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Personal Injuries

Personal Injuries

Criminal Injury
Motor Vehicle Accident

Criminal Injury Compensation For Victims of Crime

Some of us are sometimes the unfortunate victims of crime. We are lucky in Western Australia in that the Government of Western Australia has made provision for victims of crime to be compensated for injuries.

Victims of crime in Western Australia are able to apply under the Criminal Injuries Compensation Acts 1982 (and/or 1985 as determined by the date of the offence) for compensation for their physical and psychological injuries.

This is on top of their right to sue the perpetrator of the crime in the civil court. However it is unlikely that you may be able to get anything from the burglar who just broke into your home and injured you in the process. The chances of the burglar having any assets would be nil.

So, if you have been the unlucky victim of a crime and have suffered physical or psychological injury, then you should consider making a claim.

Sometimes, a crime may have been committed but the perpetrator of the crime not prosecuted. Sometimes the perpetrator of the crime may have been prosecuted but managed to get a not guilty verdict.
 

Compensation can still be applied for if the incident has been reported to the police regardless of whether or not a person has been identified, charged, or convicted of the offence. An application can be lodged by:

  • A victim of an offence who was injured and/or experience financial loss as a result; or

  • A close relative of a person killed as the result of an offence.

The Criminal Injuries Compensation Act is designed to provide compensation for suffering bodily harm, mental or nervous shock, or pregnancy, resulting from an offence. Compensation is available for:

  • Pain and suffering;

  • Loss of enjoyment of life;

  • Loss of income;

  • Other incidental expenses, eg. travel for medical treatment/damage of clothing.

  • Medical expenses you have paid. However the Criminal Injuries Compensation Board that manages the fund currently do not reimburse applicants for their medical report costs.

In case of death, a close relative can apply for funeral expenses and loss of financial support.

How much compensation is given depends on the severity of the injury caused. The amount of compensation awarded will depend on the extent of injuries and the losses suffered as evidenced in medical reports.

The maximum award has varied through the years depending on when the crime was committed. As an indication:

The maximum award was:

  • $15,000 for offences between January 1, 1983, and December 31, 1985.

  • $20,000 for offences between January 1, 1986, and June 30, 1991.

  • The maximum award is $50,000 for offences after July 1, 1991.

When the application must be filed
An application must be lodged within three years from the date of the offence. The application is usually made after the victim has reached the maximum stage of recovery from injuries. That is because you should claim the cost of all medical treatment before you close the claim.

However even if the claim is more than three years old, applications may still be made. You then provide written reasons for the delay and requests an extension of time. This usually happens for sexual assault cases where the victims of the crime may not have lodged a complaint due to the fact that the victims were infants at the time of the crime.

How does the Criminal Injuries Board decide on the quantum of compensation.
How much you are compensated from the fund depends on the severity of the injury and whether any loss of income was suffered.

  • Here are some instances of awards given to our clients:

  • Gunshot wound which left no lasting injury $10,000 Pre 1991 award

  • Stab wound with scars $5,000 Post 1991

  • Stab wound with loss of income $50,000 Post 1991

  • Common Assault, minor bruising and pain $3,014.00 Post 1991

There are certain matters that may affect the quantum of the Board’s award.

CRIMINAL INJURIES COMPENSATION ACT 1985 – SECT 23

Section 23. No award where compensation likely to benefit the offender. This prevents perpetrators and victims working together to get compensation.

CRIMINAL INJURIES COMPENSATION ACT 1985 – SECT 25

Section 25. Behaviour etc. of applicant to be considered. This is relevant where for example a person who was assaulted had previously taunted the offender thereby provoking the offender.

What if you are not happy with the award

CRIMINAL INJURIES COMPENSATION ACT 1985 – SECT 41

Section 41. Allows the applicant to appeal to the District Court if dissatisfied with —

  • an order of the Chief Assessor under section 19;

  • a refusal by the Chief Assessor to make an order;

  • a refusal by the Chief Assessor to vary an order under section 39;

  • an order of the Chief Assessor under section 39 directing an offender to make a refund, or the direction as to the amount of the refund,

The appeal needs to be commenced within 21 days after the date of the order or refusal but a District Court Judge may, if he thinks it is just to do so, grant leave to commence an appeal after the expiry of that period.

On an appeal under this section, the District Court Judge shall determine the application to which the appeal relates afresh without being fettered by the determination of the Chief Assessor.
 

I BELIEVE I HAVE A CLAIM
If you believe that you have a possible claim, then we suggest that you speak to a lawyer immediately. You can submit your own application or engage a solicitor to act on your behalf. If you engage a solicitor, the assessor cannot reimburse the legal costs incurred.

There is no fee for lodging your application. However, the expenses that may be incurred include the cost of medical reports so that the extent of the injury can be ascertained.

Tan and Tan Lawyers will be pleased to take instructions to ensure that you receive your due entitlement as a victim of crime. Our usual term of engagement is that no fee is paid till the award is made. However, medical report fees are the responsibility of the client.

