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Double trouble: offender fails on appeal twice 900 577 aelegal

Double trouble: offender fails on appeal twice

John Charles Couper v Yvonne Mary Alexander [2020] WADC 56

This case was an appeal from the decision of an assessor of criminal injuries compensation.

Ms Alexander (Alexander) was the victim of two offences and was awarded the sum of $25,627.55 for injuries and losses suffered. Both offences were committed by her husband at the time, Mr Couper (Couper). The award was made on 12 March 2019 and the written reasons for the judgement were provided on 17 May 2019.

The first offence was committed on 14 January 2013 (the first offence) for which she was awarded $12,500 and the second offence which was committed on 14 February 2012 (the second offence) for which she was awarded $13,127.25.

The First Offence

On 14 January 2013 at about 6.10 pm Couper arrived home late from work. Alexander questioned him about his whereabouts. Couper attempted to avoid the confrontation by going out twice that night. Eventually, when he went to bed Alexander joined him and again began questioning him.  This resulted in the accused leaving the bedroom to try and sleep in the spare room. Alexander then followed Couper into the spare bedroom. Couper then struck Alexander in her face with his left palm.  Alexander started to walk backwards through a sliding door and fell to the floor. Couper then kicked Alexander three time in the buttocks, leaving noticeable bruising. Couper then packed his bags and left his home.

Couper was subsequently charged with the offence of aggravated assault in the Magistrates’ Court on 10 September 2013. He pleaded guilty to the charges.

Alexander brought her application pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (Act), which authorises an assessor to award compensation if satisfied that the injury occurred because of a proved offence. Section 3 of the Act defines a proved offence as one of which a person has been convicted.

This application was dated 3 October 2016 and the offence committed on 14 January 2013. S 9 of the Act provides that an application for compensation is to be made within three years after the date the offence, or in the case of more than one, the date of the last offence. The assessor and the court have a discretion to extend time if ‘it is just to do so’.

The application should have been filed by 14 January 2016.

The Second Offence

On 14 February 2012 at around 7:30 pm Couper and Alexander were at their home in Greenwood when they became involved in an argument. They moved their argument to the shed outside the house. Couper opened the shed door and struck Ms Alexander to the face with his hand. The blow knocked her off balance and she fell onto a stack of house bricks.

Alexander reported the incident to the police approximately eight days later. Couper was not convicted of this offence.

This second incident came to light because of the investigatory efforts of the assessor. When the assessor discovered this second (but earlier incident) the assessor corresponded with the solicitors for Alexander and invited them to file this second application.

The second application was brought pursuant to s 17 of the Act. This section authorises the assessor to award compensation if satisfied that the claimed injury and any claimed loss occurred because of the commission of an alleged offence where no person has been convicted.

The application for this offence should have been filed by 15 February 2015 but was only filed on 25 July 2017.

Extension of time

Pursuant to s 9 of the Act, an application for compensation is required to be made within three years after the date the offence but the assessor and the court have a discretion to extend time if ‘it is just to do so’. The court and the assessor accepted the following reasons as sufficient to grant the extension of time: Alexander had been suffering from anxiety, depression and post-traumatic stress disorder and had received extensive treatment. She had consulted her solicitors in August 2015. She was then advised of the three-year limitation period and time was spent gathering the evidence.

The appeal

Couper filed a notice of appeal on 2 April 2019 listing the following grounds:

  1. The assessor has awarded damages to the applicant for an unspecified alleged incident which supposedly occurred on 14 February 2012 of which he was unaware. (Second Offence)
  2. The assessor has not taken into consideration the evidence which he had provided on 24 April 2018 in determining the award of damages. (First Offence)

Both grounds of appeal failed.

First ground of appeal

The court found that Couper had no standing to file an appeal because s 55 of the Act provides that only an “interested person” may appeal to the District Court against an assessor’s decision. An interested persons includes (a) the applicant [to a compensation application]; or (b) a person who an assessor thinks may become liable under Part 6 to pay an amount to the State; or (c) the CEO.

Pursuant to Part 6, s 49 of the Act only a person who has been convicted of an offence is potentially liable to pay to the State a lump sum. Therefore, in relation to this offence he was not an interested person and therefore had no standing to appeal.

