Marshall v Victims Compensation Fund Corporation

[2000] NSWDC 8

New South Wales

District Court

CITATION:	Marshall v Victims Compensation Fund Corporation [2000] NSWDC 8
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Kathleen Marshall Victims Compensation Fund Corporation
FILE NUMBER(S):	60 of 1999
CORAM:	Graham DCJ
CATCHWORDS:	exacerbation of pre-existing condition - Schedule 1 - s38(3) - special grounds :- Clause 4 of Schedule 1
LEGISLATION CITED:	Victims Compensation Act 1996 Victims Compensation Act 1987
CASES CITED:
DATES OF HEARING:	15/3/00
DATE OF JUDGMENT:	15 March 2000

JUDGMENT:

DCZ818 EMM-F2


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HIS HONOUR: This is an application for leave to appeal and (if that is successful) an appeal against a determination of the Victims Compensation Tribunal.
The appeal is governed by the provisions of the Victims Compensation Act 1996.
So far as the leave to appeal issue is concerned, the respondent is unable to point to any prejudice which would flow from the grant of leave. The period of time is not great and, in the circumstances, it would be appropriate to grant leave to appeal.
Four questions of law are posed for the consideration of the court on appeal. Those questions are amplified in the proposed Notice of Appeal but I think are more conveniently specified in paragraph two of the application for leave to appeal.
Appeals to the District Court under the 1996 Act, are appeals which are available on a question of law only, that is on a question of law arising in any determination of an application by the tribunal. See s 39. This contrasts with the procedure under the previous legislation of 1987 which provided for an appeal by way of hearing de novo.
The court is restricted as to the orders which may be made by subsection 5 and as to categories of questions of applications which may be the subject of appeal in subsections 3 and 4, to the extent that leave is necessary for an appeal to be brought to the court. This is an appropriate case in which leave should be granted. In a nutshell the applicant was unsuccessful when the matter was dealt with by a compensation assessor and his determination was made on 13 August 1998. An appeal was brought to the Victims Compensation Tribunal which published its reasons for appeal determination on 20 May 1999.
The original application related to a single act of violence being an assault occasioning actual bodily harm which was perpetrated on the appellant by her former de facto partner on 7 March 1996.
It appears from the evidence which was placed before the assessor that there had been a lengthy and abusive relationship during which it is asserted that a number of serious acts of assault took place at the hands of the appellant's partner. The evidence also indicated prior childhood problems on the part of the appellant and a significant piece of material, both in the assessor's determination and in the reasons for appeal determination, appears in a psychologist's report dated 28 July 1997.
Whilst it is clear that that report generally asserts that the appellant suffers from post traumatic stress disorder, under the heading "exposure to traumatic event" (which refers to the incident on 7 March 1996) the author says:
"Whilst it is impossible to apportion causality of Kathleen's PTSD response to the one event as detailed this event constituted the serious threat to her life. Kathleen believed that she could be killed. This was the final assault after a history of prolonged physical, sexual, psychological and emotional abuse by Scott."

Later in the report she says:
"The violent episodes which Kathleen experienced within her relationship were a catalyst for a PTSD response because of constant traumatisation."

I think it follows from that evidence that the assessor and the tribunal were entitled to find that the appellant had not made out that her condition of post traumatic stress disorder was a direct result of the act of violence of the 7 March 1996.
As I read the psychologist's report, it seems to be saying that it is not possible to assert that the one act was the cause of the post traumatic stress disorder. Both the assessor and the tribunal were therefore entitled, in my view, to conclude that the appellant had failed to establish that she was suffering from post traumatic stress disorder as a direct result of the assault on her by her partner on 7 March 1996. The question, however, is whether the matter rests there.
There is, it seems to me, abundant evidence (and there was before the assessor and the tribunal) that the condition of post traumatic stress disorder was present no later than 7 March 1996 and further that the serious assault on 7 March 1996 was an act, a direct result of which was the "aggravation, acceleration, exacerbation deterioration" of that existing condition of post traumatic stress disorder.
In his decision, at page 3, the tribunal member deals with the question whether the compensable injury of "shock" has been established as a direct result of the act of violence on 7 March 1996. He says:
"The act of violence must result in or cause a compensable injury. See s 7 subs 1 and note the introductory words of clause 4 of Schedule 1. Mere exacerbation or aggravation of a pre-existing injury does not entitle the applicant to compensation. Clause 4 of Schedule 1 does not provide that mere exacerbation or aggravation of a pre-existing injury is compensable. That clause merely provides that if an act of violence does result in or cause a compensable injury then if that compensable injury resulted not just from that act of violence but also resulted from aggravation or exacerbation of a pre-existing condition then the compensation to be awarded is to be reduced. However the requirement remains that it must be the act of violence which is a cause of the compensable injury itself."

