• Suite 23, Maylands Commercial Centre, 168 Guildford Road, Maylands WA 6051 | Lots of Free Parking | CALL NOW: 08 9371 5060

Criminal Injuries

A victim of any criminal action, or a close relative of a deceased victim of a criminal act has a right to seek compensation in terms of the Criminal Injuries Compensation Act 2003 (WA) (Act).

Find out everything you need to know at our Criminal Injuries page here. 

Hardware store not liable for injuries sustained by patron during robbery 960 577 aelegal

Hardware store not liable for injuries sustained by patron during robbery

(CHIN -v- DAYMASTER PTY LTD [2018] WADC 80)

On Tuesday, 28 December 2010, shortly after closing time at the Home Hardware & Plumbing store (store), the plaintiff (Ms Chin), was assaulted in an attempted armed robbery of by three men, including the second defendant (Mr Hall).

The store was owned and operated by the first defendant, Daymaster Pty Ltd (Daymaster). At the material time, Mr Hall was employed at the store by Daymaster. Following the attempted robbery, Mr Hall and two others pleaded guilty to an offence of aggravated assault upon Ms Chin with intent to commit a robbery. Ms Chin sought to recover damages from Daymaster in respect of her injury, loss and damage sustained as a result of the assault upon her person.

Daymaster accepted that, as the occupier of the store, it had a duty of care towards Ms Chin, as a customer, to see that she would not suffer injury or damage (duty of care). The Court was required to establish the scope of Daymaster’s duty of care by answering whether:

  • the store manager was negligent by permitting the Ms Chin entry into the store after hours when all perimeter doors were not locked;
  • Mr Hall was acting in the scope of his employment with Daymaster, and if so, whether he was negligent in failing to ensure that all perimeter doors were locked;
  • Daymaster is vicariously liable for any alleged negligence of the store manager and/or Mr Hall, respectively; and
  • Daymaster failed to assess risk following the breakdown of its CCTV system over the cash tills used in the store.

The thrust of Ms Chin’s claim was that Daymaster, through its staff, did not comply with the store closing procedure by allowing Ms Chin into the store after hours when the rear sliding door had not been locked. Ms Chin’s case is that the store’s staff failed to lock this door, thereby allowing Mr Hall, the other two offenders and Ms Chin access into the building being causative of the assault.

In cases of this nature, the law states that where the nature of the harm suffered by a visitor to a premises (store) was physical injury inflicted by a third party over whose actions the occupier had no control, the relevant duty must be a duty related to the security of the visitor.  It must have been a duty to take reasonable care to protect the victim from conduct, including criminal conduct, of the third party. In such circumstances, it is exceptional to find in law a duty to control the actions, including criminal conduct, of another person to prevent harm to strangers, unless the case is one of a special relationship involving a duty to control that other person’s actions. It is trite that criminal behaviour is unpredictable and that is one reason why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.

Regarding vicarious liability, the law states that for an employer to be vicariously liable for the wrongful act of its employee, that act must have been committed in the course or scope of employment.  The difficulty is often in determining that course or scope of employment.  This can be tested by asking whether the act was authorised by the employer or was an unauthorised mode of doing some act authorised by the employer or even an unauthorised act, provided the act was so connected with authorised acts that it may be regarded as a mode, although an improper mode, of doing it.

The Court concluded that:

  • Ms Chin had failed to prove a special relationship with Daymaster, or that there is something exceptional about her status in the store as a customer, when the three offenders attempted to rob the store and assaulted her.  Although she was there after hours, the store had been secured to protect her.  Her injuries were not caused by any want of care on the part of Daymaster.  Rather, the injuries resulted from the criminal act of the offenders, over which Daymaster had no control, given the manner in which those offenders acted, Mr Hall’s acts were not committed in the course or scope of his employment;
  • that the duty of care extended to Ms   Chin in those circumstances, the claim nonetheless failed because there was no breach of that duty which caused injury;
  • aside from Mr Hall unlawfully hiding in the store and opening the rear sliding door, being a criminal act over which the manager and Daymaster did not have control, the store was otherwise secure for the purpose of Ms Chin’s safety. The manager was not negligent.  Ms   Chin’s injury was not caused by any want of care by the manager;
  • evidence points to the store closing policy having been adhered to by its employees, whether they knew it accorded with a written policy or not.  Mr Hall’s criminal activity, together with his two co-offenders, was the sole cause of Ms Chin’s injury. It cannot be said that Mr Hall’s wrongful act of unlocking the rear sliding door was committed in the course or scope of his employment. It mattered not that Mr Hall was an employee of the store;
  • Daymaster cannot be held to be vicariously liable for any failure of Mr Hall as the employee to lock the rear sliding door when his very purpose in the store was to unlawfully open that door to enable access into the store by his two co-offenders for the purpose of robbing it.

