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VICTIMS COMPENSATION - Victims Support and Rehabilititation Act 1996, Schedule 1, Table 1, cl 5 (now repealed) - "shock" - whether compensation payable unless both symptoms and disability persist for more than 6 weeks.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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Victims Compensation Fund v Brown [2002] NSWCA 155
Case
[2002] NSWCA 155
Decision Date
CaseChat Overview and Summary
The Victims Compensation Fund (the Fund) appealed a decision of the District Court of New South Wales concerning a claim for compensation by Mr. Brown under the *Victims Support and Rehabilitation Act 1996* (NSW). The dispute centred on the interpretation of clause 5 of Schedule 1, Table 1 of the Act, which stipulated that compensation for "shock" was payable only if both the symptoms and the resulting disability persisted for more than six weeks. The Court of Appeal of New South Wales was required to determine whether the word "and" in this clause should be interpreted as a conjunctive "and" or a disjunctive "or".
The primary legal issue before the Court of Appeal was the proper construction of clause 5 of Schedule 1, Table 1 of the *Victims Support and Rehabilitation Act 1996*. Specifically, the court had to decide whether the requirement for compensation for shock, that both symptoms and disability persist for more than six weeks, meant that *both* conditions must be met, or if the persistence of *either* symptoms *or* disability for that period would suffice. This involved a question of statutory interpretation regarding the meaning of the conjunction "and" in a legislative context.
The majority of the Court of Appeal, comprising Mason P and McClellan J, held that the word "and" in clause 5 should be interpreted disjunctively, meaning "or". Their Honours reasoned that a conjunctive interpretation would render the provision unduly restrictive and potentially defeat the purpose of the Act, which was to provide compensation to victims of crime. They considered that the legislative intent was to compensate for the impact of shock, and that requiring both symptoms and disability to persist for an extended period was an unnecessarily high threshold. Spigelman CJ dissented, finding that the plain meaning of "and" in the provision was conjunctive. The majority allowed the appeal and remitted the matter to the District Court for redetermination.