Syron v Victims Compensation Fund Corporation

[1999] NSWDC 20

New South Wales

District Court

CITATION:	Syron v Victims Compensation Fund Corporation [1999] NSWDC 20
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Steven Syron Victims Compensation Fund Corporation
FILE NUMBER(S):	27 of 1999
CORAM:	Garling DCJ
CATCHWORDS:	disability - Schedule 1(5) - shock :- significant disability
LEGISLATION CITED:	Victims Compensation Act 1996
CASES CITED:
DATES OF HEARING:	6/10/99
DATE OF JUDGMENT:	6 October 1999
LEGAL REPRESENTATIVES:	Mr Biggins Mr Moore

JUDGMENT:

DCQ76 SC-A1


~06/10/99 1

HIS HONOUR: This is an appeal from the decision of a learned tribunal member. The appeal is on a point of law.
The appellant was involved in an armed robbery. It was quite a nasty armed robbery. The appellant claims to have suffered post traumatic stress disorder.
The appellant after the incident did not seek medical treatment, went to see a solicitor who quite rightly referred the appellant to two psychiatrists. Those psychiatrists both clearly concluded that the appellant suffered post traumatic stress disorder.
The learned magistrate and tribunal member, in his reasons for determination, indicated that the appellant had not bothered to seek treatment after these incidents.
It is argued that that is an inference which may be available, but it is not the only reasonable inference available. There are a number of competing inferences of equal value. If that is the case, the learned tribunal member should not have drawn that inference.
To the contrary, it is argued that if the learned tribunal member has made a mistake it is a mistake of fact, not a mistake of law. The problem I have with that little battle is that the learned tribunal member did not state the law as he perceived it to be. I pass on, because it is of no real relevance in the end.
The substantial part of this appeal revolves round this part of the determination. The fact that certain areas of an applicant's life are affected adversely does not necessarily mean that he or she has a disability within the meaning of clause 5(a) and (e) of the Act. There must be some, "significant impairment or significant adverse effects in an important area of functioning to constitute a disability. Any impairment in work, school or educational performance must be significant", just as the adverse effects referred to in the same sub clause must be significant. It would be quite inconsistent that any impairment in work performance, no matter how trivial or insignificant, constitutes a disability.
And later, that is, "a continuing significant impairment in an important area of function". And if there is none, then there is no longer shock within the meaning of the Act.
I have looked at clause 5. Clause 5, it appears, requires (a), "symptoms and disability persisting for more than six weeks". They did in this case. (b), "the injury comprises conditions attributed to post traumatic stress disorder". That is the clear diagnosis of this case.
(c), "psychological symptoms, including anxiety, tension, insomnia, irritability, loss of confidence", et cetera. That is clearly so in this case. (d), interestingly enough, refers to physical symptoms which one, in my view, very rarely sees in these sorts of matters and it seems to me that it should have read between (c) and (d), "and/or the physical symptoms", as it clearly would seem that that was what was meant.
When one comes to (e), the relevant disabilities include, "impaired work or school or other educational performance", that is one. Secondly, "significant adverse effects on social relationships". Three, "sexual dysfunction". I cannot read into any of that the intention that there must be significant impairment or significant adverse effects in an important area of functioning to constitute a disability. If one wishes to rely on adverse effects on social relationships, then it must be significant. Other than that the word is not used.
I believe the learned tribunal member erred in law in approaching this assessment on that basis. There is evidence, for instance, of sexual dysfunction and, in my view, the appellant falls well within the area of clause 5. It is not for me to consider any further the question of compensation, but I would have thought it was a matter, despite the fact that immediate treatment was not obtained, where compensation of some type would be clearly payable.
That is my personal comment, nothing further.
I grant leave to appeal. The appeal is allowed. Remitted to the tribunal to be determined in accordance with my judgment. Of course, part of my judgment is only a comment. I think I have made that quite clear. The respondent to pay the appellant's costs as taxed or agreed, of this appeal.