No Damages Award Due to NO Negligence Finding – A Wild Ride

In the matter of Lightfoot v Rockingham Wild Encounters Pty Ltd [2017] WADC 62, the Claimant and her friend were passengers on a boat called “100% Wild”. This vessel was operated by the defendant, Rockingham Wild Encounters P/L (RWE) for the purpose of taking paying passengers on dolphin watching cruises. The skipper of the vessel was an experienced master. Prior to boarding the vessel, Claimant and her friend attended at the RWE’s office to collect and pay for their tickets. She was asked to sign a waiver of liability in relation to the trip at that time and did so.

On the way, out of Cockburn Sound during the tour, the skipper navigated the boat in a westerly direction through a gap in a reef situated between John Point and John Ledge. The vessel encountered some waves, then a larger wave, which caused the claimant to rise out of her seat and come down hard, onto the same seat, striking her back against its edge. As a result of the impact she received a serious spinal injury, which required her to be transferred to hospital, ultimately undergoing surgery two days later. She has recovered from the surgery, but was left with disabilities and restrictions and faces further surgery.

The claimant issued a writ against RWE, claiming damages for personal injury. The claimant pleaded that RWE had breached its duty to take reasonable care of her to ensure that she was not exposed to the risk of injury during the tour on 100% Wild.

At trial, the Claimant relied only upon RWE, its servants or agents being negligent in that the master navigated the boat into an area where it was foreseeable that it could encounter large swell/waves which could endanger the safety of passengers seated near the front of the boat including the Claimant.

The judge stated the briefing given before the tour to the Claimant and other passengers was not sufficient to negative the duty of care owed by RWE to her and went to find that the master was not negligent as the probability of a sudden large wave appearing in those waters was remote.

The judge then went on to analyse the waiver and considered whether it indemnified RWE against the Claimant’s claim and concluded that although the master had not been reckless, the drafting of the indemnity was not limited to personal injury as it had also included property damage and was therefore ineffective.

It’s important to note that had RWE been negligent, the waiver would not have applied and RWE would have been liable to the Claimant in damages.

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.

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Man’s Compensation Increased on Appeal

On 28 May 2011, the Appellant was at home reading the newspaper. Three men, forced their way into the house.  There had been a history of animosity between the Appellant and one of the three men. An altercation occurred and the three men assaulted the Appellant.

The Appellant made a claim for criminal injuries compensation.  In his application, he claimed that he had suffered physical injuries in the form of bruising and swelling to his back and behind his right ear.  The Appellant also claimed that he suffered Post-Traumatic Stress Disorder (PTSD) as a result of the attack on him.  His claim for criminal injuries compensation also included a claim for loss of earning capacity arising from the alleged PTSD.

In April 2016, the Chief Assessor of the Office of Criminal Injuries Compensation (Chief Assessor) awarded the Appellant the sum of $24,601 for injuries sustained in the assault, medical reports and future psychological treatment expenses but no economic loss.

The Appellant appealed against this assessment on the grounds that the Chief Assessor failed to give sufficient weight to the evidence of psychological trauma and failed to give consideration to any economic loss.

Pursuant to provisions in the Criminal Injuries Compensation Act 2003 (WA) (the Act), the District Court must decide the application on appeal afresh on the evidence and information that was in the possession of the Chief Assessor but may also receive further evidence and information.  The District Court is not fettered by the Chief Assessor’s decision.

The Appeal began in January 2017.

The Appellant presented additional documentation on the hearing of the appeal.  This additional documentation consisted of the following:

  • Income tax returns and notices of assessment;
  • Payment summaries from the Australian Taxation Office;
  • A facsimile from the Department of Human Services to the Appellant’s legal representatives containing Centrelink claim history and payment information;
  • Records from the Sir Charles Gairdner Hospital; and
  • An affidavit of the Appellant.

Although the Chief Assessor was not prepared to allow any award for loss of earnings because in her opinion the Appellant’s capacity to work was influenced by many non-compensable stressors. She was further not provided with sufficient information to enable her to make any proper estimate of the contribution, if any, of the incident to his loss of earnings. On the subsequent information provided the Appellant would have earned approximately $50,000 per annum in the two years following the incident.

