Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ARU v Victims Compensation Fund Corporation [2014] NSWCATAD 203 Hearing dates: On the papers Decision date: 22 November 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member Decision: 1. Pursuant to section 38 (5) of the old Act I affirm the decision of the compensation assessor. 2. Pursuant to section 35 (1) of the old Act I make an award of costs. Catchwords: Act of violence- causation - as a direct result - compensable injury as an indirect result - weight of evidence - expert evidence- existing condition. Legislation Cited: Victims Support and Rehabilitation Act 1996 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 Cases Cited: Spruill v Victims Compensation Fund Corporation proceedings No 3159 of 2008 in the District Court of New South Wales (Truss J. Unreported) Maguire v VCFC [2002] NSWDC 7 Buckley v Victims Compensation Fund Corporation [2004] NSWSC 513 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Category: Principal judgment Parties: ARU (Applicant) Victims Compensation Fund Corporation (Respondent) Representation: McKells Solicitors (Applicant) M Ting (Respondent) File Number(s): 137028 (Decision under review- 144753) Publication restriction: Section 64 (1) (a) of the Civil and Administrative Tribunal Act: An order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal). reasons for decision 1ARU claimed compensation by way of an application lodged in August 2008 in which he alleged that he had been the victim of an act of violence when he was present inside his dwelling when firearms were discharged at the residence on 3 January 2003. The application was lodged in accordance with the provisions of the Victims Support and Rehabilitation Act 1996 (the old Act). 2ARU was approximately 31 months old (two years and seven months of age) at the time and allegedly suffered compensable injuries as a direct result of that incident. 3I note that ARU has been legally represented in this claim from 2008 by McKell's Solicitors. I believe that it is necessary to outline in a clear manner the history of ARU's victims compensation claim, and as necessary refer to the related claims. I take this view because of the approach that has been taken in respect of obtaining evidence in order to substantiate (or otherwise) the presence of a compensable injury. History of Proceedings 4On 21 August 2008 ARU submitted the Application to the Victims Compensation Tribunal ("the Tribunal"). In that application ARU (by his Tutor) declared that he was the primary victim of an act of violence on 3 January 2003. The claim was lodged some three and a half years out of time, apparently due to the fact that an earlier claim had been lodged on ARU's behalf concerning the same incident. The earlier claim by ARU was in his capacity as a secondary victim. It is evident from material on file that the earlier (within time) claim was dismissed due to the compensation assessor determining on the facts that ARU was not a secondary victim. It appears that from that decision the current claim was brought in ARU's capacity as a primary victim. 5On 10 October 2008 a compensation assessor as delegate of the Director Victims Services, considered the issue of leave to proceed out of time. The compensation assessor declined to give leave in accordance with section 26 of the old Act, and as a result leave was refused. The main basis of the decision to refuse leave was that ARU's claim was a matter in which there was a presumption against the giving of leave, as it was not a matter involving child abuse, sexual assault or domestic violence. VCT Appeal No 1 (Leave) 6ARU appealed to the Victims Compensation Tribunal (VCT) on 7 January 2009 in respect of the refusal to give leave to proceed outside of the limitation period. The then Chairperson of the Tribunal issued three interlocutory decisions in respect of the leave appeal, being 16 July 2009, 29 September 2009 and 22 October 2009 before determining the issue on 3 November 2011. The reason for these interlocutory decisions relates to the fact that there was significant ambiguity in what ARU was claiming, which incident, and in what capacity. It is relevant to note that members of ARU's immediate family had claims of differing magnitude of injury and related or similar facts before the VCT, and that some of these claims overlapped. 7The Chairperson gave ARU leave to proceed out of time in his decision of 3 November 2009. Significantly, the basis of the giving of leave addressed the matters outlined in section 26 (3) (d) of the old Act. The Chairperson in giving leave concluded that: The appellant's age, his health problems, the enormous problems faced by the whole family, and the failures of the solicitors originally instructed all provide good reason to do so. Determination on Merits by compensation assessor 8On 23 July 2010, the compensation assessor determined the substantive claim by ARU. The compensation assessor determined that ARU was not entitled to compensation and issued a detailed Notice of Determination under section 29 of the old Act. The Determination was (inter-alia) in the following terms: ......