McAllister v Stansbury
[2010] WADC 71
•18 MAY 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: McALLISTER -v- STANSBURY [2010] WADC 71
CORAM: SCHOOMBEE DCJ
HEARD: 11 FEBRUARY 2010
DELIVERED : 18 MAY 2010
FILE NO/S: APP 37 of 2009
MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: IAN CHRISTOPHER McALLISTER
Appellant
AND
STUART CHIDE STANSBURY
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram :H L PORTER
File No :CI 348 of 2008
Catchwords:
Criminal injuries compensation - Appeal from Assessor's refusal to award compensation for gratuitous services - Whether "compensation for injury" includes compensation for gratuitous services - Interpretation of s 6(2), s 12(1) and s 30(1) of the Criminal Injuries Compensation Act 2003 - Appeal regarding amount of compensation for pain and suffering and loss of amenities - Application for extension of time to file appeal - Application to lead further evidence on appeal
Legislation:
Criminal Injuries Compensation Act 2003, s 6(2), s 12(1) and s 30(1)
Result:
Appeal upheld in respect of increase of amount for pain and suffering and loss of amenities
Appeal dismissed in relation to compensation for gratuitous services
Representation:
Counsel:
Appellant: Mr J R Criddle
Respondent: In person
Amicus Curiae : Mr A K Sharpe appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant: J R Criddle
Respondent: Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
A v D (1994) 11 WAR 481
Ali Ahmed [2008] WACIC 57
Asjes v Assessor of Criminal Injuries Compensation, unreported; DCt of WA; Library No 4169; 23 September 1994
CSR Ltd v Eddy (2005) 226 CLR 1
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Griffiths v Kerkemeyer (1977) 139 CLR 161
Kars v Kars (1996) 187 CLR 354
M v J and J v J, unreported; SCt of WA; Library No 920598; 19 November 1992
Nguyen [2005] WACIC 70
Passaris v The Assessor of Criminal Injuries Compensation, unreported; DCt of WA, Library No D 990151; 1 June 1999
Re Bellini, unreported; DCt of WA; Library No 18.1 of 1972; 24 October 1972
Re Karra (1984) 2 SR (WA) 97
Re Kiernan (1979) 1 SR (WA) 286
Re Spicca [2008] WADC 22
RJE v Bandy, unreported, SCt of WA; Library No 1365; 31 May 1984
Van Gervan v Fenton (1992) 175 CLR 327
Vucen [2008] WACIC 41
SCHOOMBEE DCJ: On 6 January 2007 Mr McAllister was assaulted for no reason while he was standing on the lawn of his house smoking a cigarette. Mr McAllister was 60 years at the time of the assault. All that Mr McAllister remembered of the assault was that he heard yelling from the street around the corner and then saw a car drive towards his house and stop. A person who he now knows to be Mr Stansbury, got out of the car and walked towards Mr McAllister. Mr McAllister remembers greeting the person and his next recollection is being on the ground with his jaw hurting and his ribs being very sore. He found breathing difficult and his left shoulder was throbbing.
Mr McAllister attended Swan District Hospital and on examination was found to have suffered bruises and contusions to his eye, eyelids and peri-cular area. He was kept under observation for a period of three to four hours but then sent home with painkillers. Mr McAllister experienced extreme pain, particularly when he had to cough or take a deep breath. He saw his general practitioner the next day and a chest x‑ray revealed a small left pneumothorax (puncture of the lung) and fractures of the sixth, seventh and eighth ribs. Mr McAllister attended his doctor for further x-rays on a number of occasions to check for fluid on the lung, but otherwise received conservative treatment for his injuries. His general practitioner recorded in his notes that Mr McAllister was in a lot of pain and discomfort and required the use of strong analgesics. A little over two months after the incident the notes indicate that Mr McAllister's ribs still hurt with pressure and on deep inspiration, but he was otherwise well. No future problems were expected.
Mr Stansbury pleaded guilty to a charge of assault causing bodily harm under circumstances of aggravation by reason of Mr McAllister having been over the age of 60 years.
The Assessor's award
Mr McAllister applied for criminal injuries compensation and on 4 May 2009 the Assessor for Criminal Injuries Compensation awarded compensation to Mr McAllister in the amount of $5,500 for the injury and $176 for a medical report that he had obtained. The Assessor provided reasons for her decision on 28 May 2009.
The Assessor essentially relied on the facts as I have described them in awarding the amount of $5,500 for the injury. Mr McAllister had also set out in a statement furnished to the Assessor, dated 6 December 2008, that his partner had to provide gratuitous services in the form of nursing and home care for two hours per day for a period of one month after the assault. The commercial rate for undertaking such work was said to be $25 per hour.
