B v W

B v W (1989) 6 SR (WA) 79

DNA v Britten (1995) 14 SR (WA) 325

Houlahan v Pitchen [2009] WASCA 104

Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118

Re Hojetzki [2009] WADC 77

S v Neumann (1995) 14 WAR 452

Savic v Duric [2021] WADC 53

Underwood v Underwood [2018] WADC 13

1. On 9 July 2025 Terence Alexander McBain made a claim for compensation under the Criminal Injuries Compensation Act 2003 (WA) (the Act). Pursuant to s 19 of the Act I obtained relevant records from Royal Perth Hospital and the sentencing brief from the Office of the Director of Public Prosecutions. I also considered the transcript of proceedings in the District Court.[1] On 6 November 2025 I made an award in the amount of $75,000, the statutory maximum. Pursuant to s 45(1)(b) of the Act, I made a reimbursement order and ordered that $20,000 may be subject to recovery proceedings against the offender, Bayden William Maynard. On 2 February 2026, Mr Maynard's solicitors requested reasons for my decision pursuant to s 27 of the Act.

1. On 30 September 2023 Mr McBain and Mr Maynard both resided at the Big4 Midland Caravan Park. Their respective lots were located opposite each other.
2. At about 9.30am, Mr McBain saw a black ute parked in his parking bay. He walked across to Mr Maynard's lot and knocked on the caravan door. Mr Maynard opened the door, and Mr McBain asked him to move his car. Mr Maynard argued that it was not Mr McBain's car bay. The conversation lasted about two minutes.
3. Mr Maynard then went to get his car keys before quickly returning to Mr McBain and said 'If you ever come on my property again, I'll punch your head in.'
4. Shortly afterwards, at about 9.36am, while Mr McBain was standing on the grass, Mr Maynard moved towards Mr McBain and pushed him with two hands causing him to fall to the ground and fracture his femur. Mr McBain also grazed his head and elbow trying to break his fall.
5. Mr Maynard walked away briefly and then came back. Mr McBain was on the ground and crying out in pain. An ambulance was called and Mr McBain was taken to Royal Perth Hospital.[2]
6. I have viewed the dashcam footage which captures the push, although the view is partially obscured by a bush.
7. On 12 June 2025 Mr Maynard pleaded guilty before the District Court to one count of unlawfully doing grievous bodily harm to Mr McBain in circumstances of aggravation, namely that Mr McBain was over the age of 60 years.
8. I am satisfied a proved offence as defined in s 3 of the Act is constituted. I determined the application pursuant to s 12 of the Act which provides an assessor may make a compensation award if satisfied the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence.
9. On 21 August 2025 Mr Maynard was sentenced in the District Court to a term of 12 months' imprisonment, suspended for 18 months.

1. At Royal Perth Hospital Mr McBain's hip and leg were x-rayed, and a fracture was identified at the neck of his left femur.[3] The next day, 1 October 2023, he underwent surgery during which a femur gamma nail was inserted into his left femur.
2. Mr McBain stayed in Royal Perth Hospital until 4 October 2023 when he was transferred to Bentley Hospital for rehabilitation. On 10 October 2023 he was transferred back to Royal Perth Hospital due to an infection (urosepsis). Mr McBain was treated for the infection at Royal Perth Hospital until 19 October 2023 at which point he was transferred back to Bentley Hospital, where he remained until being discharged home on 23 November 2023. Mr McBain was in hospital for a total of 54 days.
3. During the sentencing proceedings, Burrows DCJ referred to Mr McBain's victim impact statement and stated:

He has got a limp on the [left] side. He can't stand for any length of time. It's hard to put his shoes on, do routine chores like making the bed. He used to walk downtown twice a day. He can't do that anymore. He can't wash his feet when he sits down to wash in the shower. His leg gets cold when the weather gets cold. He has to use a walking stick and a four-wheel walker. He's now on painkillers for the rest of his life. It's hard to climb stairs. He finds it difficult going out in the wind because he's unstable on his feet, and he can get blown over, which has happened. He can't do his boat and rock fishing anymore, which is something he really used to enjoy. Couldn't go to his mum's funeral, as he couldn't change a tyre if he broke down. He's always on the defensive in guarding himself when he goes out in case he gets bumped or knocked over. And he has difficulty carrying bags when he goes shopping from the car to the caravan, and has to do it in several trips. And he now has to use a wheelchair when he goes on aeroplane.[4]

