Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Whether damages paid by motor vehicle insurer to be deducted from compensation award under s 42(3) of the Criminal Injuries Compensation Act 2003 - Whether amount of damages to be deducted from total compensation considered just by assessor or from maximum amount allowed under s 31 - Meaning of compensation or damages received 'for the injury or loss' - Whether applicant entitled to criminal injuries compensation for items not included in the damages received from the motor vehicle accident insurer

Criminal Injuries Compensation Act 2003 s 42(3)

Preliminary issue relevant to assessment of damages decided against appellant

Amicus Curiae : Mr P Spragg appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Amicus Curiae : State Solicitor for Western Australia

A v D (1994) 11 WAR 481

Baker v The Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377

Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450

Curran v Champion [2012] WADC 9

M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992

Re Bellini (Unreported, WADC, Library No 18.1, 12 December 1972)

Re Korber (1992) 9 SR (WA) 32

Winbank v Avis (Unreported, WADC, Library No D980094, 17 April 1998)

1 SCHOOMBEE DCJ: This matter involves a preliminary issue relevant to the assessment of compensation due to Mr Devos under the Criminal Injuries Compensation Act 2003 (the Act). Mr Devos originally brought an appeal from a decision of the Assessor of Criminal Injuries Compensation in August 2009. The appeal turned on the interpretation of s 37(3)(a) and the question whether Mr Devos was entitled to criminal injuries compensation where the offender had used a car for the purpose of committing the offence. Mr James, the respondent in this matter, had reversed his car at a petrol station without looking behind him and had pinned Mr Devos' leg between his car and the front of Mr Devos' car. The appeal was decided in favour of Mr Devos.

2 Prior to assessing the amount of compensation to which Mr Devos would be entitled under the Act his counsel raised the issue whether s 42(3) of the Act precluded Mr Devos from receiving any compensation under the Act because he had already received an amount of $230,150 from the motor vehicle third party insurer. Pursuant to s 42(3) any amount that a victim received by way of compensation or damages, or under a contract of insurance, for the injury or loss must be deducted from the compensation award made in accordance with the Act.

3 It would make sense to decide the matter of the proper interpretation of s 42(3) and whether Mr Devos is still entitled to any compensation under the Act as a preliminary issue prior to dealing with the evidence relevant to and the assessment of the compensation due to Mr Devos.

Counsel's submissions regarding the interpretation of s 42(3) of the Act

4 Counsel for Mr Devos conceded that s 42(3) was applicable and that Mr Devos had received damages under the Motor Vehicle (Third Party Insurance) Act 1943. It was common cause that Mr Devos had not received an amount under a contract of insurance as there was no contract between Mr Devos and the motor vehicle third party insurer. However, counsel for Mr Devos argued that the amount of damages received by Mr Devos from the motor vehicle insurer should be deducted from the total amount of compensation that the court deemed just under s 30(1) of the Act and not from the maximum amount that could be awarded under s 31(1) of the Act.

(1) On a compensation 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.

6 It is well established law that in assessing the compensation which is just for the injury and for any loss suffered, the assessor is to apply the common law principles relevant to the assessment of damages in tort: M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992).

7 However, pursuant to s 31(1) of the Act the maximum amount that may be awarded in favour of one person for a single offence is $75,000. Mr James was charged with a number of offences, namely, dangerous driving causing grievous bodily harm, driving under the influence of alcohol and driving without a driver's licence. However, the offences were related, and pursuant to s 33 of the Act the maximum amount that may be awarded remains the same.

8 The amount of compensation that would be just for the injury and for any loss suffered by Mr Devos has not yet been assessed by the assessor or this court, but is likely to exceed $75,000. Counsel for Mr Devos submitted that the just amount of compensation was likely to exceed the amount of damages paid by the motor vehicle insurer and if the amount of damages already received was deducted from the just amount of compensation, Mr Devos was likely to have a credit balance and be entitled to receive further compensation under the Act. However, if the amount of damages paid by the motor vehicle insurer was deducted from the maximum amount of $75,000, there would be a debit balance and in such a case there was no purpose in assessing the compensation to which Mr Devos might be entitled under the Act, as the deduction of the damages already received by him would disentitle him to any further compensation.

