DSX v Commissioner of Victims Rights

[2019] NSWCATAD 137

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DSX v Commissioner of Victims Rights [2019] NSWCATAD 137
Hearing dates:	On the papers
Date of orders:	15 July 2019
Decision date:	15 July 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	Pursuant to s 63 (3) (a) of the ADR Act, the decision of the Senior Assessor dated 21 January 2019 is affirmed.
Catchwords:	Victims rights and support – administrative review – statutory interpretation – meaning of “motor vehicle accident” under s 25 (2) of the Victims Rights and Support Act 2013 – whether applicant is entitled to victims support in respect of the act of violence
Legislation Cited:	Victims Support and Rehabilitation Act 1996 Victims Rights and Support Act 2013 Motor Accidents Compensation Act 1999 Administrative Decisions Review Act 1997
Cases Cited:	Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255 Victims Compensation Fund Corporation v Brown [2003] HCA 54 Victims Compensation Fund v Brown [2002] NSWCA 155 Fleming v White [1981] 2 NSWLR 719 at [722]) Elena Harvey and Victims Compensation Tribunal & Anor [2001] NSWSC 604
Texts Cited:	Statutory Interpretation in Australia 5th Ed Pearce and Geddes (Butterworths)
Category:	Principal judgment
Parties:	DSX (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors:   J Thompson, Commins Hendricks (Applicant) S Sabesan, Victims Services (Respondent)
File Number(s):	2019/00057724
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify any victims or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASON FOR DECISION

Background

1. On 18 June 2018, the Applicant’s solicitor lodged an Application for Victims Support pursuant to the Victims Rights and Support Act 2013 (VRSA) on behalf of the Applicant who is now aged 17 years (DOB: 1/11/2003). It alleged that on 7 May 2015, she was the primary victim of an act of violence, which was perpetrated by an offender at Wagga Wagga, in the State of New South Wales, as follows:

A 17-year old boy rode a trail bike at 40km per hour onto a football oval. He crashed into the 11-year old victim, whilst she played AFL. She suffered significant injuries; spinal fracture, fractured hip, broken ribs, puncture wound to the leg.

2. The Application alleges that the Applicant suffered a psychological injury as well as the physical injuries and that she claimed victims support in the form of financial assistance for immediate needs (reimbursement for the costs of physiotherapy treatment) and a recognition payment. It also indicates that the incident was reported to the Police on 7 May 2015 and the offender was the subject of proceedings in the Children’s Court and District Court of NSW, but that the outcomes were unknown.

The evidence

3. The Police COPS Event report indicates that on 7 May 2015, the offender rode a motor cycle and entered the sporting ground area of Jubilee Park, at a speed of approximately 50 kph. He rode onto a ground where a football game involving twenty-four young persons was taking place. He rode around the young persons and in and out of the goal posts showing disregard for the safety of all persons in the vicinity. He then continued onto ground nine, where the Applicant was participating in a football game, and whilst riding through the participants in that gave, the motor cycle collided with the Applicant. The impact of the collision caused the Applicant to rotate at least one hundred and eighty degrees, knocking her over the shoulder of the perpetrator, and onto the ground. The impact also led to the perpetrator falling from the motor cycle and onto the ground.

4. On 8 May 2015, the perpetrator pleaded guilty to dangerous driving occasioning grievous bodily harm, driving an unregistered and uninsured vehicle and driving without a licence. On 2 November 2015, he was sentenced by the District Court of NSW to a term of imprisonment of 18 months commencing on 7 May 2015, with a non-parole period of 9 months. He was also disqualified from holding a driver’s licence for 2 years.

5. The Applicant made a claim under the Motor Accidents Compensation Act 1999 (MACA) against the Nominal Defendant, but on 6 April 2016, NRMA Insurance responded to that claim as follows:

As you are aware NRMA Insurance has been chosen by the Motor Accident Authority to handle your client’s claim under the Nominal Defendant Scheme.

