BDD v Victims Compensation Fund Corporation (No 2) [2014] NSWCATAD 199

BDD v Victims Compensation Fund Corporation (No 2) [2014] NSWCATAD 199

BDD was a victim of an act of violence and suffered actual physical bodily harm in the form of permanent tinnitus as a direct result. Although leave to receive fresh evidence was refused because the additional material merely amplified evidence already before the assessor and was not the basis for a different outcome, the evidence before the assessor, including that the constant permanent tinnitus in both ears was extremely distressing and BDD's submissions about its day-to-day impact, established that the appropriate compensable injury was ear: tinnitus- permanent (very serious), not permanent moderate tinnitus. The assessor's decision was therefore set aside and a higher award made.

Jurisdiction
Australia
Judgment Date
19 November 2014
Procedural Posture
Victims Compensation Appeal From a Compensation Assessor's Determination / Decision on the Papers
Outcome
The decision of the compensation assessor was set aside and an award of statutory compensation was made for ear: tinnitus- permanent (very serious), together with actual expenses.
Legal Topics
['compensable Injury' 'tinnitus' 'severity of Injury' 'fresh Evidence on Appeal' 'sufficiency of Reasons']
['administrative Law' 'victims Compensation'] ['compensable Injury' 'tinnitus' 'severity of Injury' 'fresh Evidence on Appeal' 'sufficiency of Reasons']

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Procedural Posture

Victims Compensation Appeal From a Compensation Assessor's Determination / Decision on the Papers

Legal Issues

  1. 1 ['Whether BDD was a victim of an act of violence and eligible for statutory compensation under the old Act.' 'Whether BDD sustained a compensable injury of tinnitus as a direct result of the act of violence.' 'Whether further evidence should be received on appeal under section 38(3) of the old Act.' 'Whether the compensable injury should be assessed as permanent moderate tinnitus or permanent very serious tinnitus.']

Ratio Decidendi

BDD was a victim of an act of violence and suffered actual physical bodily harm in the form of permanent tinnitus as a direct result. Although leave to receive fresh evidence was refused because the additional material merely amplified evidence already before the assessor and was not the basis for a different outcome, the evidence before the assessor, including that the constant permanent tinnitus in both ears was extremely distressing and BDD's submissions about its day-to-day impact, established that the appropriate compensable injury was ear: tinnitus- permanent (very serious), not permanent moderate tinnitus. The assessor's decision was therefore set aside and a higher award made.

Court Disposition

The decision of the compensation assessor was set aside and an award of statutory compensation was made for ear: tinnitus- permanent (very serious), together with actual expenses.

Orders

  • ['Pursuant to section 38 (5) (a) of the old Act, the decision of the compensation assessor in respect of the section 17 award of statutory compensation was set aside.' 'An award in the sum of $36,000.00 was made for the compensable injury of ear: tinnitus- permanent (very serious).' 'An award for $214.85 actual...