Owen v Victims Compensation Fund Corporation [1999] NSWDC 16

New South Wales District Court

CITATION : Owen v Victims Compensation Fund Corporation [1999] NSWDC 16 TRIBUNAL : Victims Compensation Tribunal PARTIES : Catherine Ann Owen Victims Compensation Fund Corporation FILE NUMBER(S) : 410 of 1999 CORAM: Puckeridge DCJ CATCHWORDS: disability - Schedule 1(5) - shock :- whether disability need be significant LEGISLATION CITED: Victims Compensation Act 1996 CASES CITED: Couley v Victims Compensation Fund Corporation DATES OF HEARING: 29/11/99 DATE OF JUDGMENT: 29 November 1999

JUDGMENT: HIS HONOUR: In the matter of Catherine Owen leave is sought by the appellant to appeal against a determination of the Tribunal of 23 June 1999. In that determination the Tribunal stated that it is not sufficient for a "disability" to have some merely adverse effect upon the applicant and it is stated by the Tribunal that the disability must amount to a significant impairment or a significant adverse effect in an important area of daily functioning. Is the impairment referred to therein referring to impairment in work? HILL: Yes, your Honour, you'll see up on the second paragraph on page 2 of the determination--

HIS HONOUR: "Any impairment must be significant". HILL: Yes. HIS HONOUR: Yes, I see that. HILL: There's reference to avoiding serving suspicions at people and loss of interest in work and there are the symptoms or some of the symptoms that he refers to in that final paragraph under "disability".

HIS HONOUR: The Tribunal indicated in the matter of Owen that any impairment in work, school or educational performance must be "significant", just as "adverse effects" referred to in the same clause must be significant. For the reasons referred to in the decision in Couley I consider that the Tribunal erred in this regard. If the word "significant" was to apply to the matter of impaired work or school or other educational performance there would be no reason why that word could not in fact have been put in by the legislature before those words. In other words, the subpara (e) of cl 5 would read, "relevant disabilities include significant impaired work or school or other educational performance". In fact the word "significant" does not appear in that clause but appears in the subparagraph by reference to "significant adverse effects on social relationships and sexual dysfunction". It is the adverse effects on social relationships and sexual dysfunction that must be significant, not the impaired work or school or other educational performance. It may be that such impaired work or school or other educational performance may have a significant adverse effect but that is a matter for the Tribunal. Certainly a reading of subpara (e) of cl 5 does not indicate that any impairment of work or school or other educational performance need be significant. I accordingly remit the matter to the Tribunal to be determined in accordance with law and indicate in accordance with s 39(5) the basis upon which that clause is to be interpreted. It is agreed between the parties that the respondent is to pay the appellant's costs in respect of the motion and the appeal.