Jones v The Assessor for Criminal Injuries Compensation

[2001] WADC 40

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   JONES -v- THE ASSESSOR FOR CRIMINAL INJURIES COMPENSATION [2001] WADC 40

CORAM:   NISBET DCJ

HEARD:   29 JANUARY 2001

DELIVERED          :   27 FEBRUARY 2001

FILE NO/S:   CIV 39 of 2000

CIV 40 of 2000

BETWEEN:   PAULETTE JONES

Appellant

AND

THE ASSESSOR FOR CRIMINAL INJURIES COMPENSATION
Respondent

Catchwords:

Criminal injuries compensation - Appeals against assessment as inadequate - Appeals out of time - Receipt of further evidence - Whether appellant should be required to take proceedings under the Workers' Compensation and Rehabilitation Act 1981

Legislation:

Criminal Injuries Compensation Act 1985

Workers' Compensation and Rehabilitation Act 1981

Result:

Appeals adjourned for appellant to pursue claim for workers' compensation

Representation:

Counsel:

Appellant:     Ms B J Lonsdale

Respondent:     Not applicable

Amicus Curiae              :     Ms C L Bathurst appeared on behalf of the Chief Executive Officer of the Ministry of Justice

Solicitors:

Appellant:     Dwyer Durack

Respondent:     Not applicable

Amicus Curiae              :     State Crown Solicitor

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

Nil

Case(s) also cited:

A v D (1994) 11 WAR 481

B v S, unreported; SCt of WA; Library No 950223; 10 May 1995

B v W (1989) 6 SR (WA) 79

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666

Falconer v Warwick [2000] WADC 280

Gleeson v Lee (1996) 18 SR (WA) 353

H v T (1995) 14 SR (WA) 332

Harris v Ellis, unreported; DCt of WA; Library No 5203; 20 December 1996

Jackamarra v Krackouer (1998) 153 ALR 276

Jansen v Assessor for Criminal Injuries (No 2) (1997) 17 SR (WA) 145

Jones v Macey [2000] WADC 101

Kelly v Goodwin [1999] WADC 40

Leibowitzv Assessor of Criminal Injuries Compensation, unreported; DCt of WA; Library No 990120; 3 May 1999

M v J and J v J, unreported; SCt of WA; Library No 920598; 19 November 1992

Maxton v The Assessor of Criminal Injuries Compensation, unreported; DCt of WA; Library No 990154; 3 June 1999

Medlin v State Government Insurance Office (1995) 69 ALJR 118

Milanovic v Dragic [2000] WADC 274

Puspa v Assessor of Criminal Injuries Compensation, unreported; DCt of WA; Library No 990027; 9 February 1999

R v Forsythe (1972) 2 NSWLR 951

Re Blezard (2000) 23 SR (WA) 278

Re Carter (1984) 4 SR (WA) 219

Re Jansen (1996) 15 SR (WA) 216

Re Karra (1984) 2 SR (WA) 97

Re Kiernan, Haendel and Mason (1979) 1 SR (WA) 286

Re Nguyen and Pham, unreported; DCt of WA; Library No 4830; 12 April 1996

The Applicant v Larkin & Ors (1976) WAR 199

Thompson v Ford [2000] WADC 137

Voss v Assessor of Criminal Injuries Compensation, unreported; DCt of WA; Library No 3829, 29 September 1993

NISBET DCJ: 

Leave to appeal out of time

1. The appellant is a former customer services assistant at the Home Building Society in Maddington.  On each of 13 January 1997 and 2 May 1997 she was the victim of two incidents of armed robbery at those premises.  After the last of them she simply resigned her employment.  In effect she said she felt too traumatised by the second incident following so closely as it did after the first, to be able to continue in employment.  This she did instead of taking sick leave and other forms of leave which I am confident would have been available to her had she applied.  She sought and obtained two awards of compensation from the Assessor of Criminal Injuries Compensation in respect of each of these incidents which awards were handed down on 19 January 2000.  The award in respect of the first incident was $3,100 and in respect of the second $1,250.  The maximum which could have been awarded was $100,000.

