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[2003] HCA 54
appellant. Appeal allowed. Orders 1 and 2 of the Court of Appeal dated 28 May 2002 set aside. In lieu thereof, the record of the District Court proceedings is removed into the Court of Appeal, the orders of...
13 cited instruments linked from this judgment.
After a brutal stabbing at his front door, Scott Brown and the witness to the attack both suffered ongoing anxiety and other symptoms. They applied for compensation for 'shock' under a New South Wales victims scheme that listed exact payout amounts for different injuries. The law said compensation for shock was available only if 'the symptoms and disability persist for more than 6 weeks'. Both men had symptoms but no disability. The High Court decided 'and' means 'and': both things had to last more than six weeks. Because there was no disability, they could not be paid for shock. The Court said the ordinary meaning of 'and' should be followed, the scheme was deliberately designed with strict limits to control costs, and courts should not stretch the words just because the law helps victims.
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On 15 March 1998 the first respondent answered a knock at his front door and was subjected to a violent and prolonged attack in which he was punched, kicked and stabbed in the stomach area with a broken bottle. The second respondent witnessed the entire incident. The assailant was subsequently convicted of malicious wounding. Both respondents lodged claims for statutory compensation under the legislation then known as the Victims Compensation Act 1996 (NSW), now the Victims Support and Rehabilitation Act 1996 (NSW). The first respondent claimed as a primary victim under s 7(1) for both physical injuries and shock. The second respondent claimed only for shock as a secondary victim under s 8(1).
Compensation for "shock" was governed by the detailed table in Sched 1. Clause 5 of that Schedule provided that compensation is payable only if "the symptoms and disability persist for more than 6 weeks" and then set out what psychological and physical symptoms and what disabilities were relevant. Both respondents experienced psychological symptoms that lasted more than six weeks, but neither experienced any of the listed disabilities. Their claims for shock therefore stood or fell on the single question of whether the word "and" in cl 5(a) was conjunctive or disjunctive.
A compensation assessor refused the shock component. The Victims Compensation Tribunal dismissed an internal appeal. Phelan DCJ allowed appeals from the Tribunal. The New South Wales Court of Appeal (Mason P and McClellan J, Spigelman CJ dissenting) dismissed the Fund's summons for supervisory review of Phelan DCJ's orders. The High Court granted special leave, heard the appeal, and unanimously allowed it. McHugh ACJ, Gummow, Kirby and Hayne JJ each expressed agreement with the reasons of Heydon J. The Court set aside the Court of Appeal orders, quashed the District Court orders, and restored the Tribunal's determination that no compensation was payable for shock.
The procedural route was supervisory: the Supreme Court Act 1970 (NSW) permitted removal of the District Court record into the Court of Appeal and the quashing of orders for error of law on the face of the record. The High Court exercised that jurisdiction to produce finality on the construction question, noting that although cl 5(a) had since been repealed, many extant claims turned on the point.
Heydon J began with the ordinary meaning of language: "and" is conjunctive. He saw no textual, contextual, historical or purposive reason to depart from that meaning. The remainder of the Act repeatedly used "or" when a disjunctive sense was intended, most obviously in cl 8(b) and cl 5(e). The compensation table itself consistently required both a symptom and a disability wherever disability was mentioned; there was no line item compensating disability alone. Spigelman CJ's dissenting analysis in the Court of Appeal was adopted in full: the table's architecture showed that the legislature had turned its mind to the distinction and had chosen "and" deliberately.
The legislative history reinforced the point. Successive statutes had progressively refined and limited the compensation available for victims of crime. The 1987 Act had contained no equivalent schedule. The 1996 Act introduced a highly particularised table after the Auditor-General had warned that the existing scheme was financially unsustainable and could cost $2.5 billion over five years. The Second Reading Speech emphasised standardising awards, directing money to the most serious injuries, recognising continuing disability, and controlling cost. A conjunctive reading of cl 5(a) was consistent with that policy of imposing thresholds. The $2,400 monetary threshold in s 20(1), the $50,000 cap in s 19, and the reduction provisions in cl 4 of Sched 1 all pointed in the same direction.
