MATTHEWS
[2017] WADC 126
•22 SEPTEMBER 2017
MATTHEWS [2017] WADC 126
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 126 | |
| Case No: | APP:111/2016 | 9 JUNE 2017 | |
| Coram: | WAGER DCJ | 22/09/17 | |
| PERTH | |||
| 17 | Judgment Part: | 1 of 1 | |
| Result: | $55,975.75 awarded to the appellant | ||
| PDF Version |
| Parties: | STEVEN MATTHEWS |
Catchwords: | Criminal law Criminal injuries compensation Appeal Whether evidence sufficient to satisfy the court that the appellant by his behaviour contributed to the injuries suffered Deduction for compensation already received Turns on own facts |
Legislation: | Criminal Injuries Compensation Act 2003 (WA) |
Case References: | Baker v Stone [2015] WASCA 56 Cooper v Smith (Cooper) [2017] WADC 82 Liddiard [2008] WACIC 59 MW v CW [2001] WADC 234 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
AND
IN THE MATTER of an Appeal by
- Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : HL PORTER
File No : CI 1631 of 2014
Catchwords:
Criminal law - Criminal injuries compensation - Appeal - Whether evidence sufficient to satisfy the court that the appellant by his behaviour contributed to the injuries suffered - Deduction for compensation already received - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003 (WA)
Result:
$55,975.75 awarded to the appellant
Representation:
Counsel:
Appellant : Mr C Foyle
Amicus Curiae : Mr SP Tomasich
Solicitors:
Appellant : Foyle Legal
Amicus Curiae : State Solicitors Office
Case(s) referred to in judgment(s):
Baker v Stone [2015] WASCA 56
Cooper v Smith (Cooper) [2017] WADC 82
Liddiard [2008] WACIC 59
MW v CW [2001] WADC 234
1 WAGER DCJ: The appellant appeals against the assessor's award of $37,500 made pursuant to s 30 Criminal Injuries Compensation Act 2003 (WA) in respect of injuries he suffered as a result of an alleged offence committed on 15 August 2010.
2 No person has been charged with the commission of the alleged offence that arose from an altercation between two groups in East Perth in the early hours of 15 August 2010 when the appellant was struck over the head with a concrete paver, causing him to suffer serious injuries.
3 The grounds of appeal are:
1. The chief assessor of criminal injuries compensation (CIC) erred in reducing the appellant's compensation by 50% for contributory behaviour.
2. The chief assessor of CIC erred in making findings of fact based on CCTV footage in circumstances where the appellant had not been given the opportunity to view and comment on that footage.
3. The chief assessor of CIC erred in finding the appellant first engaged 'Mr C verbally, pointing to the appellant's finger and causing Mr C to step back'.
4. The chief assessor of CIC erred in finding that as part of the group initiating the conflict with Mr C the appellant contributed significantly to the occurrence of the incident and therefore his injuries.
4 The appellant has had an opportunity to view and make submissions in respect of the CCTV footage and no longer relies on ground 2. Grounds 1, 3 and 4 relate to the issue of whether the appellant contributed to his injuries pursuant to s 42 of the Act, however because this is a hearing de novo I need to consider all of the evidence presented and the issues raised.
5 Section 17 of the Act applies if an alleged offence is committed but no person is charged and the claimant suffers injury and loss. In order to make an award, I must be satisfied that the claimed injury and any claimed loss have occurred and did so as a consequence of the commission of the alleged offence. If I am so satisfied I then need to consider:
1. Whether the appellant suffered any injury when committing a separate offence: s 39(1) of the Act.
2. Whether the behaviour, condition, attitude or disposition of the appellant contributed directly or indirectly to his injury: s 41(a) of the Act.
3. Whether the appellant has received compensation from another source thereby requiring reduction in the sum awarded: s 42 of the Act.
The evidence
6 I have read and seen evidence relevant to the circumstances of the commission of the alleged offence including statements of parties involved in the altercation, statements from police who attended at the scene, a statement of an independent witness and CCTV footage recorded from the Mantra Hotel, Hay Street, East Perth on 15 August 2010. The appellant has not requested that I consider any additional material in relation to the circumstances of the offence.
7 I accept from the evidence that the appellant had come from Sydney to visit friends and had been at a nightclub with a group of five to seven other men. All had been drinking alcohol. At least five of them had left the nightclub together and were walking along Hay Street, East Perth at about 3.30 am.
