Bentley v Furlan

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION Send for Reporting

Not Restricted

No. 5524 of 1999

IN THE MATTER of an Appeal under s.92 of the Magistrates' Court Act

DANIEL BENTLEY	Appellant
v
JON-PAUL FURLAN	Respondent

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September and 1 November 1999
DATE OF JUDGMENT:	30 November 1999
MEDIA NEUTRAL CITATION:	[1999] VSC 481

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OFFENCES – convictions – application for compensation for pain and suffering made by victim pursuant to s.86(1) of the Sentencing Act 1991 – whether award of compensation not available because the victim suffered the injuries in respect of which compensation was claimed in a "transport accident" within the meaning of the Transport Accident Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr I. Freckelton	Maurice Blackburn Cashman
For the Respondent	Mr J. Ruskin QC with	Jeffrey Willetts & Associates
Mr A. Flower
Transport Accident	Mr R. Gorton QC with	TAC Law Pty Ltd
Commission (by leave):	Mr B. Griffin

HIS HONOUR:

The Incident

Daniel Bentley, the appellant, was injured in a transport accident as defined by s.3(1) of the Transport Accident Act 1986 ("the TAA") on 25 April 1998. The accident occurred when he was struck by a motor vehicle driven by Jon-Paul Furlan, the respondent.
The Offences of which the Respondent was Convicted.
Mr Furlan was charged with a number of offences in connection with the incident. On 16 September 1998 he was convicted of these offences:
™ Having a blood alcohol concentration exceeding.05 within three hours of
driving a motor vehicle (Road Safety Act 1986 [RSA], s.49(1)(f)).

™ Driving in a manner dangerous (RSA, section 64(1)).
™ Failing to report an accident in which a person was injured (RSA, section
61(1)(e)).

™ Failing to render assistance after an accident (RSA, section 61(1)(b)).
™ Failing to immediately stop his motor vehicle after an accident (RSA,
section 61(1)(a)).

It is possible - the extract of the order made in the Magistrates' Court is ambiguous - that Mr Furlan was also convicted of a further offence, that is:

™ Negligently causing serious injury (Crimes Act 1958, section 24).

The Application for s.86(1) Compensation.

