Victims Compensation Fund v Brown

[2002] NSWCA 155

Reported Decision: (2002) 54 NSWLR 668
(2000) 129 A Crim R 538

New South Wales

Court of Appeal

CITATION:	VICTIMS COMPENSATION FUND v SCOTT BROWN & ORS [2002] NSWCA 155
FILE NUMBER(S):	CA 40591/01
HEARING DATE(S):	18 February 2002
JUDGMENT DATE:	28 May 2002
PARTIES :	VICTIMS COMPENSATION FUND v SCOTT BROWN & ORS
JUDGMENT OF:	Spigelman CJ at 1; Mason P at 39; McClellan J at 94

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 317/00
LOWER COURT JUDICIAL OFFICER :	Phelan DCJ

COUNSEL:	Claimant: C Lonergan First & Second Opponents: C Halsall Third Opponent: Submitting
SOLICITORS:	Claimant: I V Knight (Crown) First & Second Opponents: Hilton King Third Opponent: Submitting
CATCHWORDS:	VICTIMS COMPENSATION - Victims Support and Rehabilititation Act 1996, Schedule 1, Table 1, cl 5 (now repealed) - "shock" - whether compensation payable unless both symptoms and disability persist for more than 6 weeks. - STATUTORY INTERPRETATION - "and" - when it means and/or (D)
DECISION:	(By majority) See Mason P at par 93.

CA 40591/01

SPIGELMAN CJ
MASON P
McCLELLAN J

Tuesday 28 May 2002

VICTIMS COMPENSATION FUND v SCOTT BROWN & ORS

JUDGMENT

1 SPIGELMAN CJ: I have read the judgment of Mason P in draft. The facts and issues are set out in his Honour’s judgment. The central issue is the proper construction of cl 5(a) of Schedule 1 of the Victims Support and Rehabilitation Act 1996 (“the Act”): whether the word “and” in the formulation “symptoms and disability” should be read as “or”.

2 The primary decision-maker found that there was evidence of “symptoms” but no evidence of “disability”. Phelan DCJ allowed the appeal on the basis that a finding of symptoms alone was enough to establish an entitlement to compensation. His Honour held that “and” in cl 5(a) was not conjunctive but disjunctive.

3 It is necessary to set out a number of sections of the Act in full.

“10(1) The schedule of compensable injuries is set out in Schedule 1.
(2) The schedule specifies those injuries that are compensable injuries for the purposes of this Act.
(3) The schedule specifies, as the standard amount of compensation for a compensable injury, a specified amount or an amount within a range of specified amounts.”
“13(1) If more than one compensable injury is received by an eligible victim, the schedule of compensable injuries may exclude the payment of compensation, or discount the rates of compensation payable, for some of those injuries.
(2) The schedule of compensable injuries may make provision for compensable injuries of a kind not specifically described in the schedule and for the standard amount of compensation payable for such an injury.
(3) The schedule may contain provisions relating to the application of the schedule (including provisions relating to the interpretation of the schedule, provisions relating to establishing whether an injury is a compensable injury and provisions of a transitional nature consequent on the amendment of Schedule 1).”
“17(1) Compensation for compensable injuries is payable in accordance with the schedule of compensable injuries.
(2) Unless the amount of compensation is required or authorised to be reduced by this Act, the amount of compensation payable is the standard amount calculated in accordance with the schedule.”

4 The relevant clauses of Schedule 1 are as follows:

“1 The injuries specified in column 1 of the table to this Schedule are compensable injuries for the purposes of this Act.”
“5 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.”
“6 The following applies to the compensable injury of sexual assault:
(a) Category 1 sexual assault consists of:

· indecent assault, or

· an assault with violence in the course of attempted unlawful sexual intercourse.

(b) Category 2 sexual assault consists of:

· unlawful sexual intercourse, or

· the infliction of serious bodily injury in the course of attempted unlawful sexual intercourse.

(c) Category 3 sexual assault consists of:

· a pattern of abuse involving category 1 or category 2 sexual assault, or

· unlawful sexual intercourse in which serious bodily injury is inflicted, or

· unlawful sexual intercourse in which 2 or more offenders are involved, or

· unlawful sexual intercourse in which the offender uses an offensive weapon.”

“7 The following applies to the compensable injuries of burns and scarring:
(a) Compensation is not payable for scarring unless it is permanent.
(b) Compensation is not payable for both burns to any part of the body and scarring of that part of the body caused by burns.
(c) Payment for burns or scarring is subject to such reasonable inspection of the injury as the Tribunal or compensation assessor may require.”
“8 An injury not specifically mentioned in Column 1 of the table to this Schedule is a compensable injury if, in the opinion of the Tribunal or compensation assessor dealing with the application for statutory compensation:
(a) the injury is similar to an injury specifically mentioned in the table, and
(b) the injury has caused symptoms or disability lasting for at least 6 weeks.
The standard amount of compensation for the injury is the standard amount for that similar injury.”

5 As s13 expressly states, the schedule may make provision for a number of different matters. By s13(1) the schedule may provide for multiple injuries, a power exercised in cl 3 of the schedule. By s13(2), the schedule may make provision for additional matters not listed, a power exercised in cl 8 of the schedule. Finally, and relevantly for present purposes, specific provision in accordance with the terms of s13(3) - generally described as “related to the application of the schedule” – is made in clauses 5, 6 and 7 of the schedule.

6 The elliptical introductory words to cl 5 i.e. “The following applies to the compensable injury of …” are, as noted above, repeated as the introductory words to cl 6 and cl 7 relating, respectively, to “Sexual assault” and to “Burns and scarring”. In each case the clause constitutes an exercise of the power for which s13(3) expressly provides, namely to make provisions “relating to the application of the schedule”, which, relevantly, includes provisions that may relate “to the interpretation of the schedule” or “to establishing whether an injury is a compensable injury”.

7 I can see no basis on which it could be suggested that either cl 6 or cl 7 have any effect other than to exhaustively state the circumstances in which recovery is permissible for the matters respectively referred to therein. In my opinion, cl 5 is to the same effect. The introductory words in such case – “the following applies” – are words of limitation.

8 With respect to a clause intended to be limiting, it is not appropriate to apply the principle of statutory construction that beneficial legislation should be construed liberally. The issue is, after all, identifying what the intended benefit is. Clause 5 is an operational provision, not a mere definition section.