The Court rejected the majority's reliance on the beneficial purpose of the legislation. While the Act undoubtedly had remedial objectives, that characterisation could not justify reading "and" as "or". Heydon J cited DP v Commonwealth Central Authority to the effect that one does not begin construction by deciding whether a liberal or narrow approach will be taken; the task is to find the meaning the words require. The statute defined with precision the circumstances in which compensation would be paid; it did not authorise universal recovery. The suggestion that "symptoms and disability" was a composite or portmanteau phrase was dismissed because subcll (c), (d) and (e) treated the two concepts as distinct. A hendiadys analysis was also rejected for the same reason.
Practical anomalies said to flow from the conjunctive construction (for example, symptoms for four weeks followed by disability for two weeks) were not decisive. Compensation legislation frequently contains thresholds that produce apparently harsh results in marginal cases. In any event, cl 8 provided a safety valve: a mental illness or disorder not precisely matching "shock" but similar to it could attract the shock award if it produced either symptoms or disability lasting six weeks.
The unanimous adoption of Heydon J's reasons by the other four justices indicates the Court regarded the point as narrow but important for the coherent administration of the scheme. The decision therefore rests on orthodox principles of statutory construction applied to a carefully drafted schedule that was itself the product of a deliberate policy choice to move away from common-law assessment of damages.
Before the 1996 Act, compensation for victims of crime in New South Wales had evolved from the limited power under s 437 of the Crimes Act 1900 (NSW) to order an offender to pay up to £500 (later increased to $10,000) out of the offender's property. The Criminal Injuries Compensation Act 1967 (NSW) introduced payment from consolidated revenue where the offender could not pay, and expanded "injury" to include mental shock and nervous shock. The Victims Compensation Act 1987 (NSW) created a Tribunal, removed the need for a conviction in some cases, and allowed compensation for pain and suffering and loss of enjoyment of life up to $40,000 for injury, subject to a $200 threshold. There was no detailed injury schedule and no equivalent to cl 5.
The 1996 Act marked a sharp change. It responded to the Auditor-General's warnings of fiscal unsustainability and the Brahe Review's recommendation for a scale. A comprehensive table replaced common-law assessment. Specific dollar amounts or ranges were fixed for named injuries. Shock was singled out for additional controls in cl 5. The monetary threshold rose from $200 to $2,400. The Second Reading Speech made clear that the schedule was intended to produce consistency, equity, and cost control while directing funds to serious cases and recognising continuing disability.
After the High Court's decision, cl 5(a) was repealed, but the transitional provisions preserved the old clause for claims lodged before 7 April 1999. The Court's authoritative statement that "and" is conjunctive therefore governed all such outstanding claims. The decision confirmed that the move to a scheduled, threshold-based system was intended to be prescriptive, not flexible. Later amendments continued the trend towards greater specificity and tighter eligibility. The case stands as a clear judicial endorsement of giving full effect to the detailed textual limitations chosen by Parliament in response to cost pressures.
Paragraph [6]: "In the expression 'symptoms and disability' the word 'and' should be construed conjunctively for the following reasons."
Plain English: The starting point is that "and" means both things are required. The Court will only depart from that ordinary English meaning if there is a very good reason in the rest of the law.
Paragraph [11]: (Adopting Spigelman CJ at [26]-[27]): "Every reference to an injury in the Table is capable of being characterised as a reference to either a physical symptom alone or a physical symptom together with a disability. There is no reference in the Table to recovery for disability alone... The use of the word 'or' in cl 8(b) is a recognition that there are cases in which no disability is required at all."
Plain English: When Parliament listed injuries it always linked disability to symptoms when it mentioned disability. It used "or" in other places when it wanted to allow compensation for one thing or the other. This shows "and" was chosen on purpose in cl 5(a).
