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.