Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Citation : [2013] WACIC 17

Criminal injuries compensation - Appeal - Criminal Injuries Compensation Act 2003 s 42(3) - Whether there is a claim for criminal injuries compensation when the applicant has already received in excess of maximum amount allowed under the Act ($75,000) by way of damages for workers' compensation claim

Criminal Injuries Compensation Act 2003 (WA) s 42(3)

Amicus Curiae : Mr C M Beetham appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Amicus Curiae : State Solicitor for Western Australia

Baker [2013] WACIC 17

Chappell v Bowe [2006] WADC 29

Cooper v Commissioner of Taxation [2004] FCA 1063; (2004) 210 ALR 635

Devos v James [No 2] [2013] WADC 36

Gullelo v Halloran [2008] WADC 145

Hinchcliffe v Hinchcliffe [2010] WADC 78

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

Re Faengsungnoen [2012] WADC 59

Re Korber (1992) 9 SR (WA) 32

Re Tilbury [2010] WADC 46

Re Utting [2011] WADC 10

RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)

S v Neumann (1995) 14 WAR 452

1 On 31 December 2009 at the Claremont Railway Station in Claremont, the appellant Mr Allen Albert Ray Robertson was involved in an altercation with the respondent Mr Colin Patrick Baker, a senior transit officer employed by the Public Transport Authority. The appellant was subsequently convicted of the offence of assaulting a public officer in the Magistrates Court at Perth on 28 April 2010.

2 On 20 December 2012 the respondent applied for criminal injuries compensation pursuant to the Criminal Injuries Compensation Act 2003 (WA) (Act) in respect of injuries and losses suffered by him as a consequence of the assault by the appellant.

3 Prior to lodging his claim for criminal injuries compensation under the Act, the respondent had been in receipt of workers' compensation payments pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) for injuries and losses suffered by him as a consequence of the assault by the appellant. The respondent had received $251,893.69 from RiskCover in relation to his workers' compensation claim.

4 On 4 June 2013 an Assessor of Criminal Injuries Compensation (Assessor) awarded the respondent criminal injuries compensation of $75,000 under s 30 of the Act.

5 On 25 June 2013 the appellant filed a notice of appeal against the decision of the Assessor. Subsequently the appellant filed an amended notice of appeal containing three grounds.

(a) The assessor failed to give sufficient weight to the evidence of compensation paid to the respondent by RiskCover.

(b) The assessor had no jurisdiction to make the award in favour of the respondent.

(c) The assessor failed to deduct from the compensation awarded the amount paid to the respondent by RiskCover.

6 Though expressed as three distinct grounds, the parties agreed that in substance the appeal raised the question of the proper construction of s 42(3) of the Act. The central issue being whether, under s 42(3), the compensation of $251,893.69 the respondent had already received from RiskCover for his workers' compensation claim disentitled him from any further compensation under the Act.

7 At [3] of his reasons for decision, published 11 July 2013 in Baker [2013] WACIC 17 for the benefit of the court, the Assessor succinctly summarised the issue as follows:

On 14 March 2013 Schoombee, DCJ delivered her decision in relation to the matter Devos v James [No 2] [2013] WADC 36. That matter related to an applicant's potential entitlement under section 37 of the Act, although, significantly, considerable attention was paid to the application of section 42 of the Act to the circumstances of that case. Section 42 requires that an Assessor have regard for the compensation already received from other sources by the applicant prior to the lodgement of a claim under the Act. The lodgement of the notice of appeal by the offender drew my attention to Devos [No 2]. I have carefully re-read the decision of Schoombee, DCJ and also had regard to the transcript of proceedings and submissions by counsel and the amicus in that matter. In making the award in favour of the applicant on 4 June 2013 I overlooked the significance of that decision which appears, on its face, to differ in the approach taken in Chappell v Bowe [2006] WADC 29 and other cases which are discussed below. The outcome of Devos [No 2] suggests that where an applicant has already received in excess of the statutory maximum payment available under the Act from other sources, the applicant has no entitlement to criminal injuries compensation. If the approach in Devos [No 2] is correct then I had no jurisdiction to make the award made on 4 June 2013 in favour of the applicant and accordingly I provide these reasons for the benefit of the court.

