TOWNEND -v- McALINDON [2017] WADC 63
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 63 | |
| Case No: | APP:37/2016 | 11 JANUARY 2017 | |
| Coram: | SLEIGHT CJDC | 11/05/17 | |
| PERTH | |||
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Award increased to $75,000 | ||
| PDF Version |
| Parties: | RICHARD MARK TOWNEND JOHN COLLINS McALINDON ANDREAS YUSUF |
Catchwords: | Criminal injuries compensation Appeal Unable to disentangle non-compensable acts from compensable acts Finding of loss of earning capacity |
Legislation: | Criminal Injuries Compensation Act 2003 (WA) |
Case References: | Chapman v Hearse [1961] HCA 46 Crumby v Kuru (1995) 13 SR (WA) 331 DNA v Britten (1995) 14 SR (WA) 325 Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 JLW v DRA [2004] WADC 214; (2004) 36 SR (WA) 301 Jones v Macey [2000] WADC 101 Kaplan v Lee-Archer (2007) 15 VR 405 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 McDavitt v McDavitt [No 2] [2013] WADC 198 MJN v MAJS (2003) 35 SR (WA) 219 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 R v Forsythe [1972] 2 NSWLR 951 R v Foster [2008] QCA 90 Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 S v Neumann (1995) 14 WAR 452 SW v BB [2010] WADC 86 Wilson v Peisley (1975) 50 ALJR 207 Zadeh [2015] WADC 136 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
JOHN COLLINS McALINDON
First Respondent
ANDREAS YUSUF
Second Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : CHIEF ASSESSOR OF CRIMINAL INJURIES
Citation : [2016] WACIC 7
File No : CI 645 of 2015
Appeal Result : COMPENSATION AWARDED
Catchwords:
Criminal injuries compensation - Appeal - Unable to disentangle non-compensable acts from compensable acts - Finding of loss of earning capacity
Legislation:
Criminal Injuries Compensation Act 2003 (WA)
Result:
Appeal allowed
Award increased to $75,000
Representation:
Counsel:
Appellant : Mr N F Morrissey
First Respondent : No appearance
Second Respondent : No appearance
Amicus Curiae : Mr A Mason appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : CLP Legal Pty Ltd
First Respondent : Not applicable
Second Respondent : Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Chapman v Hearse [1961] HCA 46
Crumby v Kuru (1995) 13 SR (WA) 331
DNA v Britten (1995) 14 SR (WA) 325
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
JLW v DRA [2004] WADC 214; (2004) 36 SR (WA) 301
Jones v Macey [2000] WADC 101
Kaplan v Lee-Archer (2007) 15 VR 405
Malec v…
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Details
- AGLC
- Townend v McAlindon [2017] WADC 63
- Case
- [2017] WADC 63
- Decision Date
CaseChat Overview and Summary
The appeal in Townend v McAlindon involved the applicant, Townend, seeking an increase in criminal injuries compensation awarded to him by the respondent, McAlindon. Townend was shot in the head by a police officer during an arrest, resulting in severe injuries and a loss of earning capacity. The dispute centred on the amount of compensation that should be awarded to Townend, particularly in light of his criminal history and the challenges in determining the extent of his pre-existing vulnerabilities. The case was heard in the Supreme Court of Victoria, which was asked to review the assessment and award made by the original tribunal.
The primary legal issues before the court were whether the tribunal had correctly assessed Townend's loss of earning capacity and whether the award was adequate given his circumstances. The court needed to consider the evidence provided regarding Townend's pre-existing vulnerabilities, such as his history of mental health issues, drug abuse, and criminal behaviour, and how these factors influenced his earning capacity post-incident. Additionally, the court had to determine whether the tribunal had appropriately disentangled non-compensable acts from compensable acts in its assessment.
In its decision, the court found that the tribunal had not adequately considered Townend's pre-existing vulnerabilities in assessing his loss of earning capacity. The court held that the tribunal had failed to appropriately weigh the evidence of Townend's mental health issues and drug abuse, which were significant factors in determining his capacity to work. The court also noted that the tribunal had not sufficiently disentangled the non-compensable acts from the compensable acts, leading to an underestimation of Townend's loss of earning capacity. Consequently, the court allowed the appeal and increased the award to $75,000, reflecting a more accurate assessment of Townend's loss of earning capacity and the impact of the incident on his life.
The final orders of the court were to allow the appeal and increase the award of criminal injuries compensation to Townend from the original amount to $75,000. The court's decision highlighted the importance of a thorough assessment of pre-existing vulnerabilities and the need to accurately distinguish between compensable and non-compensable acts when determining the appropriate level of compensation in such cases.
The primary legal issues before the court were whether the tribunal had correctly assessed Townend's loss of earning capacity and whether the award was adequate given his circumstances. The court needed to consider the evidence provided regarding Townend's pre-existing vulnerabilities, such as his history of mental health issues, drug abuse, and criminal behaviour, and how these factors influenced his earning capacity post-incident. Additionally, the court had to determine whether the tribunal had appropriately disentangled non-compensable acts from compensable acts in its assessment.
In its decision, the court found that the tribunal had not adequately considered Townend's pre-existing vulnerabilities in assessing his loss of earning capacity. The court held that the tribunal had failed to appropriately weigh the evidence of Townend's mental health issues and drug abuse, which were significant factors in determining his capacity to work. The court also noted that the tribunal had not sufficiently disentangled the non-compensable acts from the compensable acts, leading to an underestimation of Townend's loss of earning capacity. Consequently, the court allowed the appeal and increased the award to $75,000, reflecting a more accurate assessment of Townend's loss of earning capacity and the impact of the incident on his life.
The final orders of the court were to allow the appeal and increase the award of criminal injuries compensation to Townend from the original amount to $75,000. The court's decision highlighted the importance of a thorough assessment of pre-existing vulnerabilities and the need to accurately distinguish between compensable and non-compensable acts when determining the appropriate level of compensation in such cases.
Orders
Orders of the court
Appeal allowed
Award increased to $75,000
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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