(In respect of act of violence) ..... Briefly, the applicant asserts that he was present when an alleged 'drive by shooting' was committed on his residence by a person or persons unknown to him. I note at the time of the incident occurring, the applicant was only 2 ½ years old or thereabouts. The material on file indicates that the applicant, his mother and sister were home in the evening when they heard a number of very loud bangs that appeared to come from outside the residence. The applicant's mother and sister have indicated the 'bangs' sounded like gunshots and the applicant's sister indicates she looked outside the lounge room window and saw 'sparks' flying. The sister of the applicant also saw a stationary car outside the residence. ........... After carefully considering all of the evidence on (ARU's) file and application, I am satisfied that he (ARU) was the victim of an act of violence... . ..... (In respect of compensable injury) Turning to the ARW reports and other reports and evidence on file, it is very clear to me that whilst the applicant may have suffered some psychological distress and harm associated with the 'drive by shooting' in January 2003, I am unable to accept that this specific incident resulted in the applicant suffering a chronic psychological / psychiatric disorder that is severely disabling. .... The evidence on the applicant's file indicates that he has suffered substantial psychological and learning difficulties in his young life. There is evidence that the applicant clings to his mother and has done so for a lengthy period of time. ..... However in spite of the difficulties that the applicant has faced, I am unable to find from Dr 'B''s reports that there is sufficient evidence, particularly given the background of past stressors and the environment the applicant lived in, to support (ARU) suffered a chronic psychological / psychiatric disorder that is severely disabling as a direct result of the act of violence he seeks compensation for. I am unable to arbitrarily apportion either what psychological effect the incident had on his overall psychological functioning (as per Clause 4 of Schedule 1 of the Act), as I am not satisfied that the specific aetiology of the applicant's disorder or difficulties stemmed from acts of violence committed upon him, or his family members. ... The application must therefore be dismissed. (Emphasis added). 9It is evident from the subsequent appeal decision of the VCT dated 30 March 2011, that notwithstanding the date of the compensation assessor's determination on 23 July 2010, the Notice of Determination serving the decision was dated some three weeks later on 13 August 2010. The subsequent appeal received on 9 November 2010 was therefore within the time provided for by section 36 (3) (a) of the old Act. First VCT Appeal on Merits (2nd appeal) 10A Notice of Appeal was lodged on 9 November 2010 (within time - see paragraph 9 above). The Grounds of Appeal and submissions in support addressed on the issue of ARU having sustained a Category 2 Psychological or Psychiatric Disorder as a direct result of the act of violence. 11It is relevant to note the following passage from the appeal decision by the Chairperson dated 30 March 2011: 6. There has been no application for leave on the appellant's behalf for the Tribunal to receive further evidence and material. No submissions have been received that special grounds exist. I note that attached to the file is a further report of Clinical Psychologist 'S.B.' dated 5 February 2010. Psychologist 'B's reports dated 12 January 2008 and 11 October 2008 were before the Assessor. I am not prepared to allow the submission of the further report of Dr 'B'. The appellant's mother (who conducts the appeal on behalf of her son) and her solicitors had over 7 years in which to obtain the evidence required to be placed before the Assessor for the Assessor's determination on 23 July 2010. 12The appeal was dismissed by the Tribunal primarily on the basis that the two reports believed to be in evidence (those of Dr 'S.B.' dated 12 January 2008 and the 'clarification' report of Dr 'S.B.' dated 11 October 2008) did not establish, to the Tribunal's satisfaction that ARU was suffering a chronic psychological or psychiatric disorder that was severely disabling as a direct result of the act of violence, or due to the act of violence aggravating, accelerating, exacerbating or deteriorating an existing condition. 13There was some discussion as to whether the level of disability was severe at the time of the assessment or whether it had only become severe in recent months (eg: 2011). Additionally there was some discussion of whether clause 4 of Schedule 1 of the old Act applied to any severely disabling chronic condition, but that discussion terminated with a view that any residual monetary amount would be below the threshold for compensation to be payable. 14I note that there was no reference in the Solicitors submissions on appeal, or particulars in support to either the existence of the 5 February 2010 further report of Dr 'S.B.' . Appeal to District Court on Question of Law. 15ARU's Solicitors lodged an appeal in the District Court of New South Wales on 1 July 2011 in accordance with the provisions of section 39 of the old Act. The Grounds of Appeal exclusively focused on the position that the VCT had failed to consider the report of Dr 'S.B.' dated 5 February 2010, where there was evidence to establish that the report had been tendered before the compensation assessor. As a result, the Tribunal was required to have regard to that evidence, and not consider it as fresh evidence requiring special grounds for receipt with leave. Additional evidence was filed with the Summons establishing that the VCT had held / received that report well in excess of the initial merits determination by the compensation assessor on 23 July 2010. 