We have conduct (sic) investigation into this accident and have established that there are no provisions for your client to claim under the Nominal Defendant Scheme nor the Motor Accident Compensation Act of 1999 as the circumstances of the subject accident do not meet or constitute the criteria to allow for a claim.

It has been established that the subject accident did not occur on a road or road related area (Chen v Caldieraro (2012) NSWSC 1409)…

6. There is no medical evidence in the documents before me and the current Application is restricted to issues of law.

Decision at first instance

7. On 21 November 2018, An Assessor issued a Notice of Decision pursuant to s 43 of the VRSA and determined the application for financial assistance and determined that the Applicant was the victim of a motor vehicle accident and that the application must be dismissed. The reasons for decision provided, relevantly:

What is the relevant law for incidents involving a motor vehicle?

10. The definition of a ‘motor accident’ is found under section 3 of the Motor Accidents Compensation Act 1999 and states that:

Motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during:

(a) the driving of the vehicle, or

(b) a collision, or action taken to avoid a collision, with the vehicle, or

(c) the vehicle’s running out of control, or

(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.

11. I note that section 25 (2) of the Victims Rights and Support Act 2013 states that a person is not eligible to receive victims support if the act took the form of a motor vehicle accident, or the injury arose as a consequence of a ‘motor accident’.

Findings

Is the subject of this application a ‘motor accident’?

12. After analysing the evidence, I consider that the young person operating an unlicensed motorbike and colliding with the applicant constitutes a ‘motor accident’. Therefore, the incident must be dealt with under the Motor Accidents Compensation Act 1999 (NSW).

13. I am sorry to inform the applicant that she is not eligible to receive victims support. Regrettably, her application for victims support must be dismissed.

14. However, in reaching this finding, I do not wish to diminish the impact of the trauma or minimise its significance on (DSC). I acknowledge that the incident caused severe, life-threatening and long-term injuries to the applicant. I also recognise that the actions of the young person, in riding his motor bike though a crowded oval, were reckless, irresponsible and inexcusable.

8. I note that the Respondent posted a copy of the Notice of Decision to the Applicant’s solicitors under cover of a letter dated 21 November 2018. I am therefore satisfied that a copy of the decision was properly served upon her.

Internal review

9. On 5 December 2018, the Applicant’s solicitors completed a request for internal review, which attached a copy of the letter from NRMA dated 6 April 2016, and written submissions that included the following:

3. However, as the motor vehicle in question was unlicensed and uninsured, the claim instead must be a claim under s 33 of the MACA. The applicable definition under s 33 is:

33   Claim against Nominal Defendant where vehicle not insured

(1) An action for the recovery of damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle that is not an insured motor vehicle in the use or operation of the vehicle on a road in New South Wales may be brought against the Nominal Defendant.(emphasis added)

4. While on the face of it, the facts suggest that a claim should be brought under the MACA (as you have set out in paragraph 12), the accident was caused by an uninsured vehicle, thereby causing the s 33 definition to instead apply. But, as the accident did not occur on a road, the definition is not met and a claim cannot be brought under the MACA.

5. We note that the victim has already spent a significant time and resources attempting to bring a claim under the MACA. A Motor Accident Personal Injury Claim Form was lodged with the Nominal Defendant on 6 July 2015. This claim was subsequently managed by NRMA on behalf of the Nominal Defendant.

6. On 6 April 2016, NRMA denied liability for the accident, and set out that there is no claim to be made under the MACA on the basis of the applicable definition in section 33. We enclose a copy of the letter from NRMA.

7. Since such time, we have been investigating the claim further, and then lodged an application with Victims Services NSW on 18 June 2018, in the hope that some assistance and support may be afforded to our client.

8. Our client is a victim of crime and primary victim, within the meaning in s 5 and s 20 of the Victims Rights and Support Act 2013 (VRSA). She has suffered severe, life-threatening injuries as a result of a reckless and irresponsible criminal offence and act of violence.

9. the drafting of s 25 (1) of the VRSA presumably intends to prohibit the victim from making a claim under the VRSA where a claim can instead be made under the MACA. However, for the above reasons, the victim in this instance cannot make a claim under the MACA.

