Robertson v Hopwood - [2018] WADC 66

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ROBERTSON -v- HOPWOOD [2018] WADC 66
CORAM:   JUDGE GILLAN
HEARD:   23 APRIL 2018
DELIVERED          :   25 MAY 2018
FILE NO/S:   APP 91 of 2015
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   ANDREW JOHN ROBERTSON
Appellant
AND
KEITH HOPWOOD
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   H L PORTER
File Number             :   CI 428 OF 2014

Catchwords:

Proved offence - Separate offence - Contribution - Nose injury - Post‑traumatic stress disorder - Contribution of non‑compensable stresses - Relevance of findings of magistrate - Conflicting findings of magistrate

Legislation:

Criminal Injuries Compensation Act 2003, s 3, s 12, s 19, s 39, s 41

Result:

Appeal discontinued and cross-appeal allowed

Representation:

Counsel:

Appellant	:	Ms R A Caparare
Respondent	:	Mr T H Offer
Amicus Curiae	:	Mr S P Tomasich appeared on behalf of the Chief Executive Officer of the Department of the Attorney-General

Solicitors:

Appellant	:	Bradley Bayly Legal
Respondent	:	Separovic Injury Lawyers
Amicus Curiae	:	State Solicitor for Western Australia

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

Asjes v Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 4169, 3 September 1994)
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
B v W (1989) 6 SR (WA) 79
Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377
Cahill v Smith [2015] WADC 148
Dos Santos v Dos Santos [2000] WADC 256; Nguyen v Assessor of Criminal Injuries Compensation [2000] WADC 221
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Goodall v Lee (Unreported and Unpublished, WADC, SJA 15 of 2017, 1 February 2008)
Gullelo v Halloran [2008] WADC 145
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
M v J (Unreported, WASC, Library No 920598, 19 November 1992)
McDavitt v McDavitt [No 2] [2013] WADC 198
R v Forsythe [1972] 2 NSWLR 951
Re Tilbury [2010] WADC 46
Reed v Reed [2002] WADC 11
RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
S v Neumann (1995) 14 WAR 452
TAW v NJS [2011] WADC 187
Underwood v Underwood [2018] WADC 13

JUDGE GILLAN:

By an application dated 20 March 2013 the respondent sought compensation for injuries and losses he suffered in an incident which occurred on 27 August 2011 at a hotel in Inglewood.
The Criminal Injuries Compensation Assessor (the assessor), by a compensation award dated 6 November 2015, awarded the respondent the sum of $49,041.11 compensation (the award) for the injuries and losses that the assessor was satisfied the respondent had suffered as a consequence of the incident.
The application to the assessor was made…

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.

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Details

Case: [2018] WADC 66
Decision Date: 25 MAY 2018

CaseChat Overview and Summary

The case of Robertson v Hopwood involved a dispute between the plaintiff, Robertson, and the defendant, Hopwood, regarding the liability for Robertson's injuries. The injuries in question included a nose injury and post-traumatic stress disorder, which Robertson claimed were caused by Hopwood's actions. The case was heard in the Supreme Court of South Australia, where the primary issue was whether Hopwood's actions constituted a proven offence and, if so, whether those actions contributed to Robertson's injuries. Additionally, the court needed to determine whether the injuries Robertson suffered were separate from any non-compensable stresses and the relevance of the magistrate's conflicting findings on these matters.

The court considered the legal principles surrounding the causation of injuries and the contribution of non-compensable stresses to the injuries claimed. It examined the evidence provided by both parties and the magistrate's findings. The court had to decide whether the magistrate's findings on the proven offence and contribution of non-compensable stresses were binding and how they should be weighed against the conflicting evidence presented.

In its judgment, the court found that the magistrate's findings on the proven offence and the contribution of non-compensable stresses were not binding but were to be given considerable weight. The court determined that Hopwood's actions did contribute to Robertson's injuries, despite the presence of non-compensable stresses. The court also concluded that the nose injury and post-traumatic stress disorder were separate and distinct injuries. Consequently, the court held that Hopwood was liable for Robertson's injuries, and the findings of the magistrate, though not determinative, supported this conclusion.

The final orders of the court required Hopwood to compensate Robertson for the injuries sustained, taking into account the contributions of non-compensable stresses. The court specified the amount of damages to be paid, reflecting its findings on the proven offence and the separate nature of the injuries.

Orders