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  • February 19, 2018

Applicant’s Award Lowered on Appeal

Applicant’s Award Lowered on Appeal

(Underwood v Underwood [2018] WADC 13)

On the 1st of December 2015, an argument took place at a residence in Safety Bay, during which the appellant slapped the respondent across the face once with an open palm and also kicked her left leg once. The respondent sustained bruising and swelling to the left side of her face and bruising to her left leg. An ambulance attended the scene and conveyed her to the Rockingham Hospital. In the same incident, the appellant kicked a third party in the testicles for which she was charged with a common assault. The appellant pleaded guilty to the assault and was sentenced on 2 March 2016.

The respondent lodged a Criminal Injuries Compensation claim and the Criminal Injuries Compensation Assessor awarded the respondent $16,221 for her injuries, to which, the appellant appealed and contended that the determination was manifestly excessive.

During the appeal the Court had to determine 6 key points, namely:

  • to what extent is an applicant for criminal injuries compensation permitted to adduce evidence going beyond the facts on which the offender was convicted?
  • has the psychological report relied on by the respondent based on impermissible factual material?
  • has the respondent proven that her psychological injuries were suffered as a consequence of the commission of the assault on her by the appellant?
  • has the respondent proven that she sustained an aggravation to a pre-existing back injury?
  • what award of compensation was appropriate?
  • Should any award of compensation be reduced due to the respondent’s behaviour pursuant to s 41 of the Criminal Injuries Compensation Act 2003?

After coming to a determination on these points during trial, the judge found that “the two injuries I have found the respondent to have sustained as a consequence of the commission of the Assault are PTSD and an aggravation of her pre-existing degenerative back injury. As to the former, the PTSD symptoms resolved with treatment with a few months, and there is no further treatment required. At to the latter, it is clear from the evidence that the respondent’s pre-existing back injury had required intervention prior to the Assault and would in any event have required intervention after the Assault.  So, the extent of the aggravation was not significant…” and awarded $5,000 for non-economic loss and $1,221 for medical expenses and a medical report.

The Court concluded that none of the grounds raised by the appellant had merit, except for the fact that the award was excessive considering the available medical evidence and proceeded to vary the Assessor’s award from $16,221 to $6,221, with costs of the Appeal.

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