ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :R GUTHRIE
File No  :CI 984 of 2010

Catchwords:

Criminal Injuries Compensation Act 2003 - Appeal - Hearing de novo - Quantum - Future loss of earning capacity

Legislation:

Criminal Injuries Compensation Act 2003, s 17, s 30, s 31, s 55, s 56

Result:

Appeal allowed

Representation:

Counsel:

Appellant: Mr K S Pratt
Amicus Curiae : Ms K J Dodd

Solicitors:

Appellant: Stephen Browne
Amicus Curiae : State Solicitor for Western Australia

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

Asjes v The Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 4169, 23 September 1994)
Crumby v Kuru (1995) 13 SR (WA) 331
Gamser v Nominal Defendant (1977) 136 CLR 145
Gullelo v Halloran [2008] WADC 145
Hogben v Darcy [2009] WADC 63
S v Neumann (1995) 14 WAR 452

BRADDOCK DCJ: On the evening of Sunday, 2 November 2008, at around 7.30 pm, the appellant Stacey Anne Utting, a young woman then aged 26, was waiting outside the Cottesloe Hotel with her boyfriend with the intention of catching a cab home. Whilst Ms Utting was talking with her boyfriend she was struck in the right eye by an egg thrown from a passing motor vehicle, collapsed due to the force of the blow, and was assisted by her boyfriend and others at the scene. She was taken to Sir Charles Gairdner Hospital. Subsequently, she reported the incident to the police. Although enquiries were made, witnesses were unable to give sufficient particulars to enable the police to apprehend the person who threw the egg, and the CCTV footage obtained from the Cottesloe Hotel does not reveal anything sufficient to identify the vehicle or its occupants. Accordingly, no charges were ever laid in relation to the matter.
As a result of the blow to her eye, Ms Utting sustained injuries including permanent damage to the sight in her right eye.
On 1 September 2010, the Assessor of Criminal Injuries Compensation awarded Ms Utting the sum of $56,515. The award was made pursuant to an application under s 17 of the Criminal Injuries Compensation Act 2003 (the Act). Against this assessment Ms Utting appeals, by notice of appeal filed, within time, on 21 September 2010. The complaint is that the award of compensation for her injuries and loss of earning capacity was 'below the range of a sound award of compensation' and that the assessor was wrong in not awarding compensation in respect of all expenses incurred in obtaining reports required to present her claim.

The appeal

An appeal lies to this court by…

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 Re Utting

Details

AGLC: Re Utting [2011] WADC 10
Case: [2011] WADC 10
Decision Date: 31 JANUARY 2011

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent, Utting, against a decision of the Criminal Injuries Compensation Authority (CICA) to grant him compensation for future loss of earning capacity. Utting had sustained serious injuries during an assault, which resulted in a loss of his ability to work. The authority had awarded him compensation based on the loss of future earnings, and Utting appealed the quantum of the award. The court was required to determine whether the appeal was valid and, if so, whether the amount of compensation awarded was appropriate.

The legal issues before the court were whether the appeal was valid under the Criminal Injuries Compensation Act 2003 and whether the amount of compensation awarded was reasonable. The court had to consider the evidence presented and the applicable legal principles. The court also needed to decide whether the decision of the authority was open to review and, if so, whether it was correct or whether a different outcome should have been reached.

The court found that the appeal was valid and that the decision of the authority was open to review. The court considered the evidence and the applicable legal principles and determined that the authority had erred in its assessment of the loss of future earnings. The court found that the authority had not taken into account all relevant factors in making its assessment and that the amount of compensation awarded was inadequate. The court ordered that the matter be remitted to the authority for reconsideration of the quantum of compensation, with specific directions to take into account all relevant factors.

The court did not make any final orders in this case as the matter was remitted to the authority for reconsideration. However, the court's decision provided guidance to the authority on the appropriate approach to take in assessing future loss of earning capacity. The court's decision also clarified the legal principles that apply to appeals under the Criminal Injuries Compensation Act 2003 and the standard of review that applies to decisions of the authority.

Orders