VICTIMS ELIGIBLE FOR STATUTORY COMPENSATION

The following persons are eligible for statutory compensation:

• a Primary Victim of an act of violence;
• a Secondary Victim of an act of violence;
• a Family Victim of an act of violence.

Primary Victim

A Primary Victim of an act of violence is a person who receives a compensible injury, or dies, as a direct result of that act.

A Primary Victim of an act of violence extends to a person who receives a compensible injury, or dies, as a direct result of:

• trying to prevent another person from committing that act; or
• trying to help or rescue another person against whom that act is being committed or has just been committed; or
• trying to arrest another person who is committing, or has just committed, that act.

Secondary Victim

A Secondary Victim of an act of violence is a person that received a compensible injury as a direct result of witnessing the act of violence that resulted in the compensible injury to, or death of, the Primary Victim of that act.

A Secondary Victim of an act of violence extends to a person who receives a compensible injury as a direct result of subsequently becoming aware of the act of violence that resulted in the compensible injury to, or death of, the Primary Victim of that act, but only if:

• the person is the parent or guardian of the Primary Victim of that act; and
• the Primary Victim was under the age of eighteen (18) years at the time of the act; and
• the person did not commit that act.

The person is taken, for the purposes of this act, to have witnessed the act of violence.

Family Victim

A Family Victim of an act of violence is a person who is, at the time that the act is committed, a member of the immediate family of a Primary Victim of that act who has died as a direct result of that act. It is immaterial whether or not the person suffers a compensible injury in connection with the act of violence or death.

A member of the immediate family of a Primary Victim is:

• the Victim's spouse; or
• the Victim's de facto spouse, or partner of the same sex, who has cohabited with the Victim for at least two (2) years; or
• a parent, guardian or step-parent of the Victim; or
• a child or step-child of the Victim or some other child of whom the Victim is a guardian; or
• a brother, sister, step-brother or step-sister of the Victim.

ELEMENTS OF STATUTORY COMPENSATION

Once it is established that you are an eligible victim you must then go on to establish the elements of victims compensation. Those elements are:

• Act of violence against the Victim;
• Compensible injury.

Act of violence against the victim

An act of violence means an act or series of related acts, whether committed by one or more persons:

• it has apparently occurred in the course of the commission of an offence;
• it has involved violent conduct against one or more persons; and
• it has resulted in the injury or death to one or more of those persons.

Violent conduct extends to sexual assault and apprehended domestic violence.

An act is related to another act if both of the acts were committed against the same person and, in the opinion of the Tribunal or Compensation Assessor, both of the acts were committed at approximately the same time or were, for any other reason, related to each other. However, an act is not related to an early act in respect of which an award of statutory compensation has been made if it occurs after the award was made. The purposes of the act, a series of related acts, whether committed by one or more persons, constitute a single act of violence.

To establish this first element you must:

• report the matter to the Police; and
• must fully co-operate with the Police.

Unless you satisfy (a) or (b) you will disqualify yourself from any statutory compensation.

Compensable injury

A compensable injury defined in Schedule 1 of the Act.

COMPENSATION THAT IS PAYABLE

Compensation payable to Primary Victims

The statutory compensation for which a Primary Victim of an act of violence is eligible comprises of compensation for compensible injuries received by the victim as a direct result of the act of violence and compensation for financial loss incurred by the victim as a direct result of any such compensible injury.

A Primary Victim who dies ceases to be eligible for statutory compensation. Any pending Application for Compensation made by or on behalf of a Primary Victim does not survive the death of the Primary Victim.

Compensation payable to Secondary Victims

The statutory compensation for which all Family Victims are together eligible is $50,000.00

If there are two (2) or more Family Victims of an act of violence the Victims are eligible to an equal share of the amount of $50,000.00. Note Victims who are not dependent family members at the time of the act of violence are not eligible for any amount of compensation if there are also dependent family members at the time.

A Family Victim is a dependent family member if the person was wholly or mainly dependent on the Primary Victim's income at the relevant time or the person is a child of the Primary Victim born after the death of the victim where, had the child been born in the victim's lifetime, the child would have been a dependent family member of the victim by virtue of the fact that he/she would be wholly or mainly dependent on the Primary Victim's income.

Compensation for financial loss

Compensation for financial loss is compensation for the following:

• actual expenses;
• actual loss of earnings;
• loss of personal effects (in a case of Primary Victim only).

Compensation for actual loss of earnings is to be calculated at the rate of weekly payment of compensation payable under the Workers Compensation Act 1987 after the first twenty six (26) weeks of incapacity within the meaning of that Act.

The maximum amount of compensation for financial loss to which a person is entitled in respect of an act of violence is $10,000.00.

Maximum amount of compensation

The maximum amount of statutory compensation payable to a single person in respect to an act of violence is $50,000.00.