The Assessor explained in her reasons for her decision that she did not award any compensation for gratuitous services because the definition of "loss" in s 6 of the Criminal Injuries Compensation Act 2003 ("the Act") does not include gratuitous services, and as Mr McAllister did not outlay any costs in paying for domestic help, he was not entitled to compensation for "such notional expenses". The Assessor referred, amongst other decisions, to Re Spiccia [2008] WADC 22 and Nguyen 2005] WACIC 70 in support of her decision.
The appeal
Mr McAllister filed a notice of appeal against the decision of the Assessor on 11 June 2009. Pursuant to s 55(3) of the Act an appeal must be commenced within 21 days after the date of the Assessor's decision. The appeal was therefore filed 17 days out of time.
The notice of appeal includes an application to extend the time for the filing of the appeal and asks that the compensation award in the amount of $5,676 be set-aside and in place thereof compensation be awarded in such greater sum as the court deems appropriate. The notice of appeal contains a single ground as follows:
"The assessment of the Chief Assessor is substantially below an appropriate assessment for the nature and extent of the injuries suffered by the Appellant and failed to have any or proper regard to the significant period of incapacity caused by the injuries. The pain associated with the Appellant's fractured ribs rendered him incapable of self-care and of undertaking his normal routines for a period of 13 weeks after the assault."
After the hearing of the appeal Mr McAllister filed an application to amend his notice of appeal by the addition of the following ground:
"That the Chief Assessor erred in failing to award compensation for gratuitous services."
the Court allowed the application because the issue whether compensation was available for gratuitous services under the Act was fully ventilated at the hearing.
The hearing of the appeal
At the hearing of the appeal Mr McAllister applied to give oral evidence in support of his appeal. The proposed oral evidence was set out in a proof of evidence provided to the court, Mr Stansbury and counsel appearing on behalf of the Chief Executive Officer. Counsel for the Chief Executive Officer indicated that he did not wish to cross‑examine Mr McAllister with regard to the evidence in the proof and the court accordingly admitted the proof of evidence by Mr McAllister, dated 11 February 2010, into evidence. This order was made on the basis that s 56(2)(c) allows the District Court to make any order that an Assessor could have made under the Act and pursuant to s 19(1)(c) of the Act an Assessor may receive any information or evidence that the Assessor thinks necessary.
Counsel for Mr McAllister submitted that in light of the further evidence set out in the proof of evidence the amount of $5,500 awarded by the Assessor for the injury was inadequate and that the court should award a more appropriate amount. Counsel for Mr McAllister relied on the many decisions which have established that the principles upon which compensation is to be assessed under the Act are the same as those which apply to an action for damages for personal injury (see, for example, A v D (1994) 11 WAR 481 at 487 and M v J and J v J, unreported; SCt of WA; Library No 920598; 19 November 1992).
Counsel for Mr McAllister also initially submitted that s 10A of the Civil Liability Act 2002 allows a court to refer to earlier decisions of that court or other courts for the purpose of establishing an appropriate award of damages for non-pecuniary loss. However, this submission was withdrawn when counsel for Mr McAllister realised that reliance on the Civil Liability Act would have wider implications as it would limit any award for gratuitous services. Counsel for the Chief Executive Officer submitted that the Civil Liability Act had no application to the Act and relied on the decision in Asjes v Assessor of Criminal Injuries Compensation, unreported; DCt of WA; Library No 4169; 23 September 1994 at 7 – 8, where Commissioner Nisbet held that a comparison of awards of damages for personal injuries in other cases was not an effective means of quantifying damages because of the inability of the court to know that it was comparing like with like. It is therefore not necessary for present purposes to decide whether the Civil Liability Act governs compensation awards made under the Act.
Counsel for Mr McAllister further submitted that the Assessor erred when she declined to allow compensation for gratuitous services supplied to Mr McAllister by his partner.
Accordingly the following three issues need to be decided on this appeal:
1.Whether an extension of the time for filing of the notice of appeal should be granted;
2.Whether the compensation of $5,500 allowed for the injury should be increased on the basis of the additional evidence received;
3.Whether an award of compensation for gratuitous services should be made.
After the start of the hearing of the appeal Mr Stansbury arrived at court. I explained to him the issues under consideration and Mr Stansbury indicated that he had no objection to any such orders being granted and also not to the amount of compensation being increased. He told the court that he came to apologise to Mr McAllister for the assault on him and explained that unbeknown to himself he was suffering from schizophrenia and psychosis at the time of his offending. On that day he had been kicked out of his mother's house which was in the vicinity of Mr McAllister's house and he heard voices which were calling him racial names such as "black cunt". The only person that he could see was Mr McAllister standing on his front lawn and he ran up to him and told to him to "shut up" and assaulted him. Mr Stansbury explained that since the incident he had been placed under the care of the Department of Mental Health and had been given suitable medication.
