R v Southee; Ex Parte

[1990] TASSC 15

Serial No 9/1990
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              R v Southee; ex parte Jackson [1990] TASSC 15; A9/1990

PARTIES:  R
  v
  SOUTHEE, Richard Carter; ex parte Jackson

FILE NO/S:  M437/1989
DELIVERED ON:  12 April 1990
JUDGMENT OF:  Cox J

Judgment Number:  A9/1990
Number of paragraphs:  15

Serial No 9/1990
List "A"
File No M437/1989

R v RICHARD CARTER SOUTHEE; ex parte JACKSON

REASONS FOR JUDGMENT  COX J

12 April 1990

1. Return of an order nisi for a Writ of Certiorari.

1. The prosecutrix, a woman aged 59 years, was bitten by a dog on 21 September 1988 when she attended a Housing Department home in the course of her duties as a Welfare Officer. The owner of the dog was convicted of an offence pursuant to s35 of the Dog Control Act 1987 in that the dog caused bodily injury to the prosecutrix who was lawfully on the premises.

1. The prosecutrix sustained a laceration of approximately 2 centimetres in length on the back of her left leg and just below the knee. The wound was cleaned and sutured and she was given a tetanus injection. Whilst her physical injury healed without any significant disability apart from the scar, she was emotionally disturbed by the frightening incident and was referred by her general practitioner to a psychologist for specialist treatment.

1. She sought an award of compensation pursuant to the Criminal Injuries Compensation Act 1976 (the Act), the application being heard by the Master on 15 November 1989. The Master noted that both counsel for the prosecutrix and counsel for the Crown were agreed that for the purposes of the application before him, he should accept as a fact that the prosecutrix had received payment of medical expenses and wages during her incapacity for work as a result of the injury, such entitlement arising by virtue of the Workers' Compensation Act 1927. He also noted that the Crown conceded criminal conduct for the purposes of the Act and the absence of any adequate civil remedy.

1. Section 4(7) of the Act provides:

"4–(7)   No compensation shall be awarded under this Act

(a)  in respect of any death or injury in respect of which compensation is, or would but for this Act be, payable under any law of the State or of the Commonwealth or of any other State or Territory of the Commonwealth that relates to the payment of compensation by an employer in respect of the death of, or bodily injury to, persons in his employment resulting from accidents occurring in connection with that employment; or

(b)  in respect of a death or injury caused by or arising out of the use of a motor vehicle (as defined in the Traffic Act 1925)".

1. The Master held that in view of the fact that compensation under the Workers' Compensation Act was payable in respect of the injury sustained by the prosecutrix, he had no jurisdiction to make an award. She seeks to overturn that decision by Writ of Certiorari.

1. The Act provides for compensation to be paid out of public funds to the victims of criminal conduct. It can fairly be described as a remedial Act and should be construed liberally, provided this can be done without undue straining of the language of the Act. (Fleming v White; Gamble v Hills [1981] 2 NSWLR 719 and Re Applications of Foster [1982] 2 NSWLR 481). A relevant matter to be considered by the Master, to whom the making of awards under the Act is entrusted, is the adequacy or otherwise of any remedy in respect of the conduct complained of in civil proceedings. Thus s5(4) provides:

"5–(4) The Master may refuse to make an award to any person in respect of any criminal conduct if he is satisfied that person has, or had, an adequate remedy in civil proceedings in respect of that conduct, and in determining the amount of any such award he shall take into account any amount recovered by or for the benefit of that person, by way of damages or compensation arising from the criminal conduct, or would, in the opinion of the Master, be likely to be so recovered, if proper action was taken by that person or on his behalf."

1. The civil proceedings mentioned are not confined to actions against the wrongdoer. The Master must take into account any amount recovered by the victim in civil proceedings by way, not only of damages, but also of compensation arising from the criminal conduct.

1. Section 4(3) is in these terms:

"4–(3)   In respect of the death or injury of a victim the compensation awarded under this Act may be so awarded in respect of any one or more of the following matters:–

(a)  Expenses actually and reasonably incurred as a result of the injury or death;

(b)  Pecuniary loss to the victim as a result of his total or partial incapacity for work arising from the injury;

(c)  Pecuniary loss to the victim's dependants as a result of the death;

(d)  The pain and suffering of the victim arising from the injury."

Section 4(4) is also important and provides:

"4–(4)   No compensation shall be awarded under this Act by way of exemplary or vindictive damages or by way of aggravated damages, nor, except as provided in subsection (2), for loss of, or damage to, property."

1. It was submitted on behalf of the prosecutrix that the prohibition on recovery of compensation under the Act imposed by s4(7) should be construed as a prohibition on recovery of such compensation which would otherwise be payable under the Act were it not recoverable as compensation under some other Act, such as the Workers' Compensation Act 1927. In other words, as compensation under the Act may be awarded for the pain and suffering of the victim arising from the injury (s4(3) para(d)) but is not payable under this head under the Workers' Compensation Act, s4(7) does not apply to compensation of that kind. It was submitted that the object of s4(7) was essentially to bar double recovery.

1. I am unable to accept this submission. I have already mentioned s5(4) which obliges the Master to take into account the recovery of damages or compensation payable in civil proceedings arising from the criminal conduct complained of. If compensation for any one or more of the four heads of damages mentioned in s4(3) is recoverable under the Workers' Compensation Act, it must be taken into account by the Master and no further provision such as s4(7) would be necessary. The same would be true in respect of amounts recovered under the Motor Accidents (Liabilities And Compensation) Act 1973.

1. Though the Act is remedial in the sense that it gives the victims of crime an added opportunity to recover compensation for the injuries they have sustained and for which they might be unable for reasons such as the impecuniosity of the wrongdoer to recover anything, it does not seek to indemnify the victim in respect of his losses. Save in respect of property damage suffered by a person in assisting a police officer as mentioned in s4(1), no compensation is payable in respect of damage to property nor may it be awarded by way of exemplary or vindictive damages or by way of aggravated damages. While it is payable in respect of pain and suffering, it is not said to be payable in respect of the loss of amenities or of the general enjoyment of life, although these categories are not necessarily completely mutually exclusive. Parliament, in my view, had a discernible purpose in excluding from the operation of the Act altogether those persons who either by virtue of Workers' Compensation legislation or, as is indicated by s4(7) para(b), by reason of the third party legislation affecting victims of motor vehicle accidents were thought to already have a reasonable remedy funded by the public at least indirectly in the form of payment for goods and services inflated to meet the workers' compensation premiums paid by their producers or in the form of third party premiums.

1. It might be thought that the prosecutrix is in an anomalous position being only able to receive compensation for medical expenses and a temporary loss of wages from her employer, while another person who had no such entitlement against an employer might be awarded compensation not only in respect of those losses and expenses, but also in respect of pain and suffering for the undoubtedly unpleasant injuries and their sequelae suffered by the prosecutrix. But had her injuries been more prolonged her entitlement under the Workers' Compensation Act to indemnity in respect of medical expenses and indefinite incapacity for work might well exceed by far the maximum amount payable under the Act.

1. In my view, the wording of s4(7) is clear and unequivocal. It was Parliament's intention that a person entitled to workers' compensation or a person injured in a motor vehicle accident should have, in addition to such rights as he might have against the wrongdoer personally, no more and no less rights than any other citizen would have under legislation governing injuries at work or arising out of the use of a motor vehicle. In some cases these rights may be more advantageous to the person entitled than the remedy given by the Act; in other cases such as the present, they would appear to be less, but the scheme of the Act is clear and its language unambiguous.

1. In my view, the Master was right in his construction of the section. The order nisi will be discharged.