16During this time a number of other matters relating to ARU's family members victims compensation claims were appealed to the Tribunal and appeals in some instances were lodged in the District Court. This is relevant because it is clear that at all stages of the myriad claims, both ARU's Solicitors, the VCT Registry and separate Solicitors acting for other members of ARU's family, submitted, filed and received voluminous documents including copies, with sometimes inaccurate references, inaccurate capacities nominated, (eg: primary claim / secondary claim). In addition, some documents conflicted with covering correspondence, inaccurate references were submitted on occasion as well as unexplained multiple copies. All of these factors compounded to ensure that administratively, the various files were not presented in an ideal chronological and managed order. This I attribute to compounding problems not solely attributable to any individual entity or party. 17The record shows that the District Court Appeal was settled by way of consent orders entered in September 2011. The significant issue being that the decision of the VCT dated 30 March 2011 was set aside and the matter was remitted to the Tribunal to be considered again having regard to the ARW Report of 'S.B.' dated 5 February 2010. 18On my examination of the papers on ARU's file, I managed with some difficulty to locate the original report of Dr 'S.B.' dated 5 February 2010. That report has both an original ARW stamp in red and an original Victims Services 'Received Stamp' in black ink received '10 FEB 2010'. Whilst the report was filed under the medical tab, I note that numerous reports of a medical nature were filed under the correspondence and other tabs. I refer to my comments and observations above at paragraph 16. Second VCT Appeal on Merits (4th appeal). 19The remitted appeal was listed for call-over on 28 February 2012. In the following weeks ARU's Solicitors filed a copy of the affidavit of ARU's tutor concerning when the VCT acquired possession of the February 2010 report of Dr 'S.B.' In April 2012 ARU's Solicitors filed fresh Grounds of Appeal which bearing in mind the consent order of the District Court, focused solely on the issue of the 5 February 2010 report of Dr 'S.B.'. This is in stark contrast to the original grounds referred to at paragraph 14 (above). 20The Solicitors sought that this appeal be adjourned as they were awaiting further reports in another family member's claim and desired for all outstanding claims concerning ARU's family to be determined together. 21On 5 September 2012 the Chairperson of the VCT - (Magistrate Lulham) commenced to consider the appeal. He issued an interlocutory decision to the Solicitors highlighting his concern with the apparent conflict in aspects of Dr 'S.B.'s three reports in evidence. For that reason in the decision he directed that ARU undergo a further 'medical examination' in accordance with section 28 of the old Act. A further interlocutory decision issued on 2 October 2012 whereby the medical expert nominated by the Tribunal had agreed to accept the instructions. ARU's Solicitors were invited to forward any material that they deemed relevant to the VCT appointed expert, and an invitation to forward any such fresh material as admissible evidence to the Tribunal. 22ARU's Solicitors responded on 25 October 2012 agreeing to the proposal and as a result submitted a further report of Dr 'S.B.' dated 3 October 2012. There was discussion between the experts, the appellant and the Tribunal that the two experts may be required to give evidence in respect of their findings at an oral hearing. A further interlocutory decision issued on 31 October 2012 confirming what material had been referred to the VCT appointed expert. 23On 17 January 2013 the VCT appointed expert provided a report to the Tribunal. A copy was provided to ARU's Solicitors and they provided submissions in response on 1 February 2013. Essentially their submissions were that the report contained supposition and matters of conjecture. They submitted that the report of the treating psychologist Dr 'S.B.' should be preferred over the report of the VCT appointed expert. 24On 27 March 2013 the Chairperson of the VCT issued a further interlocutory decision concerning his view that the most appropriate way for the matter to proceed was by way of a hearing conducted in accordance with section 38 (2) of the old Act, and invited submissions on this point having regard to the comments raised about each expert giving evidence in respect of their reports. On 15 April 2013 submissions on this point were received. A clarification submission was received on 19 April 2014. Application of the old Act 25On 7/05/2013 the New South Wales Government introduced legislation that changed the form of support provided to victims of violent crime in New South Wales. The Victims Support and Rehabilitation Act 1996 ("the old Act") was repealed and replaced by the Victims Rights and Support Act 2013 ("the new Act"). The legislation came into force on 4 June 2013 and the Tribunal was then abolished and, by operation of Clause 14 of Schedule 2 of the new Act, appeals to it were taken to have been commenced before the Administrative Decisions Tribunal ("ADT"). 26On 27 June 2013 Magistrate Lulham, now sitting as a Deputy President of the ADT, wrote a final interlocutory decision whereby he set out to ARU's Solicitors the legislative changes as they impacted on ARU's claim. Additionally he proposed to hear the matter (on the papers) in the week prior to 12 July 2013 if the appellant agreed, or otherwise hear the matter a couple of months later. ARU's Solicitors responded that they wished for the matter to be adjourned (due to the need to address the legislative changes) until after August 2013. The appeal was then notionally set down for hearing on the papers after 9 September 2013. 27However, also on 16/08/2013, Clause 16 of the Victims Rights and Support Regulation 2013 ("the Regulation") commenced operation. This provided that despite the repeal of section 36 of the repealed Act, if a notice of determination of a compensation assessor was served before the repeal and an appeal could have been duly made in accordance with section 36 (3) (a) if it were still in force, an appeal may be made after 3 June 2013 as if section 36 (other than section 36 (2) and (3) (b)) were still in force. 