Ms Chin’s claim dismissed.

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.

Late application for Criminal Injuries Compensation allowed by Appeal Court 960 577 aelegal

Late application for Criminal Injuries Compensation allowed by Appeal Court

(CME [2018] WADC 69)

On 4 April 2017 the appellant, CME, applied pursuant to s 17 of the Criminal Injuries Compensation Act 2003 (WA) (the Act) for criminal injuries compensation in respect of injuries she sustained in an alleged assault occurring on 4 July 2015.

CME alleges that she was walking across an oval in Albany carrying a pie and a bag of chips when she was approached by two females asking for money. After a brief discussion the assailants knocked the pie out of her hand, punched her in the stomach, grabbed her ponytail, pulled her head up and then punched her on the left side of the face. As a result of this incident she suffered pain and injury.

The matter was not reported to the police until 27 April 2016 (almost one year later). No person was charged as a result of the incident. On 28 June 2017 the assessor for criminal injuries compensation provisionally determined the application and finally determined on 31 July 2017 to refuse the application on the basis that the delay in reporting the matter to the police was not reasonable. CME appealed from that decision. The appeal was lodged within time.

Was CME the victim of a criminal offence?

After deliberation the Court stated that it was “… satisfied on the balance of probabilities that CME suffered bodily harm…defined by law to be a bodily injury of such a nature as to interfere with health or comfort…. [and was] satisfied that the injury she sustained, essentially a fracture of the orbital floor, interfered with her health or comfort”.

CME has had other numerous claims for criminal injuries compensation and has only claimed where she was able to identify the offender, unlike this case. The Court stated that “…Her subjective belief that if she could not identify the offender there was effectively nothing to tell the police and therefore no point in making a report is a belief I find that she genuinely held”.

Medical evidence

The medical evidence established that CME suffered a left orbital floor fracture which caused numbness to the left side of her face.

Economic loss

A clinical psychologist who saw CME reported that CME’s “current psychological, emotional, cognitive and behavioural symptoms are likely to impede concentration and reduce her general performance” and indicated that in the short-term CME had reduced capacity to work but in the long-term her capacity would depend on her response to treatment. No award was made for this head of damage.

The court, after taken the above on board allowed the appeal and awarded CME the following:

  • General damages – $30,000.00;
  • Report expenses $3,300.00;
  • Future medical treatment $5,192.50

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.

Victim of a violent assault prevails with further compensation on appeal. 960 577 aelegal

Victim of a violent assault prevails with further compensation on appeal.

ROBERTSON V HOPWOOD [2018] WADC 66

It is uncontentious that on the day of the incident, the respondent (Mr Hopwood) was at the Inglewood Hotel watching a rugby match from about 6.00 pm and that the appellant (Mr Robertson) was also there.

It is also uncontentious that the Mr Hopwood had known the offender for approximately 10 years, as a work colleague and once a friend, but that the two had fallen out before the incident over some work contracts. Their work environment was quite toxic.

The CCTV footage of the incident shows the Mr Hopwood and his friend on their way out of the hotel. Mr Hopwood’s attention was drawn by a call from a woman, Sarah, who he knew and who was Mr Robertson’s sister. Mr Hopwood stopped to talk to Sarah. He spoke to her for less than a minute. There is nothing in the CCTV footage to suggest that the conversation was anything other than amicable and short.

As Mr Hopwood then turned to leave, he saw Mr Robertson and some brief words were exchanged.

Mr Hopwood and a friend then exchanged some words and Mr Robertson’s friend grabbed Mr Hopwood by the arm.

Mr Hopwood’s written statement states that he remembers exchanging words with Mr Robertson and his friends but did not remember what those words were. His next recollection was being in an ambulance and later at Sir Charles Gairdner Hospital.

Mr Hopwood in this matter had brought a cross-appeal applying for the Criminal Injuries Compensation assessor’s decision to be increased on the basis that the allowance “for general damages; past and future loss of income as well as past and future treatment expenses were too low”. Mr Hopwood sought to be paid the maximum award of compensation of $75,000.