9 In a passage that has been frequently cited with approval (see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 248; Brennan v Comcare (1994) 50 FCR 555 at 574; Morrison v Peacock (2000) 50 NSWLR 178 at [33]), the Supreme Court of the United States said in Rodriguez v United States 480 US 522 (1987) at 525-526:

“… No legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice – and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.”

10 In the present proceedings, the Respondent submitted that the purpose was to compensate victims. Even if I were to accept a legislative purpose stated at that level of generality, that would not entail that any ambiguity must be construed in such a way as to maximise compensation (cf. Favelle Mort Ltd v Murray (1976) 133 CLR 580). In any event, the very specificity of the provisions of the legislation indicate that the legislative purpose is to provide compensation in accordance with the Act and not otherwise.

11 The issue before the Court is the determination of the circumstances in which compensation is payable. The Court is not required to give the most expansive possible interpretation of such circumstances.

12 Specifically, the Court is not required to give words a meaning other than their primary meaning, unless the context indicates that that should be done. The primary meaning of the word “and” is conjunctive.

13 The requirement of disability is, in my opinion, intended to limit compensable shock to that which is serious enough to impact on a person’s lifestyle, work or study. This is not a narrow range of disabilities. The beneficial purpose of the Act is still well served if symptoms alone, without disability, are not compensable. I see no incongruity in a legislative requirement in the case of shock, as in the case of many other injuries, that symptoms alone are not enough to attract compensation.

14 The entry in the Table for the relevant injury is as follows:

“Shock
Lasting 6 to 13 weeks … 2,400
Lasting 14 to 28 weeks … 9,600
Lasting over 28 weeks (but not permanent) … 18,000
Permanent symptoms and disability … 48,000”

15 It should be noted that at the highest level of permissible recovery, in the phrase “permanent symptoms and disability”, the entry repeats the word “and” rather than “or”. A disjunctive reading is required twice.

16 The Table makes express provision only for shock lasting six weeks or more. There is no necessity, in the exercise of the power in cl 13(3) to either “interpret” this part of the schedule or to establish whether “the injury is a compensable injury” or, so far as I can see, for any purpose “relating to the application of the schedule”, to reiterate in cl 5(a) the minimum period of six weeks. In this respect 5(a) is entirely redundant. The only purpose of cl 5(a) is to introduce the formulation “symptoms and disability” into this particular part of the statutory scheme. If the word “and” in this formulation is read as “or” then cl 5(a) has no work to do. The only work that I can see for cl 5(a) is to establish that both the symptoms and the disabilities, as thereafter specified, must continue for more than six weeks.

17 Neither the word “symptom” nor the word “disability” is defined in the Act. Nor is there any reason to do so. The Table contains reference to injuries classified in terms which can be described as a “physical symptom”. The Table also includes numerous express references to the word “disability”.

18 Many of the physical symptoms identified as injuries in the Table may well be disabling, but others are not. For example, in the case of “epilepsy” three levels of compensation are provided for at three levels of increasing seriousness: “fully controlled”; “partially controlled”; and “uncontrolled”. Although the last category would involve some level of disability, that is not the case with the first. The category of “epilepsy” is defined in terms of a symptom, without reference to disability.

19 Numerous other injuries as listed in the Table, such as burns, injuries to various parts of the head - including various categories of injury to the ear, the eye, the nose - to scarring, etc. and various other parts of the body, are references of a character where the categorisation is by means of a physical symptom alone, without any requirement of disability.

20 There are, however, a number of matters where a physical symptom is required to be accompanied by disability. For example, under the category of “Lower limbs”, the following appears:

“ankle: fracture of one ankle (full recovery) … 7,200
ankle: fracture of one ankle (with continuing disability) … 12,000”

21 A similar distinction is made with respect to fracture of both ankles, sprain of one ankle, sprain of both ankles, fracture of both legs, fracture of thigh bone, fracture of one leg and, similarly, for numerous other body parts. In all these cases there must be both a physical symptom and a disability in some respect.

22 To similar effect is the following kind of distinction under the heading “Neck”:

“neck: strained (disabling for 6 to 13 weeks) … 2,400
neck: strained (disabling for more than 13 weeks) … 4,200
neck: strained – seriously disabling (not permanent) … 12,000
neck: strained – seriously disabling (permanent) … 24,000”

A strained neck which is not disabling is not compensable. Such distinctions are also made under the heading “Torso” with respect to various line items relating to “strained back”, “wrist: sprain”, etc.

23 A third kind of reference to disability is contained in the following line item:

“lung: smoke inhalation in both lungs (permanent and disabling damage)”

24 Of particular relevance for the construction of cl 5, under consideration in these proceedings, is the following injury:

“Disease or other recognised medical illness causing disability (not being a disease or illness of the mind)
disability lasting 6 to 13 weeks … 2,400
disability lasting 14 to 28 weeks … 9,600
disability lasting over 28 weeks (but not permanent) … 18,000
permanent disability …48,000.”

25 This general category, applying to all ‘diseases’ and ‘recognised medical illnesses’ expressly excludes mental illness, for which the only provision is the category “shock” as explained in covering cl 5. This general provision expressly requires that the illness or disease cause “disability”, before compensation is payable.

26 Every reference to an injury in the Table is capable of being characterised as a reference to either a physical symptom alone or a physical symptom together with a disability. There is no reference in the Table to recovery for disability alone. There is no reference in the schedule to recovery for either symptoms or disabilities. All of the references I have set out above require both a symptom and a disability wherever there is any reference to disability. I see no difficulty in this context, in allowing the word “and” in cl 5(a) to mean what it says.

27 The distinction between these two kinds of line items, explains the use of the word “or” in cl 8(b). That section, quoted above, applies only to an injury that is “similar to an injury specifically mentioned in the table”. There are injuries in which the symptoms for an injury, to which the injury under consideration must be “similar”, are stated unadorned by any reference to disability. In other cases, both symptoms and disability appear in the relevant line item to which the injury under consideration must be “similar”. There will, accordingly, be cases in which there need only be “symptoms” for the purpose of the relevant analogy. There are other cases in which there has to be both a symptom and also a disability. The use of the word “or” in cl 8(b) is a recognition that there are cases in which no disability is required at all. It is an inelegant shorthand for the phrase “and if required at all”.

28 One of the issues which arose in the course of construing cl 5(a) is the effect of a non-exhaustive construction of the list of factors specified after the word “includes” in each of cl 5(c), (d) and (e). It was submitted that the fact, if it be such, that these lists are not exhaustive supports an expansive interpretation of cl 5(a). What is the point, relevantly, of requiring a disability to co-exist with symptoms, if anything capable of constituting a disability would suffice? Mason P takes this matter into account.

