Kaplan v Lee-Archer [2007] VSCA 42

"I returned from holidays on the first week of December and the refunds started to increase dramatically over the course of the period, so I believed that something was not right. There was no explanation, so I just started writing everything down, documenting everything that was going on."

4 At the conclusion of the trial and after a plea the applicant was sentenced to be imprisoned for a term of two years. One year of that term was suspended for a period of 30 months.

5 After the applicant was sentenced, the respondent applied for a compensation order pursuant to the provisions of Division 2 of Part 4 of the Sentencing Act 1991 ("the Act").

6 Those provisions are designed to provide an expeditious, cheap means of determining claims for compensation. As the Attorney-General said, in his second reading speech:

"Where an offender has been found guilty of a crime, important facts about the offender's actions and liability are already before the Court. This provides the court with an opportunity to assess the victim's compensation claim soon after the offender has been sentenced. This procedural economy provides victims with a speedy and low cost option for seeking recompense from offenders without having to resort to civil proceedings."

At the same time the Act provides more than an alternative procedure to civil proceedings. The range of injuries for which compensation may be obtained is wider than the range generally recognized by the civil law.

7 Section 85B of the Act provides, in part:

"(1) If a court -

(a) finds a person guilty of an offence; or

(b) convicts a person of an offence -

it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay compensation of such amount as the court thinks fit for any matter referred to in paragraphs (a) to (d) of sub-section (2).

(2) A compensation order may be made up of amounts -

(a) for pain and suffering experienced by the victim as a direct result of the offence;

(b) for some or all of any expenses actually incurred, or reasonably likely to be incurred, by the victim for reasonable counselling services as a direct result of the offence;

(c) for some or all of any medical expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence;

(d) for some or all of any other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence, not including any expense arising from loss of or damage to property."

The term "injury" defined in s 85A:

"'injury' means -

(a) actual physical bodily harm; or

(b) mental illness or disorder or an exacerbation of a mental illness or disorder, whether or not flowing from nervous shock; or

(c) pregnancy; or

(d) grief, distress or trauma or other significant adverse effect; or

(e) any combination of matters referred to in paragraphs (a), (b), (c) and (d) arising from an offence -

but does not include injury arising from loss or damage to property ... "

8 Section 85C provides that an application may be made by the victim or on the victim's behalf by any person if the victim is a child or is incapable of making the application by reason of injury, disease, senility, illness or physical or mental impairment, or on the victim's behalf, if the sentencing court was a court other than the Magistrates' Court by the Director of Public Prosecutions or, if the sentencing court was a Magistrates' Court, by the Director of Public Prosecutions, the informant or police prosecutor.

9 Section 85F of the Act provides:

"(1) A court must not refuse to hear and determine an application for a compensation order unless, in its opinion, the relevant facts do not sufficiently appear from -

(a) evidence given at the hearing of the charge; or

(b) any statement of the material facts relevant to the charge given to a court in a proceeding for the offence by the prosecution and not disputed by or on behalf of the defendant; or

(c) the available documents -

together with admissions made by or on behalf of any person in connection with the application.

(2) In sub-section (1)(c) the expression "the available documents" means -

(a) any written statements or admissions which were made for use, and would have been admissible, as evidence on the hearing of the charge; or

(b) the depositions taken at the committal proceeding; or

(c) any written statements or admissions used as evidence in the committal proceeding; or

(d) any victim impact statement made to the court for the purpose of assisting it in determining sentence, including any medical report attached to it."

The victim and the offender can call additional evidence. Section 85G provides:

"(1) On an application for a compensation order -

(a) the victim or the offender may give evidence or may call another person to give evidence in relation to the application; and

(b) the victim, offender or other person who gives evidence may be cross-examined and re-examined; and

(c) a finding of any fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the contrary, proof of that fact; and

(d) the finding may be proved by production of a document under the seal of the court from which the finding appears; and

(e) the court may have regard to any evidence or statement referred to in section 85F(1) and, with the consent of the parties to the application, to any available documents or admissions referred to in that section."

10 The case mounted by the respondent was that he ceased working at the nursery on 27 February 2001 and was unemployed for the next nine months. The respondent gave evidence. He said that he had difficulty sleeping, suffered sweating at night and lost weight. He was loth to go outside his house. The respondent was treated with sleeping pills, valium and antidepressants. He gave up social and sporting activities. He said that on several occasions he attempted to commit suicide.

