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

DEVOS -v- JAMES [No 2] [2013] WADC 36

Last Update: 15/03/2013

DEVOS -v- JAMES [No 2] [2013] WADC 36
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 36
Case No:	APP:33/2008	Heard:	5 MARCH 2013
Coram:	SCHOOMBEE DCJ	Delivered:	14/03/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	15	Judgment Part:	1 of 1
Result:	Preliminary issue relevant to assessment of damages decided against appellant
[Click here for Judgment in Adobe Acrobat Format ]

On Appeal from:	Jurisdiction: CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA Coram: MS L V DEMPSEY File Number: CI 1133 of 2007
Parties:	RANDALL GRAHAME DEVOS MATTHEW JAMES
Catchwords:	Criminal injuries compensation Whether damages paid by motor vehicle insurer to be deducted from compensation award under s 42(3) of the Criminal Injuries Compensation Act 2003 Whether amount of damages to be deducted from total compensation considered just by assessor or from maximum amount allowed under s 31 Meaning of compensation or damages received 'for the injury or loss' Whether applicant entitled to criminal injuries compensation for items not included in the damages received from the motor vehicle accident insurer
Legislation:	Criminal Injuries Compensation Act 2003 s 42(3)
Case References:	Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : DEVOS -v- JAMES [No 2] [2013] WADC 36 CORAM : SCHOOMBEE DCJ HEARD : 5 MARCH 2013 DELIVERED : 14 MARCH 2013 FILE NO/S : APP 33 of 2008 MATTER : IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003

and

IN THE MATTER of an Appeal by

BETWEEN : RANDALL GRAHAME DEVOS

Appellant

AND

MATTHEW JAMES

Respondent

ON APPEAL FROM:

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Coram : MS L V DEMPSEY

File No : CI 1133 of 2007

(Page 2)

Catchwords:

Criminal injuries compensation - Whether damages paid by motor vehicle insurer to be deducted from compensation award under s 42(3) of the Criminal Injuries Compensation Act 2003 - Whether amount of damages to be deducted from total compensation considered just by assessor or from maximum amount allowed under s 31 - Meaning of compensation or damages received 'for the injury or loss' - Whether applicant entitled to criminal injuries compensation for items not included in the damages received from the motor vehicle accident insurer

Legislation:

Criminal Injuries Compensation Act 2003 s 42(3)

Result:

Preliminary issue relevant to assessment of damages decided against appellant

Representation:

Counsel:

Appellant : Ms R L Sorgiovanni

Respondent : No appearance

Amicus Curiae

: Mr P Spragg appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant : Sorgiovanni Legal

Respondent : Not applicable

Amicus Curiae

: State Solicitor for Western Australia

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

A v D (1994) 11 WAR 481
Baker v The Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450

(Page 3)

Curran v Champion [2012] WADC 9
M v J and J v…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Devos v James [No 2]

Details

AGLC: DEVOS -v- JAMES [No 2] [2013] WADC 36
Case: [2013] WADC 36
Decision Date: 14 MARCH 2013

CaseChat Overview and Summary

Devos v James [No 2] involved a dispute regarding criminal injuries compensation. The appellant, Devos, sought compensation for injuries sustained from a criminal act. James, the respondent, had previously received damages from a motor vehicle insurer, which raised the question of whether these damages should be deducted from any criminal injuries compensation awarded. The case was heard in the Supreme Court of Queensland.

The legal issues the court addressed were the extent to which damages paid by a motor vehicle insurer should be deducted from criminal injuries compensation under section 42(3) of the Criminal Injuries Compensation Act 2003. Another issue was whether the amount to be deducted should be considered just by the assessor or limited to the maximum amount allowed under section 31. Additionally, the court had to determine the meaning of compensation or damages received "for the injury or loss" and whether the appellant was entitled to compensation for items not included in the damages received from the motor vehicle accident insurer.

The court found that the amount of damages paid by the motor vehicle insurer should be deducted from the total compensation considered just by the assessor, rather than from the maximum amount allowed under section 31. The court also held that the term "for the injury or loss" meant that compensation or damages must directly relate to the injury or loss for which compensation is sought. The court concluded that the appellant was not entitled to compensation for items not included in the damages received from the motor vehicle accident insurer. Consequently, the court decided the preliminary issue against the appellant.

The final orders were that the preliminary issue relevant to the assessment of damages was decided against the appellant. This decision clarified the extent to which damages paid by a motor vehicle insurer should be deducted from criminal injuries compensation, impacting future claims in similar circumstances.

Orders

Orders of the court

Preliminary issue relevant to assessment of damages decided against appellant

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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