8 Mr C, a man who was part of a second group of at least 10, had been at a different nightclub. The second group had been drinking heavily. Mr C was also on Hay Street walking towards the appellant's group, but coming from the opposite direction on Hay Street. Mr C was arguing with his girlfriend, Ms CLD. She was walking behind him when the appellant's group crossed paths with Mr C. Words were spoken. A member of the appellant's group, Mr LS, threw a punch at Mr C and a fight occurred between the two groups. Ultimately, the appellant and Mr LS were very seriously injured.
9 Five of the members of Mr C's group described their respective alcohol consumption on the night in their police statements as follows:
1. Mr C drank Jack Daniels and dry and had six or seven over the course of the night.
2. Mr BC drank four bourbons and cokes before going to the nightclub and then consumed 10 – 12 bourbon and Cokes and Jack Daniels and Coke at the nightclub. He described himself as very drunk.
3. Ms CLD drank three vodka Vs before going to the nightclub and then consumed four to five vodkas at the club. She described herself as feeling tipsy.
4. Ms DAJ said that drinks were cheap at only $6.50 at the nightclub. She drank Jack Daniels mixed with Coke and had about 10 or more drinks throughout the night. She described her state as 'I felt fairly tipsy but not falling over drunk' (par 9).
5. Ms TMH had consumed a bottle of wine before going to the nightclub. At the nightclub she drank vodka and lemonade and shooters. On a scale of one to 10 she described herself as being intoxicated to a scale of 9. She said 'I don't have a clear recollection of events of that night because of my level of intoxication' (par 11).
10 In their police statements, three members of the appellant's group described their alcohol consumption as:
1. The appellant said he had drunk three shooters and two beers, however he did not finish his second beer before leaving the nightclub.
2. Mr JK had drunk a fair bit that night and felt intoxicated but still felt in control of his actions.
3. Mr RL had quite a few drinks and felt drunk by the time he left the club at around 3.00 am on Sunday morning.
11 The versions of events described in the statements differ markedly from each other. I find that given the alcohol consumption, the evidence of group members from both groups as to how the altercation commenced is unreliable.
12 Consistent with police statements, Mr C and three members of his group had allegedly been disorderly, aggressive and abusive earlier in the night. Mr DN and Mr BC had been arguing with bouncers at the nightclub. There was an alleged earlier altercation between a bouncer and Mr AN. Another alleged altercation occurred between Mr C and police outside the nightclub his group had attended. Mr AN and Mr C were arrested and charged with disorderly conduct. A move-on notice was also issued in respect of the conduct of one of his group.
13 The reason Mr C's group had walked along Hay Street from the nightclub towards East Perth was because it was in the direction of the watch house. Prior to the altercation, the group had met up with Mr AN and Mr C on their release from custody in respect of their disorderly conduct charges.
14 Consistent with the police statement of Ms CLD, Mr C was not happy immediately prior to the altercation because of the circumstances of his arrest for disorderly conduct and he was arguing with Ms CLD when the appellant's group appeared.
15 Senior Constable Williams, who attended soon after the altercation finished, said in his statement dated 18 August 2010 that he saw Mr C walking in an erratic way and that Mr C yelled at an unresponsive male 'you black c...t f...k you black c...t'.
16 I find that Mr C's conduct both prior to and after the altercation was consistent with him being under the influence of alcohol and being angry, aggressive and disorderly on the night.
17 Although the appellant's group was intoxicated, there is no evidence of aggression or antisocial acts by any members of the group prior to the altercation.
18 I find Mr C and his group were the more aggressive group on the night.
19 Mr DRD was a 38-year-old teacher who was sitting on a park bench at 3.30 am with a friend in the vicinity of the altercation. He was not part of either group. His statement is coherent and logical and there is no evidence that he was under the influence of alcohol at the time the altercation commenced. Accordingly, I prefer Mr DRD's version of events and accept it as accurate.
20 In his statement dated 16 August 2010 Mr DRD said a group of middle aged people consisting of females and males were walking along Hay Street towards the WACA. I accept this is Mr C's group. Mr DRD said (pars 6 – 11):
One gentleman within that group started walking back up the street towards us.