29 Counsel for the Appellant accepted that the matters listed in each of cl 5(c), (d) and (e) were illustrative. However, the proper construction of a statute, particularly a section not falling for determination, is not a matter for admission by counsel. In the absence of full argument, I would not wish to express a final opinion. However, I am not prepared to approach the construction of cl 5(a) on this basis.

30 The word “includes” has been given an exhaustive meaning where the context in which it appears indicates an intention to confine a general word by providing a limited list of words. Indeed, even though the primary meaning of “include” is expansive, where the words that follow would ordinarily fall within the meaning of the general word, the fact that they are expressed will often indicate an exhaustive or exclusive use of “includes”. (See e.g. YZ Finance Co v Cummings (1964) 109 CLR 395 at 398-399, 401-402, 403; Dilworth v Commissioner of Stamps [1899] AC 99 at 105-106. A number of authorities have recently been discussed by Malcolm CJ in R v Tkacz [2001] WASCA 391 esp at [45]-[56]. See also Pearce and Geddes Statutory Interpretation in Australia (5th ed) at 6.56-6.60.)

31 As presently advised, I am unable to identify any function to be performed by the contents of subclauses 5(b)-(e), unless they are words of limitation. No other provision of the Act contains words which are merely illustrative.

32 I attach significance to the fact that cl 5 is an operational clause, not merely definitional. Such a clause is more likely to be exhaustive than illustrative.

33 The language of cl 5(b) clearly suggests an exhaustive list: i.e. the words “comprises conditions” which are attributed to certain specified mental illnesses or similar illnesses. These are, in my opinion, clearly words of limitation. Conditions of a character not attributable to the identified mental illnesses, but to some other mental illness, are not recoverable.

34 Similarly, each of the lists contained in (c), (d) and (e) is, in my present opinion, intended to provide an exhaustive list. In this context the word “include” in each of these paragraphs of cl 5 must be understood in the sense of “means and includes”. I can see no statutory purpose to be served by a partial list of possible psychological and physical symptoms, let alone of possible disabilities. It would be the only such list in the Act.

35 When in cl 5(e) reference is made to “significant adverse effects on social relationships” as a “relevant disability”, the purpose of the provision is to prevent recovery for a disability which is not “significant” in this sense. The use of the word “significant” imposes a higher requirement of disability, in the cases of impact on social relationships, than in the cases of “work” or “school or other educational performance”, for which it is sufficient if there is a mere impairment. The restrictive intent is reinforced by the fact that the introductory words are “Relevant disabilities”. This indicates that there are “disabilities” which are not “relevant”.

36 I am not prepared to base my construction of cl 5(a) on the assumption that cl 5(c), (d) and (e) are merely illustrative.

37 I should indicate that I agree with Mason P, for the reasons his Honour gives, that the observations of Blackburn J in Re The Licensing Ordinances (1968) 13 PLR 143 at 146-147 should not be understood as a complete statement of when the word “and” can be understood as “or”.

38 In my opinion this Court should make orders 1 and 2 in the Amended Summons filed herein. In accordance with the Claimant’s indication that it would pay the Opponent’s costs in any event, the Court should order that the Claimant pay costs.

39 MASON P: The first and second opponents were living together in Wollongong on 15 March 1998. Answering a knock at the door, the first opponent Mr Brown was stabbed, punched and kicked by a man named Spada. The second opponent Ms Lewis was standing nearby and she witnessed the attack. Spada was subsequently convicted of malicious wounding.

40 On 5 May 1998 these opponents claimed compensation pursuant to the legislation now known as the Victims Support and Rehabilitation Act 1996 (the Act). The first opponent claimed as a primary victim, and he sought compensation with respect to his physical injuries as well as for “shock”. The second opponent claimed as a secondary victim, and her claim was limited to compensation for “shock” from witnessing the attack on Mr Brown. These proceedings involve the shock claims.

41 A primary victim of an act of violence is a person who receives a compensable injury, or dies, as a direct result of that act (s7(1)). A secondary victim of an act of violence is a person who receives a compensable injury as a direct result of witnessing the act of violence that resulted in the compensable injury to, or death of, the primary victim of that act (s8(1)).

42 Schedule 1, with its clauses and Table, specifies the injuries that are “compensable injuries” and specifies, as the standard amount of compensation for a compensable injury, a specified amount or an amount within a range of specified amounts (see s10). The regulations may amend Schedule 1 by substituting or amending the schedule of compensable injuries (s12).

43 Among the substantial amendments to the Act effected by the Victims Compensation Amendment Act 1998 were the omission of the matter relating to “shock” in cl 5 and in the Table to Schedule 1. These were replaced by new provisions relating to “psychological or psychiatric disorder”. The old provisions continue to have effect in the case of persons who (like the present opponents) applied for statutory compensation for “shock” before the omission of those provisions (see Schedule 3, cl 12. The operative date is 7 April 1999.). This Court was informed that there are many such pending claims likely to be affected by the decision in these proceedings.

44 The former provisions in the Schedule dealing with shock with which these proceedings are concerned are:

5. Shock

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.



Table
Column 1 Column 2
Description of Injury Standard amount of compensation

……

Shock

Lasting 6 to 13 weeks $ 2,400
Lasting 14 to 28 weeks $ 9,600
Lasting over 28 weeks (but not permanent) $18,000
Permanent symptoms and disability $48,000



The claims and the proceedings in the district court

45 An Assessor upheld the primary victim’s claim relating to his physical injuries and assessed compensation totalling $9.771.00 plus legal costs and disbursements. However, the two victims’ claims for shock were dismissed on the basis that the medical reports did not establish any disability within par (e).

46 The victims appealed to the Victims Compensation Tribunal (cf s31), apparently relying upon the evidence that had been placed before the assessor. Their appeals were determined jointly and were dismissed. The decision of the Assessor was affirmed.

47 Reasons were given by the Assessor and the Tribunal. It is unnecessary to determine if they form part of the District Court record for the purposes of the doctrine of error of law on the face of the record. Sufficient extracts from them were reproduced in the District Court judge’s reasons which are the primary focus of this application.

