//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2012] WADC 89
District Court of WA
2012-06-19
Scott J
Original judgment source is linked above.
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CITATION : HUTCHINGS -v- LACHLAN [2012] WADC 89
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Criminal injuries compensation - Proved offence - Alleged offence by claimant - Conduct of claimant said to make award of damages unjust
Criminal Injuries Compensation Act 2004 (WA) s 39, s 41
Amicus Curiae : State Solicitor for Western Australia
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Attorney-General (WA) v Schoombee [2012] WASCA 29
Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377
Bentham v Wass [2004] WADC 47
Bodney v Assessor of Criminal Injuries Compensation [2000] WADC 214
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Executive Director of Health v Lily Creek International Pty Ltd [2000] WASCA 258; (2000) 22 WAR 510
Fazio v Fazio [2012] WASCA 72
G v H [1994] HCA 48; (1994) 181 CLR 387
Gullelo v Halloran [2008] WADC 145
Hogben v Darcy [2009] WADC 63
Hondros, Re [1973] WAR 1
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, 143
KMA v DFS [2010] WADC 6
Lachlan [2010] WACIC 28
Lanyon v Northern Territory of Australia [2002] NTSC 6
Lloyd v Small (1996) 16 SR(WA) 111
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
M v J and J v J (Unreported WASC (Scott J), Library No 920598, 19 November 1992)
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
MES v KG (1995) 12 SR (WA) 330
Montemaggiori v Wilson [2011] WASCA 177
Mulcahy [2010] WACIC 35
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
Nominal Defendant v Owens (1979) 22 ALR 128
Re Richardson [2009] WADC 93
Re Utting [2011] WADC 10
Reed v Reed [2002] WADC 11
RJE v Bandy (Unreported WASC (Burt J); Library No 1365; 31 May 1974)
S v Neumann (1995) 14 WAR 452
Scott v Kevill (2002) 28 SR (WA) 226
SW v BB [2010] WADC 86
TAW v NJS [2011] WADC 187
Tilbury, Re [2010] WADC 46
1 By notice of appeal dated 3 August 2010 the appellant appealed against an award of criminal injuries compensation made on 13 July 2010 by the Chief Assessor (Assessor). The decision of the Assessor is reported as Lachlan [2010] WACIC 28. The claim related to an assault in Northbridge on 28 June 2007. The Assessor awarded the respondent the maximum amount of compensation able to be awarded, being $75,000 (Award).
2 The appellant seeks to challenge the Award two bases:
(a) that the respondent's injuries were incurred 'when' has was committing a separate offence contrary to Liquor Control Act 1988 (WA) (LCA) s 115 (6), meaning that no compensation was able to be awarded pursuant to Criminal Injuries Compensation Act 2004 (WA) (CICA) s 39 (Ground 1); and
(b) that, in any event, the award was manifestly excessive (Ground 2 (a)), in particular having regard to CICA s 41 (Ground 2 (b)).
3 The appeal was initially listed for hearing on 30 May 2011 before her Honour Judge Sweeney. The appeal was adjourned sine die as the outcome of the appeal was potentially affected by the then pending decision of the Court of Appeal in Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29. That decision was handed down on 9 February 2012.
4 On the night in question, the respondent had gone to the Mustang Bar in Northbridge with some friends. In the course of the evening he was outside the bar having a cigarette when he got into an argument with another man. The crowd controllers intervened to calm things down and (at least on the respondent's version of events), the respondent was allowed to re-enter the bar.
5 After leaving the bar some time later to have another cigarette, the appellant, who was one of the crowd controllers, refused the respondent entry. The respondent was concerned about this because his girlfriend was inside the bar and argued with the appellant.
6 The appellant then punched the respondent to the left side of the jaw. The respondent was taken by ambulance to Royal Perth Hospital where he had surgery on his jaw. He sustained a bilateral mandible fracture.
7 After the incident, the respondent could not speak properly and was in pain for months. He has had ongoing problems with his jaw, which have led to surgery, as well as to wider impacts on his quality of life. The impacts are best described in the words of the respondent in his submission to the Assessor:
It is almost two years since I was viciously punched by a bouncer for no reason at Mustangs Bar in Perth, the memory of it is still very vivid and makes me uneasy to think about it. I was in complete shock when it happened there was blood everywhere, I could feel my jaw hanging towards one side of my face and moving around awkwardly while I tried to call the police and ambulance. The police were great and organised everything. The trip to the hospital is a bit of a blur but I remember the excruciating pain and my broken jaw was just hanging. It was broken in three places. It felt like my face was falling apart. At the hospital they were a bit surprised after the x-rays as they didn't realise how badly it was broken.
They operated on my jaw and I stayed in hospital for two nights. I lived at the backpackers because I was trying to get settled in Perth. It was terrible - I couldn't talk properly, I couldn't brush my teeth, I couldn't even kiss my girlfriend due to the pain I was in and the pain it caused, the pain didn't go away for months.
I couldn't sleep and of course I couldn't eat unless the food was liquid. The worst was not feeling confident enough to go out anywhere for about 6 weeks I barely left the backpackers. It hurt to walk around a lot. My girlfriend and I started to drift apart because I basically couldn't love her, she always had to look after me, I couldn't go out with her anywhere or do anything because I had no money and I was always in heaps of pain. I was really depressed and felt really low, I kept having bad dreams all the time. I had been working fulltime as a machine operator and all of a sudden I had no job, no money and no prospects. I couldn't even look for work as I was not capable.
8 The appellant was charged with assault occasioning bodily harm. He pleaded not guilty, but was ultimately convicted of the offence following a trial on 2 May 2008. The appellant raised the defences of provocation, defence of property and self-defence, each of which were rejected by the magistrate.
9 The relevant findings of fact made by the magistrate are set out in the following passage from the transcript of the trial. In it the respondent is referred to as 'Mr Riddings', as he was then known by the name Michael Riddings:
Mr Riddings [sic] was outside the Mustang Bar having a cigarette. When he went to re-enter and [sic] was refused re-entry. He had been involved in an earlier incident but had gained re-entry to the bar, as I mentioned. Mr Hutchings, in his role as an employed licensed crowd controller refused Mr Riddings entry. Mr Riddings was affected by alcohol and accepted the description as being drunk. I infer this to mean that effectively anyone in the position of Mr Hutchings would have concluded that Riddings was affected by alcohol.
Mr Riddings argued with Hutchings about being allowed re-entry and swore in the process. Mr Riddings did not verbally threaten Hutchings. Mr Hutchings was physically bigger than Mr Riddings. Mr Hutchings was accompanied in close proximity by another crowd controller, namely of course Mr Williams. Mr Hutchings was in an elevated position above Riddings. Mr Riddings was at footpath level and Mr Hutchings was up the steps of the Mustang bar. At all material times, which is to say of course the transaction between the discussions, if you like, or argument, whichever way you want to characterise it between Mr Riddings and Mr Hutchings that led up to the punch.
At all those material times Mr Riddings had his left hand in his pocket. In my view there was nothing to suggest at any stage that Mr Riddings was carrying a weapon. Mr Riddings did not swing any punch at Mr Hutchings. At all material times Mr Ridding's right arm was free and he was gesticulating, but he did not make as if to punch Mr Hutchings. Mr Hutchings punched Mr Riddings in the jaw with the result that Mr Riddings suffered bodily harm. I infer that Mr Hutchings simply got frustrated with Mr Riddings and lashed out at him.