10. If VSNSW upholds their original decision, then the victim will be denied the support and empowerment that she needs, and it would unjustly place her in a void between the MACA, which has proven to be unable to assist, and the VRSA, which only turns her to a remedy that is unavailable.

11. The VRSA sets out in the s 6 Charter of Rights of Victims of Crime that a victim will be treated with compassion, and we respectfully submit that the victim should not be prevented by s 25 (2) from making a claim under the VRSA.

10. On 21 January 2019, a Senior Assessor issued a Notice of Review Decision under s 49 of VRSA. The Senior Assessor determined that the incident took the form of a motor accident and that the Applicant was ineligible for victims support. The reasons for decision provide, relevantly:

Section 25 considerations

26. Section 25 must be considered when determining whether an applicant is eligible for victims support.

27. Specifically, section 25 (2) provides that a person is ineligible for victims support if the act of violence took the form of, or the injury arose as a consequence of a ‘motor accident’ within the meaning of the Motor Accidents Compensation Act 1999.

28. In full (with the included recent 2019 amendments), section 25 (2) provides:

(2) Motor vehicle accidents

A person is not eligible to receive victims support 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 Compensation Act 1999.

(2A) Exception to ineligibility for motor vehicle accidents

Despite subsection (2), a family victim is eligible to receive victims support in respect of an act of violence referred to in that subsection if:

(a) the act of violence took the form of the intentional killing of the primary victim, and

(b) a person has been charged with murder in relation to the death of the primary victim.

(2B) Exception to ineligibility for motor vehicle accidents

Despite subsection (2), a primary victim and a family victim are eligible to receive victims support in respect of an act of violence that was a terrorist act within the meaning of the Terrorism (Police Powers) Act 2002.

29. it is apparent from my reading of the police report and court information, that (DSX) is applying for victims support as a primary victim. Therefore, as she is not a family victim of a homicide and the incident was not a terrorist act, the section 2A and 2B exceptions do not apply…

11. The Senior Assessor determined that the definitions of ‘motor accident’ and ‘motor vehicle’ are found in s 3 MACA and was satisfied that the motor cycle that the perpetrator was riding when the incident occurred satisfied the relevant definition of a ‘motor vehicle’ and that he used it to cause injuries to the Applicant as a direct result of his dangerous driving. Therefore, the incident was a ‘motor accident’ under the MACA and s 25 (2) of VRSA.

12. I note that a copy of the review decision was sent to the Applicant’s solicitors under cover of a letter dated 23 January 2019. I am satisfied that the Applicant was properly served with a copy of that decision.

Application for administrative review

13. On 21 February 2019, the Applicant applied for administrative review of the Senior Assessor’s decision and asserted that the respondent had incorrectly applied the law and failed to properly consider legal arguments.

14. I am satisfied that the Application was filed within time.

15. This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (‘the ADR Act’), which provides:

(1)  In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)  any relevant factual material,

(b)  any applicable written or unwritten law.

(2)  For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3)  In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)  to affirm the administratively reviewable decision, or

(b)  to vary the administratively reviewable decision, or

(c)  to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)  to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

16. The Application came before me for Directions on 17 May 2019, when Mr Thompson appeared for the Applicant and Ms S Sabesan appeared for the respondent. The documents provided by the respondent under s 58 of the ADR Act were comprehensive and complete.

17. The legal representatives advised me that the application was restricted to a question of law. I determined that it was appropriate to determine that question of law on the papers without conducting a formal hearing, subject to the parties filing and serving final written submissions. I made the following orders:

1. The Applicant is to file and serve a summary of legal arguments on or before 7 June 2019;

2. The respondent is to file and serve a summary of legal arguments in reply on or before 28 June 2019; and

3. The decision is reserved for determination in chambers.

Respondent’s Submissions

18. In written submissions dated 13 May 2019, the Respondent maintained that the definition of ‘motor accident’ is found in s 3 of the MACA. However, they did not respond to the Applicant’s submissions dated 5 December 2018, to the effect that as the accident was caused by an uninsured vehicle, the definition in s 33 MACA applies instead of that in s 3, and as the accident did not occur on a road, the Applicant could not bring a claim under the MACA.