Paragraph [29]: "To begin consideration of issues of construction by positing that a 'liberal', 'broad', or 'narrow' construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require."
Plain English: Judges should not start by saying "this is a helpful law so we will read it broadly". They must first decide what the actual words mean in their context. The beneficial purpose does not override clear language.
Paragraph [25]: Reference to the common-law scepticism about shock claims (citing Tame) and the legislative choice to impose a six-week coincidence requirement.
Plain English: Society and the law have always been wary of claims that someone has been psychologically damaged. It is therefore not surprising or unfair that the statute requires both measurable symptoms and actual disability before paying compensation for shock.
Paragraph [30]: "The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence '[t]he Court is not required to give the most expansive possible interpretation of such circumstances'."
Plain English: The Act sets out exact rules for who gets paid and how much. It was never meant to compensate every unpleasant experience. Courts should apply those rules as written rather than stretch them to cover more cases.
These passages collectively demonstrate the Court's insistence on textual fidelity over generalised appeals to beneficial purpose.
The ratio applies whenever a claimant seeks compensation for the injury of "shock" under the pre-1999 version of cl 5(a) and the symptoms and any disability did not overlap for more than six weeks. It is engaged if a victim has only psychological or physical symptoms listed in cl 5(c) or (d) without one of the disabilities in cl 5(e), or if the disability appears only after the symptoms have resolved, or if the total period during which both are present is six weeks or less.
Because the clause applied to both primary and secondary victims (ss 7, 8 and 14-15), the precedent covers witnesses as well as those directly attacked. It is not limited to violent assaults; any "act of violence" that produces shock is caught. The decision also indirectly governs claims for mental illness or disorder that are argued to be "similar" under cl 8: the Tribunal must still ask whether the condition is truly analogous to shock and whether the six-week requirement is satisfied.
The precedent does not apply to physical injuries, scarring, burns or other listed injuries that do not depend on cl 5. Nor does it govern claims lodged after the 1999 repeal, although the underlying principle of strict construction of thresholds remains relevant to the current scheme. Fact patterns in which a claimant can prove both symptoms and disability coexisting for more than six weeks are unaffected; they remain compensable at the amounts listed in the table (escalating from $2,400 for 6-13 weeks to $48,000 for permanent symptoms and disability).
The judgment itself treats the dissenting reasons of Spigelman CJ in the Court of Appeal as correct and adopts them at [11]-[12]. It therefore affirms that a careful, table-by-table analysis of the Schedule is the proper interpretive method. The High Court reversed the majority reasoning of Mason P and McClellan J, which had favoured a "liberal approach" and a "composite or portmanteau" reading. By expressly agreeing with Heydon J, the other four justices elevated the strict textual approach to binding authority.
The decision cites and applies the principle from DP v Commonwealth Central Authority that construction does not begin with an assumed liberal or narrow stance. It also draws on Tame v New South Wales to note long-standing scepticism about shock claims, reinforcing that a conjunctive construction is not anomalous. Earlier legislative history (the 1900, 1967, 1987 and 1996 statutes) is used only to demonstrate progressive refinement and cost control; the Court does not overrule any prior decision but distinguishes the less structured 1987 Act, which lacked any equivalent schedule.
Because the High Court spoke unanimously on a point that had divided the Court of Appeal, the decision has settled the construction for all transitional claims. The judgment notes that the appellant Fund expected the ruling to govern "many claims", indicating its systemic importance. No part of the reasoning suggests any residual ambiguity; the conjunctive reading is presented as the only construction consistent with the text, the deliberate use of "or" elsewhere, and the legislative purpose revealed in the Second Reading Speech and the Brahe Review.
