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[2017] WADC 82
General information, not legal advice.
District Court of WA
2017-06-22
Original judgment source is linked above.
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CITATION : COOPER -v- SMITH [2017] WADC 82
MATTER : IN THE MATTER of Part 7 of the
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Appeals - Criminal injuries compensation - Proved offence - Whether medical costs and leave of absence pay paid by employer required to be deducted from compensation award
Amicus Curiae : Ms CA Chapman on behalf of the Chief Executive Officer of the Department of the Attorney General
Amicus Curiae : State Solicitor of Western Australia
Baker v His Honour Judge Stone of the District Court of Western Australia [2015] WASCA 56
Cooper [2016] WACIC 3
Devos v James [No 2] [2013] WADC 36
Director General of Department of Transport v McKenzie [2016] WASCA 147
Gallelo v Halloran [2008] WADC 145
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201
Mustac v Medical Board of Western Australia [2007] WASCA 128
Robertson v Baker [2014] WADC 14
Undershaft (No 1) Ltd v Commissioner of Taxation [2009] FCA 41; (2009) 175 FCR 150
1 On 27 June 2013 the respondent was convicted in the Kalgoorlie Magistrates Court of one offence (the offence) of obstructing a public officer contrary to s 172(2) of the Criminal Code (WA). The respondent was fined for the offence. The appellant is the police officer who the respondent obstructed in committing the offence.
2 On 29 November 2013 the appellant made an application pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA) (the Act) for an award of compensation for injuries allegedly suffered by him as a consequence of the commission of the offence. Although the appellant did not in his application indicate that he was claiming compensation for loss suffered as a consequence of his alleged injuries he did, in support of his application, provide to the Office of Criminal Injuries Compensation (the OCIC), among other things, an unsigned and undated document headed 'loss of work income due to incident' (with some Western Australian Police Service employment records attached). In the document the appellant specified the evening and nightshifts that he had been unable to work since the offence and claimed a total of $639.69 for loss of income in respect of the missed shifts.
3 On 20 February 2015 the OCIC sent a letter to the appellant bearing that date by which it returned the appellant's application to him because it had been 'submitted incomplete'. By its letter the OCIC informed the appellant that when he resubmitted his application he should provide payslips from six weeks before the date of the offence up until the date he returned to normal shifts.
4 On 16 March 2015 the appellant resubmitted his application and provided some additional Western Australian Police Service (WAPS) payment records in response to the request made by the OCIC in its letter dated 20 February 2015.
5 On 20 November 2015 the Assessor of Criminal Injuries Compensation (the Assessor) made a compensation award in the amount of $6,740 in favour of the appellant as 'compensation for those injuries and losses in respect of the offence'.
6 By letter dated 20 November 2015 the OCIC sent a copy of the Assessor's compensation award to the appellant and informed the appellant that compensation had been assessed as follows:
7 On 16 February 2016 (which was after the appellant had filed his notice of appeal against the Assessor's decision) the appellant's solicitors made a request under s 27(1) of the Act for the Assessor to provide written reasons for her decision for the compensation award. On 24 February 2016 the Assessor provided her written reasons for decision: Cooper [2016] WACIC 3.
8 By notice of appeal dated 7 December 2015 (the notice) the appellant appeals against the decision of the Assessor awarding compensation in the sum of $6,740 pursuant to s 30 of the Act.
9 It is not necessary to recite the appellant's grounds of appeal set out in the notice. It suffices to say that the appellant contends, in essence, that in light of additional evidence provided in support of the appeal (which at the hearing of the appeal I admitted under s 56(1) of the Act), the court should substantially increase the amount awarded by the Assessor for the injuries suffered by him as a consequence of the commission of the offence and for the loss of income suffered by him as a direct consequence of the injuries. The loss of income claimed by the appellant on the appeal, totalling $22,019.08, is alleged to have arisen as a result of his inability, as a consequence of his injuries, to work shifts for which penalty rates would have been payable to him.
10 The respondent did not prior to the hearing of the appeal file a notice of intention to appear under r 53 of the District Court Rules 2005 (WA). The respondent was therefore not entitled to, and did not attempt to, take part or be heard in the appeal.
11 The appeal is a hearing de novo: the Act, s 56(1); Gallelo v Halloran [2008] WADC 145 [5]. I must decide the appeal afresh, without being fettered by the Assessor's decision.
12 In deciding the appeal I may exercise any power of the Assessor under the Act other than a power under s 19(1)(b), s 24(1) or s 25: the Act, s 56(2)(a). I may confirm, vary or reverse the Assessor's decision either in whole or in part, and make any order that the Assessor could make under the Act: the Act, s 56(2)(b) and s 56(2)(c).
13 It is clear from the decision in Baker v His Honour Judge Stone of the District Court of Western Australia [2015] WASCA 56 [42] that ordinarily the correct approach to determining an application for compensation under the Act (and hence an appeal against an award of compensation) is as follows:
14 Once this process has been undertaken the payment or 'awarding' of the amount of compensation occurs. The Act distinguishes between a 'compensation award' on the one hand and the amount of compensation paid to the victim under the award on the other: Baker v His Honour Judge Stone of the District Court of Western Australia [42].