Although he did not have any objection to the amount of compensation being increased, Mr Stansbury indicated that he was unlikely to be able to pay that compensation as he was about to lose his employment because his employer was getting divorced and might have to sell his business. I explained to Mr Stansbury that the State would initially pay any amount of compensation awarded to Mr McAllister and that it was up to the State whether it would seek reimbursement from Mr Stansbury.
The fact that Mr Stansbury may have difficulty in paying the compensation awarded is not relevant in deciding what type of compensation should be awarded or in fixing the amount.
Extension of time for filing of notice of appeal
The notice of appeal was filed 17 days out of time. Counsel for Mr McAllister explained that this occurred by reason of an oversight on his part and that he was acting pro-bono on behalf on Mr McAllister.
Section 55(4) of the Act provides that the court may allow an appeal to be commenced after the 21 days if it is just to do so. Counsel for the Chief Executive Officer or Mr Stansbury did not raise any objection to leave being granted by this Court.
It is well established law that in exercising its discretion to allow an extension of time for the filing of an appeal a court should consider the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198. Another factor that has often been taken into consideration is that the oversight which resulted in the delay was not attributable to the appellant but to his solicitors: Esther Investments Pty Ltd v Markalinga Pty Ltd (supra) at 202. In light of the short period of the delay and the fact that the delay was not attributable to Mr McAllister but to his solicitor, I am prepared to grant an extension of the time for the filing of the notice of appeal to 11 June 2009, the date on which it was filed. I can see no particular prejudice to Mr Stansbury because of the short delay and the fact that additional evidence has been presented to the court on appeal also means that there is an arguable case.
Increase of amount allowed for the injury
The Assessor stated in her reasons that the sum of $5,500 was awarded for the pain and suffering that Mr McAllister had experienced as a consequence of the broken ribs, bruises and contusions that he had suffered. In Mr McAllister's statement, dated 6 December 2008, he only briefly referred to the fact that he had sustained facial injuries and broken ribs and that this had caused him physical pain. He stated that the injuries had prevented him from playing golf for a period of three months after the incident and from feeding and tending to the horses which he had on agistment. The statement explained that Mr McAllister’s partner had to provide nursing and home care to him for two hours per day for a period of one month and had to attend to the horses on his behalf for five hours per day for a period of 12 weeks. Mr McAllister said in his statement that the commercial costs for the domestic and nursing care was $25 per hour and for the work with the horses $20 per hour.
The content of the proof of evidence submitted at the hearing of the appeal deals in much greater detail with Mr McAllister's injuries and particularly the pain and suffering that he endured. Mr McAllister said that the pain resulting from the broken ribs was initially at a scale of 9 out of 10 and increased every time he had to cough or take a deep breath. He also experienced pain in his jaw and around his eye. With medication the level of pain reduced to approximately 6 or 7 out of 10, but increased every time Mr McAllister made a sudden movement, coughed or laughed. Mr McAllister said that he had to visit his general practitioner every two days for the first week so that x-rays could be taken to check for fluid on the lung as a result of the puncture. Mr McAllister stated that getting in and out of the car led to an increase in pain to levels of 8 or 9 out of 10. During that first week, Mr McAllister was unable to undertake any physical activity and spent his time lying in bed or sitting on a chair. His partner had to make all meals and attend to all housework.
Mr McAllister also attended hydrotherapy for two to three weeks on a daily basis and thereafter for a month once or twice a week. The pain gradually eased over a four week period with the assistance of pain killers, but these caused constipation which in turn led to severe pain in the rib area.
Mr McAllister explained that he was unable to play golf for a period of three months after the incident and even after that time was restricted in his backswing for another five or six months. Mr McAllister again referred to the fact that he was unable to attend to the horses on agistment and that his partner had to do so for five hours per day on his behalf for a period of three months. It appears that the agistment was undertaken by Mr McAllister on a gratuitous basis.
In CSR Ltd v Eddy (2005) 226 CLR 1 at [68] and [113] the High Court held that special damages were not to be awarded in common law for the loss of a plaintiff's capacity to perform gratuitous services for the benefit of a third party. However, it was accepted that a plaintiff's lost capacity to gratuitously assist others was compensable under the heading of general damages, as it constituted a loss of amenity or loss of enjoyment of life (per Gleeson CJ, Gummow and Heydon JJ at [71] and per McHugh J at [114]).
Accordingly, while Mr McAllister is not entitled to an award of special damages for his loss of capacity to attend to the horses on agistment, his inability to do so may be taken into account as part of his loss of amenities and enjoyment of life. It appears from the reasons provided by the assessor that she did not take this aspect of Mr McAllister's loss of amenities into account when she assessed the amount of compensation to be awarded to him.
The loss of capacity to care for himself and attend to domestic duties, such as preparing meals, is also a matter which a court may take into account as part of the loss of amenities and ability to enjoy life. Mr McAllister explained in his statement that during the first week his partner had to make all the meals and undertake all the housework which was previously shared between them. Being unable to participate in domestic duties and having to impose upon his partner to nurse him and undertake all the housework represents a loss of an amenity, or, at least, if Mr McAllister did not find pleasure in doing the domestic chores, a loss of the ability to feel that he made a fair contribution to domestic demands and did not impose upon his partner.
