Criminal Injuries

KREMER -v- SANDFIRE RESOURCES NL [2020] WADC 130

On 2 November 2015, the Defendant company, Sandfire Resources, hosted a Melbourne Cup event at their DeGrussa copper and gold mine some 900km North East of Perth. As part of this event, the employees were encouraged to engage in various team activities. The final such activity was a relay race in which the participants were required to run around a cricket field with a wooden ‘hobby-horse’ between their legs. The Plaintiff, Mr Kremer, was a participant in this race and alleged that as he and another co-worker were rounding a left-hand turn, the co-worker tripped him from behind, causing him to fall on his outstretched arm and suffer injury.

It was alleged by the Plaintiff that the Defendant was negligent for its failure to provide adequate supervision of the attendees, failure to provide adequate supervision of the race, and failure to conduct any or any adequate risk assessment. The Plaintiff further alleged that the Defendant was vicariously liable for the negligent actions of the co-worker who tripped him.

The operative issue before the court was whether the co-worker intentionally or otherwise tripped the Plaintiff, or if he merely fell over his own feet or his wooden hobby-horse. The court was presented with many various accounts of the incident from multiple witnesses, each with varying degrees of accuracy and credibility. The judge, Troy DJC, was required to make a determination of the facts in the face of conflicting evidence. The principle the judge needed to consider was whether the evidence in favour of the Plaintiff went beyond reasonable speculation and guesses, and whether he was actually persuaded as to the probability of a fact being true.

He said “The test of balance of probabilities is not satisfied by evidence which fails to do more than establish a possibility. No court should act upon mere suspicion, surmise or guesswork in any case.” In personal injury cases, the ultimate burden of proof rests with the Plaintiff to prove that the injury suffered occurred as a result of the Defendant’s conduct.

With this in mind, the judge concluded that the evidence before him was not strong enough to persuade him that the Plaintiff had been tripped. Multiple witnesses said that he was not tripped, the Plaintiff never made any assertions to friends that he was tripped, and he merely recorded that he had ‘fallen’ on his workers’ compensation claim form.

In the absence of being tripped, the Judge found that the Plaintiff did not have a case against the Defendant, saying that the Defendant had done everything that could be expected of a company organising such an event. No amount of training or supervision would have prevented the injury from occurring.

Furthermore, the judge found that even if the co-worker had tripped the Plaintiff, the Defendant would not have been vicariously liable for the actions of the co-worker. This is because the act of tripping the Plaintiff during the event was entirely unconnected to the co-worker’s employment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

RE GOODWIN [2020] WADC 128

This case was an appeal against decision of a criminal injuries assessor. The primary issue that the court had to decide upon was the application of Western Australian state laws to Commonwealth places generally and, more specifically, whether the Criminal Injuries Compensation Act 2003 applies to a Commonwealth place by virtue of the Commonwealth Places (Application of Laws) Act 1970.

The appellant had applied for compensation pursuant to s 17 of the Criminal Injuries Compensation Act 2003 (WA) (Act) for injuries suffered by him following two separate assaults in Immigration Detention Centres.

The first such assault occurred at Yongah Hill Immigration Detention Centre and the second assault occurred at the Christmas Island Immigration Detention Centre.

The assessor granted compensation in the sum of $7,597 in relation to the Christmas Island assault, but refused to make an award of compensation to the appellant in relation to the Yongah Hill assault on the basis that she did not have jurisdiction to do so.

The Court enunciated several important principles relating to appeals in the Criminal Injuries Compensation matters. These include:

1. The court has a wide discretion is deciding the appeal and may determine the appeal without being bound, in any way, by the assessor’s decision; and
2. That the appeal is to be decided without regard to the reasons for the decision of the assessor; and
3. That the court may decide the application solely on the evidence and information that was in possession of the assessor or may receive further evidence and information and that the admission of such further evidence may be done without the necessity for a formal application being made; and
4. The court may of its own increase or decrease any award to an amount that the court feels is fair and reasonable and proportionate; and
5. Awards of this nature are a compensation for the injury suffered and not a punishment of the offenders.

Yongah Hill is in the state of Western Australia and not far from Perth whereas Christmas Island is approximately 1500km off the coast of Western Australia. Both Yongah Hill Immigration Detention Centre and Christmas Island Immigration Detention Centre are designated as Commonwealth places but there are different laws that apply.

