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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No award to victim of crime due to his involvement in a separate crime

No award to victim of crime due to his involvement in a separate crime

In the matter of Thomson v Francis [2016] WADC 154, the District Court of Western Australia quashed an award of an Assessor of Criminal Injuries Compensation to the value of $75,000 and dismissed Mr Francis application for compensation outright.

In December of 2012, Mr Francis was attacked by Ms Thomson and her partner and sustained various severe injuries. Both Ms Thomson and partner were arrested, tried and convicted of various offences and sentenced to respective jail terms. During the trial Mr Francis gave evidence for which he sought the protection of section 11 of the Evidence Act 1906, which provides that a witness may decline to answer questions which may incriminate him unless a judge provides a certificate protecting him from prosecution for having committed an offence. This was duly granted and Mr Francis, in evidence, admitted to having committed three separate offences, whilst in the presence of Ms Thomson and her partner.

Section 39 of the Criminal Injuries Compensation Act 2003 (Act) provides that if an assessor is satisfied that a person was injured as a consequence of the commission of an offence and that injury was suffered when the person was committing a separate offence, the assessor must not make a compensation award in favour of the person. Mr Francis admitted being in possession of cannabis, cocaine and a self-loading pistol (without the adequate licence) at the time of his assault by Ms Thomson and partner.

In analysing section 39 of the Act, the Court indicated that it was clear that the intention of the legislature (in enacting that section) did not intend that a causal connection is required between the offence committed by a claimant for compensation and the offence giving rise to that person’s injuries. The court indicated that all that was required is a temporal connection in that the injury was suffered when the person was committing a separate offence. If that be the case, the assessor may not make an award.

In the circumstances the court concluded that because Mr Francis was committing an offence (unrelated to his attack) at the time he was assaulted, there was a temporal connection between the commission of the offences giving rise to his injuries and the commission of his offences for being in possession of the drugs and unlicensed weapon.

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No exemplary or aggravated damages awarded for alleged sexual assault, harassment, bullying and intimidation

NO EXEMPLARY OR AGGRAVATED DAMAGES AWARDED FOR ALLEGED SEXUAL ASSAULT, HARASSMENT, BULLYING AND INTIMIDATION

In the matter of RS v HS [2016] WADC 157 the Court found in favour of a Plaintiff for general damages and future medical expenses but was of the view that the facts of the case were not appropriate for an award of either aggravated damages or exemplary damages.
The Plaintiff sued the Defendant for damages arising out of claims brought pursuant to the tort of battery and the tort of intentional infliction of harm. With regards to the former, the Plaintiff alleged that she was unlawfully sexually penetrated by the Defendant and with regards to the latter the Plaintiff alleged that, knowing full well that the Plaintiff was of Indian Hindu origin, coerced and threatened her not to tell anyone about the alleged sexual assault. The Court concluded with regards to the sexual penetration that the Plaintiff carried the burden of proving her claim on a balance of probabilities and it was not persuaded that such act was committed against her by the Defendant. The Court was, however, satisfied on a balance of probabilities that the Plaintiff and the Defendant were at some stage involved in a consensual sexual relationship. In that regard the Court was unable to exclude the possibility that, the Plaintiff’s husband having discovered about the affair and the wider implications for the Plaintiff within the Indian community in Australia, that she believed it was necessary for her as a matter of her own “respect” to allege that she had been “raped” by the Defendant since this was the “lesser of two evils” in the “eyes” of the Indian community. In that regard the Court concluded that on the case of sexual assault the Plaintiff’s claim must fail and be dismissed.
However, with regards to the tort of intentional infliction of harm, the Court concluded that whilst the Plaintiff did not specifically plead that she had suffered harm because of the mere fact that the Defendant had threatened to tell people that they had had a sexual relationship as opposed to having been “raped”, the Court believed such view was sufficiently covered in the particulars set out in her statement of claim and was subjected to evidence at trial. The Court was not satisfied that the Defendant had deliberately intended to cause the Plaintiff harm, but was, however, satisfied to the requisite standard that the Defendant was recklessly indifferent to the result that would flow from his conduct. In the Court’s view, the nature and scale of his conduct was such that the natural and probable consequence of that cause of conduct was that the Plaintiff would suffer a psychiatric injury. The Defendant’s personal and intimate relationship with the Plaintiff lead the Court to an overwhelming conclusion that a reasonable person standing in the position of the Defendant should have realised that the sort of conduct that he employed against the Plaintiff would have a significantly adverse effect upon her mental health. In the circumstances the Court was satisfied on the evidence of the Plaintiff that she was harassed, intimidated, threatened and emotionally abused in the manner set out in her pleadings.

