Baker v His Honour Judge Stone of the District Court of WA & Anor

[2015] HCATrans 194

[2015] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P18 of 2015

B e t w e e n -

COLIN PATRICK BAKER

Applicant

and

HIS HONOUR JUDGE STONE OF THE DISTRICT COURT OF WA

First Respondent

THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ATTORNEY GENERAL OF WA

Second Respondent

Application for special leave to appeal

FRENCH CJ
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 14 AUGUST 2015, AT 10.53 AM

Copyright in the High Court of Australia

MR P.D. QUINLAN, SC:   May it please the Court, I appear for the applicant.  (instructed by Connor Legal)

MR G.T.W. TANNIN, SC:   May it please the Court, with MS M. GEORGIOU, I appear for the second respondent.  (instructed by the State Solicitor (WA))

FRENCH CJ:   Thank you.  There is a submitting appearance for the first respondent.  Yes, Mr Quinlan.

MR QUINLAN:   If it please your Honours.  This application, as I indicated, raises a short point but one, in our submission, with significant consequences for the general administration of statutory schemes for compensation for victims of crime, certainly in Western Australia generally but, potentially, in other jurisdictions.

The issue concerns the manner in which those schemes should take account of compensation from other sources so as to avoid what is called double dipping.  The error we say is one which, with respect, leads to a parsimonious rather than beneficial construction of the Act that has and will prevent even, as it were, single dipping.  That is, in our submission, the construction reached by the Court of Appeal, if uncorrected, will in many cases prevent any compensation for a loss, even where that loss has not otherwise been the subject of compensation.

Before taking your Honours to the provision in question, can I refer your Honours in the application book to a paragraph of our learned friends’ summary of argument which is on page 73 of the application book as, with respect, it neatly encapsulates the issue in a way that highlights why this case is, in our submission, an appropriate vehicle and also highlights what, in our submission, is the potential injustice arising from the construction.

The statement of the respondents’ argument is set out at paragraph 4 on page 73 of the application book, and as our learned friends note, the applicant had received some $250,000 “compensation for past economic loss under the” State Worker’s Compensation Act:

but a criminal injuries compensation assessor has determined that the Applicant has demonstrated additional –

we say, a separate –

$75,000 loss for future earnings and psychological counselling and injury for pain and suffering.

Our learned friends then refer to the section in question, which I will come to in a moment, but they say over the page:

Under the Act, the maximum amount that may be awarded as a “compensation award” is $75,000.  The $251,983.69 the Applicant has been awarded for loss of earnings –

and we interpose that is the reference to the past economic loss –

must be deducted from the “compensation award” made by the assessor and therefore, the Applicant is not entitled to any compensation under the Act.

Now, that is said to arise by reason of the operation of section 42 of the Act and if I can take your Honours to that.  It is on page 69 of the application book and begins on the bottom of the page at line 42, is the beginning of section 42 which forms part of Part 4 of the Criminal Injuries Compensation Act 2003.

It contains three operative provisions, subsections (2), (3) and (4), which all make different provision for, as it were, the assessor being required to take account of amounts received from other sources.  The relevant provision in the present case is subsection (3) but we note that the effect of the interpretation reached would be one which would naturally apply to all of those operative subsections and, indeed, other sections such as section 68 of the Act which deals with returning compensation under the Act where other compensation is received.  The relevant provision is that in subsection (3) on page 70 of the application book which provides that the:

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

Now, we say, respectfully, that on its plain meaning the only matters to be deducted from a compensation award under that provision are amounts in respect of the same injury or loss as that for which the award is made under the Act.

Injury and loss are expressions which are specifically and exhaustively defined in the Act.  The former, injury, contemplates what would best be described as giving rise to general damages, that is, it describes the physical or mental harm itself; and the latter, loss, includes specific, enumerated pecuniary losses, and your Honours can see them set out in section 6 which appears on page 69 of the application book.

So, it will always be the case, in our submission, that in carrying out an assessment under the Act, the assessor will have to consider those separate heads of loss, as the assessor did in the present case, which is reflected in the assessor’s reasons, notwithstanding that there is ultimately a single award made under the Act which is then defined as the compensation award.

In that respect, in our submission, the approach is no different to an award of damages in negligence for personal injuries. There is a single award, albeit that its components may need to be considered for the purposes of considering the effect of collateral benefits. It is in that context, in our submission, that section 42(3) and, indeed, the other subsections draw attention to the need in avoiding double dipping for the assessor to consider whether the compensation under the Act is in relation to the same injury or losses that for which the victim has received compensation. We submit that the need to do that is inherent in the words “in relation to” which appear at the beginning of subsection (3), and in the final line, the word “the” in the phrase “the injury or loss”.

Now, according to the construction reached by the Court of Appeal, upholding the decision of his Honour Judge Stone, any amount a victim has received in respect of the commission of the offence must be deducted from an award of compensation, even where those amounts relate to losses wholly separate from those awarded under the Act.