After referring to the psychologist's report and the passage to which I have already made reference he went on to say:
"Now as I have said it must be established that the act of violence on 7 March 1996 resulted in or caused the applicant's shock. See s 7 subs 1. It is not sufficient that the applicant may have been suffering a pre-existing PTSD from all the prior alleged incidents and that this act of violence on 7 March 1996 exacerbated or aggravated the pre-existing PTSD or shock. It has to be shown that this act of violence on 7 March 1996 was one of the causes of the applicant's PTSD (shock) and that means her PTSD (shock) must be shown to have arisen after this act of violence. That has not been done because Ms Downey relates a long history of problems in the relationship since 1990 together with prior childhood problems and she says she cannot say what caused the applicant's PTSD (shock).

The evidence before the compensation assessor does not establish that this one act of violence on 7 March 1996 caused or was one of the causes of the applicant's PTSD or shock. It has not been established that the one act of violence on 7 March 1996 caused or resulted in a compensable injury."

It is, I think, abundantly clear from those passages that, as the magistrate said early in those quotations:
"Mere exacerbation or aggravation of a pre-existing injury does not entitle the applicant to compensation."

Substantial reliance has been placed upon s 7 subs 1 of the Act both by the magistrate and also in the submissions (both oral and written) put before the court on behalf of the respondent to the appeal. Section 7 subs 1 provides that 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." What is meant by an "act of violence" is defined in s 5, to which no particular reference need be made.
The argument is that, before an injury can be regarded as compensable, it must be an injury which is a direct result of an act of violence. That proposition based on the words of s 7 is said to effect the construction of Schedule 1 clause 4 under the heading "Compensable Injuries."
Clause 4 has the heading "Reduction of Standard Amount Because of Existing Condition." It provides:
"If the act of violence results in a compensable injury because of the aggravation, acceleration, exacerbation or deterioration of an existing condition of the eligible victim the standard amount of compensation for the injury is to be reduced by the proportionate amount that the tribunal or compensation assessor considers is attributable to the existing condition."

Both the magistrate and counsel for the respondent have relied upon the opening words of clause 4.
"If the act of violence results in a compensable injury"

as meaning that there must be established a compensable injury as a direct result of an act of violence. Here it is submitted that the magistrate was correct in finding that any exacerbation or aggravation of the appellant's pre-existing PTSD or shock would not be sufficient to establish a compensable injury: As the magistrate said "mere exacerbation or aggravation of a pre-existing injury does not entitle the applicant to compensation." In his view, it must be established that the act of violence relied upon by an applicant for compensation resulted in or caused the condition for which compensation is sought.
The essential argument is, I think, addressed in the written submissions on behalf of the respondent.
"Further, clause 4 of Schedule 1 to the Act as then applying does not in any way dilute the effect of s 7 subs 1 of the Act in requiring that the act of violence is a cause of the compensable injury itself."

With that submission and with that view of the magistrate which was implicit in his finding I would, with respect, disagree.
The proper construction of the Act is such as to enable clause 4 and s 7 subs 1 to be read together. Clause 4 should be read so that it refers to a compensable injury which is an injury because of the aggravation, acceleration, exacerbation or deterioration of an existing condition. In other words where there is an existing condition and it is aggravated by an act of violence then that results in a compensable injury. That is a compensable injury which is the same compensable injury as that which is provided for by way of standard compensation in clause 9 but where the condition itself was not a direct result of the act of violence but where, rather, the act of violence directly results in an aggravation, acceleration, exacerbation or deterioration of that existing condition.