Mr McAllister also provided more detail in his proof of evidence regarding the level of pain experienced and the time for which this continued. In light of the additional information provided by Mr McAllister the appeal on this ground should succeed and the amount of compensation for the pain and suffering and loss of amenities and enjoyment of life experienced by Mr McAllister should be increased. I shall deal with the appropriate amount after having considered whether the Act allows for compensation for gratuitous services.
Whether compensation for gratuitous services available under the Act
The next question is whether compensation for gratuitous services is available under the Act and whether an award of compensation for the gratuitous services supplied by Mr McAllister's partner should have been made by the Assessor. Section 12(1) of the Act provides that a person who suffers injury as a consequence of the commission of an offence may apply for "compensation for the injury and any loss also suffered".
"Compensation" is not defined in the Act but "injury" is defined as follows:
"3.…
injury means bodily harm, mental and nervous shock; or pregnancy;"
The Act also defines "loss" by stating in s 6(2) that:
"(2)In the case of a victim who is injured, loss means —
(a)expenses actually and reasonably incurred by or on behalf of the victim —
(i)that arise directly from; or
(ii) that arise in obtaining any report from a health professional or a counsellor in relation to,
the injury suffered by the victim;
(b)expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim;
(c)loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim; or
(d)any loss arising from any damage caused as a direct consequence of the commission of the offence to any personal item that was being worn by the victim when he or she suffered the injury."
Counsel for Mr McAllister submitted that in assessing damages for personal injuries in tort damages for gratuitous services are usually considered to be part of general damages and that an award of compensation for gratuitous services was included under the Act in the words "compensation for the injury". Counsel for Mr McAllister conceded that the need for gratuitous services was not included under the definition of "loss".
Counsel for Mr McAllister referred to Kars v Kars (1996) 187 CLR 354 where Dawson J explained at 360 – 361 that damages for gratuitous services are awarded as compensation for the loss suffered by reason of the injury and that the loss manifests itself in the form of a need for those services. Dawson J held that the need does not have to be productive of financial loss and that the damages awarded for gratuitous services are therefore general damages. They are incapable of precise mathematical calculation and, although the value of the services provided will ordinarily be a guide to quantifying the damages, they remain at large until quantified.
Counsel for Mr McAllister also relied upon the principle of statutory interpretation that the greater includes the lesser and submitted that if the legislature had intended to exclude gratuitous services from compensation to be awarded under the Act, it would have done so in the same manner as damages for gratuitous services have been restricted in respect of claims for personal injury by reason of the provisions of the Civil Liability Act. Section 12 of that act allows for damages for gratuitous services, but only if the claim exceeds a certain amount and limits any award of damages for gratuitous services that exceeds that amount. Counsel for Mr McAllister pointed out that similar provisions limit damages for gratuitous services awarded pursuant to the Motor Vehicle (Third Party Insurance) Act 1943 and the Worker's Compensation Injury and Management Act 1981.
In light of the provisions of s 12 of the Civil Liability Act Counsel for Mr McAllister resiled from his initial submission that the Civil Liability Act was applicable to the Act. Counsel for the Chief Executive Officer submitted in additional written submissions supplied to the Court that the Civil Liability Act was not intended to apply to the Act as the purpose of each Act was quite different, the Civil Liability Act referred to "damages" while the Act dealt with "compensation", and there was no express reference in either act to the other.
Before any decision can be made whether the Civil Liability Act applies to the Act and whether an award for gratuitous services is therefore restricted by s 12 of the Civil Liability Act, the first question that needs to be dealt with is whether the legislature intended that an award for gratuitous services should be available as part of the compensation allowed for under the Act.
The submission by counsel for Mr McAllister that damages for gratuitous services are a head of general damages and that they were intended be allowed as "compensation for the injury" has some force. It appears, that the legislature intended to differentiate in the Act between "compensation for the injury", which seems, on the face of it, to encompass general damages, and "compensation for any loss", which appears to encompass special damages. However, on closer examination, the traditionally accepted categories in personal injury law of "general damages" and "special damages" do not fit neatly into the structure of the Act. This is because "loss of earnings suffered" are specifically listed in the definition of "loss" in s 6(2), and in A v D (supra) at 489 Pidgeon J held that the words "loss of earnings suffered" includes loss of future earning capacity. Loss of future earning capacity is traditionally seen as an item of general damages (see Kars v Kars (supra) at [361]).