9 Counsel for Mr Devos further submitted that the only purpose of s 42(3) was to avoid double-dipping and that this section should not preclude an applicant from recovering compensation for items for which he or she had not yet received compensation or damages under another statute or under common law. Counsel for Mr Devos argued that the damages awarded under the Motor Vehicle (Third Party Insurance) Act 1943 were different in kind than compensation 'for the injury or loss' and that no deduction of the damages received from the motor vehicle insurer, apart from the damages paid for future medical expenses, should be made.

10 In this regard counsel submitted that the damages paid by the insurer for 'loss of amenities' and for past and future 'loss of capacity to earn' did not qualify as compensation received for 'the injury or loss'. In any event, counsel for Mr Devos argued, Mr Devos should be entitled to recover compensation for additional items not paid for by the motor vehicle insurer, such as further loss of earnings and medical expenses incurred after the insurer paid the settlement sum. Mr Devos had also not received any damages for the jeans and sneakers which he was wearing at the time and which were damaged irreparably.

11 The submissions by counsel for Mr Devos raise two issues regarding the interpretation of s 42(3). The first issue is the proper construction of the words 'a compensation award' from which the damages received must be deducted. The second issue is the proper construction of the words 'damages ... for the injury or loss' which have to be deducted.

An assessor must deduct from a compensation award in relation to any injury or loss suffered by a victim, or a close relative of a deceased victim, any amount that the victim or close relative has received by way of compensation or damages, or under a contract of insurance, for the injury or loss.

13 The words 'compensation award' as used in the first line of s 42(3) are defined in s 3 of the Act as 'an award of compensation made under Part 4'. Section 30(1) under pt 4 provides that an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss suffered.

14 However, section 31(1) which also appears in pt 4 provides that the maximum amount that may be awarded in favour of one person for a single offence is $75,000. Counsel appearing amicus curiae on behalf of the Chief Executive Officer of the Department of the Attorney General submitted that the word 'made' in the definition of 'compensation award' indicated that a compensation award under the Act had to be an award limited by the maximum allowed as the assessor could not make an award without taking into account the maximum provided for in s 31(1). I accept this argument because the definition specifically refers to an award of compensation 'made' and not 'calculated', or 'assessed'.

15 Counsel for the CEO referred the court to a number of decisions decided in respect of s 41 of the Act, and its predecessor, in which a reduction for the victim's contributing behaviour was always made from the maximum amount of compensation that would otherwise have been awarded and not from the total of just compensation calculated by the assessor.

16 In Winbank v Avis (Unreported, WADC, Library No D980094, 17 April 1998) 13, Sadleir DCJ dealt with the predecessor to s 41 (s 25 of the Criminal Injuries Compensation Act 1985 (WA)) which provided that if the assessor was of the view that any behaviour, condition, attitude or disposition of the applicant had contributed directly or indirectly to the injury or loss suffered by him, the assessor could reduce 'the amount which he would otherwise award' by such percentage as he thought just. Sadleir DCJ held, obiter, that 'the amount which he would otherwise award' was the maximum amount that could be awarded, because the assessor had no power to award more than the maximum amount. This finding was obiter because the total assessment of compensation had not exceeded the maximum amount to be awarded.

17 In Baker v The Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377, 381 Sadleir DCJ came to the same conclusion in a case where the just amount assessed had exceeded the maximum amount that could be awarded.

18 This approach to the deduction of an amount for the contributing behaviour of the applicant was followed by Deane DCJ in Reed v Reed [2002] WADC 11 [2]. It was also applied in respect of the wording of the current s 41 of the Act in Curran v Champion [2012] WADC 9 [108] - [109]. Section 41 allows the assessor to 'reduce the amount that the assessor would otherwise have awarded'.

19 Counsel could not refer the court to any case which has dealt with s 42(3), apart from the case of Re Korber (1992) 9 SR (WA) 32, 33 - 34 which dealt with the predecessor to s 42(3). This was s 26(1) of the Criminal Injuries Compensation Act 1985 (WA) and provided, insofar as relevant, as follows:

(1) In determining the amount of an award of compensation for any injury or loss the Assessor ...

(a) may deduct any amount that he is satisfied will be paid to, or for the benefit of, the applicant or any close relative independently of this Act by way of compensation or damages or under any contract of insurance for that injury or loss; and

(b) shall deduct any amount referred to in paragraph (a) that he is satisfied has been paid.

20 Clarke DCJ did not deal with the issue whether any amount received by way of compensation or damages should be deducted from the total amount assessed as being just compensation or from the maximum amount that could be awarded under the earlier Act.