ON THE LIGHT SIDE…

Sharks and Lawyers — A Comparative Study
"Shark" comes from the German "schurke", meaning greedy parasite. While no brave soul has gotten close enough to determine where lawyers come from, logic and common sense dictate a similar derivation.

Sharks, unlike most fish, have no bones; their skeletons are mad entirely of cartilage. Lawyers, too, are spineless — as willing to argue one side of a case as the other. For the right price.

Best known as scavengers of the dead and dying, sharks have well-honed sensors with which they can track the sounds of other injured and struggling beings. They are also equipped with fine senses of smell that allow them to detect minute dilutions of blood (one part blood to one million parts water) up to one-quarter mile away. Precisely the distance a hopeful personal injury lawyer will run behind an ambulance to toss a business card.

From the moment of birth, sharks’ skin is tough and rough — covered with thousands of tiny hard teeth call denticles that abrade any passerby made of softer stuff. Lawyers are also thick-skinned. Easily identified by their humorlessness and abrasive personalities, they are the bane of many social gatherings.

A shark will swallow anything – up to half its own size – in one gulp. Several hundred years ago, a naturalist wrote that the headless body of a knight in armor was found in a white shark’s stomach. Inside another was more recently found a sea lion, a horse and the body of another seven-foot-long shark. Lawyers, too, will swallow anything — even their pride — as increasing numbers of lawyer hopefuls trudge to law school each year for three years of browbeating in the hopes of financing their Porsches.

Some sharks even prey on their own kind. The smell and taste of blood in the water can trigger them into an obsessed Feeding Frenzy, in which they often eat their own bodies while twisting and turning to get more food. This is not unlike the Litigation Frenzy, where lawyers are pitted against other lawyers, and ultimately themselves, to waste reams of paper while losing sight of a fair resolution for their clients.

What to do After A Motor Vehicle Accident

Whether you are in the right or in the wrong… the things you need to know to protect your legal rights.

Your legal rights after a motor vehicle accident.
Tan and Tan have for many years represented clients involved in accident matters. We have represented clients in the criminal courts as a result of the client being prosecuted for traffic offences. We have also represented clients in personal injury claims.

The saddest cases are where young drivers or passengers are injured as a result of some silly mistake. Mistakes that could affect a young live forever. We once acted for a 17 year old foreign student who became a tetraplegic after a very serious accident. The case was settled out of court and our client received well over $1.5 million dollars. However no amount of money could compensate him for the inability to walk again.  With that in mind, here are some matters to be aware of after an accident.

This information is important if you were the driver of a motor vehicle and the collision caused injury to any one or damage to property.

If you have been involved in a traffic accident, you should seek legal advice as soon as possible.

WHAT IS YOUR RESPONSIBILITY AS A DRIVER
You are under a duty to stop immediately if you are the driver of a vehicle involved in an accident and anyone is injured; or property is damaged.

("Property" includes your own and other motor vehicles, houses, fences, gardens, personal belongings etc.)

You must give your name and address to anyone who has been injured or whose property has been damaged.

WHAT TO DO AT THE SCENE OF THE COLLISION

If possible take the following steps:

  • Note the names, addresses and insurance details of any other drivers involved in the collision;

  • Note  the details of the other vehicle involved;

  • Note the names and addresses of any witnesses at the scene;

  • Draw a sketch of the scene and note the street names and suburb;

  • Do not under any circumstance admit that the accident was your fault.

REPORTING THE ACCIDENT TO THE POLICE
If the police do not attend at the scene of the accident the driver MUST report the accident to the nearest Police Station immediately if anyone was injured  or the estimated value of damage to property was $1000 or more.

When police officers attend the scene of an accident or when you report the accident to a Police Station you should provide:

Your name, address and drivers licence details; and The name and address of the owner of the vehicle.

If your vehicle is involved in an accident (whether or not you were the driver) you must give to the Police Officer any information you may have which may help to identify the driver.

IMPORTANT NOTE:
You DO NOT have to supply any other information, make a statement, fill in any forms or provide a sketch plan of the scene if you do not wish to.

Your legal duty is to report the accident. You are not under any obligation to provide any information regarding how the accident happened.

The mistake made by many drivers is in providing full details to the police about how badly or wrongly they had been driving their car. You are only giving the police information to prosecute you with.

IN THE EVENT THAT  YOU RECEIVE A SUMMONS

You may receive a summons from:

  1. The Police alleging that you have broken the traffic laws OR

  2. a summons or a writ claiming the cost of repairs from the owner of the other vehicle.

If you receive a summons you should obtain legal advice immediately.

REPAIRS  TO YOUR VEHICLE
The cost of repairs to your vehicle may either be claimed from the owner of the other vehicle, claimed on your insurance policy or paid for out of your pocket.

Claim against the other party:
If you believe that the accident was caused by the driver  of the other vehicle you should obtain at least 2 written quotes for the cost of repairs and send them to the other party or to their insurance company with a letter requesting that the cost of the repairs be paid for.