The Criminal Injuries Compensation Assessor, by a compensation award dated 6 November 2015, awarded Mr Hopwood the sum of $49,041.11 compensation (the award) for the injuries and losses that the assessor was satisfied he had suffered as a consequence of the incident.

The Criminal Injuries Compensation assessor was satisfied that Mr Hopwood had been injured in the commission of a proven offence and the application was there for properly brought pursuant to s 12 of the Criminal Injuries Compensation Act. In the course of her decision, the Criminal Injuries Compensation assessor also considered whether any award should be reduced because, at one stage during the incident, Mr Hopwood had head-butted Mr Robinson.

There are specific heads of loss defined in s 6 of the Criminal Injuries Compensation Act to include:

  • expenses actually and reasonably incurred by or on behalf of the victim –
    • that arise directly from; or
    • that arise in obtaining any report from a health professional or a counsellor in relation to, the injury suffered by the victim; or
  • expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim; or
  • loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim;
  • any loss arising from any damage caused as a direct consequence of the commission of the offence to any personal item that was being worn by the victim when he or she suffered the injury.

On reflection the judge stated “Accordingly, I am prepared to award the respondent (Mr Hopwood) compensation in the sum of $75,000 being the statutory maximum and which is made up of the sum of $40,000 in general damages and so much of the losses under 6(2)(a) to take it up to the statutory maximum”.

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 Horrible Act Sees Compensation Awarded to Victim 960 577 aelegal

A Horrible Act Sees Compensation Awarded to Victim

RE HCM [2018] WADC 20

HCM was born on 2 May 1983 in Vienna, Austria. She is now 34 years old. She was born to SH and a man whose name is not known. He played no part in her life. Not long after the birth SH emigrated to Australia with HCM and settled in Western Australia. HCM has resided in Australia since then.

HCM attended Iona Primary School in Mosman Park. In year 7 she attended St Thomas Primary School in Claremont in the hope that, in year 8, she might be accepted at John XXIII College in Mt Claremont for her secondary schooling.

HCM’s mother was concerned about HCM’s weakness in mathematics and, anxious to improve her marks in that field, with a view to gaining entry to John XXIII College, engaged the services of a tutor in mathematics to provide after-school tutoring.

The tutor had placed advertisements in local newspapers circulating in the western suburbs of Perth offering his services as a tutor in mathematics. HCM’s mother noticed his advertisement and contacted him. She engaged him to provide after-school tutoring at their home in Monument Street, Mosman Park. The tutor was, at that time, a teacher at Scotch College in Swanbourne in his mid-50s.

HCM said that she was unable to tell her parents about the tutor’s molestation of her and did not do so. The first person she told was, she said, a psychiatrist, Dr Ann McDonald, at her rooms at Stirling Street, Fremantle. That was in 1999. She was not, she said, ready to report the matter to police at that time.

HCM’s final encounter with the tutor was when she was in her final year of primary school. The next few years saw the breakdown of her family life leading to an apparent abandonment by her mother, educational disruption and a descent into mental ill-health. As her mental state deteriorated the matter of the tutor’s treatment of her came to the attention of Dr McDonald. She referred that matter to appropriate authorities but it appears to have been taken no further. At the age of about 26 years HCM brought the matter to the attention of the police. The tutor was charged but later released following the decision by the Director of Public Prosecutions not to prosecute the matter further. HCM’s period of mental ill-health was, no doubt, a factor in that decision-making process.

FINDINGS

The correct approach to adopt in fixing an appropriate amount of compensation is to apply ordinary principles of assessment of damages subject, of course, to the jurisdictional limit imposed by the Criminal Injuries Compensation Act (Act). The jurisdictional limit for offences committed between 1 July 1991 and 31 December 2003 as prescribed by s 31 of the Act is $50,000.

Where there are multiple offences on separate occasions, the Act does not limit compensation to the maximum for a single offence. Accordingly, pursuant to s 34(2) of the Act, the maximum penalty that can be awarded in this matter is $100,000.

The maximum compensation payable under the Act is merely a jurisdictional limit and not reserved for the worst cases.

In such circumstances, a Court may not make an award of compensation unless satisfied that the claimed injury and loss has occurred as a consequence of the commission of the alleged offences. Given the very significant troubles which confronted HCM in the years following her treatment at the hands of the tutor, the issue of causation is a difficult one. Sympathy for HCM has no role to play in the task that the Court had to undertake.