In other words there must still be a compensable injury as a direct result of that act of violence as envisaged by s 7 subs 1 but the proper construction of clause 4 means that that compensable injury can be one which arises because of aggravation etcetera of an existing condition. That aggravation etcetera must be a direct result of the act of violence but there need not be a separate and identifiable compensable injury in the sense that some new condition or injury results from the act of violence. Clause 4 is clearly intended to extend the range of compensable injuries to include those which are the direct result of an act of violence and those injuries which are by way of aggravation etcetera of an existing condition so long as that aggravtion is as a direct result of an act of violence.
In my view the magistrate has misconstrued clause 4 of Schedule 1 of the Act in holding that it does not provide that mere exacerbation or aggravation of a pre-existing injury is compensable.
Counsel for the respondent has sought to argue that the magistrate did not really make such a finding but that his finding should be read in the light of his observations of a need for a "direct" connection as required by s 7 subs 1. The difficulty is that the only connection which the tribunal member was prepared to countenance was one which itself, independently, amounted to a compensable injury.
It seems to me that the import of the magistrate's view of the Act was quite clear and that he required some separate compensable injury which had to be a direct result of the act of violence. In my view as I have already outlined that is to misconceive the purpose and construction of clause 4 of Schedule 1. That provision can stand quite comfortably with s 7 subs 1, provided both provisions are read consistently together in the way in which I have outlined.
It is, I think, sufficient illustration of the validity of the construction which I have found should be applied to take an example from the standard amounts of compensation, referred to in clause 9. That provides for compensation for various forms of epilepsy.
On the magistrate's construction of clause 4, a person who had, for example, fully controlled epilepsy prior to being assaulted but who developed uncontrolled epilepsy as a result of the assault would not have any claim. That is because there would have been merely an aggravation etcetera of a pre-existing condition of epilepsy.
The absurdity of that result is, I think, a powerful reason for adopting the construction of clause 4 which I have outlined. In any event, it is difficult to see why there is any purpose for the apportionment provisions in clause 4 if the tribunal member's construction of clause 4 is correct. It follows that the tribunal was not correct in law in its finding that an exacerbation or aggravation of a pre-existing injury does not entitle an applicant to compensation pursuant to clause 4 Schedule 1 of the Victims Compensation Act 1996.
As I understand the decision, the magistrate, and indeed the assessor, had been prepared to accept that the plaintiff had suffered an exacerbation or aggravation or deterioration or acceleration of her pre-existing condition of post traumatic stress disorder as a direct result of the assault of 7 March 1996. It followed that, in the light of those findings, and in the light of the proper construction of clause 4, the tribunal would have been bound in law to find that there was a compensable injury arising from the assault on 7 March 1996. It follows that the tribunal, in terms of question 2(b), was not correct in law in finding that a compensable injury did not arise from the assault on 7 March 1996.
In relation to those two questions counsel for the respondent has relied upon arguments directed to the particular merits of this matter but also to the privative provisions of s 39(3)(a) of the Victims Compensation Act 1996. That provides that for the purposes of the section, two matters are not questions of law. Relevantly paragraph (a) provides:
"A determination of whether an injury for which compensation has been claimed is an injury specified in the schedule of compensable injuries or whether it is a compensable injury of a particular description specified in that schedule."

Counsel for the respondent has submitted that, even if the magistrate was wrong in his construction of clause 4, the determination which he has made was caught by s 39 subs 3, particularly paragraph (a).
That provision is, of course, a matter which deprives the court of a jurisdiction which would otherwise have been conferred by the appellate jurisdiction conferred generally in s 39. Nonetheless it deprives the court of jurisdiction to entertain appeals in relation to significant and indeed crucial issues determined by the tribunal. It obviously must be given full force and effect but I do not consider that s 39 subs 3 prevents the court from considering the questions of law which I have outlined. What was involved in questions 2(a) and 2(b) in this matter were questions not relating to that provision. Rather they related to a fundamental, almost jurisdictional, misconception of the scope of the Act. The error of law involved is a broad one and its breadth is illustrated by the question itself.
"Was the tribunal correct in law in its finding that an exacerbation or aggravation of a pre-existing injury does not entitle an applicant to compensation pursuant to clause 4 Schedule 1 of the said Act."