If this request is refused you may have to sue the other driver. You should obtain legal advice before you do so.

Claim against your Insurance Company:
You should inform your Insurance Company about the accident as soon as possible. Whether you will be able to make a claim will depend on the type of  insurance policy you have.

Payment from your own pocket:
If you accept that the accident was your fault and your vehicle is not insured you will have to pay for the repairs yourself. The other driver may also claim against you for the cost of repairs to his/her vehicle.  You should consult a lawyer before considering making a payment. The law takes into consideration contributory negligence. That means the other driver may partly be in the wrong. Therefore you may not have to pay the full cost of the damage.

WHAT TO DO IF YOU ARE INJURED
If you have been injured as a pedestrian, passenger or the driver of a vehicle you may claim  compensation for your injuries from the Insurance Commission of Western Australia (ICWA).

You should give the ICWA notice of your claim as soon as practicable after the accident. You do this by completing the ICWA claim form. If you see a solicitor, they will inform the ICWA for you and provide ICWA with all necessary information in your favour.  ICWA will then investigate the accident and statements will be taken from drivers and witnesses.

WHAT CAN I CLAIM?
The money paid to a person who has been injured or has suffered loss is called DAMAGES.

There are two categories of damages:

Special damages, which includes items such as loss of wages, medical and surgical fees, hospital fees and various out of pocket expenses. It may also include loss arising from damage to clothing or other property.

General damages, which is monetary compensation for such things as pain, suffering, loss of earning capacity and loss of enjoyment of life generally.

Very often a loss of earning claim can be very substantial. For eg. You may be a  30 year old gardener earning $500 per week and you receive injuries that prevent you from working as a gardener. If you subsequently work as a shop assistant earning a reduced income of say $300.00 per week. Your potential loss of income is $200.00 per week until retirement age.  The court may compensate you your total loss of income after taking into consideration matters like the early payment of your damages claim and the value of such funds being given to you immediately.

WHAT MUST I PROVE?
Not everyone who is injured in an accident is entitled to damages. The right to damages depends upon some other person being at fault in either causing or contributing to the accident.

All the circumstances of the accident will be looked at to decide whether a driver was at fault.

An accident may have been caused by some fault on the part of the person who was injured as well as  the driver. In that case the responsibility for the accident will be divided between them.

The amount of damages will be reduced in this case.

In most cases, a passenger is usually faultless as far as negligence is concerned and they can make a claim for damages. However, if you are a passenger in a car driven by a drunk and you are aware the driver was drunk, the court may refuse a claim as they may consider that you accepted the risk of sitting as a passenger in a car driven by a drunk.

You should always obtain legal advice about your claim for damages.

Tan and Tan will be pleased to advise you if you have an accident claim. We have a policy of giving a free first consultation to discuss your rights if you have been involved in an accident. So if you have a query, call us or email us.

To cut a long story short

Insurance companies work on the basis that most victims do not know their legal rights and therefore fail to make any claims for compensation after an injury.

For those who are astute enough to make a claim, the insurance companies will try and pay as little as possible to finalise the claim.

I once acted in an accident matter where the client had moderate injuries but there was also a   moderate loss of income claim.

When my client first wrote to the insurers, they offered her $500 to settle the claim. When we started acting for the client, the insurers offered to settle the claim for $3,000.00.

By the time a summons was issued against the insurers, the offer jumped to $30,000.00.

When the matter went to a pre trial conference, the matter was finally settled out of court for $90,000.00. The client would have obtained much more if the matter went to trial, but the client was happy to take the $90,000.00 as it was far higher than any amount she thought she was entitled to claim.

Moral of the story: Know your legal rights.

ON THE LIGHT SIDE…

Money is No Object
A doctor tells a rich old man that he’s going to die if he doesn’t get a new heart soon. The old man tells the doctor to search the world for the best heart available, money is no object. A few days later the doctor calls the old man and says he has found three hearts but they are all expensive. The old man reminds the doctor that he is filthy rich and implores him to tell him about the donors they came from.

‘Well, the first one belonged to 22 year old marathon runner, never smoked, ate only the most healthy foods, was in peak condition when he was hit by a bus. No damage to the heart, of course. But it costs $100,000!’

The old man waving off the last part about the cost asks the doctor to tell him about the second donor. ‘This one belonged to a 16 year old long- distance swimmer, high school kid. Lean and mean. Drowned when he hit his head on the side of the pool. That heart’ll set you back $150,000!’

‘Okay,’ said the old man, ‘what about the third heart?’ ‘Well this one belonged to a 58 year-old man, smoked three packs of cigarettes a day, weighed over 300 pounds, never exercised, drank like a fish… this heart is going for $500,000!!!’ ‘Five-hundred grand?!?!’, the old man exclaimed, ‘why so expensive?’ ‘Well’, said the doctor, ‘this heart belonged to a lawyer… so it was never used