21 Clarke DCJ came to the conclusion that because the damages that had been paid to the applicant under the Workers' Compensation and Assistance Act 1981 (WCA) only compensated the applicant for his loss of wages and not for any general damages, he was still entitled to compensation in respect of the injury suffered by him under the Criminal Injuries Compensation Act 1985. Clarke DCJ held that if the applicant had received the sum of $x under the WCA, and the assessor would have awarded the sum of $y, which would have included compensation for loss of wages and general damages, the applicant was entitled to the sum of $y - $x.

22 This decision is not helpful in interpreting the meaning of the words 'compensation award' in the first line of s 42(3). It seems that it was assumed that if the payment of $23,907 by the workers' compensation insurer had been deducted from the then existing maximum amount of $20,000, the applicant would not have been entitled to any compensation under the Criminal Injuries Compensation Act 1985. The decision focused on the submission that the applicant should still be entitled to compensation for his injury, because he had not received any general damages from the workers' compensation insurer.

23 Counsel for the CEO submitted that if the interpretation suggested by counsel for Mr Devos was given to s 42(3) it would result in a disparity between the deduction made for an amount of compensation or damages received by an applicant from another source prior to an award of compensation being made under the Act and the deduction of such an amount of compensation or damages where it was received after the assessor had made his or her award. Section 42(3) deals with the former situation whereas s 68 deals with the situation where an amount of damages or compensation from another source is received after the assessor has made the award.

24 Section 68(1) provides that where an applicant receives damages or compensation otherwise than under the Act in respect of the injury or loss for which he has already received compensation under the Act and that amount was not deducted under s 42(3), the amount of compensation awarded under the Act or the amount of damages or compensation received from another source, whichever was the lesser, is a debt due to the State by the applicant.

25 Section 68 has the effect that if an applicant had been awarded the maximum of $75,000 under the Act and subsequently received a larger amount of damages from another source, he or she owed a debt of $75,000 to the State, but would be entitled to keep the larger amount of damages received from another source.

26 Counsel for the CEO explained that if s 42(3) was interpreted on the basis that the words 'compensation award' in the first line referred to the maximum compensation award that could be made, the effect of this section would be similar to s 68 as the deduction of a larger damages award from another source would mean that the applicant would get no compensation under the Act, but would be entitled to keep the larger amount of damages received from another source. On the other hand, if the words 'compensation award' were interpreted to mean the total amount assessed as being just, this could lead to a situation where an applicant would be entitled to the amount of damages received from another source plus up to $75,000 under the Act.

27 Counsel for the CEO pointed out that the legislature would not have intended such an anomaly merely because in one case the damages from another source were paid before the compensation award was made under the Act and in another case after.

28 Taking into account all the matters referred to, particularly the definition of 'compensation award' in s 3, it seems to me that on a proper construction the words 'compensation award' in the first line of s 42(3) refer to the maximum amount awarded as compensation under pt 4 of the Act and are therefore subject to the restriction in s 31(1). This means that the damages paid by the motor vehicle insurer would have to be deducted from the maximum award of $75,000 to which Mr Devos could be entitled.

29 The next issue of interpretation is the proper construction of the words: 'any amount received by way of ... damages ... for the injury or loss'. This is the amount that has to be deducted from the compensation award under the Act.

30 The word 'injury' is defined in s 3 of the Act as 'bodily harm, mental and nervous shock, or pregnancy'.

31 It is generally accepted that compensation for injury aims to compensate the applicant for the bodily effects directly arising from the injury, such as pain and suffering, inconvenience and the inability to enjoy life. This type of compensation is generally referred to as 'non-pecuniary loss': Re Bellini (Unreported, WADC, Library No 18.1, 12 December 1972); A v D (1994) 11 WAR 481.

32 Accordingly, the reference in s 42(3) to 'damages ... for the injury' must be read as any damages awarded for non-pecuniary loss, such as for pain and suffering, inconvenience and loss of amenities of life.

33 The word 'loss' is defined in s 6(2) of the Act as follows:

In the case of a victim who is injured, loss means -

(a) expenses actually and reasonably incurred by or on behalf of the victim -

(ii) that arise in obtaining any report from a health professional or a counsellor in relation to,

the injury suffered by the victim;

(b) expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim;

(c) loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim; or

(d) any loss arising from any damage caused as a direct consequence of the commission of the offence to any personal item that was being worn by the victim when he or she suffered the injury.