19. In relation to statutory interpretation, the respondent argued:

8. The respondent submits that the Act does not provide any discretion to consider applications where an applicant has been denied a claim under MACA. The definition of motor accident is clearly set out in section 3 of MACA. The definition does not differentiate between a vehicle that is insured or not insured.

9. In the matter of Project Blue Sky v Australian Broadcasting Authority (1994) 194 CLR 255, provides authority as to how courts and Tribunals should approach the issue of statutory interpretation. Specifically, Brennan CJ at [69]:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all provisions of the statute.

10. Using this as guidance, the meaning of section 25 (2) of the Act is quite clear, in that if the act of violence took the form of a motor accident, the applicant is not eligible for support. Section 25 (2) of the Act does not differentiate between whether a vehicle is insured or uninsured.

11. As such, under the Act, whether a vehicle is insured or uninsured is not a relevant consideration in determining eligibility for victims support. In these circumstances, section 25 (2) of the Act clearly rules the applicant ineligible for victims support…

Applicant’s submissions

20. On 11 June 2019, the Tribunal received a Summary of Legal Arguments from the Applicant’s solicitors, which responded to the respondent’s written submissions, relevantly:

…

2. The Applicant repeats its submissions dated 10 May 2019.

3. The Respondent cites paragraph 69 of Project Blue Sky v Australian Broadcasting Authority… The Applicant submits that this paragraph instead supports the Applicant’s submissions.

4. In Project Blue Sky …, Brenan (sic) CJ at [69] says in full:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

5. Section 25 (2) of the VRSA sets out that:

A person is not eligible to receive victims support 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 Compensation Act 1999. [emphasis added]

Wording of VRSA s 25 (2)

6. The Applicant submits that VRSA s 25 (2) does not say “…within the definition of the Motor Accidents Compensation Act 1999”, and so by limiting the meaning of a motor accident strictly to the definition at s 3 of the MACA, the Respondent has failed to consider the language of the instrument as a whole, and failed to consider the wider context.

7. Rather, the statutory text of VRSA s 25 (2) is “…within the meaning of the Motor Accidents Compensation Act 1999”. The Applicant submits that the Respondent must consider the MACA as a whole, and as MACA s 33 (3A) is directly relevant to the facts, the Respondent must consider this in its determination of the meaning of a motor accident, and not just the definition at MACA s 3.

Intention and Purpose of s 25 (2) and Exclusion Clauses in the VRSA

8. Further and in the alternative, the Applicant submits that the meaning of VRSA s 25 (2) should be determined by reference to the surrounding context and language of the VRSA viewed as a whole. VRSA s 25 (1), which in effect is also an eligibility clause, reads:

A person is not eligible to receive victims support 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 6 or if the person’s application for such compensation is pending.

9. VRSA s 25 (1) similarly to s 25 (2) related to eligibility, but sets a standard that a person is not entitled to a claim under the VRSA if there is or was an award for compensation made to them. The Applicant notes that no such award is or was awarded to her.

10. The Respondent has interpreted VRSA s 25 (2) to a far lower standard which considers only particular facts, separate from their context and separate from the instruments (sic) as a whole.

11. The Applicant submits that the Respondent’s interpretation of VRSA s 25 (2) is inconsistent with the standard in VRSA s 15 (1), and is inconsistent with the general purpose and policy of the provision itself, which is to prevent a claim where a claim may more appropriately be dealt with under the MACA.

12. The Applicant has demonstrated that a claim under the MACA is not available to her, nor does she have an entitlement under VRSA s 25 (1).

13. The Applicant is now in a position where despite this, and despite otherwise qualifying as a victim under the VRSA, she is denied a claim under the VRSA because of the Respondent’s narrow interpretation of VRSA s 25 (2).