Pursuant to the Christmas Island Act the laws of Western Australia apply to the territory of Christmas Island to the extent that they are not inconsistent with Commonwealth legislation or the Constitution. Furthermore, the courts and judicial officers of Western Australia have jurisdiction over Christmas Island pursuant to the Territories Law Reform Act 1992 (Cth). Therefore, even though Christmas Island is Commonwealth territory Western Australian law applies to it. Importantly, reg 6(d) of the Christmas Island (Courts) Regulations 2018 defines courts of Christmas Island to include the Chief Assessor of Criminal Injuries Compensation, or an Assessor of Criminal Injuries Compensation, appointed under Schedule 1 to the Act.

Therefore, the court concluded that the Act applies to injuries sustained during the course of an offence committed at the Christmas Island Detention Centre and, further, for a number of reasons, increased the compensation received by the victim.

Despite being located within the State of Western Australia different considerations applied to Yongah Hill Immigration Detention Centre. The Constitution (Cth) gives the Commonwealth Parliament exclusive legislative power to make laws with respect to Commonwealth places. However, the Commonwealth Places (Application of Laws) Act 1970 (Cth) and the Commonwealth Places (Administration of Laws) Act 1970 (WA) have the effect of making state laws into federal laws in relation to Commonwealth places.  Therefore, the Act applies to Yongah Hill Immigration Detention Centre. Importantly however, the court found that an assessor does not have federal jurisdiction to grant compensation for criminal injuries compensation sustained at Yongah Hill Immigration Detention Centre because an assessor could only be vested with federal jurisdiction if:

“1. the assessor is so empowered pursuant to s 7(1) of the COPAL Act (Cth) by virtue of being a ‘court of the State’; or

2. a gazetted arrangement applied because an assessor was neither a ‘court of the State’ and was not exercising judicial power.”

The court concluded that even though the assessor exercises judicial power (not administrative power) it is not ‘a court of a State’ and that there was no gazetted arrangement. Therefore, neither of those routes vested jurisdiction in the assessor to make an award.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

NUROVIC -v- NUROVIC [2019] WADC 28

On 1 April 2014 the appellant pleaded guilty to unlawfully assaulting the respondent on 27 December 2013 and thereby doing her bodily harm in circumstances of aggravation. The respondent subsequently lodged a claim for criminal compensation pursuant to the Criminal Injuries Compensation Act 2013 (WA) (the Act) and on 10 October 2018 was awarded $47,821.95 by the assessor.

The appellant appealed that decision on the grounds that:

• he only pleaded guilty as a result of incompetent legal advice;
• he did not break the respondent nose; and
• the respondent had a pre-existing medical condition.

In regard to the claim that the appellant received incompetent legal advice the court stated that “…if the appellant wished to dispute that he assaulted the respondent he should have pleaded not guilty and the matter would have gone to trial. In the four years since the plea he has not sought to appeal his guilty plea. He cannot now controvert his plea or the material facts that were read to the court upon sentencing”

In regard to the claim the appellant did not break the respondent’s nose the court stated that “…no challenge was made to that fact that the assault had caused the broken nose. The appellant cannot come to this court and say that his blow did not break her nose. If he wished to challenge the assertion which was clearly made at the court on both 1 April 2014 and 14 October 2014, he should have raised the issue then and there and it would have been dealt with by the magistrate. It cannot now be raised”

In relation to any pre-existing medical condition suffered by the respondent before the broken nose the court found “…there is absolutely no evidence that she had a pre-existing condition that would have meant her nose would have been broken in any event. Whilst any pre-existing nasal difficulty may have left her predisposed to a broken nose, the appellant simply takes his victim as he finds her”.

The respondent claimed additional loss of past and future earning capacity (the Court been allowed to received new and further evidence) and the Court stated that “…ultimately the respondent claim for past loss of earnings is really based on the fact that she had significantly more time off after the incident than she did prior to the incident and therefore she says she should be award compensation to reflect her loss of income”. However, the Court was not satisfied on the balance of probabilities that the respondent had made a case for loss of future earning capacity. Whilst it accepted that the respondent was fearful of losing her job because of the time she took off work and that the evidence established that she becomes withdrawn, the evidence also shows she was then working full-time and would be able to for the foreseeable future.

The court proceeded to increase the award and assessed it at $50,384.29 for injuries and losses in respect of the proved offence”

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

(CHIN -v- DAYMASTER PTY LTD [2018] WADC 80)

On Tuesday, 28 December 2010, shortly after closing time at the Home Hardware & Plumbing store (store), the plaintiff (Ms Chin), was assaulted in an attempted armed robbery of by three men, including the second defendant (Mr Hall).