48 The victims appealed to the District Court (cf s39). In their respective Notices of Appeal which joined the Victims Compensation Fund Corporation as respondent, they stated their intention to appeal against the Determination made by the Tribunal “whereby the Respondent (sic) declined to award compensation to the appellant for the injury ‘shock’ as defined in schedule 1”.

49 The right of appeal is subject to the leave of the District Court “on a question of law arising in” the determination of the application by the Tribunal. Certain matters are deemed not to be questions of law (s39(2); see generally Victims Compensation Fund Corporation v Ainsworth (2001) 51 NSWLR 466 at 473-4.)

50 The Notices of Appeal assigned three errors of law, but only one was pressed in the District Court:

The Tribunal erred in law by misinterpreting the definition of shock as defined in the Schedule to the Victims Compensation Act.

51 Judge Phelan upheld the appeals. He made the following orders:

1. He gave leave to appeal.

2. He set aside so much of the determination in Mr Brown’s appeal as related to the claim for nervous shock and set aside the determination in relation to Ms Lewis.

3. He remitted the matters to the Tribunal to be considered and determined in accordance with his (reasons for) decision.

4. Costs were awarded.

The current application

52 The claimant seeks orders that the record of proceedings in the District Court be removed into this Court and that the orders made by Judge Phelan be quashed. This claim invokes the Court’s supervisory jurisdiction with respect to the District Court in relation to error of law appearing on the face of the record of the proceedings in that Court. In this context, the face of the record includes the reasons for ultimate determination (Supreme Court Act, s69(3), (4)).

53 The claimant also seeks declarations that the District Court lacked jurisdiction in the matter generally (in light of s39(3) of the Act) and in relation to a particular aspect of the remedy granted to the first victim (in light of s39(5)).

54 The claimant has indicated that it will meet its own costs regardless of the outcome of the proceedings.

55 The victims assumed the active role in these proceedings. The third opponent (the District Court of New South Wales) submitted except as to costs.

56 The claimant submits that Phelan DCJ erred in concluding that the Tribunal had misinterpreted cl 5 of Schedule 1. The written and oral submissions advanced three broad challenges. It was submitted that:

1. The judge failed to appreciate that cl 5 (taken as a whole) stipulates the criteria for the compensable injury of “shock”. (I shall call this the cl 5 code error);

2. The judge failed to appreciate that par (a)’s requirement that “the symptoms and disability [must] persist for more than 6 months” imposes cumulative requirements. Both symptoms and disabilities must co-exist for the minimum period (the non-cumulation error);

3. The judge lacked jurisdiction to entertain and determine the appeals because he was in effect determining whether the injuries for which compensation had been claimed were injuries specified in Schedule 1 or whether they were compensable injuries of a particular description specified in that schedule, contrary to s39(3)(a) (the jurisdictional error).

There is a fourth complaint pertaining to the particular remedy granted to the primary victim Mr Brown. It is contended that:

4. The judge erred in leaving standing that portion of the determination in favour of Mr Brown as related to his physical injury, contrary to s39(5) (the remedial error).

57 I turn to these issues.

The clause 5 code error

58 This criticism appears in the written submissions and was repeated in oral argument. It was contended that the judge failed to address cl 5 as a whole and that he thereby ignored the prescriptive effect of the opening words “The following applies to the compensable injury of shock”.

59 There is no substance in this complaint. The judge appreciated that cl 5 set the scene for determination of the shock claims and that it had to be construed as a whole, in the context of the Act as a whole.

60 The complaint really focuses on the outcome of the construction exercise rather than its essential process. To that issue I now turn.

The non-cumulation error

61 The principal challenge to the primary judge’s reasons attacked the conclusion that it was not necessary that both symptoms and disability persist for more than 6 months.

