Mangan v Victims Compensation Fund Corporation

[2000] NSWDC 18

New South Wales

District Court

CITATION:	Mangan v Victims Compensation Fund Corporation [2000] NSWDC 18
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Margaret Mangan Victims Compensation Fund Corporation
FILE NUMBER(S):	1950 of 2000
CORAM:
CATCHWORDS:	disability - Schedule 1(5) - shock
LEGISLATION CITED:	Victims Compensation Act 1996
CASES CITED:	Sherritt Gordon Mines Limited v The Federal Commissioner of Taxation (1976) 10 ALR 441; Australian Gaslight Company v Valuer General (1940) 40 SR (NSW) 127 ; Cozens v Brutus [1973] AC 854; Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389; Collector of Customs v Pozzolanic Enterprises Pty Limited (1993) 43 FCR 280
DATES OF HEARING:	10/8/01
DATE OF JUDGMENT:	10 August 2001

JUDGMENT:

HIS HONOUR JUDGE HOSKING: The applicant/appellant Margaret Mangan appeals to this Court against the notice of determination of authorised Magistrate Mr Gabb dated 21 February 2000 and seeks orders that (a) she be granted leave to appeal, (b) the determination of the Magistrate and also the tribunal member dated 21 February 2000 be set aside and (c) the time for lodging her notice of motion be extended and that the matter be remitted to the tribunal for determination.

The grounds of the appeal are that (a) the learned Magistrate erred in finding that no “shock” under the act had been established, (b) failed to give appropriate weight to the information before him and therefore erred in both fact and law (c) that the Magistrate’s determination is contrary to the evidence and the weight of the evidence and (d) that the Magistrate erred in law in the construction of the term “disability”.

The applicant made an application for compensation under the terms of The Victim’s Compensation Act 1996 in relation to an act of violence against her occurring on either 4th or 5 October 1995 when the appellant was assaulted by a man (presumably with a sexual intent) when she was walking in Annandale Street at Annandale about midnight on the way to visit a friend.

The relevant provisions of The Victim’s Compensation Act for the purpose of this appeal are s39 and also cl 5 of Sch 1. Cl 5 Sch 1 under the heading “Shock” provides the following applies to the compensible injury of shock: (a) compensation is payable only if the symptoms and disability persist for more than six 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 relations and sexual dysfunction.

In terms of shock being compensible injury therefore, according to s cl (a) of cl 5, compensation is payable only if the symptoms and disability persist for more than six weeks. I note that in this case there is clear medical evidence that the problems that the appellant suffered from as a result of this assault persisted for considerably more than six weeks.

Disability is not defined in The Victim’s Compensation Act . According to the Concise Oxford dictionary the term disability means thing or lack that prevents ones doing something. According to the Macquarie dictionary, disability means a lack of competent power, strength or physical or mental ability.

According to the Macquarie dictionary the term “disabled” means “to make unable, weaken or destroy the capacity of, cripple, incapacity”. The Macquarie dictionary describes “symptom” as “perceptible change in the body or its function indicating injury or disease”.

For compensation to be payable there must be a perceptible change in the appellant’s body or its function indicating injury, (including shock) preventing her doing something she could do in the absence of that change and persisting for more than six weeks.

Under sub cl (b) of cl (S) of Sch 1, as have indicated injury comprises conditions attributable to post traumatic stress disorder, depression or similar disorders that is having their genesis or aetiology in such disorders.

In terms of the symptoms or bodily changes by sub cl (d), the physical symptoms include various enumerated conditions and, by sub cl (c) of cl (S), the psychological symptoms include various enumerated conditions or states.

In terms of the disabilities they produce, sub cl (e) enumerates various specific matters to be included as relevant disabilities. Sub cl (e) speaks of impairment of work or school or other educational performance, significant adverse affect on social relationships and sexual dysfunction.

This demonstrates that it was the intention of the legislature that disability is to mean something more than the prevention of the exercise of some function and to include the impairment of it or weakening of it or according to one of the definitions I have quoted.

The learned Magistrate recognised that disability included some impairment of function. The learned Magistrate qualified this by a requirement of being “material”. On page 4 of his reasons for determination the Magistrate said;

“It is not sufficient for a disability that there is merely some adverse affect upon the applicant. The notion of disability in cl 5 must be of some material impairment in an important area of daily functioning and is also to be contrasted with physiological symptoms and physical symptoms which also adversely effect the applicant...”

In terms of approach to the construction of cl 5 and cl 5(e) in particular. In my view this latter proposition is not correct. I do not see why, for example, insomnia a physiological symptom under cl 5(c) at least if it was of sufficient degree and duration could not also be a disability under cl 5(e) as an impairment of the bodily function of sleep. Similarly to take the example of asthma from cl (d). Asthma is defined in the Macquarie Dictionary as a paroxysmal disorder of respiration with laboured breathing. If the condition was sufficiently serious I do not see why that would not qualify under a disability under cl 5(e) as an impairment of the function of normal breathing.