However, the traditional division of damages for personal injury into general damages and special damages is no longer given the importance that was once attached to it. Gleeson CJ, Gummow and Hayden JJ stated in CSR Limited v Eddy (supra) at [39] that it may not matter how damages are categorised except in order to preserve continuity with traditional linguistic usage. Their Honours referred to damages for gratuitous services as an exception to the traditional categorisation of damages, as the diminished capacity of an injured plaintiff to look after his personal and domestic needs was compensated by what their Honours described as "special damages".
In Griffiths v Kerkemeyer (1977) 139 CLR 161 at 179, Stephen J also referred to the fact that as damages for gratuitous services were directed at compensating the plaintiff for his need for those services and did not necessarily have to be productive of financial loss, but, on the other hand, were usually calculated on the basis of notional expenditure, the distinction between the categories of "special damages" and "general damages" became unreal.
Lunz, "Assessment of Damages for Personal Injury and Death", 4th ed [1.6.1] points out that there is a lack of consistency in distinguishing the terms "special damages" and "general damages" in different areas of the law, at different times, and in different jurisdictions in Australia and suggests that it could be dangerous to attach substantive consequences to the distinction between them.
Another way of differentiating between various categories of damages is to separate them into "non-pecuniary damages", that is, damages arising from loss which is not measurable in money, and "pecuniary damages" which relates to loss which may be measured in money or is at least calculated by reference to notional expenditure or income. Lunz, op cit, follows this categorisation in chapters 3 and 4. Lunz treats damages for gratuitous services as an item of damages for pecuniary loss even though the loss is seen as a need by the plaintiff for those services and it is not necessary to show that the need is such that it would ordinarily be met only at some financial cost to the plaintiff: Van Gervan v Fenton (1992) 175 CLR 327 at 333.
It is therefore also possible that the legislature by providing for "compensation for injury" and “compensation for loss” had in mind to differentiate between non‑pecuniary damages and pecuniary damages, with the latter category including damages that are calculated by reference to notional expenditure or income. If this categorisation was adopted, compensation for gratuitous services would be expected to have been listed in the definition of "loss".
Counsel for the Chief Executive Officer submitted in oral submissions at the hearing that the words "compensation for the injury" was restricted to general damages, such as damages for pain and suffering and loss of amenities, as "injury" meant bodily harm, mental and nervous shock, or pregnancy. If I understood counsel for the Chief Executive Officer correctly, his contention was that "compensation for the injury" must have some direct connection with the body or mind of the injured person. However, this still begs the question regarding the meaning of "compensation" and whether the incapacity by the injured person to look after his own personal hygiene and domestic needs is similar to the incapacity to enjoy recreational activities and other amenities.
Damages for gratuitous services have often been described as an anomaly: Kars v Kars (supra) at 368. This is because, on the one hand, they are to compensate an incapacity by the plaintiff to look after his own personal and domestic needs which does not have to result in financial loss and which is similar to the incapacity to enjoy amenities, but, on the other hand, they are usually calculated by reference to notional expenditure while damages for loss of amenities are not.
Counsel for the Executive Officer relied on the decision in Re Spiccia (supra) at [32] where Groves DCJ held that compensation for gratuitous services is not available under the Act, as the need for gratuitous services is not specifically listed under the definition of "loss" in s 6(2) and gratuitous services are not “expenses actually incurred”. His Honour came to the conclusion that there was no jurisdiction under the Act to award compensation for "the anomalous common law head of damages for gratuitous services". It does not appear that the submission that compensation for gratuitous services is covered by the words "compensation for the injury" in s 12(1) of the Act was argued before Groves DCJ in Re Spiccia.
The decision in Re Spiccia has been followed in numerous decisions by the Assessor of Criminal Injuries Compensation, for example, Ali Ahmed [2008] WACIC 57 at [25] and Vucen [2008] WACIC 41 at [52].
The history of the Criminal Injuries Compensation Act 2003
It may be helpful to trace the history of the Act as the first Criminal Injuries Compensation Act was enacted before the High Court recognised the existence of a right to damages for gratuitous services. The finding that damages for gratuitous services were available to compensate for a need by the plaintiff to be assisted with personal and domestic care and that this represented a loss, was first recognised in Griffith v Kerkemeyer (supra) in 1977.
The first act, the Criminal Injuries (Compensation) Act 1970 did not include a provision for compensation for loss. Section 4(1) of the 1970 Act provided that compensation could be awarded by a Judge up to the amount of $2,000 "by way of compensation for injury suffered by that person by reason of the commission of the offence". The 1970 Act defined "injury" as bodily harm, pregnancy, mental shock and nervous shock.
The second reading speech for the Bill which preceded this act indicated that the 1970 Act was intended to be an avenue for recovering damages in addition to those claimable in common law in order to provide for a situation where the offender was a person of no substance or where the perpetrator of the criminal act went unidentified or died or was beyond the reach of the law (Hansard, 16 September 1970, p 804).
