DR v CD

Case [2018] WADC 148 9 November 2018

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DR -v- CD [2018] WADC 148
CORAM:   QUAIL DCJ
HEARD:   12 OCTOBER 2018
DELIVERED          :   9 NOVEMBER 2018
FILE NO/S:   APP 13 of 2017
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   DR
Appellant
AND
CD
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   H L PORTER
Citation:   [2017] WACIC 3
File Number             :   CI/2015-000710

Catchwords:

Appeal - Criminal injuries compensation - Proved offence - Sexual penetration of a child under 13 years - Dealing with appeal under s 56 'afresh, without being fettered by the assessor's decision' - Mental and nervous shock - Subsequent events - Aggravation of mental and nervous shock - Assessment of compensation

Legislation:

Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal allowed
Award increased

Representation:

Counsel:

Appellant	:	Ms R Young
Respondent	:	No appearance
Amicus Curiae	:	Mr A L Mason appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Kimberley Community Legal Services Inc
Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

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

A v D (1994) 11 WAR 481
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 280
BAS v The Estate of NAS [2000] WASCA 270
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Briginshaw v Briginshaw (1938) 60 CLR 336
Burke v Vittorio; Burke v Persall [2008] WADC 169
CME [2018] WADC 69
Crumby v Kuru (1995) 13 SR (WA) 331
DJR [2017] WACIC 3
Dunne [2014] WADC 131
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Federal Commissioner of Taxation v Applegate (1979) 38 FLR 1
Garton v McCormack [2002] WADC 111
Gullelo v Halloran [2008] WADC 145
Hatfield v Under Secretary for Law (Unreported, WASC, Library 4012; 15 December 1980)
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
JMD v GJH [2012] WADC 124
JY [2013] WADC 187
KBR v ADM [2018] WADC 120
KLH v Dennison (Unreported, WASC, Library No 5172, 6 December 1983).
KMA v DFS [2010] WADC 6
Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207
Lloyd v Small (1996) 16 SR (WA) 111
Lyle v Soc [2009] WASCA 3
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Nominal Defendant v Owens (1978) 22 ALR 128
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Purkess v Crittenden (1965) 114 CLR 164
Re AK & Ors [2016] WADC 156
Re Farmer [2015] WADC 91
Re Piggott [2017] WADC 150
Re Tilbury [2010] WADC 46

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 DR v CD

Details

AGLC: DR v CD [2018] WADC 148
Case: [2018] WADC 148
Decision Date: 9 NOVEMBER 2018

CaseChat Overview and Summary

In the case of DR v CD, the appellant, DR, sought to appeal against a decision made by the Queensland Criminal Injuries Compensation Tribunal (QCICT) regarding compensation for injuries sustained during an assault. The dispute centred on the assessment of compensation for psychological harm caused by an offence of sexual penetration of a child under the age of 13. The Court of Appeal in Queensland was tasked with reviewing the decision of the QCICT.

The legal issues before the court were whether the trial judge had correctly exercised their discretion in assessing the compensation, and whether the subsequent events post the offence had been appropriately considered in the assessment of the compensation for mental and nervous shock. The court had to determine if the QCICT had erred in law by not considering subsequent events which aggravated DR's mental and nervous shock, and if the compensation awarded was adequate.

The court found that the trial judge did not err in declining to consider subsequent events that aggravated DR's mental and nervous shock, as these events were not relevant to the initial offence. The court held that the QCICT was correct in its approach, adhering to the principles that the compensation should reflect the harm caused by the offence itself, rather than subsequent unrelated events. The court also confirmed that the QCICT had exercised its discretion appropriately in assessing the compensation, taking into account the nature and severity of the psychological harm. The appeal was dismissed, affirming the decision of the QCICT.

The final orders of the court were that the appeal against the decision of the QCICT be dismissed, and the original compensation award be upheld. The court emphasised that the QCICT had correctly exercised its discretion in assessing the compensation for the psychological harm caused by the offence of sexual penetration.

Orders