Mr Hutchings felt immediate remorse and then of course approached Mr Riddings. It seemed to me that the unguarded way in which Mr Hutchings approached Mr Riddings really effectively confirms that he had not really regarded Mr Riddings as being a threat or drugged or carrying a weapon. He just expressed immediate and understandable remorse.
10 The transcript of the evidence received at the trial was not before the Assessor, nor is it before me; only the reasons for decision. The magistrate imposed a fine of $2,500.
11 The Assessor found that the offence which the appellant was convicted of on 2 May 2008 was a 'proven offence' for the purposes of CICA s 12 and that the respondent sustained an injury, and suffered losses, as a consequence of the proven offence.
12 The appellant made a written submission to the Assessor in which he said that at the time of the incident he was confronted by the applicant:
... in a drunken and threatening manner. After he was refused entry, he engaged in serious violent behaviour with other patrons who were leaving the club. He was extremely intoxicated and very aggressive.
I note from my review of the comments of the Magistrate when determining the matter, that he found that the offender had exaggerated the extent to which the applicant had behaved towards him, that the applicant was not particularly aggressive and although his behaviour was inappropriate, he had made no threat to the offender either by conduct or verbally. The video taped recording of the incident showed that the applicant had kept his left hand in his pocket during the incident and that he was only waving his right hand around whilst remonstrating over his being prevented from re-entering the nightclub. I was not satisfied that the offender's description of the incident in his letter accorded with the evidence which had been given at the trial and the findings of the Magistrate. In particular, the Magistrate did not accept that there was any basis on which the offender could have believed that the applicant had a weapon and specifically rejected the defence of self-defence. In fact, the evidence showed that the offender had approached the applicant after the incident and apologised for his conduct. I was not satisfied that the offender had raised any matter not previously considered by the Magistrate and determined against him.
14 The Assessor went on to consider the application of CICA s 41, but declined to reduce the award due to any behaviour, condition, attitude or disposition of the respondent. She noted that '[w]hilst it was conceded that the applicant was drunk and inappropriate in his response to being refused entry, it was specifically found that he had not been threatening in word or action and was not in fact in a position to constitute any real threat to the offender' [9]. The Assessor also noted that the respondent was a young man of small build, and was standing on a step below the appellant who was backed up by other security officers.
15 The Assessor did not consider the applicability of CICA s 39, though the issue was not raised with her by the appellant.
16 In relation to economic loss, the assessor found [19]:
The documents available to me indicated that in the period 5 April 2007 to 21 June 2007, immediately before the incident, the applicant earned $9,259 gross. His payslips for the four weeks before the incident show an average net weekly earning of $855 together with superannuation of an average of $43 a week making a total net weekly earning immediately before the incident of $898. The applicant's tax return showed that in the 2008 tax year, immediately following the incident, he earned gross $1,775. His expected net earning for the 56 week period from the date of the incident to 30 July 2008 was $50,288, which when the 2008 net earnings are deducted makes a total net loss in the year after the incident of $48,513. From the applicant's statement I accepted that he had received some casual earnings in that period which I estimated to be approximately $4,000 gross. Deducting this from the total gives an estimated net loss of earning, assuming the applicant had continued to be employed at the level at which he had been earning prior to the incident, of $44,513. His net earning declared in his 2009 tax return was $14,173, including some Centrelink benefit. Using the average net pre-incident figure of $898 per week, and assuming some holiday or other time off of 4 weeks, the applicant's net loss of earning for the 2009 tax year was $28,931 ($898 x 48 - $14,173 = $28,931). Adding the 2008/09 net loss of earning figures and deducting 10 per cent for contingencies makes a total past loss of earnings to the beginning of the 2010 tax year of $66,100.
17 The Assessor set out in detail the evidence of the impact of the injury on the respondent which I have summarised above. The Assessor assessed damages at $82,087.35 as follows:
18 The assessor awarded the maximum of $75,000 and declined to reduce the award by application of CICA s 41.
19 In hearing this appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the assessor's decision': CICA s 56 (1). The court is able to determine the appeal 'solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information': CICA s 56 (1). It is open to for the court to confirm, vary or reverse the assessor's decision, either in whole or in part: CICA s 56 (2) (b).
20 The appeal is a hearing de novo: Gullelo v Halloran [2008] WADC 145 [5]. Notwithstanding CICA s 56 (1), it is nonetheless appropriate to have regard to the assessment made by the Assessor as a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63 [13]. However, the appellant does not have to demonstrate an error on the part of the Assessor in order to succeed: Gullelo [5].
21 The respondent's claim is based on a proven offence. In relation to a claim of this kind, the scheme of the CICA is that the Assessor starts from the basis of the proven offences, and then proceeds to determine causation and assess compensation. The CICA does not contemplate that the assessment process will involve a re-litigation of the facts which led to the proven offence or require the Assessor to 'look behind' a conviction: Hondros, Re [1973] WAR 1, 3; Bentham v Wass [2004] WADC 47 [5]; Scott v Kevill (2002) 28 SR (WA) 226 [7]. It follows that the Assessor, and the court on appeal, must accept the facts on which the proven offences were based.
22 The respondent sought leave to adduce further evidence pursuant to CICA s 56 (1), being:
(a) an affidavit sworn by him dated 20 May 2011 providing updated details on his employment position and the impact of the injuries; and
(b) an affidavit sworn by his solicitor dated 20 May 201l annexing documents verifying the income of a friend of the respondent, whom the respondent says followed the career path that he would have followed had the accident not occurred.
23 The general rule appears to be that as the appeal is a fresh hearing, further evidence should be admitted unless there is some reason why it would be unjust to do so, especially given the beneficial purpose of the CICA and the informal nature of a hearing before an assessor: TAW v NJS [2011] WADC 187 [17]; Hinchcliffe v Hinchcliffe [2010] 78 [9]; Tilbury, Re [2010] WADC 46 [3].
24 It appears that leave was granted to the respondent to adduce this evidence at the hearing before her Honour Judge Sweeney on 30 May 2011. Had Judge Sweeney not given leave, I would have done so. Counsel for the appellant in the end did not oppose the grant of leave, but submitted that the weight that should be given to the additional evidence is minimal.
25 Ground 1 in the notice of appeal was that the respondent's injuries were incurred 'when' has was committing a separate offence contrary to LCA s 115(6), meaning that no compensation was able to be awarded pursuant to CICA s 39. CICA s 39 relevantly provides:
(a) that a person was injured as a consequence of the commission of an offence; and
(b) that the injury was suffered when the person was committing a separate offence,
the assessor must not make a compensation award in favour of the person.
26 As I have noted, the interpretation of CICA s 39 was considered by the Court of Appeal in Attorney General for Western Australia. The facts of that case were that SW claimed compensation under the Act in respect of injuries she suffered when BB committed the offences of indecent assault and sexual penetration without consent against her. Shortly before midday on the day of the offences SW was visited by some friends and BB who was acquainted with those friends. SW was told that the visitors had amphetamines. BB and SW went into SW's bedroom and smoked some amphetamine using a pipe that SW produced. SW's friends left, leaving SW alone with BB. BB had a shower after which SW and BB may have smoked more amphetamines, although SW was unsure on this point. BB went to his car returning with a music player which he assembled in SW's bedroom. After some conversation BB committed the offences against SW. When the telephone rang SW left the bedroom to answer it. Following this SW and BB went for a swim in the swimming pool. Following the swim SW and BB returned to the house smoked some more amphetamine.
