New South Wales District Court CITATION : Uren v VCFC [2003] NSWDC 2 TRIBUNAL : Victims Compensation Tribunal PARTIES : Brett Uren Victims Compensation Fund Corporation FILE NUMBER(S) : 6483 of 2002 CORAM: CATCHWORDS: s30(3) - workers compensation LEGISLATION CITED: Victims Support and Rehabilitation Act 1996 Workers Compensation Act 1987 CASES CITED: DATES OF HEARING: 14 February 2003 DATE OF JUDGMENT: 14 February 2003 Solicitors for the appellant/applicant: Geoffrey Edwards & Co Counsel for the appellant/applicant: Mr J Clyne LEGAL REPRESENTATIVES: Solicitors for the respondent: Solicitor for Victims Compensation Fund Corporation Counsel for the respondent: Mr S Burchett JUDGMENT: HIS HONOUR JUDGE WALMSLEY SC: 1. The appellant applies for leave to appeal from a decision of the Victims Compensation Tribunal (VCT) of 27 May 2002. I heard the leave application and the appeal at the same time. Background 2. The applicant was on 2 November 1999 the subject of a vicious assault in the course of his employment as a security guard with Chubb Security Holdings Ltd. He received some puncture wounds from a syringe. That led to a severe psychiatric injury. He was rendered totally incapacitated for work. His employer's insurer paid weekly compensation to compensate for his wage loss. It also met his medical expenses. The insurer stopped making weekly payments. He applied to the Workers Compensation Court for an order that it pay him. On 23 May 2001 a judge made such an order. Before any such payments were made he and the insurer reached an agreement that he accept a lump sum of $85,500.00 as a commutation of his workers compensation rights. The commutation was approved by the Workers Compensation Court on 22 June 2001. 3. Under the workers compensation legislation as it was when he was injured, lump sums were payable for loss of capacity in various parts of the body. They were payable in addition to re-imbursement for lost wages and medical expenses. But psychiatric injuries were specifically excluded. A worker such as the applicant could not recover any lump sum for psychiatric injury, even if it were to last a lifetime and render him permanently unable to work. All he or she could recover would be weekly compensation for wage loss, and payment of treatment expenses. However the wage loss could be commuted. 4. The victims compensation legislation was extensively revised in 1996. Politicians were concerned victims of crime were being compensated twice for their injuries, or "double dipping" See second reading speech of the then Attorney General, Legislative Council, 15 May 1996. . Unlike the workers compensation legislation, the Victims Support and Rehabilitation Act (the Act), passed that year, has a regime for paying lump sums for psychiatric injury quite apart from compensation for wage loss and treatment expenses, which, to a small extent, it also provided for. The applicant made application as a victim of a crime to receive a lump sum under the Act. The assessor who "assessed" his case dismissed it. So did the Chairperson of the V.C.T., to whom he appealed. 5. With leave, he may appeal from the V.C.T. to this Court. But that is only on a question of law. And if he succeeds here, this Court cannot award compensation. It must send his case back to the V.C.T. for it to assess any compensation in accordance with law. 6. Section 14 of the Act says statutory compensation comprises: "(a)compensation for compensable injuries received by the victim as a direct result of the act of violence, and (b) compensation for financial loss incurred by the victim as a direct result of any such compensable injury." 7. Section 18 deals with compensation for financial loss. Where wages are lost they are to be calculated at the rate under the Workers Compensation Act 1987 after the first 26 weeks of incapacity within the meaning of that Act. A cap of $10,000.00 is placed on compensation for financial loss (s 18(4)). S 18(5) says: "Compensation for financial loss is not payable to a person to the extent that the person has received, or is entitled to receive, payment for that loss under any insurance or agreement or under any other Act or law." So the applicant could not receive any compensation for financial loss under the Act. 8. By s 19 the maximum amount of statutory compensation payable to a person in respect of an act of violence is $50,000.00. In s 30(3) it is provided that the "compensation assessor" when determining the amount of statutory compensation: "must have regard to: (a) any amount that has been paid to the person or that the person is entitled to be paid. (i) by way of damages awarded in civil proceedings, or (ii) under any other Act or law (including workers compensation) ..., and (a) any other amount that has been received by the person … in respect of the act of violence to which the application for statutory compensation relates." 9. When dismissing the applicant's application on 8 October 2001 the assessor said he was: "satisfied the criteria for psychological or psychiatric disorder is satisfied [but] I do not consider that an award should be made … Under the provisions of s 30(3)(ii) I must have regard to any award an applicant receives under any other act or law including workers compensation. The order of the Compensation Court on the 22nd June 2001 was for an amount exceeding this jurisdiction and was based on the fact that the applicant could not return to work due to post traumatic stress and related psychological injury. I consider that to make a further award based on the compensable injury of psychological or psychiatric disorder would be to effectively award the applicant twice for the same injury." 