Unfortunate chase leads to compensation

CHASE -v- FRANCIS [2020] WADC 34

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

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

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

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

The respondent was then convicted of three criminal offences namely:

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

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

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

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

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

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

Issue 1.

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

Issue 2.

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

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

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

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

Issue 3.

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

The court therefore ordered that the victims receive compensation.

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