27 The Assessor at first instance refused the application for criminal injuries compensation pursuant to CICA s 39. The assessor found that SW and BB consumed amphetamines together on a number of occasions prior to and after the offence was committed. The consumption of amphetamines constituted breach of the Misuse of Drugs Act 1981 (WA) (MDA). The assessor was satisfied that SW was committing an offence at the time she suffered her injuries.
28 Her Honour Judge Schoombee set aside the decision of the assessor and awarded compensation to SW in the amount of $40,592: SW v BB [2010] WADC 86. Her Honour interpreted of the word 'when' in CICA s 39 (1) (b) to require a causal connection between the separate offence and the injury for which compensation was claimed. In doing so, her Honour declined to follow a decision of Yeats DCJ in Re: Richardson [2009] WADC 93, in which her Honour concluded that CICA s 39 (1) did not require any such causal connection, merely a temporal connection. On the facts in SW v BB Judge Schoombee was satisfied that SW had committed a separate offence of possession of a prohibited drug pursuant to MDA s 6. She was also satisfied that the sexual offending occurred on the same occasion as that of SW's smoking of amphetamines. However, her Honour was not satisfied that 'but for' her smoking of amphetamines, the sexual offending would not have occurred. Accordingly, her Honour concluded that CICA s 39 did not apply to SW's case.
29 The Court of Appeal disagreed with her Honour's interpretation of CICA s 39 (1), found that a jurisdictional error had been committed and quashed the decision under review: Attorney General for Western Australia [46], [60], [61], [62]. The leading judgment was delivered by the Chief Justice, with whom Newnes JA and Murphy JA agreed. The Chief Justice stated the following about the evident purpose of CICA s 39, including an example that is apposite for present purposes [32]:
The evident purpose of s 39 is to preclude the payment of compensation to a person who suffers injury as a consequence of the commission of an offence when that person is themselves engaged in criminal conduct. That evident purpose would be defeated if too narrow or precise a view is taken of the temporal connection between the offence giving rise to the injury for which compensation is claimed, and the offence committed by the claimant. Take the obvious example of a claimant seeking compensation for injury suffered during an assault which was the retaliatory response to an assault which the claimant initiated but the retaliation went beyond self-defence. It would very often be the case that the offence in the form of the initial assault committed by the claimant would have been completed before the retaliatory response occurs, with the result that if the matter is approached by reference to precise instants in time, it could not be said that the two offences were committed 'at the same time'. Another obvious example is the case of a claimant who suffers injury as a result of an offence committed while fleeing from the scene of a crime which he or she committed, but which was complete at the time injury was suffered. It is clear from the language used in s 39 of the Act, and from the secondary materials referred to by the District Court judge, that it was intended that compensation would not be available in either of these examples.
30 The Chief Justice adopted the following passage from the decision in Yeats DCJ in Richardson [31]:
I agree with respect that s 39 (1) does not require any causal connection between the injuries suffered by the appellant and the separate offence allegedly being committed by the appellant. The only relationship is a temporal one. No award can be made if the injury was suffered when the appellant was committing a separate offence. The appellant contends for a narrow interpretation of the temporal connection so that if the separate offence is committed before the offence causing injury, the appellant could nonetheless receive an award of compensation. The Amicus contends that too narrow an interpretation of the temporal limitation could defeat the purpose of this section. On the other hand too broad an interpretation would bar a victim of crime from obtaining compensation in an otherwise appropriate case. Whether there is a temporal connection requires judgment by the Assessor of all the facts and circumstances of the case to determine whether at the time the applicant was injured the applicant was committing a separate offence. Generally, if the applicant's injury and the applicant's offence are part of the one incident, that would be sufficient to show a temporal connection.
31 The Chief Justice considered the application of CICA s 39 to the facts of the decision under review in the context of considering whether to exercise the discretion to refuse prerogative relief. In this context, his Honour made the following observations [54] - [55]:
Under the approach to the application of s 39 of the Act enunciated by Yeats DCJ in Richardson, which I favour, the question of whether there is a sufficient temporal connection between the offending behaviour of the claimant, and the suffering of the injuries caused by the separate criminal offence so as to preclude compensation, will depend upon questions of fact and degree to be evaluated in all the circumstances of the case - in the first instance by the Assessor and secondly on appeal by the District Court. There was evidence before each of the Assessor and the District Court judge to enable them to conclude, and indeed each did conclude, that SW was engaged in a course of criminal conduct in the form of use of amphetamines 'when' or 'at the time that' she was sexually assaulted. It is open on the evidence, most particularly the evidence in the form of SW's statement, to conclude that she and BB were engaged in a continuing course of criminal conduct during the afternoon in question, in the course of which she was sexually assaulted.
Even if a narrower view is taken of the requisite temporal connection, such that there must be a precise temporal overlap between the two offences, in this case the evidence before the Assessor and the judge is capable of sustaining the conclusion that SW was committing a number of continuing offences throughout the entire period in question, including the period during which she was sexually assaulted... On the evidence, it would be open to conclude that SW was committing those offences at the very instant in time at which she was sexually assaulted.
32 In summary terms the decision in Attorney General for Western Australia is authority for the following:
(a) the term 'when' in CICA s 39 (1) (b) does not require a causal connection between the offence committed by the claimant for compensation and the offence that gave rise to that person's injuries;
(b) the term 'when' in CICA s 39 (1) (b) requires a temporal connection between the offence committed by the claimant for compensation and the offence that gave rise to that person's injuries;
(c) the temporal connection does not require the applicant's offence to be committed at the same instant in time as the offence that gave rise to the claimant's injuries; and
(d) whether there is a temporal connection requires judgment by the assessor of all the facts and circumstances of the case to determine whether at the time the applicant was injured the applicant was committing a separate offence or whether they are part of the one incident.
33 It is also evident from the decision in Attorney General for Western Australia that the 'offence' in CICA s 39 does not have to be a proven offence. This is consistent with the definition of 'offence' in CICA s 5, which means an 'alleged offence or a proved offence'.
34 CICA s 39 requires the assessor to be 'satisfied' of certain matters. By CICA s 3, 'satisfied' means 'satisfied on the balance of probabilities'.
35 The 'balance of probabilities' requires the assessor to be satisfied that there are more than conflicting inferences of equal degrees of probabilities so that the choice between them is a matter of conjecture: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352, 360; Nominal Defendant v Owens (1979) 22 ALR 128, 132; Executive Director of Health v Lily Creek International Pty Ltd [2000] WASCA 258; (2000) 22 WAR 510 [62] - [66], [76], [77]; Fazio v Fazio [2012] WASCA 72 [13], [14], [48]; Lloyd v Small (1996) 16 SR(WA) 111, 113 - 114. The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proven; that is particularly so when criminal conduct is alleged, where clear and cogent evidence will be required: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 170 - 171; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 - 363; G v H [1994] HCA 48; (1994) 181 CLR 387, 399. In G v H Deane, Dawson and Gaudron JJ commented (399, footnotes omitted):
It has been clear since the decision in Briginshaw v Briginshaw that in civil cases the standard of proof is on the balance of probabilities, with due regard being had to the nature of the issue involved so that "[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal"... Thus, if there is an issue of "importance and gravity", to use the words of the trial judge, due regard must be had to its important and grave nature.