28However, the ADT was abolished from the date of commencement of the Civil and Administrative Tribunal Act 2013 No 2 and Clause 7(1) of Schedule 1 Savings, transitional and other proceedings, provides: All unheard proceedings in an existing tribunal are taken, on and from the establishment day, to have been duly commenced in NCAT and may be heard and determined instead by NCAT. 29Further, Clause 7(3) provides: For the purposes of subclauses (1) and (2): (a) NCAT has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and (b) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply. Conduct of the matter before NCAT 30On 18 February 2014 the Divisional Registrar of the Administrative and Equal Opportunity Division of NCAT wrote to the parties. That correspondence advised that due to the long history of the matter (and the related secondary victim claims) before the VCT, the District Court, and the ADT, as the matters were now to be determined in the Administrative and Equal Opportunity Division of NCAT, then they would be listed for case management and further direction before a senior Member of NCAT. 31On 21 March 2014 Senior Member Molony presided at the Directions Hearing. The following Directions were made: 1. The Tribunal will write to Dr 'J.M.' (the VCT appointed expert) with respect to his report to Victims Services dated 17 January 2013. The Tribunal will note that the report was written without the benefit of Dr 'J.M.' seeing page 4 of 'S.B.'s report of 5 February 2010. Using its power to inform itself as it thinks fit the Tribunal will provide Dr 'J.M.' with a full copy of 'S.B.'s report and ask whether seeing the full report causes Dr 'J.M.' to change his opinion, and, if so, how? A copy of any response received from Dr 'J.M.' is to be provided to the Applicant by the Registrar. 2. Victims Services to have uplift access to the Victims Services file 144753 upon the usual undertaking for a period of one week for the purpose of organising the file and removing from it materials associated with the defence of the District Court Appeal. 3. Applicant then to have access to victims Services file 144753. 4. Applicant to file and serve any further material he seeks to rely on together with submissions concerning why leave to receive fresh material should be granted, on or before 21 April 2013. 5. Matter then to be determined on the papers. 32A reply was received from Dr 'J.M.' (to the corro referred to in Direction (1)), on 25 June 2014, indicating that the contents of the 'omitted' page of 'S.B.'s report would not cause him to change his opinion. The matter was then referred to me in August 2014 to determine. 33As a Senior Member in the Administrative & Equal Opportunity Division of the NCAT, I have been directed by the President of the NCAT to hear the appeal and, in doing so, to exercise all the functions that were exercised by the Tribunal immediately before the commencement of the new Act. 34The matter came before me for Directions on 26 August 2014. The matter was listed because on review of the papers I was concerned that as it was approximately three and a half years since the last material decision had been made in the claim (the merits appeal to the VCT on 30 March 2011), any outstanding procedural or other relevant issues could be clarified. Representatives of both ARU and the Fund appeared. At those directions it became clear what outstanding issues remained to be determined (and that any secondary claims would follow the determination of this claim). It was also clear that neither party had a copy of the most recent report by Dr 'J.M.' dated 14 March 2014. Copies were provided to the parties, along with the other reports already in evidence, and final submissions (if any) were sought by 23 September 2014. On 23 September 2014 after receipt of further submissions of the appellant, the matter was reserved to be determined on the papers. Receipt of Evidence. 35I have read and considered the whole of the evidence before both the compensation assessor, and the Magistrate / Tribunal Member. I have taken it all into account even though I may not refer specifically to all the evidence and material in these reasons. 36Due to the lengthy history of the matter, and the various administrative problems concerning the preparation of ARU's claim, and some confusion as to the receipt of certain material, I accept that all material that was before the Magistrate / Tribunal Member at the time of the section 28 referral in 2012, as well as the material submitted as part of that referral and as a result of that referral, is in evidence before the Tribunal. Act of violence 37Section 29(2) of the old Act provides that in order to make an award of compensation the Tribunal must be satisfied that: ... 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. 38In essence the compensation assessor found that ARU was a primary victim of an Act of violence in accordance with the provisions of section 5 (1) of the old Act. This position was in effect affirmed by the VCT on 30 March 2011. Having considered all of the evidence and other material on file, I make that finding that the elements of section 5 (1) are made out. I also make a finding that there are no relevant section 24 or section 30 issues that would impact on ARU's claim. Has ARU sustained a compensable injury? 