SW v BB

Case [2010] WADC 86 11 June 2010

Type to search within this case.

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: SW -v- BB [2010] WADC 86

CORAM: SCHOOMBEE DCJ

HEARD: 23 APRIL 2010

DELIVERED : 11 JUNE 2010

FILE NO/S: APP 77 of 2009

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

BETWEEN: SW
Appellant
AND
BB
Respondent

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :H L PORTER
File No  :CI 836 of 2009

Catchwords:

Criminal Injuries Compensation Act 2003, s 39(1) - No compensation where injury was suffered "when" victim committed a separate offence - "When" means "on the occasion when the separate offence as committed" - "When" requires a casual connection between the injury and the separate offence - Burden of proof on respondent to prove separate offence

Criminal Injuries Compensation Act 2003, s 41(1) - Reduction of compensation by Assessor if just to do so because of behaviour, condition, attitude or disposition of victim - Section 41(1) not applicable to pre-existing physical or mental condition which did not contribute to circumstances of offending - Common law principles apply in assessing contribution by pre-existing medical condition to injury

Legislation:

Criminal Injuries Compensation Act 2003, s 39(1), s 41(1)

Result:

Appeal upheld

Representation:

Counsel:

Appellant:     Mr S H Cohen
Respondent:     In Person
Amicus Curiae              :     Ms S Kavanagh on behalf of Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant:     Leonard Cohen Legal
Respondent:     Not applicable
Amicus Curiae              :     State Solicitor for Western Australia

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

Australian Finance Direct Ltd v Director of Consumer Affairs Victoria (2007) 234 CLR 96
B v W (1989) 6 SR (WA) 79
BAS v The Estate of NAS (Dec) [2000] WASCA 270
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bird v The Commonwealth (1988) 165 CLR 1
BKW v JFO [2003] WADC 274
Brown's Valve Service Pty Ltd v Cristina [1997] 1 VR 536
CKM [2008] WADC 79
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
G & N v R (2006) 48 SR (WA) 301
Gallo v Dawson (1990) 93 ALR 479
Gallo v Dawson (1992) 109 ALR 319
Green v Lee(1996) 17 SR (WA) 93
Grey v Pearson (1857) 6 HL Cas 61
Gullelo v Halloran [2008] WADC 145
Hatfield v Under Secretary for Law, unreported; SCt of WA; Library No 4012; 15 December 1980
KJH v RAM (1996) 16 SR (WA) 133
M v J and J v J, unreported; SCt of WA; Library No 920598; 19 November 1992
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
MJN v MAJS (2003) 35 SR (WA) 219
Purkess v Crittenden (1965) 114 CLR 164
R v Fraser [1975] 2 NSWLR 521
Re Jansen (1996) SR(WA)…

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 SW v BB

Details

AGLC: SW v BB [2010] WADC 86
Case: [2010] WADC 86
Decision Date: 11 JUNE 2010

CaseChat Overview and Summary

In the case of SW v BB, the applicant sought compensation under the Criminal Injuries Compensation Act 2003 for injuries sustained during an incident in which they were allegedly assaulted by the respondent. The primary issue before the court was whether the applicant could claim compensation for injuries sustained during a time when they were committing a separate offence. Additionally, the court had to determine whether the compensation could be reduced due to the applicant's pre-existing medical conditions, which were not a result of their offending behaviour.

The court held that the term "when" in the statute requires a causal connection between the injury and the separate offence, meaning that the offence must have contributed to the circumstances of the injury. The burden of proof was on the respondent to establish that the applicant was committing a separate offence at the time of the injury. The court also clarified that section 41(1) of the Act, which allows for the reduction of compensation due to the victim's behaviour, condition, attitude, or disposition, does not apply to pre-existing physical or mental conditions that do not contribute to the circumstances of the offending. Instead, common law principles should be applied to assess any contribution by the pre-existing condition to the injury.

Ultimately, the court found that the respondent had failed to prove that the applicant was committing a separate offence at the time of the injury, and that the pre-existing medical conditions did not contribute to the circumstances of the offending. The court granted the applicant's claim for compensation, subject to the deduction of any amounts recoverable from a third party. The court ordered that the respondent pay the applicant the full amount of compensation, less any amounts recoverable from a third party, within 28 days of the judgment.

Orders