Schmidt v Victims Compensation Fund Corporation

[2001] NSWDC 7

New South Wales

District Court

CITATION:	Schmidt v Victims Compensation Fund Corporation [2001] NSWDC 7
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Daniel Schmidt Victims Compensation Fund Corporation
FILE NUMBER(S):	611 of 2001
CORAM:	Sidis DCJ
CATCHWORDS:	exacerbation of pre-existing condition - s39(3) - shock :- Schedule 1, clause 4 exacerbation of pre-existing condition - s39(3) - shock :- beneficial legislation
LEGISLATION CITED:	Victims Compensation Act 1996 Victims Support and Rehabilitation Act 1996
CASES CITED:
DATES OF HEARING:	29/3/01
DATE OF JUDGMENT:	29 March 2001

JUDGMENT:

HER HONOUR: In this matter the appellant challenges a determination of the Victims Compensation Tribunal of

24 October 2000 on the basis that there arises out of that determination an error of law in not awarding a separate amount of compensation in respect of an act of violence which the appellant experienced on 30 October 1996.

The respondent argues that I do not have jurisdiction to deal with the appeal by reason of the provisions of

s 39(3)(a) of the Victims Support and Rehabilitation Act 1996.

The appeal arises out of claims made by the appellant in respect of two acts of violence. The first occurred in April 1996 when the appellant was the victim of a home invasion, the circumstances of which are set out in the Tribunal’s file and which are harrowing.

The second act of violence occurred in October 1996 when fire bombs were thrown at the appellant’s home and car, allegedly by the offenders who were then to go before the Court in respect of the home invasion. It is apparent from the medical reports before the assessor and the Chairperson at the Tribunal that the appellant has suffered post traumatic stress disorder as a result of those two incidents. The assessor in a determination on 12 May 2000 made an award in respect of the first instant, finding a compensible injury of shock lasting more than twenty eight weeks, but not permanent and awarded the appellant $18,000 together with treatment costs, disbursements, and legal costs.

In respect of the second incident he or she found that the act of violence aggravated an existing compensible injury, but did not cause a fresh injury and he dismissed the claim. The matter went before the Chairperson whose determination was issued on 24 October 2000. The Chairperson came to essentially the same conclusion as the assessor, noting that the medical reports did not distinguish whether the shock arose from the first or second act of violence, and that the appellant’s condition was the result of the combination of both incidents.

The Chairperson stated that he was not satisfied on the material provided that as a direct result of the act of violence on 30 October 1996 the appellant sustained a compensible injury, nor was he satisfied that the act of violence resulted in a compensible injury because of the aggravation of an existing condition.

It is not argued by the appellant that the circumstances of 30 October 1996 caused a separate and distinct compensible injury from that which related to the incident of April 1996. It is argued that having found that there was an aggravation of the post traumatic stress disorder arising from the April 1996 incident, it should follow that there was a compensible injury for which compensation should be awarded. This submission was made on the basis of clause 4 to schedule 1, Victims Compensation Act 1996, which reads as follows:

“If the act of violence results in a compensible 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”

In rejecting the appeal I make two points. Firstly, it does seem to me that in determining whether the aggravation resulted in a compensible injury the assessor and the Chairperson have made determinations within

s 39(3)(a) of the Victims Support and Rehabilitation Act 1996 so that the appeal cannot be dealt with by this Court as a question of law.

Secondly, it seems to me that the interpretation claimed in respect of clause 4 of schedule 1 to the Victims Compensation Act 1996 cannot be correct because the clause itself requires the aggravation to result in a compensible injury. The medical reports that were before the Tribunal from Mr Jones and Dr Hutchinson do not at any stage deal with the separate consequences to the appellant of the individual incidents of April 1996 and October 1996. They deal with the totality of the consequences of those incidents, and given that material, I do not see how it would be possible for an assessor or a Chairperson to determine that the aggravation itself caused a deterioration in the appellant’s condition, such that it amounted to a fresh compensible injury.

In those circumstances, the appeal is dismissed.

The respondent seeks the costs of the appeal. This was a very difficult point and it was a valid point for the appellant to have taken. He has clearly, in his young life, been through more than any of us would wish to experience, and given that this is public interest legislation, described by the Court of Appeal as beneficial, I have reached the conclusion that each party should pay its own costs.

The exhibits may be returned.

The appeal is dismissed, the orders of the Tribunal are confirmed. The motion is dismissed, each party is to pay its own costs of the motion. The exhibits are released.