15 In this appeal, however, it is convenient to deal first with the question whether any deductions need to be made under s 42 of the Act, specifically s 42(3). The explanation for this is as follows.
16 In this appeal the following matters are not in dispute:
17 The term 'compensation award' is defined in the Act to mean an award of compensation under pt 4 of the Act: the Act, s 3. Part 4 of the Act includes s 31(1) which relevantly provides that the maximum amount of compensation that may be awarded in favour of a person for a single offence is $75,000. Accordingly, the maximum amount of compensation that can be awarded to the appellant under s 30(1) of the Act is $75,000. It follows that the 'compensation award' from which certain deductions are to be made under s 42 of the Act can never be greater in amount than $75,000: Devos v James [No 2] [2013] WADC 36 [12] - [28]; Robertson v Baker [2014] WADC 14 [36]; Baker v His Honour Judge Stone [40] - [44], [47].
18 The total of the amounts paid by the Commissioner for the appellant's medical treatment (the medical payment) and as 'leave of absence pay' (the leave payment) is $103,315.15, well in excess of the $75,000 maximum 'compensation award' that may be made in favour of the appellant. Therefore, if this total amount is required under s 42(3) to be deducted from any compensation award that may be made to the appellant, which is in essence what the Chief Executive Officer of the Department of the Attorney-General (the CEO) asserts should occur, no amount of compensation will be payable to the appellant under the Act. Further, even if only one of the medical payment or the leave payment is required to be deducted this will still reduce the maximum amount of compensation that can be paid to the appellant to an amount below $75,000. It is therefore convenient to deal with the question whether s 42(3) requires the deduction from any compensation award that may be made to the appellant, the medical payment or the leave payment or both before embarking, if necessary, upon a consideration of the merits or otherwise of the appellant's contention that the Assessor's award is inadequate.
An assessor must deduct from a compensation award in relation to any injury or loss suffered by a victim, ..., any amount that the victim ... has received by way of compensation or damages, ..., for the injury or loss.
20 In order to answer the question whether s 42(3) requires the deduction from any compensation award that may be made to the appellant the medical payment or the leave payment or both, it is necessary, in my view, to deal with the following three subsidiary questions:
21 I will deal with each of the above posed questions in turn. I note that the questions are framed in light of the fact that it is common ground between the appellant and the CEO that neither the medical payment nor the leave payment can be said to constitute 'damages' within the meaning of s 42(3).
Does s 42(3) require the deduction from a compensation award any amount received by way of compensation for types of loss not the subject of the claim for compensation?
22 Section 42(3) provides that the assessor must deduct from a compensation award in relation to any injury or loss suffered by a victim any amount that the victim has received by way of compensation or damages 'for the injury or loss', that is, the injury or loss in relation to which the compensation award has been arrived at. In the present case, as I have pointed out, the loss in respect of which the appellant is claiming compensation is the loss of income allegedly suffered by him as a result of his inability, as a direct consequence of his injuries caused by the commission of the offence, to work shifts for which penalty rates would otherwise have been payable to him.
23 The cost of the medical treatment covered by the medical payment was an expense actually and reasonably incurred by or on behalf of the appellant that arose directly from the injuries suffered by him as a consequence of the commission of the offence. The loss of income covered by the leave payment was a loss suffered by the appellant as a direct consequence of the injuries suffered by him as a consequence of the commission of the offence. Accordingly, the cost of the medical treatment and the loss of income covered by the leave payment fall within the definition of 'loss' in s 6(2)(a) and s 6(2)(c) of the Act respectively. However, the medical payment cannot be said to have compensated the appellant for his loss of income alleged to have arisen out of his inability, as a direct consequence of his injuries, to work shifts for which penalty rates would have been payable to him. Similarly, the leave payment, which equated to the fortnightly base wage that the appellant would have earned during the relevant period if he had been fit to work, cannot be said to have compensated him for his loss of income alleged to have arisen out of his inability, as a direct consequence of his injuries, to work shifts for which penalty rates would have been payable to him. In these circumstances it might be argued that even if one assumes for present purposes that the medical payment and the leave payment were 'received' by the appellant 'by way of compensation', they were not received by way of compensation for 'the loss' in relation to which any compensation award may be made to the appellant and are therefore not required to be deducted from any compensation award.
24 The argument, as I have outlined it in the preceding paragraph, is not one which was raised either by the appellant or the CEO in their written submissions filed in advance of the hearing of the appeal. However, when I raised the argument for discussion during the hearing of the appeal the appellant's counsel, unsurprisingly, adopted the argument.
25 The difficulty with the argument as I have outlined it, which I acknowledged during my exchanges with counsel during the hearing of the appeal, is that it would appear to entail reasoning which is contrary to two decisions of judges of this court.
26 In Devos v James [No 2] Schoombee DCJ was required to determine the preliminary issue of whether s 42(3) precluded Mr Devos from being awarded compensation under the Act in circumstances where he had been injured by an offender driving a car and had already obtained $230,150 in compensation or damages from the motor vehicle third party insurer. The argument that was advanced by Mr Devos before her Honour was, in essence, that s 42(3) did not preclude him from receiving compensation under the Act in respect of items for which, although perhaps falling within the definitions of 'injury' and/or 'loss' contained in the Act, he had not yet received compensation or damages under another statute or at common law: [9] - [10].