Second ground of appeal

Couper attempted to introduce evidence that Alexander had contributed to her own injuries and misfortunes by confronting and provoking him during the arguments. Pursuant to s 41(a) of the Act behaviour such as provocation, where a victim acts wrongfully so as to deprive an offender of self-control and induce the offender to commit an offence against the victim in the heat of the moment may be considered by the assessor and the court. However, the court held these factors could not be considered in this case because Couper had pleaded guilty to the offence of aggravated assault. The facts were put before the magistrate, and not disputed by his counsel, and further, his counsel had submitted that Couper took full responsibility for his actions.

Unfortunate chase leads to compensation 900 577 aelegal

Unfortunate chase leads to compensation

CHASE -v- FRANCIS [2020] WADC 34

The applicants were Mr and Mrs Chase who claimed compensation because of the death of their 15-year-old son (deceased). Their claim was pursuant to s35 of the Criminal Injuries Compensation Act 2003 (Act) for mental and nervous shock. S35(2) only permits parents, close relatives, and partners to claim for mental and nervous shock if the victim of the crime dies. However, from a policy perspective the Act does not permit compensation if the victim himself was committing a crime at the time of his injury or death. This is pursuant to s35(3) and s39 of the Act (bar to compensation).

In this case the deceased was riding a motorcycle, and the respondent, Jude Francis, was pursuing the deceased, in his car, believing him to be a thief who had stolen his motorcycle. He wanted to stop the respondent and retrieve his motorcycle. The respondent was mistaken since the motorcycle was not his although it was a similar model.

The respondent was driving a Mercedes Benz motorcar when he saw the respondent riding the motorcycle. He gave chase and the deceased, not knowing why he was being chased then tried to escape. The pursuit escalated and ended when the deceased, fearing for his safety, raced into an intersection, and collided with the side of a Mitsubishi SUV. He sustained critical injuries and was taken to the Royal Perth Hospital where he later succumbed to them a day later.

The conduct of the respondent throughout was reprehensible and callous. He pursued the deceased at speed and, after he saw the collision, stopped, and checked the identifying stickers on the motorcycle. Satisfied that the motorcycle was not his he then left the scene of the collision. He left the deceased without any medical attention, nor did he later report the accident. The respondent did not have a valid driver’s licence because his had been suspended for nine months. It had been suspended because he had previously been found to be driving with a suspended driver’s licence.

The respondent was then convicted of three criminal offences namely:

  1. Causing death by threat pursuant to s272 of the Criminal Code Act Compilation Act 1913; and
  2. failing to stop and ensure assistance where the driver is involved in an incident occasioning bodily harm pursuant to s54 of the Road Traffic Act 1974; and
  3. failing to report a collision pursuant to s56(1) of the Road Traffic Act 1974.

However, the applicants were not awarded any compensation because the assessor was of the view that when the deceased was injured, he was committing separate offences, namely:

(a) riding his motorcycle when he was unable to be licensed, in contravention of s 49 of the Road Traffic Act 1974 (WA); and

(b) riding an unlicensed motorcycle in contravention of s4 of the Road Traffic (Vehicles) Act 2012 (WA).

It was this refusal that led to the appeal. The court held that there were three issues that it needed to resolve:

  1. Was the Deceased acting under duress or because of an emergency when he committed the Separate Offences?
  2. Did the death occur when the Deceased was committing one or more of the Separate Offences for the purposes of s 39(2) of the Act?
  3. Was the outcome of the second issue different for the application of s35(3) of the Act?

Issue 1.

The court held that although the victim had initially been committing offences, once he started to race away from the respondent, he was no longer committing an offence but was acting under duress. Therefore, the bar to compensation did not apply.

Issue 2.

This raised the interesting question whether there must be a causal connection between the offence committed by the victim and the injury, or whether there need only be a temporal link for the bar to apply. The court did not decide the issue but appeared to favour the approach in the case of Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29.

The court stated that s39(1) only requires that there be a temporal connection between the offending behaviour of the claimant, and the suffering of the injuries caused by the separate criminal offence for the bar to apply. There need not be a causal connection.

The court also noted that a temporal connection did not mean that the bar to compensation would only arise if the crime and the injury occurred at the same instant. In this case the effluxion of time between the time the chase started, and the fatal collision was short. But the court held that because the chase changed the legal nature of the deceased’s conduct (he was now acting under duress) and the temporal link was broken. Therefore, the bar did not apply.

