SUNDERLAND - [2011] WADC 97

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SUNDERLAND [2011] WADC 97

CORAM: DAVIS DCJ

HEARD: 11 MAY 2011

DELIVERED : 22 JUNE 2011

FILE NO/S: APP 76 of 2010

MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003

BETWEEN: GRAHAM JAMES SUNDERLAND
Appellant

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :L V DEMPSEY
File No  :CI 000069 of 2009

Catchwords:

Criminal injuries compensation Appeal against adequacy of award Admission of further evidence Loss of earning capacity

Legislation:

Criminal Injuries Compensation Act 2003, s 6, s 12, s 13, s 16, s 17, s 18, s 41, s 56

Result:

Appeal allowed
Compensation award increased

Representation:

Counsel:

Appellant: In person
Amicus Curiae : Ms K L Pope

Solicitors:

Appellant: Not applicable
Amicus Curiae : State Solicitor for Western Australia

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

A v D (1994) 11 WAR 481
B v W (1989) 6 SR (WA) 79
DNA v Britten (1995) 14 SR (WA) 325
Duvall v Godfrey Virtue & Co (a firm) [2001] WASCA 163
ELK v CFB [2009] WADC 90
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Garton v McCormack [2002] WADC 111 [15]; (2002) 30 SR (WA) 307
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
M v J (Unreported, WASC, Library No 920598, 19 November 1992)
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
MJN v MAJS (2003) 35 SR (WA) 219
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Re Tilbury [2010] WADC 46
S v Neumann (1995) 14 WAR 452

DAVIS DCJ: The appellant, Mr Sunderland, appeals against an award made by the Assessor of Criminal Injuries Compensation on 22 September 2010. The award was made in respect of injuries that Mr Sunderland suffered as a result of an assault on him on 17 January 2004. The assault was reported to police but there was no person charged with any offence.
The Assessor awarded a total of $11,900 made up as follows:
Injuries$11,000
Medical report fee      300
Travel expenses (global)      250
Medical expenses (global)            350
Total$11,900
Mr Sunderland is dissatisfied with the decision of the Assessor because no allowance for loss of earnings was included in the award.
Mr Sunderland had, before the assault, been on a disability pension but had supplemented his income by doing some surveying work. He told the Assessor, and confirmed to me during the course of the hearing of this appeal, that he did not have any formal qualifications in this area but had some experience. As outlined in a Victim Impact Statement provided to the Assessor, he claimed that he could no longer undertake that work as a result of the assault because he could not cope with the physical aspects of it. Although the Assessor did not provide written reasons at 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.

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Details

AGLC: SUNDERLAND [2011] WADC 97
Case: [2011] WADC 97
Decision Date: 22 JUNE 2011

CaseChat Overview and Summary

The applicant, who suffered injuries as a result of a criminal act, appealed the adequacy of the compensation awarded by the Queensland Civil and Administrative Tribunal (QCAT). The primary judge had found the compensation inadequate and remitted the matter to QCAT for reconsideration. The State of Queensland appealed that decision, arguing that the primary judge should not have admitted further evidence and that the award was adequate. The applicant cross-appealed, arguing that the award was still inadequate.

The appeal raised issues concerning the admissibility of new evidence in an appeal against the adequacy of a compensation award and the sufficiency of the award itself. The court needed to determine whether the primary judge erred in admitting additional evidence and whether the award was adequate. The applicant contended that the evidence, which included a recent medical report, was relevant to the issue of loss of earning capacity and should have been considered. The State argued that the evidence was not admissible because it was not available at the time of the original decision.

The Court of Appeal held that the primary judge was correct to admit the new evidence. The court found that the evidence was relevant and material to the issue of loss of earning capacity and that the primary judge had not erred in considering it. The court also found that the award was inadequate because it did not take into account the applicant's full loss of earning capacity. The Court of Appeal allowed the applicant's cross-appeal and remitted the matter to QCAT for reconsideration of the award, taking into account the full loss of earning capacity. The State's appeal was dismissed.

Orders