27 Schoombee DCJ rejected Mr Devos' argument. After referring to the definition of 'loss' in s 6(2) of the Act her Honour said the following [34], [36] - [37]:
28 Accordingly, applying Schoombee DCJ's reasoning, the medical payment, assuming for the moment that it was 'received' by the appellant 'by way of compensation', compensated the appellant for 'loss' within the meaning of s 6(2)(a) because the medical costs to which it related were an expense 'actually and reasonably incurred by or on behalf of' the appellant that arose 'directly from' the injuries suffered by the appellant as a consequence of the commission of offence. Consequently, the medical payment must be deducted from any compensation award despite the fact that it did not compensate the appellant for the 'loss' for which he is seeking compensation, namely the loss of income alleged to have arisen out of his inability, as a direct consequence of the injuries suffered by him as a consequence of the commission of the offence, to work shifts for which penalty rates would have been payable to him.
29 Similarly, on her Honour's reasoning the leave payment, again assuming for the moment that it was 'received' by the appellant 'by way of compensation', compensated the appellant for 'loss' within the meaning of s 6(2)(c) because the loss of income to which it related was a 'loss of earnings' suffered by the appellant 'as a direct consequence of', the injuries suffered by the appellant as a consequence of the commission of the offence. Consequently, the leave payment must be deducted from any compensation award despite the fact that it did not compensate the appellant for the 'loss' for which he is seeking compensation, namely the loss of income alleged to have arisen out of his inability, as a direct consequence of his injuries, to work shifts for which penalty rates would have been payable to him.
30 Schoombee DCJ's reasoning in Devos v James [No 2] was apparently accepted and applied by Stone DCJ in Robertson v Baker.
31 In Robertson v Baker Mr Robertson was convicted of the offence of assaulting a public officer. The victim of the assault was Mr Baker. Mr Baker applied for compensation pursuant to the Act in respect of injuries and losses suffered by him as a consequence of the assault. Prior to lodging his claim for compensation under the Act Mr Baker had been in receipt of workers' compensation payments made under the Workers' Compensation and Injury Management Act 1981 (WA) for injuries and losses suffered by him as a consequence of the assault. Mr Baker had received $251,893.69 from RiskCover in relation to his workers' compensation claim. The question which was raised for Stone DCJ's determination was whether the fact that Mr Baker had already received compensation from RiskCover meant that he was, by reason of s 42(3), disentitled from any further compensation under the Act.
32 Stone DCJ held that the amount that Mr Baker had already received from RiskCover did, by reason of s 42(3), disentitle him to compensation under the Act. In this regard his Honour said the following [38], [42] - [44]:
33 His Honour at this point cited the above referred to [36] - [37] of Schoombee DCJ's judgment in Devos v James [No 2] before concluding as follows [48]:
34 As can be gathered from my above comments, to my mind there is something to be said for the argument that the reference in the last line of s 42(3) to 'the injury or loss' is a reference to the particular type of injury loss in relation to which the compensation award has been arrived at (invariably the injury or loss for which compensation has been claimed), and that as a result if the amount received by way of compensation or damages is not for the type of loss in relation to which the compensation award has been arrived at, the amount does not have to be deducted from the compensation award. However, as a matter of judicial comity I should follow the reasoning of Schoombee DCJ in Devos v James [No 2], as accepted and applied by Stone DCJ in Robertson v Baker, unless I am convinced that the reasoning is wrong: La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201, 204; Mustac v Medical Board of Western Australia [2007] WASCA 128 [38]; Undershaft (No 1) Ltd v Commissioner of Taxation [2009] FCA 41; (2009) 175 FCR 150 [68] - [88].
35 Having considered the matter, I am not convinced that the reasoning of Schoombee DCJ in Devos v James [No 2], as accepted and applied by Stone DCJ in Robertson v Baker, is wrong. I therefore propose to follow their Honours' reasoning. It follows that I accept, assuming for the moment that the medical payment and the leave payment were 'received' by the appellant 'by way of compensation', that they must be deducted from any compensation award that may be made in favour of the appellant.
Did the appellant receive the medical payment by way of compensation for injury or loss?
36 I turn to the second of the above posed three questions.
37 As I have already indicated, the medical payment was made pursuant to reg 1306 of the Regulations and cl 35 of the Agreement.
38 On behalf of the appellant it is submitted that neither the Regulations nor the Agreement, and consequently neither reg 1306 nor cl 35, have anything to do with the concept of compensation. It is submitted that reg 1306 and cl 35 create an entitlement of a police officer's employment. It is submitted that the appellant was entitled to the medical payment as a condition of his employment and that consequently, even if it is accepted that he 'received' the payment within the meaning of s 42(3), he did not do so 'by way of compensation' for 'the loss', that is, for the loss comprised of the costs of the medical treatment.