On 16 February 1999 the appellant filed an application for compensation pursuant to s.86(1) of the Sentencing Act 1991 ("the Sentencing Act") as amended by the Victims of Crime Assistance Act 1996 ("the Victims Act"). The application sought, inter alia, compensation for pain and suffering.
The Resolution of the Application.
The application came on for mention before a Magistrate on two occasions. The second of them was on 22 April 1999. Submissions were then made on behalf of the appellant, the respondent and the Transport Accident Commission ("the Commission"). The question debated was whether, the appellant having been injured in a transport accident, it was open to him to claim and obtain compensation under s.86(1) of the Sentencing Act in reliance upon the respondent's convictions for offences which, to greater or lesser extent, involved the same circumstances as did the transport accident.
It was said by counsel for the Commission, and was apparently common ground, that the appellant had made a claim for compensation upon it.
It is not necessary to rehearse the arguments which counsel advanced in the Magistrates' Court.
The learned Magistrate ordered that the application "should be refused". He made an order for costs against the appellant. He said that he was not satisfied that the appellant was entitled to bring the application, the TAA covering the field except where s.37 of that Act applied. He also said that it was inappropriate to distinguish between compensation that could be awarded under s.86 of the Sentencing Act and damages referred to in section 93 of the TAA. He said, in summary: "... the simple point is that this is not covered by ... the Sentencing Act provisions because there is a specific Act which defines the rights of the parties in the matter".
The Issues Raised by the Appeal.
On 24 May 1999 a Master framed three questions of law shown by the appellant to be raised by the appeal. They were as follows:
"(a) id the learned Magistrate's (sic) err in holding that a person injured in a transport accident amounting to a criminal act cannot obtain compensation pursuant to section 86 of the Sentencing Act 1994 (Vic)?
(b) Did the learned Magistrate's (sic) err in equating compensation under section 86 of the Sentencing Act 1991 (Vic) with 'damages'?
(c) Did the learned Magistrate err in failing to acknowledge the fundamental difference between compensation under section 86 of the Sentencing Act 1991 (Vic) on the one hand and 'damages' under the Transport Accident Act 1986 (Vic) on the other hand?"
There was undoubtedly a point of statutory construction which arose in the learned Magistrate's determination of the application. The first of the questions, broadly expressed, enables consideration of the issues debated before the learned Magistrate and before me. The second question raises, perhaps, no more than a step in his Worship's reasoning. The third question is based upon an assumption whose accuracy was a matter of submission before me. But it is pointless in this case to labour over the adequacies or otherwise of each of the questions. Clear it is, as I said a moment ago, that the appeal raises a point of statutory construction upon whose resolution the fate of the application turned.
The Sentencing Act and its Predecessors.
Part 4 of the Sentencing Act is headed "Orders in Addition to Sentence". As originally enacted it contained two sections of present importance.
First, s.84 provided for the making of restitution orders in cases, colloquially, of theft. That section had its origin in s.94 of the Crimes Act 1958, as substituted by section 2(1)(b) of the Crimes (Theft) Act 1973. Section 94 may be said to have built upon (though not in all respects) s.83(1) of the Crimes Act in its 1958 form. Section 94 was repealed by the Penalties and Sentences Act 1985 (the Penalties Act 1985). By the latter Act s.90 provided for the making of a restitution order. There were some differences in text between s.90 and the repealed section but they are not of present importance.
Second, s.86 of the Sentencing Act in its 1991 form provided for compensation where a person suffered loss or destruction or damage to property as a result of an offence. The predecessor of s.86 was s.92 of the Penalties Act 1985. Its predecessor, in turn, was s.546 of the Crimes Act 1958, amend by the Crimes (Amendment) Act 1970. Section 546, I add, had a long legislative history, both in this State and in England.
Four points may be made. First, both ss.84 and 86 of the Sentencing Act, and their predecessors, were originally concerned with property - its restitution, or compensation for its loss, destruction or damage.
Second, the operation of section 84 was confined to restitution of property in cases, colloquially, of theft. But s.86 applied in cases of "offences" generally. The apparent breadth of s.86 in this respect was emphasised by s.546 of the Crimes Act, from which it derived. The earlier section referred to "any felony, misdemeanor or summary offence" - a description replaced in the Penalties Act 1985 and the Sentencing Act 1991 by the word "offence". Its breadth also emerged from a simple comparison of ss.84 and 86 in their 1991 form.
Third, s.546 of the Crimes Act provided a convenient procedure in summary form to enable recovery of compensation for loss or damage suffered. Whether an order should be made was a matter of the court's discretion. A very strong Court of Criminal Appeal explained the provision this way in R v. Braham [1977] V.R. 104 at 110-111:
"Whether under the section as it stood before the change, an order should be made, was a matter for the court's discretion, as is clearly shown by the words 'may if thinks fit...award'. The position is the same in this respect under the new section. The considerations which should govern the exercise of that discretion are left unstated in the section.
In accordance with the approach of the courts to the operation of a discretion so stated, it must be accepted as undesirable to endeavour to regulate its exercise by a pre-statement of the conditions which should govern it. But we think that for present purposes it should be stated that it 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 in order to ascertain whether it or a part of it had arisen through or by means of the offence, or in order to determine what was the value of the property lost, destroyed or damaged, that would be a consideration proper to be regarded as a ground for refusing to make an order and leaving the matter to other processes. We should not, however, be understood as saying that the mere raising of an issue as to whether part of a loss or destruction or damage had been suffered through or by means of the offence, however tenuous the argument might be, would in itself be sufficient to justify the refusal of an order. We would adopt the view taken of the operation of the related English provision that the machinery of a compensation order is intended for clear and simple cases since the civil rights of the victim remain: R v. Kneeshaw, [1975] QB 57 at p.60; [1974] 1 All ER 896. We think it desirable to point out, however, in this connection that the present English provision is substantially different in operation and brings different considerations into play.
Although we would accept, as was stated in R v. Kneeshaw (supra) that a compensation order 'can be extremely beneficial as long as it is confined to simple, straight-forward cases and generally cases where no great amount is at stake', we would not be disposed to treat the latter part of this statement as meaning that only orders for relatively small sums should be made, and, in any case, we would not regard it as applicable in cases arising under the Victorian legislation, under which no numerical limit of the amount of compensation has ever been imposed. Under it the amount involved alone, without associated complications, is not necessarily a bar".
The references in that passage to "the changes" and "the new section" are references to the amended s.546 introduced by the Act of 1970.
The approach taken in Braham was adopted, in substance, by the Court of Criminal Appeal in Landolt (1992) 63 A.Crim.R. 220. That case concerned s.92 of the Penalties Act 1985 - the immediate predecessor of s.86. See particularly per Hampel, J. at 223.
It does not follow from anything said in Braham or Landolt that where legislation such as s.86 provides for the making of an order for compensation for personal injury, a court making an order for compensation in such a case should disregard common law principles of assessment of damages. Authorities suggest the contrary. I do not accept the submission of counsel for the appellant that all the authorities which were referred to in argument dealt with criminal injuries compensation of the kind provided for by the Criminal Injuries Compensation legislation of 1972 and 1983 (the Compensation Act 1972 and the Compensation Act 1983), and the Victims Act. R v MacDonald [1979] 1 NSWLR 451 (see at 458 and 460 per Street, CJ. and at 482 per Lee, J.) did not involve legislation of that kind. The legislation considered in In re Poore (1973) 6 SASR 308 (see at 310-311 per Bray, CJ. and at 314-315 per Hogarth, J.) brought together features of both types of legislation; so also did the legislation in issue in R v. Jones ex parte McClintock [1996] 1 Qd R 525.
Accepting the relevance of common law principles of assessment of damages in applications for compensation under s.86(1) of the Sentencing Act in its present form, it does not follow that there are similar rationales for an award of such compensation and for an award of common law damages for personal injury (or of no-fault transport accident compensation).
The purpose of common law damages is to provide fair and reasonable compensation for the hurt which has been suffered. The purpose of no-fault compensation is, without need for proof of negligence, to provide benefits for economic and non-economic hurt to the extent that their payment can be responsibly funded. In neither case is an award discretionary.
The rationale of criminal injuries compensation has been explained in cases where it has been payable out of the public purse. It has been said to be socially and morally desirable to compensate the victims of crimes of violence. Compensation is seen as "a tangible expression of the State's sympathy and concern for those who, through no fault of their own, suffer unjustifiable invasions of their personal integrity". See H v. Crimes Compensation Tribunal [1997] 1 V.R. 608 at 614 citing Davies, "Compensation for Criminal Injuries in Australia: A Proposal for Change in Queensland" (1991) 3 Bond LR 1 at 4.
It might be argued that the rationale for payments is different because the entitlement arises under s.86(1) of the Sentencing Act in its current form. By that provision the State itself makes no such "tangible expression".
Any such argument must meet the fact that compensation for pain and suffering now provided for by s.86(1) began its existence as an entitlement created by the Compensation Act 1972 and continued by the Compensation Act 1983. Under those Acts, as will be seen, the public purse funded awards of criminal injuries compensation generally. Whilst the Victims Act changed that situation in respect of pain and suffering compensation, the Second Reading Speech shows that an important reason for removing the burden from the State and placing it on offenders was simply that the State could not afford it. That contraindicates there being any new rationale for making awards of such compensation. Further, the circumstances in which, and the information upon which, a discretionary award of compensation can be made under s.86 of the Sentencing Act, and application of the Braham approach to applications, are powerful pointers against treating an award made under that section as having the same rationale as an order for common law damages or no-fault compensation. That is so despite s.86(10), to which sub-section I shall later refer.
I come to the fourth of the points which, a little earlier, I said may be made. Section 546 of the Crimes Act was obviously concerned with cases where no question of the defendant being insured against the consequences of his or her offence could arise. In Braham the court held that the pertinent provision did not permit the court to consider the means of the offender when exercising its discretion whether or not to make an order: see at [1977] VR 112. The legislation was somewhat altered by s.86(2) of the Sentencing Act in its original form; but not in a way that would suggest that Parliament had it in mind that an offender might be insured against the consequences of a s.86 order. By sub-s.(2), if a court decided to make an order, it was entitled to consider "the financial circumstances of the offender and the nature of the burden that payment would impose". That alteration reinforced, if anything, the impression that the section was concerned with cases of uninsured offenders.
I turn to s.86 of the Sentencing Act as it now stands - that is, following its amendment by s.76 of the Victims Act. A number of changes were made. Most importantly, sub-s.(1) was amended to permit an order for compensation in favour of a person sustaining "pain and suffering as a result of an offence".
That was the first time, in this State, that a statutory right was conferred upon the victim of an offender to obtain pain and suffering compensation from the offender personally - that is, other than by civil action. It was, to underline the point, a right conferred by an amendment to legislation whose underlying assumption had always been that the offender would be uninsured. Moreover, it was a right tacked onto a section which applied to "offences" at large.
Section 86(1) in its present form could on its face be called into play in a case in which the claimant for compensation - of whatever type, but relevantly pain and suffering compensation - was the victim of an offence against the RSA. That Act specifies a variety of "offences". See, for instance, ss.30, 49, 59, 60, 60A, 61, 62, 64, 65 and 66. That list is not and is not intended to be exhaustive. The net is cast very wide. See, for instance, ss.86 and 88, and, in connection with the latter case, the definition of "traffic infringement" in s.3(1).
The History of Criminal Injuries Compensation in this State.
Before the amendment of s.86(1) of the Sentencing Act there was a regime by which a person injured by a criminal act could be compensated.
The history of compensation in respect of such cases began with the Compensation Act 1972. That Act was amended in 1980. Both it and the amending Act were repealed by the Compensation Act 1983. The last-mentioned Act continued in operation until the enactment of the Victims Act.
In order to understand the change wrought by the Victims Act it is necessary to refer to some features of the prior legislation.
By the Compensation Act 1972 a Crimes Compensation Tribunal was established. It was given jurisdiction to make orders for the payment of compensation to or for the benefit of a person injured or killed "by or as the result of a criminal act or omission of any other person".
The adjective "criminal" was defined. Unless inconsistent with the context or subject matter:
"'Criminal' in relation to an act or omission means any act or omission which is an offence punishable by imprisonment otherwise than in default of distress for non-payment of a fine whether or not the offence is punishable on indictment or on summary conviction and whether or not the offence is punishable by any other penalty in addition to or as an alternative to imprisonment".
The Compensation Act 1972 set up a regime by which a particularised application had to be made (s.8), the applicant was entitled to appear personally or by counsel or solicitor at a hearing of the application (s.9), other persons having a substantial interest in the proceedings had a right to be heard, and persons appearing had a right to adduce evidence and to cross-examine witnesses (s.9). It was open to the Tribunal to make an order for compensation notwithstanding that the offender had not been prosecuted, or if prosecuted had not been convicted of an offence (s.14(4)). The making of an order for compensation was not to affect the civil rights of the victim to recover compensation (s.14 (6)). Compensation was to be "such amount as (the Tribunal) thinks fit by way of general damages or special damages or both", but not exceeding a specified sum (s.16). It was open to the Tribunal to award compensation in respect of one or more of –
"(a) Expenses actually and reasonably incurred as a result of the victim's injury or death;
(b)      Pecuniary loss to the victim as a result of total or partial incapacity for work;
(c)       Pecuniary loss to dependants as a result of the victim's death;
(d)      Other pecuniary loss resulting from the victim's injury, and any expenses which, in the opinion of the Tribunal, it is reasonable to incur;
(e)      Pain and suffering of the victim". (Section 15(1)).
Although the Act referred to an award of compensation "by way of general damages or special damages or both", although it provided that the compensation should not be awarded "by way of exemplary or vindictive damages", and although it referred to compensation for "pecuniary loss" and "pain and suffering", it is not the case that liability to pay compensation or assessment of compensation was to be approached simply as if it was an investigation of liability to pay, and determination of the quantum, of common law damages assessed by reference to common law principles. See Fagan v. The Crimes Compensation Tribunal (1982) 10 CLR 666 at 673 per Mason and Wilson, JJ, and at 675 per Murphy, J.