11 Evidence was also given by the respondent's treating psychologist and a psychiatrist. The psychologist said that the respondent suffered from post-traumatic stress disorder and that "the major phenomena which contributed to the onset of this disorder was ... the behaviour ... taking money from the till and pressing the refund button." The psychiatrist also diagnosed the respondent as suffering from post-traumatic stress disorder, which he ascribed to the respondent's participation in the thefts by the applicant and to a threat to slit the respondent's throat.

12 The respondent said that in a telephone conversation a security guard at the Institute said that he had heard the applicant utter the threat to slit the respondent's throat. At trial the guard denied that he had said any such thing, and another witness, in whose presence the threat was said to have been made, denied that any threat had been uttered.

13 It does not appear to have been contested that the respondent suffered injury within the meaning of s.85A of the Act. Rather, the issue was whether the injury, constituted by the post-traumatic stress disorder identified by the medical specialists, was a direct result of the offences of which the applicant had been convicted.

14 In cross-examination of the respondent, his treating psychologist and the psychiatrist, counsel for the applicant canvassed events other than the thefts, which the respondent related to the psychologist, the psychiatrist and other medical practitioners, and which may have caused or contributed to the post-traumatic stress disorder. Those events were the threat to the respondent's life to which I have referred, sexual harassment by other staff at the nursery, being compelled to work in a confined space with toxic chemicals, accusations of fraud made against him by WorkCover and being followed and receiving intimidating telephone calls after he resigned from his employment at the nursery.

15 When the hearing of the respondent's application commenced, counsel for the applicant submitted that the case was not one that should be determined summarily pursuant to the provisions of Division 2 of Part 4 of the Act because of the existence of several possible causes of the injury apart from the commission of the offences by the applicant. It was said that this was not an example of the clear, simple cases which the Act contemplated, for it was difficult to unravel the effect of the many stressful experiences which the respondent had undergone. It was submitted that the respondent's claim should be disposed of in a civil action. The County Court judge rejected this submission and proceeded to hear the respondent's application. His Honour said that the issues were not so complex "as to make it necessary to refuse hearing the present application."

16 After evidence was led on behalf of the respondent and submissions were made by counsel for the parties, the sentencing judge granted the respondent's application and awarded him $40,000 as compensation for his injury. His Honour disposed of the threat to slit the respondent's throat, saying, "while I accept that the applicant was an honest witness, I do not find on the balance of probabilities that that telephone call was in fact made to him." The sentencing judge accepted the evidence of the psychiatrist that the respondent's condition was "caused primarily by the respondent's involvement of the applicant in conduct that, at least as far as the respondent is concerned, was fraudulent."

17 The applicant seeks leave to appeal against the compensation order pursuant to the provisions of s.567 of the Crimes Act 1958.[1]

18 The first ground of the application was that the sentencing judge erred "in holding that there was jurisdiction to entertain an application for compensation pursuant to s.85B of the Act and, in particular, holding that the respondent suffered an injury as a direct result of the offence for which the applicant was convicted." Associated grounds were that the sentencing judge erred:

"3. In finding that the respondent suffered injury as a direct result of the offences for which the applicant was convicted;

4. In holding that -

(a) '[the respondent] must establish that [the applicant's] offending was a cause of his suffering not the cause or the sole cause or even the substantial cause';

(b) it was legitimate to take into account 'other factors that possibly contributed to the applicant's [the respondent's] ill health'."

19 Counsel for the applicant argued these grounds together. He submitted that the overwhelming preponderance of the evidence was that the respondent's injury was caused by the threat to slit his throat, not the thefts committed by the applicant. Accordingly, it was not open to his Honour to find that the claimed injury was a direct result of the thefts.

20 The short answer to this contention is that the sentencing judge found that no threat was made. It is not contended that this finding was in error. The applicant's resistance to the claim for compensation at first instance bore a schizophrenic air: the applicant contended that he had made no threat to slit the respondent's throat, and at the same time argued that the respondent's disorder was due to the threat. In my view, the success of the first contention entailed the failure of the second.

21 Counsel for the applicant also submitted that compensation could only be awarded under s.85B of the Act if the offence was the sole cause of the injury. He said that was not so in this case for there were other factors which caused or contributed to the respondent's post-traumatic stress disorder.