Conclusion

14. The Applicant ultimately submits that the Respondent:

14.4 Unnecessarily restricts their interpretation of VRSA s 25 (2) to a definition, whereas there is no such wording that suggests it should be so restricted;

14.2 Fails to consider the full facts and applicable provisions in the MACA to determine the meaning of a motor accident;

14.3 Fails to view VRSA as a whole and consider the language and context of the VRSA, particularly s 25 (1);

14.4 Fails to consider in its interpretation of VRSA s 25 (2), the purpose and standard established by VRSA s 25 (1) as a similar exclusion clause;

14.5 Creates an outcome contrary to the purpose of VRSA s 25 (2), being to prevent a claim where the MACA is the more appropriate instrument;

14.6 Creates an unfair outcome for the victim in its interpretation of s 25 (2), whereas but for this narrow reading of VRSA s 25 (2), the Applicant otherwise would not be excluded from making a claim under the VRSA…

Respondent’s Submissions in Reply

21. On 26 June 2019, the Tribunal received the Respondent’s further summary of legal arguments dated 24 June 2019.

22. I note that it maintained its position that the Applicant is not eligible for victims support because she was injured in a motor accident and that the relevant definition is that in s 3 MACA. It also argued that the only consequence of s 33 (3A) MACA is that the Applicant is not eligible to claim compensation against the Nominal Defendant and that this does not mean that the incident is not considered a motor accident. As s 33 (3A) of the MACA still refers to “motor accident”, the definition under s 3 applies.

23. The Respondent also argued:

11. Section 25 (2) of the Act does not make any reference to compensation or the ability to take action under the MACA. In the context of the Act, if such a condition to eligibility were intended, the legislature would have stated so.

12. More contextual evidence of such an intention to exclude eligibility for victims involved in motor accidents generally may be gleaned from recent amendments to the Act made by the Crimes Legislation Amendment Act 2018 and the Victims Rights and Support Amendment (Motor Vehicles) Act 2018. Through these amendments, both of which commenced on 14 January 2019, Parliament created two exceptions to the ineligibility of victims of acts of violence that take the form of motor accidents, neither of which apply for present purposes. However, the intention to leave the general broad ineligibility intact is clear.

13. In these circumstances, although the applicant is not able to claim compensation under the MACA, this does not give rise to an automatic eligibility to victims support under the Act. There are examples within the Act of where eligibility to other schemes of compensation will affect victims support without affecting eligibility to apply, for example, workers compensation (s 44 (5), police disability payments (s 44 (6) and, for eligible victims of motor accidents noted above (s 44 (6A).

24. In response to the Applicant’s submissions regarding the beneficial nature of the VRSA, the Respondent argued, relevantly:

14. … However, this is not to say that all terms should be and, in particular, words that limit eligibility or the benefit conferred should not be construed beneficially. Heydon J in Victims Compensation Fund Corporation v Brown [2003] HCA 54 at [33]:

Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury… The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl 5, it is not open to apply much liberality of construction… As Spigelman CJ said in Victims Compensation Fund v Brown (2002) NSWLR 688 at 672 at [11]: “The issue before the Court is the determination of the circumstances in which compensation is payable”. The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence [in Victims Compensation Fund v Brown … at [11]: “The Court is not required to give the most expansive possible interpretation of such circumstances”.

15. The words of s 25 (2) are clearly words of limitation to which an expansive interpretation should not be applied.

25. The Respondent argued that s 25 (1) of VRSA is irrelevant to these proceedings and that the Applicant has misunderstood this provision, because it refers to Part 6, which refers to when a Court may order the person it finds guilty of a crime to pay compensation to any victim of that crime. It stated:

18. In essence, section 25 (1) of the Act provides that if a person has been awarded compensation in a court, following a finding of guilt in relation to the same act of violence, then the person is not eligible for victims support.

19. Section 25 (1) of the Act is not relevant to the Applicant as the Applicant was not awarded any compensation at Court following the offender’s finding of guilt.

20. The Respondent denies that it has interpreted section 25 (1) and Section 25 (2) of an inconsistent basis…

Consideration

26. In Project Blue Sky, Brennan CJ stated, relevantly:

70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.  Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.  Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other".  Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

71. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".

