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S.65 Guidelines - Injury section 5(1)(c)

The dictionary definition of ‘injury’ under theVictims Support and Rehabilitation Act 1996was: (a)actual physical bodily harm, (b) psychological or psychiatric disorder.
This definition is now changed.

As a result of various amendments to the Act some of which commenced on 22 December 2006 injury is now defined as (a) actual physical bodily harm(b) psychological or psychiatric harm.

The new definition of injury will apply to all matters determined after the legislation is enacted. In the absence of physical injury, new and existing claims will no longer require the presence of a psychological or psychiatric disorder as listed in the DSM IV in order to establish ‘injury’ for the purposes of section 5 of the Act.

To establish psychological or psychiatric harm, consideration should be given to the following elements -

InR –v- Donovan[1934] 2 KB 498 at 509 when discussing harm the Court said,“its ordinary meaning includes any hurt or injury calculated to interfere with the health or comfort of V. Such hurt or injury need not be permanent but must, no doubt, be more than merely transient or trifling.”

Actual bodily harm came to be seen as including psychological or psychiatric harm followingDonovan. The Court said that,“if a person is caused hurt or injury resulting, not in any physical injury, but an injury to his state of mind for the time being, that is within the definition of ‘actual bodily harm’.” R-v- Miller[1953] 2 All ER 529 at 534.

Later in the Australian case ofT –v- The State of South Australia & Anor(1992) Aust Torts Reports 81 – 167, which related to a criminal injuries compensation case, the Court said“If the practical effect of the relevant conduct was to bring about a morbid situation in which there had been something more than transient deleterious effect upon an applicant’s mental health and wellbeing, so as adversely to affect that person’s normal enjoyment of life beyond a situation of mere transient sorrow and grief then, in the relevant sense, the person has sustained mental injury.”The Court specified that this must be something more than mere sorrow and grief.

Each matter will need to be considered on a case by case basis, assessing both the facts and the degree, in order to be satisfied that the requisite threshold for ‘harm’ is met. There must be the presence of medical evidence that establishes that psychological or psychiatric harm is present, however, as per‘T’itmaybe necessary to examine the facts of the ‘violent conduct’ (s-5 (1) (a) (b) of the Act), and weighing them with a consideration of the medical evidence (s-5 (1) (c) of the Act), in order to be satisfied that the element of injury is made out.

It may be that Compensation Assessors will need to give greater amplification to their reasons when establishing both the presence (or absence) of psychological or psychiatric harm in applicable matters in their written Notices of Determination.

C. Brahe
Victims Compensation Tribunal.
22 December 2006