22 In Martin v Crimes Compensation Tribunal[2] Hansen J held that compensation could be awarded to a victim of crime even if the crime was not the sole cause of the victim's injury. Statements to the same effect were made by the High Court in Fagan v Crimes Compensation Tribunal[3] and the Full Court in Savage v Crimes Compensation Tribunal[4].

23 These cases dealt with legislation which preceded s.85B of the Act and was in different terms. Section 3 of the Criminal Injuries Compensation Act 1983, the legislation considered in Martin and Savage, provided for the award of compensation to a "victim" defined as a "person injured or killed in Victoria by the criminal act of another person." The Criminal Injuries Compensation Act 1972, the legislation considered in Fagan, provided for the award of compensation to persons who suffered injury or were killed "by or as a result of a criminal act."

24 Nevertheless, in my opinion, the addition of the requirement that the result be "direct" does not mean that there can be no step between the cause and the consequence[5], or that the consequence must be solely due to the cause. As Lord Sumner said in Weld-Blundell v Stephens:

"Direct cause excludes what is indirect, conveys the essential distinction, which causa causans and causa sine qua non cumbrously indicate, and is consistent with the possibility of a concurrence of more direct causes than one, operating at the same time and leading to a common result." [6]

25 Nor do I think that "direct" is a synonym for "immediate" or "proximate" or "obvious". An injury may be directly caused by a crime notwithstanding that the injury develops gradually or becomes manifest only after a lapse of time or, as will often be the case with psychological or mental injury, is revealed only by expert diagnosis of multiple symptoms. In a scheme of compensation which was designed to be a cheap and expeditious remedy tacked on to a criminal trial, in my view the introduction of the adjective "direct" is intended to exclude those results which are but tenuously related to crimes in that their contribution is a minor factor in the production of the injury. Examples of injuries which, in my view, are not the direct result of crimes are where the crime is merely part of the background, one of a large number of circumstances, and by no means prominent, which produces the injury, or where there is another, supervening cause which overshadows the commission of the crime.

26 In the present case the sentencing judge found that the thefts were "the first and in layman's terms a significant factor in the development of the [respondent's] psychological disorder." In my view the finding was open on the evidence. The other pressures upon the respondent now relied upon by the applicant could be described, as the sentencing judge did, as "factors [which] possibly contributed to the [respondent's] ill health" by rendering him "a more vulnerable victim". The sentencing judge found, and in my view was entitled to find, that the respondent was affected by his involvement in the acts constituting the thefts in that the thefts led directly to the development of a post-traumatic stress disorder.

27 Another distinction between the Act and earlier legislation, which was relied upon by counsel for the applicant as justifying a strict, rather than remedial construction of the Act, was that the compensation awarded under the earlier legislation in the first instance was payable out of the Consolidated Fund, although the offender could be ordered to refund compensation paid from the Consolidated Fund. The regime established by Division 2 of Part 4 of the Act, on the other hand, is concerned only with the recovery of compensation from offenders. Another Act, the Victims of Crime Assistance Act 1996, deals with compensation payable from the Consolidated Fund. In my view the altered structure of the system for awarding compensation to victims of crime is of limited significance for present purposes for, like the Act, the Victims of Crime Assistance Act limits compensation to those affected as a "direct result" of acts of violence and events, such as arrest and rescue, associated with acts of violence.

28 In tort law an act may be the direct cause of injury yet be too remote to found liability. In The Wagon Mound[7] it was held that the test of the extent of liability in the tort of negligence should be the same as the test of its existence, that is, reasonable foreseeability. The decision in Re Polemis[8], holding that a defendant could be liable in negligence for unforeseeable damage "so long as the damage is in fact directly traceable to the negligent act"[9] was overruled. I do not think that the word "direct" in s.85B of the Act was intended to revive Re Polemis. Compensation under the section should extend no further than that recoverable at common law.[10] In my view the adjective was inserted to emphasise that the crime is to play a significant role in bringing about the compensable injury.

29 Ground 2 of the application was:

2. In the exercise of his discretion by permitting the application for compensation to proceed before him; and in particular -

(a) the application was not of a simple or straightforward kind appropriate for a summary hearing under s.85B of the Sentencing Act 1991;

(b) the subject matter of the application was more appropriate for a civil proceeding."

It was submitted on behalf of the applicant that the case was not straightforward in that there were a number of factors apart from the thefts which could be said to have caused or contributed to the respondent's disorder.