62 Judge Phelan said:

Clause 5 of Schedule 1 deals with shock. It does not purport to define shock but simply says “The following applies to the compensable injury of shock”. Both the Assessor and the Tribunal interpreted the clause in a restrictive way. Their interpretation appears in the following passages of their decisions, going first of all to the Assessor:
“To establish shock an application must show that he/she has suffered symptoms, disability and that the injury comprises conditions attributed to post traumatic stress disorder, depression and similar conditions. These ‘elements’ requisite to establish an injury in pursuance of cl 5 of Schedule 1, are also required to be co-existing for at least a minimum period of six weeks.”
Later on the Assessor said:
“In the absence of the full elements of cl 5 of Schedule 1 being established, a claim for shock for any duration must fail.”
On appeal the Tribunal had this to say:
“The issue in the appeal is whether or not the compensable injury of shock is established. The criteria for that injury are set out in cl 5 of Schedule 1.”
Later it said:
“The reports diagnose a post traumatic stress disorder and certainly detailed many symptoms (examples of which are set out in cl 5(c) and (d)). However, I am not satisfied that the reports establish any disability, examples of which are set out in cl 5(e).”
Later:
“I am not satisfied that the compensable injury of shock has been established in that I am not satisfied that the criteria required by cl 5(e) and (a) are met.”
The issue is whether the Tribunal must be satisfied of each of the matters in 5(a) to 5(e) or at least 5(a) and 5(e). Put another way, are they conjunctive or disjunctive or as some text writers say dispersive? The Assessor concluded that each of 5(a) and 5(e) must be satisfied. In the case of the Tribunal it is less clear whether (b), (c) and (d) had to be satisfied as well as (a) and (e).
It is clear that there must be a finding that the shock must persist for more than six weeks. The stipulation in para 5(a) to that effect is really surplusage as the requirement is stipulated in the table to Schedule 1 under shock.
That aside, the definition of nervous shock at neither level was the subject of any considered interpretation.
It seems to me the interpretation is the consequence of the wording of 5(a) which provides that “symptoms and disability” must persist for more than six weeks so that there must be both symptoms and disability for six weeks.
Clause 8(b) throws some light on the issue where in the case of injuries not specifically mentioned, the injury must “cause symptoms or disability” lasting for at least six weeks. Clause 9 speaks of the extent of the injury or the effect of the injury, reflecting abstractly disability or symptoms.
There seems no justification for the shift between cl 5 and clauses 8 and 9. Clause 5 deals with conditions, physical symptoms, psychological symptoms and disabilities. Each of the remaining paragraphs of cl 5 do not claim to be in themselves exhaustive. Thus in 5(b) the injury “ comprises conditions attributed to post traumatic stress disorder, depression and similar conditions ”, 5(c) and 5(d) deal with psychological and physical symptoms respectively and list a number of matters. By way of introduction it uses the word “include”, so does not purport to cover the field.
Finally 5(e) deals with relevant disabilities, and again uses the word “include”.
The Act does not otherwise use the word “disability”, save in the table to Schedule 1, where disease is compensable or other recognised medical illness causing disability….
Asthma and several forms of alopecia may result from nervous shock (see Butterworths Medical Dictionary 2nd edition). It would be absurd to suggest that if each were the only symptom that it was necessary to prove some additional disability of the type listed in (e) of a victim who did not work, was not at school, was not receiving education, was not sexually active and lived in social isolation, otherwise his/her injury would be non compensable.
The structure of para 5(a) to (e) in my conclusion represent a number of facets of an injury in terms of conditions, symptoms and effects of symptoms in the form of disability. They do not comprise an exhaustive list. It has been inserted, in my conclusion, to assist the Tribunal in categorising the different forms of nervous shock ranging from purely psychological to psycho-somatic to purely physical and which may or may not have protean effect on the ability of the victim to function in life.
As most victims who have a disability have symptoms and vice versa, the issue will often be academic, but as I have sought to demonstrate this will not always be so.
I turn now to a consideration of the interpretation of the word “and” in cl 5(a). According to Statutory Interpretation in Australia by D C Pearce (1974) p23:
“In ordinary parlance the word ‘and’ is used conjunctively and the word ‘or’ disjunctively. But one quite often finds arguments being put to the courts that items connected by ‘and’ should be treated as alternatives and likewise that items connected with ‘or’ should be treated as being cumulative. These arguments are encouraged by the fact that the courts have on occasions been prepared to read ‘and’ as ‘or’ and vice versa. However, a study of the cases indicate, as Blackburn J pointed out in Re The Licensing Ordinance (1968) 13 FLR 143, that the circumstances in which the courts are prepared to modify the language of an Act in this manner are limited to two categories. First, the court may be persuaded that the Legislature has made a mistake in the Act and the wrong conjunction has been used. This is no more than the application of the golden rule approach and is applicable to other words as much as it is to the words ‘and’ and ‘or’.
[The judgment does not set out Blackburn J’s remarks concerning the second category. This may perhaps have been a typographical error, but nothing turns on this.]
In my conclusion the Legislature here meant ‘or’ and not ‘and’. This is particularly borne out by cl 8(b) and cl 9(a) as well as the construction of 5(b) and (e) in terms of its purpose (see Re The Licensing Ordinance (supra); R v Oakes [1959] 2 QB 350; Associated Newspapers v Wavish (1956) 96 CLR 526; Re Kotses (1995) 132 ALR 409; Gillespie v Ford (1978) 19 ALR 102; Sullivan v R (1987) 47 NTR 31 and R v Green (2000) 133 NTR 1 at p1).
If, as a matter of law, symptoms persisting for more than six weeks in the absence of a disability are compensable, then the Tribunal has misconstrued the clause. It seems to me that if the approach of Fullagar J is taken, then it follows that the appeal concerns a question of law.
The same result in my conclusion follows from propositions 1 and 4 of Pozzolanic [ Collector of Customs v Pozzolanic Enterprises Ltd (1993) 43 FCR 280 at 287].
It should also be pointed out that the Tribunal did not consider paragraph (c) of the definition of injury “mental illness or disorder (whether or not arising from nervous shock)”. This was not the subject of argument on appeal.
Whilst I suspect that the evidence does not support a finding of mental illness, it may be arguable that mental disorder may apply although I express no view in the absence of argument. Unless cl 8 can be invoked however, there are difficulties insofar as the schedule and table make no mention of mental illness or disorder (compare disease or other recognised medical illness causing disability) not being a disease or illness of the mind which appears in the table 1 of the schedule.
As this involves the interpretation of injury from the dictionary section of the Act, I conclude as a matter of law that the Tribunal should have considered the complete definition of injury.
(I have corrected obvious typographical errors in the original.)

63 These reasons disclose one clear point of disagreement between the Tribunal and the District Court on the interpretation of cl 5.

64 The Tribunal construed par (a) as having cumulative requirements in the sense that both symptoms (as defined non-exclusively in (c) and (d)) and disability (as defined non-exclusively in (e)) must co-exist and persist for more than six weeks.

65 By contrast, the judge construed the “and” in par (a) as disjunctive. He recognised nevertheless that the difference will be academic in most cases, because “most victims who have a disability have symptoms and vice versa”.

66 In my view the judge was correct. I agree generally with his reasons but I shall endeavour to express my own thought processes.

67 Five propositions can, I think, be stated about the general approach to cl 5. First, it forms part of an enactment that has remedial and beneficial objectives (s3). The principle of a liberal approach to the interpretation of legislation of this kind is engaged.

68 Second, it should be recognised that cl 5 performs more than one function in the context of the Act as a whole. The primary right to compensation for compensable injuries as regards primary victims is stated in ss14 and 17, and as regards secondary victims in ss15 and 17. “Shock” is a compensable injury referred to in the Table. The dual function of cl 5 is to set a six week threshold before compensation is payable for shock (par (a)) and to elucidate the meaning and scope of the expression “shock” (par (b)). Pars (c) –(e) provide definitional elaboration.

69 Third, par (a)’s prescriptive function of limiting the compensation payable with respect to this compensable injury cannot be doubted. The scope of that prescription is the issue upon which these proceedings largely turn. But what is clear is that no compensation is payable unless “symptoms and disability” (whatever that encompasses) persist for more than six weeks. If one reads this paragraph in light of ss6, 7 and 8 one discerns that par (a) provides an elliptical requirement that the injury that must be shown to have been present for not less than six weeks is “shock” that was a direct result of an act of violence (in the case of a primary victim) or of witnessing the act of violence that resulted in the compensable injury to, or death of, the primary victim of that act (in the case of a secondary victim).

70 Fourth, it is apparent that par (b) seeks to define “shock” by reference to manifested “conditions”, provided their aetiology is “attributed to post traumatic stress disorder, depression and similar conditions”.

71 Fifth, “conditions” in this context is a portmanteau expression relating to the victim’s state of health at the relevant time of enquiry. It is impossible to escape the conclusion that “conditions” embrace the psychological symptoms, physical symptoms and relevant disabilities that are loosely defined in pars (c)-(e) that follow. This conclusion is reinforced by the non-exclusive form of the definitions, none of which even contain controlling provision such as “and similar symptoms/disabilities”. The claimant may well be correct in suggesting that “symptoms” point to the manifestation of the injury and “disability” points to the latent lasting effect of the injury. But this only emphasises the considerable overlap involved.