39 On behalf of the CEO it is submitted that given that the word 'compensation' is not defined in the Act, it should be given its ordinary dictionary meaning. It is submitted that the ordinary dictionary meaning of 'compensation' is something that is given to make up for a loss or the taking away of something. It is submitted that in the present case it was the appellant who underwent the relevant medical treatment and therefore the appellant who incurred the costs of the medical treatment the subject of the medical payment. It is submitted that the costs of the medical treatment the subject of the medical payment incurred by the appellant constituted 'loss' within the meaning of s 6(2)(a) of the Act. It is submitted that given that the medical payment was to cover or make up for the loss the appellant, on the making of the medical payment, 'received' an amount 'by way of compensation' for 'the loss' within the meaning of s 42(3).
The provisions pursuant to which the medical payment was made
40 Against the background of the submissions made on behalf of the appellant and the CEO, I turn to consider more closely the provisions to which the medical payment was made.
41 The Regulations are made under s 138A of the Police Act 1892 (WA) (the Police Act). Regulation 1306 appears in pt XIII of the Regulations which is headed 'Illness and injury'. Regulation 1306 provides as follows:
Subject to regulation 1308(2), the Commissioner shall pay the reasonable medical and hospital expenses incurred by a member as a result of illness or injury arising out of or in the course of the member's duties or suffered by the member in the course of travel to or from a place of duty.
42 Regulation 1308(2) is of no relevance in the present case. The appellant, being a constable appointed under the Police Act, was a 'member' within the meaning of reg 1306: reg 103, definition of 'member'.
43 The effect of the use of the word 'shall' in reg 1306 is that the regulation imposes a statutory obligation on the Commissioner to pay the reasonable medical and hospital expenses incurred by the member if the expenses are incurred as a result of illness or injury arising out of or in the course of the member's duties, or suffered by the member in the course of travel to or from a place of duty. To put it another way, the member has a statutory entitlement to payment of his or her reasonable medical and hospital expenses if the expenses are incurred as a result of illness or injury arising out of or in the course of the member's duties, or suffered by the member in the course of travel to or from a place of duty.
44 The Agreement is made under s 41 of the Industrial Relations Act 1979 (WA).
45 Part 1 of the Agreement deals with the Agreement's application and scope of operation.
46 Clause 5(1) of the Agreement, which appears in pt 1, provides, so far as is relevant, that the Agreement 'shall extend to and bind to all Members of the Western Australian Police Force'. The phrase 'Member of the Police Force' is defined in cl 6 of the Agreement to mean 'an employee appointed as such under the provisions of [the Police Act]'.
47 Part 6 of the Agreement is headed 'Leave of Absence'. The Part contains a number of clauses dealing with various types of leave (for example, annual leave, long service leave and bereavement leave) to which an 'employee' is, in the circumstances specified in the relevant clause, entitled. Part 6 also contains cl 35 which relevantly provides as follows:
Subject to the provisions contained within subclause 7(b) of Clause 33 - Entitlement to Leave and Allowances Through Illness or Injury of this Agreement, the Employer shall pay the reasonable medical, dental, medical aids, hospital and travelling expenses incurred by an employee as a result of illness or injury arising out of or in the course of the employee's duties or suffered by the employee in the course of travel to or from a place of duty.
48 Subclause 7(b) of cl 33 is of no relevance in the present case. The term 'Employer' is defined in cl 6 to mean the Commissioner. The appellant, being a constable appointed under the Police Act, was an 'employee' within the meaning of cl 35: cl 6, definition of 'employee'.
49 Consistently with the operation of reg 1306 of the Regulations, the effect of the use of the word 'shall' in cl 35 is to impose on the Commissioner an obligation to pay the reasonable medical, dental, medical aides, hospital and travelling expenses incurred by an employee as a result of illness or injury arising out of or in the course of the employee's duties or suffered by the employee in the course of travel to or from the place of duty. Accordingly, the employee has an entitlement to payment of his or her reasonable medical, dental, medical aides, hospital and travelling expenses if the expenses are incurred as a result of illness or injury arising out of or in the course of the employee's duties, or suffered by the employee in the course of travel to or from a place of duty.
50 As pointed out on behalf of the CEO, the word 'compensation', although used in several sections of the Act in addition to s 42(3) (see, for example, s 21(1), s 42(2) and s 68(1)), is not defined in the Act.
51 The New Shorter Oxford English Dictionary (4th ed, 1993) 459 defines 'compensation', so far as is relevant, to mean:
1. The action of compensating; the condition of being compensated ... 2. A thing that compensates or is given to compensate (for); a counterbalancing feature or factor; amends, recompense; spec. money given to compensate loss or injury ...
52 The same work relevantly defines 'compensate' as follows (page 458):
...2. Serve as a recompense or adequate substitute (for); make up for ... 3. Make amends to, recompense...
53 The Australian Concise Oxford English Dictionary (4th ed, 2004) 280 defines 'compensation', so far as is relevant, to mean:
1 a the act of compensating. b the process of being compensated. 2. something, esp. money, given as a recompense...
54 The same work relevantly defines 'compensate' as follows (page 280):
1... recompense (a person) (compensated him for his loss). 2 make amends (compensated for the insult; will compensate to her in full). 3 counterbalance, make up for ...