Threshold amount of compensation

Statutory compensation is not payable to a single person unless the total amount of compensation payable to that person is at least $2,400.00 or such amount as is fixed by proclamation.

Special payments for counselling of victims

A victim who is eligible for statutory compensation may apply for payment for approved counselling services (services provided by a professional Counsellor chosen from a list of Counsellors designated) for the victim as a consequence of an act of violence.

A victim is entitled to an initial period of two (2) hours of counselling (including counselling for the purposes of an application for continued counselling of for statutory compensation).

The victim is entitled to payment of such further periods of counselling (not exceeding twenty (20) hours) as a Compensation Assessor considers appropriate. Payment for any further period of counselling exceeding twenty (20) hours may be made only with the approval of the Director.

Persons not eligible for statutory compensation

A Secondary Victim or Family Victim is not eligible to receive statutory compensation if the Primary Victim through him or she is claiming is not eligible, or if the Primary Victim had not died would not have been eligible, to received statutory compensation.

Claimants for court compensation awards

A person is not eligible to receive statutory compensation in respect of an act of violence if the person has been paid, or is entitled to be paid, compensation awarded by a Court in respect of that act under Part 4 or if the person's application for such compensation is pending.

Motor vehicle accidents

A person is not eligible to receive statutory compensation in respect of an act of violence if that act took the form of, or the injury arose as a consequence of, a motor accident within the meaning of the Motor Accidents Act 1988.

Offenders

A person is not eligible to receive statutory compensation in respect to an act of violence if it occurred while a person was engaged in behaviour constituting an offence.

Convicted inmates

A person is not eligible to receive statutory compensation in respect to an act of violence if it occurred while a person was in prison as a convicted inmate within the meaning of the Correctional Sentenced Act 1952 (unless the person was in prison only because of the person's failure to pay a pecuniary penalty). An exception to ineligibility of convicted inmates is found under Section 24(5) of the Victims Compensation Act 1996.

APPLICATIONS

Lodging of Applications

An Application must be in the form required by the compensation rules. An Application can be obtained by calling the Victims Compensation Tribunal and asking for an Application.

An Application must be accompanied by such documentary evidence (such as medical certificates) as may be required by that form and must be lodged with the Director.

An Application for statutory compensation must be duly lodged within two (2) years after the relevant act of violence occurred or, in the case of Family Victims, within two (2) years after the death of the Primary Victim.

An Application that is lodged out of time may only be accepted with the leave of the Director.

Medical examinations

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) by a duly qualified medical practitioner, or duly qualified psychologist, specified by the Assessor or by duly qualified medical practitioner or duly qualified psychologist belonging to a class of medical practitioners, or class of psychologists, specified by the Assessor.

The cost of any such examinations are to be paid for out of the compensation fund.

Determination of Applications

After considering an Application for statutory compensation the Compensation Assessor must determine the Application by making an award of statutory compensation or by dismissing the Application.

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 compensation relates is a Primary Victim, Secondary Victim or Family Victim of an act of violence and is eligible to receive the amount of compensation provided by the award.

Written notice is to be given to the Applicant of the determination of the Application.

Costs of Applications for Compensation and proceedings before Tribunal

An Applicant for statutory compensation is entitled to be paid his or her costs in respect of the Application in accordance with such scale of costs as may be prescribed by the compensation laws.

Appeals and references to Tribunal and District Court

An Applicant for statutory compensation who is agreeable to determination of a Compensation Assessor in respect of the Application may appeal to the Tribunal against the determination.

An appeal may be made:

• within the period of three (3) months after the day on which the relevant notice of determination made by the Compensation Assessor or Director was duly served on the person; or
• within such further time the Tribunal may in exceptional circumstances allow.

Appeals to the District Court on questions of law

An Application for statutory compensation may, with the leave of the District Court, appeal to the District Court on a question of law arising in any determination of the Application by the Tribunal. An appeal by a person to the District Court may be instituted:

• within the period of three (3) months of the day on which the relevant notice of the determination made by the Tribunal was duly served on the person; or
• within such further time as the District Court may in exceptional circumstances allow.

For the purposes of an appeal to the District Court, the following matters are not questions of law:

• a determination of whether an injury for which compensation has been claimed is an injury specified in the schedule of compensible injuries or whether it is a compensible injury of a particular description specified in that schedule;
• a determination of whether a series of acts are related and constitute a single act of violence.

An appeal does not apply against the decision of the Tribunal to refuse leave for a late application for statutory compensation.

FURTHER INFORMATION

This information is provided by the firm of Ryan & Bosscher Lawyers who specialize in this area of law. They are located at Level 1, 255 Castlereagh Street Sydney 2000, or call them on (02) 9266 0708. 

Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become a leading Criminal Defence firm in New South Wales. We are committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.