In the matter of Moala [2020] WACIC 1, the Claimant, a Police Officer was injured whilst executing an arrest warrant for the arrest of two offenders. The Claimant and his Police Officer partner attended to search an address, in an industrial area, after having been informed that the offenders were there. On arrival they noticed another Police Officer running to the back of the particular compound and in an attempt to assist, the Claimant and his Police Officer partner scaled the fence. When the Claimant had reached the top of fence, he sat there with his legs on the inside of the premises and jumped down and landed awkwardly. Placing all his weight on his right ankle he felt excruciating pain and was unable to weight bear being subsequently diagnosed with a fractured tibia and was treated accordingly. The offenders were not found at the premises.
The Claimant made an application with the Office for Criminal Injuries Compensation for compensation for the injuries suffered “as a consequence of” the incident when he scaled the fence and fracture his tibia.
To award the Claimant compensation, an assessor for criminal injuries compensation must be satisfied that the injury occurred ‘as a consequence‘ of the commission of an offence or alleged offence. There are a number of court cases which have examined the meaning of the term ‘as a consequence of’ or variations thereof.
The Australian courts have stated that the common law principles of remoteness and foreseeability were not applicable. This approach was followed by the Western Australian courts where it was said that consideration of the phrase ‘as a consequence of’ is not to determine “whether the injury was remote or proximate” but whether it was as a consequence of the commission of the offence or the alleged offence. Foreseeability and remoteness are irrelevant to that determination. The phrase “as a consequence of” therefore requires a consideration of whether the injuries suffered by a person are “causally connected” to the offence to entitle a person to compensation.
The assessor was not convinced that the common-law common-sense test of negligence is appropriate in determining whether an injury occurred ‘as a consequence’ of an offence. This is particularly so when it has been established the common law principles of remoteness, proximity and foreseeability are irrelevant. Therefore, in her view, the assessor stated that the matter was simple: as a question of fact, did the Claimant suffer an injury as a consequence of the offence? This should not be clouded by principles of common law negligence or the substitution of other expressions to reach the determination.
The question to be determined by the assessor was whether the Claimant’s injury to his ankle occurred as a consequence of those offences/alleged offences committed by the offenders OR as a result of attempting to execute Arrest Warrants issued for the offenders. The Assessor was satisfied that:
- no offence or alleged offence occurred on the date upon which the Claimant suffered his injury;
- the claimant attended the premises in question as a result of arrest warrants issued with respect to the offenders’ failure to appear in Court;
- whilst the breach of Bail is an offence it is not in fact this breach which caused the Claimant’s injury;
- the Claimant’s injury was caused whilst the Claimant was carrying out his police duties as directed in executing arrest warrants previously issued;
- the injury arose as a consequence of the execution of the warrants and not the offence or offences upon which the Claimant relies;
- no offence occurred at the time the Claimant was injured.
Therefore, the assessor was not satisfied that the Claimant suffered injury as a consequence of the offences for which the offenders were convicted and there were no other alleged offences which caused the Claimant’s injury and refused his application.
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