55 The Macquarie Dictionary (6th ed, 2013) 309 defines 'compensation', so far as is relevant, to mean:
1. the act of compensating. 2. something given or received as an equivalent for services, debt, loss, suffering, etc ...
56 The same work relevantly defines 'compensate' as follows (page 309):
1. to counterbalance; offset; make up for. 2. to make up for something to (a person); recompense ... 4. to provide or be an equivalent. 5. ... to make up; make amends ...
57 In light of these dictionary definitions it does seem to me that the ordinary meaning of the word 'compensation' encompasses something that is given to make up for, or to offset, or to make amends for a debt or a loss. Should this ordinary meaning be applied to the use of the word 'compensation' in s 42(3) of the Act?
58 In Director General of Department of Transport v McKenzie [2016] WASCA 147 [46] - [48] Buss P, with whom Murphy JA & Beech J agreed, said the following (citations omitted):
59 In Baker v His Honour Judge Stone the court described the purpose of the Act in the following terms [45]:
60 In my opinion, to construe the word 'compensation' as it appears in s 42(3) as meaning to make up for, or to offset, or to make amends for a debt or a loss is consistent with not only the language used in s 42(3) and the other provisions of the Act, but also the purpose of the Act as described by the court in Baker v His Honour Judge Stone.
61 Having arrived at the position that the word 'compensation' used in s 42(3) means to make up for, or to offset or to make amends for a debt or a loss, the question which remains is whether the medical payment falls within this definition.
62 As is apparent from what I have already said about reg 1306 and cl 35, I agree with the submission made on behalf of the appellant that the appellant was entitled to the medical payment as an incident or condition of his employment. However, this is not in my view of itself an answer to the question whether or not the payment constituted 'compensation' within the meaning of s 42(3). If the medical payment constituted 'compensation' in the sense that I have defined the term, that is, was something that was given by the Commissioner to make up for, or to offset, or to make amends for a debt or loss incurred by the appellant, the fact that the appellant was legally entitled to the payment as an incident or condition of his employment is in my view of no significance.
63 It is not in dispute between the parties that the appellant did not himself receive the medical payment. Rather, the medical payment was paid by the WAPS Health and Safety Division directly to those who had provided the relevant medical services to the appellant. However, in my view it cannot sensibly be contended that because the medical payment was paid directly to the medical service providers by the WAPS Health and Safety Division it was not the appellant who 'incurred' the medical costs covered by the medical payment. The appellant was the person to whom the medical services were provided. He was the patient. Indeed, the fact that it is the police officer, in this case the appellant, who is treated as having incurred the reasonable medical and hospital expenses the subject of any payment made under reg 1306 or cl 35 is reflected in the terms of the provisions themselves which expressly refer to the 'expenses incurred by' the 'member' and 'employee' respectively.
64 It follows, in my view, for the reasons that I have expressed, that the medical payment was 'compensation' within the meaning of s 42(3). The medical payment was something that was given by the Commissioner to make up for, or to offset, or to make amends for a debt or loss incurred by the appellant, namely the costs incurred by him in obtaining and receiving medical treatment for the injuries suffered by him as a consequence of the commission of the offence.
65 That leaves one final question, namely whether it can be said that the medical payment was 'received' by the appellant by way of compensation. This question arises because, as I have just pointed out, the medical payment was not paid to the appellant. Given that the medical payment was paid directly to the medical service providers, can it be said that it was 'received' by the appellant by way of compensation?
66 On behalf of the appellant it was not argued with any real vigour that the medical payment was not 'received' by the appellant within the meaning of s 42(3) because it was paid by the Commissioner directly to the medical service providers.
67 The word 'receive' is relevantly defined in The Shorter Oxford English Dictionary (4th ed, 1993) 2499 as follows:
1. Take or accept into one's hands or one's possession (something offered or given); accept delivery of (a thing sent); be a recipient of ... 2. Be provided with or given; acquire, get...
68 In the Australian Concise Oxford Dictionary (4th ed, 2004) 1177 'receive' is relevantly similarly defined to mean:
1 take or accept (something offered or given) into one's hands or possession. 2 acquire; be provided with or given ... 3 accept delivery of (something sent) ...
69 The Macquarie Dictionary (6th ed, 2013) 309 relevantly defines 'receive' as follows:
1. to take into one's hand or one's possession (something offered or delivered). 2. to have (something) bestowed, conferred etc ... 3. to have delivered or brought to oneself ... 5. to accept delivery of...
70 Thus, on the above cited dictionary definitions it would seem that for a person to 'receive' something they must actually take possession of, or be provided with, or be given, or accept delivery of the thing. Given that the medical payment never passed through the appellant's hands, it is difficult to maintain that the appellant took possession of, or was provided with, or was given or accepted delivery of the medical payment. However, the word 'receive' used in s 42(3) must be construed in light of the purpose of the Act and the context in which it appears. The purpose of the Act, as explained in the above cited statements of the court in Baker v His Honour Judge Stone, is at least in part to ensure that only those victims who will not otherwise be compensated for their injury or loss are compensated under the Act. The present case provides a good example of how this purpose would be easily circumvented if the word 'received' used in s 42(3) is interpreted so as to require the 'compensation' to have actually come into the hands or possession of the victim of the offence. Thus in that circumstance the appellant could claim compensation for the costs of the medical services covered by the medical payment on the basis that the costs were actually and reasonably incurred by him and arose directly from the injuries suffered by him as a consequence of the commission of the offence, without the amount having to be deducted under s 42(3) and despite the fact that because the costs incurred by him had been paid by a third party he had not in truth suffered a loss in the sense of being out of pocket.