8 An appeal under the Act is a hearing de novo: Gullelo v Halloran [2008] WADC 145.

9 The court has a discretion to receive and admit further evidence. Further evidence should be admitted unless there is some reason why it would be unjust to do so: s 56(1) of the Act; Re Tilbury [2010] WADC 46, [3]; Hinchcliffe v Hinchcliffe [2010] WADC 78, [9].

10 The maximum compensation available to the respondent is $75,000 as the offence occurred after 23 September 2003: s 31(1) and s 34 of the Act.

11 The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463.

12 The correct approach to adopt in fixing the appropriate amount of compensation is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act and subject also to the jurisdictional limit imposed by the Act: M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992); RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974); Re Utting [2011] WADC 10.

Authorities on the interpretation of s 42(3) of the Act

13 The leading authority on the interpretation of s 42(3) of the Act is the decision of Schoombee DCJ in Devos v James [No 2] [2013] WADC 36.

14 In that case Schoombee DCJ was required to determine the preliminary issue of whether s 42(3) precluded Mr Devos from any compensation under the Act, in circumstances where he had been injured by an offender driving a car and he had already obtained $230,150 in compensation or damages from the motor vehicle third party insurer. Schoombee DCJ held that s 42(3) precluded Mr Devos from further compensation under the Act.

15 In this appeal I should follow Devos v James [No 2] unless it can be said to be plainly wrong: Cooper v Commissioner of Taxation [2004] FCA 1063; (2004) 210 ALR 635, 641.

16 For the reasons below I agree with the decision in Devos v James [No 2] and the reasoning of Schoombee DCJ [11] - [54].

17 In support of his approach to the interpretation of s 42(3) which differed from that of Schoombee DCJ, the Assessor placed reliance on Chappell v Bowe [2006] WADC 29 which was not considered in Devos v James [No 2].

18 In Chappell v Bowe Macknay DCJ heard appeals by Ms Chappell against an award for criminal injuries compensation in her favour made on 8 June 2004 under the Act for injuries sustained by her as a bank employee during three separate bank robberies. On 16 December 2002 Ms Chappell had obtained $80,000 in settlement of a workers' compensation claim. Awards of $500 and $1,500 were made for the first and second robberies and taking into account the workers' compensation payment a further award of $29,000 was made for pain and suffering for the third robbery. At [8] - [11] Macknay DCJ observed that:

No claim was made for any future loss of income, counsel for the appellant informed me in opening

That was doubtless because the appellant had settled a worker's compensation claim on 16 December 2002 for $80,000, in respect of compensation payments, and the Act s 42 requires the deduction from a criminal injuries compensation award of any amount 'a victim...will receive by way of compensation or damages...for the injury or loss.'

The Assessor recorded that she had ascertained, following subpoena of the worker's compensation insurer's files, that the redemption related solely to the employers' liability to make payments of worker's compensation in the future, so that she was satisfied the settlement was 'not made in relation to any injuries suffered by the victim for which I had determined the compensation awards.'

It was not suggested on the appeal by the Chief Executive Officer that the Assessor was incorrect in coming to that view and accordingly I proceeded on the same basis.

19 In my view Chappell v Bowe is not helpful in interpreting s 42(3) as Macknay DCJ was not required to undertake a reasoned analysis of that section. I note that the maximum payment under s 31 of the Act would have been $50,000 for each offence. I am also of the opinion that the other robbery cases to which the Assessor refers in [20] and [24] of Baker do not assist in interpreting s 42(3) as there was no reasoned analysis of that section in the cases.