72 Perhaps cl 5(a) was unnecessary in light of the Table providing no compensation for shock lasting less than 6 weeks. Maybe the draftsman wanted to emphasise the point. Maybe he or she mistakenly thought that this would insulate the Table from amendment by regulation, overlooking the scope of s12 which permits any part of the Schedule to be thus amended. Maybe, but only maybe, cl 5(a) supports the claimant’s argument by indirectly defining shock in the cumulative way contended for by the claimant. “Only maybe”, because cl 5(a) appears to address the different issue of durability, leaving s5(b)-(c) to define the compensable injury of “shock”.

73 With this background, I turn to the scope of par (a). In my view, it does not require proof of both symptoms and disability for more than six weeks. Either will suffice, as will a period of symptoms followed by a period of disability. This conclusion stems from the following considerations:

(i) “Symptoms and disability” means symptoms and disability constituting the compensable injury of shock as defined in pars (b)-(e). Were it otherwise, symptoms or disabilities lacking the requisite aetiology (cf par (b)) would be compensable. The clause is to be read as a whole, and the relevant “symptoms and disability” are those manifesting themselves in “conditions attributed to post traumatic stress disorder, depression and similar conditions” .

(ii) “Conditions” in par (b) picks up psychological symptoms, physical symptoms and relevant disabilities as defined (loosely) in pars (c)-(e). But it does not require proof of every category of psychological symptoms, physical symptoms and relevant disabilities. Any single “condition” will suffice.

(iii) These matters reinforce the interdependence of cl 5 as a whole. They also reinforce my approach to par (a) in particular.

(iv) As Phelan DCJ pointed out, it will be a rare case that relevant symptoms and disabilities do not coexist, a fortiori if one is dealing with “conditions” that satisfy the aetiological requirement of par (b).

(v) I cannot conceive of a reason why, in these circumstances, “symptoms and disability” in par (a) would have a mandatory cumulative requirement. It does not appear to promote the broad and beneficial legislative purpose. If anything, the converse is true.

(vi) The claimant’s argument also has to grapple with the hypothetical scenario where four weeks of “symptoms” were followed by two weeks of “disability”. The claimant agrees that the logic of its position involves rejection of such a claim for compensation. To say the least, that does not appear to further the statutory objectives.

(vii) In this Court, as below, much attention was paid to the word “and” in par (a). The claimant submitted that it must be read cumulatively, in accordance with its primary and natural meaning. It was said not to fall within either of the two exceptional categories stated by Blackburn J in Re The Licensing Ordinance (1968) 13 FLR 143, where he said (at 146-7):

The first category is that of cases where, if “and” was given its natural meaning, the result was so extraordinary (to quote Lord Parker CJ in R v Oakes [1959] 2 QB 350, “an absurdity or unintelligibility”) that in order to make sense of the provision the court was obliged to say that it must read the word “and” as if it had been “or”.
The cases in the second category were those in which there was a list of items being joined by “and” and the list being governed or affected by words which showed that the list was a list of alternatives. In such a case, the word “and”, which is used to join the items in the list, is truly cumulative; it links the members of a class and its function is to indicate that the whole class is to be considered together. Governing the words which enumerate the members of the class are other words which categorise the class, as a whole, as a class of alternatives … the word “and” inside the class does not have dispersive or alternative force; its force is wholly cumulative; it is the words outside the class which give the dispersive effect. That is the explanation of Associated Newspapers Ltd v Wavish (1956) 96 CLR 526…
The claimant cited and relied upon a passage of Professor Pearce’s Statutory Intepretation in Australia , 1st ed (1974) which endorsed Blackburn J’s reasoning and concluded that:

Beyond these two circumstances, the courts will not treat “and” and “or” as interchangeable: see also Colon Peaks Mining Co No Liablility v The Council of the Wollondilly Shire (1911) 13 CLR 438; Braham v Bannigan [1913] SALR 132 and Corocraft Ltd v Pan American Airways Inc [1969] 1 QB 616.


(viii) I would reject this approach to analysing the meaning of “and”. I cannot agree that Re The Licensing Ordinance or any other precedent establishes or could establish that “and” must always be treated as cumulative unless one or other of Blackburn J’s categories (or any other set of categories) are met. Language is too complex to be forced into such a categorical straitjacket. As I said recently in Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41 at [21] (Wood CJ at CL concurring):
Words … are necessarily to be read in context. This is a basic tenet of literary and legal construction ( Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1925) 35 CLR 449 at 455, Minister for Immigration v Eshetu (1999) 197 CLR 611 at 534). Holmes J reminds us that:
A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used: Towne v Eisner 254 US 418, 425 (1918).

Cases later than Re The Licensing Ordinance have recognised that “and” can attain a “dispersive” effect simply from the general statutory context ( Gillespie v Ford (1978) 19 ALR 102, Re Kotses (1995) 132 ALR 409, Secretary, Department of Employment, Education, Training and Youth Affairs v Gray (1999) 57 ALD 67 at 73-5). These are cited by Professor Pearce and Associate Professor Geddes in the current fifth edition of Statutory Interpretation in Australia .

The learned authors have also modified:
Beyond these two circumstances, the courts will not treat “and” and “or” as interchangeable: (first edition, par [30A])
so that it now reads

Beyond these two circumstances, the courts will be inclined to treat “and” and “or” as interchangeable: (fifth edition, par [2.26]).

Note also what the learned authors say at par [2.25] in the current fifth edition:

… it may be possible to correct some errors by resort to the purposive approach to interpretation set out in s15AA of the Acts Interpretation Act 1901 (Cth), or one of its counterparts. That could include reading ‘and’ for ‘or’ and vice versa if the purpose of the legislation suggests such an interpretation. This suggestion was adopted and applied by Carr J of the Federal Court in Smith v Papamihail (1998) 158 ALR 451 at 458-9.