On the other hand, as I have said earlier, authorities show that the principles applicable to assessment of damages at common law are generally applicable to assessment of criminal injuries compensation, but subject to necessary modification - it including the impact of arbitrary jurisdictional limits upon the compensation that might otherwise be awarded. See, additionally to authorities already cited, Martin v. Crimes Compensation Tribunal & Ors (1997) 91 A.Crim.R. 301 at 304.
Section 20(1) of the Compensation Act 1972 said this:
"(1) The costs and expenses of establishing, maintaining, and administering the Tribunal together with the amounts of compensation ordered by the Tribunal to be paid under this Act and witnesses' expenses and costs awarded to applicants shall be paid out of the Consolidated Fund which is hereby to the necessary extent appropriated accordingly".
There was a right of recovery of compensation from a convicted offender. See s.21.
There were provisions designed to prevent double-recovery in the event that compensation or damages were recovered from the offender. See ss.17(b), (c), (d) and 22. Section 17(b) contemplated that the other payment might be one received pursuant to Part V of the Motor Car Act 1958. Later in these reasons I shall refer in some detail to the content of Part V. It is enough to say, for present purposes, that damages paid pursuant to that Part could include damages for pain and suffering; and that s.17(b) of the Compensation Act 1972 required the whole amount received under Part V to be deducted from the compensation that the Tribunal would otherwise have awarded.
Although the Tribunal was statutorily instructed to act expeditiously and informally, and without necessary adherence to the rules of evidence, the procedure which the 1972 Act established had quite a structured character. It was much different to the summary procedure by which compensation could be awarded in cases of property damage under s.96 of the Crimes Act 1958 (as substituted in 1973) and by the legislative successors of that provision.
It is next necessary to refer to a number of features of the Compensation Act 1983. It repealed the 1972 Act and an amending Act of 1980.
By s.3, "criminal act" was defined as follows:
"'Criminal act' means an act or omission -
(a) which is an offence punishable by imprisonment (other than imprisonment in default of distress for non-payment of a fine), whether or not punishable on indictment or on summary conviction, and whether or not also punishable by another penalty; or
(b) which is not an offence described in paragraph (a) of this interpretation only because a person is incapable of forming a criminal intention (whether due to age, insanity, drunkenness or other legal incapacity to form a criminal intention)"
Sections 15 to 18 provided for the subject matter of an award of compensation. Thus (in part):
"15(1) The Tribunal may award compensation for expenses actually and reasonably incurred as a result of a victim's injury or death, including expenses incurred through loss of or damage to personal property worn or used at the time of the injury, during a period of up to twelve months following the injury or, where applicable, the injury causing death.
16(1) The Tribunal may award compensation for pecuniary loss to a victim suffered as a result of total or partial incapacity for work during a period of up to twelve months following the injury or, where applicable, the injury causing death.
17(1) The Tribunal may award compensation for expenses actually and reasonably incurred and pecuniary loss suffered by the dependants as a result of a victim's death during a period of up to twelve months following injury causing a victim's death on the same basis and subject to the same limitations as would apply in respect of an award to a victim pursuant to sections 15 and 16.
(2) An award of compensation under this section shall not
exceed, in respect of all dependants of a victim, the
amounts prescribed for the purposes of sections 15 and 16.
18 The Tribunal may award compensation for a victim's pain and suffering, not exceeding an amount prescribed for the purposes of this section".
Section 19(1) imposed a prohibition upon the making of an award of compensation in certain circumstances. In light of amendment of this sub-section after the commencement of the TAA, I should set it out in its 1983 form:
"19(1) The Tribunal shall not make an award of compensation under section 15, 16 or 17 to a person who has made, or is entitled to make, or to the dependants of a person who has made, a claim under the Motor Accidents Act 1973 arising out of the same criminal act".
The Motor Accidents Act 1973 was in some respects the predecessor of the TAA. It constituted the Motor Accidents Board. The Board became liable to make payments to and in relation to certain persons who sustained injuries or whose death was caused by or arose out of the use of a motor vehicle.
Payments were in respect of loss of income (s.25), and estimated loss of income (s.28), in respect of expenses other than loss of income (s.30), and by way of compensation to the dependant spouse (s.26) or dependant child (s.27) of a person who suffered fatal injuries. No amount, then, was payable for pain or suffering.
In effect, the Compensation Act 1983 prohibited the making of an award of compensation where there was actual or potential overlap with payments made under the Motor Accidents Act. No such overlap was possible in the case of compensation for pain and suffering, which was payable under s.18 of the Compensation Act, but in respect of which there was no Motor Accidents Act entitlement.
Section 19(2) and (5) of the Compensation Act 1983 provided for the reduction, in some circumstances, of the amount of compensation that would otherwise be payable. It followed the thrust of ss.17(b), (c) and (d) and 22 of the Compensation Act 1972. In particular, s.19(2)(a) required the amount of compensation awarded under any of ss.15, 16 and 17 to be reduced by the total of payments received by or payable to that person pursuant to Part V of the Motor Car Act 1958. That Part required owners of motor cars to insure against liability which might be incurred in respect of the death of or bodily injury to third persons where such death or injury was caused by or arose out of the use of a motor vehicle. See ss.40 and 47. It also provided for the making and satisfaction of claims against a nominal defendant and the satisfaction of a judgment obtained against the owner or driver of an uninsured vehicle. It empowered and authorised insurers to undertake settlement of claims. It provided for circumstances in which there was to be a right of recovery from the driver of a vehicle at the critical time of amounts which had been paid. See s.59(1)(b) and (2). The latter sub-section referred to situations in which the driver was convicted of offences of specified kinds.
Payments made pursuant to Part V of the Motor Car Act 1958 would have been payments of damages in common law proceedings. Such damages in most cases would have included damages for pain and suffering. The effect of s.19(2)(a) of the Compensation Act 1983 seems to have been that the amount of compensation payable under provisions of that Act not dealing with pain and suffering was to be reduced by the amount of damages received by or payable to the injured person notwithstanding that the damages related in part to pain and suffering; but that pain and suffering compensation was to remain unaffected. It might be said that s.19(5) authorised the Tribunal to "have regard to" Part V damages when determining the amount of pain and suffering compensation. But to have done so would in substance have infringed the quarantining of pain and suffering compensation effected by s.19(2).
Section 24(1) of the Compensation Act 1983 permitted the Tribunal to attach terms and conditions to an award, including a requirement that a victim take proceedings to enforce another legal right or remedy with respect to the injury. Power to vary an award to take account of receipt of payments from another source was conferred by s.25(3)(c).
As was the case with the 1972 Act, the 1983 Act provided that compensation was to be paid out of consolidated revenue (s.30), the Tribunal was empowered to order that a claimant refund all or part of the compensation (s.27), and the making of an award did not deny to a victim the right to recover "compensation or damages" by civil proceedings - subject to an obligation to refund all or part of the compensation paid (s.28(1) and (2)).
The Transport Act.
The next Act in chronological sequence to which reference was made in argument was the TAA, which for the most part commenced operation on 1 January 1987. The respondent relied upon the TAA to show that the appellant could not be entitled to compensation for pain and suffering under s.86(1) of the Sentencing Act in its post-1996 form. According to the submissions for the respondent that Act "is an exclusive code for the compensation of persons injured in motor vehicle accidents. It ... admits of no concurrent or additional operation" by s.86 of the Sentencing Act.
In referring to sections of the TAA I shall for the most part refer to the sections in their present form. Where there has been some pertinent amendment, I will identify it.
The respondent relied upon the purpose of the Act. It is set out in s.1:
"The purpose of this Act is to establish a scheme of compensation in respect of persons who are injured or die as a result of transport accidents".
Particular emphasis was placed on the reference to a "scheme". That was said to be consistent both with the text of the Act and the Minister's Second Reading Speech. It is convenient to refer to the latter immediately.
The Minister (Hansard, Assembly, 8 May 1986) referred to the "present dual system of motor vehicle personal injury compensation". By that he referred to the existence of common law rights and the no-fault scheme set up under the Motor Accidents Act. That dual system was to be replaced by a system "relying totally on the principle of no fault", this being a "comprehensive reform" of the existing system. (It did not happen, but that is another story).
On a number of occasions the Minister referred to the intolerable cost of the existing system. The new arrangements, he said, would keep the cost of motoring within the reach of the average Victorian family. Base premiums would only rise 16% immediately, and penalties for a range of driving offences would only be increased by 50%.
The Minister referred specifically to impairment entitlement. It was to be payable only if impairment "made on the basis of an exhaustive guide" was at least 10%. He said that "all injured persons will be eligible to apply for this payment, as it reflects pain and suffering and other loss associated with the accident itself or the stabilised results of impairment".
Relevantly, the burden of the Second Reading Speech was that the government intended to rationalise the then existing "hybrid system" by the introduction of a comprehensive no-fault system which would be affordable and would provide, inter alia, impairment benefits in more serious instances of injury. What was to be replaced was a system that provided no-fault benefits not including benefits for pain and suffering; a common law system that did enable an award of damages for pain and suffering; and in each instance a system that depended largely upon the premiums paid by motor vehicle drivers and which protected them against personal liability under the "hybrid system" in return for the payment of premium.
I return to the Act itself. By s.8 its objects included:

