ROBERTS [2021] WACIC 3
On a September evening in 2017, festivities commenced at the Harness Horse of the Year Awards at a Perth hotel. After the awards were concluded the party moved to a local Casino and restaurant. During the evening, much alcohol appears to have been consumed by some of the persons present and, as is not infrequently the case, physical violence followed.
The applicant and her boyfriend had an argument. She later tried to talk to him and presumably continue their discussion when the offender, for reasons that are unclear, took it upon herself to physically stop the applicant from reaching her boyfriend. A scuffle of some sort broke out between the two women when the offender phoned another friend reporting to him that the applicant had assaulted her. This information appears to have been incorrect and as the friend hurried over to the offender they became involved in some form of physical fight.
The offender and the applicant then left the scene of this fight and moved out of sight of the others. The offender then ran up to the applicant and struck her with a stiletto shoe to the right side of the applicant’s forehead. The applicant stumbled and fell to the ground (offence).
The applicant was taken by ambulance to Royal Perth Hospital where hospital records indicated that she sustained a 3cm laceration which required sutures.
A charge of assault was laid by the applicant against the offender who was later charged with Unlawful Wounding pursuant to the Criminal Code Act Compilation Act 1913. The matter was heard at trial in the Magistrates Court. The offender proffered self-defence as a defence to the charges, but the magistrate rejected her version, and was convicted.
The applicant then filed a criminal injuries compensation claim pursuant to s12 of the Criminal Injuries Compensation Act 2003 (ACT). S12 provides that a person who suffers injury because of the commission of a proved offence may apply for compensation for the injury and any loss also suffered.
The applicant described how she has been psychologically injured by the assault. She indicated that she feared going out for fear of being attacked by the offender again. She stated that she had become hypervigilant and could not relax and enjoy herself. She further explained that she had been left with a scar on her forehead. This made her feel self-conscious and feared being judged by others. Consequently, she felt that she needed to cover the scar with make-up and stated that she wanted to have surgery to reduce the appearance of the scar. In support of her claim, she filed a report from an Aesthetic and Reconstructive Plastic Surgeon.
The assessor stated that s30 of the Act sets out the general powers of an assessor, which includes the power to award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered. She also stated that the ordinary tortious principles for assessment of damages are generally employed in assessing the amount of compensation under the Act.
The assessor held that S41 is a two-step process. First, to determine whether the applicant contributed to her injuries, and if so, second, to determine if it is just to reduce or refuse the award. This contribution requires a causal nexus between the applicant’s conduct and the injuries sustained. It was held that the causal nexus was absent and therefore s41 did not avail the offender.
The assessor made an award to the applicant of an amount of $27,033.25.