Personal Injury Compensation

MANGISI -v- BOEHM [2021] WADC 76

At 1.00 AM on Saturday, 26 January 2019 Mr Boehm (victim) was leaving the Niche Bar to meet with his girlfriend when he was assaulted by Mr Mangisi (offender). The victim had taken a few steps when he looked up and saw a person punch him in the face. The attack was not provoked by the victim. He remembered falling back, waking up and seeing his friend trying to help him. He was conveyed by ambulance to Sir Charles Gairdner Hospital. The offender admitted the offence and was convicted on 20 June 2019.

The victim’s injuries were as follows:

1. a swollen lip;
2. grazes to the left elbow;
3. large gash to the back of his head;
4. a chipped front tooth.;
5. a swollen and sore nose;
6. psychological injuries.

As a result of the injuries and the assault the victim:

1. required dental treatment to repair the damage to his teeth;
2. had external cuts and significant swelling to his lips and surrounding areas which took five days to heal and subside. He was unable to eat solid food until the swelling had subsided;
3. had internal cuts in his mouth which took seven days to heal. He was unable to brush his teeth until the internal cuts had healed;
4. experienced significant swelling of the nose, which took five days to subside;
5. had a graze to his elbows that left noticeable scars;
6. suffered a laceration to the back of his head where it hit the cement which took 10 days to heal;
7. experienced headaches, nausea, dizziness and fatigue for several weeks following the accident and continued to experience these symptoms intermittently;
8. experienced severe fear, anxiety, flashbacks to the moment just before he was assaulted, a loss of self-worth, an inability to sleep, and panic attacks;
9. was required to take leave from work for treatment, but this did not involve a loss of income;
10. suffered psychological injuries. He experienced an enormous loss of confidence in himself, a lack of trust in strangers, and was forced to change certain aspects of his daily routine; and
11. was no longer able to catch the bus nor go to the gym.

The psychological sequelae were confirmed in a report filed by Mr Paul Beros, clinical psychologist. The victim was referred to him by his general practitioner under a mental health care plan. He stated that the victim presented with a range of psychological symptoms secondary to the assault.  These included: Panic attacks, generalised anxiety (that is, feeling tense, worried and anxious in a variety of settings), sleep disturbance, re-experiencing phenomenon (that is, including dreams related to the attack, imagery related to the attack), irritability, a sense of worthlessness, a sense of vulnerability, reduced libido, low mood, tearfulness, avoidance behaviour (that is, avoiding crowded public areas, avoiding public transport, social events, work situations). These psychological conditions resulted in significant psychological distress, a reduction in his self-esteem and confidence and a reduction in his social performance and quality of life.

Mr Beros’ therapy included insight-directed therapy, cognitive behavioural therapy, and mindfulness-based interventions. He did not expect that any further treatment would be required but said that should the victim experience a relapse he would encourage him to engage with psychological treatment.

On 9 September 2020, the victim was awarded $28,164 for injury and loss pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA) (Act). The award was made up of $25,000 for non-pecuniary loss, $888 for expert reports, $2,198.30 for treatment expenses and $77.70 for travelling expenses.

The offender was notified of the decision by a letter from the assessor dated 9 September 2020. A notice of appeal was lodged on 8 October 2020 pursuant to s55 of the Act. It was this appeal to the District Court that formed the subject of this decision.

Pursuant to s56 of the Act the District Court decided the application afresh, without being fettered by the assessor’s decision, on the evidence and information that was before it.

The District Court assessed the evidence and found that the victim’s out of pocket expenses were as follows:

1. medical, dental, and psychological treatment costs – $2,198.30.
2. report fees – $888 and
3. travel expenses – $77.70.

These expenses totalled $3,164 and were allowed.

The court considered Woodward v Davies [2021] WADC 73 in assessing non-pecuniary loss. In that matter, the court awarded $18,000 for non-pecuniary loss in a case where the respondent’s tooth was fractured in an assault, became infected and had to be extracted. The respondent had ongoing residual symptoms of post-traumatic stress disorder three years after the incident.

The court held that a reasonable award in the circumstances of this matter would be $10,000 for non-pecuniary loss and added to it the $3,164 referred to above.

The victim was thus awarded compensation in the sum of $13,164.

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

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:

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.

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.

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.

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.

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.

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.