As an aside, the court stated that for the bar to apply it is not necessary for the death to occur at the same time as the victim’s offence. It is sufficient that the injury, which causes the death, was linked in time to the offence committed by the victim for the bar to apply.

Issue 3.

The court held that the likely correct interpretation of s35(3)(b) of the Act is that in the case of the death of the victim the bar to compensation only applies to a claim by an injured person, not a claim by a close relative where a person has died.

The court therefore ordered that the victims receive compensation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

The consequences of being convicted of an offence for Criminal Injury Compensation claims 900 577 aelegal

The consequences of being convicted of an offence for Criminal Injury Compensation claims

The consequences of being convicted of an offence for Criminal Injury Compensation claims

AA -v- ARW [2020] WADC 131

In September 2015 the offender was convicted of one count of carnal knowledge of a girl under the age of 13 years, two counts of attempted carnal knowledge of a girl under the age of 13 years and four counts of indecent dealing with a child under the age of 14 years (Offences). These convictions were unsuccessfully taken on appeal by the offender.

These offences involved the child sexual abuse of a stepdaughter by her stepfather between 1975 and 1982. In November 2017, the victim filed an application for criminal injuries compensation.

Compensation was claimed pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA) (CICA) on the basis that they were ‘proven offences’ for the purposes of the CICA application.

One of the interesting aspects of this judgment was the issue of times limits in child sexual offences matters.

Pursuant to s9 of CICA the time limit for making a compensation application is 3 years after the date on which the offence to which the application relates was committed, or if it relates to more than one offence, the last of them was committed. However, an assessor may allow a compensation application to be made after the 3 years if he or she thinks it is just to do so and may do so on any conditions that he or she thinks it is just to impose.

These offences had been committed some 40 years prior to the application. The court referred to the matter of KBR where Gillan DCJ identified the following non-exhaustive list of factors which might be relevant to the exercise of the court’s discretion:

(a) the history and background to the proposed application; and

(b) the length of the delay; and

(c) the reasons for the delay; and

(d) the nature of the proposed application; and

(e) the consequences for the parties of the grant or refusal of an extension in time, including the extent of any prejudice to the respondent; and

(f) the prospects of the compensation application succeeding; and

(g) whether injustice will be suffered if an extension of time is refused.

The court held that in this matter that because of the  relationship of authority between the victim and the offender, her role in the prosecution of the offender, her personal circumstances, the significant psychological impact that the abuse had had on her, and the recent conclusion of the criminal appeals it was appropriate to permit the late filing of the application.

It should be noted that in Western Australia if a series of sexual offences are committed by the same person but at different times they are deemed not to be ‘related’ for the purposes of a CICA application.

The maximum amount that a victim may be awarded varies depending on the date that the offence was committed. The relevant dates are as follows:

22 January 1971 – 17 October 1976 $2,000
18 October 1976 – 31 December 1982 $7,500
1 January 1983 – 31 December 1985 $15,000
1 January 1986 – 30 June 1991 $20,000
1 July 1991 – 31 December 2003 $50,000
1 January 2004 – present $75,000

The offences were committed between 1976 and 1982 and were deemed to be unrelated. Pursuant to s34 of CICA the maximum that may be awarded for multiple unrelated offences by one offender is twice the maximum. The victim was found to be entitled to the maximum compensation for each offence because of the severity of the acts. The total of her compensation was therefore $7,500 per offence subject to a maximum of $15,000. This award was made in February of 2020.

Part of the assessor’s order was that the offender was obliged, pursuant to CICA s 45(1)(b), to pay the sum of $14,000 to the State of Western Australia.

The offender then, in an effort to avoid this obligation, appealed against the decision of the assessor on the basis that the case against him was fabricated and that he had been wrongly convicted of an offence that he did not commit.

Therefore, the question before the court was whether the offender could have a new or fresh hearing, to prove his innocence, in the CICA forum. In other words, was the assessor able to look behind the curtain of the conviction or was the assessor bound by the decision of the criminal court. The court held that upon a proper construction of the Act this was not possible. The only avenue open to the offender was to challenge the decision of the assessor to grant permission to file the application after the three-year limitation period and/or to challenge the amount of the award. In CICA matters an appeal is a hearing de novo and for the reasons stated above the court found that the assessor’s decision was reasonable and did not interfere with it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

An issue of trust – can the District court dissolve an existing trust 900 577 aelegal

An issue of trust – can the District court dissolve an existing trust

LEVI JAKE SAUNDERS by his Next Friend CLAIRE MARIE MATTHEWS -v- TURNER [2020] WADC 133

The plaintiff was injured in a car accident in 2008 when he was 9 years old. His injuries were severe and included an acquired brain injury. In 2014 the District Court approved the compromise of the plaintiff’s claim in the amount of $7,000,000 plus trustees’ fees in the sum of $1,268,813 and costs to be taxed if not agreed.

