusions are based on the fact that the appellant was assaulted on 19 September 1997 which of course was the night on which he was assaulted, 19 September 1997.

However, the magistrate, notwithstanding this material, declined to make a finding that the claim had been made out because he erroneously directed himself to matters that were completely irrelevant, that is to say, the fact of some second assault which was referred to in some of the doctors’ reports and in the reports of Ms Musico. He expressed the view that there had been no particulars supplied in relation to the assault and said it’s a matter of concern that full particulars of it had not been disclosed or considered by the psychologist in her assessment of the appellant’s head injury. The second assault also involved a head injury. The extent of injury suffered by the appellant as a consequence of that assault is not disclosed and he says:

“There is therefore a considerable diminishment in the weight I should give to the conclusions reached by the psychologist relating to the appellant suffering a closed brain injury. The second assault may or may not have impacted on her conclusions. Contrary to submissions it is my view that this omission does have a very distinct effect on the value of the report.”

In my opinion the magistrate was not entitled to direct himself to something which was not before him for decision, that is, the effect of a second assault. The fact that it is mentioned in passing is of no consequence. The fact that it may have made worse what had already been established is of no consequence. The question he had to consider was whether the assault which he found to have occurred and to have been an act of violence and which the doctors said was causally linked to brain damage entitled the appellant to succeed in his claim.
In my opinion he misdirected himself by taking into account matters that occurred subsequently that have no consequence on that question. It may be that a second assault aggravated the matter and made it worse. As I have said, however, the entitlement to compensation does not depend upon the applicant establishing that the only cause of injury is the act of violence. What he must establish is that the act of violence was a direct cause of the injury.

What the magistrate has done in my opinion is to come to a conclusion that because something else may have also acted to produce injury, the plaintiff or the appellant was entitled to recover nothing. He has directed himself erroneously to irrelevant matters and therefore I find as a matter of law his findings are wrong in relation to those matters.
The evidence of the direct causal link is so clear that the magistrate’s failure to give effect to it leads me to the conclusion that he reached a decision which no reasonable tribunal could possibly have reached. I refer to the well known authority of Associated Provincial Picture Houses Limited v The Wednesbury Corporation (1948) 1 KB 223 at 230 or thereabouts.

The magistrate also expressed the views before coming to this conclusion, those views I have set out, concerning the provision of particulars and the establishment of various matters which in his view led to his conclusion being against the applicant. The applicant for his compensation has to supply material relevant to his claim. No onus is cast upon him to exclude all other contributory causes. His duty is to establish that his injury was a direct cause of the act or the act was a direct cause of his injury.

To determine in a determination that he should fail for, amongst other reasons, his failure to provide material which he could not have been possibly aware of might bear upon the matter, and which really could have had no relevant purpose since it dealt with another matter which may have been another compensable injury for all I know, is to deny the applicant natural justice. To make findings on matters of which he was not aware findings could possibly be made, also is an error of law.

I set aside the determination of the tribunal in relation to the claim for the compensable injury of brain damage. I remit the matter to the tribunal to be considered and determined by the tribunal in accordance with my decision. My decision has already made it plain that when that matter has been determined in accordance with law an award to be made to the applicant should not be reduced by any percentage.

HIS HONOUR: Now the question of costs arising. It seems to me I should order the Fund to pay the costs, should I not, if the Fund has lost?

PINZUTI: Your Honour my only instructions in this matter is that generally speaking costs follow the event.

HIS HONOUR: I will order the respondent corporation to pay the costs.

The judgment will be produced in due course. When I certify it of course it will be available to the parties. I would also hand out to you Mr Quickenden’s Act. My thanks to him for assisting me.

oOo