Elements Necessary for Compensation
Nature of the Injury
The compensation is only for personal injury or loss – physical bodily or mental harm, pain and suffering, or an unwanted pregnancy resulting from rape. Property is not covered under the Act.
In addition to the applicant’s own evidence, the medical reports should disclose the nature of the applicant’s injuries, treatment and prognosis. The Commissioner will have regard to the physical and mental pain and suffering of the applicant, past and future. As with any assessment of damages, it is therefore important that anything having a material bearing on this should be canvassed in evidence.
It is important to have up-to-date medical reports. If the applicant’s injuries have not stabilised, it may be appropriate to ask the Commissioner to make an interim award and come back for a further award later (s5(6), VOCA Act).
It is important to remember that the Commissioner can only allow expenses actually and reasonably incurred as a result of the injury (s4(3)(a)). The cost of a future operation cannot be allowed until it has been incurred. The production of receipts or accounts is usually regarded as sufficient proof of expenses.
This will include loss of wages or salary, and any other loss caused by an incapacity for work arising from the injury. Proof is required of any such loss (s4(3)(b) &(c)).
Victim’s Conduct Contributing to Injury
This is analogous to making a reduction in damages because of contributory negligence. But the conduct must in some way have contributed to the injury or death.
Adequate Civil Remedy
The applicant must satisfy the Commissioner that there is no adequate civil remedy against the offender (s5(4)). In most cases this will be the situation since offenders will be serving a sentence of imprisonment, will not have any substantial assets or income, and will be unemployed on their release. However, in some cases this may not be so, and the victim will have been expected to have taken all reasonable steps to take action against the offender where this is the case. This may also be in the interest of the victim because the upper limit of $30,000 will not apply, and they will have the chance to obtain more adequate compensation. Action must be taken within three years of the injury occurring.
Exclusions and Limitations
It is important to note in section 6 of the VOCA Act that:
- no award of compensation can be made for any criminal conduct which occurred before 4 August 1976, which is the date on which the Act commenced.
- no compensation can be awarded for death or injury where compensation is payable, under any law, by an employer in respect of such death or injury to any person in their employment resulting from an accident occurring in connection with that employment;
- pain and suffering is still payable even if an offence occurred in employment and Workers’ Compensation has been paid
- no compensation can be awarded in respect of death or injury caused by or arising out of the use of a motor vehicle as defined in the Traffic Act 1925;
- compensation in respect of any destruction of, or damage to, property can only be awarded if such damage was suffered as a result of a person assisting a police officer.