"(a) to reduce the cost to the Victorian community of compensation
for transport accidents;
(b) to provide suitable and just compensation in respect of persons
injured or who die as a result of transport accidents."

Paragraph (b) was amended in 1994. Suitable and just compensation was thereafter to be provided "in the most socially and economically appropriate manner".
The Transport Act applies in the case of persons injured or killed in "transport accidents". That term is presently defined to mean -
"an incident directly caused by the driving of a motor car or motor
vehicle, a railway train or a tram".
The initial definition was more liberal.
I should next refer to s.27, by which the Commission is required to establish and maintain the Transport Accident Fund. Into that Fund must be paid, inter alia,
"the transport accident charges ... paid under this Act".
Transport accident charges are dealt with by Part 7 of the Act. Such charges are in substance premiums.
Section 27(3) provides that:
"The following may be paid out of the Fund –
(a) payments of compensation under this Act or that the Commission is liable to pay under any other Act and payments required by a determination of the Commission or the Tribunal to be paid out of the Fund;
(b) payments of damages that the Commission is liable to pay;".
Part 3 of the Act is headed "Compensation". By s.35(1) -
"a person who is injured as a result of a transport accident is entitled
to compensation in accordance with this Act"
in defined circumstances.
The section is couched in terms of entitlement. It does not say that in the circumstances described there is no entitlement under some other legislation.
There are a considerable number of circumstances in which the Commission is relieved of the obligation to pay compensation. The respondent particularly relied on s.37 of the Act. It provides that the Commission is not liable to pay compensation where the person who is injured is, or appears to the Commission to be, entitled to compensation under any one of seven Victorian Acts or their interstate or Commonwealth counterparts. Those Acts provide for payment on a non-discretionary basis of a comprehensive range of benefits, akin to workers' compensation, in the event that a person is injured in specified circumstances.
Section 37 is not exactly the same as it was when first enacted. But its substance has been unchanging. It fits in with ss.38-38A of the Act, which are designed to ensure that a person entitled to accident compensation receives the amount of compensation payable under the Accident Compensation Act 1985, and no more.
In so far, then, as the TAA specifically says that there is no liability upon the Commission to pay benefits when an injured person is or appears to be entitled to compensation under other legislation, it does so in circumstances where the other legislation provides a comprehensive range of benefits; where payment of benefits is non-discretionary; and where the rationale for payment of benefits is akin to that for payment of benefits under the TAA, and unlike the rationale for payment of criminal injuries compensation (in which description I include s.86 compensation). Counsel for the respondent submitted that s.37 discloses an intention that the TAA scheme "cover the field" except in the cases to which it refers. That is not what s.37 says, and other legislation dating back to amendment of the Compensation Act 1983 in 1988 denies the validity of the argument.
Sections 39-41B provide for a number of circumstances in which an injured person, and sometimes a passenger in a vehicle, is disentitled to compensation under the Act notwithstanding that the person has been injured in a transport accident. It is not necessary to refer in any detail to those provisions.
What is clear is that Part 3 of the Act, concerned with circumstances in which there is a prima facie entitlement to payments, provides for a variety of circumstances in which that entitlement is denied. Those circumstances include situations where comprehensive benefits are payable under other legislation. At no point, however, does Part 3 say that if payments are made pursuant to that Part payments may not be made under other legislation. Still less does it say that payments may not be made under other legislation even if no equivalent benefits are payable under the Part.
Section 46A was inserted by Act No. 34/1998. It requires the Commission to determine the -
"degree of impairment of each person who is injured as a result of a transport accident and appears to the Commission to be or to be likely to be entitled to an impairment benefit".
The manner in which impairment is to be assessed is shortly dealt with by ss.46A(2)-(9), 46AA, 46B and the various documents therein incorporated. At the end of it all, if the Commission determines the degree of impairment to be more than 10%, then an impairment benefit must be assessed. The actual formula for calculation of the benefit and the time for its payment is not presently relevant.
There has always been provision for payment of an impairment benefit. The threshold has always been a degree of impairment of more than 10%.
I should refer to s.62(1), for two reasons. First, if a benefit is payable under s.48, s.62(1) does not require that regard be had to any compensation which is payable pursuant to s.86(1) of the Sentencing Act. Second, the sub-section shows that the TAA contemplates receipt of benefits from more than one source.
Part 6 of the Act is headed "Legal Rights Outside this Act".
Division 1 of that Act is headed "Damages in Respect of Death or Serious Injury".
The Division provides for the circumstances in which a person injured in a transport accident may commence a proceeding and recover damages.
There is no doubt that the Division is concerned with the circumstances in which an injured person is to be permitted to bring a traditional common law action for damages or an action founded on Part 3 of the Wrongs Act; and the inhibitions upon a claim once permitted. See Wilson v. Nattrass (1995) 21 MVR 41 and Swannell & Anor v. Farmer [1999] 1 V.R. 299.
It is true that in such a proceeding a breach of statute or regulation might be relied upon; but it is plain that an application for compensation under s.86(1) of the Sentencing Act has no point of connection with a claim permitted by the operation of Division 1 of Part 6 of the TAA other than that, if the latter claim is permitted, damages for pain and suffering may be awarded.
The Criminal Injuries Compensation (Amendment) Act 1988.
Not until 1988 was the Compensation Act 1983 amended to acknowledge the existence of the TAA. Then, by s.10 of the Criminal Injuries Compensation (Amendment) Act, changes were made to s.19 of the Compensation Act 1983.
Sub-section (1) of s.19 was amended into this form:
"(1) The Tribunal shall not make an award of compensation under section 15, 16, 17 or 18 to a person who has made, or is entitled to make, or to the dependants of a person who has made, a claim under the Motor Accidents Act 1973 or the Transport Accident Act 1986 arising out of the same criminal act unless the act is an offence under the Crimes Act 1958".
Sub-section (2) was amended into this form:
"(2) In determining the amount (if any) to be awarded to a person as compensation under section 15, 16 or 17 the Tribunal shall reduce the amount by the total of payments received by, or payable to the person -
(a) pursuant to Part V of the Motor Car Act 1958 or the Transport Accident Act 1986;".
In the Second Reading Speech there was not a word said about those amendments.
What they achieved, however, was generally clear.
First, whereas previously s.19(1) had not precluded an award being made under s.18 of the Compensation Act 1983, it now did so. The reason seems obvious. Compensation for pain and suffering was not available under the Motor Accidents Act. There was no potential for overlap between s.18 pain and suffering compensation and benefits payable under the Motor Accidents Act. But under the TAA, in some circumstances an impairment benefit was payable. The new reference to s.18 compensation evidently reflected the possible availability of such a benefit.