Based upon the above, the Appellant’s award was increased to the maximum sum allowable in terms of the act, namely $75,000.

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.

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Meet Simone McMahon, our newest addition to the A & E legal team.

Simone grew up in Perth attending St Norbert College before moving onto study a Bachelor of Laws at The University of Notre Dame.

After graduating from Notre Dame, Simone crafted her skills in the professional sector, undertaking roles with –

  • WorkCover WA – Conciliation & Review Directorate Dispute Resolution Officer
  • City of Belmont – Compliance Officer
  • QBE Insurance Case Manager – Workers Compensation
  • Shine Lawyers Brisbane QLD – PLT Graduate Placement

In 2017 Simone received her Supreme Court of Brisbane QLD Certificate of Admission as an Australian Lawyer.

While these roles gave Simone valuable experience, it is her role as Organ Donation & Transplant Foundation of WA Founder and CEO and extensive work within different charities around Perth that shows her true character. Simone currently has memberships and roles on committees such as

  • WA Department of Health Renal Executive Advisory Group
  • Donate life WA Organ and Tissue Donation Community Advisory Committee
  • International Society of Organ Donation and Procurement Member

Through Simone’s outstanding experience within the professional sector, it is clear helping and working with people in the community is where Simone’s true passion lies.  Her impressive list of awards and achievements are as follows –

  • Member of the Order of Australia 2013 – AM for long term contribution to the field of Organ and Tissue Donation Advocacy in Australia –
  • Lions Club Exemplary Service Award 2008 – Nominated by Victoria Park Lions Club for contribution to the WA community to the field of Organ and Tissue Donation
  • Winston Churchill Fellowship 2007 – A fellowship to travel to the US, UK and Spain to study the International Models of Organ and Tissue Donation
  • Browns WA Woman of the Year 2007 – In recognition of outstanding achievement as a Western Australian woman
  • WA Young Australian of the Year -2006/08 – A national award recognising outstanding achievement in providing voluntary services to the community in the field of organ and tissue donation –
  • Prime Ministers Centenary Medal – 2003 – This is an Australian commemorative medal, which marks the achievements of a broad section of the Australian community for contribution to the Organ Donation sector and for making our country and the wider world a better place
  • Western Australian Youth Awards Finalist 2002 – In recognition of outstanding achievement as a young West Australian
  • Principals Medallion 1999 – St Norbert College

Simone is a vibrant and friendly person who will make sure your case is handled thoroughly and professionally. She is the perfect fit for the A & E Legal team.

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Injured Patron Sues Hotel and His are Damages Reduced by One Third on Appeal

In June 2009, a patron tripped over the corner of a raised timber platform in the lobby area of a local hotel in New South Wales. As a result, he suffered injuries to his neck, right shoulder and back. That relatively dark timber platform was a permanent structure in the hotel lobby — A strip of illuminated LED lights under that bottom edge cast light onto the white marble floor tiles of the lobby.

The primary judge found that the patron did not see the raised timber platform before he tripped and fell and that his ability to do so was affected by “intense glare” from a window or windows to the south of the bar area, which was the direction in which the patron was walking with his sister when he tripped and fell.

The primary Judge considered the patron to be “impressive” and “generally reliable” and found in his favour.

The hotel appealed the decision on the grounds that the primary judge should have held the reason the patron did not see the raised platform was because he was not looking where he was going. In support of its position the hotel stated that the primary judge erred in not accepting its evidence including that of an expert who argued that the patron was not blinded by glare as he submitted.

The appeal began in December 2016.

The duty of an occupier (in this case the hotel) to an entrant is governed by the general principles of the law of negligence, and is measured by what a reasonable person would in the circumstances do by in way of response to a risk of injury if the relevant risk of injury was foreseeable.

In assessing what reasonableness requires in response to a risk of harm, the reasonable person in the occupier’s position is entitled to take into account “with due allowance for human nature, [that] a person he permits to be on his premises will use reasonable care for his own safety”.