39The compass of this appeal concerns whether ARU has sustained a compensable injury. As outlined earlier, that issue can be further summarised as whether to the Tribunal's satisfaction having regard to the provisions of the old Act, ARU was suffering a chronic psychological or psychiatric disorder that was severely disabling as a direct result of the act of violence, or due to the act of violence aggravating, accelerating, exacerbating or deteriorating an existing condition, by the act of violence. The evidence 40The following reports have been submitted and accepted into evidence by various decision makers over the course of these proceedings: * Reports of Dr 'S.B.' Clinical Psychologist / ARW dated: 12 January 2008, 11 October 2008, 5 February 2010 and 30 November 2013. * Reports of Dr 'J.M.' Clinical Psychologist / Tribunal appointed expert dated: 17 January 2013 and 14 March 2014. * Psychological Assessment Report by Clinical psychologists 'K.P.', 'S.L.' and 'A. R-H.' dated 12 November 2005 from UNSW. * Speech pathology Report dated 7 December 2003. * Copies of student absence print out reports - school 2007-2008. * Child and Adolescent Psychiatrist Report (undated but provenance in months prior to December 2007) * Speech pathology reports dated 19 April 2009 and 26 August 2009. * Rivendell Child Adolescent and Family mental Health services Report dated 27 November 2011. Other material is also in evidence. 41I note that only the reports of Dr 'S.B.' are captured by the provisions of clause 5 subclause (1A) of Schedule 1 of the old Act in that: 5 Psychological or psychiatric disorder (1) For the purposes 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 qualified persons designated by the Director. (1A) 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 subclause (1). 42It seems appropriate bearing in mind that the reports of Dr 'J.M.' have been commissioned by the Tribunal under the provisions of section 28 of the old Act, and the basis for their commissioning, and that Dr 'J.M.' is also on the list of qualified persons referred to under Clause 5 (1), that they too have the same status under clause 5 (1A) for the purpose of determining the matter. Section 28 of the old Act provides that: 28 Medical examinations (1) A compensation assessor may require an applicant for statutory compensation to undergo an examination (not being an examination that is unreasonable, unnecessarily repetitious or dangerous): (a) by a duly qualified medical practitioner, or duly qualified psychologist, specified by the assessor, or (b) by a duly qualified medical practitioner or duly qualified psychologist belonging to a class of medical practitioners, or class of psychologists, specified by the assessor. (2) The costs of any such examination are to be paid for out of the Compensation Fund. The 12 January 2008 Report 43Dr 'S.B.' opines that ARU suffers Separation Anxiety with comorbid Global Learning Difficulties, confirmed by psychometric assessment and affirmed by his school counsellor. He further opines that ARU's speech problems were the result of the impact on the family unit of matters pertaining to his father's personal and professional situation, as matters deteriorated in respect to a legal inquiry he was assisting. The understandable conditions developed by both parents, who were also highly anxious, vigilant, wary and pre-occupied with their fears impacted on their ability to parent, and this in turn impacted on the development of the children (including ARU). 44Dr 'S.B.' further opines that ARU has been subjected to this 'negative influence' since birth but it was 'made worse' when his mother was subjected to a drive by shooting (the act of violence upon which this claim is based), and a marked regression in ARU's state following the attempted abduction of his mother in June 2006 (three and a half years after the nominated act of violence). The ARW concludes that in effect the psychological conditions and general dysfunctional operating of both parents have impacted on the functioning of the children (including ARU). The actual opinion states that: The significant events his parents have been subject to, appear to be ongoing and has led to a dynamic of PTSD within the family unit, absorbed by ARU and taking the form of significant Separation Anxiety and oppositional behaviour. ARU was approximately seven and half years old at the time of this assessment. The 11 October 2008 Report. 45This report sought to clarify an aspect of the facts relating to the act of violence. In the earlier report Dr 'S.B.' erroneously reported that 'ARU' was not present when the drive by shooting occurred. The ARW inquired directly of ARU about the shooting to which he reported that 'He was vague and responded, "I don't know". The 5 February 2010 Report. 46ARU was approximately 9 years and nine months old at the time of this further assessment. The ARW (Dr 'S.B.') reviews the other material referred to in paragraph 38 above (other than the reports of Dr 'J.M.') prior to reassessing ARU. Ongoing issues with separation anxiety, school attendance refusal, and resultant global learning difficulties were both observed and reported on by Dr 'S.B.' who was initially commissioned to provide the ARW report. 47On the crucial issue of the causal effect of ARU's problems, Dr 'S.B.' provides the following opinion at page 5 of his report: I am of the opinion that on the balance of probabilities, given (ARU) was of such a young age when the drive by shooting occurred, its impact on the most important developmental task of emotional growth and psychological development, i.e. was severe. The relative contribution of the drive by shooting which occurred on 3 January 2003 to (ARU's) current level of disability is at least 85% and the remainder contributed to by any subsequent events which impacted on the family and continued the trauma and fear. 48Dr 'S.B.' further opines that ARW's mother stated that: 'I hid my children near the cupboard, when I was trying to phone police'. .... 