Not every case involves issues of importance and gravity in the Briginshaw v Briginshaw sense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing, as in Briginshaw v Briginshaw where the allegation was adultery by a married woman, an allegation involving serious legal consequences when that case was decided ...
36 This principle has been held to apply to the precursor to CICA s 17, allowing a claim for compensation where no person has been charged with the alleged offence: MES v KG (1995) 12 SR (WA) 330, 331 - 332. In my view, it applies equally to CICA s 39 (1) (b) where the assessor has to be satisfied 'that the injury was suffered when the person was committing a separate offence'.
37 I do not think that it is useful to refer to the concept of onus of proof in the context of the CICA. The CICA is essentially neutral as to the onus of proof on the claimant and the offender; the 'onus', if there is one, is on the assessor to be 'satisfied' of the relevant matters. The failure of the assessor to be satisfied of a matter may operate to the advantage of the claimant or the offender depending on the context. For example, in CICA s 12, if the assessor is not satisfied that 'the claimed injury and the claimed loss occurred and did so as a consequence of the commission of a proven offence', the claim will fail, to the benefit of the offender. In CICA s 39 (1) (b), if the assessor is not satisfied 'the injury was suffered when the person was committing a separate offence', a barrier to award of compensation is removed to the benefit of the claimant and the detriment of the offender.
38 CICA s 39, unlike s 41, does not provide a discretion to reduce an award where the section is enlivened. Once enlivened, 'the assessor must not make a compensation award in favour of the person'.
39 The appellant submits that the respondent's injuries were incurred 'when' has was committing a separate offence within CICA s 39. The offence is that set out LCA s 115(6), which provides with the relevant context:
115. Drunk etc. people, offences as to, refusal of entry to etc.
...
(a) an authorised person may refuse the person entry to the licensed premises or a part of the premises; or
(b) an authorised person may require the person to leave the licensed premises or a part of the premises; or
(c) if the requirement under paragraph (b) is not complied with - an authorised person, or any other person on the request of an authorised person, may remove the person from the licensed premises or a part of the premises using such force as may be reasonably necessary; or
(d) an authorised person may refuse to sell liquor to the person.
(ii) has been required to leave and has left, or been removed from,
(ii) in any area subject to the control or management of the licensee,
40 The term 'authorised person' is defined in LCA s 3:
authorised person, in relation to licensed or regulated premises, means -
(a) the licensee or occupier of the premises; or
(b) a manager of the premises; or
(c) an employee or agent of the licensee or occupier or a manager; or
(d) a member of the Police Force;
(1) A person is drunk for the purposes of this Act if -
(a) the person is on licensed premises or regulated premises; and
(b) the person's speech, balance, co-ordination or behaviour appears to be noticeably impaired; and
(c) it is reasonable in the circumstances to believe that that impairment results from the consumption of liquor.
(2) If an authorised officer or a person on whom a duty is imposed under section 115 decides, in accordance with subsection (1), that a person is drunk at a particular time, then, in the absence of proof to the contrary, that person is to be taken to be drunk at that time.
42 The appellant submitted that from the evidence before the magistrate that:
(a) the respondent appeared to be drunk and was behaving in an offensive manner meaning that he was a person to whom LCA s 115(4a) applied;
(b) by LCA s 115(4)(a), an authorised person could refuse the respondent entry to the licensed premises or a part of the premises;
(c) the appellant being an licensed crowd controller, was an authorised person for the purposes of LCA s 115(4)(a);
(e) the appellant refused the respondent entry to the Mustang Bar; and
(f) following that refusal the respondent remained on the footpath adjacent to the Mustang Bar.
43 On this basis, the appellant submitted that the respondent was committing an offence when the injury was suffered, namely, a breach of LCA s 115(6). The timing issues that arose in Attorney General for Western Australia do not arise in the present case, as given that the respondent was remaining on the footpath adjacent to the Mustang Bar when the assault occurred, there was in fact a precise temporal overlap between the two offences.
44 The appellant thus invites the court to come to the same outcome in relation to LCA s 115(6) as the court did in Richardson. In that case Yeats DCJ found that the claimant had breached LCA s 115(6) and therefore made no award of compensation pursuant to CICA s 39.
45 The respondent pointed out that the defence in LCA s 115(6) was not argued before the Assessor.
46 The respondent submitted that in order to commit an offence under LCA s 115(6)(a)(i) four elements must be established on the balance of probabilities, namely that:
(a) at the time he was refused entry, the respondent was drunk in that his speech, balance, coordination or behaviour appeared to be noticeably impaired;
(b) it was reasonable in the circumstances to believe that the impairment resulted from the consumption of liquor;
(c) the appellant had the relevant belief when he refused the respondent entry; and
(d) following refusal of entry the respondent 'remained' on the premises or on a footpath adjacent to the premises.
47 The respondent submitted that the material before the Assessor and the court does not allow any conclusion as to whether or not the respondent was 'drunk' as defined in the LCA, nor whether the appellant had the requisite belief when he refused the respondent entry. The respondent referred to the passage from the decision of the magistrate which I have quote above [9]. The respondent further submitted that the magistrate was not making an assessment as to whether the respondent satisfied the definition of 'drunk' in LCA s 3A. For example, the magistrate did not consider whether the respondent was slurring his speech or that he had difficulty breathing. Nor is there any evidence as to how much the respondent drank whilst he was patronising the Mustang Bar.
48 To the respondent, it was significant that the appellant did not allege that the respondent was drunk, nor that this was the reason why he was refuse re-entry.
49 In the end the respondent submitted that, whilst it was possible that the respondent was 'drunk' as defined in the LCA, it was equally possible that he was not. In those circumstances, there was insufficient evidence for the Assessor (had she considered the issue), and now the court, to be 'satisfied' that the requisite elements of the offence under LCA s 115(6) has been committed.
50 Counsel for the respondent also submitted that there was insufficient evidence for the court to find that the respondent 'remained' on the licensed premises after being refused entry. The magistrate accepted that respondent's version of events. On that version, the longest time the respondent could have been found to have 'remained' on the premises was the interval between when he was refused entry and when he was struck by the appellant. That interval could not have been more than a minute or so. The definition of 'remain' needs to be taken from the context of LCA s 115(6), which is to ensure drunken patrons who have been refused entry to licensed premised go home rather than linger outside the premises. To counsel for the respondent, the word 'remain' connoted 'staying around without any reasonable necessity'. In the present case, the respondent was attempting to persuade the appellant to let him re-enter the premises, in particular to let his girlfriend know where he was and that he had been refused entry. This did not constitute 'remaining'.
51 The fact that the issue of CICA s 39 was not considered by the assessor does not prevent it being considered by this court in deciding the matter 'afresh' for the purposes of CICA s 56.
52 There are two separate offences constituted by LCA s 115(6)(a):
the offence of remaining adjacent to licensed premises after having been refused entry to licensed premises (s 115(6)(a)(i)) and remaining adjacent to licensed premises having been required to leave the premises; LCA s 115(6)(a)(ii). In the present factual context, only the former has been asserted against the respondent.
53 The offence pursuant to LCA s 115(6)(a)(i) requires six elements to be established in the present context, namely that:
(a) the respondent was, or appeared to be, drunk, or was behaving in an offensive manner;
(d) the appellant refused the respondent entry to the Mustang Bar;
(e) the respondent 'remained' after having been required to leave; and
(f) where the respondent remained was on a footpath or in an area subject to the control or management of the licensee that is adjacent to the licensed premises.