The store was owned and operated by the first defendant, Daymaster Pty Ltd (Daymaster). At the material time, Mr Hall was employed at the store by Daymaster. Following the attempted robbery, Mr Hall and two others pleaded guilty to an offence of aggravated assault upon Ms Chin with intent to commit a robbery. Ms Chin sought to recover damages from Daymaster in respect of her injury, loss and damage sustained as a result of the assault upon her person.

Daymaster accepted that, as the occupier of the store, it had a duty of care towards Ms Chin, as a customer, to see that she would not suffer injury or damage (duty of care). The Court was required to establish the scope of Daymaster’s duty of care by answering whether:

• the store manager was negligent by permitting the Ms Chin entry into the store after hours when all perimeter doors were not locked;
• Mr Hall was acting in the scope of his employment with Daymaster, and if so, whether he was negligent in failing to ensure that all perimeter doors were locked;
• Daymaster is vicariously liable for any alleged negligence of the store manager and/or Mr Hall, respectively; and
• Daymaster failed to assess risk following the breakdown of its CCTV system over the cash tills used in the store.

The thrust of Ms Chin’s claim was that Daymaster, through its staff, did not comply with the store closing procedure by allowing Ms Chin into the store after hours when the rear sliding door had not been locked. Ms Chin’s case is that the store’s staff failed to lock this door, thereby allowing Mr Hall, the other two offenders and Ms Chin access into the building being causative of the assault.

In cases of this nature, the law states that where the nature of the harm suffered by a visitor to a premises (store) was physical injury inflicted by a third party over whose actions the occupier had no control, the relevant duty must be a duty related to the security of the visitor.  It must have been a duty to take reasonable care to protect the victim from conduct, including criminal conduct, of the third party. In such circumstances, it is exceptional to find in law a duty to control the actions, including criminal conduct, of another person to prevent harm to strangers, unless the case is one of a special relationship involving a duty to control that other person’s actions. It is trite that criminal behaviour is unpredictable and that is one reason why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.

Regarding vicarious liability, the law states that for an employer to be vicariously liable for the wrongful act of its employee, that act must have been committed in the course or scope of employment.  The difficulty is often in determining that course or scope of employment.  This can be tested by asking whether the act was authorised by the employer or was an unauthorised mode of doing some act authorised by the employer or even an unauthorised act, provided the act was so connected with authorised acts that it may be regarded as a mode, although an improper mode, of doing it.

The Court concluded that:

• Ms Chin had failed to prove a special relationship with Daymaster, or that there is something exceptional about her status in the store as a customer, when the three offenders attempted to rob the store and assaulted her.  Although she was there after hours, the store had been secured to protect her.  Her injuries were not caused by any want of care on the part of Daymaster.  Rather, the injuries resulted from the criminal act of the offenders, over which Daymaster had no control, given the manner in which those offenders acted, Mr Hall’s acts were not committed in the course or scope of his employment;
• that the duty of care extended to Ms   Chin in those circumstances, the claim nonetheless failed because there was no breach of that duty which caused injury;
• aside from Mr Hall unlawfully hiding in the store and opening the rear sliding door, being a criminal act over which the manager and Daymaster did not have control, the store was otherwise secure for the purpose of Ms Chin’s safety. The manager was not negligent.  Ms   Chin’s injury was not caused by any want of care by the manager;
• evidence points to the store closing policy having been adhered to by its employees, whether they knew it accorded with a written policy or not.  Mr Hall’s criminal activity, together with his two co-offenders, was the sole cause of Ms Chin’s injury. It cannot be said that Mr Hall’s wrongful act of unlocking the rear sliding door was committed in the course or scope of his employment. It mattered not that Mr Hall was an employee of the store;
• Daymaster cannot be held to be vicariously liable for any failure of Mr Hall as the employee to lock the rear sliding door when his very purpose in the store was to unlawfully open that door to enable access into the store by his two co-offenders for the purpose of robbing it.

Ms Chin’s claim dismissed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

(CME [2018] WADC 69)

On 4 April 2017 the appellant, CME, applied pursuant to s 17 of the Criminal Injuries Compensation Act 2003 (WA) (the Act) for criminal injuries compensation in respect of injuries she sustained in an alleged assault occurring on 4 July 2015.

CME alleges that she was walking across an oval in Albany carrying a pie and a bag of chips when she was approached by two females asking for money. After a brief discussion the assailants knocked the pie out of her hand, punched her in the stomach, grabbed her ponytail, pulled her head up and then punched her on the left side of the face. As a result of this incident she suffered pain and injury.