That was a finding which had no specific reference to the particular circumstances of this case but was expressed in those very general terms and was a matter of construction of the Act rather than of a determination of the type contemplated by s 39. The fact that that finding, in turn, resulted in such a determination does not deprive this court of jurisdiction to determine that there was an error of law at the more fundamental or antecedent level which I have outlined.
It follows that the matter would need to be remitted to the tribunal.
It is, however, necessary I think to consider the other grounds in the Notice of Appeal. They relate to two particular aspects of the decisions of the tribunal. It has certainly become clear that one of the difficulties facing the applicant in this case is the difficulty of apportioning the cause of her condition of post traumatic stress disorder. One way of overcoming that difficulty is to seek to broaden the claim to include, in effect, the whole course of abusive conduct on the part of the appellant's former de-facto partner. That course was no doubt a matter which could have been pursued before the assessor but which the tribunal member regarded as not one which should be countenanced in the tribunal.
I see no mistake of law in that decision. Clearly the fundamental proposition that an appeal to the tribunal is not a means of a second consideration of a claim in order to overcome a perceived deficiency in the original application is an observation of considerable merit and weight. The situation is, however, different in relation to the second area in which it is alleged that the tribunal acted unfairly or failed to consider properly the material sought to be put before it.
The tribunal was asked to consider medical evidence which would assist in apportioning the condition as between the pre-existing condition and the worsening of the condition brought about by the act of violence on 7 March 1996. The magistrate was clearly concerned to ensure that fresh evidence should not be led in the tribunal unless special grounds were made out as required by s 38 subs 3 of the Act. He referred to a decision of another judge of this court specifying that special grounds require the applicant to show to the tribunal information which was out of the ordinary or not connected with a failure to act.
So far as that decision is concerned it is, I think, clear from the terms of s 38(3) of the Act that there is no requirement that the material must concern matters occurring after the determination appealed against. That is one of the grounds on which the tribunal may grant leave to receive further evidence but it does not govern the construction of the expression "special grounds" in subsection 3.
If the magistrate understood the earlier District Court decision as requiring some extraordinary event or out of the ordinary event then it seems to me that that was a misconstruction of what was intended by the earlier judgment of the District Court. Special grounds clearly require merely that there be grounds which are special to the circumstances of the particular case. That construction is, I think, consistent with the use of the term "special" in other areas of the law.
The requirements for special grounds in relation to appeals to the Court of Appeal and similar bodies is, I think, inapposite in reference to appeals from an assessor to a tribunal. That is so even where the form of the appeal, in technical terms, may not differ greatly from the foundation of appeals in other areas of the judicial system.
The tribunal has a jurisdiction which enables it to grant leave where there are special grounds. There remains a residual discretion even where there are special grounds, (that is grounds that are special to the particular case) for receiving further evidence and material and that discretion to grant or withhold leave maybe exercised in the light of the considerations referred to by the magistrate, namely that in the ordinary course of events, all of the material relevant to the determination of an application should be put before the assessor in the first instance. Clearly the structure of the Act is designed to limit the circumstances in which matters should need to go to appeal either in the tribunal or elsewhere.

The difficulty in the present case, it seems to me, is that the magistrate has misdirected himself in law in his understanding of clause 4 of Schedule 1. It is, I think, clear from the passages which I quoted earlier and in the light of my findings as to what clause 4 means that the tribunal member did not appreciate the significance of the availability of the potential apportionment evidence in this case. In those circumstances he was failing to give proper weight to a relevant consideration, namely, what should be done in the circumstances where the assessor apparently accepted that there had been some exacerbation but, acting on a similar misconception of the law to that which was propounded by the magistrate, had not embarked upon any process of apportionment.
Had the tribunal member appreciated the true significance of clause 4 of Schedule 1 then it would have been apparent to that member that evidence which would assist in apportioning the appellant's condition as between the assault of 7 March 1996 and those aspects of her condition relating to other causes would have provided grounds upon which the tribunal would have considered the exercise of its discretion in fundamentally different light.
In those circumstances it seems to me that there has been a miscarriage of the discretion amounting to an error of law. In reaching that conclusion I am of course conscious that s 38 subs 3 is somewhat discretionary, not only in that it provides for a grant of leave but also in assessing what amount to special grounds. But it seems to me that the fundamental misconception of the jurisdiction relation to clause 4 must have infected the exercise of the discretion under s 38(3) in relation to evidence which would assist in apportionment. That could well have resulted in an exercise of discretion in quite a different way to that in which it was actually exercised. A correct construction of clause 4 would greatly have enhanced the likelihood that evidence assisting in apportionment would have been allowed in the tribunal by way of a grant of leave.
That aspect of the case is by no means easy to resolve particularly in a way which avoids substituting this court's view of the application to tender further evidence for the view taken by the tribunal and also by the necessity to act only, if there is an error of law demonstrated. But even with those limiting factors, I am satisfied that there has been such a mistake of law.
Accordingly I answer the questions of law as posed in the application for leave to appeal as follows:
"Question (a) Was the tribunal correct in law in its finding that an exacerbation or aggravation of a pre-existing injury does not entitle an applicant to compensation pursuant to clause 4 Schedule 1 of the Victims Compensation Act 1996?
Answer. No.

Question 2(b) Was the tribunal correct in law in finding that a compensable injury did not arise from the assault on 7 March 1996?
Answer. No.

Question (c) Did the tribunal fail to consider in its determination all the matters set out in the grounds of appeal from the earlier decision of the tribunal dated 13 August 1998?
Answer. Yes, in so far as the question of apportionment evidence is concerned.

Question 2(d) Did the tribunal in making its determination act fairly in all of the circumstances?
Answer. No."

I make the following orders. Leave to appeal out of time is granted. Appeal is allowed. The determination of the Victims Compensation Tribunal of the 20 May 1999 is set aside. The matter is remitted to the Victims Compensation Tribunal to be considered and determined again by the tribunal (either with or without the hearing of further evidence) in accordance with the decision of this court.
Leaving aside the statutory scheme, I do not suppose I need to make any order about costs in the tribunal because the matter is going back to the tribunal so presumably the tribunal can make its own determination as to costs in due course. The question is really as to the costs of the appeal.