Did the hotel breach its duty of care to the patron?

The Appeal Judge stated that he considered the risk of tripping on the platform was obvious within the meaning of the relevant New South Wales legislation (which is similar to the current Western Australian legislation).

The presence and characteristics of the platform would have been obvious to a reasonable person in the position of the patron and once these facts were appreciated the risk of tripping over it was self-evident.

The hazard posed by the platform in this case was of a lesser order and more discernible. The Judge considered the degree of the patron’s shortfall in taking reasonable care for his own safety to be important and therefore reduced the patron’s damages awarded by the primary judge by one third on account of his contributory negligence.

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.

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Plaintiff Awarded Loss Of Earning Capacity Inclusive Of Dividends

In the District Court case of Dunmall v Welsh [No 9] [2017] WADC 19 a Plaintiff was successful in being awarded damages for loss of earning capacity including of dividends due to him.

In 2004 the Plaintiff and his wife were at the home of friends when the Plaintiff proceeded to exit onto an upstairs balcony with two others people, when it collapsed causing the Plaintiff to fall three meters to the ground. Although the balcony had capacity to support fifty or more people it collapsed under the weight of three persons. As a result of the fall, the Plaintiff suffered a serious and life-changing injury to his left ankle.  He was 63 years old at the time of the accident. Prior to the accident, he had been a General Manager of a large and successful ceiling fixing business with a good income and no plans to retire.

He commenced proceedings against the builder of the balcony as well as the shire who had approved the relevant building plans. The matter proceeded to trial on the issue of liability only.  At the trial, in 2014, the Judge gave judgment and indicated that the builder and the shire were liable to compensate the Plaintiff for his proven injuries and determined the apportionment between the two to be 65% and 35%, respectively.

The matter later proceeded to the District Court for the determination of the quantum.  Having resolved and agreed on all other heads of damages the only issue to be determined at the trial was the sum to be awarded by way of the claim for economic loss as a result of his loss of earning capacity.

The general principles relating to a loss of earning capacity is that a Plaintiff is not entitled to recover his damages unless he establishes, firstly, that his earning capacity was diminished by the negligence–caused injuries and secondly, that the diminution of earning capacity was productive of such economic loss. In other words, what should be compensated is the loss or diminishment of earning capacity, not loss of earnings. Whether there is a link between the negligence–caused injury and the diminution of that earning capacity is a question of fact to be determined on the evidence at hand. If the effects of a Plaintiff’s injuries were on a common-sense approach, a material cause of his decision to retire early, then the financial loss has resulted from the loss of earning capacity and is connected to the Defendant’s negligence. If however the Plaintiff has resigned, by reason of the loss of earning capacity but he is fit to do the work, then the onus lies on him to, as part of his case to prove his earning capacity. Similarly, where an issue arises as to whether a Plaintiff could have obtained employment within his retained capacity, it is for the Plaintiff to prove that such employment is beyond his capacity.

After an analysis of the evidence provided, the Court was satisfied that the Plaintiff had no plans to retire early and, but for the accident, was likely to have worked past 65 years of age provided he enjoyed sufficient basic health to do so, and provided his employer was content for him to do so. The Court then went on to determine the Plaintiff’s likely retirement age and after taking into account his general state of health at the age of 74, which was his age at the time he testified at trial, the Court was satisfied on a balance of probabilities that he would have worked until 67 years of age, which is the extent of his claim.

In that regard the Court also went on to find that the Plaintiff’s capacity to work was almost utterly lost.  That loss was however not immediately productive of economic loss because he was kept at full pay with bonuses until approximately 2005. The Court found that the Plaintiff retained no capacity to return to his pre-accident employment on a full-time basis and that he could no longer work as a manager.

The Defendant argued that the Plaintiff failed to mitigate his loss by failing to apply for alternative employment, however the Court accepted the Plaintiff’s evidence that there was no point in applying for another job because he was not able to do the work anymore.  The Court found that the Plaintiff did not fail to mitigate his loss.

With regards to the assessment of loss of earnings, the relevant Western Australian Legislation provides that a Court must disregard earnings lost to the extent where it accrued at a rate of more than three times the average weekly earnings at the time of the award.