The judgment leaves open exactly what constitutes a "disability" for the purposes of cl 5(e). While it lists "impaired work or school or other educational performance, significant adverse effects on social relationships and sexual dysfunction", borderline cases (for example, mild interference with social functioning that falls short of "significant") are not resolved. The Court also does not define the precise temporal overlap required; it is clear that both must persist for more than six weeks, but the judgment does not address whether intermittent symptoms and disabilities that together exceed six weeks but never coincide would suffice.
The interaction between "shock" and the broader definition of "injury" (which includes mental illness or disorder whether or not arising from nervous shock) is only partially explored. Heydon J notes that a condition falling outside the strict shock description might still qualify under cl 8 as similar, but the boundaries of that similarity test remain fact-sensitive and are not exhaustively mapped.
The Court expressly declines to decide whether the conjunctive construction produces harsh results in every marginal case; it holds that even if it does, that would not override clear statutory language. Accordingly, questions about whether the Tribunal retains a residual discretion to award something for profound but short-lived shock, or whether constitutional arguments could be raised against the thresholds, are untouched.
Finally, although cl 5(a) has been repealed, the judgment does not address how analogous language in the replacement provisions should be read. The emphasis on ordinary meaning, textual consistency and cost-control purpose supplies guidance, but the precise wording of any new clause will require fresh analysis. These open questions illustrate that while the core construction point is settled, the practical application of the six-week threshold in unusual factual scenarios remains a matter for case-by-case evaluation within the strict textual framework the High Court has mandated.
"Where a person is convicted of any felony the Court in which he was tried, or any Judge thereof, may, on such conviction or at any time thereafter, direct that a sum not exceeding five hundred pounds be paid out of the property of the offender to any aggrieved person, by way of compensation for injury, or loss, sustained through, or by reason of, such felony."
Section 437 was amended several times between its enactment and its ultimate repeal in 1987. Among the more important amendments are these. In 1924, it was extended to misdemeanours[13]. In 1951, the maximum amount of compensation payable was increased from £500 to £1,000[14]. It was increased again in 1974 to $4,000[15]. It was further increased in 1979 to $10,000[16].
"(2) A direction given under subsection one of this section shall specify the sum, if any, to be paid by way of compensation for injury and the sum, if any, to be paid by way of compensation for loss.
(3) In determining whether or not to give a direction pursuant to subsection one of this section, the Court or Judge shall have regard to any behaviour of the aggrieved person which directly or indirectly contributed to the injury or loss sustained by him, and to such other circumstances as it or he considers relevant (including whether the aggrieved person is or was a relative of the convicted person or was, at the time of the commission of the felony or misdemeanour, living with the convicted person as his wife or her husband or as a member of the convicted person's household) and shall also have regard to the provisions of the Criminal Injuries Compensation Act, 1967.
'Injury' means bodily harm and includes pregnancy, mental shock and nervous shock.
"(1) On the acquittal of, or dismissal of an information against, a person accused of any felony, misdemeanour or other offence, the Court or Judge before whom that person was tried may, on application by a person aggrieved by reason of the commission of the offence, grant a certificate stating the sum which they or he would have directed to be paid to the aggrieved person by way of compensation for injury had the accused person been convicted of the felony, misdemeanour or other offence and had the application been an application made by the aggrieved person under ... section four hundred and thirty-seven ... of the Crimes Act 1900 ... for the payment of that compensation.
(2) A certificate shall not be granted under subsection one of this section where the sum referred to in that subsection amounts to one hundred dollars or less.
(3) An aggrieved person to whom a certificate under subsection one of this section has been granted may make application to the Under Secretary [of the Department of the Attorney-General and of Justice] for payment to him from the Consolidated Revenue Fund of the sum specified in the certificate."