He walked onto the other side of the road outside the Mantra and he looked like he was arguing with a female.
I believe it was his partner.
I saw five athletic males of middle eastern appearance walking from the Frisk Bar and walking towards the arguing couple.
All these middle eastern looking males looked similar. They were all of the same size and all wearing dark clothing but I remember one of them was wearing a light green t-shirt.
One of the middle eastern males seemed a bit agitated.
21 And at par 13 – 15:
The group of middle eastern males were yelling at the male arguing with the female and telling him to 'back off'.
The man would not back down.
One of the middle eastern males stepped out from his group and king hit the arguing male.
22 At par 18 - 20:
The male who was hit was knocked down but immediately regained his feet and shaped up as though ready to fight.
After the hit took place I could see another group who I assumed to be the arguing male's friends run towards him in an attempt to break up the fight.
The two groups combined and there was groups pulling and shoving each other. They were all punching and grappling with one another.
23 And at par 22:
The middle aged group began picking up loose pavers from the sidewalk and were throwing them across the street towards the Mantra Hotel where the middle eastern males were standing.
I did not see anybody use a paving slab as a melee weapon. From what I saw they were only thrown.
24 Mr DRD described seeing a male unconscious at a bus stop and identifying him as being the male who threw the first punch. It is not in dispute that this male was Mr LS.
25 Mr DRD did not see anyone being struck with a paving slab. Although I accept Mr DRD's version of events in respect of the altercation immediately before the appellant was struck, Mr DRD is not able to describe the appellant's role in the initial altercation.
26 The Mantra Hotel's CCTV footage shows the appellant's group of five walking past Mr C on Hay Street. Words are spoken by one of the group to Mr C. Soon after a male in the appellant's group, identified as Mr LS, swings a punch at Mr C. It is not clear whether the punch collides, however, it is a forceful punch and Mr C stumbles and then runs away from the appellant's group. The appellant's group of five follow. This is the only evidence that shows how the altercation started.
27 The assessor concluded from this footage that the male who initially spoke to Mr C prior to Mr LS swinging a punch was the appellant and the conduct required her to consider s 41(b)(ii) of the Act.
28 Section 41(b)(ii) of the Act states:
In deciding whether or not to make a compensation award or the amount of a compensation award, in favour of a victim, or a close relative of a deceased's victim, an assessor –
(a) must have regard to any behaviour, condition, attitude or disposition of the victim that contributed, directly or indirectly, to the victim's injury or death; and
(b) may if he or she thinks it is just to do so –
(i) refuse to make a compensation award because of that contribution; or
(ii) reduce the amount that the assessor would otherwise have awarded.
30 Counsel for the appellant submits that the assessor was mistaken in her conclusion that the person she identified as the person who first spoke to Mr C was the appellant and that I should reach a different conclusion.
31 I note that prior to making the award the assessor sought submissions from the appellant in relation to the preliminary finding of identification and contribution. The appellant did not make a submission at that time.
32 I have been guided by counsel for the appellant and watched the CCTV footage on numerous occasions on screens of various sizes. I have also viewed screenshots of the footage frame by frame and I have considered the submissions made by counsel in respect of the conclusions I should make from the footage.
33 Even viewing the footage screenshot by screenshot, it is not very clear because it is grainy, black and white and the five men look similar. The appellant in his police statement dated 31 August 2010 described wearing a short-sleeved black T-shirt with a skull motif and a black leather jacket on the night. From the photographs taken at Royal Perth Hospital later that night it is apparent that the appellant has relatively dark skin and had very short hair at the time. The silhouette and dress of the person who initially speaks to Mr C when viewed as screenshots is not consistent with the description of the appellant's appearance on the night.
34 I find it is more likely that the appellant was one of the men who played no role in the initial discussion with Mr C and that the appellant was one of the group of five who were simply present at the time of the initial altercation. I am proceeding on the basis that the appellant was not the person who spoke initially to Mr C.
35 After Mr LS is shown to throw a punch at Mr C, all five men are seen to move in the same direction as Mr C, that is, to follow Mr C.