The Judgment placed the judgment sum in a trust (Court Trust) the trustee of which was a private trust company (Trust Company).

In order to maximise the tax efficiency of the trust it was necessary for the Trust Company to apply to the State Administrative Tribunal (SAT) of Western Australia pursuant to the provisions of the Guardianship and Administration Act 1990 to be appointed as an administrator of the plaintiff’s estate. This enabled them to place the funds in a superannuation fund. A Guardian was also later appointed to the plaintiff.

Following a breakdown in the relationship between the Trust Company and the plaintiff’s mother there were a number of applications brought to SAT but the position of the Trust Company as the limited (and amended) administrator of the plaintiff’s estate in relation to his superannuation investment remained until 9 April 2019. SAT then set the administration order aside because there was no evidence to rebut the presumption of the plaintiff’s capacity. The guardianship order had been revoked at an earlier date.

The $7,000,000 was still in the superannuation fund but not under the supervision of a SAT administrator, nor under the supervision of the District Court as part of the Trust Fund.

Nonetheless, the plaintiff applied to court to set the Trust Fund aside. The question which arose was whether the District court has the jurisdiction to set aside a trust which it had created and if so, what factors should it consider.

The court stated that it had the power create a trust of monies recovered by a person under a disability pursuant to O 70 r 12 Rules of the Supreme Court 1971 (WA) but there is no corresponding express power to terminate the trust. The question thus arose whether there was an implied power to terminate the trust. The court looked at several decisions that had considered the matter but found a relevant old case where it was the held that:

If such an action had been brought in the Supreme Court, this Court would have all the powers conferred by s 16 and s 23 to make provision for the representation and protection of the interests of infants and disabled persons. Indeed, that is the purpose which authorises the rules contained in O 70, including the provisions obliging a disabled person to sue by a guardian ad litem, requiring prior approval of any compromise of a disabled person’s claim before it will be binding, and then stipulating for the control of moneys recovered by payment to a trustee appointed by, and subject to the direction of the court. This jurisdiction and these powers are, therefore, all ancillary to a claim directly within the civil jurisdiction of the District Court and no issue can possibly arise that, not being ancillary to the principal claim, they are outside the scope of that court’s equity jurisdiction such as led to the decision in Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers Compensation) Ltd (1991) 5 WAR 208.”

It is debatable whether that decision was binding on the District Court since that matter was heard in the Supreme Court and its remarks about the District Court were in passing.

The court went on to find that the findings of SAT regarding the plaintiff’s disability were not relevant to an application to terminate the trust. The court again relied upon the old case and found that it was obliged to decide the controversy in accordance with equitable principles to do justice in a particular case. The court then heard evidence from the plaintiff himself and from experts and concluded that the court should exercise its power to terminate the Court Trust.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

A Case of a Worker Betting on the Wrong Horse 900 577 aelegal

A Case of a Worker Betting on the Wrong Horse

KREMER -v- SANDFIRE RESOURCES NL [2020] WADC 130

On 2 November 2015, the Defendant company, Sandfire Resources, hosted a Melbourne Cup event at their DeGrussa copper and gold mine some 900km North East of Perth. As part of this event, the employees were encouraged to engage in various team activities. The final such activity was a relay race in which the participants were required to run around a cricket field with a wooden ‘hobby-horse’ between their legs. The Plaintiff, Mr Kremer, was a participant in this race and alleged that as he and another co-worker were rounding a left-hand turn, the co-worker tripped him from behind, causing him to fall on his outstretched arm and suffer injury.

It was alleged by the Plaintiff that the Defendant was negligent for its failure to provide adequate supervision of the attendees, failure to provide adequate supervision of the race, and failure to conduct any or any adequate risk assessment. The Plaintiff further alleged that the Defendant was vicariously liable for the negligent actions of the co-worker who tripped him.