20 In support of his approach to the interpretation of s 42(3) which also differed from the interpretation in Devos v James [No 2], the respondent relied on Re Korber (1992) 9 SR (WA) 32 which dealt with s 26(1) of the Criminal Injuries Compensation Act 1985 (WA) which was the predecessor of s 42(3). Re Korber was considered in Devos v James [No 2].

21 In Re Korber Clarke DCJ heard an appeal by Ms Korber against the refusal by the Assessor to make a criminal injuries compensation award in her favour for injuries sustained as a teller at a building society during an armed robbery because she had already received $23,907 for her workers' compensation claim against the building society and that payment was more than the $20,000 maximum under the Criminal Injuries Compensation Act 1985 (WA). At page 33 Clarke DCJ considered the question on appeal to be whether s 26 of the Criminal Injuries Compensation Act 1985 (WA) precludes Ms Korber's claim for compensation in respect of aspects of her 'damages' for which she was not compensated by her workers' compensation claim. Clarke DCJ concluded that because the payment for her workers' compensation claim was only for past and future loss of earnings and not for any general damages, Ms Korber was still entitled to compensation in respect of the injury suffered by her under the Criminal Injuries Compensation Act 1985 (WA).

22 As Schoombee DCJ observed in Devos v James [No 2]:

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 [20].

Section 42(3) of the Act

23 Section 42(3) of the Act relevantly provides:

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, or under a contract of insurance, for the injury or loss.

24 The term 'compensation award' is defined in s 3 of the Act to mean an award of compensation made under Part 4 of the Act. The terms 'injury' and 'loss' are defined in s 3 and s 6 respectively.

25 For the purpose of determining this appeal, as Schoombee DCJ observed in Devos v James [No 2] [20], s 42(3) raises two relevant questions:

(a) is the 'compensation award' referred to in s 42(3) an award limited by the statutory maximum; and

(b) is the injury and loss for which the respondent seeks compensation under the Act injury and loss for which the respondent has already been compensated by RiskCover?

26 What does the term 'compensation award' in s 42(3) mean?

27 The respondent submitted 'that (Devos v James [No 2]) was not correctly decided and that s 42(3) should be applied to individual "heads" of injury or loss prior to the imposition of the jurisdictional threshold. It is submitted that this interpretation of the section flows from a plain reading of the words of the section itself and is more likely to achieve the obvious object of (the Act), and is supported by past authority. Further, it is submitted that (Schoombee DCJ's) interpretation of s 42(3) in (Devos v James [No 2]) leads to anomalous and absurd results, particularly in the case of victims who receive payments under the provisions of the (Workers' Compensation and Injury Management Act 1981)'.

28 The respondent submitted that the words 'in relation to any injury or loss suffered' immediately following 'compensation award' in the first line of s 42(3) 'direct enquiry into the separate "awards" made in relation to individual injury and losses that make up an applicant's claim. In other words, the relevant deductions provided for in s 42(3) should be made to the corresponding loss that an individual has suffered. This enquiry could only be undertaken prior to the application of s 31(1)'. The respondent also submitted rhetorically that 'if the legislature had intended to impose a cap after compensation award had been made, what function could the words following "compensation award" in s 42(3) have? It is submitted that these words were placed in (s 42(3)) to do work, that work was to "credit" compensation received from other sources to the various injury and loss that a victim had suffered, prior to imposing the jurisdictional limit'.

29 The respondent further submitted that his interpretation of s 42(3) 'is supported by the words of s 31(1) which requires an assessor to "aggregate" his or her awards for the injury and loss awarded under s 30(1). There is nothing to aggregate if s 31(1) applied to fully determined compensation awards'.

30 The respondent contended that the approach taken by the Assessor at [22] in Baker was correct and 'compensation award' means the amount an assessor determines is just, before the $75,000 jurisdictional limit is applied. In other words, a 'compensation award' (as defined) can be a sum that is more than $75,000.

31 The steps in the Assessor's reasoning appear to be as follows:

(a) Under s 30(1) of the Act, an assessor is to award such compensation as the assessor is satisfied is just.