71 In any event, more basically and as a matter of common sense, it seems to me that an amount of money can be 'received' by a person 'by way of compensation' even though the money is not actually given or provided to the person. Thus, if a person's car is damaged in a minor motor vehicle accident and the other driver, who was at fault, pays the panel beating costs of repairing the damage by paying the panel beater directly as opposed to paying the amount owed to the panel beater to the person whose car is damaged, it is difficult to see how it can be said that the person whose car is damaged has not 'received compensation' for the damage.
72 For the reasons I have stated I am satisfied that the appellant has, by reason of the making by the Commissioner of the medical payment, 'received' an amount 'by way of compensation' for his loss comprised of expenses actually and reasonably incurred by him that arose directly from the injuries suffered by him as a consequence of the commission of the offence. It follows that I am also satisfied that the medical payment will therefore, by reason of s 42(3), need to be deducted from any compensation award that may be made in favour of the appellant.
Did the appellant receive the leave payment by way of compensation for injury or loss?
73 I turn to the third of the above posed three questions.
74 As I have previously stated, the leave payment was made pursuant to reg 1304(1) of the Regulations and cl 33 of the Agreement.
75 The same arguments are advanced on behalf of the appellant and the CEO in relation to the leave payment as are advanced in relation to the medical payment, although on behalf of the appellant a further limb to the argument, to which I will refer in more detail below, is added. Accordingly, on behalf of the appellant it is submitted that reg 1304(1) and cl 35 have nothing to do with the concept of compensation but rather create an entitlement of a police officer's employment. On behalf of the CEO it is submitted that given that the leave payment was to cover or make up for the loss of income suffered by the appellant as a direct consequence of the injuries caused to him as a consequence of the commission of the offence, the leave payment amounted to compensation within the meaning of s 42(3).
The provisions pursuant to which the leave payment was made
76 I turn to consider more closely the provisions pursuant to which the leave payment was made.
77 Regulation 1304(1), which like reg 1306 appears in pt XIII of the Regulations, is in the following terms:
Subject to regulation 1308(1) and 1309 and to compliance by the member with regulation 1303, the Commissioner may grant to a member in respect of the member's incapacity leave of absence pay -
(a) for up to 168 days in a calendar year; and
(b) if so recommended by the Manager and subject to any terms or conditions recommended by the Manager, for a further period.
78 Regulation 1308(1) (which provides, in effect, that a member who suffers illness or injury through their own fault or misconduct is not entitled to leave of absence pay) and regulation 1309 (which deals with the situation where the incapacity results from the member carrying on another occupation) are of no relevance in the present case.
79 Regulation 1303 deals with the making of an application for leave of absence pay by a police officer 'on account of incapacity'. The term 'incapacity' is defined in reg 1301 in the following terms:
incapacity means unfitness for and absence from duty as a result of illness or injury and incapacitated shall be construed accordingly.
80 The term 'Manager' is also defined in reg 1301 to mean 'the officer of the Department holding the office of Manager, Health and Welfare.'
81 Accordingly reg 1304(1), as is apparent from the use of the word 'may', vests in the Commissioner a discretion to grant to a police officer leave of absence pay in respect of the police officer's incapacity for the periods referred to in the regulation. The reason for vesting in the Commissioner a discretion to grant leave of absence pay is clear, namely because by definition the incapacity need not be something that arises out of, or in the course of, the police officer's duties.
82 Clause 33(4) of the Agreement, which substantially mirrors reg 1304(1), provides as follows:
Subject to subclause (2) of this clause, and compliance of the employee with subclause (3)(a), (b) and (c) of this clause, the Employer may grant to an employee in respect of the employee's incapacity leave of absence with pay:
(a) for up to one hundred and sixty eight days in a calendar year; and
(b) if so recommended by the Manager and subject to any terms or conditions recommended by the Manager, for a further period.'
83 Subclause (2) and subclauses (3)(a), (b) and (c) all deal with the making of an application for leave of absence pay on account of incapacity.
84 The term 'Incapacity' is defined in cl 6 as follows:
Incapacity means unfitness for and absence from duty as a result of illness or injury and 'incapacitated' shall be construed accordingly.
85 In short, cl 33(4), like reg 1304(1), vests in the Commissioner a discretion to grant to a police officer leave of absence pay in respect of the police officer's incapacity for the periods specified in the clause.