The operative issue before the court was whether the co-worker intentionally or otherwise tripped the Plaintiff, or if he merely fell over his own feet or his wooden hobby-horse. The court was presented with many various accounts of the incident from multiple witnesses, each with varying degrees of accuracy and credibility. The judge, Troy DJC, was required to make a determination of the facts in the face of conflicting evidence. The principle the judge needed to consider was whether the evidence in favour of the Plaintiff went beyond reasonable speculation and guesses, and whether he was actually persuaded as to the probability of a fact being true.

He said “The test of balance of probabilities is not satisfied by evidence which fails to do more than establish a possibility. No court should act upon mere suspicion, surmise or guesswork in any case.” In personal injury cases, the ultimate burden of proof rests with the Plaintiff to prove that the injury suffered occurred as a result of the Defendant’s conduct.

With this in mind, the judge concluded that the evidence before him was not strong enough to persuade him that the Plaintiff had been tripped. Multiple witnesses said that he was not tripped, the Plaintiff never made any assertions to friends that he was tripped, and he merely recorded that he had ‘fallen’ on his workers’ compensation claim form.

In the absence of being tripped, the Judge found that the Plaintiff did not have a case against the Defendant, saying that the Defendant had done everything that could be expected of a company organising such an event. No amount of training or supervision would have prevented the injury from occurring.

Furthermore, the judge found that even if the co-worker had tripped the Plaintiff, the Defendant would not have been vicariously liable for the actions of the co-worker. This is because the act of tripping the Plaintiff during the event was entirely unconnected to the co-worker’s employment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Being in a State after assaults 900 577 aelegal

Being in a State after assaults

RE GOODWIN [2020] WADC 128

This case was an appeal against decision of a criminal injuries assessor. The primary issue that the court had to decide upon was the application of Western Australian state laws to Commonwealth places generally and, more specifically, whether the Criminal Injuries Compensation Act 2003 applies to a Commonwealth place by virtue of the Commonwealth Places (Application of Laws) Act 1970.

The appellant had applied for compensation pursuant to s 17 of the Criminal Injuries Compensation Act 2003 (WA) (Act) for injuries suffered by him following two separate assaults in Immigration Detention Centres.

The first such assault occurred at Yongah Hill Immigration Detention Centre and the second assault occurred at the Christmas Island Immigration Detention Centre.

The assessor granted compensation in the sum of $7,597 in relation to the Christmas Island assault, but refused to make an award of compensation to the appellant in relation to the Yongah Hill assault on the basis that she did not have jurisdiction to do so.

The Court enunciated several important principles relating to appeals in the Criminal Injuries Compensation matters. These include:

  1. The court has a wide discretion is deciding the appeal and may determine the appeal without being bound, in any way, by the assessor’s decision; and
  2. That the appeal is to be decided without regard to the reasons for the decision of the assessor; and
  3. That the court may decide the application solely on the evidence and information that was in possession of the assessor or may receive further evidence and information and that the admission of such further evidence may be done without the necessity for a formal application being made; and
  4. The court may of its own increase or decrease any award to an amount that the court feels is fair and reasonable and proportionate; and
  5. Awards of this nature are a compensation for the injury suffered and not a punishment of the offenders.

Yongah Hill is in the state of Western Australia and not far from Perth whereas Christmas Island is approximately 1500km off the coast of Western Australia. Both Yongah Hill Immigration Detention Centre and Christmas Island Immigration Detention Centre are designated as Commonwealth places but there are different laws that apply.

Pursuant to the Christmas Island Act the laws of Western Australia apply to the territory of Christmas Island to the extent that they are not inconsistent with Commonwealth legislation or the Constitution. Furthermore, the courts and judicial officers of Western Australia have jurisdiction over Christmas Island pursuant to the Territories Law Reform Act 1992 (Cth). Therefore, even though Christmas Island is Commonwealth territory Western Australian law applies to it. Importantly, reg 6(d) of the Christmas Island (Courts) Regulations 2018 defines courts of Christmas Island to include the Chief Assessor of Criminal Injuries Compensation, or an Assessor of Criminal Injuries Compensation, appointed under Schedule 1 to the Act.

Therefore, the court concluded that the Act applies to injuries sustained during the course of an offence committed at the Christmas Island Detention Centre and, further, for a number of reasons, increased the compensation received by the victim.