In that regard and having established and satisfied the Court that the Plaintiff was suffering from a Major Depressive Disorder consequent upon the bullying, harassment and intimidation carried out by the Defendant against her it was for the Defendant to satisfy the Court that such disorder and injuries suffered by the Plaintiff were not caused by his conduct but rather by some other factor or factors. The Court concluded that the Defendant’s contact which amounted to bullying, harassment and intimidation, was the only factor causing the Plaintiff’s Major Depressive Disorder which materially contributed to causing her to suffer from a major depressive disorder.
Having found liability and causation in favour of the Plaintiff, it was necessary for the Court to assess her injuries, loss and damage.
In that regard the Plaintiff sought an award of aggravated damages on the basis that:
1. the Defendant’s conduct in failing to admit the allegations in the Plaintiff’s Statement of Claim and opposing the claim had increased the Plaintiff’s suffering; and
2. the harm inflicted upon the Plaintiff by the Defendant was done with contumelious disregard for the Plaintiff’s rights in an insulting and malicious manner.
The Court, after referring to various Judgments of the High Court, stated that aggravated damages are normally awarded to compensate a Plaintiff when the harm done by a wrongful act was aggravated in the way the act was done. It stated further that it was a key requirement of a claim for aggravated damages that the conduct must have increased the Plaintiff’s suffering. The High Court continued in various other matters to describe aggravated damages as “a form of general damages given by way of compensation for injury to the Plaintiff, which may be intangible, resulting from the circumstances and manner of wrongdoing”.

Exemplary damages, unlike aggravated damages, do not focus on the injury to the Plaintiff, but rather on the conduct of the Defendant which is said to be so reprehensible that warrants that the Defendant should pay an additional amount of tort damages. It is generally recognised that exemplary damages are awarded rarely and, while they recognise fault, not every finding of fault warrants the reward. It is also the case that exemplary damages chiefly if not exclusively, arise in cases of conscious wrongdoing when there is contumelious disregard of the Plaintiff’s rights.

The Court concluded that in its view, this was not an appropriate case for an award of either aggravated or exemplary damages and that the Defendant’s conduct did not, in its opinion fall within the category of the sort of conduct that exhibits the kind of conscious and contumelious disregard for the Plaintiff’s rights as would justify an award of exemplary damages as both punishment and deterrence.

The Court awarded $30 000.00 for General Damages and Future Medical and Psychiatric treatment.

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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Termination day notice to be strictly adhered by employers

In the District Court matter of Reale v Wesfarmers Kleenheat Gas Pty Ltd [2016] WADC 5 and pursuant to the relevant section of the Workers’ Compensation and Injury Management Act 1981 (WA) (Act), Ms Reale (Plaintiff) lodged an election with WorkCover WA (WorkCover) to retain the right to pursue common law damages and subsequently commenced proceedings against her employer, Wesfarmers Kleenheat Gas Pty Ltd (Kleenheat).

The Court was faced with deciding the issue as to whether WorkCover had the power to extend the Plaintiff’s ‘termination day’ as Kleenheat had not provided her with the relevant prescribed statutory notice strictly within the 14-day period as stipulated by section 93O the Act.

The Court accepted that section 93O of the Act had not been complied with and accordingly held that WorkCover had the power to extend the termination date as the time stipulated in the Act had to be strictly complied with by the insurer/employer without exception

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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The Qualities of a Good Personal Injury Lawyer

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When people are confronted with personal injury for themselves or for family members, they want a lawyer who gives them the legal support they need to get on with their lives. The way to achieve this is to find the best personal injury lawyers in Toronto. Lawyers who specialize in personal injury such as the lawyers at HSH Personal Injury Law will have in-depth knowledge of personal injury law and years of experience in the field. Insurance companies also know the lawyers in their region, and their success rates. This can make a difference whether the insurance company wants to take the risk of going to court.

The Client Needs to Feel Confident

Good lawyers are good communicators. They keep their clients in the loop and establish a good lawyer-client relationship. Clients must feel comfortable asking questions and must get clear answers in order to maintain trust in their lawyer.

Specialization

Clients not only need a lawyer who specializes in personal injury cases, but also in other aspects of personal injury law. Many clients want to take a settlement offer and need to trust their lawyer to know if an offer is fair or not. The lawyer needs to be willing and able to take the case to court if necessary. If the insurance company sees that the lawyer has never tried a case in court, it may keep any settlement very low in the hope the lawyer will lose at trial.

Success Is Key

Clients have the right to know if the personal injury lawyer they are considering hiring has a good success rate in his or her previous cases. They will not only want to know how many cases were won, but also how much compensation the lawyer was able to secure. Prospective clients may also ask to speak to the lawyer’s previous clients or look online for testimonials and comments about the lawyer in question.

Tenaciousness

In order to feel confident, clients need to see that their lawyer will fight for them. Insurance companies generally keep records of lawyers who have won major settlements in court and are more likely to provide a higher settlement to avoid going to court against those lawyers.

Questions a Client May Ask

• How much time will the lawyer actually spend on my case?
• Who will handle my case? Will it be handed over to paralegals?
• Does the office have adequate support staff?
• How will my lawyer communicate with me?
• Does the law office take every case or only ones it feels it can win?

In order for lawyers to attract and keep good personal injury cases, clients need to feel valued by their lawyer and have confidence and trust in his or her abilities. Clients can immediately feel as if they are just another case or if their problems are being handled with integrity and compassion. When anyone is facing personal injury, his or her life is disrupted, maybe forever. They may not be able to think clearly and need to rely on their lawyer to organize the way forward. To give the client peace of mind at this time is a great gift, and to win a fair and sizable settlement or to win in court is the best beginning of their life after personal injury.

First Seen on: http://timkevan.blogspot.com/2016/05/the-qualities-of-good-personal-injury.html