That appears ‑ and the ultimate reasoning of the court appears in the passage that is extracted in our outline of submissions at page 66 of the application book, and the essential error we seek to identify is set out at paragraph 28 and 29 of our submissions, namely, that their Honours in the Court of Appeal concluded ‑ ‑ ‑

FRENCH CJ:   You are going to [43] of their judgment?

MR QUINLAN:   Yes, that is correct, sir.  Namely, the reference being to the deduction being to:

‘any amount’ that the victim has received –

We seek to emphasise that the section makes clear that it is an amount that has been received for “the” injury or loss, the subject of the assessment.  Now, our learned friends submit that that involves reading in the word “particular”.  On the contrary, we say that the need for particularity is inherent in the word “the”.  Now, it may that the meaning of the word “the” would not ordinarily be such as to attract special leave to this Court ‑ ‑ ‑

FRENCH CJ:   Now, what statutory purpose informs your construction?

MR QUINLAN:   Our construction?  The statutory purpose which informs the construction takes into account the overall statutory purpose of the Act, which is to provide for compensation for victims of crime and as a subset the statutory purpose of, as it were, avoiding what is described as double dipping.  That is, avoiding compensation being paid in respect of a loss which is then again sought to be recovered via another means. 

So, for example, in the present case, if having received compensation in respect of his past economic loss under the Workers Compensation Act, the applicant sought to obtain that again, obviously the section would operate so as to prevent that from occurring.  In the present case ‑ ‑ ‑

FRENCH CJ:   That would be compensation for the injury which would be deductible.

MR QUINLAN:   No.  The way that we say that the ‑ ‑ ‑

FRENCH CJ:   No, I am just asking, how do you say the past economic loss, under the Workers Compensation Act, fits into the deduction provision under (3)?

MR QUINLAN:   If I take your Honour to, firstly, section 6 on page 69, your Honours will see that one of the elements of loss which is defined in the Act is:

loss of earnings –

this is subsection (2)(c) –

loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim –

FRENCH CJ:   Yes.

MR QUINLAN:   Now, in a case where the compensation award was in relation to that loss, because the opening words of subsection (3) are the:

assessor must deduct from a compensation award in relation to any injury or loss –

So, in a case where that loss, that is, loss of earnings suffered as a direct consequence, in a case of an award in relation to that, it would be necessary for the assessor to deduct any amount that had been received under a contract of insurance for “the” loss, that is, that loss, namely, loss of past earnings.

What occurred in the present case was that the assessor assessed, and the losses that he awarded compensation in respect of, were losses for pain and suffering, that is, general damages which fall under the heading for injury, and future loss of earnings which he concluded ‑ and there is no dispute ‑ were not ‑ did not form part of the amounts that had been paid under the Workers Compensation Act.  So that we say, for example, the way the section operates in the present case is, applying the section, the:

assessor must deduct from a compensation award in relation to any injury or loss –

and we say the “any injury or loss” the subject of the compensation award here was loss of future earnings and non‑pecuniary loss, must deduct any compensation received for “the” injury or loss, and we say there was otherwise no compensation received under the contract of insurance for “the” injury or loss in relation to which the assessment had been made.

What the provision in effect does on the construction contended for by the respondents and accepted by the Court of Appeal is that once there has been ‑ and this operates because of the statutory cap of $75,000 ‑ once there has been compensation paid in relation to any loss ‑ any of the enumerated types of loss such as past economic loss, in excess of $75,000, it becomes an absolute bar to recovery under the Act.

That, in our submission, defeats the purpose, the evident purpose of the specific section which is to prevent, as it were, double dipping and we accept what our learned friends say about the purpose of the provision in that regard, but on the construction for which we contend there would never be a case in which a person would receive compensation under the Act in respect of a loss for which they had already been compensated by other means.

In fact, as is recognised by our learned friends, the context of the Act is such that ‑ and the structure of the Act has been designed in such a way as to recognise that offenders will often not have the capacity to pay compensation to victims and it is why the Act is structured in the way that an award is originally a first charge on consolidated revenue from which recovery can then be made by the State from the offender.

Now, the inevitable corollary of recognising that reality is that the construction reached by the Court of Appeal is that in relation to circumstances where there has been insurance in relation to some losses, victims of crime would be denied altogether legitimate compensation in relation to other losses.  That, in our respectful submission, is a point of general application in relation to the Act as a whole.

We pointed to there being similar provisions in the other States, although we accept in the other States there has been no judicial consideration of this particular issue, that is, what we say is the necessary connection between the loss for which compensation is assessed under the Act and the loss for which there has been a payment in the past.  If the Court pleases, those are out submissions.

FRENCH CJ:   Thank you, Mr Quinlan.  We will not need to trouble you, Mr Tannin. 

In our opinion, the Court of Appeal’s construction of section 42(3) of the Criminal Injuries Compensation Act 2003 (WA) was correct. Special leave will be refused with costs.

AT 11.08 AM THE MATTER WAS CONCLUDED