There was no issue in relation to the elements in (b), (c) and (d) above.
54 As I have noted, the transcript of the evidence in hearing before the magistrate was not available to either the Assessor or me, only the transcript of the judgment. However, the respondent's signed statement was available, the salient parts of which read:
At about 11.30 pm I wanted another cigarette so I told my girlfriend and went outside by myself. I was stood directly outside the bar directly in line with the front doors. The same crowd controller who had spoken to me earlier was on the door with another bloke.
I finished my cigarette and went to walk back into the bar. As I walked past the crowd controller who had spoken to me earlier, he put out his right hand out to stop me walking past. He said 'your not going back in'. I asked him why and he said 'I've been watching you, your drunk'.
I told him that I wasn't drunk and that I hadn't been causing any trouble. He wouldn't listen and said 'I've had enough of you, just get the fuck out of here, just piss off mate', I told him that I didn't want any trouble and asked him to at least get my girlfriend for me because I did not want her left in the bar by herself.
He said 'just piss off'. I got really angry because I was worried about my girlfriend. I was being a bit of an arsehole but I was frustrated that I could not see my girlfriend. I probably said a lot of things I should not have said.
When I was talking to him he was stood on the top step of three steps that lead in to the bar, I was on the second step so he was looking down at me. I was probably about 1 foot way from him. I kept trying to convince him to get my girlfriend and I was waving my hands about and pointing towards were she was in the bar. I was upset but I was not being threatening to him, he's at least twice as big as me. I'm not stupid.
Suddenly without any warning what so ever he just laid me out straight in the face. I didn't even see it coming. He punched me with his right fist into the left hand side of my jaw. I stumbled off the steps but did not fall to the ground. I noticed that there was blood coming out of my mouth and it was all over my hands.
55 Likewise, the transcript of the appellant's record of interview was available, and provides:
PC MAJURY: Aaron as I said we here with regards to an allegation of assault that occurred outside the Mustang bar where you work. Just explain to me in your own words, take your time, what happened tonight.?
HUTCHINGS: Earlier on in the night when I had been on the door there had been a fight involving two patrons who had just walked out of the venue. I separated the fight and informed both patrons that they would not be able to re enter the premises for the durarion of the night.
After that one of the patrons tried to come in about three or four times throughout the night, each time that he came back, and I refused him entry explaining why. Each time he tried to use another excuse to try and get back in. Each time was abusive and aggressive, aggressive. The last time at about 12.45 am when he came to the door I told him again that he wasn't allowed to get back in for the rest of the night cause of what had happened earlier. He didn't want to leave the doorway. I asked him nicely to move out of the doorway. I placed one hand just behind him to move him and he started going off at me and yelling at me. He moved down the stairs at the front where he continued being aggressive and abusing me for a few minutes are so. And I dint [sic] know what was going through his mind are what not. But he was um, going 'ape shit' is one expression for it and I ended up hitting him once to the jaw.
PC MAJURY: Just to recap and go back a little bit, just explain how he was being abusive to you and how he was being aggressive to you. What was he doing? What were his mannerism?
HUTCHINGS: Well he was being verbally abusive, swearing, cursing basically any insults he could things of. His physical posturing showed aggression he wasn't standing calmly. His hand movements to me showed aggression by the way he had his arms. If he decided to hit me at any time it would have been quite easy. He wasn't exactly keeping his hands still.
PC MAJURY: Explain to me how you hit him again
HUTCHINGS: I hit him once to the jaw
PC MAJURY: Was you're fist clenched.
HUTCHINGS: Yes
PC MAJURY: What, clenched into a fist, and what hand did you use?
HUTCHINGS: My right hand
PC MAJURY: And you punched him once
HUTCHINGS: Yes
PC MAJURY: So why did you punch him?
HUTCHINGS: Cause with the aggression he was showing me what not I didn't know what he was going to do.
PC MAJURY: Did you notice if his fists were clenched.
HUTCHINGS: Um, I don't recall, Im [sic] not 100 percent sure. I know that sometimes they were I don't know if they were clenched all the time.
PC MAJURY: Did he verbally threaten you at all. Did he say he was going to attack you or assault you at all.
HUTCHINGS: Not that I remember
PC MAJURY: So that leads us back to the question, why did you hit him? did you hit because, why
HUTCHINGS: Because I felt threatened.
PC PICKLES: But he didn't motion any punches towards you anything like that.
HUTCHINGS: No, he didn't swing at me.
56 The appellant went into more detail as to the events of the night in question in a letter to the Assessor dated 19 March 2010:
At the outset, the incident occurred within an important context. At the time of the incident, I was a crowd controller outside a busy and notoriously dangerous nightspot. I was aware of a spate of violent patrons who had seriously assaulted other co-workers and had further threatened crowd control staff that they would return with more people and weapons when they had been refused entry from the venue.
On the night in question, I was cognisant of the potential threat to me whilst working as a crowd controller. As was borne out in the hearing, I was confronted my Mr Lachlan in a drunken and threatening manner. After he was refused entry, he engaged in serious violent behaviour with other patrons who were leaving the club. He was extremely intoxicated and very aggressive.
After he had moved on from outside the venue, he stated that he was going to come back and get me or words to that effect. I had disregarded this as a mere statement to intimidate me.
However, after some time, Mr Lachlan did in fact return to the venue with the sole purpose to confront and engage me. I was extremely concerned that he had a weapon as a similar incident occurred two weeks prior which resulted in the stabbing of a patron.
Mr Lachlan again approached me in an aggressive and menacing manner. He came up close to me and began waving a hand in my face, with the other hand in his pocket. I immediately panicked and logically thought that he had an offensive weapon such as a knife or gun in his pocket.
As I saw him begin to remove his hand from his pocket, I reacted in self-defence to what I thought might be a fatal attack by Mr Lachlan.
In the context, I was confused and in fear by Mr Lachlan's violent and aggressive demeanour, coupled with him making good on his previous threat that he was coming back to get me.
Mr Lachlan was entirely inappropriate in his behaviour and was the sole contributor to his injuries. Whilst I accept that a ruling has been made against me, I do not accept that Mr Lachlan is without blame. He placed me in a position of intolerable fear and sought make me fear for my life by simulating the concealment of a weapon.
57 The respondent made a submission in response dated 17 April 2010 in which he stated, relevantly (emphasis in original):
58 The video of the event was not in the materials before me, nor the Assessor.
59 As to whether the respondent was, or appeared to be drunk, or was behaving in an offensive manner, the respondent in his witness statement stated that the reason the appellant gave to him for not letting him re-enter was because he was drunk. He made a statement in the same terms to Constable Majury who attended the assault.
60 The appellant in his record of interview did not mention the fact that the respondent was drunk, merely that he had been involved in a fight earlier in the evening.
61 Magistrate Malone found that the respondent characterised himself as being drunk and noted that the respondent gave evidence that he said some things to the appellant that he should not have and that, with the benefit of hindsight, were inappropriate. The magistrate found that the respondent was 'affected by alcohol and accepted the description as being drunk'. From this the magistrate took that 'to mean that effectively anyone in the position of [the appellant] would have concluded that [the respondent] was affected by alcohol';
62 The appellant in his submission to the assessor described the respondent as being 'extremely intoxicated and very aggressive'. However, given the magistrate's findings both as to the credit of the appellant and the facts set out above, I do not place any weight on this submission.
