VOCAT - Compensation For Injuries Suffered As a Result Of A Crime - Part 2
In Victoria there are three ways in which a person who has suffered an injury and/or loss as a result of a crime can claim compensation. The injury may be physical and/or mental and the financial loss may include loss of earnings. A person can claim more than one form of compensation, however one form of compensation may be set off by another.
1. Victims Of Crime Assistance Tribunal (“VOCAT”) - See Part 1
2. Sentencing Act 1991
A person who has suffered an injury as a direct result of an offence may make Application to the Court for an Order that the offender pay compensation to them. This may include family members and other people who are affected as a result of the offence. The Court has broad powers to award any form of compensation and the amounts payable by way of “pain and suffering” are generally significantly higher than the amounts awarded by VOCAT.
An Application under Section 85B of the Act may be made by the prosecutor on behalf of the victim at the time of sentencing the offender. Alternatively, an Application may be brought by the victim at any time within twelve months of the date of sentencing of the offender. Again, time for making an Application may be extended if exceptional circumstances exist.
Although the amount of compensation payable under the Sentencing Act is generally significantly higher, it is up to the offender themselves to pay this amount. The amount awarded is enforceable as a debt and civil debt recovery methods are available to enforce that debt. However, in the event that an offender is unemployed and has no assets it will be difficult to enforce the Judgment. On the other hand, a Judgment is enforceable for a period of fifteen years from when it is made and if the offender comes into funds during that time, the Order may be enforced.
Compensation under the Sentencing Act is payable for pain and suffering, counselling and medical expenses, loss of earnings and for loss or damage to property. If an award has been made by the Victims of Crime Assistance Tribunal, it will be taken into account and the Sentencing Act Order will be reduced by this amount. Similarly, if Loss of Earnings has been paid, for example, by WorkCover then this amount will not be awarded again under the Sentencing Act. The Court will take the financial circumstances of the offender into account when making an Order.
In order to maximise the amount of compensation payable we recommend that the Application be properly prepared. This includes obtaining all relevant medical and/or psychiatric and/or psychological and like evidence for presentation to the Court. It is important that the victim’s Victim Impact Statement was presented to the Court at the sentencing of the offender. It is also helpful to the legal representative if the victim has obtained a copy of the tapes from the plea and sentence of the offender. Courts only keep such tapes for a period of three months, after which time they are destroyed. The victim will be required to pay their own legal costs for the Sentencing Act Application. However, the Court has the power to order the offender to pay all or part of these costs. A person who has made a Sentencing Act Application may also bring civil proceedings. However, a Sentencing Act Application will generally be dealt with much faster and at less expense than civil proceedings.
3. Civil Proceedings
Under the Common Law a person who has suffered a significant injury resulting in a threshold level of permanent impairment (5% for physical impairment and 10% for psychiatric impairment) may bring civil proceedings for personal injuries. Again, this includes both physical and psychological or psychiatric injuries. Workplace and traffic accidents are dealt with in a more restricted way under the Accident Compensation and Transport Accident Act. Claims made under those Acts are outside the scope of this article. Injuries are assessed as significant by qualified doctors. The threshold levels do not apply to claims made for economic loss such as damage to property, loss of earnings or medical costs.
Police members who are injured on the job must make any claim for injury, medical and loss of earnings through Workcover. They are however able to bring a Sentencing Act Application for injuries received on the job, thereby potentially obtaining compensation where they would be precluded under the Accident Compensation Act (Workcover).
Each party to a civil proceeding must pay their own costs. Again, the Court has the power to order the unsuccessful party to pay a proportion of the successful party’s costs. The Judgment of the Court in a civil proceeding is enforceable as a debt. If the offender lacks the means to pay, then the Judgment will be unenforceable. The Judgment can be enforced for anything up to fifteen years from the date of the Order. Any amounts of compensation paid under the Sentencing Act must be taken into account in the making of an Order in a civil proceeding. If damages are awarded in a civil proceeding, amounts paid by VOCAT may need to be reimbursed.
In Summary
In the event that a person suffers a physical and/or psychological or psychiatric injury as a result of a criminal offence occurring they should contact their lawyer. Lawyers can advise on whether or not to pursue a claim for compensation and which avenue of compensation may best suit the circumstances. A lawyer can assist you in gathering together all necessary material in order to maximise the amount of compensation payable. Depending on the nature of compensation sought, legal fees may be paid in part or in full as part of the compensation awarded.
For more information, or if you believe that you may be eligible for some form of compensation, please contact Sam Marash of Kenna Teasdale Lawyers on 9670 5991. |
