Mangan v Victims Compensation Fund Corporation [2000] NSWDC 18

New South Wales District Court

CITATION : Mangan v Victims Compensation Fund Corporation [2000] NSWDC 18 TRIBUNAL : Victims Compensation Tribunal PARTIES : Margaret Mangan Victims Compensation Fund Corporation FILE NUMBER(S) : 1950 of 2000 CORAM: CATCHWORDS: disability - Schedule 1(5) - shock LEGISLATION CITED: Victims Compensation Act 1996 Sherritt Gordon Mines Limited v The Federal Commissioner of Taxation (1976) 10 ALR 441; Australian Gaslight Company v Valuer General (1940) 40 SR (NSW) 127 ; CASES CITED: Cozens v Brutus [1973] AC 854; Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389; Collector of Customs v Pozzolanic Enterprises Pty Limited (1993) 43 FCR 280 DATES OF HEARING: 10/8/01 DATE OF JUDGMENT: 10 August 2001

JUDGMENT: HIS HONOUR JUDGE HOSKING: The applicant/appellant Margaret Mangan appeals to this Court against the notice of determination of authorised Magistrate Mr Gabb dated 21 February 2000 and seeks orders that (a) she be granted leave to appeal, (b) the determination of the Magistrate and also the tribunal member dated 21 February 2000 be set aside and (c) the time for lodging her notice of motion be extended and that the matter be remitted to the tribunal for determination. The grounds of the appeal are that (a) the learned Magistrate erred in finding that no "shock" under the act had been established, (b) failed to give appropriate weight to the information before him and therefore erred in both fact and law (c) that the Magistrate's determination is contrary to the evidence and the weight of the evidence and (d) that the Magistrate erred in law in the construction of the term "disability". The applicant made an application for compensation under the terms of The Victim's Compensation Act 1996 in relation to an act of violence against her occurring on either 4th or 5 October 1995 when the appellant was assaulted by a man (presumably with a sexual intent) when she was walking in Annandale Street at Annandale about midnight on the way to visit a friend. The relevant provisions of The Victim's Compensation Act for the purpose of this appeal are s39 and also cl 5 of Sch 1. Cl 5 Sch 1 under the heading "Shock" provides the following applies to the compensible injury of shock: (a) compensation is payable only if the symptoms and disability persist for more than six 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 relations and sexual dysfunction. In terms of shock being compensible injury therefore, according to s cl (a) of cl 5, compensation is payable only if the symptoms and disability persist for more than six weeks. I note that in this case there is clear medical evidence that the problems that the appellant suffered from as a result of this assault persisted for considerably more than six weeks. Disability is not defined in The Victim's Compensation Act . According to the Concise Oxford dictionary the term disability means thing or lack that prevents ones doing something. According to the Macquarie dictionary, disability means a lack of competent power, strength or physical or mental ability. According to the Macquarie dictionary the term "disabled" means "to make unable, weaken or destroy the capacity of, cripple, incapacity". The Macquarie dictionary describes "symptom" as "perceptible change in the body or its function indicating injury or disease". For compensation to be payable there must be a perceptible change in the appellant's body or its function indicating injury, (including shock) preventing her doing something she could do in the absence of that change and persisting for more than six weeks. Under sub cl (b) of cl (S) of Sch 1, as have indicated injury comprises conditions attributable to post traumatic stress disorder, depression or similar disorders that is having their genesis or aetiology in such disorders. In terms of the symptoms or bodily changes by sub cl (d), the physical symptoms include various enumerated conditions and, by sub cl (c) of cl (S), the psychological symptoms include various enumerated conditions or states. In terms of the disabilities they produce, sub cl (e) enumerates various specific matters to be included as relevant disabilities. Sub cl (e) speaks of impairment of work or school or other educational performance, significant adverse affect on social relationships and sexual dysfunction. This demonstrates that it was the intention of the legislature that disability is to mean something more than the prevention of the exercise of some function and to include the impairment of it or weakening of it or according to one of the definitions I have quoted. The learned Magistrate recognised that disability included some impairment of function. The learned Magistrate qualified this by a requirement of being "material". On page 4 of his reasons for determination the Magistrate said; "It is not sufficient for a disability that there is merely some adverse affect upon the applicant. The notion of disability in cl 5 must be of some material impairment in an important area of daily functioning and is also to be contrasted with physiological symptoms and physical symptoms which also adversely effect the applicant..."