In Re Bellini, unreported; DCt of WA; Library No 18.1 of 1972; 24 October 1972, Pidgeon DCJ (as he then was) came to the conclusion that the words "compensation for injury" limited the compensation to "the bodily effects directly arising from the injury such as pain and suffering and the inconvenience and inability to enjoy life". Pidgeon J held that s 4(1) was not intended to extend to compensation for economic loss or loss of wages by the applicant, as this was “a loss incurred by reason of him having an injury as distinct from actually compensating him by money for the pain, suffering and loss of enjoyment of life that arises from the injury”. Pidgeon J referred to McGregor "On Damages", 13th ed, in which the distinction between pecuniary and non-pecuniary losses is drawn. McGregor states that pecuniary losses comprise all financial and material loss incurred, such as loss of income and medical treatment, and that non-pecuniary loss comprises all losses which do not represent an inroad upon a person's financial or material assets, such as physical pain or injury to feelings. His Honour then came to the conclusion that s 4 by its definition of "bodily injury" aimed to limit the compensation to those factors which are referred to as non-pecuniary loss, such as pain and suffering and the impairment of enjoying life.
The Law Reform Commission conducted a review of the 1970 Act and produced a report in 1975. One of the issues considered was whether this act should include pecuniary losses. The report came to the following conclusions in this regard:
"36. Most commentators were of the view that the basis of an award should be the same as in tort, although the Crown Law Department considered that hospital and medical expenses should not be recoverable, and that compensation should not be awarded for indignity or outrage ….
37. The Commission considers that the general principle should be that compensation as for a tort action should be payable, excluding exemplary or aggravated damages, and subject to any maximum that might be imposed".
The report then referred to the Criminal Injuries Compensation Act in Victoria which allowed compensation for pecuniary losses and pain and suffering of the injured person.
Following upon the Law Reform Commission Report the 1970 Act was amended by the Criminal Injuries (Compensation) Act Amendment Act 1976 by allowing in s 4(1) for compensation for the injury and loss suffered and by adding the following definition of "loss" in s 2(b):
"'Loss', if incurred or claimed to have been incurred by a person seeking compensation for himself, means any loss of the following kinds caused by or directly arising from injury, namely loss of earnings, loss arising from damage to items of personal apparel and loss arising from the necessity to provide or repair spectacles or contact lenses, hearing aides, artificial teeth or any artificial limb or like surgical appliance for relieving disablements suffered by the person."
In 1982 the scheme for awarding criminal injuries compensation was taken away from the District Court and placed in the hands of the Chief Assessor for Criminal Injuries Compensation. A completely new act was passed which introduced a scheme administered by the Chief Assessor for Criminal Injuries Compensation and increased the maximum amount of compensation to $15,000. However, the provisions dealing with an award for compensation remained essentially unchanged. Pursuant to s 7(1) of the Criminal Injuries Compensation Act 1982 a person who had suffered injury or loss in consequence of the commission of an offence was still entitled to "compensation for that injury or loss". The definition of "loss" was reworded, but continued to limit compensation to pecuniary losses. Section 3 of the 1982 Act defined "loss" as follows:
"Loss, if incurred or claimed to have been incurred –
(a) by an applicant seeking compensation for himself, means any loss of the following kinds caused by or directly arising from injury –
(i) expenses actually and reasonably incurred by the applicant or by a person responsible for the maintenance of the applicant;
(ii) loss arsing from damage to items of the personal apparel of the applicant; and
(iii) loss of earnings suffered by the applicant;
… "
The availability of damages in tort for gratuitous services was recognised by the High Court in Griffith v Kerkemeyer (supra) in 1977. However, the 1982 Act does not include a need for gratuitous services in the definition of "loss". Gratuitous services do not qualify as "expenses actually incurred", as the essence of gratuitous services is that the provider is not paid for his or her services. An applicant for criminal injuries compensation may, of course, recover actual expenses incurred in hiring and paying outside help to assist with his or her personal and domestic care (CRS Ltd v Eddy (supra at [31]), but this is not the case in respect of Mr McAllister.
In the second reading speech to the Bill preceding the 1982 Act the Honourable Mr Rushton, Deputy Premier, explained that it was not seen as economically realistic to make the taxpayer the unlimited and comprehensive insurer of crime victims. He said that in this respect the compensation amount differed from civil damages in tort which embraced concepts of future economic loss (Hansard, 20 October 1982, p 4053).
In 1985 further substantial amendments were made to the criminal injuries compensation scheme and a new act, the Criminal Injuries Compensation Act 1985 was proclaimed. However, the wording of s 7(1), allowing for compensation for "injury or loss", was not amended nor was the definition of the word "loss".
In 2003 the 1985 Act was repealed and the Criminal Injuries Compensation Act 2003 was enacted. The 2003 Act (which I have referred to as "the Act") reworded the definition of "loss" and extended it by adding expenses reasonably incurred for the future treatment of the injured person, although an award in respect of such expenses is not to be paid unless proof is provided to the satisfaction of the Assessor that the expenses have been incurred.
