Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AXK v Victims Compensation Fund Corporation [2014] NSWCATAD 106 Hearing dates: 30 April 2014 Decision date: 23 July 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy, LCM, Deputy President Decision: 1. The determination of the compensation assessor that the applicant's application for compensation is dismissed, is affirmed. 2. The applicant is awarded costs of $1500. Catchwords: VICTIMS COMPENSATION -whether, on the balance of probabilities, an "act of violence" occurred Legislation Cited: Victims Support and Rehabilitation Act 1996 Victims Support and Rehabilitation Rule 1997 Category: Principal judgment Parties: AXK v Victims Compensation Fund Corporation Representation: Counsel M Langenheim (Applicant) File Number(s): 137162 reasons for decision 1AXK was seriously injured during a brawl at the Cargo Bar in Darling Harbour, Sydney on 18 December 2010. He broke his jaw in two places and lost two teeth. AXK says that an unknown person punched him in the face. Another witness, JH, says that he saw AXK's head hit a table when a security guard grabbed him and pulled him to the ground. No-one was charged with assaulting AXK. 2AXK applied to Victims Services for victims compensation under the Victims Support and Rehabilitation Act 1996 (the old Act). That application was refused on 7 March 2013 on the basis that AXK had not proved, on the balance of probabilities, that he had been the victim of an act of violence. Rather, the assessor concluded that AXK's injuries had resulted from 'an unfortunate accident'. AXK appealed to the Tribunal against that decision: s 36(2). The Tribunal may affirm or set aside any determination of a compensation assessor: Old Act, s 38(5). 3A hearing was held in this matter because the Tribunal was satisfied that it could not properly determine the matter without a hearing: Old Act, s 38(2). The Tribunal granted leave to hear new evidence, namely oral evidence from AXK, because it considered that special grounds existed. Those grounds were that there was a significant conflict between AXK's version of events and those of other witnesses. It was in the interests of justice that AXK's version be tested in a hearing. No other witness to this incident gave oral evidence. The law 4This is a transitional appeal and the now repealed, Victims Support and Rehabilitation Act 1996 (NSW) applies: Victims Rights and Support Regulation 2013 (NSW), cl 16. 5A person is eligible for statutory compensation if that person is a 'primary victim' of an 'act of violence': s 6. The Tribunal is to determine the matter in accordance with Division 5. Under s 29(2): An award of statutory compensation must not be made unless the compensation assessor is satisfied, on the balance of probabilities, that the person to whom the application for that compensation relates: (a) is a primary victim, secondary victim or family victim of an act of violence, and (b) is eligible to receive the amount of compensation provided by the award. 6A person is a 'primary victim' if he or she receives a compensable injury as a direct result of that act: s 7(1). "Compensable injuries" are listed in Schedule 1 to the Old Act. 7An 'act of violence' is defined in s 5: "act of violence" means an act or series of related acts, whether committed by one or more persons: (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons, and (c) that has resulted in injury or death to one or more of those persons. 8The issues for the Tribunal are whether AXK was the victim of an act of violence and, if so, the level of compensation to which he is entitled. AXK has also applied for costs. Grounds of appeal 9The Notice of Appeal was lodged on 14 June 2013 and sets out the following ground: The compensation Assessor made an error in concluding that it was more probable than not that an act of violence has not occurred. Evidence 10The evidence consisted of statements from patrons and employees of the Cargo Bar, a police report, medical evidence and the oral evidence AXK gave at the hearing. Police took statements from various people involved, reviewed the CCTV footage but were unable to identify any person who punched AXK. 11AXK was at Cargo Bar with friends and acquaintances including, NG and JB. Another group comprising JH, his sister KH, and two of her female friends AG and FM, were also at the Bar. The first altercation, which did not involve AXK, started when KH was on the dance floor with her brother and her female friends. An unidentified male person started dancing with the group. While the unidentified male was dancing, NG came over to him and pushed him. NG then tried to apologise to KH and grabbed her on the arm. JH told NG to let go. KH alleges that NG punched her brother in the head. Security guards escorted NG from the premises. 