If you find yourself in the unfortunate situation of being injured as a result of an assault, a sexual assault, or unlawful wounding (called ‘criminal actions’ or ‘criminal act’) you have rights and should know the factors that may affect the compensation you may receive for your injuries.
What are your options when you have been injured as a result of another person’s criminal actions?
Option 1. Make a claim for criminal injuries compensation. Currently, the maximum amount of compensation you can receive under Western Australian legislation is $75,000.00. A very common misconception is that a person can not claim criminal injuries compensation when the offender in question was not convicted of a crime. This is not true. The burden of proof on the claimant in civil proceedings is on the ‘balance of probabilities’ as opposed to the higher standard of proof required in criminal proceedings, which is ‘beyond reasonable doubt’.
As long as the Assessor of Criminal Injuries Compensation is satisfied, based on the evidence presented, on a balance of probabilities, the criminal action he may make an award of compensation.
Even if no person was charged for the criminal act (if for example, there is insufficient evidence for the police to bring a prosecution, or if the offender is unknown or cannot be found), an award of compensation may still be made. In fact, even if a person is trialled and acquitted, compensation may still be awarded.
Option 2. Make a claim for common law claim damages. This claim involves suing the offender personally. A common law claim should only be pursued when the offender has sufficient financial means (such as property) to satisfy a judgment against him. If the offender does not have the financial means to pay the damages, then a common law claim would be fruitless.
This option would be taken where the damages exceed the maximum amount of compensation under criminal injuries legislation or in the event the Assessor for Criminal Injuries Compensation requires that attempts be made to explore recovery from the offender having regard to his ability to pay damages.
A common law claim involves initiating court proceedings in the District Court of Western Australia. Although legal fees will be incurred under this option, the amount awarded is likely to be higher than a criminal injuries compensation award as there is no cap on damages. Careful consideration needs to be taken in these circumstances before deciding how to proceed.
Option 3. Make a criminal injuries compensation claim and also pursue a common law claim for damages. This would apply when damages exceed $75,000.00 and the offender has the financial means to satisfy the judgment. It is important to mention that there is a rule in which prevents recovering damages twice for the same injury. The Criminal Injuries Compensation Act also prevents a person from receiving compensation twice for the same action. Thus, if full loss and damage is recovered from an offender, no award will be received from the Assessor for Criminal Injuries Compensation.
Option 4. If the injury is sustained as a result of a criminal act inflicted by security staff in a public place, such as at a hotel or nightclub, then not only can you pursue option 1, you may also bring a public liability claim for negligence. In this situation, a claim would be made against the public liability insurer of the premises where the injury is sustained and you may also have a negligence claim against the security company who contracts the security staff to the premises. Once again, the rule against double recovery applies and you cannot ‘double dip’ in compensation. The Assessor for Criminal Injuries Compensation will require that compensation be recovered from the public liability insurer first and will only pay compensation under the Criminal Injuries Compensation Scheme to the extent damages under the $75,000 threshold are not capable of being recovered from the insurer.
Option 5. If the assault took place whilst in the course of employment, you may claim Worker’s Compensation benefits. To the extent that there is still a loss, the shortfall may be made up through a claim for Criminal Injury Compensation or at common law.
Option 6. The injured party may ask the court sentencing the offender to make a restitution order against the offender. This option can be taken in conjunction with all the options above. The amount of compensation or restitution you receive by a court order will be deducted from an award made under Criminal Injuries Compensation Act and under common law.
Factors Affecting Quantum of Compensation
There are a number of factors that will determine the quantum (amount) of your compensation.
The factors which will influence a higher award include:
- the severity of your injuries. The more serious your injuries, the more compensation you are likely to receive;
- the more pain and suffering you endure and the longer you endure it, the more compensation you are likely to receive; and
- the more medical treatment you require and the longer the duration of your treatment the more compensation you are likely to receive.
There are also a number of factors which will be relevant which may result in your award being reduced (or even possibly refused, depending on the particular circumstances of the case). These factors include if:
- you contributed to your injuries in some way, such as provoking the offender. The Assessor will take into consideration your actions and your behaviour leading up to the incident;
- you were committing a separate offence yourself at the time you were injured;
- you failed to report the offence to the police and/or failed to cooperate with police investigations;
- you have continued a relationship with the offender after the offence;
- you did not mitigate against your losses by failing to attend your treating medical providers for treatment;
- you did not follow reasonable medical advice from your treating medical providers; and
- you have any outstanding fines owing to the State, the amount may be deducted from your compensation proceeds.
Giving Yourself the Best Possible Chance for Just Compensation
To ensure you receive the compensation you deserve:
- immediately report the offence and cooperate fully with the police;
- regularly attend upon your medical providers and provide them as much information as possible in relation to your pain and suffering, your residual problems, including psychological symptoms and the effect the incident has had on your working/social/sporting life;
- take photographs of your injuries immediately and as they heal;
- prepare a Victim Impact Statement containing comprehensive facts about the effect the crime has had on all aspects of your life;
- collect proof of losses sustained, such as economic loss, copies of your full taxation returns and payslips; and
- lodge any criminal injuries claim within the relevant time periods prescribed by law.
If you are the victim of a criminal action, seek specialist legal advice immediately.