With regards to the dividends, ordinarily they would not amount to “earnings”, although they are income. However, in this case, although no income tax was payable on the dividends, the Court considered that the dividends which were received through the Plaintiff’s efforts at work and by virtue of his actions as General Manager amounted in substance (if not form) to something in the nature of a reward for past, present or future services as an employee.  In that regard the Court considered that the dividend amounted to “earnings” within  the meaning of the relevant Legislation.

After applying a 5% discount for contingencies and vicissitudes of life and taking into account that the Plaintiff was at reasonable health at the age of 74, it calculated the Plaintiff’s loss at $324 358.00 for loss of earning capacity. The Court further allowed the appropriate discount of 15% for taxes, administrative fees and contingencies, but added past and future superannuation, salary sacrifice bonuses and dividends to the loss of earning capacity above, culminating in the sum $505 327.00.

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.

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Manufacturer Of Heavy Equipment Not Liabile To Contribute For Injuries Of Worker

In the recently decided matter of Simpson v Alliance Contracting PTY (Ltd) and Friob PTY (Ltd) [2016] WADC 158, the Plaintiff was severely injured in a mine site accident when he made his way under the suspended stemming bucket of a loader and attempted to remove an obstruction by reaching his left hand up into a discharge chute.  At that particular instance the driver of the loader inadvertently engaged the hydraulics of the vehicle allowing the operating sliding gate in the discharge chute to severely lacerate and partially amputate the Plaintiff’s left hand.

In an action against his employer, the employer as Defendant commenced Third Party Proceedings against Friob PTY Ltd (Friob) who had manufactured and supplied the stemming bucket at the request of the Plaintiff’s employer.

The Court was requested to decide whether it was reasonably foreseeable for Friob that a person, such as the Plaintiff, may use a variety of methods to clear a blockage at the gate of the discharge chute in a thoughtless, inadvertent, careless or deliberate manner by inserting a hand or arm into the discharge chute in an attempt to manually clear a blockage.

Numerous expert witnesses were called including but not limited to a Civil Engineer, an Equipment Asset Manager, a Mechanical Engineer and the General Manager of Friob.

In considering the relevant legal principles, including Section 5A (2) of the Civil Liability Act 2002 (WA), causation, duty of care and the assumption of risk, the Court found as follows:

a)   Friob had a duty of care to manufacture design and supply stemming buckets:
i) that were fit for their intended purposes;
ii) with reasonable care and skill so as to not to create any unavoidable hazards;
iii) in a manner which avoided reasonably foreseeable risk of injury to an employee; and
iv) which avoided reasonably foreseeable risk of injury;
b)   that an Australian Standard:
i) is a guide to, but cannot dictate, the standard of reasonable care required in the circumstances of individual cases;
ii) also represents the consensus of professional opinion and practical experience as to sensible safety precautions and a standard of reasonable conduct;

However, in this case, the risk of injury of the kind suffered by the Plaintiff and the general manner in which it might occur were not reasonably foreseeable for the following reasons, among others:

a)  the stemming bucket was manufactured and designed:
i) for delivering stemming material into a blast hole on a mine site;
ii) for a loader and it was unable to operate in isolation to that loader;
b)  the stemming bucket was hydraulically operated with a sliding gate which was in-built not open or exposed;
c)  the stemming bucket was designed to be used by a single worker and operated by him with controls in the cabin;
d)  it was manufactured to be hydraulically operated by the driver and not by someone within reach of the operative/driver and positioned in the cabin;
e)  the loader operator/driver did not need to be in close proximity to or require access to the hydraulically operated sliding gate in the ordinary cause of operating the stemming bucket;
f)   various warnings were included in an operation and maintenance manual provided by the manufacturer;
g)  the loader operator/driver was required to carry out training modules in safety rules and operating procedures which were common across the mining industry; and
h)  when the stemming bucket was on the ground there was no access to the discharge chute.

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.

