New South Wales Court of Appeal CITATION : Victims Compensation Fund v Crowley [2000] NSWCA 378 FILE NUMBER(S) : CA 40201/00 HEARING DATE(S) : 18 July 2000 JUDGMENT DATE : 18 July 2000 PARTIES : Victims Compensation Fund Corporation v Steven Crowley & Anor JUDGMENT OF : Meagher JA at 1; Stein JA at 7; Brownie AJA at 10 LOWER COURT JURISDICTION : District Court LOWER COURT 422/99 at Newcastle FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER : COUNSEL : Claimant: R E Quickenden Opponent: D S Timmins SOLICITORS : Claimant: Victims Compensation Tribunal, Advocacy Services Opponent: Turnbull Hill CATCHWORDS : Victims Compensation Tribunal - appeal from - orders of District Court - Certiorari LEGISLATION CITED : Victims Compensation Act 1996, s39(1) DECISION : 1. Summons for leave to appeal granted and orders 1 and 2 in Summons made, 1) Judgment delivered on 8.12.99 by Goldring DCJ in the District Court at Newcastle in proceedings 422/99 at Newcastle be removed to the Court of Appeal and quashed; 2) the record containing orders made on 8.12.99 by Goldring DCJ in proceedings 422/99 at Newcastle be removed to the Court of Appeal and quashed; 2. The claimant, Victims Compensation Fund Corporation to pay the costs of the first opponent, Steven Crowley. - 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA: 40201/00 MEAGHER JA STEIN JA BROWNIE AJA Tuesday, 18 July 2000 VICTIMS COMPENSATION FUND CORPORATION v STEVEN CROWLEY AND ANOTHER JUDGMENT 1 MEAGHER JA: In this matter Mr Steven Crowley, the first opponent, was unfortunately bashed very severely in a public lavatory in a hotel in Newcastle, apparently on 26 February 1997. On 8 July 1997 he filed an application for compensation dated 29 May 1997. On 25 May 1998 that matter came before an assessor, who dismissed the application. On 12 August 1998 there was an appeal to the tribunal, constituted by the learned magistrate, Mr Gabb. At this stage it was clear enough what the nature of Mr Crowley's medical condition was. He suffered as a result of the violence to which he was subjected in the hotel. He suffered vertigo, probably by way of aggravation of pre-existing vertigo. But what was found against him when he appealed to the tribunal which dismissed his appeal on 18 March 1999 was that his condition was not permanent and therefore not compensable. 2 This arises in this way - under the Act it is not every act of violence which generates a right to compensation. The only act of violence which generates such a right are acts leading to injuries which are compensable injuries under the definition of the Act. The Act sets out the definition by means of a table which is in schedule 1 to the Act of what are compensable injuries. On that table there is no item which specifically deals with vertigo. One is not strictly limited to the table and may look at the table to see if something is similar to one of the items in the table. In the present case the tribunal considered whether the only item on the table which could possibly be similar, namely the item skull, balance impaired, permanent, could have permitted an award to be made in favour of Mr Crowley. The magistrate came to the conclusion it could not. His Worship's reasons were simply that an impermanent condition, which is what he found Mr Crowley to be suffering from, could not be considered to be reasonably similar to a permanent condition. That is a finding of fact which is not subject to review. 3 In coming to his decision Mr Gabb, after having recited what I have just in effect put, uttered these words: "mere exacerbation or aggravation of a pre-existing injury does not entitle the applicant to compensation. Cl 4 of Schedule 1 does not provide that mere exacerbation or aggravation of a pre-existing injury is compensable." 4 In the appeal to the District Court it was argued on behalf of Mr Crowley that those words contained an error of law. In my view his Honour was correct when he found that those words did demonstrate a mistake of law. But the difficulty which Mr Crowley faces is that it does not matter very much whether those words do or do not convey a mistake of law, for the reason that the whole question of exacerbation or aggravation is irrelevant. Once it is found that Mr Crowley's condition is not permanent, it must follow that there is no compensable injury and that would seem to be the end of the decision on any relevant facts. However, his Honour having seized upon that mistake of law, and having held that it was indeed a mistake of law, granted leave to appeal and remitted the matter to the tribunal, directing that further evidence be taken. I simply fail to see the point of that. There is no point in remitting the matter to the tribunal because there has been a mistake of law on a matter of no relevance. What would the tribunal do if the matter were remitted to it? All it could logically do is say our previous decision is affirmed, because nothing would have upset the finding that there was no compensable injury. 5 For those reasons and with great regret, because the matter has been put very ably indeed on behalf of Mr Crowley by Mr Timmins, I very much regret that I think the orders that should be made are orders 1, 2 and 3 as in the summons filed by the Victims Compensation Tribunal. 6 I have already indicated what orders I thought were appropriate, namely orders 1, 2 and 3 as sought in the summons. I shall amend that by restricting it to orders 1 and 2 in the summons. Order 3 set out in the summons is no longer sought and will not be made. However I should like to add one thing, Mr Quickenden has very generously, very properly, undertaken that the claimant, Victims Compensation Fund Corporation will pay Mr Crowley's costs of the present application, and I wish that to be noted. 7 STEIN JA: I agree with Justice Meagher and the orders he proposes. I have a few brief words to add to his Honour's reasons for decision. The task of the assessor and the tribunal on appeal was to determine whether there was a compensable injury. The assessor said there was not and the tribunal, on appeal, said the same thing. That finding in relation to compensable injury could not be directly challenged in the District Court under s 39 of the Victims Compensation Act. What the tribunal said about cl 4 of Schedule 1 regarding aggravation of a pre-existing injury was surplus and unnecessary to its decision. That clause only arises if there is found to be a compensable injury, and then applies to reduce the amount of compensation by the percentage of the pre-existing condition. 8 On behalf of the first opponent Mr Timmins submits that there was an error of law in the interpretation of cl 4 of Schedule 1 by the tribunal as per the decision of Goldring DCJ, and that that error coloured the decision of the tribunal on compensable injury. Even assuming that it was an error of law and his Honour was correct to so find, I do not see that it coloured the decision of the tribunal on the issue of compensable injury. 9 Accordingly in my opinion the claimant is entitled to succeed in its summons, and I agree with the orders proposed by his Honour. 10 BROWNIE AJA: I agree with both the judgments just given. 11 MEAGHER JA: The orders of the Court are the orders which I have suggested. 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