12The second altercation, which started very shortly NG had been removed, involved AXK. By this time it was approximately 2 am. AXK had arrived at the Cargo Bar at approximately 11 pm having spent the evening with friends at a barbecue. He said he would have had six or seven beers before going to Darling Harbour and two or three more at the bar. In oral evidence he admitted being "well over the limit". 13In a statement dated 3 January 2011 AXK said: During the course of the evening I caught up with other people I know, through Uni and football. I caught up with NG and we said hello to each other. I went on floating around the bar area. I'm not sure of the time but I saw NG on the dance floor. There were about three or four guys on the dance floor as well. They were yelling at NG. I knew these guys were yelling at NG, the group were pointing at NG. I could hear the group telling NG to "Fuck off, the girls don't want anything to do with you." I went over to see what was going on. NG was being taken out by the bouncer. The next thing I can remember was being whacked on the right hand side of my jaw and face. When I mean whacked I mean being punched. The punch caused me to move to the left forcing me to take a step to the left. I was forced to the ground. I was on all fours trying to protect my head and face. I was being continually punched and kicked. I was grabbed by a security guard around the neck like a head lock. He started dragging me outside. I was yelling at to get off my jaw because I knew it had been broken from the first punch. 14AXK went on to say: I can't remember much after the first punch. I can't describe any of the other guys involved. 15In his oral testimony AXK gave evidence consistent with his written statement. He added some detail, in particular that the punch came from the right hand side. The clinical notes from St Vincent's Hospital record a single punch to the left side of his jaw. 16JH gave a different version of events. He says in relation to the second altercation that AXK punched him in the face. He fell backwards onto the cushion DJ wall and then jumped up and "went to grab the guy." Security guards arrived, grabbed AXK in a bear hug and fell to the ground. JH says that, "I saw the guy who hit me, his head hit a table as he and the security guard fell to the ground." 17AG, who was also on the dance floor at the time, agrees with JH that AXK punched him in the face. AG then says that JH grabbed AXK by the front of his shirt. Security guards came over and restrained JH. Another security guard grabbed AXK and, in attempting to restrain him, they 'fell under a table'. AG did not see AXK hit his face or any other part of his body. 18Statements were also provided by various security guards and employees at Cargo Bar. One security guard, JF, said that he grabbed someone on the dance floor during a scuffle, and fell to the ground. He is not sure who he grabbed but noticed when he stood up that he was covered in blood which was not his own. The Operations Manager, PC, said he saw AXK on top of JF. He says he saw another security guard help AXK to his feet and saw that AXK had blood on his clothing and some blood coming from his mouth. There is no statement from the other security guard, RM. 19Police provided a report of their investigation into this incident to Victims Services on 20 January 2012. Detective Senior Constable Adam Vickery made the following findings in that report: The victim AXK, NG and JB are friends. All went to the Cargo Bar on the evening of the assault. During the investigation I formed the opinion that their level of intoxication was moderate to heavily intoxicated. The second group who were involved in this incident JH, his sister KH and AG. JH and KH were consuming alcohol but were not intoxicated. KH was dancing with an unknown male on the dance floor, when they were approached by a person believed to be NG. NG pushed the unknown male person in the chest causing him to fall backwards for an unknown reason. A verbal argument between NG and KH commenced, during the argument NG pushed KH in the chest. JH came to the aid of his sister. JH recognised NG from private school high rugby union competitions. NG has pushed JH against the DJ booth. The victim AXK has become involved. Security have intervened and commenced removing all parties. JH has stated that security guards have grabbed AXK who struggled. During this struggle both AXK and the security guard fell to the ground and during the fall the victim AXK hit a nearby table with his face. This version of events is supported by security guard JF statement and operations Manager PC's statement. NG, AXK and JB's memory of the evening was somewhat blurred due to their level of intoxication. 