34 This means that 'damages ... for the loss', as referred to in s 42(3), must be damages which compensate the applicant for the losses listed in s 6(2). In summary, these losses are expenses actually and reasonably incurred arising directly from the injury or from obtaining a medical report, future medical expenses, loss of earnings and loss arising from damage to any personal item of the applicant.

35 Counsel for Mr Devos submitted that the words 'for the injury or loss' in the last line of s 42(3) do not refer to the injury or loss as defined in the Act, but to a more generic concept of what is generally understood by those words. However, the general rule of interpretation of statutes is that the same words used in a statute, particularly where they are used in the same section, must be given the same meaning: Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450, 452. It is highly unlikely that the legislature intended the words 'injury or loss' to have a different meaning where they are used at the beginning of s 42(3) to where they appear at the end.

36 If the words 'injury or loss' in the last line of s 42(3) are given the meaning ascribed to them by the Act, this means that any damages received which equate to compensation for injury or loss under the Act need to be deducted. It does not matter if the damages received from another source have been described differently pursuant to the statute or the common law principles under which they have been awarded. If they are of the same type as compensation for 'injury or loss', they are to be deducted from the amount of compensation awarded.

37 The words 'injury or loss' in the last line of s 42(3) are disjunctive, and it therefore seems to me that if an applicant received damages of the same type as compensation for injury or as compensation for loss, that amount of damages would have to be deducted. If that amount of damages was more than $75,000, the applicant would receive no compensation award under the Act, even though the damages only compensated him for loss and the applicant had received no compensation for his injury, or the other way around.

38 This means that if Mr Devos received some damages which would be the equivalent to compensation for injury or loss, and if the total of such damages was more than $75,000, Mr Devos could not expect to be paid compensation for the damaged sneakers and jeans, just because they are an item of loss as defined in the Act, but not an item which was included under the amount of damages paid to him by the motor vehicle insurer.

39 Counsel for Mr Devos provided to the court a copy of an email received by her on 14 September 2012 from the case manager of the motor vehicle insurer. This indicated that the settlement sum received by Mr Devos was calculated by the insurer on the following basis:

40 From the total sum legal costs and medical expenses were deducted, so that Mr Devos received the net amount of $230,150.

41 The email was accepted by the court as additional evidence filed in respect of the appeal. However, counsel for Mr Devos emphasised that the email only explained the manner in which the motor vehicle insurer had arrived at the settlement sum and that she had no instructions as to whether Mr Devos accepted that this was a fair break down of the settlement sum. Nevertheless, for the purposes of deciding the interpretation of s 42(3) and how this would affect any compensation award payable to Mr Devos under the Act, his counsel agreed that the information in the email could be relied upon as an indication of the type of damages that had been paid to Mr Devos and the approximate amount of each item of damages.

42 The insurer described the first item of damages which contributed to the settlement sum as 'loss of amenities', but this item was probably also intended to represent pain and suffering and inconvenience. However, even if this item of damages is confined to loss of amenities, this still represents damages of the same type as compensation 'for injury' which may be awarded under the Act. Accordingly, Mr Devos received damages from the motor vehicle insurer for his injury.

43 Mr Devos was also paid damages for his past and future loss of earning capacity. Counsel for Mr Devos submitted that damages for loss of earning capacity were not of the same type as compensation for loss of earnings. She submitted that the reference to 'loss of earnings suffered' in s 6(2)(c) of the Act did not include future loss of earning capacity. However, it was made clear in A v D (487 - 488) that the reference in the Act to 'loss of earnings suffered' included compensation for future loss of earning capacity.

44 The damages received by Mr Devos in respect of past and future loss of earning capacity and also for future medical expenses are of the same type as compensation for 'loss' as defined under the Act. Accordingly, Mr Devos also received damages from the motor vehicle insurer for his loss.

45 This means that the total amount of $230,150 received by Mr Devos must be deducted from any potential award of criminal injuries compensation.

46 Counsel for Mr Devos submitted that damages received from another source should not be deducted under s 42(3) unless the type of damages awarded coincided precisely with the description of the type of compensation to be awarded under the Act. In support of this argument counsel argued that 'non-pecuniary loss' which is the term used in the Motor Vehicle (Third Party Insurance) Act for general damages was not the same as compensation 'for the injury' as referred to in the Act. Similarly, she submitted that past or future 'economic loss due to deprivation or impairment of earning capacity', as it is referred to in the Motor Vehicle (Third Party Insurance) Act, was not the same type of damage as compensation to be awarded for 'loss of earnings' referred to in s 6(2)(c) of the Act.