Injury” is widely defined by the Act to mean bodily harm, mental and nervous shock or pregnancy. “Loss” is defined by s 6 of the Act and includes expenses that are actually and reasonably incurred by or on behalf of the victim that arise directly from or that arise in obtaining any report from a health professional or a counsellor in relation to the injury suffered by the victim.

As with the issue of liability the burden of proof is on HCM to establish, on the balance of probabilities, a causal relationship between the commission of the offence by the tutor and her injuries. It is sufficient for her to establish that the offence materially contributed to any injury or loss.

If the evidence establishes that a non-compensable event contributed to the claimed injury or loss the award of compensation must be reduced to take into account that other contribution.

If it is not possible to disentangle the consequences of the offence from the non-compensable event the claimant is entitled to the full amount of compensation.

The Court on appeal from a decision of the Criminal Injuries Compensation assessor accepted that HCM had been diagnosed with “multiple psychiatric conditions since 1999, including depression, adjustment disorder and post-traumatic stress disorder” arising from the alleged incidents with the tutor and concluded that an award of $78,970 was adequate to compensate HCM for her injuries.

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.

After Dark Stroll Turns Deadly 960 577 aelegal

After Dark Stroll Turns Deadly

ROWE -v- ROSE [2018] WADC 38

At approximately 10.00 pm on 20 May 2013, the Defendant drove her motor vehicle from her home and turned into Preston Point Road, Bicton, driving in an easterly direction. Her motor vehicle struck Mr Prime on the roadway as he was walking his dog. There were no eyewitnesses.

Mr Prime died one week after he was struck by the Defendant’s motor vehicle.

It is alleged that Mr Prime’s death was caused by the negligent driving of the Defendant. The defence denies that any negligence on the part of the defendant caused his death and alleges that Mr Prime’s own negligence contributed to his death as he should have been keeping a proper lookout.

At the time of the motor vehicle accident, Mr Prime was wearing dark clothing, including a hoodie. He had consumed two or three Corona beers that evening. He more probably than not had another beer in his hand at the time. Subsequent tests indicated he had an ethanol reading of 0.12% and a blood alcohol content of 0.1%.

The Defendant was the only witness able to give any evidence of the motor vehicle accident. In cross-examination, she maintained that her car’s bonnet would have blocked her view up the road. She disagreed with the proposition that the roadway was level or very close to level.

After multiple expert analyses were tendered in evidence, the Court concluded that “It is reasonable, in all the circumstances, and in the absence of other evidence or explanation….that the defendant’s failure to perceive and detect Mr Prime as a pedestrian sooner than she did and to take steps to avoid her motor vehicle crashing into him, caused or materially contributed to that crash and his death”.

As the sole provider and carer for Mr Prime’s two children, Mr Prime’s partner and the children were awarded compensation pursuant to the Fatal Injuries Act.

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.

Applicant’s Award Lowered on Appeal 960 577 aelegal

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.

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 Major Win After a Tough Few Years 960 577 aelegal

A Major Win After a Tough Few Years

MAJOK v KORYIOM [2017] WADC 157

The appellant, who is now 27 years old, was seriously assaulted by the respondent on 13 April 2013. The respondent was convicted after trial, on 6 May 2014, of the offence of doing grievous bodily harm (the offence).

On 23 June 2014 the respondent was sentenced for the offence to a term of imprisonment of 6 years, backdated to 13 April 2013 with eligibility for parole. The findings of fact by the sentencing judge included that while the appellant and the respondent were at a friend’s house, the appellant was physically assaulted by the respondent and then taken into the back-garden area of the house adjoining the carport, where “for no reason that can be discerned” the respondent used an accelerant spray of some kind and set the appellant alight. His clothing caught fire, he lost consciousness, but regained same a little time later and felt that he was burning. The appellant suffered serious burns to his body, in particular his left forearm, hand and right chest, which required skin grafts, and he has been left with permanent scars.

The appellant made an application for criminal injuries compensation pursuant to the Criminal Injuries Compensation Act 2003 (the Act) in respect of his injuries and consequent losses. On 18 November 2016, the Chief Assessor of Criminal Injuries Compensation (the assessor) awarded Mr Majok criminal injuries compensation in the sum of $23,100. That sum included $1,100 for medical report fees.

On 1 December 2016, the appellant filed a notice of appeal against the decision of the assessor on the ground that the award of compensation made to him was “so manifestly inadequate as to constitute an error of law”.