'Since that time, (ARU's mother says of ARU), "he would always say he wanted to stay with me, so no-one would hurt me, he would always say people were going to shoot us".' .... '(ARU's mother) says her son was developing very well up until the time of the shooting. She believes her son's ability to trust was severely compromised from that time'. At page 4 of the report in Dr 'S.B.'s opinion the incident would have impacted on ARU's level of basic trust, and in turn contributed to his behavioural disorder, i.e. chronic Separation Anxiety Disorder, with comorbid learning difficulties. 49It is interesting to note that this opinion is significantly different / advanced on the opinion that Dr 'S.B. ' was commissioned to provide in 2008 for the purposes of establishing whether ARU had a psychological or psychiatric disorder that was both chronic and severely disabling as a direct result of the act of violence. ( Emphasis added.) The main changes seem to come about due to the continued behavioural problems which have not abated in the intervening two years between reports, and the consideration of the other material of a medical nature provided by ARU's mother. 50When considering the three reports in their entirety, it is difficult to ascertain with any degree of certainty as the finder of fact, how the report writer reached such different conclusions bearing in mind that parameters of his task were clearly set at the outset when he was commissioned by the Director of Victims Services. The 17 January 2013 Report of Dr 'J.M.' 51Dr 'J.M.''s report is based on a review of the pre-existing medical material, and an application of his own insights, observations and professional experience to both the approach taken , and the conclusions reached by the authors of those reports. Significantly his observations focus on the approach, results and findings by Dr 'S.B.'. There are some factual errors which skews some of the assumptions and findings in the report of Dr 'J.M.' Those matters relate to a misunderstanding as to the duration of a childhood hearing problem, and it's resultant casual effect for certain learning and behavioural problems. However, putting that matter to one side, the majority of the assessment is factually based, and presents as a valid alternative opinion as to the reasons for ARU's difficulties. 52There has been a significant amount of confusion and comment by the parties as to which documents and other material had been provided to Dr 'J.M.' in order for him to conduct his medical review. In addition it appears that a crucial page of Dr 'S.B.'s report of 5 February 2010 was omitted. In this regard further material was provided to Dr 'J.M.' over the later part of 2013. A further report was provided on 14 March 2014. Following receipt of that report Dr 'J.M.' was asked by the Registrar on behalf of Senior Member Molony, whether the contents of the missing (page 4 of the 5 February 2010) portion of the report would cause him to change his opinion. Dr 'J.M.' advised on 24 June 2014 that the contents do not cause him to change his overall opinion in the matter. ARU's Submissions. 53Both ARU's legal representatives (Solicitor and Counsel) and his tutor (his mother), have provided detailed submissions at various times throughout the somewhat protracted course of these proceedings. The most recent submissions go to preferring the evidence of Dr 'S.B.' over the evidence of Dr 'J.M.'. In part this is based upon the fact that there were some initially incorrect assumptions by Dr 'J.M.' and the fact that the relevant material was not all initially before him. (See comments at paragraphs 51 and 52 above). Further there were observations that aspects of Dr 'J.M.'s report was contradictory and applied a rigour to the other reports which he did not display in his own report. However, in addition they noted that Dr 'J.M.' had conducted a papers based review of the material and had not seen ARU for any of the medical assessment review. This was in contrast to Dr 'S.B.' who had seen ARU on a number of occasions over the period 2008 to 2013 in respect of this claim, and was both providing medical assessments and treating other members of the family over the intervening years. 54I refer to my comments at paragraphs 35 and 36 above. All of the evidence and material has been considered, but as the finder of fact, I may approach the evidence in a similar manner to the earlier decision makers, but unless I fall into an error of law, I am open to make my own findings of fact as to the import and meaning of that evidence. Whilst I might prefer the same evidence as one party over another, that does not mean that evidence necessary leads me to the same conclusion as that submitted by a party. Consideration 55In my view the real issue to be considered in this case is the meaning of the statutory phrase 'as a direct result' as it appears in section 7 of the old Act. 7 Who is a primary victim? (1) 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. 56Putting the reports of Dr 'J.M.' to one side and focusing solely on the reports of Dr 'S.B.' in my view the evidence is somewhat equivocal on this issue. The report of 12 January 2008 as outlined at paragraphs 43 and 44 (above), Dr 'S.B.' opines that ARU suffers Separation Anxiety with comorbid Global Learning Difficulties, confirmed by psychometric assessment and affirmed by his school counsellor. He further opines that ARU's speech problems were the result of the impact on the family unit of matters pertaining to his father's personal and professional situation, as matters deteriorated in respect to a legal inquiry he was assisting. The understandable conditions developed by both parents, who were also highly anxious, vigilant, wary and pre-occupied with their fears impacted on their ability to parent, and this in turn impacted on the development of the children (including ARU). 