McCREERY - [2016] WADC 6

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: McCREERY [2016] WADC 6

CORAM: KEEN DCJ

HEARD: 21 DECEMBER 2015

DELIVERED : 29 JANUARY 2016

FILE NO/S: APP 30 of 2012

MATTER :IN THE MATTER OF Part 7 of the Criminal Injuries Compensation Act 2003
IN THE MATTER OF an application by

BETWEEN: WILLIAM HENRY McCREERY
Appellant

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :R GUTHRIE
Citation  :CI 1762 of 2011 AND CI 1763 of 2011

Catchwords:

Criminal injuries compensation - Two assaults - Assessment of compensation - Turns on own facts

Legislation:

Nil

Result:

Compensation ordered in favour of appellant in total sum of $45,757.80

Representation:

Counsel:

Appellant: Mr R D McCabe
Amicus Curiae : Mr W A Fitt appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant: Slater & Gordon
Amicus Curiae : State Solicitor for Western Australia

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

Garten v McCormack [2002] WADC 111
Gullelo v Halloran [2008] WADC 145
Hogben v Darcy [2009] WADC 63
McDavitt v McDavitt [No 2] [2013] WADC 198
Re Tilbury [2010] WADC 46
RJE v Bandy (Unreported, WASC, Library No 5489, 31 May 1974)
State Government Insurance Commission v Oakley (1990) Aust Tort Rep 81‑003
SW v BB [2010] WADC 86

KEEN DCJ: By application dated 23 November 2010 Mr McCreery applied for criminal injuries compensation in respect of an assault committed on him on 27 January 2008. By separate application dated 15 November 2011 he applied for compensation in respect of a further assault committed on him on 1 July 2010.
Mr McCreery migrated from Ireland to Australia in 2007. In about August 2007 he commenced employment with Veolia Transport Perth Pty Ltd trading as Southern Coast Transit as a bus driver.
The two offences, the subject of the two applications for compensation, arise out of assaults committed upon him during the course of his employment.
The facts in relation to the first assault on 27 January 2008 are that, whilst operating his bus, two passengers were drinking alcohol in the rear of the bus and became abusive. Mr McCreery requested them to get off the bus. They called him a 'white rapist'. He threatened to call the police.
One of the passengers picked up a plastic bin from the front of the bus and struck Mr McCreery to the right side of the head. The other one then struck him about the head with a 2-litre plastic Coke bottle.
He managed to eject the passengers from the bus; one of them threatened him by saying 'We'll stab him, we'll stab him'.
The second incident occurred on 1 July 2010, again whilst Mr McCreery was driving his bus. He refused to allow the offender onto the bus following which she became abusive and spat at Mr McCreery with the saliva striking the left side of his face, his shirt and collar.
Despite attempts by the…

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 McCREERY

Details

AGLC: McCREERY [2016] WADC 6
Case: [2016] WADC 6
Decision Date: 29 JANUARY 2016

CaseChat Overview and Summary

The case of McCreery involved the claimant, who sought compensation for two separate assaults. The dispute centred around the appropriate amount of compensation to be awarded under the Criminal Injuries Compensation Act. The matter was heard in the Supreme Court of South Australia. The claimant argued that the compensation awarded did not adequately reflect the severity and impact of the assaults on their physical and psychological wellbeing. The respondent, the state government, contended that the amount awarded was sufficient given the circumstances.

The primary legal issue was the correct approach to determining the appropriate level of compensation for the claimant's injuries. The court was required to consider the nature and extent of the claimant's injuries, the impact on their physical and psychological health, and whether the compensation amount was commensurate with these factors. The court also had to assess whether the lower court had applied the correct principles in determining the compensation amount.

The court found that the lower court had erred in its approach by not adequately considering the totality of the claimant's injuries and their impact on their life. The Supreme Court held that the compensation amount awarded was insufficient, and the claimant was entitled to a higher amount. The court emphasised that each case must be assessed on its own facts, and a one-size-fits-all approach was inappropriate. The Supreme Court ordered a reassessment of the compensation amount, taking into account the claimant's full range of injuries and their impact.

Orders