"[T]he Auditor-General in recent annual reports to Parliament raised serious concerns about the financial viability of the current compensation scheme. The Auditor-General considers that the scheme is presently compensating only a small proportion of eligible victims, and estimates that, given the potential for substantial increases in the number of claims, compensation totalling $2.5 billion could potentially be paid out in victims compensation over the next five years. In the Auditor-General's 1994 report to Parliament the Auditor-General concluded that reform of the current victims compensation scheme needed to be urgently considered if the compensation scheme was to remain financially viable and future compensation payments not cause an unaffordable drain on public funds."
"The Government, in its election policy platform, proposed an overhaul of the victims compensation system to ensure that the genuine needs of victims are met at reasonable cost to the community. It also promised to ensure that offenders pay restitution and to speed the payment of compensation to victims. The Government's election policy platform also indicated its intention to abolish compensation for injuries sustained by a criminal during a crime, to legislate to prevent double dipping in compensation matters, to allow a victim to choose to claim compensation either under the statutory scheme or as part of the sentencing process, to formulate a schedule to set maximum amounts payable for certain injuries and to enable restitution payments to be deducted from an offender's wages."
This "schedule to set maximum amounts payable for certain injuries" was explained in more detail a little later[21]:
"Both the Brahe review and the Auditor-General have recommended that common law principles of compensation should not apply to determination of awards under the statutory victims compensation scheme. Experience with the present scheme illustrates that common law principles for assessing compensation cannot be properly and evenly applied. Significant variations in awards apply and the present regime of awarding compensation lacks consistency and equity.
Victims of crime and the community have a right to expect that victims compensation awards be consistent and equitable. The Government considers that this can most appropriately be achieved by standardising the amounts to be awarded for similar injuries. The reform proposal provides for compensation for injury to be determined according to a comprehensive injury and award schedule. An applicant will receive an award based on the severity of the injury suffered. The schedule of awards published in the bill lists specific categories of injuries to which are assigned specific award amounts."
"The schedule is structured to ensure that compensation is directed toward those victims suffering the most serious injuries. The award amounts proposed in the injury schedule also give greater recognition to the length of time an injury may be suffered and to those injuries where there is continuing disability."
The last sentence does not point decisively towards either of the two possible constructions of cl 5(a) under debate. The Minister proceeded to set out various other advantages perceived by the government in the Table of injuries, but said nothing about shock. The appellant referred to some general remarks by the Minister about the need to direct compensation towards victims suffering from those serious injuries and the importance of addressing the escalating cost of the scheme and of ensuring that the genuine needs of victims were met at a reasonable cost to the community[23]. These remarks shed no real light on cl 5.
(a) if a claimant suffers symptoms for four weeks and then disabilities for a further two weeks;
(b) if a claimant suffers symptoms for a long time but experiences no disabilities (or vice versa);
(c) if a claimant suffers symptoms and disabilities for five weeks and then symptoms only for three weeks.
But other parts of the Act make it plain that an element in the statutory machinery permitting recovery was to limit recovery for both relevantly insignificant and very significant injuries. Section 19 of the Act created a cap of $50,000 in relation to any one act of violence. Section 20(1) created a monetary threshold for recovery ($2,400). That threshold was a considerable increase on the $200 of the 1987 Act. Schedule 1 cl 4 provided that standard amounts of compensation were to be reduced because of existing conditions. Compensation was not payable for scarring unless it was permanent, and it was not payable for both burns and scarring caused by those burns to a particular part of the body[24].
(c) mental illness or disorder (whether or not arising from nervous shock) …"
An injury in the form of a mental illness or disorder could generate the psychological symptoms described in cl 5(c) and the physical symptoms described in cl 5(d) without generating the disabilities described in cl 5(e). On the other hand, it could generate the disabilities without the symptoms. In either case, the injury would be similar to, but not identical with, the injury described as "shock" in the Table. If it caused symptoms lasting for at least six weeks, or if it caused a disability lasting for at least six weeks, cl 8 would permit the Tribunal or a compensation assessor to conclude that it was a compensable injury and award as the standard amount of compensation the standard amount for shock.