Despite being located within the State of Western Australia different considerations applied to Yongah Hill Immigration Detention Centre. The Constitution (Cth) gives the Commonwealth Parliament exclusive legislative power to make laws with respect to Commonwealth places. However, the Commonwealth Places (Application of Laws) Act 1970 (Cth) and the Commonwealth Places (Administration of Laws) Act 1970 (WA) have the effect of making state laws into federal laws in relation to Commonwealth places.  Therefore, the Act applies to Yongah Hill Immigration Detention Centre. Importantly however, the court found that an assessor does not have federal jurisdiction to grant compensation for criminal injuries compensation sustained at Yongah Hill Immigration Detention Centre because an assessor could only be vested with federal jurisdiction if:

“1. the assessor is so empowered pursuant to s 7(1) of the COPAL Act (Cth) by virtue of being a ‘court of the State’; or

  1. a gazetted arrangement applied because an assessor was neither a ‘court of the State’ and was not exercising judicial power.”

The court concluded that even though the assessor exercises judicial power (not administrative power) it is not ‘a court of a State’ and that there was no gazetted arrangement. Therefore, neither of those routes vested jurisdiction in the assessor to make an award.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Compensation Reduced on Appeal 900 577 aelegal

Compensation Reduced on Appeal

NAGEL -v- TAHERE [2020] WADC 110

This case was an appeal from a decision of an assessor of Criminal Injuries Compensation (assessor) pursuant to the Criminal Injuries Compensation Act 2003 (Act). The Assessor assessed compensation in the amount of $7,500 in favour of Mr Tahere (respondent) because of an assault by Mr Nagel (appellant). However, pursuant to s 45(1)(b) of the Act, it was ordered that only $5,000 may be the subject of proceedings under part 6 of the Act (decision). This part of the Act  provides that if a compensation award is made in respect of any injury and a person is convicted of the offence,  then, subject to any order made under section 45(1), the CEO may give the offender written notice that requests the offender to repay to the State as a lump sum, the whole, or such part as is specified in the notice, of  the amount paid or payable under the award. The CEO is the chief executive officer of the department of the Public Service. In other words, the State recovers the compensation paid to the victim from the wrongdoer.

The respondent alleged that the appellant and a young woman came to his home on High Street, Fremantle. They knocked on his door and asked for medication belonging to the father of the woman. The respondent refused and the woman attempted to force her way in, a scuffle broke out which led to the appellant punching the respondent on the lip.

The appellant pleaded guilty to the charge on the above facts as put forward by the respondent.

However, after the award was made the appellant appealed the decision pursuant to s 55 of the Act and attempted to adduce new evidence on appeal in the form of four letters. The court held that in CIC matters the appeal is a fresh hearing and it is necessary for the court to determine all matters relating to the Application. It further held that the court has the power to receive additional evidence pursuant to s 56(1) of the Act but that the matter is to be determined on the facts on which the appellant was sentenced and were admitted, and it is therefore not re-litigated. However, it was open to the appellant to introduce more contextual information which is not inconsistent with the material facts comprising the elements of the offence, including that all relevant defences that have been conceded do not apply. It was on this basis that one of the four letters was admitted.

The admitted letter disclosed that the respondent had been involved in a physical altercation with the young woman when the appellant punched him to help her escape.

The court then re-assessed the respondent’s damages using a medical report from a Psychiatrist which had been filed. The respondent was found to suffer from an Adjustment Disorder, but that his symptoms did not meet the criteria for a Major Depressive Disorder, Post-Traumatic Stress Disorder or an exacerbation of a pre-existing mental disorder. The assault in question was found to only be a 10% contributor to the respondent’s condition, 90% was caused by an earlier assault.

The court awarded the respondent $5,000 of which $2,000 was subject to a s 48 of the Act (see below) reduction and only $3,000 was therefore the subject of these proceedings.

S 48 provides that if a compensation award made in favour of a victim who has suffered injury includes an amount in respect of treatment related expenses then the amount is not to be paid unless the Chief Assessor is given evidence that the expenses have been reasonably incurred by or on behalf of the victim for treatment of that the victim and was required as a direct consequence of the injury suffered by the victim in consequence of the commission of the offence to which the award relates.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

 

“Watch out below!” – the consequences of a roof collapse 900 577 aelegal

“Watch out below!” – the consequences of a roof collapse

GREENSLADE -v- HIEW [2020] WADC 120

This case concerned the liability of a landlord for injuries sustained by a tenant following a ceiling collapse in a rental premises. The tenant suffered a compression type injury emanating from a C6 nerve root injury that radiated from the spine to the left shoulder, arm, and hand.