(ix) Propositions (i)-(vi) reinforce my conclusion that “symptoms and disability” is a composite expression. Bennion, Statutory Interpretation 3rd ed (1997) pp431, 925-7 and Supplement (1999) pp S63-4 cites examples of composite expressions which must be construed as a whole, when it is incorrect to answer that the whole is necessarily the sum of its parts. In the Supplement at pp S63-4 the learned author states:

Pairs of words The phrase “repair or maintenance” … illustrates a common feature in legal expression, namely a liking for the use of pairs of words, whether in antithesis or apposition, in preference to a single term. The most common reason for this (often illusory) is the drafter’s reluctance to rely on one word, with the comforting feeling that a pair of terms somehow conveys more than the sum of its parts….
A frequent difficulty when pairs of words are used is whether both terms need to be satisfied, or whether one will do …. This depends on the context, and the purpose of the enactment. If an applicant is required to be “fit and proper” then obviously he must be both fit and proper. But if the use of a village green is required to be for the indulging by the inhabitants in “lawful sports and pastimes” then it will obviously not matter if a particular green is devoted exclusively to sports (but not pastimes) or pastimes (but not sports). The portmanteau is labelled “sports and pastimes”, and as long as the particular thing done is to be found within the portmanteau all is well (see below).
Weightless drafting The above leads to discussion of a related topic, weightless drafting. The good drafter, who has much to do, declines to waste time on matters that carry no weight….
It is unnecessary to argue about whether when the public indulge in a particular activity, say rabbiting, it is a “sport” or a “pastime” because if it is not one it is the other (unless of course it is neither). With this sort of portmanteau phrase it does not make any practical difference where the dividing line is drawn between the meanings of the two terms. Indeed there are likely to be overlapping meanings. The precise meaning of each term never needs to be ascertained, because there is no weight on it. In this particular instance, some members of the public will indulge on the green or common in sports, some in pastimes, and some in both. It would be absurd to suggest that the definition is not satisfied unless all members of the public who go on the green or common indulge in both activities.

(x) It will therefore be apparent that I view the phrase “symptoms and disability” as a composite or portmanteau phrase in its context in cl 5, which (for the reasons I have endeavoured to express) does not require proof that both symptoms and disability persisted concurrently for the minimum period. Provided pars (b)-(e) are met, par (a) is satisfied if either symptoms or disability persisted for the minimum period; or both did so; or one did so for part of the period and the other did so for the remainder.

74 I have not overlooked either side’s invocation of cl 8(b) of Schedule 1, which refers to “symptoms or disability” in a particular context. The claimant submits that this shows the draftsman using “or” when appropriate. The opponents submit that this shows that “and” in cl 5(a) should be read as “or”, otherwise cl 8(b) would impose a less stringent compensation test for injuries similar to those specified in Column 1 of the Table to Schedule 1. Neither of these competing arguments move me: the opponents’, because clause 8 is dealing with an entirely different context (“Injuries not specifically mentioned”); and the claimant’s, because it attributes too much force and purpose to a difference that strikes me as unintentional given the combined force of the matters to which I have adverted.

the question of law error

75 The declarations sought by the claimant seek to characterise the judge’s errors at higher (jurisdictional) levels.

76 The more substantial jurisdictional error is said to be that the District Court had no jurisdiction to entertain the conjoint appeals because the issue they raised was not a question of law. Section 39(1) gives an applicant for compensation a limited right of appeal to the District Court, being one (subject to the grant of leave) “on a question of law arising in any determination of the application by the Tribunal”.

77 The claimant does not suggest that the issued tendered in the Notices of Appeal failed to involve a question of law as that term is discussed in the case law and general literature (see eg Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, M Aronson, “Unreasonableness and Error of Law” (2001) 24 UNSWLJ 315). Rather, the complaint is that the District Court entered upon a matter precluded by s39(3)(a) which provides:

For the purposes of this section, the following matters are not questions of law:
(a) a determination of whether an injury for which compensation has been claimed 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.

78 The linkage between s39(1) (which confers a conditional right of appeal “on a question of law arising in any determination”) and s39(3) (which speaks of certain types of “determination” not being questions of law) is infelicitous. Nevertheless, the broad thrust is clear: an appeal that seeks to raise a question of law which relates to a determination falling within s39(3)(a) is not appealable.

79 The resolution of the jurisdictional issue raised by s39(3) is not confined to the reasons disclosed on the face of the record. Nevertheless, it is appropriate to examine them to see if they cast any light on the basis for the assumption of jurisdiction in this particular matter by the District Court. Section 39(1) and (3) are recited early in the judgment together with reference to cases discussing the distinction between law and fact (Collector of Customs v Agfa-Gevaert Ltd (supra), Australian Gaslight Co v Valuer General (1940) 40 SR(NSW) 126 and Victims Compensation Fund v Crowley [2000] NSWCA 378).

80 It is somewhat unclear whether any point based upon s39(3)(a) was taken in the court below, although this would not preclude the claimant from advancing a jurisdictional point of this nature. The judge addressed the issue compendiously when he said:

Although the issue in this appeal concerns the interpretation of clause 5 of schedule 1, dealing with shock, it neither deals with the issue of any injury specified in the schedule of compensable injuries nor whether it is a compensable injury of a particular description specified.

81 Ainsworth’s case illustrates that s39(3)(a) must be approached according to its literal terms (fairly construed) and that not every issue concerning the construction of Schedule 1 falls within s39(3)(a)’s preclusion. There it was held that cl 4 of the Schedule, which deals with the aggravation of an existing condition, is not a separate criterion of entitlement to compensation for a compensable injury, but a qualification to entitlement. The statutory entitlement stems from ss14 and 17, which impose their own causal criterion that the primary injury be received as a direct result of the act of violence. A question of law raising this issue of causation was held not to have been excluded by s39(3)(a) from the appellate jurisdiction of the District Court. I said at 473 [42] :

Section 39(3) is curiously expressed in its reference to “a determination” not being a “question of law”. However, the intended effect is reasonably plain: the reasoning leading to a determination of either category referred to in s39(3) is deemed not to involve any question of law, even if its language would otherwise suggest or involve legal as distinct from factual analysis. Nevertheless, subs (3) does not state that every aspect of a determination concerning a claim for statutory compensation is incapable of giving rise to a competent appeal. Paragraph (a) deals with a specific issue, namely whether an injury for which compensation has been claimed is an injury specified in Schedule 1 or whether it is a compensable injury of a particular classification specified in Schedule 1. Section 39(3) has plenty of work to do in dealing with disputes about which category in the table of injuries fits a particular fact situation.

Priestley JA and Giles JA agreed.