30 Counsel relied upon dicta of the Full Court in R v Braham.[11] That case was concerned with s.546 of the Crimes Act 1958, which provided for the award of compensation for loss of or damage to property. The award was to be made "immediately after conviction". The Court said that whether an order should be made under the section was a matter for the Court's discretion and continued:

"[I]t would be a proper exercise of the discretion to refuse to make an order where there was involved a complicated or extensive investigation into the conditions of its exercise or the circumstances to be regarded in exercising it. For example, if there were required to be undertaken a complicated or extensive enquiry in order to ascertain whether there had been a loss or destruction of or damage to property, or an order to ascertain whether it or a part of it had arisen through or by means of the offence, or an order to determine what was the value of the property lost, destroyed or damaged, that would be a consideration proper to be regarded as ground for refusing to make an order and leaving the matter to other processes."[12]

The Court observed that "the machinery of a compensation order is intended for clear and simple cases since the civil rights of the victim remain".[13]

31 The presence of possible causes of an injury other than the commission of the crime by the offender is capable of rendering an application so complex that it is unsuitable for resolution by the summary procedure envisaged by s.85B. On the other hand, the evidence may disclose that the respective roles of the crime and the rival causes may be readily distinguished and the question of causation satisfactorily determined in a summary fashion without the assistance of mechanisms such as pleadings, discovery, and interrogatories, which are available in civil proceedings.

32 The question is ultimately one involving the exercise of a discretion. The sentencing judge in the present case concluded that it was possible to disentangle competing causes of the post-traumatic stress disorder and determine the role played by the commission of the thefts. I do not consider that it has been demonstrated that his Honour's discretion miscarried. It has not been shown that his Honour acted upon a wrong principle, took into account irrelevant matters, mistook the facts or failed to take into account some material consideration. Nor has it been shown that his decision was unreasonable or plainly unjust.[14]

33 Where injury is the result of the commission of a crime and other wrongdoing, civil proceedings have the advantage over an application made under s.85B of the Act that in the former the provisions of Part IV of the Wrongs Act 1958 apply and enable a defendant to recover contribution from other wrongdoers. In the present case, however, it was not suggested at first instance that there were other wrongdoers whose presence before the Court was necessary or desirable.

34 The fifth ground of the application is that the sentencing judge erred:

"5. In taking into account an irrelevant consideration; and in particular, that 'In my reasons for sentence I commented that the [applicant] was an arrogantly offensive manager who showed little respect or consideration for the young and inexperienced staff employed in the nursery'."

35 Counsel for the applicant submitted that his Honour's observation was completely irrelevant: it had no connection with the claim for compensation. As the trial judge appeared to have taken the applicant's managerial style into account, his decision was said to be vitiated, for he acted upon an irrelevant consideration.

36 In my view the remark did concern an aspect of the case that was relevant to the claim for compensation. The respondent's disorder was said to have been caused by his conscription into the applicant's fraudulent scheme, and that was achieved by the way the applicant treated his staff.

37 The sixth and seventh grounds of the application complain of procedural unfairness. The grounds are that the sentencing judge erred:

"6. By denying the applicant procedural fairness in that he had regard to his private notes of the plea hearing of 2 May 2005 without -

(a) warning the applicant of his intention to do so;

(b) divulging the contents of the notes to the applicant prior to making the award of compensation in costs;

(c) permitting the applicant to make submissions on the contents of the notes.

7. By finding that on the evidence properly available to him that the applicant is a 'person of some financial substance'."

38 The grounds arise from the following passage in the sentencing judge's reasons for making the compensation order. He said:

"Section 85H of the Sentencing Act provides that a court may take into account as far as practicable the financial circumstances of the offender. Counsel for the applicant indicated that requests for information in this regard have been refused by the respondent. The respondent cannot be required to provide such information. His failure to do so encourages me to accept the evidence before me as to his means (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298).

I therefore return to my notes of the plea hearing held on 2 May 2005. Senior counsel then appearing for the respondent in answer to a question about the respondent agreeing to pay compensation replied that it was inevitable. Counsel added that the respondent had been convicted and he will make payment. Counsel added that the respondent was previously earning in excess of $100,000 per annum and that at the time he had no need to work. He had independent means. He was separated from his wife but not divorced and he has two adult children. Evidence was given at trial that the respondent had paid about $100,000 for the renovation of his garden. His separated wife gave evidence that the cost of that work was less than $40,000. He receives fortnightly payments of some kind, presumably superannuation, that total $32,760 per annum. These payments continue until death.

