Walker v Victims Compensation Fund Corporation

[1999] NSWDC 22

New South Wales

District Court

CITATION:	Walker v Victims Compensation Fund Corporation [1999] NSWDC 22
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Shirley Walker Victims Compensation Fund Corporation
FILE NUMBER(S):	73 of 1999
CORAM:	Blanch DCJ
CATCHWORDS:	disability - Schedule 1(5) - shock
LEGISLATION CITED:	Victims Compensation Act 1996
CASES CITED:
DATES OF HEARING:	25/11/99
DATE OF JUDGMENT:	25 November 1999
LEGAL REPRESENTATIVES:	Ms Tredoux Mr C Lonergan

JUDGMENT:

HIS HONOUR: This is an appeal from a determination of the Victims Compensation Tribunal on 23 February 1999.

The appeal is based upon certain findings of the Tribunal in relation to cl 5 of Sch 1 of the Act. Relevantly that clause defines what is compensable injury by way of shock and in sub paras (a) to (e), certain definitions are given.

Cl 5 (e) says, "relevant disabilities include impaired work or school or other educational performance, significant adverse affects on social relationships and sexual dysfunction."

The Tribunal in looking at that said - in looking at the whole Act said there must be some significant impairment in an important area of functioning to constitute a disability. That may be so, but the Tribunal went on to say,

"Any impairment in work, school or educational performance must be significant, just as the adverse affects 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."

In my view that interpretation of cl 5 (e) is wrong. It is perfectly plain that the legislature gave thought to these illustrations in cl 5 (e) and when referring to adverse affects on social relationships, said they must be significant, but the legislature obviously chose not to use the word "significant" to describe the other matters referred to in cl 5 (e). It is therefore wrong in my view to interpret the clause as requiring each of those other matters to be significant.

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. I do not know in the circumstances, whether that will make any difference to the Tribunal's ultimate determination, but having found that there is an error in the interpretation of the clause, that is a matter of law, in respect of which this Court has jurisdiction and accordingly I allow the appeal and I set aside the determination of the Tribunal and I remit the matter back for further consideration of the Tribunal in accordance with my finding.

TREDOUX: Your Honour there was one further point of appeal and that was with respect again to that last paragraph of p 2 of the reasons and in particular the reference to "clinically significant impairment or adverse affects" and it's my submission that with respect to the use of the word "clinically" on the third line there in the reasons for determination. My submission in relation to that your Honour and I've included in my written reasons is that to use the word "clinically", to import that into the provisions effectively of cl 5 (e) places a far higher onus on an applicant for compensation, than my submission, it was intended by the legislature. Again it's similar to the submission with respect to the use of "significant", with--

HIS HONOUR: What does "clinically" mean.

TREDOUX: I don't have my dictionary with me, but I did look it up when the matter was last before the Court.

HIS HONOUR: I must say it just passed straight over me and the reason for that is that I just took it to mean that there had to be some - that he was just talking about the fact that there needed to be some expert evidence about this, it's nothing more than that.

TREDOUX: I don't have any difficulty if it's used by the Tribunal in that respect, my concern was with the reasons that the Tribunal gave in this matter, that it seemed with the import of "significant" in that first part of cl (e) and then we have "clinically", that it's continually increasing the height of the high jump if you like, that the applicant has to get over.

HIS HONOUR: I wouldn't uphold that I don't think, I think that's what he meant by "clinically" and that's probably right, but as long as that's all he meant, if at some time he gets around to defining it some other way, then we may have to deal with the point.

TREDOUX: Your Honour I seek an order for costs.

HIS HONOUR: I make an order for costs.

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