Avoid professional negligence - advise your client on their potential Criminal Injuries Compensation claim. Helen Boreham

Transcription

1 Avoid professional negligence - advise your client on their potential Criminal Injuries Compensation claim Helen Boreham

2 Why do I need to know about Criminal Injuries compensation? You have a professional obligation to clients to refer them for legal advice if the facts of their case raises a potential criminal injuries compensation claim COVA imposes a duty on public officials to assist victims of crime to access justice (s.4 COVA) S.4(8) says disciplinary action can be taken S.18 says a victim should have access to information about how to obtain compensation I m going to ask you questions at the end of this talk!

3 This CLE will cover Fact scenarios which may or may not give rise to crim comp claims An overview of what crim comp is Where do you go to for help if your client might have a crim comp claim Answers to the fact scenarios Question time

4 Can this client get crim comp? Crime client calls from the watch house to tell you he was assaulted by a fellow prisoner last night and received a broken jaw.

5 Can this client get crim comp? The Department of Child Safety notifies you that the mother of a child in care has just been convicted in the District Court of failing to provide the necessities of life

6 Can this client get crim comp? A woman at the reception counter asks for aid to get a domestic violence protection order in the Magistrates Court

7 Can this client get crim comp? Your client was bashed at 3.00 am while walking home through a park. He reported to police, but cannot identify the offenders. Police have no suspects.

8 Can this client get crim comp? Client calls the callcentre to say she was attacked by a dog. The council has deemed it dangerous and is prosecuting the owner.

9 Can this client get crim comp? A Veterans Affairs client calls to say his surgeon amputated the wrong foot

10 Can this client get crim comp? children witness their parents being murdered, but are unharmed themselves.

11 Can this client get crim comp? A cricketer sends lewd text messages to a nurse

12 Can this client get crim comp? A woman was wounded by a man using a knife. He has been found to have been of unsound mind by the MHC.

13 Can this client get crim comp? An inmate on remand at AGCC is murdered, leaving behind two children and a defacto

14 Can this client get crim comp? A house in Dalby is firebombed at 11.30pm while the family is asleep inside

15 Can this client get crim comp? A man flashes at a five year old girl. He is convicted of indecent exposure

16 Can this client get crim comp? The caller s car was stolen from her carport while she was out

17 Can this client get crim comp? The client was carjacked whilst leaving Toombul shopping centre. She is dumped at a set of traffic lights 5 minutes later unhurt.

18 Can this client get crim comp? An elderly woman is injured in a car accident. The other driver is convicted of dangerous operation of motor vehicle.

19 Can this client get crim comp? A bank teller is held up at gun point. The armed robber waves the gun around. Can the teller or customers claim?

20 What is criminal injuries compensation? A legislative scheme introduced in Queensland on 1 January, 1969 Compensates for injury, death or expenses arising from indictable offences (s. 19 Criminal Offence Victims Act 1995)

21 Scheme of last resort If the victim has other options to be compensated, they must try those first Most criminal injuries compensation claims are paid from public purse Dept JAG will refuse payment if victim should have applied first for WorkCover or a personal injuries claim (includes a claim under CTP insurance)

22 LEGISLATION Criminal Offence Victims Act 1995 Until 18 December 1995 the Criminal Code of Qld governed criminal injuries compensation Even though repealed, those provisions still apply if the offences occurred during that period If the offences occurred after that date, COVA applies

23 Definitions S.20 COVA injury A bodily injury, mental or nervous shock, pregnancy or injuries specified in the table in Schedule 1 or regulations s. 21 personal offence an indictable offence committed against the person of someone

24 What sort of offences? Criminal Offence Victims Act 1995 s.21 must be a personal offence Eg: rape, assault, stalking, deprivation of liberty, robbery Must be an offence which could be dealt with on indictment ie: in District or Supreme Court or CCQ

25 What else does COVA do? As well as compensation for the actual victim of crime, COVA also provides compensation for:- Financial dependents of homicide victims Funeral and counselling expenses Those injured helping police make an arrest

26 What offences are NOT relevant? Break and enter Arson uumv

27 What do I do if I suspect my client has a potential criminal injuries compensation claim? Refer client for legal advice from FACT or Civil Justice (Criminal Injuries Compensation) unit also known as VOCCU.