The matter was not reported to the police until 27 April 2016 (almost one year later). No person was charged as a result of the incident. On 28 June 2017 the assessor for criminal injuries compensation provisionally determined the application and finally determined on 31 July 2017 to refuse the application on the basis that the delay in reporting the matter to the police was not reasonable. CME appealed from that decision. The appeal was lodged within time.

Was CME the victim of a criminal offence?

After deliberation the Court stated that it was “… satisfied on the balance of probabilities that CME suffered bodily harm…defined by law to be a bodily injury of such a nature as to interfere with health or comfort…. [and was] satisfied that the injury she sustained, essentially a fracture of the orbital floor, interfered with her health or comfort”.

CME has had other numerous claims for criminal injuries compensation and has only claimed where she was able to identify the offender, unlike this case. The Court stated that “…Her subjective belief that if she could not identify the offender there was effectively nothing to tell the police and therefore no point in making a report is a belief I find that she genuinely held”.

Medical evidence

The medical evidence established that CME suffered a left orbital floor fracture which caused numbness to the left side of her face.

Economic loss

A clinical psychologist who saw CME reported that CME’s “current psychological, emotional, cognitive and behavioural symptoms are likely to impede concentration and reduce her general performance” and indicated that in the short-term CME had reduced capacity to work but in the long-term her capacity would depend on her response to treatment. No award was made for this head of damage.

The court, after taken the above on board allowed the appeal and awarded CME the following:

• General damages – $30,000.00;
• Report expenses $3,300.00;
• Future medical treatment $5,192.50

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ROBERTSON V HOPWOOD [2018] WADC 66

It is uncontentious that on the day of the incident, the respondent (Mr Hopwood) was at the Inglewood Hotel watching a rugby match from about 6.00 pm and that the appellant (Mr Robertson) was also there.

It is also uncontentious that the Mr Hopwood had known the offender for approximately 10 years, as a work colleague and once a friend, but that the two had fallen out before the incident over some work contracts. Their work environment was quite toxic.

The CCTV footage of the incident shows the Mr Hopwood and his friend on their way out of the hotel. Mr Hopwood’s attention was drawn by a call from a woman, Sarah, who he knew and who was Mr Robertson’s sister. Mr Hopwood stopped to talk to Sarah. He spoke to her for less than a minute. There is nothing in the CCTV footage to suggest that the conversation was anything other than amicable and short.

As Mr Hopwood then turned to leave, he saw Mr Robertson and some brief words were exchanged.

Mr Hopwood and a friend then exchanged some words and Mr Robertson’s friend grabbed Mr Hopwood by the arm.

Mr Hopwood’s written statement states that he remembers exchanging words with Mr Robertson and his friends but did not remember what those words were. His next recollection was being in an ambulance and later at Sir Charles Gairdner Hospital.

Mr Hopwood in this matter had brought a cross-appeal applying for the Criminal Injuries Compensation assessor’s decision to be increased on the basis that the allowance “for general damages; past and future loss of income as well as past and future treatment expenses were too low”. Mr Hopwood sought to be paid the maximum award of compensation of $75,000.

The Criminal Injuries Compensation Assessor, by a compensation award dated 6 November 2015, awarded Mr Hopwood the sum of $49,041.11 compensation (the award) for the injuries and losses that the assessor was satisfied he had suffered as a consequence of the incident.

The Criminal Injuries Compensation assessor was satisfied that Mr Hopwood had been injured in the commission of a proven offence and the application was there for properly brought pursuant to s 12 of the Criminal Injuries Compensation Act. In the course of her decision, the Criminal Injuries Compensation assessor also considered whether any award should be reduced because, at one stage during the incident, Mr Hopwood had head-butted Mr Robinson.

There are specific heads of loss defined in s 6 of the Criminal Injuries Compensation Act to include:

• expenses actually and reasonably incurred by or on behalf of the victim –
  • that arise directly from; or
  • that arise in obtaining any report from a health professional or a counsellor in relation to, the injury suffered by the victim; or
• expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim; or
• loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim;
• any loss arising from any damage caused as a direct consequence of the commission of the offence to any personal item that was being worn by the victim when he or she suffered the injury.

On reflection the judge stated “Accordingly, I am prepared to award the respondent (Mr Hopwood) compensation in the sum of $75,000 being the statutory maximum and which is made up of the sum of $40,000 in general damages and so much of the losses under 6(2)(a) to take it up to the statutory maximum”.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.