57Additionally Dr 'S.B.' (the ARW) further reports that: ARU has been subjected to this 'negative influence' since birth but it was 'made worse' when his mother was subjected to a drive by shooting (the act of violence upon which this claim is based), and a marked regression in ARU's state following the attempted abduction of his mother in June 2006 (three and a half years after the nominated act of violence). The ARW concludes that in effect the psychological conditions and general dysfunctional operating of both parents have impacted on the functioning of the children (including ARU). The actual opinion states that: The significant events his parents have been subject to. Appear to be ongoing and has led to a dynamic of PTSD within the family unit, absorbed by ARU and taking the form of significant Separation Anxiety and oppositional behaviour. 58Contrasted with this professional opinion from early 2008 is the supplementary report of February 2010. The 2010 report differs markedly in both its approach and some of the conclusions reached. These changes seem significantly based on the consideration of further material (some of which was available at the time of the earlier assessment but may have not been provided on behalf of ARU), further observations of ARU, and the taking of a further history of ARU from his mother. I accept that approximately 40% of the available material considered by Dr 'S.B.' in his February 2010 assessment post- dates January 2008. 59ARU's mother provides an observation that ARU's trust 'was developing very well up to the time' (of the act of violence) . 'She believes her son's ability to trust was severely compromised from that time'. (ARW Report 5 February 2010 at page 4). However the ARW refers to changes in ARU arising subsequent to the act of violence. 'As mentioned in my report dated 12 January 2008, subsequent events added to the initial problem. That is, as a result of events which impacted on the family as described in my report dated 12 January 2008, (ARU's) lack of trust was reinforced such that he has not been able to develop emotionally, psychologically, or in a learning context.' (ARW Report 5 February 2010 at page 5). (emphasis added). 60There is a clear contradiction in the assertion or implication by the ARW that only subsequent events contributed to the injury. When reading the 2010 report the feeling is that the act of violence was the cause of the behavioural problems / disorders which were added to by subsequent stressors. However the 2008 report paints the picture that ARU's problems began with the deterioration of the functioning of the family unit (especially his father's behaviours) from late 2001. I note that the act of violence occurred in 2003. 61However, in the earlier report from 12 January 2008, the ARW reports that: '(ARU's) early childhood / infancy was satisfactory until (ARU's) father was involved in the (XXX) inquiry into (YYYYY) Council in late 2001, which brought significant changes into the family life.' .... 'As a result of his father's acquired psychiatric state (which remains to this day), (ARU) developed delayed speech difficulties and was mumbling at aged 3. He displayed significant separation anxiety from a young age.' ..... 'There was marked worsening separation anxiety following the drive by shooting, "it's still a problem to this day".' (ARW Report 12 January 2008 at page 2). 62The case of Spruill v Victims Compensation Fund Corporation proceedings No 3159 of 2008 in the District Court of New South Wales (Truss J. Unreported) provides some assistance with the issue of causation, as it applies to the somewhat competing reports of the ARW. At paragraph 28 Her Honour states: 23. The question of causation was also considered in Maguire v VCFC [2002] NSWDC 7 where Judge Finnane was required to address the issue of subsequent injury to an applicant for statutory compensation. The appellant relied on passages on page 6 where His Honour said: 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. 28. The appellant's case is that the Chairperson fell into error when he said: It is clear therefore that the appellant was not severely disabled as a direct result of that act of violence on 20 February 2004... Because what he was actually saying ... was not severely disabled solely because of that act of violence and that is not the proper test. 29. If this argument were to be taken to its logical conclusion, once a claimant has established a compensable injury (category 2 psychological / psychiatric disorder) there could be an entitlement to compensation in respect of every act of violence which may have contributed to it, irrespective of its severity and that the contribution of any unrelated subsequent events ought be ignored. 30. In his supplementary report Mr Rolfe acknowledged the cumulative nature of trauma and the fact that a traumatic experience, especially where post-traumatic stress disorder symptoms are established, renders the person more liable to the impact of subsequent trauma which typically maintain and exacerbate post-traumatic stress disorder symptoms. 31. Mr Rolfe explained why he considered the initial assault in February 2004 to have been the greater contributor to the appellant's condition. However, what he does not say is that the appellant is severely disabled as a consequence of his initial assault. There is relevantly only one psychological / psychiatric disorder, which, according to his opinion, was contributed to and exacerbated by the subsequent events. 32. For these reasons I am not persuaded that the Chairperson erred in law. .. 