We spoke with Solicitor, Evan Vivian, at D’Angelo Legal about compensation for victims of crime.
If someone has suffered an injury as a result of an offence, then they may be entitled to compensation through the Criminal Injuries Compensation Act 2003 (the Act). A person may claim compensation if they:
- are a victim of an offence; and
- suffer an injury as a consequence of the commission of that offence
In limited circumstances, a close relative of a person who dies or is injured as a result of an offence may also seek compensation.
The assessment of compensation should conform to the assessment of damages for Personal Injuries at Common Law. A victim can therefore claim for loss of income both past and future, past and future medical expenses, travel expenses for treatment, and general pain and suffering.
However, a statutory limit applies to the amount of compensation that may be awarded by the Assessor and is dependent on the date the offence occurred. The maximum compensation that may be awarded for a single offence that occurred after 15 December 2003 is $75,000.
Depending on the circumstances of the offence, the maximum compensation may be increased to twice the statutory limit.
One aspect of the Act which has generated some debate recently was the interpretation of Section 39 of the Act which provides:
“If an assessor is satisfied —
(a) that a person was injured as a consequence of the commission of an offence; and
(b) that the injury was suffered when the person was committing a separate offence, the assessor must not make a compensation award in favour of the person.”
At first glance, you might think that is fine, but imagine a situation where a group of people were smoking marijuana or in possession of a quantity of illicit drugs and one of them is sexually assaulted. The smoking and possession of those substances may constitute a crime. As the victim was committing a separate offence, the Assessor must not make an award for compensation! But was the criminal activity related to the criminal act of sexual assault? Under the current wording of the Act, the victim is unlikely to be entitled to Criminal Injuries Compensation.
In another example, imagine someone was shoplifting. As they were leaving the premises with their stolen items (stealing is a crime under the Criminal Code) they walk into the car park and are hit by a stolen car driven by an unlicensed driver who is under the influence of alcohol. They were not injured shoplifting, but badly injured by the stolen car. Arguably, under the current wording of the Act, this person would not be entitled to Compensation under the Act.
The Law Society has written to the Honourable Attorney General to request a review of Section 39 of the Act. The Government has said that they will look at the Act as part of the ongoing process to balance the needs of the victim with offenders and the WA community.
Assessment of Damages
The assessment of damages for Criminal Injuries Compensation is based on Common Law principles. This means that although the maximum compensation for a single offence is currently $75,000, the Assessor for Criminal Injuries does not look at victims injuries and “fit” the injury into a sliding scale between $0 and $75,000. You are able to claim for past and future loss of income and medical expenses, pain and suffering (known as general damages) and in some circumstances voluntary services provided to you by others (such as cleaning, cooking etc.).
The Assessor will also look at the behaviour of the victim when assessing the level of compensation that may be awarded. The Assessor may reduce or refuse an award for compensation. Some of the matters the Assessor will take into consideration are:
- If the victim does not assist in the investigation of the crime;
- If the Assessor believes some or all of the compensation may be given to the offender;
- If the victim contributed to the offence in some way (such as conduct, that although not in itself is an offence, it is sufficient that the Assessor may reduce the award).
The intention of the Act is for Criminal Injuries Compensation to be awarded only as a last resort. If claims can be made through Motor Vehicle, Public Liability or Workers’ Compensation Insurance then Criminal Injuries Compensation may not be applicable.
Any award paid by the Assessor is subject to recovery by the State against the offender.
There are no provisions for legal fees in Criminal Injuries Compensation claims. That means that we are unable to include your costs for legal fees when you make your claim for compensation. D’Angelo Legal does not charge for your initial consultation should you wish to make an appointment to discuss your potential claim. We are more than happy to take your call; our office number is 08 9381 1147.