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Ward v Davey

Ward v Davey

Case [2023] WADC 78 19 July 2023

Causation

Compensatory Damages

Loss of Earnings

Inferential Reasoning

Tort Law

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   WARD -v- DAVEY [2023] WADC 78
CORAM:   LEMONIS DCJ
HEARD:   30 MARCH 2023
DELIVERED          :   19 JULY 2023
FILE NO/S:   APP 50 of 2022
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   ALAN DAVID CRAIG WARD
Appellant
AND
CALEB FRANK DAVEY
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   C F HOLYOAK-ROBERTS
File Number            :   CIC 2095/2020

Catchwords:

Award of compensation made to respondent as a result of offence of assault occasioning bodily harm committed against him by the appellant - Appellant contends award is manifestly excessive - Extension of time needed to bring both compensation claim and appeal - Critical issue is whether headaches suffered by respondent are attributable to the assault - Availability of inferential reasoning where medical evidence recognises that the assault is a possible cause - Claim for loss of earnings in circumstances where no historical record of relevant earnings - Consideration of difficulties in assessment that then arise

Legislation:

Criminal Injuries Compensation Act 2003 (WA)

Result:

Award varied

Representation:

Counsel:

Appellant	:	Mr M Tolcon
Respondent	:	In person
Amicus Curiae	:	Ms S Walsh appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Terry Dobson Legal
Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

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

A v D (1994) 11 WAR 481
ATB v LA [2021] WADC 64
August v Lynch [2019] WADC 78
Blackwell v Warren [2018] WADC 127
East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis) [2020] WASCA 147
Hansen v Bolton [2017] WADC 25
Houlahan v Pitchen [2009] WASCA 104
Madigan v XYZ [2022] WADC 123
Mallard v Mallard [2022] WADC 71
Mangisi v Boehm [2021] WADC 76
Netline Pty Ltd v QAV Pty Ltd [2022] WASCA 131
Nurovic v Nurovic [2019] WADC 28
Re Jackamarra [2014] WADC 9
Re MJM [2021] WADC 104
Re Sunjich [2022] WADC 66
Savic v Duric [2021] WADC 53
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29
TAW v NJS [2011] WADC 187
Underwood v Underwood [2018] WADC 13
Woodward v Davies [2021] WADC 73

LEMONIS DCJ:

The respondent, Mr Davey, was the victim of a criminal offence committed by the appellant, Mr Ward on 8 August 2017. The offence was that of assault occasioning bodily harm. Mr Ward was convicted of the offence on 1 October 2020 after a trial in the Magistrates Court.
Mr Davey made an application on 17 December 2020 under the Criminal Injuries Compensation Act 2003 (WA) (the Act) for compensation for his injuries and loss suffered as a result of the offence.
By an award made 2 June 2022, the Chief Assessor awarded Mr Davey compensation in the sum of $56,617.35 itemised as follows:[1]
1.$50,000 for injuries;
2.$884 for reports;
3.$607.35 for treatment expenses;
4.$126 for travel expenses; and
5.$5,000 for…

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 Ward v Davey

Details

AGLC: Ward v Davey [2023] WADC 78
Case: [2023] WADC 78
Decision Date: 19 JULY 2023

CaseChat Overview and Summary

The case of Ward v Davey involved the appellant, who had been convicted of an assault occasioning bodily harm against the respondent. The respondent subsequently filed a claim for compensation for the injuries he suffered, which was granted by the court. The appellant, not satisfied with the amount of compensation awarded, appealed the decision, arguing that the award was excessively high. Additionally, the appellant sought an extension of time to bring both the compensation claim and the appeal. The central legal issue in this case was whether the headaches the respondent claimed to suffer were attributable to the assault. The court also had to consider the availability of inferential reasoning in light of medical evidence that acknowledged the assault as a potential cause. Another issue was the claim for loss of earnings where no historical record of the relevant earnings was available. This posed difficulties in assessing the claim, which the court had to address.

The court examined the medical evidence and found that it recognised the assault as a possible cause for the headaches the respondent experienced. The court determined that the use of inferential reasoning was permissible in this instance, as the evidence did not exclude the possibility of the assault causing the headaches. Regarding the claim for loss of earnings, the court acknowledged the difficulties in assessing the claim without a historical record of relevant earnings. However, the court found that the respondent had provided sufficient evidence to support his claim, taking into account the nature of his employment and the extent of his injuries. The court concluded that the award of compensation was not manifestly excessive and denied the appellant's request for an extension of time to bring both the compensation claim and the appeal.

In summary, the court found that the award of compensation made to the respondent was appropriate, given the medical evidence and the difficulties in assessing the claim for loss of earnings. The court rejected the appellant's argument that the award was excessively high and denied the request for an extension of time to bring both the compensation claim and the appeal. The court's decision was based on the evidence presented and the application of inferential reasoning, which allowed for a finding that the headaches suffered by the respondent were attributable to the assault. The final orders of the court were to uphold the award of compensation to the respondent and to deny the appellant's requests for an extension of time and a reduction in the compensation amount.

Orders