63 Given the need for there to be clear and cogent evidence, I proceed on the basis only of the magistrate's comments and the respondent's evidence. However, on that evidence I am satisfied that the respondent appeared to the appellant to be drunk as defined in LCA s 3A. I place particular weight on the fact that this was the reason given by the appellant for refusing the respondent entry to the Mustang Bar (at least on the respondent's version of events).
64 As to whether the respondent 'remained' after having been required to leave, the word 'remained' is not defined in the LCA. I am thus required to construe its 'natural and ordinary meaning': Attorney-General for Western Australia [31], [61], [62]. It is defined in The Macquarie Dictionary to mean, relevantly, 'to stay in place' (4th ed 2005, The Macquarie Library Pty Ltd). It is defined in The Oxford Australian Dictionary to mean, relevantly, 'be in the same place or condition during further time; continue to exist or stay; be left behind' (2nd ed 2004, Oxford University Press).
65 The offence does not require the person to leave immediately; rather, the offence is to 'remain'. This denotes that something less that immediate departure from the premises or its footpath is encompassed in the word 'remains'. It will be a question of fact and degree, in all the circumstances, as to whether the length of time a person is on the footpath or on the premises means that they 'remain' there for purposes for LCA s 115(6).
66 The respondent told Constable Majury that he argued with the appellant 'for a while' because he was drunk. The respondent in his witness statement says that he challenged the appellant as to whether he was drunk and asked the appellant to get his girlfriend so that she would not be left in the bar by herself. This is not an unreasonable request. The magistrate did not accept the appellant's evidence in the record of interview that he repelled the respondent three or four times. Neither do I accept this evidence.
67 I am not satisfied that the evidence clearly and cogently establishes, on the balance of probabilities, that the respondent 'remained' outside the Mustang Bar after having been refused entry by the appellant.
68 The evidence that the place where the respondent remained was a footpath, or an area subject to the control or management of the licensee, that is adjacent to the licensed premises, begins with the findings of the magistrate which was that the appellant was in an elevated position above the respondent. The respondent was at the footpath level and the appellant was up the steps of the Mustang Bar (see [9] above). The respondent in his witness statement stated that the appellant was on the top of three steps and he was on the second step, a fact he repeated in his submission dated 17 April 2010.
69 There is no definition of the word 'footpath' in the LCA. It is defined in The Macquarie Dictionary to mean 'a path for pedestrians only, especially one at the side of a road or street; pavement'. It is defined in The Oxford Australian Dictionary to mean 'a path for pedestrians; a pavement'. In the Road Traffic Code 2002 (WA) r 3, 'footpath' means 'an area that is open to the public that is designated for, or has one of its main uses, use by pedestrians'.
70 I accept the respondent's evidence that he was on the second of three steps outside the front of the Mustang Bar. I am satisfied that this step is either:
(a) on the footpath, being a path for pedestrians only, adjacent to the Mustang Bar; or
(b) in an area subject to the control or management of the licensee of the Mustang Bar that is adjacent to the Mustang Bar, that control evidenced by the fact that the appellant was exercising a crowd control function in the area of the steps.
71 However, as I am not satisfied that the respondent 'remained' in this area, I am not satisfied for the purposes of CICA s 39 (1) (b) that the respondent suffered his injury when he was committing a separate offence pursuant to LCA s 115(6).
72 The general power of the Assessor is contained in CICA s 30. It provides that 'on application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered'.
73 As the offences occurred after 23 September 2003, the maximum amount of compensation payable for a single offence is $75,000: CICA s 31 (1). The maximum in CICA s 31 (1) is a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463; TAW [21].
74 The correct approach to adopt in assessing the amount of compensation under the CICA is to apply the ordinary tortuous principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the CICA Act, and to the jurisdictional limit of the CICA Act: M v J and J v J (Unreported WASC (Scott J), Library No 920598, 19 November 1992); RJE v Bandy (Unreported WASC (Burt J); Library No 1365; 31 May 1974), 3; Re Utting [2011] WADC 10 [6].
75 The appellant has submitted that the assessor failed to properly apply CICA s 41. Any reduction made to an award of compensation under CICA s 41 must be applied after the jurisdictional limit: Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377, 381; Reed v Reed [2002] WADC 11 [24]. Accordingly, I need to first assess the damages to be awarded, and then consider the application of CICA s 41.
76 The appellant is entitled to compensation for both injury and 'loss' suffered. By CICA s 6 (2), 'loss' relevantly includes 'loss of earnings as a direct consequence of the injury suffered by the appellant'. Loss of earnings includes loss of earning capacity: A v D (1994) 11 WAR 481, 489; KMA v DFS [2010] WADC 6 [27].
77 In assessing economic loss for the purposes of the common law generally, a plaintiff carries the onus of proving loss of earning capacity and the extent to which that loss produces, or might produce, financial loss: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 18; Montemaggiori v Wilson [2011] WASCA 177 [30]. If the plaintiff can establish that his 'pursuit of gainful employment is interrupted or affected because of the negligent infliction of physical injury', he 'is to be compensated by an amount that reflects the financial consequences that follow from the impairment': Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, 143.
78 The appellant submitted that the Assessor failed to properly:
(a) inform herself about the respondent's economic loss from employment; and
(b) assess the respondent's economic loss from employment
79 The appellant also submitted that in the claim for compensation, the respondent only claimed net income losses estimated at $10,268, yet the Assessor was prepared to award him $66,100 for these losses.
80 Further, the Assessor did not seek any independent confirmation of the respondent's claims that he could have proceeded to work on the mines through his then employer Benchmark Recruiting. This is in circumstances where:
(a) the respondent had no proven employment record;
(b) he had only worked for Benchmark Recruiting from 5 April 2007 to 21 June 2007, and had not done any mine site work for them; and
(c) he had injured his wrist in June 2007 (though the materials provide that this occurred June 2008) which would have prevented him from doing any unskilled manual employment in the mining industry.
81 The respondent accepted the assessment undertaken by the Assessor, which I have set out [16] above.
82 The respondent submitted that the Assessor's assessment of economic loss was based on two assumptions:
(a) that the respondent would, but for the assault, have continued to work on a full time basis earning $898 net/week for the period from 28 June 2007 to 30 June 2009; and
(b) that the income actually earned by the respondent during this period represents the respondent's reasonable attempt to mitigate his loss resulting from the assault.
83 Counsel submitted that these assumptions were entirely reasonable and, in effect, balanced out the competing possibilities and interests of the parties. This was because:
(a) as the respondent had only left school 18 months prior to the assault, there was no long term track record of earnings to assist with predicting what his income would have been but for the assault; and
(b) the Assessor used the respondent's rate of pay at the time of the assault, and did not take into account the realistic prospect of him earning more in the mining industry.
84 In his affidavit sworn 20 May 2011, the respondent stated that on the day following the assault he was due to start work in the yard of a mining company in Perth and from there was hopeful of being offered a position 'on the mines'. He came to Perth with a friend who followed the path he had hoped to and was then working 'in the mines' earning well over $100,000 per year. The subsequent affidavit filed by his solicitor annexed an ATO Notice of Assessment for this friend for the year ending 30 June 2008 setting out a taxable income of $76,028. As at May 2011, the respondent was working as a bar supervisor earning $38,000 per annum for this full-time position. He had applied to join the Navy as a submariner.