The claimed inadequacy in the award to the appellant related to three areas:

  • the physical injuries suffered by the appellant, in particular the scarring to his hands, left forearm and chest;
  • the mental or nervous shock he suffered as a consequence of the offence; and
  • the failure of the assessor to allow any award for past loss of earnings or future loss of earning capacity.

The appellant also sought the cost of future medical treatment, based on the new evidence from his treating doctor.

In the findings the presiding Judge stated, “… the pain and suffering and residual scarring alone are enough for me to conclude that the award of damages of $22,000 is inadequate…”

The court stated that it was satisfied that the appellant has suffered and still suffers from mental and nervous shock within the meaning of the Act, namely PTSD, depression and anxiety and somatic delusions, as a result of the offence and the injuries he received.The court indicated that it had no doubt that the assault on the appellant and the burns he suffered during the offence would have been a very traumatic experience.

The Judge concluded “… for the reasons which follow I consider that the award of damages to Mr Majok was manifestly inadequate. I have allowed the appeal and assessed Mr Majok’s damages as the maximum allowable under the Act of $75,000.”

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.

A Few Quiet Drinks Turns into a Life Changing Situation 960 577 aelegal

A Few Quiet Drinks Turns into a Life Changing Situation

RE PIGGOTT [2017] WADC 150

Mr Piggott and Mr Benjamin Browne were involved in an incident at Mr Browne’s residence. During the incident Mr Browne struck Mr Piggott and Mr Piggott sustained grievous bodily harm. At the time there were four adults at the residence. Mr Browne’s wife, Mrs Taryn Browne, says she was inside. His brother, Mr Nathan Browne, says he was around the corner relieving himself. Mr Browne and Mr Piggott both give vastly different accounts of what occurred.

Shortly after the incident Mr Piggott left the residence and was spoken to by ambulance officers. The police spoke to Mr Piggott and Mr Browne on the night in question. Mr Piggott was taken to hospital, treated and then discharged. About a week later he underwent surgery to his injuries.

Initially he did not make a formal complaint to police, but later on Mr Piggott applied for compensation under s 17 of the Criminal Injuries Compensation Act 2003 (WA) (the Act). An assessor of Criminal Injuries Compensation (Assessor) refused the application as the Assessor was not satisfied on a balance of probabilities that an alleged offence occurred. Mr Piggott appealed to the District Court of Western Australia against that decision.

The issues on appeal were as follows:

  • whether the court was satisfied on the balance of probabilities that an alleged offence was committed against Mr Piggott;
  • whether Mr Piggott was engaged in criminal conduct at the time he sustained the alleged injury;
  • whether Mr Piggott, by his behaviour, contributed to the alleged injury; and
  • if the court was satisfied that it was appropriate to make an award, the amount of the award to be made.

Multiple witnesses were called to recollect their version of events, including ambulance and police officers who attended the incident, with different versions provided.

As to whether an alleged offence had been committed, the judge on appeal found that he was “… not satisfied that it is more likely than not that the grievous bodily harm was unlawfully caused. Mr Piggott has to satisfy me that the bodily harm was unlawfully caused and all I am able to say is that there was a verbal confrontation then a physical confrontation between the two men resulting in Mr Browne causing grievous bodily harm to Mr Piggott. In light of the intoxication of both men, the fact that both have, in my view, changed aspects of their evidence so that it fits with other evidence, and the defects in their evidence I am not able to say exactly what occurred in the physical confrontation.

As to whether Mr Piggott was engaged in criminal conduct at the time of the injury, the judge on appeal stated that “if the court is satisfied that Mr Piggott’s behaviour contributed to the alleged offence, the court may either refuse to make a compensation award or reduce the amount that would otherwise have been awarded” and went on to find that he was “ not satisfied it is more likely than not that Mr Browne was not acting in self-defence nor satisfied that it is more likely than not that his acts were not retaliation which went beyond self-defence in response to Mr Piggott’s assault and therefore the application ought be dismissed.”

 

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.

Man’s Compensation Increased on Appeal 960 577 aelegal

Man’s Compensation Increased on Appeal

On 28 May 2011, the Appellant was at home reading the newspaper. Three men, forced their way into the house.  There had been a history of animosity between the Appellant and one of the three men. An altercation occurred and the three men assaulted the Appellant.

The Appellant made a claim for criminal injuries compensation.  In his application, he claimed that he had suffered physical injuries in the form of bruising and swelling to his back and behind his right ear.  The Appellant also claimed that he suffered Post-Traumatic Stress Disorder (PTSD) as a result of the attack on him.  His claim for criminal injuries compensation also included a claim for loss of earning capacity arising from the alleged PTSD.