I conclude from this material that the respondent is a person of some financial substance. He has no need and will not be able to return to work."

39 Counsel for the applicant complained that from remarks made by the sentencing judge in the course of the application it appeared to the applicant's counsel that his Honour would not take the applicant's financial position into account. This was said to have been the effect of the sentencing judge's response to a statement by counsel for the respondent that the financial circumstances of the applicant could be taken into account. His Honour said:

"It is not a matter that is in evidence before me at this stage and you don't have evidence on this matter."

40 In my opinion the applicant was not denied natural justice. It is not now said that the financial means available to the applicant had not been disclosed in the course of the plea. His Honour was entitled to take the disclosure into account. It is not to the point that the judge had recourse to his own notes rather than a transcript when no issue was taken with the accuracy of his Honour's remarks. I do not consider that the comment by the sentencing judge as to the lack of evidence set at nought counsel's revelation and the evidence of a witness that the applicant was "financially independent" or made it improper to have regard to the disclosure and the evidence.

41 The last ground of the application, which was pursued, was as follows:

"The sentencing judge erred -

...

9. In awarding the respondent costs; and in particular -

(a) he failed to take into account sufficiently or at all the provisions of s.85K of the Sentencing Act 1991;

(b) he took into account an irrelevant consideration, namely that a failure to award costs would result in the reduction of the amount of compensation to the respondent."

42 Counsel for the respondent applied for an order for the costs he had incurred in making his application for compensation. The application for costs was resisted by the applicant. At the conclusion of the argument the sentencing judge awarded costs to the respondent in the following terms:

"I order that the respondent is to pay the applicant's costs which are to be taxed on the civil scale of costs, scale D, and not be in excess of $8,000. Taxation of costs is to cease upon the limit of $8,000 being reached."

43 Section 85K of the Act provides:

"85K

Despite any rule of law or practice to the contrary or any provision to the contrary made by or under any other Act, each party to a proceeding under this Subdivision must bear their own costs of the proceeding unless the court otherwise determines."

44 Division 2 of Part 4 of the Act envisages that applications for compensation

will be made by the victim or the prosecutor. That is consonant with the Attorney-General's description of the remedy as a "low cost option". In the present case the nature of the injury sustained by the respondent and the circumstances in which it arose in my view rendered the question of compensation one which justified the assistance of counsel. The respondent was represented by his own counsel, while the applicant was represented by senior and junior counsel. On appeal, counsel for the applicant complained of the sentencing judge's remark in the course of argument as to costs that,

"I suppose the consequence of not ordering costs is that the [respondent] would have to pay his lawyer those costs, it's a substantial reduction in the award, is it not?"

Counsel submitted that the fact that the respondent's award would be reduced by the amount of the costs he incurred was irrelevant.

45 In my view his Honour was entitled to have regard to the fact that the respondent had incurred the cost of engaging the services of a barrister. It is not suggested that this course was unnecessary. The manner in which the dispute was conducted was not the normal course contemplated by the Act. In my opinion the sentencing judge's discretion as to costs did not miscarry.

46 For the foregoing reasons I would dismiss the application for leave to appeal.

47 I agree that this application for leave to appeal should be dismissed for the reasons given by Buchanan JA in his judgment.

48 I agree with Buchanan JA, for the reasons that he gives, that the application for leave to appeal should be refused. But I wish to add some observations concerning the expression "as a direct result of the offence" in s 85B of the Sentencing Act 1991.

49 In Fagan v The Crimes Compensation Tribunal,[15] Mason and Wilson JJ[16] interpreted the expression "by or as a result of" in s 3(1) of the Crimes Compensation Act 1972[17] as follows:

"The opening words of s 3(1) provide for two different kinds of situation. The first is where the person concerned was injured or killed 'by the criminal act' and the second is where the injury or the death is 'as a result of the criminal act. Thus a person who has been assaulted and suffers physical injury is properly described as having been 'injured by the criminal act of another person'. That expression may well be capable of a wider meaning but it is not necessary for present purposes to pursue that question. The second kind of situation, where the person concerned was injured or killed as a result of the criminal act, would cover the case of a person who was assaulted and suffered physical injury but it also covers a wider field as the form of the sub-section and the words themselves indicate. Thus, they would cover a person who was a witness to a criminal act such as an assault upon a third person and suffered shock to an extent which produced a heart attack. The two expressions 'by' and 'as a result of' are not mutually exclusive, and involve a substantial degree of overlap. Indeed the use of the two expressions may have been no more than caution on the part of the draftsman to ensure that what might perhaps have been thought to be 'indirect' results were brought within the terms of the section.[18] (my emphasis)

50 Arguably, that decision informs the meaning of the expression "as a direct result" in s 85B of the Sentencing Act 1991.