It is apparent from an overview of the history of the Act that pecuniary losses were initially not provided for and that they were incrementally introduced. The 1976 Amendment Act introduced compensation for loss of earnings and loss arising from damage to personal items or the need to obtain hearing aids, vision aides or surgical appliances. The 1982 Act extended the definition of "loss" to some degree by providing that any expenses actually and reasonably incurred and caused by or directly arising from the injury were recoverable. Although damages for gratuitous services had by then been recognised by the High Court, the 1982 act did not refer to gratuitous services. The 2003 Act introduced compensation for future treatment to be reasonably incurred by the injured person.
The incremental additions to the definition of "loss" indicate that the legislature intended that only such pecuniary losses should be recoverable under the criminal injuries compensation scheme as were specifically set out in the relevant act under the definition of “loss”.
Decisions stating that compensation under the Act is to be assessed in the same way as damages for personal injury in tort
Counsel for Mr McAllister placed considerable reliance on the fact that it has been held in a number of decisions that the principles for assessing compensation under the Act are the same as those applying to the assessment of damages for personal injuries in tort.
The Law Reform Commission recommended in 1975 that compensation under the criminal injuries compensation scheme should be the same as that for an action in tort, excluding exemplary or aggravated damages. In the second reading speech of the bill preceding the 1976 Amendment Act, the Honourable I J Medcalf, Attorney General, stated that the Bill was based substantially on the Law Reform Commission Report (Hansard, 9 September 1976, p 2366). However, the 1976 Amendment Act did not include a general provision to the effect that all pecuniary losses were compensable as in the law of personal injuries in tort, but instead introduced compensation for certain pecuniary losses such as loss of earnings and damage to items of personal apparel, spectacles, artificial teeth and artificial limbs and like appliances.
Further, the statements made in the various decisions that compensation under the Criminal Injuries Compensation scheme should be assessed in a similar manner as damages for personal injury in tort, need to be read in their context. After the enactment of the 1970 Act Pidgeon DCJ (as he was then was) considered in Re Bellini (supra) at 6 whether compensation under the 1970 Act should be assessed in the same manner as damages for personal injury. This question was raised in the context of whether the then applicable maximum amount of $2,000 should be interpreted as a scale whereby the maximum was reserved for the worst cases and progressively diminished or whether compensation should be assessed in the same manner as in tort subject to an overall limit of $2,000 applying. Pidgeon DCJ came to the conclusion that there was no difference between the concept of "damages" as applied to claims for personal injury in tort and "compensation" as referred to in the 1970 Act. Pidgeon J relied on "Halsbury's Laws of England", 3rd ed, 216, where damages were defined as:
"… the pecuniary compensation which the law awards to a person for the injury he has sustained by reason of the act or default of another – or put more shortly damages are the recompense given by process of law to a person for the wrong that another has done to him."
It was in this context that his Honour came to the conclusion that the concept "compensation" under the 1970 Act was not any different to the concept of "damages" awarded in tort.
In RJE v Bandy unreported, SCt of WA; Library No 1365; 31 May 1974, at 3 Burt J also came to the conclusion that the assessment of compensation under the 1970 Act should be similar to the assessment of damages in tort. This issue was raised in the context of the question whether an applicant under the criminal injuries compensation scheme should be entitled to be compensated for his or her feelings resulting from being drawn into unpleasant court proceedings or by the reaction of his or her friends or relatives to the events which had happened to the applicant. Burt J came to the conclusion that "compensation for injury" did not allow for such compensation.
In Re Kiernan (1979) 1 SR (WA) 286 at 289 Heenan J referred to Re Bellini (supra) and RJE v Bandy (supra) and came to the conclusion that in respect of the 1970 Act, as amended in 1976, compensation should be assessed "by applying the ordinary principles of assessment of damages, subject to the maximum amount imposed by the Act".
In Re Karra (1984) 2 SR (WA) 97 at 100 – 101, Heenan J, in interpreting the 1982 Act, referred to RJE v Bandy and held that it was now well established that the principles upon which compensation was to be assessed were the same as those applying in an action for damages for personal injury. This statement was made in the context of his Honour coming to the conclusion that an award should not be measured so as to demonstrate the community’s regret for the deterioration in the applicant's mental health nor in order to encourage her on the road to recovery. It should also not be a symbol of society's acceptance of responsibility for failing to protect her.
