Millard v VCFC

[2002] NSWDC 10

New South Wales

District Court

CITATION:	Millard v VCFC [2002] NSWDC 10
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Rhonda Millard Victims Compensation Fund Corporation
FILE NUMBER(S):	514 of 2001
CORAM:	Sidis DCJ
CATCHWORDS:	disability - Schedule 1(5) - shock
LEGISLATION CITED:	Victims Compensation Act 1996 Victims Support and Rehabilitation Act 1996
CASES CITED:	Azzopardi v Tasman UEB Industries Limited (1985) NSWLR 139; McPhee v S Bennett Limited (1935) 52 WN New South Wales 8; Shirley Rose Walker v Victims Compensation Fund Corporation, District Court, Lismore, 25 November 1999
DATES OF HEARING:	15 February 2002
DATE OF JUDGMENT:	15 February 2002

JUDGMENT:

HER HONOUR JUDGE SIDIS: In this matter, the appellant seeks leave to appeal against a determination of the Victims Compensation Tribunal of 29 March 2001. This decision was itself a decision in an appeal from a determination by an assessor of the Tribunal made on 29 September 2000.

The motion was filed out of time. There is no objection on the part of the respondent to the appeal to my extending the time within which the motion should be filed to the date of filing, that is 11 July 2001. I make that order accordingly. There is no objection to the grant of leave, and I make that order accordingly.

I have thus proceeded to hear submissions in respect of the appeal, which effectively go to the issue of whether there is a question of law to be determined on the appeal.

It is said for the appellant that the determination of the Tribunal was against the weight of the evidence, and the appellant relies upon the reasons of President Kirby as he was then in Azzopardi v Tasman UEB Industries Limited (1985) NSWLR 139 at 151 when he suggested that an error of law arises where there is a manifest error or an illogicality in the reasoning process.

It was pointed out by Mr Austin for the respondent that Justice Kirby’s decision in that case was in the minority, and that Justice Glass delivered the decision of the majority, Justice Samuels agreeing with him. The effect of Justice Glass’ decision was to adopt part of the determination in the case of McPhee v S Bennett Limited (1935) 52 WN New South Wales 8, at 9, in which it was stated:

“The question whether that evidence ought to be accepted in whole or in part or ought be accepted as sufficient to establish the fact is itself a question of fact and not a question of law.”

Obviously I am bound by that decision, and there is no suggestion that the principles of Azzopardi have been overturned. However it does seem to me, when looking at the determination of the Tribunal, that its approach to the provisions of clause 5 of schedule 1 of the Victims Compensation Act 1996 in itself discloses an error of law.

This aspect of the determination has not been specifically pleaded by the appellant in the grounds of appeal. However it does appear that it arises in paragraph 1(ii) where it is argued that the Tribunal erred in law by ignoring or rejecting the overwhelming weight of evidence that the applicant has continuing disabilities as a result of her recognisable mental illness. This evidence appeared in the served medical reports which were before the assessor at the first instance at the tribunal on appeal.

The appellant’s claim arose out of a home invasion which occurred on 24 January 1997 when the appellant resided at 10 Noel Street, Blacktown. Her gentleman friend, Mr Davies was with her at that time. Two men forced their way into the home, one holding a baseball bat and the other a gun and demanded money which was allegedly owed to them by Mr Davies. During the course of the home invasion, they beat Mr Davies severely and they threatened the appellant by pointing a gun at her head.

The medical evidence comprises a report of Roslyn Gould, psychologist, dated 29 November 1999 and a report of the appellant’s general practitioner, Doctor McGeoch of 10 December 1998. The Tribunal did not take issue with

Ms Gould’s finding of post traumatic stress disorder, nor did they suggest that that disorder had not existed for the period required by the Act.

The Tribunal however rejected the appellant’s claim on the basis that the report did not refer to or describe a disability on the part of the appellant in the terms of sub-clause (e) of clause 5 of the schedule.

It was argued before me on behalf of the Tribunal that this was not the case, but when one looks at page 3 of the Tribunal’s determination, one sees that the Tribunal member has stated:

“Relevant disabilities are set out in clause 5(e) of schedule 1”

and then the provisions of that sub-clause are set out in full. The sub-clause reads:

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

There is then a reference to a decision of his Honour Chief Judge Blanch in the appeal of Shirley Rose Walker v Victims Compensation Fund Corporation, District Court, Lismore, 25 November 1999 in respect of the interpretation of sub-clause 5(e) in which he stated:

“At the end of the day, I do not disagree with the fact that the shock which is being referred to is something which needs to be significant. The sub-clauses are merely illustrations of how that can be achieved.”

The Tribunal member appears to misapply what was being said by his Honour in those comments, and appears on the face of the reasoning to suggest that in order to qualify for an award of compensation, the medical material must establish that the plaintiff has suffered something in the nature of impaired work or school or other educational performance, significant adverse effects on social relationships or sexual dysfunction.

This, of course, is not what clause 5(e) says. As stated by Justice Blanch, the clause refers to conditions that are included in the term “disabilities” but does not limit the term “disabilities” to those symptoms.

It is very evident from the report of Ms Gould that the appellant suffers from a number of problems arising out of her post traumatic stress disorder. She is described as displaying withdrawal or avoidance behaviour, including great fear, the result of which is that she has difficulty in attending to her shopping. She states that she has problems in communication. She suffers from anxiety. She has distanced herself from other people.

Ms Gould also states that in addition to the symptoms of the withdrawal and avoidance behaviour, she suffers from hyper-arousal, which includes insomnia, irritability, poor concentration, hyper-vigilance and an exaggerated startle response. All of those aspects, it seems to me, might well be regarded, if not falling within the specified category of adverse effects on social relationships, as falling within the requirements of establishing a disability.

I say that although my views on the matter are irrelevant to the Tribunal’s ultimate determination. However the appeal will be allowed. The matter will be referred back to the Tribunal for determination in accordance with the law as set out in these reasons, namely that the disability from which a claimant suffers is not limited to those which are listed in clause 5(e) of schedule 1 to the Victims Support and Rehabilitation Act 1996.

The respondent is to pay the appellant’s costs of the appeal. The exhibits may be returned.