63Whilst this example is not directly on point with some of the opinions given in the February 2010 ARW Report, it does illustrate matters relating to how to approach compensable injury when there are competing stressors. The valid test remains that the finder of fact needs to satisfy themselves as to whether the injury received was as a direct result of the act of violence. 64I find having examined all of the evidence, that ARU's psychological injuries arose predominantly not as a direct result of the act of violence, but as an indirect result of other acts of violence for which ARU has not claimed and is in all probability, not entitled to claim. That is, the weight of cogent evidence is that previous and subsequent events (which could be termed acts of violence against other members of ARU's immediate family), has been the significant contributor to his current psychological / psychiatric state. Coupled with this are other life experiences (including the diagnosed conditions themselves) which have impacted on ARU, and will continue to impact on ARU. The opinion at the conclusion of the 2010 ARW report that 'in all likelihood, (ARU) will remain with chronic psychological and psychiatric symptoms well into adulthood, which will impact on his ability to learn, and limit his ability to train vocationally or be self- sufficient and independent.' (ARW Report 5 February 2010 page 5), illustrates how such symptoms can ordinarily magnify for environmental and other reasons consequential on the deleterious situation such an individual / sufferer finds themselves in. 65On the basis of the 2010 ARW report when contrasted with the 2008 report, I am unable to agree with the finding that appears at the second last paragraph of the 2010 report. I am of the opinion that on the balance of probabilities, given (ARU) was of such a young age when the drive by shooting occurred, its impact on the most important developmental task of emotional growth and psychological development, i.e. was severe. The relative contribution of the drive by shooting which occurred on 3 January 2003 to (ARU's) current level of disability is at least 85% and the remainder contributed to by any subsequent events which impacted on the family and continued the trauma and fear. 66Based on contrasting the two reports, I am unable to ascertain how the report writer can conclude that the relative contribution of the incident to ARU's current level of disability is at least 85%. The wording of the entire report does not substantiate such a conclusion on any thorough assessment, which would allow me to reach the conclusion that the finder of fact is tasked with determining. 67The case of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 illustrates how expert evidence must be considered by Courts and Tribunals. At paragraph 85 Heydon J states: In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41]). (emphasis added). 68Whilst there is some evidence that the act of violence had an impact on ARU's functioning, I am not satisfied on the evidence before me that the impact is the major or significant basis for the claimed compensable injury. 69The case of Buckley v Victims Compensation Fund Corporation (2004) NSWSC 513 at [34], per James J, is authority for the proposition that it is a matter for the Assessor or Tribunal Member to determine whether the "affectation" and "incapacitation" caused by the act of violence amount to a condition that is overall within the meaning of the statutory compound phrase "severely disabling." In my view, the magistrate's findings of fact clearly amounted to findings that the applicant was seriously affected by the psychological or psychiatric disorder the magistrate found to exist and was incapacitated to a substantial degree in his social, occupational and sexual life. But that does not conclude the matter. It remained for the magistrate to determine whether that serious affectation and substantial incapacitation amounted to a condition that was, overall, within the meaning, as he found it to be, of the statutory compound phrase "severely disabling". 70Whilst the issue of ARU's general level of disability is not in dispute, the issue of whether such a compensable injury arose as a direct result of the act of violence, or due to a matter referred to in Clause 4 of Schedule 1 of the Act, is a finding of fact for the fact finder to make on the available evidence. In this regard I defer to my earlier findings and observations at paragraph 64 above. 71I have carefully considered the provisions of clause 4 of Schedule 1 of the old Act. 4 Reduction of standard amount because of existing condition 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. 72Whilst there is evidence of an existing condition as referred to in the 2008 Report, in my view whilst the evidence indicates that the act of violence had an impact which may have aggravated exacerbated or accelerated that condition, other significant post act of violence factors (as detailed in the material above) contributed to ARU's development of his condition. Additionally, there is significant evidence that those matters were all as an indirect result, rather than as a direct result. 73I have had regard to the ARU's Solicitors submissions when the matter was last before the Tribunal for a material decision. I see no evidence of other material which would cause me to take a different approach than that of the Magistrate / Tribunal Member at paragraphs 30, 31 and 32 of his decision dated 30 March 2011. 74I make the following orders: (1)The application is dismissed. (2)I make an award of costs to ARU in the sum of $500.00 (+GST if applicable) ********** 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: 24 November 2014