28 Civil Justice (Criminal Injuries Compensation Unit) The Brisbane office has a specialist unit which represents victims of crime in Criminal Injuries Compensation claims. Applicants do not have to live in Brisbane to be represented by this unit. Twice weekly telephone legal advice given. Book in by calling An application kit can be posted to client

29 Getting legal advice Basic Rule: if the offence has only just been committed, it is too soon to apply for legal aid; It is not too soon to get legal advice on options. The sooner the better.

30 Other legal compensation options? By getting legal advice soon after the offence occurs, the most appropriate legal option for compensation can be identified. eg: If the offender was a priest, or is very wealthy, a common law action might be the best option. If the offence occurred at work, WorkCover may better.

31 Time limits for crim comp Child victims have until the day before they turn 21 Adults:- If offender has been convicted, time limit is 3 years from date of sentence If no offender convicted, time limit is 3 years from date of injury

32 Other time limits Workcover 6 months from date of injury Personal injuries 9 months from injury to serve notice on respondent 3 years to file claim in court

33 What if I didn t realise my client had a compensation claim? Advise Robyn Wilkinson who will decide if the LAQ insurer should be notified

34 when to apply for Criminal Injuries Compensation depends on the facts of each case For example:- After the offender has been sentenced in the District or Supreme Court or CCQ; After the Mental Health Court has found the offender cannot face trial; After police advise they cannot identify or locate the offender.

35 What is the process? Offender was convicted:- Application is made to the sentencing judge Can be contested by the respondent Uniform Civil Procedure Rules apply Offender ordered to pay If impecunious, application is made to JAG to pay an ex gratia payment

36 What is the process? No offender was convicted:- Victim must have reported to police without delay If sexual assault, victim must show they reported assault to police, doctor or appropriate agency eg: rape crisis centre Victim can apply straight to Dept JAG for an ex gratia payment

37 How much? COVA maximum is $75,000 Schedule 1 sets out table of injuries Percentages are listed against certain injuries Eg: bruising/laceration (minor) = 1-3% of $75,000 = $750 - $2,250 Eg: fractured skull (brain damage - severe) = % = $18,750 - $75,000

38 Mental or nervous shock Minor, moderate and severe Psychiatric report 2%-34% or $1,500 $25,500 If sexual assault case, may be able to argue adverse impact to increase quantum (COVA Regulation 1A) Eg: adverse impact on lawful sexual relations

39 How to apply for legal aid 3 options: 1. By mail (application kit comes with self-addressed envelope) 2. Face to face at any LAQ office (interpreter available with notice) 3. with a private solicitor who does LAQ work

40 Getting Legal Aid For Criminal Injuries Compensation? There is no means test but this may be introduced There is a merit test for receiving aid for Criminal Injuries Compensation. However, If the intake solicitor thinks that the client has reasonable prospects of getting Criminal Injuries Compensation, legal aid will be granted.

41 Is Legal Aid for Criminal Injuries Compensation free? If our client receives Criminal Injuries Compensation, they will have to pay a retrospective contribution ie: our costs are taken out of the final compensation payment If our client does not receive Criminal Injuries Compensation, there is no repayment for professional fees or outlays

42 How much is the retrospective contribution? If the client receives less than $20,000 Client pays no more than 20% of payment plus GST If the client receives more than $20,000 Client pays no more than $4,000 plus GST

43 Who prepares the case? If the file is kept by the Civil Justice (Criminal Injuries Compensation) Unit: a solicitor and a Litigation Support Officer will prepare the client s case Some Regional LAQ offices and some private firms doing legal aid work also do Criminal Injuries Compensation work.

44 DEBATE CAN THE CLIENTS IN THE FACT SCENARIOS CLAIM CRIMINAL INJURIES COMPENSATION?