The case turned on the duty of care owed by a landlord to a tenant for the maintenance of an occupied premises. The point of departure was the landlord does not enjoy immunity in the manner contemplated in Cavalier v Pope [1906] AC 428. The “Cavalier” approach is that a landlord who lets a house in a dangerous state is not liable to the tenant’s customers or guests for accidents happening during the term. The court held that, in the absence of fraud there is no law against letting a tumbledown house. The Court noted that the “Cavalier” case was no longer good law in Australia and had been rejected in the case of Northern Sandblasting v Harris (1997) 188 CLR 313.

The tenants further did not rely upon the Occupiers Liability Act 1985 (WA) (“Act”), but instead relied upon the common law principles established in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166, which the court in the Cavalier case noted was the leading case on the subject.

In the Jones case, the plaintiff was the son of the tenants of a residential property owned by the defendant. He suffered injuries after walking through a glass door, believing it to be open. The glass door appeared to be in good repair and operating normally. Furthermore, the door was fitted in accordance with the with building standards and regulations applicable at the time of construction. But the regulations changed before tenancy started and the glass door was not in compliance with these new standards. Interestingly, the court held that that s 9(1) of the Act did not create a statutory duty of care for the landlord, but there was a common law duty. The court did not find that the landlord had breached his common law duty as the law does not require expert inspections of the house without the landlord being alerted to a problem.

The question therefor in this case was the nature of the landlord’s duty to the tenant. The court found that ‘the common law duty of care owed by a landlord to a tenant and other members of the tenant’s household is to take reasonable care to avoid foreseeable risks of harm to those persons having regard to all the circumstances of the case’. This duty is no more than a duty to take reasonable care and liability is not strict.

The next question was whether it is reasonable to require an owner of the premises to have them inspected by an expert before letting. The answer is that it depends on the facts of the case and the relevant circumstances will include both those of which the landlord knew and those of which the landlord ought reasonably to have known.

The duty requires a landlord not to let premises that suffer defects which the landlord knows or ought to know make the premises unsafe for the use for which it is let. This duty is discharged if the landlord takes reasonable steps to ascertain the existence of any such defects. If he discovers defects, he should take reasonable steps to remove them or to make the premises safe.

This duty does not require the institution of a system of regular inspection for defects during the tenancy. If there is no special contractual arrangement, notice of defect, or legislative requirement, the landlord does not usually have a special duty to inspect. There may be exceptions to this rule depending on the facts of the case. In this case the court found that there was nothing to alert the landlord to the problem with the ceiling and that she had therefore not breached her duty to the tenant. Consequently, she was not found liable in tort.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

House Fire Causes PTSD 900 577 aelegal

House Fire Causes PTSD

HUNTER [2020] WACIC 10

In this matter, the Chief assessor of Criminal Injuries Compensation awarded the Applicant $9,065 compensation for injuries and losses she suffered arising from a criminal injury. The application was made pursuant to section 12 of the Criminal Injuries Compensation Act 2003 (the Act).

The case involves a dispute between two families that lived across the road from each other. At 12.30 AM on Sunday, 20 March 2016 a certain PS was seen on the driveway of Kenneth John Buckeridge (Offender). The Offender told PS to leave his property which he duly did but not long thereafter, the Offender found that the lights and windscreen of his motor vehicle had been smashed. He immediately suspected PS and summoned the police (his suspicions being well founded as PS later pleaded guilty to this offence).

The police however left the scene without arresting the Offender who was intoxicated. The Offender thereafter decided on revenge by taking a can of petrol and setting fire to PS’s Holden Commodore. The Offender then went home. The Holden took flame and then exploded. This in turn set fire to a Ford Raider parked next to the Holden, and to a carport belonging to a certain MH and finally to the MH’s house.

The Offender became aware of the enormity of his actions and called for the fire brigades assistance. He also became aware that he had endangered the lives of the occupants of the home and so broke through a window to save them and cut himself while doing so. The two female occupants of the house, one of whom was the Applicant, had managed to escape through the back door.

The owner of the house suffered loss in the sum of approximately $400,000. The Applicant suffered a loss of approximately $4,000 in respect of her items in the house.