Second, the preclusion upon an award of compensation under the Compensation Act 1983 was no longer absolute where a person had made, or was entitled to make, a claim for no-fault benefits under the Motor Accidents Act or the TAA. That was achieved by insertion of the exception "unless the act is an offence under the Crimes Act 1958". Instances of pertinent criminal acts were and are to be found in ss.16, 17, 18, 24 and 318 of the Crimes Act.
Third, by amendment of s.19(2) provision was made for reduction of compensation awarded under ss.15-17 of the Compensation Act 1983 by the total of payments received by or payable to that person pursuant to the TAA. The sub-section had earlier referred, understandably, only to amounts received by or payable to a person pursuant to the Motor Accidents Act.
Fourth, s.19 in its 1983 form had distinguished in sub-ss.(1) and (2) between entitlement to make a claim for no-fault benefits under the Motor Accidents Act and moneys received by or payable to a person under Part V of the Motor Car Act. That clear distinction was not maintained by the 1988 amendment, mainly because sub-s.(2) referred simply to "the Transport Accident Act", and not to Part 6 of that Act.
At first glance, one might think that the amendment to sub-s.(2) was faulty because it did not refer to Part 6 of the TAA. But such an impression would be arguably incorrect. The effect of the amended s.19(1) was in some circumstances to permit an award of criminal injuries compensation in cases to which the TAA applied. Section 19(1) made no provision for offset of benefits. If s.19(2) was read to refer, inter alia, to no-fault benefits payable under the TAA, then there was provision for offset. On the other hand, so to read s.19(2) would result in there being provision for offset of TAA benefits but not for offset of Motor Accidents Act benefits.
Fifth, it is notable s.19(2) was not amended to make reference to s.18 compensation for pain and suffering. Insofar as s.19(2) required a reduction of compensation otherwise payable under the Compensation Act 1983 by the total amount paid or receivable pursuant to the TAA - including an amount by way of (indemnified) damages - it applied to compensation other than compensation for pain and suffering.
The Victims of Crime Assistance Act 1996.
The Compensation Act 1983, particularly as amended in 1988, remained in force until repealed by the Victims Act. To the latter Act I now turn.
The Victims Act provides for the giving of assistance to a "victim" as defined of an "act of violence". The latter is defined by s.3(1) to mean -
" ... a criminal act or a series of related criminal acts, whether
committed by one or more persons, that has –
(a) occurred in Victoria; and
(b) directly resulted in injury or death to one or more persons, irrespective of where the injury or death occurs;".
The term "criminal act" is in turn defined. It means -
" ... an act or omission constituting a relevant offence or that would constitute a relevant offence if the person had not been incapable of being criminally responsible for it on account of -
(a) age, mental impairment or other legal incapacity preventing him or her from having a required fault element or;
(b) the existence of any other lawful defence;".
That takes the reader to the definition of "relevant offence". Whilst that definition is quite broad, it is by no means unconfined. It seems clear that, focusing only upon the offence required to trigger the operation of the two Acts, s.86 of the Sentencing Act could have operation where ss.8, 10 and 13 of the Victims Act would not.
The objective of the Act is specified by s.6:
"The objective of this Act is to provide a scheme whereby victims of crime will be provided with assistance to help them recover from the act of violence to which they have been subjected. The scheme provided by this Act is intended to complement other services provided by government to victims of crime".
The assistance available to a "primary victim" is specified by s.8. The assistance available to a "secondary victim" is specified by s.10, and that available to a "related victim" is specified by s.13. The broadest range of assistance is provided for in the first case:

"(1) A primary victim may be awarded by the Tribunal assistance
of up to $60,000.

(2) The amount awarded to a primary victim may be made up of
amounts –

(a)

for expenses actually incurred or reasonably likely to be incurred, by the primary victim for reasonable counselling services;

(b)

for medical expenses actually and reasonably incurred, or reasonably likely to be incurred by the primary victim as a direct result of the act of violence;

(c)

of up to $20,000 for loss of earnings suffered, or reasonably likely to be suffered, by the primary victim as a direct result of the act of violence;

(d)

for expenses incurred by the primary victim through loss of or damage to clothing worn at the time of the commission of the act of violence.

(3) in exceptional circumstances there may also be included in the amount awarded to a primary victim within the limit set by sub-section (1) an amount for other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the primary victim to assist his or her recovery from the act of violence".

