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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. 

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 The guardianship order had been revoked at an earlier date.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.

 

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.

Injured Policeman Receives $300 Compensation 900 577 aelegal

Injured Policeman Receives $300 Compensation

PEET [2020] WACIC 9

In the matter of Shane Geoffrey Peet, on 1 July 2020, the Chief Assessor for Criminal Injuries Compensation, awarded the applicant the sum of $300 compensation for an injury suffered during an arrest in his capacity as a Police Officer, on Thursday 26 January 2017 (incident).

The application was made pursuant to section 12 of the Criminal Injuries Compensation Act 2003. The Applicant had been assaulted by the Offender while processing the Offender after an arrest. The Offender pled guilty to two counts of assault on a public officer (one relating to the applicant and another relating to the other officer who was assisting in the restraint of the Offender) as well as obstructing public officers with disorderly behaviour in a police station or lock-up.

The incident occurred at Cockburn Police Station. The Offender had come out of the holding cell following the initial computer capturing process and was asked to sign the forms, he refused to do so, attempted to leave the custody area and was apprehended by the Applicant and another officer. A struggle ensued and after this the Applicant realised he was in discomfort and pain. He said his left knee was sore from falling to the ground with the Offender and his upper back, neck, and arms and across his shoulders were sore from struggling with him whilst he resisted. He noticed reddening and early stages of bruising on the inside of both biceps from the struggle.

The Applicant attended St John of God Hospital Emergency Department and was subsequently discharged with a recommendation to carry out light duties only.

The evidence obtained by the Assessor was as follows:

  1. Photographs of the Applicant apparently showing slight bruising to the inner bicep of the right arm and some red markings to other parts of his body including the inner left arm near the armpit and a photograph of his left knee. The Assessor stated that she could not observe the injuries from the photograph.
  2. An email indicating that he had not seen his General Practitioner for any progress reports after 13 March 2018.
  3. St John of God Hospital Murdoch records showing that the applicant attended on 26 January 2017 with bruising to the medial arms, a sore neck, lower back, left knee, and inner upper arms. He was diagnosed with bruising and a spine strain.
  4. Prior medical records obtained from Point Walter Medical Centre indicated prior medical problems including a lumbar strain, depression, and a sleep disorder.
  5. A referral to a psychologist and to Injury Management and Rehabilitation Sports after the incident but the reasons for these referrals were unknown.
  6. A record showing that the Applicant was injured at work on 3 August 2018 while struggling with a person being restrained. This resulted in a bursitis for which he underwent a repeat steroid injection.
  7. There were several other referrals which were not linked to the injuries sustained during the incident.

The Applicant had submitted very little evidence to support his claim. The medical records had mostly been obtained by the Assessor at her own initiative and showed very little support for a serious injury. The case demonstrates the importance of ensuring that proper records are kept of the consequences of any criminal injury and that these records be submitted with the claim at time of submission. It is instructive to note that the time from the commission of the offence until the time that the compensation was awarded was almost 3 ½ years. 

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.

Criminal injuries compensation awarded on appeal 900 577 aelegal

Criminal injuries compensation awarded on appeal

NUROVIC -v- NUROVIC [2019] WADC 28

On 1 April 2014 the appellant pleaded guilty to unlawfully assaulting the respondent on 27 December 2013 and thereby doing her bodily harm in circumstances of aggravation. The respondent subsequently lodged a claim for criminal compensation pursuant to the Criminal Injuries Compensation Act 2013 (WA) (the Act) and on 10 October 2018 was awarded $47,821.95 by the assessor.

The appellant appealed that decision on the grounds that:

  • he only pleaded guilty as a result of incompetent legal advice;
  • he did not break the respondent nose; and
  • the respondent had a pre-existing medical condition.

In regard to the claim that the appellant received incompetent legal advice the court stated that “…if the appellant wished to dispute that he assaulted the respondent he should have pleaded not guilty and the matter would have gone to trial. In the four years since the plea he has not sought to appeal his guilty plea. He cannot now controvert his plea or the material facts that were read to the court upon sentencing”

In regard to the claim the appellant did not break the respondent’s nose the court stated that “…no challenge was made to that fact that the assault had caused the broken nose. The appellant cannot come to this court and say that his blow did not break her nose. If he wished to challenge the assertion which was clearly made at the court on both 1 April 2014 and 14 October 2014, he should have raised the issue then and there and it would have been dealt with by the magistrate. It cannot now be raised”

In relation to any pre-existing medical condition suffered by the respondent before the broken nose the court found “…there is absolutely no evidence that she had a pre-existing condition that would have meant her nose would have been broken in any event. Whilst any pre-existing nasal difficulty may have left her predisposed to a broken nose, the appellant simply takes his victim as he finds her”.

The respondent claimed additional loss of past and future earning capacity (the Court been allowed to received new and further evidence) and the Court stated that “…ultimately the respondent claim for past loss of earnings is really based on the fact that she had significantly more time off after the incident than she did prior to the incident and therefore she says she should be award compensation to reflect her loss of income”. However, the Court was not satisfied on the balance of probabilities that the respondent had made a case for loss of future earning capacity. Whilst it accepted that the respondent was fearful of losing her job because of the time she took off work and that the evidence established that she becomes withdrawn, the evidence also shows she was then working full-time and would be able to for the foreseeable future.

The court proceeded to increase the award and assessed it at $50,384.29 for injuries and losses in respect of the proved offence”

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.

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.

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