85 I do not accept the appellant's argument that the claim should be limited to the amount in the claim form, being $10,268. This is described in the claim form as being an estimate. A claimant is not expected to understand the law in relation to the assessment of damages. He submitted the evidence which I have set out above. In my view, the Assessor was entitled to assess the claim based on the evidence before her.
86 There are two issues to determine in relation to economic loss. The first is the extent of the respondent's incapacity. The second is the extent to which the respondent's incapacity was productive of economic loss.
87 The evidence of the respondent's incapacity is firstly contained in his initial statement filed with the application (25 May 2009), in which he stated that:
(a) he got some part time work after about 3 months, but was not able to continue with it, so moved back to Wollongong where his family lives;
(c) it took some 18 months before his jaw 'felt anywhere near normal'; and
(d) he 'finally felt better' in October 2008 and moved to Sydney to find work.
88 In a letter of 17 April 2010, the respondent stated that it took him three years to get a permanent job (that is, the letter in par 7). In a different letter to the Assessor dated 17 April 2010 the respondent stated that during the period July to October 2007: 'I ... had no hope of finding a full-time job as I was just too unwell and not physically or mentally strong enough to present well enough to an employer'.
89 The respondent's mother provided a submission to the assessor dated 1 June 2009. In it she stated that by around the middle of 2008 the respondent was looking for full-time work, at least prior to the emergency surgery in August 2008.
90 There is a report in the materials before me dated 10 October 2008 from the respondent's oral and maxillofacial surgeon, Dr Zoud. Dr Zoud reports that he saw the respondent on that date and he had made 'an excellent post operative recovery'. All the wounds had healed and there was no evidence of residual infection.
91 The respondent hurt his wrist in June 2008. He was due to have surgery on his wrist in August 2008 when the doctor at the hospital noticed how bad his jaw was, which led to the emergency surgery. In a letter to the assessor dated 27 October 2007, he stated that his wrist did not hurt and did not stop him working 'except for manual labour'.
92 On the evidence I have summarised, I am satisfied that the respondent was substantially incapacitated for work because of the injury to his jaw for the period from 29 June 2007 to 31 October 2008. I use the datum point of 31 October 2008 as it is around when:
(a) Dr Zoud reported the plaintiff's third operation as being successful; and
(b) the respondent says his jaw 'finally felt better' and he moved to Sydney to find work; and
(c) the respondent commenced work at The Point Hotel in Sydney.
93 I would extend this period until 31 December 2008 in order to reflect the disruption to the respondent's employment prospects and make an allowance for him to re-enter the workforce at a higher rate of pay than doing bar work, as he was doing in Perth prior to the assault. I therefore do not agree with the Assessor who allowed economic loss through to 30 June 2009.
94 I do not accept the appellant's submission that the Assessor should have sought independent confirmation of the respondent's claims that he could have proceeded to work on the mines through his then employer Benchmark Recruiting. The Assessor did not make an award based on the income the respondent could have earned in the mining industry. Rather, the award was made on the basis of his earnings just prior to the assault.
95 I accept the respondent's submission that the income the plaintiff actually earned during this period represented his reasonable attempts to mitigate his loss. Given the financial impact on him of not working which he describes in the materials in the Assessor's file, I am satisfied that if the respondent could have worked more during this period, he would have.
96 I agree with the Assessor that in the four weeks immediately prior to the assault, the respondent had a total net weekly earning of $898.
97 In relation to the period from 28 June 2007 to 30 June 2008 (53 weeks), I find that:
(a) it is likely that the respondent would have continued his previous contract work, and could have worked a maximum of at 53 weeks at the rate of net $898;
(c) during the period in (a) the respondent received $1,775 in social security;
(d) I accept the assessor's estimate that during the financial year ending 30 June 2008 the respondent actually earned $4,000 (the assessor refers to the period to 30 July 2008, for reasons that are not apparent to me);
(e) deducting (c) and (d) from (b) gives $41,819 loss of net income.
98 From the figure of $41,819, I deduct a further 20%, due to general contingencies, the vagaries of the contract work the respondent was engaged (including Christmas shutdowns and time in between contract placements) and the impact of his wrist injury, giving $33,455.
99 In relation to the period from 1 July 2008 to 31 December 2008:
(a) using the figure of $898 per fortnight, the maximum the respondent could have earned was for 26 weeks, being $23,348;
(b) his 2009 tax return showed income from two employers, amounts of $5,720 and $9,843;
(c) the gross amount of $5,270 (net $5,103) was from the Gallipoli Memorial Club for the period from 24 March 2009 to 30 June 2009;
(d) the respondent was paid a youth allowance of $616 during the period 1 July 2008 to 31 December 2008;
(e) there is no information in the tax return as to when the $9,843 was earned;
(f) in a chronology of work history, the respondent sets out that he was studying at TAFE between July and September 2008, and then commenced work at The Point Hotel on 21 October 2008, ceasing on 19 February 2009 (that is, 17 weeks work of which 10 was in 2008);
(g) I infer that the amount of $9,843 was from The Point Hotel, that tax on this amount would have been negligible, giving $5,790 for the 10 weeks worked in 2008;
(h) deducting (d) and (g) from (a) gives $16,942 loss of net income.
100 I deduct 15% from this amount to reflect general contingencies and the vagaries of the contract work the respondent was engaged in giving $14,401 (this amount is lower than for the preceding period, as I have not made an allowance for the wrist).
101 I would therefore award $47,856 by way of economic loss.
102 The appellant did not challenge the Assessor's assessment for general damages ($12,500), past medical expenses ($3,487.35) and travel ($468).
103 The respondent did not challenge the Assessor's assessment for past medical expenses ($3,487.35) and travel ($468).
104 Counsel for the respondent submitted that the award for general damages was entirely outside an acceptable range of awards for this type of injury. He referred to the statement from the respondent which I have quoted above [7]. Counsel referred to some other decisions as well as to the position under the Motor Vehicle (Third Party) Insurance Act 1943 (WA) for an injury of a similar scale. Counsel was of the view that the award should have been in the range of $27,000 to $34,000.
105 In his affidavit sworn 20 May 2011, the respondent stated that he was still having problems with his jaw. He gets shooting pains in his jaw in cold weather. He avoids eating very hard foods. He sometimes gets a twitch or spasm in his jaw when he is talking. He avoids situations of potential violence as he is afraid that if he got hit, his jaw would shatter and would be very difficult to repair. When he goes out to pubs and club he is nervous about being hit in the jaw.
106 The following seven factors persuade me that the award for general damages was inadequate:
(a) the respondent required three operations over a period of 12 months to rectify the damage caused - one immediately following the assault to set the jaw, one in February 2008 to remove the pins and one in August 2008 because of an abscess in the jaw;
(c) the injury affected his ability to eat, talk and sleep for a period of at least 12 months;
(d) he has had root canal work done and may lose two teeth;
(e) it took some 18 months for before the respondent's jaw felt back to normal;
(f) he had to miss his brother's wedding in August 2008 as he was recovering from his third operation; and
(g) as at May 2011, he was still experiencing symptoms in his jaw.
107 In my view, an award of $25,000 is appropriate for an injury of this severity and impact.
108 As neither party challenged the assessment for medical expenses ($3,487.35) and travel ($468), I will allow both amounts.
109 I would therefore award the maximum of $75,000, subject to the application of CICA s 41.
110 Ground 2 (b) concerns the application of CICA s 41, which is in the following terms:
41**. Behaviour etc. of victim to be considered**
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor -
(a) must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury or death; and
(b) may, if he or she thinks it is just to do so -
(i) refuse to make a compensation award because of that contribution; or
(ii) reduce the amount that the assessor would otherwise have awarded.