20The clinical notes from St Vincent's Hospital Emergency Department dated 18 December 2010 at 3.57 am record, "Alleged assault" and "intoxicated". The "presenting problem" is identified as -"punched to face". The history is recorded as: 21 year old male BIBA from Cargo Bar - alleged assault. Punched to face multiple times by 4 assailants. On the same day, 18 December 2010 at 9.45, the clinical notes record - "alleged assault at 0200 this am. Single punch to left side of jaw." Assessor's reasons 21The Compensation Assessor states in the Reasons for decision dated 7 March 2013: Various witnesses to the incident provide similar versions of events but their evidence is conflicting with AXK's version. Witness "JH" states he witnessed AXK being grabbed by a security guard, who in the process of restraining him in a bear hug has lost balance and has fallen to the ground with AXK causing him to hit his face on a table on the way down. A further statement by "AG" states she witnessed AXK being restrained and in that attempt noticed that they both fell under a table. It is not clear if she had a proper view of the incident but I appreciate this provides sufficient evidence that the injury has occurred in the fall. I have considered the statements made by hotel security staff and in particular the Security Guard who was allegedly involved in the incident, he states: "I made my way to the dance floor where a lot of people were involved, grappling each other. At this point I fell to the ground whilst grabbing someone. I am not sure who I was grabbing hold of. I then got off the ground and noticed I was covered in blood which was not my own." Given the weight of evidence that the applicant fell, and the lack of evidence supporting the applicant's claims, I cannot be satisfied that the applicant's injuries were sustained in the course of the commission of an offence. I also cannot be satisfied that the incident involved violent conduct towards the applicant. Consideration 22I must be satisfied, on the balance of probabilities, that AXK is a primary victim of an act of violence. An act of violence has three elements. It must have "apparently occurred in the course of the commission of an offence". It must have involved violent conduct and it must have resulted in injury. The fact that no-one was charged with an offence is not determinative. 23The evidence and considerations which supports a finding AXK's injuries occurred when he was punched (that is in the commission of an offence) are as follows: (1)AXK's written statement; (2)AXK's oral evidence; (3)the clinical notes which reflect the fact that AXK told hospital staff on the night of the incident that he had been punched; (4)the fact that no other witnesses saw AXK hit his head on a table; (5)that JH may have been motivated to lie about AXK hitting his head on a table to deflect any blame from himself. 24The evidence and considerations which support a finding that AXK"s injuries did not occur in the course of the commission of an offence are: (1)JH's evidence that he saw AXK's head hit a table; (2)JH had been drinking but was not intoxicated; (3)no-one other witness saw AXK being punched; (4)AXK was at least moderately intoxicated at the time and has given inconsistent accounts as to whether he was punched on the left or right side; and (5)the statements of JH, AG and KH provide much more detail than AXK's statement suggesting that they were not as intoxicated and had a better re-call of events. 25The fact that JH did not have blood on his clothing and that JF, one of the security guards, was covered in blood, does not necessarily suggest that the injury was sustained after the security guard grabbed AXK. 26The evidence is fairly evenly balanced but falls just short of satisfying me, on the balance of probabilities, that AXK's injuries occurred in the course of the commission of an offence. While I have no doubt that AXK believes he was punched, the detailed and unequivocal evidence given by JH and those in his group, AXK's relative lack of re-call and his level of intoxication are all factors that have affected my decision. While it is possible that AXK sustained his injury by being punched by an unknown person and that JH has lied or is mistaken as to what he saw, I am not satisfied to the requisite standard that that is what happened. 27That finding makes it unnecessary to consider what level of compensation should be awarded. Costs 28Section 35 of the Old Act allows the Tribunal to award an applicant his or her costs of the application in accordance with the scale in the Victims Support and Rehabilitation Rule 1997 (Old Rule). AXK's solicitor provided evidence of his legal costs in the sum of $2,530. Clause 12(6) of the Victims Support and Rehabilitation Rule 1997 (Old Rule) provides that the scale of costs for an appeal which is determined after a hearing is up to $1,500. That is the amount that AXK claims in costs. 29I award the applicant costs of $1500. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 23 July 2014