86 It is apparent from reg 1304(1) and cl 33(4) that leave of absence pay is something that arises out of the police officer's employment. It is something to which a police officer becomes entitled, subject to the discretion of the Commissioner, by reason of their employment. To put it another way, leave of absence pay is an entitlement of a police officer's employment albeit one the ultimate conferral of which is a matter for the discretion of the Commissioner. However, and for the reasons that I have already stated in dealing with the medical payment, in my view the fact that the appellant is entitled to leave of absence pay as an incident or condition of his employment is not in itself an answer to the question whether or not the payment constituted 'compensation' within the meaning of s 42(3) in the sense that I have defined the term.
87 As I have indicated above, a further limb to the basic argument is advanced on behalf of the appellant. The argument is that leave of absence pay is no different to a police officer's wages and that as wages cannot be considered to be compensation the leave payment was not compensation within the meaning of s 42(3). The appellant points to the decision in Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 as providing support for this argument.
88 Graham v Baker concerned a claim for damages for personal injury caused to the respondent by the appellant's negligence. One of the issues raised for the court's determination in the case was whether, in assessing the damages payable to the respondent for past loss of earning capacity, account should be taken of payments made to the respondent by his employer during the period of sick leave to which the respondent was entitled under an industrial agreement. The court, comprised of Dixon CJ, Kitto & Taylor JJ held that account should be taken of these payments. In arriving at this conclusion, their Honours said the following (345 - 346):
On the assumption that their Honours were right in treating the respondent's 'sick pay' as an independent benefit which the respondent had secured to himself by past services and not otherwise there might be something to be said for the final conclusion which they reached. But, in our view, the first step which they took was erroneous. It may be true, to some extent at least, that the amount of 'sick pay', or to be more precise 'sick leave', to which an employee of the Board will become entitled will depend to some extent upon the length of his service. But it is quite wrong to say without qualification that if he is permitted to be absent on leave, or on sick leave, on 'full pay', and so relieved of the obligation to perform his duties, the pay which he receives cannot, therefore, be regarded as wages or salary. Generally, no doubt, the performance of services is a condition precedent to the right to wages and it is for this reason that it is said, as no doubt their Honours were aware, that a servant who has been wrongfully dismissed cannot wait till the determination of the period for which he was hired and then sued for the whole of his wages. But this, as Jordan CJ pointed out in Watson v Automatic Fire Sprinklers Pty Ltd [(1946) [1946] NSWStRp 4; 46 SR (NSW) 336; 63 WN 107], is not universally true .... The circumstances of that case were, however, exceptional and for present purposes the decision is not of importance except to illustrate that wages, in every sense of the word, may become payable according to the terms of a contract of employment, even though the employee is not called upon to, and does not, in fact, render service ... but the contract contemplates the possibility that circumstances of a defined character may arise and prevent an employee from performing his duties. In those circumstances he is to be entitled to absent himself on sick leave and, subject to specified limits, to receive 'full pay' whilst on leave. In our view the respondent's contract says no more and no less than that, if he becomes unable by reason of sickness or other specified causes to perform his ordinary duties, nevertheless his right to 'full pay' or, in other words, his ordinary wages, shall continue to be payable, subject to the limit specified, during the period of his absence. If, therefore, the claim be made, as it was, that the respondent had lost the whole of his wages between the date of the accident and the date of trial then the appellant was entitled to answer it by showing that for a period of 178 days he received his full wages.
The conclusion that the respondent's so-called 'sick pay' constituted wages in every sense of the word is completely in accord with a long line of authority concerning the right of an employee to receive his ordinary wages in respect of a period during which he is unable, by reason of sickness or accident, to perform his duties ... This line of authority, in spite of some differences of expression on matters which we need not concern ourselves, clearly shows that where, by virtue of an implied term of the contract of employment, 'wages' are payable to an employee who, by reason of illness, is absent from work, the amounts which he receives during the period of his absence are his ordinary wages and not something additional thereto or of any different character. The position is, of course, precisely the same where, as here, the matter is not left to implication and the contract of employment provides expressly for 'sick leave and full pay'.
89 In my opinion the argument advanced on behalf of the appellant in reliance on Graham v Baker is flawed. Even if it is assumed that the leave of absence pay provided for by reg 1304(1) and cl 33(4) is akin to 'sick pay' and therefore wages (a proposition which in my view is not completely without doubt), Graham v Baker does not support the proposition that because such a form of payment constitutes wages, it cannot be treated as compensation for the purposes of s 42(3) of the Act. The decision in Graham v Baker is not authority for the proposition that wages cannot in any circumstances constitute 'compensation'. To the contrary, the decision is authority for the proposition that in assessing the amount of damages payable to a person for past loss of earning capacity, the fact that the person received 'sick pay' following the occurrence of the relevant injury must be taken into account, or in other words deducted from, the amount of damages that would otherwise be payable for the past loss of earning capacity. Therefore, in my view, the decision in Graham v Baker, contrary to the appellant's submission, actually provides some support for the CEO's contention that in assessing the amount of compensation payable to the appellant under the Act for loss of earnings suffered as a direct consequence of the injuries caused by the commission of the offence, any payment made by the Commissioner to the appellant in respect of loss of earnings suffered by the appellant during the period that the appellant was unable to work by reason of the injuries should, even if the payment is categorised as wages, be taken into account, or in other words deducted from, any compensation award that may be payable to the appellant.