As a matter of statutory construction the word “includes” is used, if it is intended to enlarge the ordinary meaning of the relevant word see Sherritt Gordon Mines Limited v The Federal Commissioner of Taxation (1976) 10 ALR 441 at 455.

In the approach to the meaning of cl 5 and the term “disability” in particular, there is no warrant for the inclusion of the requirement that “the notion of disability in cl 5 must be of some material impairment in an important area of daily functioning and is also to be contrasted with the psychological symptoms and physical symptoms which also adversely effect the applicant.”

The Magistrate has used the former phrase “material impairment in an important area of daily functioning” in his reasons no less than four times. A disability does not have to be in an area of daily functioning under

cl 5(e). Normal sexual function by comparison to sexual dysfunction is not something necessarily exercised daily. People do not go to work or school everyday even under the perhaps narrow concept of “disability”. As a matter of ordinary language the concept does not connote material impairment in an important area of daily functioning.

Take for example, a person’s markedly reduced ability to lift anything of significant weight. In my view as a matter of ordinary language that is a “disability” but would not necessarily be a “material impairment in an important area of daily functioning”. There is no warrant either as a matter of ordinary language or of cl 5(e) itself to limit the meaning of “disability” in this artificial way. There is no warrant for the requirement of “an important area of daily functioning”.

This imported restriction of “daily functioning” is contrary to the terms of cl 5(e) itself. Moreover there is no warrant for the adjectival limitation of “important”. Important is a relative and imprecise term.

What may be important to one person may be relatively unimportant to another.

It appears to me that the Magistrate has placed these unwarranted restrictions on the meaning of “disability” because of an erroneous approach to the construction of cl 5. The creation of the mutually exclusive categories of symptoms and “on the other hand disabilities” is artificial. Perhaps more importantly, it appears to me that the Magistrate has tried to construe cl 5(e) on a kind of eusdem generis basis as though the enumerated matters have created some kind of genus of disability instead of simply widening the ordinary meaning of “disability”.

The meaning of an ordinary English word or phrase as used in a statute or in its non technical meaning is not a question of law but is a question of fact see Australian Gaslight Company v Valuer General (1940) 40 SR (NSW) 127 at 137 to 138 per Chief Justice Jordan: Cozens v Brutus [1973] AC 854 and Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 395 . However the question whether a word or phrase in a statute is to be given its ordinary meaning or instead some other technical meaning is a question of law see Collector of Customs v Pozzolanic Enterprises Pty Limited (1993) 43 FCR 280 at 287 Brutus v Cozens (Supra) ; Collector of Customs v Agfa-Gevaert Limited (Supra) at 395 . In my view this case falls into the latter category. To misconstrue a word with a technical or other meaning than its normal meaning is an error of law. I recognise that by s39 (3) of The Victims Compensation Act for the purposes of s39 the following matters are not questions of law, that is to say relevantly, (a) the 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 compensible injury of a particular description specified in that schedule.

However I am not dealing with the question of whether the Magistrate correctly determined what the applicant suffered from was “the compensible injury of shock” within Cl 5.

For the reasons I have indicated, and as submitted on behalf of the appellant in the written submissions by

Mr Jenkins of counsel, in my view, the Magistrate clearly erred in his approach to the construction of Cl 5.

By cl 5(a) compensation is payable only where there are both symptoms and a disability. The correct approach was for the Magistrate to ask himself the following questions:

(1) Did the appellant suffer an “injury” within the meaning of cl 5(b)?

(2) If so, did she suffer either psychological or physical symptoms within cl 5(c) and/or (d)?

(3) If so, were those symptoms also a disability or did she also suffer a disability either as a matter of ordinary language or, including a disability within the meaning of the extended definition in cl 5(e)?

(4) If the answers to questions (2) and (3) are in the affirmative, did both the symptoms and disability persist for more than six weeks?

If the answer to each questions (1) - (4) is “yes” compensation is payable.

While as I have said, it is not for me to determine whether the appellant had a disability, I would have thought that having regard to the material in the medical and psychological reports that the better view is that she did suffer a disability and therefore a compensible injury under cl 5 of sch 1. I point out that post traumatic stress disorder of the kind the appellant is said to have suffered from is routinely recognised as a disability in common law claims for damages and is routinely compensated as both an injury and a disability at common law.

For the reasons I have indicated I therefore grant the appellant leave to appeal. I set aside the determination of the learned Magistrate. I extend the time for the lodging of the appellant’s notice of motion and I remit the matter to the tribunal for determination in accordance with my reasons. The Victims Compensation Fund Corporation is to pay the cost of the application.

I direct that a copy of my reasons be taken out so that a copy can be given to the parties and a copy given to the Magistrate.