It is notable that the available assistance does not include compensation for pain and suffering. For the first time, in Victoria, the Parliament distinguished between the sources of compensation for the different consequences of injury caused by a criminal offence. In doing so it set up a regime which varies according to the head under which compensation is claimed - the structured regime set up by the Victims Act in some cases, the simple regime whose operation was described in Braham in other cases. It is a consequence of there being different sources of compensation that the prospect of a victim actually recovering compensation for pain and suffering is now rendered more doubtful. The Consolidated Fund has been excluded as a source of payment. Subject to the offender being insured against the event, the offender must pay the compensation if the victim is to receive pain and suffering compensation.
Section 16 provides that certain other payments must or may be taken into account by the Tribunal when determining whether or not to make an award, or the amount of any award. Into the former class falls common law damages and compensation, assistance or payments received for the loss, expense or other matter for which assistance is sought. Into the latter class falls, inter alia, compensation receivable (but not in fact received) under the scheme managed by the Commission in respect of such loss, expense or other matter.
Section 16 is a quite detailed provision. It deals with the question whether an award of compensation should be made at all in a particular case; and, if it should, then the amount of the award. In considering those matters the Tribunal is obliged to take into account common law damages recovered or compensation received; and it may take into account compensation that the applicant has not received, but is entitled to receive.
In the latter case reference is made directly to compensation receivable under the scheme "managed by the Transport Accident Commission". In the former case, the reference to "any compensation ... that the appellant has received" could, I think, extend to compensation received from the Commission. But that need not be decided.
Another feature of s.16 is that the damages, compensation or other payments received or receivable which are made relevant are the damages et cetera "for the loss, expense and other matters for which assistance is sought from the Tribunal". Now that pain and suffering compensation is dealt with by s.86 of the Sentencing Act, s.16 of the Victims Act understandably has nothing to say about damages or compensation received or receivable for pain and suffering.
Section 16 does not mirror s.19(1) of the Compensation Act 1983, either in its original form, or as amended in 1988. In cases in which a "relevant offence" has been committed, s.16 does not preclude an award of compensation where benefits have been received or are receivable under the TAA. Rather, assuming that benefits may be payable under both Acts, it permits refusal of an award of victims' compensation where (inter alia) benefits are receivable from the Commission, and it permits (in effect) an award of victims' compensation to be reduced where such benefits are receivable. Any preclusion of victims' compensation is primarily to be found in the definition of "relevant offence".
Consistently with s.16, there is no general prohibition upon a victim recovering, "by civil proceedings or otherwise, any damages, compensation, assistance or payments of any kind" (s.61) when an award of assistance has already been made. But an obligation to refund is imposed by s.62. It is limited by the boundaries which apply in the case of s.16.
Assistance under the Act is payable out of the Consolidated Fund (s.69).
Apart from the amendment of s.86 of the Sentencing Act effected by the Victims Act, the latter Act also inserts Division 2A into Part IV of the former Act. That Division empowers a court dealing with an offender to order the offender to pay to the State the amount of the assistance which has been awarded. Necessarily, the offender must have committed a "relevant offence" within the meaning of the Sentencing Act.
Several reasons for treating compensation for pain and suffering differently from assistance otherwise were advanced by the Minister in her Second Reading Speech (Hansard, Assembly, 31 October 1996 p.1023). First, it was -
"not at all certain that the monetary benefits that victims of crime derive from compensation for pain and suffering assist those victims in coming to terms with the offence or in seeking rehabilitation".
Second,
" ... primary victims will no longer receive cash payments as compensation for pain and suffering as they do under the Criminal Injuries Compensation Act 1983. To allow this entitlement to continue is likely to result in a scheme that Victoria cannot afford".
It is unnecessary to consider the likely proportionate significance of those two considerations in the government's thinking.
Further according to the Minister:
"The bill will allow a criminal court to make a compensation order for pain and suffering where an offender is found guilty. This order does not form part of the sentence.
The state will be given the right to pursue offenders or other relevant parties at common law for civil damages if victims agree to assign their rights. Victims will receive any money recovered which exceeds the assistance they receive under this bill. This could include compensation received by way of pain and suffering recovered through the civil procedure".
In the debate that followed, much attention was directed to the question of pain and suffering compensation. Nothing was said, however, upon the question how the amended s.86 of the Sentencing Act was intended to operate with respect to compensation for pain and suffering.
Conclusions.
In the course of analysing the various threads of the legislation I have expressed certain conclusions. Other conclusions follow. It is now convenient to set out my conclusions in summary form, and in doing so to deal discretely with a number of arguments raised for the respondent; and with an issue of indemnity.
First, from 1972 until the present time there has been some provision by which the victim of an offence has been entitled to compensation for pain and suffering.
Second, until the commencement of the Victims Act that compensation was part of a range of entitlements paid out of the public purse after a structured procedural regime had been followed.
Third, from 1973 until the commencement of the TAA there was a no-fault scheme which operated in favour of victims of road traffic accidents. The benefits provided by the scheme did not include payments for pain and suffering.
Fourth, at no time until 1986 did the criminal injuries compensation legislation require there to be a reduction of compensation for pain and suffering by reason of receipt of Motor Accidents Act payments. That position was stated in terms by s.19(1) of the Compensation Act 1983, a section which specifically contemplated that the same act could constitute both an offence for the purposes of the Compensation Act and an event giving rise to a claim under the Motor Accidents Act. I doubt that s.19(5) could sensibly have been applied to achieve a different outcome. There was no overlap of benefits for pain and suffering under the two Acts. From the perspective of the Motor Accidents Act, payment of criminal injuries compensation did not impact upon the liability of the Board to make payments under that Act. Contrast the effect of s.15 of the Motor Accidents Act.
Fifth, from the commencement of the Compensation Act 1972 until the repeal of Part V of the Motor Car Act 1958 by s.179(1) of the TAA there was in operation in Victoria a system of compulsory third party insurance under which provision was made for payment of common law damages for injury or death.
Sixth, under the Compensation Act 1972 the Crimes Compensation Tribunal was required to deduct from compensation which would otherwise be awarded payments made pursuant to Part V of the Motor Car Act 1958. Those payments would often include damages for pain and suffering. The requirement to deduct was explicable by the fact that under the Compensation Act 1972 an award of criminal injuries compensation did not differentiate between compensation awarded by reference to the five heads set up by s.15 (1) of that Act.
Seventh, under the Compensation Act 1983 separate awards of compensation were to be made in respect of expenses, pecuniary loss, to dependants, and for pain and suffering. By s.19(2)(a) of that Act the amount of compensation payable otherwise than for pain and suffering was to be reduced by the amount payable to an injured person under Part V of the Motor Car Act. The latter amount would often include damages for pain and suffering. But pain and suffering compensation was itself quarantined against reduction - subject only to the improbable application of s.19(5).
Eighth, both in the Compensation Act 1972 and the Compensation Act 1983 there were provisions, designed to prevent double recovery, which assumed that an act prima facie entitling a victim to compensation could also be an act giving rise to an award of damages which must be met under Part V of the Motor Car Act. The offences which could give rise to a compensation entitlement under the 1972 and 1983 Acts were more confined than the offences which, on the face of the legislation, enliven s.86 of the Sentencing Act.
It was implicit in the 1972 and 1983 provisions against double recovery that a motor car third party insurer could be obliged to pay, at least in the first instance, damages for injuries suffered by a person in a road traffic accident notwithstanding that the circumstances of the accident involved the commission of a quite serious offence by the driver.
Ninth, the 1988 amendment of s.19(1) and (2)(a) of the Compensation Act 1983 enlarged the preclusion against an award of compensation being made under that Act where the victim had made or was entitled to make a claim for no-fault benefits. The preclusion now applied to pain and suffering compensation. But the preclusion was removed - and not only as to pain and suffering compensation - where a significant criminal act had been committed.
Tenth, s.19(2) as amended in 1988 made provision for reduction in most instances of compensation to be awarded under the Compensation Act where benefits were paid or were receivable pursuant to the TAA. But no such reduction was required in the case of pain and suffering compensation. Insofar as s.19(1) now permitted an award of such compensation, its privileged position by contrast with other classes of compensation was maintained.
Eleventh, the thrust of the 1988 amendment of s.19(1) and (2)(a) was inconsistent with the submission made for the respondent that the TAA was a code not admitting the possibility of an award of criminal injuries compensation in the case of a transport accident.
Twelfth, since the commencement of the Victims Act the jurisdiction to make an order for pain and suffering compensation has been conferred upon the court which finds a person guilty of or convicts the person of an offence.
Thirteenth, the jurisdiction thus conferred has been grafted onto the jurisdiction to make orders against an offender in respect of loss, destruction or damage to property. That jurisdiction, which is of long-standing, is intended for clear and simple cases.
Fourteenth, criminal injuries compensation, - that is, compensation analogous to that for which provision was made by the Compensation Acts of 1972 and 1983 - is to be assessed by the application, subject to necessary modification, of common law principles of assessment of damages. The same can be said of a determination of compensation for injury and damage authorised by a provision such as s.86 of the Sentencing Act 1991. Necessary modification, in the particular contexts, is that imposed both by the relevant statute and by pertinent authorities (for example, Braham).
Fifteenth, despite the application of (modified) common law principles of assessment of damages in cases falling under either type of legislation, there are dissimilar rationales, and compensation awarded is not common law damages. The right to such damages is characteristically retained - see, for example, s.86(10) of the Sentencing Act and ss.16, 51 and 61 of the Victims Act.
Sixteenth, in respect of the predecessors of s.86 of the Sentencing Act in its original form the legislation evidently contemplated that awards of compensation should be made against offenders who would not be insured.
Seventeenth, reference both in s.86 and its predecessors to an "offence" is apt to pick up an offence against the Motor Car Act 1958, and the Road Safety Act 1986, as well as an offence against (for example) the Crimes Act 1958. It admits a broader application than that which flowed from the definitions of "criminal" and "criminal act" contained respectively in the 1972 and 1983 Compensations Acts. It also admits a substantially broader application that is permitted by the operation of the definition of "relevant offence" in the Victims Act.
Eighteenth, the Victims Act evidently contemplates that compensation might be payable both by the Commission under the TAA and pursuant to that Act. That is entirely consistent with the inter-relationship between the Compensation Acts of 1972 and 1983, the Motor Accidents Act and Part V of the Motor Car Act; and with the inter-relationship between the Compensation Act 1983 as amended in 1988 and the TAA.
Under the Victims Act there is no preclusion against obtaining dual benefits. Any de facto preclusion is found in the definition of "relevant offence". There is provision for refusal of compensation, or in effect its reduction, where TAA benefits or common law damages have been received, or are receivable.
Nineteenth, nothing in s.86 of the Sentencing Act is opposed to there continuing a victim's discretionary entitlement to an award of pain and suffering compensation despite the victim having been injured in a motor accident. Not only that, but the history of coexistence between criminal injuries compensation and motor accident benefits and damages suggests the likelihood of persistence of such a discretionary entitlement. That is the more so when the historically favoured position of pain and suffering compensation is borne in mind.
Twentieth, if it be the case that a driver is not to be indemnified for pain and suffering compensation awarded under s.86(1) - a matter to which I shall later return - the absence of insurance does not tell against the likelihood that such compensation may be awarded in transport accident cases. Absence of insurance has been, and remains, characteristic of cases in which s.86 compensation is awarded.