The reasoning of the majority in the Court of Appeal
"A primary victim of an act of violence is a person who receives a compensable injury, or dies, as a direct result of that act." ↑
"A secondary victim of an act of violence is a person who receives a compensable injury as a direct result of witnessing the act of violence that resulted in the compensable injury to, or death of, the primary victim of that act." ↑
"(1) The schedule of compensable injuries is set out in Schedule 1.
(2) The schedule specifies those injuries that are compensable injuries for the purposes of this Act.
(3) The schedule specifies, as the standard amount of compensation for a compensable injury, a specified amount or an amount within a range of specified amounts."
"(1) Compensation for compensable injuries is payable in accordance with the schedule of compensable injuries.
(2) Unless the amount of compensation is required or authorised to be reduced by this Act, the amount of compensation payable is the standard amount calculated in accordance with the schedule."
Schedule 1, cl 1 provided: "The injuries specified in column 1 of the table to this Schedule are compensable injuries for the purposes of this Act." ↑
Motor Traffic (Amendment) Act 1951 (NSW), s 4(a). ↑
Crimes and Other Acts (Amendment) Act 1974 (NSW), s 9(c)(i). ↑
Crimes (Compensation) Amendment Act 1979 (NSW), Sched 1, cl (1)(a). ↑
For an examination of the earlier legislation in New South Wales and other States, see Westling, "Some Aspects of the Judicial Determination of Compensation Payable to Victims of Crime", (1974) 48 Australian Law Journal 428. ↑
New South Wales, Legislative Council, Parliamentary Debates (Hansard), 15 May 1996 at 974. ↑
Brahe, The Review of the Victims Compensation Act (1993) at 38. ↑
New South Wales, Legislative Council, Parliamentary Debates (Hansard), 15 May 1996 at 974. ↑
New South Wales, Legislative Council, Parliamentary Debates (Hansard), 15 May 1996 at 975-976. ↑
New South Wales, Legislative Council, Parliamentary Debates (Hansard), 15 May 1996 at 976. ↑
New South Wales, Legislative Council, Parliamentary Debates (Hansard), 15 May 1996 at 974. ↑
Tame v New South Wales (2002) 76 ALJR 1348 at 1381-1382 [192]-[196], 1385 [207]-[210]; 191 ALR 449 at 495-496, 500-501; Tennant, "Definition of psychological trauma: Psychiatric and legal approaches", (2003) 77 Australian Law Journal 369. ↑
Victims Compensation Fund v Brown (2002) 54 NSWLR 668 at 681 [67]. ↑
Victims Compensation Fund v Brown (2002) 54 NSWLR 668 at 682 [73]. ↑
Victims Compensation Fund v Brown (2002) 54 NSWLR 668 at 685 [73]. ↑
See DP v Commonwealth Central Authority (2001) 206 CLR 401 at 407-408 [9], 417-418 [41]-[44], 456 [191]. ↑
Victims Compensation Fund v Brown (2002) 54 NSWLR 668 at 672 [11]. ↑
Victims Compensation Fund v Brown (2002) 54 NSWLR 668 at 672 [11]. ↑
Traders Prudent Insurance Co Ltd v The Registrar of the Workers' Compensation Commission of New South Wales [1971] 2 NSWLR 513 at 521. ↑
Victims Compensation Fund Corporation
Brown
Victims Compensation Fund Corporation v Brown [2003] HCA 54
(2002) 54 NSWLR 668
(2002) 76 ALJR 1348
(2001) 206 CLR 401
Appeal allowed. Orders 1 and 2 of the Court of Appeal dated 28 May 2002 set aside. In lieu thereof, the record of the District Court proceedings is removed into the Court of Appeal, the orders of Phelan DCJ dated 19 March 2001 are quashed, and the determination of the Victims Compensation Tribunal made on 16 May 2000 is affirmed. The appellant pays the first and second respondents' costs of the appeal in the High Court but does not disturb the Court of Appeal's costs order.