10. In his appeal to the V.C.T. the appellant identified and relied on what were said to be two errors – the assessor's view that to award compensation would be to award twice for the same injury, and deciding there could be no award after an award of workers compensation benefits for an amount exceeding the maximum payable under the Act. In dismissing his appeal on 27 May 2002 the Chairperson of the Tribunal, noting the commutation, said the workers compensation award: "was made in respect of this incident … [and] [T]he $85,500.00 was paid … under workers compensation in respect of the act of violence. In my view the assessor 'must' have regard to that payment, as must I. In the circumstances, I decline to make an award … ." Leave application 11. By s 39(2)(a) an appeal must be instituted within 3 months after the day notice of determination is served. That day was, at the earliest, 27 May 2002. On 13 August 2002 the appellant filed his appeal in this Court. S 39(1) says that an applicant may: "with the leave of the District Court, appeal … ." The reference in (2) to an "appeal" is, I assume, reference to an application for "leave to appeal". 12. There are rules of court for leave applications. They are in Part 6 Rules 60A-60E R.D.C.. They provide a leave application is to be by notice of motion, and must be filed and served within 2 months of the date of service of the determination sought to be appealed from. A notice of motion with supporting statement was filed on 27 November 2002. Thus it was well out of time. I was told from the Bar table this had not been filed earlier due to error on the solicitor's part. No evidence was available to explain the error. But counsel for the appellant, Mr Clyne, drew my attention to the apparent conflict between s 39(2) and Part 6 Rule 60C(2). There was no argument put to me that Rule (2) was ultra vires . Mr Clyne submitted the deficiency was remedied, there was no prejudice to the respondent and what he submits is an error of law is of general importance. Mr Burchett opposed leave, reminded me of the legislative policy of time limits, that the appellant had been twice unsuccessful in his claim and submitted some important issue of principle or substantial injustice ought be shown but had not been. 13. The applicant abandoned so much of his application as applied to the decision of the assessor. He seeks leave to appeal only against the decision of the V.C.T. 14. I am persuaded leave ought be given. I can see an ambiguity in s 39(2) versus Part 6 Rule 60C(2) R.D.C.. The notice of appeal and affidavits were filed well within the 3 months provided by s 39(2). The documents filed late did not seek to make a case far removed from that disclosed by the notice of appeal and affidavits. I see merit in the appeal. I am satisfied no prejudice is shown. I give leave. I shall now consider the appeal. The appeal 15. By s 38 (4) and (5) of the Act the V.C.T. on hearing an appeal from an assessor is to determine it in accordance with Division V of the Act (which includes s 30) and may affirm or set aside any determination, or remit it to be considered and determined again in accordance with its directions. Error of law? 16. The applicant says in his notice of motion the question of law is whether the V.C.T. correctly applied s 30(3) of the Act. He says it did not, insofar as: (a) it decided there could be no award under the Act after an award of workers compensation for an amount exceeding the V.C.T.'s limit; (b) it interpreted the requirement it "must have regard to" amounts paid as workers compensation as necessarily precluding an award to him; (c) the assessor took the view that for the applicant to succeed that would amount to double compensation. I see the V.C.T.'s decision as bearing at least the meaning in (b). The reasoning suggests an adoption of the assessor's views. The assessor's reference to "double dipping" shows error. 17. Thus I see the V.C.T. as having made an error of law. Mr Burchett argued that the V.C.T. made no error because it "had regard" to his commutation sum. But "having regard" to an issue involves more than treating it as a necessarily excluding factor. Though there are substantial limits on what may be awarded under the Act, nothing in the Act says that no compensation is payable if an applicant has recovered a sum exceeding the V.C.T.'s jurisdictional limit. In particular the V.C.T. is not precluded from awarding compensation when more than its jurisdictional limit has been recovered elsewhere. 18. A significant issue, which neither the assessor nor the V.C.T. appears to have adverted to, is that the applicant received no compensation under the Workers Compensation Act 1987 for the non-economic loss aspect of his injury. The requirement that the V.C.T. have regard for other awards involves more than a consideration of its size. For example an injured worker may recover medical expenses exceeding $50,000.00 to discharge a debt to a hospital for treatment after a work injury. It cannot seriously be suggested that the fact he or she received none of it personally is to be ignored by the VC.T. or the assessor. A qualitative and quantitative consideration is involved in the assessment. Otherwise it cannot be said the award was given the regard required by the section. 19. As I have observed, the V.C.T. by implication, appears to have perpetuated the error of the assessor that "double dipping" was involved. Even the Act recognises there are different elements to compensation, namely wage loss and medical expenses (s 14(b): "financial loss") and "compensation for compensable injuries received", or a form of non-economic loss (s 14(a)). The applicant does not ask and never has asked for compensation for something he has already been compensated for, viz wage loss and treatment expenses. It may be that when it properly has regard for what the applicant has received the V.C.T. will not award a sum as large as the guidelines suggest would apply if he had previously received nothing. But it would be open to it to award some compensation. 20. I shall hear counsel on costs. Orders 1. I set aside the determination of the Victims Compensation Tribunal of 27 May 2002. 2. I remit the matter to be considered and determined again by the Tribunal in accordance with this decision on the question of law concerned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.