Twenty-first, if it be the case that a driver is not to be indemnified for pain and suffering compensation awarded under s.86(1) then no question arises of the Commission paying out moneys which under the impairment provisions of the TAA it need not do (that is, in the case of a victim whose impairment is less than 10%).
Twenty-second, on its face there is nothing in Part 3 of the TAA which would deny to a person injured in a transport accident by reason of a driving offence both an order for payment of compensation for pain and suffering pursuant to s.86 of the Sentencing Act and compensation under Part 3, this including an impairment benefit.
Twenty-third, that is so where the person injured was neither the driver nor passenger. In some cases the driver, in at least one case the passenger (see s.39(4)(d)(i) and (ii) of the TAA) would be disentitled to all or some Part 3 compensation. Those cases are not in point. The offending driver would not be the victim of an offence; neither, in the case postulated by s.39(4)(d)(i) and (ii), would the passenger.
Pausing for a moment, there is nothing intrinsically odd about a victim being entitled both to Part 3 and s.86 compensation - at least if the Commission is not bound to indemnify the offending driver. In those circumstances the Commission would be liable to pay no-fault benefits to the victim out of a fund to which premium income had made a major contribution; whilst the offender could in clear and simple cases be ordered to pay criminal injuries compensation whose rationale is not to be equated with no-fault benefits.
What might be said to be odd, I think, is not so much the principle; but its possible application. There is an apparent difference between using a vehicle as a weapon, and failing to yield right of way. Yet each is an "offence". That said, the wide operation generally given to s.86(1) by its simple reference to an "offence" cannot be said to be unintentional. The history of the section, tracing back to s.546 of the Crimes Act 1958, makes the point.
Twenty-fourth, notwithstanding what appears on the face of Part 3 of the TAA to be an entitlement to compensation under that Part without there being any prohibition against an award of compensation under s.86 of the Sentencing Act, and notwithstanding what appears on the face of s.86 to be a discretionary entitlement to an award of pain and suffering compensation under that section without there being any prohibition as to receipt of TAA benefits, counsel for the respondent pointed to what he claimed were collisions between the two Acts. He referred to the potential for overlap between an impairment benefit and s.86 compensation for pain and suffering.
What is the potential for overlap? If the assessed impairment is less than 10%, nil. If the assessed impairment is more than 10%, then subject to the case being "a clear and simple" one - suitable for a s.86 order - there is a potential for overlap. But whilst in the latter case two sums would be payable, each in substance containing an element of compensation for pain and suffering, the rationale for such payments, the method of their determination, their source and their being obligatory in one case and discretionary in the other, all show them to be markedly different.
Twenty-fifth, counsel for the respondent asked me to consider the consequences if a s.86(1) award was made in a case where no impairment benefit was payable. The victim of a transport accident which involved a driving offence would receive some compensation for pain and suffering. But the victim of a transport accident not involving an offence would get nothing. According to the argument for the respondent that demonstrated the capricious consequence of reading s.86(1) to apply in cases of transport accidents; and, moreover, it subverted the intention of the TAA that transport accident victims should only receive benefits under or authorised by that Act.
There are in my opinion a number of answers to that submission. First, the rationale for payments made pursuant to the Sentencing Act and for payments made under the TAA are not the same. Second, for that reason there is no caprice in a person obtaining a s.86(1) order where there is no impairment entitlement. Third, neither the TAA nor the Sentencing Act contains a provision which would deny to a person not entitled to an impairment benefit the benefit of a s.86(1) order. Further, in respect of other benefits payable under the TAA there is no preclusion against the receipt also, suitably adjusted, of assistance under the Victims Act. Fifth, there is no doubt, in my opinion, for reasons to which I will later advert, that a person made liable to pay compensation under s.86(1) is not entitled to call upon the Commission to meet such liability. No question, then, arises of premium income being used indirectly to provide a benefit to a transport accident victim which that victim could not obtain by payment of an impairment benefit. Sixth, the history of the predecessors of s.86 of the Sentencing Act makes it unremarkable that a person who is uninsured may be made liable to pay compensation. It seems to me inaccurate to say that the operation of s.86 in cases of transport accidents, in the absence of insurance, would mean that the system of compulsory third party cover which has long been operative in this State would be subverted. That system has historically been directed to protecting motorists against common law liabilities which exist regardless whether or not the liability arises out of conduct constituting an offence. It is true to say that breaches of Acts and subordinate legislation have often been alleged in support of such claims. Insurance indemnity has, subject to statutory or policy exception, been given in such cases. The Compensation Acts of 1972 and 1983 reflected that fact. No doubt the long established situation continues in respect of a motorist's liability for damages in a common law proceeding permitted by Part 6 of the TAA. An award of compensation under s.86 of the Sentencing Act stands outside the long established and continuing domain of third party insurance.
Twenty-sixth, consider the potential for overlap between an award of s.86(1) compensation and damages awarded in a claim permitted by Division 2 of Part 6 of the TAA. It is limited by the circumstances in which such a claim is permitted. There must be impairment of 30% or more, or otherwise the Commission must be satisfied that the injury is a serious injury as defined by s.93(17), or else a court must be satisfied that the injury is a serious injury. Then, if a claim is permitted, s.93(7)(b) comes into play. In summary, the potential for overlapping awards is by the operation of s.93 quite restricted. Moreover, it seems to me very probable that the cases in which pursuit of a damages claim is permitted are very unlikely to be the cases in which a court is likely to make an order under s.86(1); that is, very probably they will not be "clear and simple cases".
But the matter does not even rest there. For by s.86(10) of the Sentencing Act the right of a person who has been paid or recovered s.86(1) compensation to recover damages for pain and suffering is, in effect, to be reduced by the amount of compensation so paid or recovered. I see no reason why that should not operate upon a claim for damages permitted by s.93 of the TAA. It is very likely, having account of the timeframes for making s.86(1) application and for bringing a claim permitted by s.93(1), that the s.86(1) matter will have been disposed of well before the common law action gets to trial.
Twenty-seventh, counsel for the respondent called in aid of a submission that s.93 of the TAA provides a code in cases to which it applies, there being no room for an order for compensation under s.86(1) of the Sentencing Act in such a case, the opening words of sub-section (1):
"a person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident ... except in accordance with this section".
Reference was made to cases in which it has been said that, depending on context, the words "compensation" and "damages" are interchangeable: Joyce v. The Australasian United Steam Navigation Company Limited (1939) 62 CLR 160, Haines v. Bendall (1991) 172 CLR 60, and In re Poore (supra). Counsel relied upon the cases which say that in assessing criminal injuries compensation reference is had, subject to necessary modification, to common law principles of assessment of damages. He relied also upon the definition of "damages" in s.3(5) of the TAA (despite its exception in the case of s.93).
In my opinion, the general submission that s.93(1) of the TAA precludes an award for compensation under s.86(1) of the Sentencing Act faces the intractable difficulty that what Division 1 of Part 6 of the Act and in particular s.93 address are traditional common law proceedings - in which I include proceedings brought under Part III of the Wrongs Act. That is what the court has said about the Division and the section in the authorities to which I referred a little earlier. In short, s.93(1) simply does not address an application for pain and suffering compensation made under s.86(1) of the Sentencing Act.
Twenty-eighth, I raised a little earlier the question whether a driver would be entitled to be indemnified by the Commission against an award of pain and suffering compensation made under s.86. In my opinion it is clear that there is no such entitlement. The starting point for my conclusion is s.27(3) of the TAA, to which I have already referred. It sets out the circumstances in which moneys may be paid out of the Fund. Sub-section (3)(a) no doubt refers to payments made under Part 3 of the Act. Sub-section (3)(b) no doubt refers to an award of damages in a proceeding permitted by s.93. The liability of the Commission to make the latter payments arises by virtue of the obligation to indemnify imposed by s.94(1), subject always to the exceptions set out in sub-s.(2) of that section. Sub-section (3)(b) also refers, I consider, to payments which the Commission is made liable to pay by ss.94(7) and 96. It could also extend to a liability arising in contribution proceedings.
According to the submission of counsel for the respondent s.94(1)(a), in referring to "any liability in respect of an injury or death" extends the obligation to indemnify beyond any of the circumstances to which I have already referred. I reject that submission. The provision concerning indemnity falls within Part 6 of the Act, to whose heading and to Division 1 of which I have already referred. The circumstances set out within Part 6 in which a liability to indemnify will arise characteristically involve common law proceedings - whether brought against an owner, a driver or the old nominal defendant. Those circumstances fit in neatly with the reference to damages in s.27(3)(b).
Other sections within the Division reinforce the conclusion that the indemnity is intended to refer to common law proceedings. See s.95(a) and s.102(1) and (2).
The making of a s.86(1) order for compensation does not depend upon the applicant making out matters which are critical to the imposition of common law liability. Rather, entitlement, which is discretionary in any event, depends upon another matter altogether - a finding of guilt or the conviction of a person of an offence.
Counsel for the appellant sought to draw comfort from the language of s.94 which, he submitted, by providing indemnity in cases of injury or death caused by or arising out of the use of motor vehicles, revealed its intended application beyond proceedings permitted by s.93. It is true that the definition of "transport accident" in s.3 has been amended over the years; and that s.94 has not been similarly altered. But I cannot find in that circumstance a denial of the multiple considerations which tell against s.94 providing indemnity for an award of s.86(1) compensation; or, for that matter, against it providing indemnity to a wrongdoer made liable under s.87A of the Sentencing Act.
In light of all the circumstances to which I have referred there is, I consider, an overwhelming case for concluding that the fact that an act entitles the victim to make a claim under the TAA provides no reason why there should not be a discretionary entitlement to an award of pain and suffering compensation under s.86 of the Sentencing Act. Parliament made clear its intention that there was to be a co-existence in some cases by the 1988 amendment to s.19 of the Compensation Act 1983. In respect of assistance available under the Victims Act that situation continues.
The circumstances whereby s.86 of the Sentencing Act entitles a victim, on a discretionary basis, to an award of pain and suffering compensation are wider than the circumstances entitling that victim to assistance under the Victims Act. That is because of the confining definition of the term "relevant offence" in the latter Act. But that provides no reason for reading down the word "offence" in s.86. The history of the breadth of application of s.86 and its predecessors, tracing back to s.546 of the Crimes Act 1958, is opposed to any such reading down. The 1986 amendment of s.86 to include provision for pain and suffering compensation should be understood to be the insertion of such provision into a section with a long history of broad application.
If Parliament did not intend to achieve what, by clear language, it did achieve, then it is for Parliament to remedy the matter. It is not part of the court's function to ascribe a non-existent intention to Parliament in order to produce a result different to that which is achieved by that language. It may be added that the outcome thus achieved is compatible with an intention of Parliament that offenders, broadly described, compensate their victims' pain and suffering out of their own pockets. That is the import of part of what the Minister said in her Second Reading Speech. Such an intention is consistent with s.87A of the Sentencing Act, which section enables the state to claw back assistance paid by it to a victim - there being, as I conclude, no right to indemnity under s.94 of the TAA in such a case.
It is the fact that there is no equivalent in the Sentencing Act of s.16 of the Victims Act. That provides, in my opinion, no reason for not reading s.86 as it is plainly expressed. I have pointed out that pain and suffering compensation was always, until 1996, treated somewhat differently than other criminal injuries compensation (that was so even after the 1988 amendment of s.19 of the Compensation Act 1983). Moreover, as I have also pointed out, there is a very limited area of potential overlap of s.86 compensation with transport accident benefits and traditional common law damages; and s.86 compensation on the one hand and transport accident benefits and damages on the other hand have their discrete rationales. Further again, there are avenues, evident or arguable, for achieving a similar outcome in the case of s.86 to that achieved by s.16 of the Victims Act.
Counsel for the respondent submitted that in construing potentially conflicting statutes the court should adopt an interpretation which avoids a conflict and gives each statute a sensible independent operation. The interpretation said for the respondent to be sensible in substance was to read s.86(1) as dealing with offences other than offences whose circumstances were also the occurrence of a transport accident.
Having regard to the declared purposes of the TAA, its provisions, the relevant provisions of the Sentencing Act, and the history of predecessor legislation of both types, and as well relevant provisions of the Victims Act, I am not at all convinced that the two legislative schemes do not comfortably co-exist. I would simply be repeating much of what I have said were I to say why that is so.
I likewise reject an argument pursued for the respondent that the amendment of s.86(1) of the Sentencing Act in 1996, though a later enactment than the TAA, was the amendment of a later general statute, and should not be held to implicitly repeal earlier specific legislation. The principle may readily be acknowledged. But for reasons that I have attempted to make clear, the circumstances do not call for its application.
Summary
I summarise the matter this way.
There is no preclusion upon a person who is injured in a transport accident which involves the commission of an offence, including what may compendiously be called a driving offence, making application for and obtaining an order for compensation for pain and suffering. It matters not whether the offender is found guilty of or convicted of an offence against the Crimes Act (for which reason uncertainty whether or not the respondent was found guilty of or convicted of such an offence is not decisive).
The court, asked to make such an order, has a discretion whether to do so. The discretion is general, but it can at least be said that "it 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 circumstances to be regarded in exercising it". The section is intended for "clear and simple cases".

