Sparsi v Victims Compensation Fund Corporation

[1999] NSWDC 18

New South Wales

District Court

CITATION:	Sparsi v Victims Compensation Fund Corporation [1999] NSWDC 18
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	George Sparsi Victims Compensation Fund Corporation
FILE NUMBER(S):	8841 of 1998
CORAM:	Sidis DCJ
CATCHWORDS:	s39(3) - shock
LEGISLATION CITED:	Victims Compensation Act 1996
CASES CITED:
DATES OF HEARING:	1/11/99
DATE OF JUDGMENT:	1 November 1999
LEGAL REPRESENTATIVES:	Mr Earl Mr Quickenden

JUDGMENT:

HER HONOUR: In this matter Mr George Sparsi seeks the leave of the Court to appeal against a determination of the Victims Compensation Tribunal.

The application is not only for leave but for leave to appeal out of time, the matter having been complicated by the initial filing on behalf of the appellant, of an inappropriate notice of appeal.

As far as the leave application is concerned the respondent argues that I do not have before me adequate material in respect of the reasons for the delay to warrant the granting of leave. However, having heard the circumstances and having noticed that the inappropriate notice of appeal was initially filed within time, I am satisfied that in all of the circumstances it is appropriate to grant an extension of time within which to apply for leave to appeal and to grant leave to appeal.

The determination appealed against was that of the Tribunal dated 7 September 1998 and essentially it goes to the finding of the Tribunal that the appellant had established the compensable injury of shock lasting six to thirteen weeks. The particular part of the reasons for determination relied upon is that part which purports to state that a medical report cannot establish shock beyond the date upon which the report was issued. In this case the report concerned is that of Mr Jones, a psychologist, of 4 November 1997. There is also a report of 23 October 1997. Those reports when read properly make it clear that the psychologist had expressed a view that the appellant had been permanently affected by the incident of 27 July 1997. The appellant was in fact at the time of the incident already suffering from post traumatic stress disorder and the psychologist diagnosed a worsening of symptoms and attributed twenty percent of the appellant's symptoms to the incident which is the subject of this appeal.

It is clear, having regard to the diagnosis contained in that report, that the finding by the Tribunal of an injury, compensable injury of shock lasting six to thirteen weeks, is contrary to the evidence.

It is also very clear that the Tribunal is incorrect in the statement that a report cannot diagnose shock into the future beyond the date upon which a report is issued. In ordinary circumstances the blatancy of the error would have persuaded me that this was a matter of law in respect of which I would have jurisdiction to act under s 39 of the Victims Compensation Act 1996.

However, s 39(3)(a) specifically states that for the purposes of the section certain matters are not questions of law. Included in those matters is a determination of whether an injury is an injury specified in the schedule of compensable injuries, or whether it is a compensable injury of a particular description specified in that schedule.

Mr Earl for the appellant has argued before me today that I should construe subsection (3) very strictly and very narrowly because of the consequences to an appellant in the particular circumstances of this case.

However, it does seem to me that the term, "Compensable injury of a particular description specified in that schedule" covers not just the injury but the sub categories of injury that are set out in the schedule and covers the category of injury arrived at by the Tribunal in determining the appellant's claim on the basis of shock lasting six to thirteen weeks.

I reach this conclusion with a great deal of regret because it results in a position for the appellant which is significantly unjust. I also make it with regret because the determination of the Tribunal member and the reasoning process which he has undertaken is otherwise perfectly appropriate.

I do not understand the purpose of s 39(3) or the reason why it was determined that it was necessary for the functioning of the Victims Compensation Act 1996. It does, in my opinion, lead to a situation of significant injustice and I would hope that this matter having come to light representations may be made through the various professional associations for its repeal or amendment in order that appellants are not left in a situation of having no remedy under the Victims Compensation Act 1996 where errors of this kind are made.

That having been said, the orders which I make are that the appeal is dismissed.

COUNSEL ADDRESSED ON COSTS

HER HONOUR: Each party is to pay its own costs of the appeal.