2. The appellant filed her appeal notices on 2 May 2000. The 21 day time limit for the bringing of an appeal against an award of the Assessor of Criminal Injuries Compensation expired on 9 February 2000 and hence the appeals were almost three months out of time when they were lodged. This means that the appellant requires leave to commence an appeal and I may, if I think it is just to do so, grant leave to commence an appeal after the expiry of the 21 day period: s 41(2) of the Criminal Injuries Compensation Act ("the Act").

3. Affidavits have been filed on behalf of the appellant which showed that on 6 February 2000 she wrote to the Assessor of Criminal Injuries Compensation stating that she would like to appeal against both awards.  On 11 February 2000, after the 21 day appeal period had expired two days previously, the Assessor wrote to the appellant stating that her right of appeal was to the District Court.  Subsequently the appellant sought and obtained representation from her present solicitors.  She contacted them on 13 March 2000 seeking an appointment but did not get to speak with a solicitor until 7 April 2000 following which the appeals were instituted on 2 May 2000.

4. In all of the circumstances I am of the opinion that the appellant, having evinced an early intention to appeal against the awards had failed to lodge her appeals within the requisite time and although this was through no fault of hers, she was not as expeditious in obtaining assistance as one might have expected.  Nevertheless delays which are obviously attributable to her are not so inordinate as to deprive her of the right to have her application for an extension of time within which to file her appeals considered favourably.  Accordingly I am of the opinion that the appellant should have leave to institute her appeals and leave is hereby granted.

Section 22 of the Act

1. Section 22 of the Act provides:

   "Where, in the opinion of the Chief Assessor, a person who has applied for compensation in respect of an injury or loss -

   (a)has reasonable grounds for taking proceedings independently of this Act to obtain compensation or damages for that injury or loss; or

   (b)may be entitled to payment under any contract of insurance for such injury or loss,

   the Chief Assessor may require the applicant to take proceedings to obtain the compensation, damages or payment and may defer the application pending the determination of such proceedings."

2. Here, clearly, the appellant was acting in the course of her everyday employment as a customer service officer for her employer, the Home Building Society, when she was a victim of two armed robberies.  The injury which she says she has sustained in consequence of being a victim of these crimes (of which the perpetrators were convicted in the Supreme Court on 3 June 1997 in respect of the first armed robbery and on 3 November 1997 in respect of the second armed robbery) was post traumatic stress disorder.  Such was the uncontradicted opinion of a clinical psychologist, Glenis Nicholas, whose reports of 8 June 2000 and 21 January 2001 were before me.  In those reports and in particular the report of 21 January 2001 Ms Nicholas makes plain that in her opinion the appellant's post traumatic stress disorder arose from what I have called the first armed robbery and she was further of the opinion that these symptoms were intensified by the second armed robbery.  In her reports Ms Nicholas refers to them as the second and third "hold ups" because some time before each of these incidents, in April 1990, the appellant had been a victim of another "hold up".

3. The difficulty with this evidence is that it would seem that the appellant has sustained a disability during the course of her employment within the meaning of s 5 of the Workers' Compensation and Rehabilitation Act 1981 ("the Workers' Compensation Act") and, it seems to me that it is arguable that any injury sustained by the appellant during the course of her employment is compensable by the employer or more strictly by the employer's insurer, and would have been so compensable had the appellant not simply terminated her employment but had rather sought appropriate leave and then made application for weekly payments of workers' compensation.  By reason of the delay, it now being almost four years since the second armed robbery, it may very well be that the appellant will have to overcome some procedural difficulties before a claim under the Workers' Compensation Act could be brought to fruition.

4. Notwithstanding that the appellant may be faced with procedural difficulties however, in my opinion she should be obliged to seek out her other remedies before proceeding any further with these appeals. This is because the policy behind the Act, evident in its terms, is that the State is providing a safety net for victims of crime, not a statutory scheme of indemnity. The Act gives relief only when no other form of relief is available. Additionally, the scheme of the Act is such as to preclude victims of crime being twice compensated, once from (say) a workers' compensation insurer and again from the State, in those cases where as here, the crime is committed upon a person engaged in and as a consequence of, a contract of employment.

5. By reason of the provisions of s 43 of the Act I have the power to do that which the Assessor could do under s 24 of the Act and accordingly I require the applicant to take proceedings to obtain workers' compensation before proceeding further with the determination of these appeals. I will in the meantime adjourn the appeals sine die.