(a) The fact that the offender is not insured against liability to pay such compensation is not in itself a reason for the court exercising its discretion not to make an order under s.86(1).

If an order for s.86 compensation is made, the Commission is not required to meet it.
If an order is made, the victim is not precluded from seeking to pursue a common law damages claim.
If the victim is permitted by the operation of s.93(1) of the TAA to bring such a damages claim, any damages recovered for pain and suffering must, by virtue of s.86(10) of the Sentencing Act, reflect a reduction for the amount of s.86(1) compensation paid or recovered.
If, which would be unusual, damages were awarded before a s.86(1) claim was made, a court might think it right, in the exercise of its discretion, to achieve a result equivalent to that produced by the operation of s.86(10) in the obverse case. That is so even although the rationale for s.86(1) compensation and common law damages is different.
If a s.86(1) order is made, the victim remains entitled to benefits under Part 3 of the TAA. So also, the payment of benefits does not preclude the making of a s.86(1) application. In the former case it is possible, but doubtful, that s.86(10) could operate to limit the amount of an impairment benefit. In the latter case a court might think it right, in the exercise of its discretion, to exercise its discretion to refuse to make a s.86(1) award, or to reduce the amount that it would otherwise award, in order to reflect the receipt of impairment benefits. That is so even though the rationale for s.86(1) compensation and impairment benefits is different.
Orders.
The appeal must be allowed and the matter remitted for re-hearing by the Magistrates' Court, notwithstanding the difficulty that may arise by reason of s.86(8) of the Sentencing Act in what is now an old matter. It would be best if the application was considered by the Magistrate who dealt with the criminal proceeding.

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[1999] VSC 481

30 November 1999