In A v D (supra) at 487, which was decided in 1994, Pidgeon J, with whom Nicholson and Ipp JJ concurred, held that after the 1976 amendment it became well established that the principles upon which compensation was to be assessed under the 1970 Act were the same as those which applied to an action for damages for personal injury. His Honour relied on RJE v Bandy, Re Karra and Re Kiernan in this regard. Pidgeon J also noted that applying the principles relevant to an action for damages for personal injury was consistent with the fact that the 1976 Amendment Act had been based substantially on the Law Reform Commission Report, as stated in the second reading speech of the Bill preceding the 1976 Act (Hansard, 9 September 1976, p 2366). Pidgeon J then came to the conclusion that the words "loss of earnings" in s 2(b) of the 1976 Act included loss of future earning capacity.
In Passaris v The Assessor of Criminal Injuries Compensation, unreported; DCt of WA, Library No D 990151; 1 June 1999 at 5, Nisbet DCJ dealt with the 1985 Act and accepted that the court was required to apply the ordinary principles of the assessment of damages in a civil action to an assessment under the 1985 Act, subject to the maximum amount imposed.
In Re Spiccia at [6] Groves DCJ dealt with an award of compensation under the 2003 Act and came to the conclusion that the correct approach was to apply the ordinary tortious principles for assessment of damages, subject to the limitation imposed by the definition of "injury" in the Act and subject also to the maximum limit imposed by the Act.
The earlier decisions dealing with the question whether compensation under the criminal injuries compensation scheme should be assessed in a similar manner to the assessment of damages for personal injury in an action in tort decided this issue in the context of considering whether damages should go beyond the well established limits for rewarding non-pecuniary damages and whether matters such as distress occasioned by court proceedings or by conduct of relatives and friends should be compensated. Other issues that arose in this context were whether the Act provided for a sliding scale of compensation with the maximum being the maximum amount stated in the relevant act or whether the maximum amount merely capped an award that went beyond it.
The statements likening the assessment of compensation in criminal injuries cases to the assessment of damages in tort were not made in the context that all heads of non-pecuniary or pecuniary damages that are traditionally awarded in personal injuries claims are also recoverable under the criminal injuries compensation scheme. This does not appear to have been the intention of the legislature as indicated by the incremental introduction of compensable items of non-pecuniary loss. The statements in earlier decisions that criminal injuries compensation is to be assessed on the same principles as those applying to an action for personal injures in tort therefore need to be seen in context.
Conclusion
The history of the enactment of the various Criminal Injuries Compensation Acts, the incremental introduction of awards for pecuniary loss and the apparent intention of the legislature to provide a limited scheme for the compensation of victims, indicate that the legislature did not intend to include an award for gratuitous services in the 2003 Act or in any of the preceding acts.
The fact that compensation for pecuniary losses was initially not allowed for in the 1970 Act and was only introduced by the addition of the words “and loss” in s 3(1) of the 1976 Amendment Act shows that compensation for all pecuniary losses was meant to be limited to those losses specifically listed in the definition of "loss". A specific award for gratuitous services is generally seen as a head of pecuniary loss because compensation for the need for gratuitous services is calculated by reference to notional expenditure. A need for gratuitous services is not listed under the definition of "loss" in s 6 of the Act, and a specific award of compensation for gratuitous services is therefore not recoverable under the Act.
The finding that a specific award of compensation for gratuitous services is not available under the Act means that it is not necessary to decide whether the Civil Liability Act applies to the Act and whether it could therefore limit any such award. It was not argued by either counsel that the Civil Liability Act limits the award of non-pecuniary compensation allowed for under the Act.
The fact that a specific award for compensation for gratuitous services is not available under the Act does not mean that the Assessor should not take into account in assessing compensation "for the injury", that is, for non-pecuniary loss, that the loss of capacity by the victim to attend to his or her own personal care or domestic tasks may have resulted in a loss of amenities or enjoyment of life. The availability of general damages for the loss of capacity to provide services to third parties or organisations and the loss of capacity to perform domestic services at home has been recognised in the law of tort: CSR Ltd v Eddy at [39].
A victim of a criminal injury may also be entitled to bring a civil action in tort and may recover a specific sum for gratuitous services in that manner. Pursuant to s 42(3) of the Act any damages recovered "for injury" are to be deducted by the Assessor from a compensation award. If the victim of an injury had recovered a specific sum of damages for gratuitous services in tort, he or she would not be entitled to have the lost capacity to attend to personal needs and domestic duties included in the assessment of an award of compensation for the injury.
Accordingly, Mr McAllister's appeal in relation to the Assessor's refusal to allow a specific sum for compensation for gratuitous services is dismissed, but I have taken the loss of his capacity to look after himself for his personal and domestic needs into account in assessing the award of non-pecuniary compensation to be made to Mr McAllister, that is, his compensation "for the injury". In making that assessment I have also taken into account Mr McAllister's loss of amenities and enjoyment of life in not being able to attend to the horses on agistment.
I have come to the conclusion that in light of the further evidence provided to this Court and upon taking into account Mr McAllister’s loss of capacity to look after his personal and domestic needs for the period of one month, the award of compensation for his injury should be increased to $10,000. The award of $176 for the medical report will stand.
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