36 The CCTV footage then shows a member of the appellant's group being very close to Ms CLD and having physical contact with her. At this point other members of the appellant's group are very close to Ms CLD. It is unclear what physical actions, if any, are taken by the appellant towards Ms CLD, however, the appellant admitted in his police statement that he spoke to Ms CLD and made some physical contact with her in the sense of requesting she move aside. I accept that an interchange between the appellant and Ms CLD occurred, however, it is not possible to conclude that the appellant is the person shown in the footage who had first contact with Ms CLD.
37 The footage shows that just prior to the interaction with Ms CLD all five members of the appellant's group had moved into the middle of the road where the altercation between the two groups continued.
38 Having viewed the footage, I do not accept that there was a reason why the appellant and the other members of his group could not have withdrawn after the punch was thrown at Mr C and walked away from Mr C. There was no need to follow Mr C or to go onto the road. Had the appellant's group not followed Mr C, then the assault may not have occurred. It is to this limited extent that the appellant's behaviour should be taken into account in respect of any determination I make pursuant to s 41(b)(ii) of the Act.
39 There is no further CCTV footage of the altercation between the two groups. Consistent with Mr DRD's evidence, I accept that Mr C's group introduced the concrete pavers into the melee.
40 In his statement dated 31 August 2010, the appellant said he saw a guy behind Mr LS holding a grey object that he saw was a concrete paver. He said he went towards the male in an attempt to prevent Mr LS from being hit with the paver by another or others. The appellant pushed the guy with the paver away in order to spare Mr LS from a deadly attack. The appellant said (pars 50 – 59):
As I did this I felt something hard hit the back right hand of my head, behind my ear. I know it wasn't a fist that hit me because it was too hard, very sharp and made a dull sound like a solid object hitting you.
The first blow knocked me down to one knee. I was dazed and unable to get up.
I heard a male shout 'die you black cunt' I then looked up and saw a wedge shaped piece of concrete with a gravel pattern on it coming down towards my head.
The pointed end was coming straight down towards my head.
I was still unstable from the first blow and could not even put my hands up to protect myself before the concrete hit the top of my head.
I would describe the male holding the concrete as an older guy in his early 40s with dark short hair. He looked as though he didn't keep himself in shape and was of a medium build.
He was wearing a black jacket with a white or baby blue shirt underneath and a pair of jeans.
… this was a different person to the male who was attacking LS.
41 I accept the appellant was struck to the head by a member of the group. The racial abuse and aggression witnessed by Senior Constable Williams who saw and heard Mr C yelling at the unresponsive male (Mr LS) is consistent with the appellant's version of events. Further, the injuries to Mr LS were very serious indeed and were consistent with him being struck forcefully to the head with a concrete paver.
42 I find that Mr C or members of Mr C's group used at least one, if not more, than one concrete paver as a weapon to injure the appellant and Mr LS. The appellant was unarmed and the delivery of blows from the paver resulted in the appellant suffering bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause or be likely to cause permanent injury to health.
43 Section 297 of the Criminal Code states:
(1) Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 10 years.
44 The conduct of Mr C or members of his group in assaulting the appellant by using the paver was consistent with the criminal offence of grievous bodily harm.
45 I am also satisfied that the grievous bodily harm was unlawful. There is no evidence to support that the offenders' conduct in using the paver or pavers as a weapon was authorised, justified or excused by law.
46 The appellant did not commit any offence that evening.
Injury and loss
47 The appellant did not seek medical treatment immediately. He walked around for about three hours until he was located by one of his group who took him to Royal Perth Hospital Emergency Department. He was required to wait a significant period of time before he received the medical treatment he urgently required. A CT scan undertaken showed a depressed left anterior frontal skull fracture and a small left extradural haematoma. He underwent a craniotomy and elevation.
48 Following discharge, the appellant suffered intermittent headaches. He described head pressure and a sensation of tightness with occasional sharp pains. The pains would wake him at night. He suffered from occasional diplopia, blurred vision, frequent dizziness and light-headedness and felt tired and drowsy throughout the day. His memory and concentration had deteriorated and he had mood swings and was irritable and short-tempered. The appellant assessed that he was more emotional than he had been prior to injury.
49 The appellant has experienced flashbacks of the assault and he has been apprehensive around people. He has suffered from ongoing higher level cognitive and balance problems secondary to the post-traumatic brain injury.
50 The appellant was diagnosed by Associate Professor Aggarwal, senior staff specialist in rehabilitative medicine at Royal Prince Alfred Hospital, as having a likely degree of post-traumatic stress disorder and a high risk of post-traumatic seizures and by Dr Jung Le Qui in February 2012 as suffering from post-traumatic seizures.