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Catastrophic injury claims scheme commenced 1 July 2016

Forming an integral part of the current Compulsory Third Party insurance scheme (CTP) in Western Australia, which provides cover for drivers and/or owners of registered motor vehicles on Western Australian roads, a no-fault catastrophic injury scheme commenced on 1 July 2016 (the Catastrophic Scheme).

Prior to the Catastrophic Scheme you had prove fault against a driver of a vehicle in order to make a successful insurance claim under the CTP. Vehicle passengers, pedestrians and cyclists can also claim against such driver to obtain compensation for their injuries from motor vehicle crash. If you are also at fault, together with the driver, you may still have a valid claim but the amount of compensation that may we awarded will be reduced according to your degree of fault.

Recently, the WA State Government has introduced the no-fault Catastrophic Scheme which commenced on 1 July 2016.  This means that the CTP will be extended to provide care and support to all people catastrophically injured in motor vehicle accidents irrespective of fault. Catastrophic injures are defined as spinal cord injuries, traumatic brain injuries, multiple amputations, severe burns or permanent traumatic blindness.

In other words, catastrophically injured persons resulting from motor vehicle accidents from 1 July 2016 regardless of fault, will be entitled to make a claim for care and support on a consistent basis.

People are paying extra for no-fault insurance when their vehicle registration is renewed from 1 July 2016.

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Slip And Fall Legislation –strong V Woolworths Limitited [2012] HCA 5

In this appeal to the High Court of Australia, the Appeallant, Kathryne Strong sustained a serious spinal injury after a slip and fall at a Woolworths Centre.  At the time of the incident, Kathryne was on crutches and slipped and fell when she lost control of a crutch which she had placed on a greasy chip.

The basis of the Appeal was centred around the common difficulty faced in all slip and fall accidents, namely the establishment of a causal connection between an adequate cleaning system being in place and the time from when the slippery object was deposited to the actual injury being sustained.

Despite Woolworth’s having a rotational fifteen minute cleaning schedule in place, it was held that it had materially contributed to Kathryne’s harm and was therefore sufficiently negligent to establish factual causation. This was based on the fact that it could not be found that the chip was on the ground for long enough for it not to have been timeously detected and removed by a reasonable cleaning system.

At A&E Legal, we are specialists in Personal Injury Compensation claims.  If you intend to, or require expert guidance to ensure that you receive the maximum compensation due to you, please contact us for a no obligation free consultation in order for us to assess your claim and advise you accordingly

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Assessors Refusal Of Award For Compensation For Lack Of Proof Of Alleged Offence Is Confirmed On Appeal

In Robinson [2017] WADC  18, the District Court of Western Australia, on Appeal, confirmed that the claimant (Mr Robinson) was not entitled to compensation as a result of injuries sustained in an alleged assault.

The person said to be responsible for the alleged assault (DC) was interviewed by the police but was never charged with any criminal offence.  In that regard Mr Robinson alleged that as a result of the alleged assault he was injured and made an application to the Office for Criminal Injuries Compensation under Section 17 of the Criminal Injuries Compensation Act 2003 (WA) (Act).

After perusal of the claim material, the relevant assessor refused Mr Robinson’s application and found that although he had been involved in an incident with DC and suffered injuries, the assessor was not satisfied on a balance of probabilities that the alleged offence occurred and the application was therefore accordingly refused.

As a result of the assessor’s refusal Mr Robinson appealed on the basis that the assessor had erred in concluding that there was sufficient evidence for the perpetrator to raise a defence of self-defence and that there was further sufficient evidence for the assessor to refuse the application.

His Honour Troy  DCJ  indicated that it was necessary for Mr Robinson to establish under the Act to the required degree of satisfaction, namely on a balance of probabilities, that he had been injured as a consequence of the commission of an alleged offence and in so doing it was necessary that he negative the existence of the defence reasonably open to DC, namely that of self-defence.

Unfortunately for Mr Robinson, he gave two mutually inconsistent statements, one in the form of a statutory declaration to the Western Australian Police and the other in the form of details as to how he came to be injured within the body of the application for criminal injuries compensation.