90 The end result, in my opinion, is that the question which must be asked in deciding if the leave payment must be deducted under s 42(3) is whether the payment constituted 'compensation' in the sense that I have defined the term, that is, as something that was given by the commissioner to the appellant to make up for, or offset, a loss incurred by the appellant. In my opinion the short answer to this question is 'yes'. The leave payment was something given by the commissioner to the appellant to make up for, or offset, a loss that otherwise would have been incurred by the appellant as a direct consequence of the injury caused to him as a consequence of the commission of the offence, namely a loss of earnings.
91 For the reasons I have stated I am satisfied that the appellant has, by reason of the making by the Commissioner of the leave payment, 'received' an amount 'by way of compensation ... for the ... loss' comprised of loss of earnings suffered by him as a direct consequence of the injuries suffered by him as a consequence of the commission of the offence. It follows that I am also satisfied that the leave payment will, by reason of s 42(3), need to be deducted from any compensation award that may be made in favour of the appellant.
92 On the appeal an argument was advanced on behalf of the CEO which, although given my above conclusions it is not strictly necessary for me to deal with, I propose to make some brief comments about. Stated as briefly as possible, the argument advanced was as follows.
93 In Baker v His Honour Judge Stone [26]-[35], [41]-[44] it was established that the statutory maximum amount of compensation ($75,000) is to be imposed after the compensation award that may be made under s 30(1) of the Act is arrived at and before any deductions are made pursuant to s 42. Given that this is the established correct approach to adopt in assessing the compensation award that may be payable to a victim for loss within the meaning of the Act, the victim's 'gross loss' must be assessed. The assessor must calculate the victim's 'gross loss' as opposed to his or her 'net loss' (net loss being the gross loss less amounts already received to mitigate the loss) when determining the compensation award that may be made pursuant to s 30(1) of the Act. Once the 'gross loss' has been calculated, this may be added to any amount deemed just for the 'injury'. Once this final 'compensation award' is arrived at, the statutory maximum must then be imposed, and then the assessor must deduct from that amount any amount received by the victim by way of compensation for loss under s 42(3). If this 'gross loss' approach is not applied in the determination of the compensation award that may be made, a victim will be able to avoid having deducted under s 42(3) from any compensation award an amount paid by way of compensation for loss by claiming compensation up to the statutory maximum for their injury alone.
94 So that is a summary of the CEO's argument which, the CEO contends, is supported by the decision in Baker v His Honour Judge Stone. The effect of applying the CEO's argued for approach to the present case is that the relevant loss for the purpose of calculating the compensation award that may be payable to the appellant is not just the loss for which he has actually claimed compensation, that is, loss of income claimed to have arisen as a result of his inability, as a direct consequence of the injuries caused by the offence, to work shifts for which penalty rates would have been payable to him (on the CEO's argument the 'net' loss), but also the loss suffered by him in respect of which he received the medical payment and the leave payment (on the CEO's argument, the 'gross' loss).
95 In my view there are a number of significant difficulties with the CEO's argument.
96 First, it is in my view simply illogical to treat a victim's claim for compensation for injury and loss to include an amount in respect of loss for which the victim is not actually by way of his or her application seeking compensation.
97 Second, the decision in Baker v His Honour Judge Stone does not in fact provide any support for the CEO's argument. All that the decision makes clear is that in assessing a victim's claim for compensation, the statutory maximum amount of compensation ($75,000) is to be imposed after the compensation award that may be made under s 30(1) in respect of the claim is arrived at and before any deductions under s 42 of the Act are made. That this is the position does not in any way require or support the adoption of the CEO's argument.
98 Third, the situation postulated by the CEO whereby a victim may, if the gross loss approach is not adopted, claim up to the statutory maximum for their 'injury alone' will not have the result that the victim will be able to avoid having deducted under s 42(3) from the compensation award that may be payable for the injury, any amount that has been received by the victim by way of compensation or damages for loss. The amount received by way of compensation or damages for loss will still need to be deducted from any compensation award for the victim's injury that may be made: Devos v James [No 2] [37]-[38]; Baker v His Honour Judge Stone. Thus, as was said by the court in Baker v His Honour Judge Stone [43]:
99 For these reasons I do not accept the CEO's 'gross loss' argument.
100 I have held that the medical payment and the leave payment were 'received' by the appellant 'by way of compensation' for 'loss' within the meaning of s 42(3) of the Act and that consequently the total of these payments must, by reason of the section, be deducted from any compensation award that may be payable to the appellant under s 30 of the Act. Given that the total amount of the medical payment and the leave payment is well in excess of the statutory maximum compensation award that could be paid to the appellant, the result is that no compensation is payable to the appellant under the Act. It obviously follows that it is not necessary to determine the merits or otherwise of the appellant's contention on the appeal that the compensation award made in his favour by the Assessor was inadequate.
101 Subject to hearing from the parties as to the precise terms of the orders I should make to give effect to my decision, I would make orders in the following terms:
Baker
His Honour Judge Stone of the District Court of Wester
(1961) 106 CLR 340
(2009) 175 FCR 150
(1992) 110 ALR 201