(b) A compensation award made under s 30 and s 31 relates to the final award; that is to say an award made at the completion of an assessment process.

(c) Section 31, in imposing a jurisdictional limit, marks the end of that assessment process.

(d) Section 42 relates to a process prior to that end point, thus any deduction made under s 42 must be from the sum the Assessor considered 'just' under s 30(1), before the limit in s 31 is applied.

32 If this approach to the interpretation of 'compensation award' in s 42(3) is correct, for the reasons submitted by the counsel for the Chief Executive Officer in this case and Devos v James [No 2],

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.

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.

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.

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.

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. (emphasis added) [20] - 27].

33 Clearly, the legislature intended that a consistent approach be taken to s 42(3) and s 68 and it would not have intended such an anomaly to occur. Section 7 of the Act which deals with the construction of the Act provides

Subject to sections 42(3) and (4) and 68, this Act must be construed as being in addition to, and not in derogation of, any other law.

34 The Explanatory Memoranda tabled with the Criminal Injuries Compensation Bill 2003 states that:

[Section 7] provides that the provisions of this Bill add to rather than detract from existing legislation, subject to [s 42(3) and (4) and 68]. [Section 42(3) and (4)] provide that the assessor must deduct any amount of compensation that the victim has or will receive from any other source. [Section 68] provides that an amount equal to the lesser of the amount awarded to the victim or the amount of any insurance payment received, is a debt due to the State by the victim.

35 I do not accept the respondent's interpretation of 'compensation award' in s 42(3) is correct.

36 I agree with the reasons of Schoombee DCJ in Devos v James [No 2] [11] - [28] that the 'compensation award' referred to in s 42(3) was an award limited by the statutory maximum.

37 Accordingly, I respectfully find that the approach taken by the Assessor to his interpretation of 'compensation award' in s 42(3) of the Act is incorrect.

38 Section 42(3) of the Act requires an assessor to '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'. (emphasis added)

39 What does 'any amount ... received by way of ... damages ... for the injury or loss' mean in s 42(3)?

40 'Injury' is relevantly defined in s 3 of the Act to mean 'bodily harm, mental and nervous shock'.

41 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. Injury includes bodily harm, mental and nervous shock: s 3; Devos v James [No 2] [31] - [32]; Re Faengsungnoen [2012] WADC 59 [14] - [17].

42 'Loss' means the items listed in s 6 of the Act.

43 The reference in s 42(3) to 'damages ... for the loss' must be damages which compensate the victim for the losses listed in s 6(2). 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 victim: s 6; Devos v James [No 2] [33] - [34].

44 I agree with the reasoning of Schoombee DCJ in Devos v James [No 2 where her Honour explains the significance of these terms in the context of s 42(3):

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.

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 [36] - [37].

45 The respondent conceded in his written outline of submissions that he was 'in a similar position as Mr Devos in that he [had] received about ($252,000 from RiskCover in relation to his workers' compensation claim), which is well in excess of the jurisdictional limit'.

46 The question of whether the $251,893.69 received by the respondent from RiskCover was compensation or damages of the same type as compensation for 'loss' or 'injury' under the Act is a question of mixed fact and law to be determined by reference to the evidence.

47 The respondent was given leave to tender at the hearing as additional evidence, documentary evidence which provided an update of the respondent's financial circumstances and injuries. The respondent agreed that for the purposes of the appeal reliance could be placed upon the figures used by the Assessor in Baker at [9] and [25] - [27] to determine the criminal injuries compensation award of $75,000 as the additional evidence would not affect that outcome.

48 I am satisfied that the weekly payments totalling $159,196.40 paid to the respondent by RiskCover, referred to by the Assessor in Baker at [9] as the respondent's 'full rate of pay less statutory reductions', would be a 'loss' under s 6(2)(c) of the Act. This amount in itself means that no award of compensation should be paid to the respondent as he had already received from RiskCover compensation or damages of the same type as compensation for 'loss' or 'injury' under the Act in excess of the statutory maximum compensation payment available.