47 If such an approach was taken it would be unlikely that any compensation or damages paid under another statute or in common law would match the exact wording and calculation of the compensation to be awarded under the Act. The intention of the legislature must have been that if the compensation or damages from another source was of the same type as that to be awarded under the Act 'for injury or loss', this would mean that the amount of damages received had to be deducted from any compensation award under the Act. There may clearly be some type of compensation or damages which an applicant may have received from another source which would not be of the same type as compensation under the Act 'for injury or loss', such as damages paid for items stolen from the applicant's home during the commission of the offence and there would be no need to deduct those.

48 Counsel for Mr Devos further submitted that the purpose of the Act was to fairly compensate an applicant and that the only concern of s 42(3) was to avoid double dipping. Therefore Mr Devos should be entitled to receive compensation under the Act for any additional loss suffered for which he had not received damages from the insurer. Counsel for Mr Devos specifically referred to additional loss of future earnings and further medical expenses incurred after the settlement with the insurer, as well as the loss of Mr Devos' sneakers and jeans which he was wearing at the time of the occurrence of his injury.

49 There is no mechanism in s 42(3) which allows for an applicant to receive compensation for injury or loss under the Act because a particular part of his injury or loss has not been included in the damages which the applicant received from another source and which exceeded the maximum amount that may be awarded under the Act. Once the applicant has received more than the maximum amount of $75,000 for 'injury or loss' from another source there is no scope for any further compensation under the Act, whether or not the applicant has been fully reimbursed for all his injury or loss. In this respect I respectfully differ from the decision in Re Korber.

50 Counsel for Mr Devos submitted that the main purpose of the Act was to provide a benefit to applicants and that it should therefore be construed beneficially. She argued that it would be unfair to deprive Mr Devos of compensation to which he was entitled under the Act just because he had received damages which were of the same type as compensation for injury or loss but did not cover all his injury or loss. However, the Act does not strive to compensate an applicant for all his or her injury or loss. The purpose of the Act is to provide for the payment of compensation to victims of offences in some circumstances. One of these circumstances is that a total award is limited to $75,000 per offence. Another is that the applicant will not be entitled to any compensation if he or she has received damages from another source in an amount larger than $75,000 and if the damages are of the same type as compensation 'for injury or loss' as defined by the Act.

51 Counsel for Mr Devos lastly submitted that there would have been no point for the legislature to have made an exception to s 37 of the Act by allowing for criminal injuries compensation in a case where a motor vehicle was used for the purpose of committing the offence, if the full amount of damages paid by the motor vehicle insurer had to be deducted from the maximum amount of compensation to be awarded under the Act. However, the allowance made in s 37(3)(a) for the receipt of criminal injuries compensation where a motor vehicle was used for the purpose of committing the offence may still have a role to play where a payment of damages under the Motor Vehicle (Third Party Insurance) Act is for less than $75,000. In such a case the applicant would still be entitled to compensation under the Act up to the difference between the maximum amount of $75,000 and the amount of damages received from the motor vehicle insurer.

52 Where the amount of damages or compensation received from another source is less than $75,000, there does not seem to be any prohibition in the Act against 'double dipping'. In other words, even though an applicant may have already received compensation or damages of the same type as compensation for 'injury or loss', he or she may receive further compensation of the same type under the Act, as long as it does not exceed the difference between the amount of $75,000 and the amount received from another source.

53 I have come to the conclusion that, firstly, any amount received by Mr Devos by way of compensation or damages from another source must be deducted from the maximum amount of $75,000 that may be awarded under the Act. Secondly, where the compensation or damages received by Mr Devos includes compensation or damages of the type for which compensation may be awarded under the Act for 'injury or loss' as defined in the Act, that amount of compensation or damages must be deducted.

54 This means that the amount of $230,150 received by Mr Devos from the motor vehicle insurer will have to be deducted from any potential award of compensation made under the Act, with the result that Mr Devos could not be awarded any criminal injuries compensation. There is therefore no purpose in hearing evidence of any further loss of earnings or medical expenses incurred by Mr Devos. The answer of this preliminary issue should conclude the hearing of this appeal.