In April 2016, the Chief Assessor of the Office of Criminal Injuries Compensation (Chief Assessor) awarded the Appellant the sum of $24,601 for injuries sustained in the assault, medical reports and future psychological treatment expenses but no economic loss.

The Appellant appealed against this assessment on the grounds that the Chief Assessor failed to give sufficient weight to the evidence of psychological trauma and failed to give consideration to any economic loss.

Pursuant to provisions in the Criminal Injuries Compensation Act 2003 (WA) (the Act), the District Court must decide the application on appeal afresh on the evidence and information that was in the possession of the Chief Assessor but may also receive further evidence and information.  The District Court is not fettered by the Chief Assessor’s decision.

The Appeal began in January 2017.

The Appellant presented additional documentation on the hearing of the appeal.  This additional documentation consisted of the following:

  • Income tax returns and notices of assessment;
  • Payment summaries from the Australian Taxation Office;
  • A facsimile from the Department of Human Services to the Appellant’s legal representatives containing Centrelink claim history and payment information;
  • Records from the Sir Charles Gairdner Hospital; and
  • An affidavit of the Appellant.

Although the Chief Assessor was not prepared to allow any award for loss of earnings because in her opinion the Appellant’s capacity to work was influenced by many non-compensable stressors. She was further not provided with sufficient information to enable her to make any proper estimate of the contribution, if any, of the incident to his loss of earnings. On the subsequent information provided the Appellant would have earned approximately $50,000 per annum in the two years following the incident.

Based upon the above, the Appellant’s award was increased to the maximum sum allowable in terms of the act, namely $75,000.

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.

Assessors Refusal Of Award For Compensation For Lack Of Proof Of Alleged Offence Is Confirmed On Appeal 960 568 aelegal

Assessors Refusal Of Award For Compensation For Lack Of Proof Of Alleged Offence Is Confirmed On Appeal

In Robinson [2017] WADC  18, the District Court of Western Australia, on Appeal, confirmed that the claimant (Mr Robinson) was not entitled to compensation as a result of injuries sustained in an alleged assault.

The person said to be responsible for the alleged assault (DC) was interviewed by the police but was never charged with any criminal offence.  In that regard Mr Robinson alleged that as a result of the alleged assault he was injured and made an application to the Office for Criminal Injuries Compensation under Section 17 of the Criminal Injuries Compensation Act 2003 (WA) (Act).

After perusal of the claim material, the relevant assessor refused Mr Robinson’s application and found that although he had been involved in an incident with DC and suffered injuries, the assessor was not satisfied on a balance of probabilities that the alleged offence occurred and the application was therefore accordingly refused.

As a result of the assessor’s refusal Mr Robinson appealed on the basis that the assessor had erred in concluding that there was sufficient evidence for the perpetrator to raise a defence of self-defence and that there was further sufficient evidence for the assessor to refuse the application.

His Honour Troy  DCJ  indicated that it was necessary for Mr Robinson to establish under the Act to the required degree of satisfaction, namely on a balance of probabilities, that he had been injured as a consequence of the commission of an alleged offence and in so doing it was necessary that he negative the existence of the defence reasonably open to DC, namely that of self-defence.

Unfortunately for Mr Robinson, he gave two mutually inconsistent statements, one in the form of a statutory declaration to the Western Australian Police and the other in the form of details as to how he came to be injured within the body of the application for criminal injuries compensation.

Find out more about criminal injury compensation. 

The Court indicated that if DC satisfies the individual onus in relation to self-defence, then the burden would be on Mr Robinson to negative this defence by excluding at least one of its elements on a balance of probabilities. The Court then methodically analysed each of the elements of the defence of self-defence and came to the conclusion that Mr Robinson failed to exclude all the relevant elements.

The Court stated that an award for compensation cannot be made under Section 17(2) of the Act if the person who committed the act, in this case DC, that constitutes the alleged offence, was, at the time of the act not criminally responsible for it.

If the person who committed the act that constitutes the alleged offence is not criminally responsible for that act, the alleged offence is taken not to have been committed for the purposes of Section 17(4) of the Act.

In the circumstances the Court concluded that the assessor was correct to order that the application of Mr Robinson should be refused on the basis that the assessor was not satisfied that Mr Robinson was the victim of an unlawful assault.

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.