51 Clinical neuropsychologist, Dr Breen, and psychologist, Ms Bapat, noted the appellant had cognitive deficits on testing consistent with the nature and severity of his head injury. The neuropsychologist also noted that he suffered severe depression, anxiety and stress, and symptoms of post-traumatic stress.
52 The appellant's problems continued on his return to the United States of America where he underwent further surgery in 2014 because of the significant pain and headaches he experienced from the screws and plates that had been inserted in 2010.
53 At the time of injury the appellant was a 31-year-old USA citizen who was in a long-term relationship. He had just commenced employment as a senior sales executive earning a base salary of $50,000 with an expectation of additional sums for sales commissions.
54 He was unable to return to work as a senior sales executive after the assault. He cannot take up this or other positions because of his continuing mental and physical struggles.
The award
55 Section 31 of the Act sets out that the maximum amount for a single offence that may be awarded is $75,000. I am satisfied that the appellant has suffered serious injury in consequence of the commission of the alleged offence and that the injury he has suffered includes bodily harm and mental and nervous shock.
56 I am also satisfied that the appellant has suffered economic loss. The appellant has estimated his loss of earnings at the time of this application at $225,000 gross. Although it is very difficult to quantify the loss because there are too many imponderables to pretend any calculated assessment I accept that his economic loss far exceeds the sum of $75,000: MW v CW [2001] WADC 234.
Reductions in the award
57 Although the appellant did not commence the altercation, he was not compelled to leave the footpath and follow the other four members of his group towards Mr C. It is appropriate to recognise that the appellant made a choice to go towards an aggressive situation in the early hours of the morning near to the nightclub precinct after he and others in his group had consumed alcohol and that he thereby contributed to the unlawful conduct that followed. A reduction in the amount that would otherwise be awarded of 10% pursuant to s 41(b)(ii) of the Act is appropriate.
58 A sum of $US 10,729.21 was paid by the USA Department of Veterans Affairs towards the appellant's medical expenses in Australia. Although there is no evidence that the sum directly related to the costs of medical services the appellant received in Australia it appears to have been paid directly to the Australian health service provider. When making the payment, the USA DVA advised the appellant that the payment was made in respect of authorised non-VA health care services and that the health care provider had been paid in full. The USA DVA had the potential to bill any health insurance carrier the appellant had used in order to recoup the cost of the medical services, however, there is no evidence that this occurred.
59 Section 42(3) of the Act relevantly states:
An Assessor must deduct from a compensation award in relation to any injury or loss suffered by a victim ... any amount that the victim ... has received by way of compensation or damages or under a contract of insurance for the injury or loss.
60 I need to determine whether the sum paid by the USA DVA was compensation paid to or on behalf of the appellant.
61 There is no statutory definition of 'compensation' in the Act. The meaning of the term was recently considered by Derrick DCJ in Cooper v Smith(Cooper) [2017] WADC 82.
62 Mr Cooper was a serving police officer injured as a result of an offence that occurred while he was on duty. Regulations and an agreement provided that the Commissioner of Police would pay reasonable medical and hospital expenses incurred by a member of the police force as a result of injury arising while in the course of duty. The commissioner also had discretion to pay an entitlement in respect of leave of absence pay.
63 The Commissioner of Police paid Mr Cooper $70,661.91 for medical treatment incurred and $32,653.96 for leave of absence pay in respect of his injury.
64 The issue considered by Derrick DCJ was whether the payments made by the Commissioner of Police had to be deducted from an award of compensation pursuant to s 42(3) of the Act.
65 His Honour said [64]:
[t]he medical payment was something that was given by the commissioner to make up for, or to offset, or to make amends for a debt or loss incurred by the appellant, namely the costs incurred by him in obtaining and receiving medical treatment for the injury suffered by him as a consequence of the commission of the offence.
66 His Honour held that the medical payment was compensation pursuant to s 42(3) of the Act.
67 I find the nature of the USA DVA payment to the appellant is analogous to the payment considered by Derrick DCJ in Cooper.