111 In SW v BB, Schoombee DCJ reviewed the legislative history of CICA s 41 and observed [97] - [98]:
Section 41, as it now reads, was first introduced in very similar terms as s 27 in the Criminal Injuries Compensation Act 1982. The 1982 Act was a new Act which replaced the Criminal Injuries (Compensation) Act 1970. The 1982 Act included the words 'behaviour, condition, attitude or disposition' of the applicant, whereas the 1970 Act had only referred to the 'behaviour' of the applicant in a similar section.
In the second reading speech of the Bill preceding the 1982 Act the Minister said the following about cl 27:
'Clause 27 allows the assessor to apportion responsibility between the victim and the assailant and to reduce the amount of compensation which otherwise he might have awarded by the extent to which the victim himself contributed to his injuries or loss.'
112 Whether or not the respondent's behaviour, condition, attitude, or disposition will preclude or reduce any award of compensation is a matter of fact and degree to be determined in light of the particular circumstances: Lanyon v Northern Territory of Australia [2002] NTSC 6 [26]; Bodney v Assessor of Criminal Injuries Compensation [2000] WADC 214 [27] - [29]; Reed [24].
113 In Richardson Yeats DCJ stated of CICA s 41 [81]:
The use of words 'if he or she thinks it is just to do so', requires the Court to consider all the circumstances and to make a judgment ensuring that justice is done in this case. It is a discretion and must be exercised according to law, taking account of the purpose of the legislation and the requirements of the Act.
114 The appellant identified five factors which he said ought to have been taken into account in the application of CICA s 41, namely that at the time the offence was committed the respondent:
(b) had in that state just been refused entry to the licensed premises that the appellant was endeavouring to control;
(c) was being abusive to the appellant, that is, said things that he should not have to the appellant while he was endeavouring to perform his crown control duties on a busy night at the licensed premises;
(d) was being disorderly, argumentative and quarrelsome on the steps of the licensed premises; and
(e) refused to obey the appellant's lawful instruction to leave the area.
115 The appellant submitted that the appropriate application of CICA s 41 was to refuse to make a compensation order.
116 The respondent referred to a passage from the decision of the assessor in Mulcahy [2010] WACIC 35 which he regarded as usefully collecting the authorities [24]:
In Scott v Victims Compensation Fund Corporation [2000] NSWSC 1148 the New South Wales Supreme Court, dealing with provisions identical to section 41 of the Act, observed (at paragraph 30) that it was appropriate for the trier of fact to take into account prior occasions of "mutual physical violence" or "tit for tat" and in particular any prior attack by the victim upon the offender in considering the victim's contribution to the injuries sustained. (See also Kiziltan v Crimes Compensation Tribunal [1997] VCAT 190; Evans [2004] WACIC 70; 20% reduction where there was a history of prior confrontation and altercations; O'Keefe [2010] WACIC 16; reduction of $5000, Ballantyne [2005] WACIC 52; 20% reduction where applicant tried to force the offender from her home, Brown [2004] WACIC 14; reduction of 15% where prior exchange of insults and "hassling", Holdaway [2004] WACIC 5; 25% reduction where there was evidence that the applicant challenged offender to a fight, Gallagher [2008] WACIC 76; $2500 reduction when applicant went to the offenders house to fight, Baseley [2004] WACIC 7 and Farrelly [2006] WACIC 44; in both cases a 15% reduction where applicant injured due to the offenders retaliatory behaviour). In Blucher v Crimes Compensation Tribunal [1998] VCAT 692 it was observed that the trier of fact was entitled to reduce an award of compensation under identical Victorian provisions to section 41 of the Act when the applicant became aware that she was in danger and took no reasonable steps to reduce or neutralise the potential for harm. In that case the applicant took no steps to attempt to stop the driver of a car in which she was a passenger from continuing to drive in a criminally unsafe manner. Similarly in Kiziltan v Crimes Compensation Tribunal (supra) a reduction of the award of compensation was imposed when the applicant failed to lock himself in his flat to remove himself from a confrontation which he had provoked. A 20% reduction in an award of compensation was ordered in Cadman v The Commonwealth, (unreported, Supreme Court, Australian Capital Territory, Kelly J, 22 February 1989) where the applicant/victim provoked an assault by directing racial slurs and verbal abuse at the offender. Similarly a reduction of $2000 was applied to an award in An Application by Howarth [1997] ACTSC 106 when the applicant chose to confront his neighbour with a broomstick and made preparations to strike the offender who lunged at him with a fishing knife before the applicant could strike a blow. Likewise in Maksic [2006] WACIC 39 Assessor Millar reduced an award of approximately $42,000 by $6000 where the applicant, who, after agreeing to fight the offender, was confronted by the offender with a pocketknife who lunged at him causing injury. In Emms [2007] WACIC 24 the applicant "took the law into his own hands" to confront an offender despite police warning him not to do so resulting in the award being reduced by 50%.
117 The respondent submitted that the types of cases in which a reduction has been made pursuant to CICA s 41 are ones in which there has been aggressive and persistent behaviour. In the present case, there was not a physical element in the respondent's confrontation with the appellant. The respondent was given no warning of the appellant's blow and had no opportunity to back down or move away from the appellant.
118 In relation to CICA s 41, the following findings by the magistrate are relevant:
(a) the respondent was accepted as 'quite a truthful witness';
(b) the actions of the respondent were not such as to give rise to a defence of provocation;
(c) the defence of self-defence was negatived, that is, the prosecution established that the appellant was not acting in self-defence against an unprovoked attack by the respondent;
(d) the respondent characterised himself as being drunk, and gave evidence that he said some things to the appellant that he should not have and that, with the benefit of hindsight, were inappropriate;
(e) the respondent did not verbally or physically threaten the appellant;
(f) the magistrate did not accept the appellant's evidence in the record of interview that he repelled the respondent three or four times;
(g) the video surveillance footage did not support the assertion in the appellant's record of interview that the respondent was going 'apeshit'; and
(h) the appellant is physically bigger than the respondent;
119 Ultimately, the magistrate commented that the appellant 'simply got frustrated' with the respondent and lashed out at him.
120 I am of the view that the behaviour, attitude and disposition of the respondent contributed, directly or indirectly, to the assault which led to his injuries. However, I am also of the view that the degree of contribution by the respondent (as set out in [118]) was minimal and that force and severity of the appellant's assault was manifestly disproportionate to any contribution by the respondent. In this regard, I place weight on the fact that the appellant was a trained crowd controller who ought to have been able to restrain himself in the circumstances that arose. In my view, it is not just to reduce the amount of compensation that I would otherwise award.
121 For the reasons set out above, I affirm the decision under review awarding the respondent compensation of $75,000.
122 I will hear from counsel as to the appropriate orders. Those orders should include the disposition of the $100 security for costs deposit that the appellant paid into court.
Attorney General for Western Australia
Her Honour Judge Schoombee
(2000) 22 WAR 510
(1999) 197 CLR 138
(1952) 85 CLR 352
(1938) 60 CLR 336
(1994) 181 CLR 387
(1995) 182 CLR 1
(1992) 67 ALJR 170
(1979) 22 ALR 128
(1995) 14 WAR 452
(1994) 11 WAR 481