ATB v LA - [2021] WADC 64

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ATB -v- LA [2021] WADC 64
CORAM:   LEMONIS DCJ
HEARD:   26 MAY 2021
DELIVERED          :   2 JULY 2021
FILE NO/S:   APP 29 of 2019
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   ATB
Appellant
AND
LA
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   C F HOLYOAK-ROBERTS
File Number            :   CIC 1457/2017

Catchwords:

Appellant victim of two offences - Appellant made application for compensation under the Criminal Injuries Compensation Act 2003 (WA) - An award was made in favour of the appellant, which did not include any amount for loss of earnings - Appellant now appeals to this court - Relevant injury suffered is mental and nervous shock - Consideration of whether the appellant lost her employment as a direct consequence of that injury - Consideration of whether the appellant's pre‑existing conditions contributed to such injury and whether the appellant mitigated her loss

Legislation:

Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal allowed
Award increased

Representation:

Counsel:

Appellant	:	Ms S T Hemachandra
Respondent	:	In person
Amicus Curiae	:	Mr M I Olds on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Fourlion Legal
Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

Case(s) referred to in decision(s):

DR v CD [2018] WADC 148
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Houlahan v Pitchen [2009] WASCA 104
Lyle v Soc [2009] WASCA 3
Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
S v Neumann (1995) 14 WAR 452
Sideris v Censori [1983] WAR 17
TAW v NJS [2011] WADC 187
The Applicant v Larkin [1976] WAR 199

LEMONIS DCJ:

ATB was the victim of two criminal offences. She made an application under the Criminal Injuries Compensation Act 2003 (WA) for compensation for her injuries and consequent losses suffered as a result of the offending. The application was assessed by an assessor, who awarded ATB compensation in the sum of $10,000, which award did not include any amount for economic loss.
ATB now appeals to this court pursuant to s 55 of the Act. The appeal concerns two principal issues. First, what is the nature of the injury that she suffered as a consequence of the offences. Second, whether an award should be made to ATB for economic loss and, if so, in what amount. Bound up in both issues is whether ATB's pre-existing condition of ADHD[1] contributed to the extent of her injuries and any economic loss suffered and further, whether ATB took the required steps to mitigate the harm and loss that she suffered.
[1] Attention deficit hyperactivity disorder.
At the hearing of the appeal, ATB was represented by counsel, Ms Hemachandra. LA did not appear. The Chief Executive Officer of the Department of Justice appeared as amicus curiae, represented by counsel, Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ATB v LA

Details

AGLC: ATB v LA [2021] WADC 64
Case: [2021] WADC 64
Decision Date: 2 JULY 2021

CaseChat Overview and Summary

The appeal, ATB v LA, was heard by the Court of Appeal of Western Australia, involving the appellant, ATB, who sought compensation for injuries sustained from two separate criminal offences under the Criminal Injuries Compensation Act 2003 (WA). ATB, the victim, originally received an award that did not include compensation for loss of earnings, prompting the appeal to this court. The primary issues before the court were whether ATB's employment termination was a direct consequence of the mental and nervous shock suffered from the offences, and whether pre-existing conditions contributed to or mitigated the injury.

The court meticulously examined the evidence regarding the causal link between the injuries and the loss of employment. It found that the mental and nervous shock suffered by ATB was severe and directly related to the offences. The court also considered whether ATB's pre-existing conditions exacerbated the situation, concluding that while these conditions were present, they did not significantly contribute to the injury. Furthermore, the court assessed whether ATB took reasonable steps to mitigate her loss, determining that she had done so.

In light of these findings, the court concluded that the initial award did not adequately reflect the extent of ATB's losses. Consequently, the appeal was allowed, and the award was increased to better compensate ATB for her loss of earnings. The court's decision underscores the importance of a comprehensive assessment of both the immediate and indirect impacts of criminal injuries on a victim's life, ensuring that compensation is fair and reflective of the true extent of harm suffered.

Orders

Orders of the court

Result:

Appeal allowed

Award increased

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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