The Court indicated that if DC satisfies the individual onus in relation to self-defence, then the burden would be on Mr Robinson to negative this defence by excluding at least one of its elements on a balance of probabilities. The Court then methodically analysed each of the elements of the defence of self-defence and came to the conclusion that Mr Robinson failed to exclude all the relevant elements.

The Court stated that an award for compensation cannot be made under Section 17(2) of the Act if the person who committed the act, in this case DC, that constitutes the alleged offence, was, at the time of the act not criminally responsible for it.

If the person who committed the act that constitutes the alleged offence is not criminally responsible for that act, the alleged offence is taken not to have been committed for the purposes of Section 17(4) of the Act.

In the circumstances the Court concluded that the assessor was correct to order that the application of Mr Robinson should be refused on the basis that the assessor was not satisfied that Mr Robinson was the victim of an unlawful assault.

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.

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CRIMINAL INJURIES VICTIM RECEIVES FULL AWARD OF $75 000.00

CRIMINAL INJURIES VICTIM RECEIVES FULL AWARD OF $75 000.00

In the matter of Taylor v Paindelli  [2016] WADC 160, the Court on appeal from an award made by the Criminal Injuries Compensation Assessor, dismissed the appeal of Mr Taylor and confirmed that Mr Paindelli was  entitled to compensation of $75 000.00 as awarded by the Assessor.

The basic findings of fact were that on Thursday, 15 July 2010, Mr Paindelli was outside a nightclub in Fremantle, where he had been drinking and was heavily intoxicated. A verbal altercation broke out between Mr Taylor and a female friend of Mr Paindelli. Mr Paindelli criticized Mr Taylor for the manner in which he had spoken to the female friend, whereafter Mr Taylor punched Mr Paindelli in the face with a clenched fist. At that stage, Mr Taylor walked away, went to a nearby rubbish bin, removed a glass bottle, smashed it and walked towards Mr Paindelli striking him in the face. Mr Paindelli fell to the ground and whilst he lay there, Mr Taylor struck him again several times to the face and walked away.

As a result of the aforementioned attack, Mr Paindelli suffered multiple facial lacerations with a temporary complete loss of vision in his left eye due to a dilated non-reactive pupil and a prolapsed iris.  Mr Taylor was left with residual ophthalmic, cosmetic and psychological injuries.

In the Appeal, Mr Paindelli provided the Court with a further affidavit which in terms of the relevant legal principles the Court had a general discretion to receive and admit.  The affidavit was duly presented and admitted by the Court. In his affidavit Mr Paindelli stated that after having a discussion with his General Practitioner there was a possibility that he may require laser surgery to improve his vision and further facial surgery to reduce the size of the scar tissue on the inside of his cheek. In this regard the Court was of the opinion that there was no expert evidence to support those statements, either as to the need for the surgeries or when they would occur. No significant weight was placed by the Court in that regard. With regards to his psychological injuries, a clinical psychologist report was presented wherein it was indicated that Mr Paindelli suffered several psychological symptoms prior to the assault consistent with post-traumatic stress disorder (PTSD).  The Court concluded that it accepted the evidence of the Clinical Psychologist and found that Mr Paindelli had suffered PTSD previously but also as a result of the offence, that there were symptoms which would be ongoing and permanent, in the sense that they will continue for the foreseeable future. However the Court was of the opinion that the Psychological injury was only mild because Mr Paindelli has been able to cope for some years without medication that are commonly prescribed for anxiety and depressive type symptoms and because he was able to cope without clinical treatment.

In calculating the general damages, the Court came to the conclusion that an appropriate award for lost earning capacity (past and future), pain and suffering and loss of amenities of life, should be assessed in the order of $125 000.00. This was because in the Court’s view, Mr Paindelli’s economic, ophthalmic and psychological injuries should not attract significant awards but were it not for the scarring the Court would only have allowed a modest award for pain and suffering and loss of amenities of life. However, the Court considered the scarring to be cosmetically serious, which will permanently inform his psychological health and impair his happiness in most domains.  The Court on Appeal, confirmed the award of the Assessor in the sum of $75 000.00, being the maximum allowed pursuant to the Criminal Injuries Compensation Act.

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.

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