Croker v Victims Compensation Fund Corporation

[1999] NSWDC 7

New South Wales

District Court

CITATION:	Croker v Victims Compensation Fund Corporation [1999] NSWDC 7
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Clayton Robert Croker Victims Compensation Fund Corporation
FILE NUMBER(S):	1626 of 1999
CORAM:	Garling DCJ
CATCHWORDS:	Schedule 1(5) - shock
LEGISLATION CITED:	Victims Compensation Act 1996
CASES CITED:
DATES OF HEARING:	07/09/99
DATE OF JUDGMENT:	7 September 1999

JUDGMENT:

HIS HONOUR: The appellant seeks leave to appeal against a decision of the Victims Compensation Tribunal. The appeal is pursuant to the Victims Compensation Act 1996. Section 39 of the Victims Compensation Act provides:

"(1) An applicant 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."

And there are further general matters referred to.

In effect this appeal arises out of an act of violence which occurred on 16 March 1997. The appellant was in Kensington Road, Ultimo, he was set upon by two men, they stole a mobile phone and his wallet and they ran away. He was asked by the police:

"Q. Were you assaulted by the two men as they stole your property? A. Yes I was.

Q. How did they assault you? A. They verbally abused me, physically touched me, why they were getting my wallet and phone off me. They didn't punch me, they just pushed and shoved me around."

Obviously, the word "why" should read "while."

The appellant reported the matter to the police, co-operated with the police, he obviously sustained shock, quite severe shock, the Tribunal approved the payment of certain medical expenses for treatment by psychologist, Mr Vaughan. The appellant had that treatment. There appears at some stage to have been a little bit of a falling out or disagreement and I note the appellant has also seen another psychologist from whom I have not seen a report. There is a dispute about that psychologist's fees.

The appellant then sought compensation as a result of the injury of shock. The Act provides in clause 5 of Schedule 1.

"The following applies to the compensable injury of shock.

(a) Compensation is payable only if the symptoms and disabilities persist for more than six weeks."

They clearly did in this case.

"(b) The injury comprises conditions attributed to post traumatic stress disorder, depression and similar conditions.

(c) The psychological symptoms include anxiety, tension, insomnia, irritability, loss of confidence, agorophobia and pre occupation with thoughts of self harm or guilt.

(d) The physical symptoms include alopecia, asthma, eczema and other skin conditions.

(e) Relevant disabilities include impaired work or school or other educational performance, significant adverse effects on social relationships and sexual dysfunction."

Mr Vaughan produced a number of reports. In his initial report he said:

"Mr Croker presents with symptoms, difficulties, typical of a post traumatic stress reaction. While his presentation is such that he would not fulfil the full criteria of diagnosis of post traumatic stress disorder the stress symptoms are of a mild to moderate severity and do seem to be affecting his social and occupational functioning. He is feeling depressed."

There was then another report of November 1997 where Mr Vaughan goes again into the history of the matter. Again as I understand it indicating that there was a post traumatic stress reaction.

The matter came before the Tribunal, the Tribunal member found that there was no injury based on Mr Vaughan's reports and found that the appellant had not suffered shock pursuant to the Act. His decision was subsequently appealed and that is what is here today.

The appellant feels considerably aggrieved by what has happened. He says:

"It is a very dangerous area, I was set upon, I was shocked, I suffered the symptoms of post traumatic stress disorder."

He says:

"I have read about these matters and Mr Vaughan did not give proper consideration to my condition. The facts before the Tribunal were wrong. That his opinion in effect is wrong."

This matter comes before this Court to determine a question of law. The evidence before me as it was before the Tribunal is quite clear. The appellant suffered a post traumatic stress reaction. I am satisfied that the condition as set out by Mr Vaughan, which is the only evidence before me, does not fall into the category of an injury pursuant to the Victims Compensation Act 1996. It is not for this court to go outside the provisions of an Act of Parliament, but simply to interpret an Act of Parliament, on the evidence which we have in doing that I have to say that the appeal must fail.

Accordingly, I grant leave to appeal but I dismiss the appeal.

LONNERGAN: Your Honour I am instructed to seek costs.

HIS HONOUR: I don't think that's appropriate in this particular case, I won't make such an order.