51 On one view of the matter, the inclusion of "direct" in s 85B of the Sentencing Act 1991 (in light of the decision in the Fagan) is like the addition of "directly" to s 6(1) of the Motor Vehicle (Third Party Insurance)Act 1943 (WA) (following the decision in Dickinson v Motor Vehicle Insurance Trust).[19] For as Kirby J said in Insurance Commission of Western Australia v Container Handlers Pty Ltd[20] (when construing the latter provision), although the use of words such as "direct" and "proximate" has been criticised by the courts in the context of the legal notion of causation at common law, the introduction of a word such as "directly" into an act obliges the court to give the word due meaning.

52 Approaching the matter on that basis, the expression "as a direct result of" in s 85B of the Sentencing Act 1991 could be read as excluding "what might perhaps have been thought to be 'indirect' results ... brought within the terms of the section", and so requiring a closer degree of connection between offence and injury than was contemplated in Fagan.

53 As against that, however, in Fagan, Mason and Wilson JJ treated the question of whether injury arose by or as a result of an offence as one of whether the injury was caused by the offence, and their Honours characterised as direct results of the offence events which, although not immediate or proximate to the offence, were judged as a commonsense question of fact to have been caused by the offence:

"The question is, 'Was the injury (i.e. the grave emotional effect of traumatic origin) something which occurred `by or as a result of the criminal act'?' It is proper to pose the question of what, if anything, broke the chain of causation or prevented the chain from being formed. The absence of the mother at the school was a direct consequence of the murder and must be regarded as having caused, at the least, apprehension and worry to this young child. Likewise his removal from the school by relatives and not being taken back to his own home was a direct result of the criminal act. His learning shortly thereafter of his mother's death from what was seen and heard on television and from what he heard from other children at school was also a direct result of the criminal act. So also was the fact that within a few days he heard directly from his father of his mother's death. How much of the horrifying circumstances was related to him does not appear but the mere fact of his mother's sudden and apparently inexplicable absence followed by his learning of her death and its effect upon him were the direct result of the murder itself...

There was nothing in the circumstances related above which could be regarded as a break in the chain of causation. The facts demonstrate that the nervous shock suffered by the child was caused by the murder. The mode and the delay (whatever it may have been) in communication of the whole of the facts to the child could not be regarded as breaking the chain or as producing the result that the nervous shock was not caused by the murder itself. Indeed, so much was conceded by for the respondent."[21] (my emphasis)

54 Additionally, inasmuch as s 85B of the Sentencing Act 1991 was intended to provide an alternative to civil proceedings for the recovery of damages, it would be illogical and therefore surprising if the nature of causation required to be established were not in each case the same. That adds to the probability that "direct result" is used in s 85B in the same sense as Mason and Wilson, JJ. conceived of it in Fagan.

55 Just as importantly, whereas in Container Handlers[22] the second reading speech presented a clear statement of intention to reverse the effect of the decision in Dickinson, and so to foreclose what was feared would be a flood of claims for injuries not previously conceived of as covered by the statutory policy, there is nothing in the second reading speech or other extrinsic materials relating to s 85B of the Sentencing Act 1991 that suggests an intention to reduce the scope of recovery. To the contrary, the emphasis is upon expanding the reach of the compensatory provisions to persons not previously assisted.

56 I have therefore come to the view that when the draftsman of s 85B chose the expression "as a direct result of the offence" he or she had in mind the sense in which the expression was used in relation to the injury in Fagan, which is to say an injury that is judged as a matter of fact, according to commonsense and experience, to have been caused by the offence.[23]

57 But to that I would add three qualifications. First, just as commonsense notions of causation may differ as between everyday experience and litigious contexts, so too may the notion of "direct result" differ as between everyday and litigious contexts. In particular, in cases where expert evidence is called to explain a connection between an offence and a result, the "educative effect" of the expert evidence may infuse commonsense notions of causation with an educated perspective and so warrant a finding of direct result not open to an ordinary person uninstructed by the expert evidence.[24]

58 Secondly, just as the several notions of causation involved in particular statutory regimes are to be understood by reference to the object of the statute in view,[25] so too is the notion of "direct result" in s 85B to be understood by reference to the object of the section - of providing victims of crime with a speedy and low cost option for seeking recompense from offenders without having to resort to civil proceedings.