The subject of this application was the compensation sought by the Applicant for the psychological damage that she had suffered.

The Assessor recorded that the Applicant said that since the incident she:

  1. had trouble sleeping and was anxious;
  2. did not eat well and felt stressed;.
  3. started using antidepressants and sleeping tablets;
  4. had lost weight due to stress and developed high blood pressure;
  5. had started having disputes in the community; and
  6. doubted whether she would ever be able to get back to a normal life.

 

The Applicant further bolstered her case by providing a medico-legal report from a Counselling Psychologist who recorded her personal history and, importantly, concluded that the Applicant suffered post-traumatic stress disorder (PTSD) caused by several factors including:

  1. the house being set ablaze;
  2. seeing relatives of the man who set the fire; and
  3. hearing or speaking about the incident

which caused distress resulting in her having convulsions.

The psychologist further concluded that her symptoms were not severe but that she was troubled by an ongoing sense of agitation, some degree of sleep disturbance and an increased tendency to aggression.

He recommended 5 to 10 sessions of psychological counselling to help deal with her various symptoms which had improved over time.

The Assessor found that the Applicant suffered PTSD but that the criminal offence, namely the fire, was only one of the contributing causes to the development of PTSD and that there were other significant non-compensable contributors to its development.

Importantly, the assessor noted that the Applicant had not sought medical nor psychological treatment following the incident. This seemed to suggest to the assessor that the injury was not of a serious nature.

The Applicant was awarded:

  1. $6,500 compensation for the injury;
  2. $1,245 for future psychological counselling; and
  3. $1,320 for the psychologist’s report.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Murder leads to compensation award 900 577 aelegal

Murder leads to compensation award

Penny 2020 [WACIC] 8

The case of Richard Penny (the Applicant) was assessed by a Criminal Injury Compensation Assessor and delivered on 21 May 2020.  In January 2017 the Applicant made an application for compensation under the Criminal Injury Compensation Act 2003 (the Act) in relation to the murder of Charmaine Lois Winmar (the Deceased) on 18 May 2013. On 20 April 2016 Kevin James Corbett (the Offender) was found guilty of the murder.

By way of brief background, the Offender and the Deceased were in a relationship between 2012 and the early parts of 2013. During this time the Deceased had often complained to others that the Offender had hurt her and that he was controlling, possessive and jealous. In February 2013 the Offender was incarcerated on unrelated charges. The Offender and the Deceased initially continued their relationship by sending letters and talking over the phone, however the Offender soon became jealous and possessive and the tone of his letters and phone calls became more aggressive. On 4 April 2013, the Offender telephoned the Deceased and threatened to kill her. In subsequent telephone calls he left messages indicating the number of days he had before being released and saying that when these days passed the deceased would be dead. Between 1 and 18 May 2013 the Offender called the Deceased’s phone 1,400 times and sent abusive messages. A month after his release, the Offender went to the Deceased’s residence and found her with the Applicant. The Offender proceeded to strike the Deceased multiple times and with multiple weapons, ultimately killing her. The Applicant was also struck by one of the weapons and lost consciousness and did not have any recollection of the events.

The Deceased and the Applicant had met in 2002 and shortly thereafter began a relationship that lasted for eight years. The couple resumed their relationship in 2013 shortly before the events described above. During their eight-year relationship there were six reported incidents of domestic violence committed by the Applicant against the Deceased, including one in which the Applicant was charged for assault occasioning bodily harm.

The Applicant made an application for compensation under sections 12 and 17 of the Act for personal injuries suffered as a result of the Offender’s actions as well as under section 35(2) for the mental and emotional distress he suffered from his partner’s murder. In this case the Assessor awarded the Applicant $25,000 in compensation for his injuries, bearing in mind the maximum compensation awardable is $75,000. In determining the amount of compensation the Applicant should receive, the Assessor gave consideration to the nature of the relationship between the Applicant and the Deceased, and in particular to the history of abuse and domestic violence. The Assessor also determined that but for her murder, the Deceased would have been entitled to seek compensation against the Applicant for her injuries and as such, the Assessor reduced the amount of compensation citing that the Applicant should not stand to benefit from her death.

The Applicant’s award was reduced by $10,000 in light of his previous actions against the Deceased, bringing his total compensation down to $15,000.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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