Civil Claims
As an alternative to Criminal Compensation, you may choose to commence a Civil Action against the offender. In such claims, many areas of damage are claimable that you can't seek in a Criminal Compensation claim including loss of wages and aggravated, punitive and exemplary damages. We can use the criminal conviction of the offender in such proceedings and thus enhancing your prospect of success in the civil courts. Awards, resulting from the same fact scenario, can be significantly higher with Civil claims than Criminal Compensation claims.
However Civil claims have two drawbacks. The first is that they should only be brought where there is a reasonable likelihood that the offender has sufficient assets or funds against which a Judgment can be enforced. Unlike Criminal Compensation claims you can't make an ex gratia payment application to the Government if the offender can't or doesn't pay.
Secondly, Criminal Compensation claims do not involve any orders by the courts for payment of legal costs and thus any unsuccessful claimant does not have to pay the costs of any other party involved. In Criminal Compensation claims McCowans Solicitors pay all your legal costs for you and if we are unsuccessful you just walk away paying nothing. Our policy also applies with respect to a Civil claim in that we will pay all your costs however if the action is unsuccessful then the courts usually say you have to pay the other party their costs. This means that on any unsuccessful Civil claim you would be liable for the costs of the other side and that may be a considerable sum. We would not take your case on in the first place if we did not believe it would succeed so the risk is minimal but it is still there, whereas a Criminal Compensation claim is risk free.
Should your matter involve the possibility of Civil action then we will personally discuss your options with you in more detail when the situation arises. If you have any questions in this area please e-mail us via criminalcompensation@mccowans.com.au
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Magistrates Court Matters
Compensation applications in the Magistrates Courts are undertaken under the Penalties and Sentences Act 1992 and not the Criminal Offences Victims Act 1995 (COVA), as used in the higher jurisdictions. Remember to be eligible for Criminal Compensation you must get your matter heard in the District or Supreme Courts.
In the Magistrates Court:
- the person claiming compensation must notify the prosecutor that they wish to apply
- the prosecutor applies for compensation at the time the offender is sentenced
- the Magistrate determines the amount of compensation payable
- if the offender fails to pay the compensation, it may result in a further penalty being imposed on the offender, eg: a jail term
- there are no ex gratia payments.
The amount payable is not awarded on the basis of a set scale and thus is totally at the Magistrates discretion. Often only token sums are awarded that are infinitely less than awards under COVA. For McCowans Solicitors to attend court and make submissions on your behalf in this jurisdiction would generate costs that would always exceed any payment that you may be awarded. Therefore at this time it is not practical that we act in Magistrates Court matters. We are however investigating ways that we may be of assistance in this area and may provide a service in this area at a future time.
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WorkCover Issues
With Criminal Compensation claims the Government won't make an ex gratia payment until applicants have exhausted all other sources of compensation with respect to all injuries. WorkCover is the most common source and thus a WorkCover claim should be lodged at the time of the incident.
Most Criminal Compensation claims involve psychological injury, such as Stress or anxiety i.e. Nervous Shock, as well as physical injury however in the initial instance of submitting WorkCover claims, most people generally refer only to the physical injuries.
The problem is that the Government will not make a payment until the psychological elements have also been addressed and exhausted. This often means having to go back to Workcover and repeating the entire claim process but it is often time consuming and less convincing.
As such you should include in your original Workcover claim forms that both physical injury and nervous shock may be a part of the claim.
If you were not working at the time of your injury occurred it may not be necessary for you to lodge a claim with WorkCover.
Lump Sum Payments
It should also be noted that the Government's requirement to exhaust all avenue of compensation via WorkCover includes an obligation for us to make application on your behalf for a Permanent Impairment Assessment. As a result of this assessment WorkCover occasionally make Lump Sum Payment with respect to injuries suffered. The Government then deems that sum to be part of your overall award and will deduct it from any Court awarded judgement. Example: If Courts award you $20,000.00 Criminal Compensation and WorkCover award $2,000.00 after their assessment, then the Government will only make an ex-gratia payment in the sum of $18,000.00 having deemed the first $2,000.00 to have come from WorkCover.
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