59 Thirdly, since claims under s 85B are in effect limited to compensation for personal injuries suffered as a result of an offence,[26] and since Part IVAA of the Wrongs Act 1958 applies only to claims for economic loss and damage to property or under Part 9 of the Fair Trading Act 1999 (scil. consumer and trader disputes and small claims),[27] I consider that Part IVAA of the Wrongs Act 1958 does not apply to a claim for compensation under s 85B. In my view, if a judge is persuaded that the victim has suffered injury as a result of an offence, the judge should calculate the amount of compensation without reduction by way apportionment of the kind for which Part IVAA provides.

60 Like Buchanan, J.A., however, I consider that Part IV of the Wrongs Act does apply - in the sense that, if an award of compensation is made against an offender pursuant to s 85B of the Sentencing Act, the offender is entitled to seek compensation from any person jointly liable for the same damage. But I think that in practice it is unlikely that a claim for contribution will be dealt with at the same time as the victim's claim for compensation. The method of s 85B is to provide a quick low cost mechanism for the victim to recover compensation. Accordingly, if in any matter it appears to a judge that there are substantial questions of contribution to be investigated, the judge is likely to conclude that the matter is inappropriate to be dealt with under the section.

[1] The definition of "sentence" in s.566 of the Crimes Act includes any order made under, inter alia, Part 4 of the Act. Section 85B falls within Part 4.

[2] (1995) 8 VAR 39.

[3] [1982] HCA 49; (1982) 150 CLR 666 at 673 per Mason and Wilson JJ.

[4] [1990] VicRp 9; [1990] V.R. 96 at 100. See also DPP v. Esso Australia Pty Ltd [2003] VSC 222 at [9] per Cummins J.

[5] See Boiler Inspection and Insurance Co of Canada v Sherwin-Williams Co of Canada [1951] A.C. 319. See also Mardoff v Accident Insurance [1903] 1 K.B. 584 at 588 per Wright J.

[6] [1920] A.C. 956 at 983.

[7] [1961] UKPC 1; [1961] A.C. 388.

[8] [1921] 3 K.B. 560.

[9] Above, at 577 per Scrutton LJ.

[10] In Bentley v Furlan [1993] 3 V.R. 63 at [129] Ashley J said that compensation under s.86 of the Sentencing Act "is to be assessed by the application, subject to necessary modification, of common law principles of assessment of damages." In my view the statement applies also to the issue of causation.

[11] [1977] VicRp 11; [1977] V.R. 104.

[12] Above at 110.

[13] See also R v Aitken [1981] VicRp 27; (1980) 3 A.Crim.R. 14 at 24 per Young CJ; R v Landolt (1992) 63 A.Crim.R. 220 at 223 per Hampel J.

[14] See House v The King (1936) 56 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.

[15] [1982] HCA 49; (1982) 150 CLR 666.

[16] In a joint judgment which had been substantially prepared by Aickin J before his death.

[17] That section provided, so far as is relevant, that: "Where a person is injured or killed by or as a result of the criminal act or omission of any other person...the Tribunal...may....make an order for the payment of compensation - to or for the benefit of the injured person."

[18] [1982] HCA 49; (1981) 150 CLR 666 at 670-671.

[19] [1987] HCA 49; (1987) 163 CLR, 500 at 505, see Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; (2004) 218 CLR 89 at 120[89]-[93], per Gummow J, at 131[131]-[132], per Callinan J and at 142[157], per Heydon J.

[20] Ibid. at [505].

[21] [1982] HCA 49; (1981) 150 CLR 666 at 674.

[22] [2004] HCA 24; (2004) 218 CLR 89.

[23] March v Stramare (E&HM) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515 and 522-3; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 at 6-7.

[24] Cf. March v Stramare [1991] HCA 12; (1991) 171 CLR 506 at 533, per McHugh J;

[25] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 at 597[99].

[26] Sentencing Act 1991, s 85B(1).

[27] Wrongs Act 1958, s 24AF.