1. I viewed photographs of Mr McBain's injuries contained in the sentencing brief.

1. Section 30 of the Act sets out the general powers of an assessor. It provides '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.' Under s 3 of the Act, 'satisfied' means 'satisfied on the balance of probabilities'.
2. Section 18 of the Act requires an assessor must determine compensation applications expeditiously and informally having regard to the requirements of justice and the Act. An assessor is not bound by rules or practice as to evidence or procedure but may inform themselves in any manner they think fit.
3. In assessing the amount of compensation, the assessor should have regard solely to the injury actually suffered by the applicant as a consequence of the commission of the offence and not the seriousness of the offence. The amount of compensation is not to be fixed as punishment of the offender or as an expression of sympathy for the applicant.[5] However, the actual facts of the offence are relevant as it is from the facts of the offence that the assessor can make a decision about the credibility and weight of the medical evidence and the likely time during which the appellant will suffer the injury.[6]
4. The ordinary tortious principles apply for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act, and to the jurisdictional limit of the Act.[7]
5. Under s 31(1) of the Act, the maximum amount of compensation payable is $75,000, as the offence occurred after 1 January 2004. This is a jurisdictional limit, not a sum reserved for the worst cases.[8]
6. In assessing the appropriate amount of compensation, a broad and subjective assessment must be undertaken and the amount must be fair and reasonable compensation for the injuries, having regard to current general ideas of fairness and moderation.[9]

1. I accept Mr McBain suffered the following injuries as a consequence of the offence:
   • (a) fractured left femur that required surgery to insert a femur gamma nail;
   • (b) urosepsis infection;
   • (c) graze to his head; and
   • (d) graze to his elbow.
2. I am satisfied on the balance of probabilities Mr McBain suffered bodily harm as a consequence of the proved offence.
3. I accept Mr McBain's injuries have impacted his life as:

(d) he finds it hard to do chores such as making his bed;

(e) he cannot walk downtown which he used to do twice a day;

(h) he has to use a walking stick and four-wheel walker;

(k) he cannot do his boat and rock fishing anymore, which is something he really used to enjoy.

1. I awarded the applicant compensation in the amount of $75,000.

1. Pursuant to s 45(1)(b) of the Act, I ordered that only $20,000 may be subject to recovery proceedings against the offender, Mr Maynard.
2. In making this order I had regard to Burrows DCJ's sentencing remarks including Mr Maynard's personal circumstances at the time of the offence.
3. At the time of the offence, Mr Maynard was suffering with poor mental health and feelings of grief in respect of his father's passing. [10]
4. Burrows DCJ sentenced Mr Maynard on the basis that:

(a) he did not realise he had parked in the wrong car park;

(b) he perceived Mr McBain to be loud and aggressive;

(c) he reacted inappropriately and escalated the situation;

(d) he did not intend to injure him; and

(e) the action was a momentary loss of restraint when he was angry and not in control of his emotions against the background of his personal circumstances.

1. Burrows DCJ accepted that Mr Maynard was remorseful at the time of sentencing but was of the view that he had not demonstrated true remorse given:
   • (a) he had given an untruthful account of his actions;
   • (b) he did not make complete admissions in his interview with police; and
   • (c) he did not plead guilty at the earliest opportunity.
2. I also had regard to the letter dated 20 September 2025 from Mr Maynard in response to him being notified of Mr McBain's application which states:
   • (a) Mr McBain instigated the incident by entering his caravan, punching on his caravan and yelling;
   • (b) Mr Maynard saw Mr McBain pushing and pulling a shopping trolley upstairs at Midland Gate Shopping Centre from a distance on 20 August 2025;
   • (c) Mr Maynard is currently employed fulltime working 40 hours a week and paying off a house, caravan and personal loans with his partner plus other everyday bills.
3. In all the circumstances, I considered it just to order that only part of the award, that is $20,000, be the subject of proceedings under Part 6 of the Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Criminal Injuries Compensation Assessor of Western Australia.

A Barter, ASSESSOR Of CRIMINAL INJURIES COMPENSATION

[1] The State of Western Australia v Bayden William Maynard, Transcript of Sentencing Proceedings, District Court of WA, 21 August 2025.

[2] The State of Western Australia v Bayden William Maynard, Transcript of Sentencing Proceedings, District Court of WA, 21 August 2025, 2-3.

[4] The State of Western Australia v Bayden William Maynard, Transcript of Sentencing Proceedings, District Court of WA, 21 August 2025, 3.

[5] B v W (1989) 6 SR (WA) 79; Re Hojetzki [2009] WADC 77 [43] (Sleight DCJ).

[6] Re Hojetzki [44]; DNA v Britten (1995) 14 SR (WA) 325, 327.

[7] Underwood v Underwood [2018] WADC 13 [113] (Gething DCJ).

[8] S v Neumann (1995) 14 WAR 452 (463).

[9] Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ); Houlahan v Pitchen [2009] WASCA 104 [107] (Newnes JA with whom Pullin & Miller JJA agreed); Winiarczyk v Tsirigotis [2011] WASCA 97 [71] ); Savic v Duric [2021] WADC 53 [51]; Underwood [117].

[10] The State of Western Australia v Bayden William Maynard, Transcript of Sentencing Proceedings, District Court of WA, 21 August 2025, 6-7.