82 The present case is similar, although it is arguably closer to s39(3)(a) because it involves the construction of the schedule (cl 5) and not some antecedent issue posed in the main body of the statute. Nevertheless, the issue raised by the victims in their notices of appeal to the District Court was not that of determining whether “shock” had been suffered, whether the injuries allegedly suffered were “specified” in the schedule or whether it was a “compensable injury of a particular description specified” in the schedule. (I say this despite the formulation of the issue in the respective notices of appeal to the District Court: see above.) Rather, the matter which the District Court was called upon to address was whether the threshold of cl 5(a) was passed. For reasons already stated, cl 5(a) is elliptical: it really poses the issue whether symptoms and disability as a direct result of an act of violence persisted for more than 6 weeks. This looks back to ss14 and 15 and necessarily goes beyond the scope of s39(3)(a).

83 A dispute about the meaning or effect of cl 5(b) would engage s39(3)(a), because it would touch upon the determination of whether the injury of “shock” was “specified” in the Schedule. But cl 5(a) has a different function, as I have already indicated. The victims had asserted that their shock’s duration was “N/K” (not known) and continuing. The findings of the Assessor and Tribunal had not addressed or rejected these contentions, except on the basis that symptoms and disability had never co-existed for the requisite six weeks minimum. Neither Assessor nor Tribunal nor the District Court ever got to the stage of finding whether “shock” had been suffered as the direct result of the criminal assault, nor which of the four specified periods in Column 1 of the Table was engaged.

84 The claimant submits that the enquiry embarked upon in the District Court fell within s39(3)(a) because its indirect (fiscal) effect was to expose the claimant to a potential liability to pay compensation with respect to a compensable injury of a particular description specified in the Schedule, namely “shock”.

85 In my view s39(3)(a) is not engaged in such a broad brush manner. The literal terms of s39(3)(a) must be applied (Ainsworth) and it is not enough to point to an indirect fiscal consequence. The claimant accepts that the appeal to the District Court was not concerned with whether the injury was of a particular kind (written submissions §18) and that concession is fatal to its jurisdictional point concerning what I have termed the question of law error.

The remedial error

86 The order made in the District Court in the first opponent’s appeal set aside only so much of “the determination in Mr Brown’s appeal as relates to the claim for nervous shock”. This preserved the Assessor’s award for Mr Brown’s physical injuries and ensured that the remitter only addressed his shock claim.

87 The claimant submits that this offended s39(5)(b) which states:

(5) On an appeal, the District Court may only:
(a) affirm the determination of the Tribunal, or
(b) set aside the determination and remit the matter to be considered and determined again by the Tribunal (either with or without the hearing of further evidence) in accordance with the decision of the District Court on the question of law concerned.

88 With hesitation, I would uphold this point. My hesitation stems from concern about the wastefulness of opening up issues unaffected by the District Court’s decision on the appealable question of law. In proceedings for judicial review, certiorari may be granted partially, setting aside only portion of the orders made in the inferior court or body (Ainsworth at 474).

89 However, the Act consistently treats the outcome of the victim’s application as a single, composite determination constituted either by an award of statutory compensation or by dismissal of the application (see s29(1), 30, 33(1)). Notice of “the determination of the application” must be given to the applicant (s29(4)). Appeals to the Tribunal are brought “against the determination” (s36) and they result in a fresh determination (s38(4) or the affirmation or setting aside of the assessor’s determination with power to remit (s38(5)).

90 The reference to “any determination of a compensation assessor” in s38(5)(a) (which empowers the Tribunal to affirm or set aside the same) appears at first blush to go against this trend. However, I would read this as embracing the range of alternative outcomes expressly contemplated in the Act (cf s29(1)) rather than as authority for the dissection of a single determination into its constituent findings.

91 The section dealing with appeals to the District Court is consistent with the approach which I favour. Thus, s39(1) speaks of questions of law arising “in any determination of the application by the Tribunal” and s39(2) speaks of “notice of the determination made by the Tribunal”.

92 The first opponent submits that Phelan DCJ did not infringe s39(5) because the first opponent’s appeals to the Tribunal and the District Court concerned a discrete aspect of the Assessor’s determination, ie his finding in relation to nervous shock. I think that this elides two distinct matters: the subject matter of the appeals (respectively the determinations of the Assessor and the Tribunal) and the grounds of those appeals.

93 I propose the following orders:

1. Remove the record of the proceedings in the District Court in appeal 317/00 and quash so much of the orders made by Phelan DCJ as limited the setting aside of the determination in Mr Brown’s appeal as related to his claim for nervous shock.

2. Otherwise summons dismissed.

3. Claimant to pay opponent’s costs.

94 McCLELLAN J: I have had the benefit of reading the judgment of Mason P in draft.

95 The Victims Support and Rehabilitation Act 1996 is structured so that compensation is payable for the injuries specified in column 1 of Schedule 1, which is expanded by cl 8 of the Schedule. In this case, the relevant injury is “shock”, which the Table provides must last for at least six weeks before compensation is payable. The award will vary depending on the duration of the shock. If an eligible victim suffers “permanent symptoms and disability” the maximum award is payable.

96 Shock is defined in cl 5(b) of the Schedule. It “comprises conditions attributed to post traumatic stress disorder, depression and similar conditions.” Accordingly, the relevant injury exists if the identified “condition” exists. That condition may be manifest from the presence of either the symptoms of shock, of which sub-cl (c) and (d) of cl 5 provide a non-exhaustive catalogue and may be accompanied by identified disabilities. It may also be manifest from the presence of either the relevant symptoms alone or, and this is less likely, from the presence of disabilities alone.

97 The use of the word “and” in both sub-cl (a) and in the Table in relation to shock which is permanent, creates difficulties of construction. However, as Mason P has emphasised, the legislation is remedial, having as its purpose the compensation of victims of crimes of violence. Consideration of the many injuries listed in the Table indicates that compensation may be payable in respect of injuries which are both disabling and others which are not.

98 The Table is not exhaustive. Clause 8 provides that injuries similar to those specifically mentioned are compensable if the injury has caused symptoms or disability lasting for at least six weeks. Accordingly, at least for the purpose of cl 8, the injury is compensable provided either symptoms or disability are present, but, they need not occur together.

99 As Phelan DCJ observed, it would be remarkable if the legislature intended that innominate injuries are compensable when either the symptoms or disability persist but in respect of the injury of shock, the position is otherwise. A construction of cl 5 which acknowledges that the condition of shock exists for the relevant period but denies compensation because either the symptoms or disability do not exist together for the relevant period or alone for the whole of that period, should only be accepted if no other construction is available. For the reasons stated by Mason P, the alternative construction is available.

100 I agree with the orders proposed by Mason P and his reasons.

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