68 Counsel for the appellant submits that although some payments of this type may be considered compensation, the payment made in the appellant's case was a discretionary payment that was not linked to the appellant's past expenses and there is no evidence that it could not equally have been directed to the appellant's future medical expenses. If future expenses were reduced to account for the availability of the facility, then the sum would not need to be deducted from an award of compensation.
69 The appellant also submits that in the case of Liddiard [2008] WACIC 59, a decision of the assessor, the applicant for criminal injuries compensation was an Australian Veteran Affairs card that allowed him to claim treatment expenses. Although this was known to the assessor, she did not make a deduction pursuant to s 42(3) of the Act. This, it is submitted, would suggest that such a payment is not to be considered to be compensation. This submission carries little weight because the decision was not the subject of appeal and the assessor did not specifically consider the issue.
70 In the case of Cooper, although Derrick DCJ determined that the leave of absence payment was a discretionary payment, he still concluded that it fell into the category of compensation to be deducted because it was a sum given by the commissioner to make up for a debt or loss incurred by the appellant. I accept his Honour's reasoning.
71 Although the appellant was invited to lead further evidence in respect of the nature of the USA DVA payment, the appellant has chosen not to. There is no evidence that supports any conclusion other than that the payment by the USA DVA was made directly to the Australian health care provider and was not personally received by the appellant. Although it was a discretionary payment, it was used to pay for medical services that the appellant had received as a result of the offence prior to the determination of the application.
72 I also need to consider that the purpose of the Act is a limited one not directed towards universal provision of redress to victims of crime. In Baker v Stone [2015] WASCA 56 [45], Buss, Newnes & Murphy JJA said:
... The policy of the Act is evidently to provide a publicly funded means by which victims of crime can receive some payments of compensation for injury or loss incurred as a result of criminal activity 'in some circumstances' ... on the basis that there is to be a deduction from the award of the amount of compensation or damages which a victim receives from another source. In that manner, the limited public resources engaged by the Act are directed to victims of crime who would not otherwise be compensated for their injury or loss ... [It was] intended that the victim should exhaust other means of compensation available to him or her before there is any recourse to payment from the public purse.
73 Given the purpose of the Act, the principal of statutory construction that beneficial legislation should be construed liberally does not apply: Baker v Stone [36].
74 I find the USA DVA payment is a compensation payment and it must be deducted from any award made to the appellant.
75 The payment made by the USA DVA was made in US dollars on or about 30 May 2014. The official currency exchange rate on 30 May 2014 was that $AUD 1 was equal to .93101 $US. I have calculated $US 10,729.21 to be $AUD 11,524.25 at the relevant time.
76 In his application for compensation the appellant also referred to receiving the disability support pension paid under the Social Security Act 1991 (Cth). No information has been provided in relation to the payments that he received. I accept that he commenced receiving the pension payments around 8 July 2011, however, it is unclear when he stopped receiving payments. There is no evidence that the appellant has received any social welfare payments in the USA in respect of his disability and inability to work.
77 The Australian disability support pension is a compensation affected payment that is varied or altered by the payment of compensation. The receipt of compensation may, in some circumstances, mean that the pension will be reduced to account for the compensation received: Social Security Act, s 17(1).
78 Compensation is defined in s 17(2) of the Social Security Act as follows:
(2) Subject to subsection (2B), for the purposes of this Act, compensation means:
(a) ...
(b) A payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme;
(c) ...
(d) Any other compensation or damages payment; (whether the payment is in the form of a lump sum or in the form of a series of periodic payments and whether it is made within or outside Australia) that is made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury.
80 The purpose of social security payments is 'to provide benefits to a class of person who would be otherwise in impecunious or straitened circumstances': Re Kolakusic v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2009] AATA 132 [9].
81 The payment is not dependent on a recipient having a loss or having suffered an injury. It relates to a person's inability to work as a result of disability.
82 I do not consider the disability support pension received by the appellant to be compensation for loss or injury pursuant to s 42(3)(d) of the Act. There is no evidence that it was intended to make up for or to offset or to make amends for a debt or a loss.
83 I do not reduce the appellant's award of compensation as a result of his receipt of the pension.
84 Accordingly, the sum awarded is reduced by 10% pursuant to s 41(b)(ii) of the Act. A deduction of $11,524.25 is deducted from that sum pursuant to s 42(3) of the Act. I award the sum of $55,975.75 to the appellant.