ARD v Victims Compensation Fund Corporation [2014] NSWCATAD 157

ARD v Victims Compensation Fund Corporation [2014] NSWCATAD 157

On the evidence, including ARD's sworn and deposed accounts, medical reports and admitted clinical notes, the Tribunal was satisfied on the balance of probabilities that ARD was the victim of an act of violence under section 5 of the Victims Support and Rehabilitation Act 1996 in respect of sexual assaults perpetrated by JF and that she sustained psychological harm. The Tribunal found the claim attracted a Category 3 sexual assault award, but because ARD had not reported these specific allegations to police and section 30 considerations applied, the award was reduced by 40%. Section 11 required the Tribunal to make the more beneficial election rather than separately award for scarring.

Jurisdiction
Australia
Judgment Date
29 September 2014
Procedural Posture
Appeal From a Compensation Assessor's Determination of a Victims Compensation Claim / Decision After Oral Hearing in the Administrative and Equal Opportunity Division of NCAT
Outcome
Appeal allowed; compensation assessor's decision set aside; statutory compensation and costs awarded.
Legal Topics
['statutory Compensation' 'act of Violence' 'sexual Assault' 'series of Related Acts' 'reporting to Police' 'reduction of Compensation' 'offence Based Injuries' 'costs' 'oral Hearing' 'fresh Evidence']
['victims Compensation' 'administrative Law'] ['statutory Compensation' 'act of Violence' 'sexual Assault' 'series of Related Acts' 'reporting to Police' 'reduction of Compensation' 'offence Based Injuries' 'costs' 'oral Hearing' 'fresh Evidence']

Case Brief

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Procedural Posture

Appeal From a Compensation Assessor's Determination of a Victims Compensation Claim / Decision After Oral Hearing in the Administrative and Equal Opportunity Division of NCAT

Legal Issues

  1. 1 ['Whether the compensation assessor erred in finding that ARD had not established an act of violence.' 'Whether the alleged sexual assaults by JF constituted an act of violence or series of related acts under section 5 of the Victims Support and Rehabilitation Act 1996.' 'Whether ARD sustained a compensable injury, including psychological harm, as a result of the alleged assaults.' 'Whether the absence of a police report within a reasonable time warranted reduction of compensation under section 30 of the Victims Support and Rehabilitation Act 1996.' 'What category and amount of statutory compensation and costs should be awarded.']

Ratio Decidendi

On the evidence, including ARD's sworn and deposed accounts, medical reports and admitted clinical notes, the Tribunal was satisfied on the balance of probabilities that ARD was the victim of an act of violence under section 5 of the Victims Support and Rehabilitation Act 1996 in respect of sexual assaults perpetrated by JF and that she sustained psychological harm. The Tribunal found the claim attracted a Category 3 sexual assault award, but because ARD had not reported these specific allegations to police and section 30 considerations applied, the award was reduced by 40%. Section 11 required the Tribunal to make the more beneficial election rather than separately award for scarring.

Court Disposition

Appeal allowed; compensation assessor's decision set aside; statutory compensation and costs awarded.

Orders

  • ['Pursuant to section 38 (5) of the old Act, the decision of the compensation assessor is set aside.' 'An award of statutory compensation is made for Category 3 Sexual Assault in the sum of $25,000.00, less $10,000.00 being 40% pursuant to section 30, subtotal $15,000.00, less $750.00 pursuant to section 19A, with...