27. I also note that Statutory Interpretation Australia (8thEdition Pearce and Geddes) (at page 28) provides, relevantly:

Remedial or Beneficial Acts

The Courts have adopted the broad approach that where an Act is curing some ‘mischief’ or is granting a benefit to a person, the Act should be construed generously to ensure that the mischief is remedied or that the person is not denied the promised benefit.

28. It has long been established law that the VRSA is beneficial legislation and that it should be interpreted liberally and beneficially. See: Fleming v White [1981] 2 NSWLR 719 at [722]) and Elena Harvey and Victims Compensation Tribunal & Anor [2001] NSWSC 604 (Dowd J). However, as ss (1), (2), (3) and (4) of s 25 VRSA are identical to subsections (1), (2), (3) and (4) of s 24 of the Victims Support and Rehabilitation Act 1996 (the old Act) and ss 25 (5) and (6) of VRSA essentially repeats ss (5) of s 24 of the 1996 Act, it is clear that the exclusion of certain claims from the victims support scheme is well established.

29. The Respondent argues, based upon the decision of Heydon J in Victims Compensation Fund v Brown (supra) (Brown), that s 25 (2) should not be construed liberally or expansively in order to make the Applicant eligible for victims support.

30. In Brown, the First Respondent (the primary victim) was violently attacked (punched, kicked and stabbed in the stomach area with a broken bottle) and the Second Respondent (the secondary victim) witnessed the attack. Both Respondents claimed statutory compensation under the Victims Rights and Support Act 1996 (the 1996 Act). The primary victim claimed compensation for his physical injuries and shock and the secondary victim claimed compensation for shock only. Cl 5 of sch 1 of the old Act provided:

The following applies to the compensable injury of shock:

(a) Compensation is payable only if the symptoms and disability persist for more than 6 weeks.

(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, agoraphobia and pre-occupation with thoughts of self-harm or guilt.

(d) The physical symptoms include alopecia, asthma, eczema, enuresis and psoriasis.

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

31. The Victims Compensation Tribunal declined to award compensation for shock, but the District Court upheld the victims’ appeals and the Court of Appeal upheld the District Court’s decision. The Appellant then appealed to the High Court. Heydon J, with whom McHugh ACJ, Gummow, Kirby and Hayne JJ agreed, noted that while both victims had symptoms of shock, which persisted for six weeks, neither had “a disability”. Their entitlement to claim for shock therefore rested on the answer to a single question, namely: “In cl 5 (a), did “and” mean “and” or “or”? His Honour ultimately stated that it may be inferred that when the legislature uses "and" it wishes to convey a conjunctive meaning.

32. However, in my view, the decision in Brown is not relevant to the construction of s 25 (2) VRSA.

33. The applicant argues, in effect, that there is conflict between ss 25 (1) and (2) of the VRSA and that it is necessary for the Tribunal to resolve this conflict by construing the latter provision in such a manner that does not make her ineligible under the victims support scheme in circumstances where she has no right to recover damages under the MACA.

34. However, s 25 (2) expressly defines “motor accident” by reference to the MACA and there is nothing that suggests that definition does not include a reference to that in s 3 MACA. The definition in the MACA will apply to the whole MACA unless another meaning of “motor accident” is provided in either in that Act or by a later Act. There is no evidence before me of any other definition of “motor accident”.

35. The applicant is clearly adversely impacted by a gap in the law and while she has no right to claim damages from the Nominal Defendant under the MACA, s 25 (2) of the VRSA excludes her from the victims support scheme. Whether or not Parliament intended this gap in the law, I am not satisfied that it can be properly overcome by construing s 25 (2) of the VRSA in the manner proffered by the applicant.

36. Accordingly, while I am sympathetic to the applicant’s plight, I am satisfied that the Senior Assessor did not err in law in finding that the Applicant is ineligible for victims support by the operation of s 25 (2) of the VRSA.

Orders

37. I make the following order:

1. Pursuant to s 63 (3) (a) of the ADR Act, the decision of the Senior Assessor dated 21 January 2019 is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 15 July 2019