PARTIES:					McILFATRICK, Jannine Clare

						v
			
						CHARD, Sonny Raymond

						and

						THE NORTHERN TERRITORY OF 							AUSTRALIA

TITLE OF COURT:			Supreme Court of the
						Northern Territory

JURISDICTION:				Supreme Court of the Northern
						Territory exercising 
						original Jurisdiction

FILE NOS:					No. 121 of 1995

DELIVERED:				Darwin 4 September 1995 

HEARING DATES:				14 August 1995

JUDGMENT OF:				Angel J

CATCHWORDS:

Statutes - Interpretation - Crimes compensation - 
Whether provision for future pecuniary loss allowable - Is allowable under the Act

Crimes (Victims Assistance) Act (NT) ss5, 9, 10

REPRESENTATION:
Counsel:
Applicant:		M Hooper
Second Respondent:	D Lisson
Solicitors:
Applicant:		Ward Keller
Second Respondent:	Solicitor for the Northern Territory

Judgment category classification: A
Court Computer Code: 
Judgment ID Number: ang95014
Number of pages: 13

ang95014

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA

No. 121 OF 1995	

						BETWEEN:

						JANNINE CLARE McILFATRICK
							Applicant				

						AND:

						SONNY RAYMOND CHARD
							First Respondent

						AND:

						THE NORTHERN TERRITORY OF AUSTRALIA						
							Second Respondent

CORAM:   ANGEL J

	REASONS FOR JUDGMENT

	(Delivered 4 September 1995)

	Question of law reserved pursuant to s19 of the Crimes (Victims Assistance) Act NT.  

	The question so reserved is as follows: do the provisions of Section 9(1)(d) of the Crimes (Victims Assistance) Act enable the Local Court to include an amount for future pecuniary loss in an Assistance Certificate issued in respect of an application under s5(1) or (2) of the Crimes (Victims Assistance) Act? 

	Section 9 of the Crimes (Victims Assistance) Act provides:

	"(1)	In assessing the amount of assistance to be specified in an assistance certificate in respect of an application under s5(1) or (2) - the court may, subject to this Act, include an amount in respect of -

	(a)	expenses actually incurred as a result of the injury suffered by, or the death of, the victim;

	(b)	pecuniary loss to the victim as a result of his total or partial incapacity for work;

	(c)	pecuniary loss to the dependants of the victim as a result of his death;

	(d)	any other pecuniary loss arising in consequence of injury suffered by, or the death of, the victim and any other expenses reasonably so incurred;

	(e)	pain and suffering of the victim;

	(f)	mental distress of the victim;

	(g)	loss of the amenities of life by the victim;

	(h)	loss of expectation of life by the victim; and

	(j)	loss of, or damage to, the clothing of the victim being worn at the time of the commission of the offence.

	(2)	For the purposes of subsection (1)(f), mental distress does not include grief."

	The applicant, who had included a claim for future dental expenses in her application for assistance, submitted that pursuant to s9(1)(d) of the Act a court may include future pecuniary losses or expenses in assessing the amount of assistance to be awarded under the Act.  In support of this submission she relied on three local court decisions to that effect:  no. 8726639 McDowall v Jardine and the Crown Solicitor for the Northern Territory; no. 9301177 Pool v Johnson and Solicitor for the Northern Territory; no. 9311882 Kenward v Abbott and the Solicitor for the Northern Territory. 

	The applicant submitted that s9(1)(d), when read in the context of the remainder of s9 and the Act as a whole, covered both 'future' and 'past' expenses.  

	The applicant submitted that s9(1)(a) related to expenses "actually incurred" at the date of the hearing; that is, where liability for an expense had been incurred and paid for and recompense sought and that s9(1)(d) could not cover "past" losses only, as that would render that provision otiose, its terms (if so construed) taking the matter no further than s9(1)(a).  As Gibbs J (as he then was) said in Beckwith v R (1976) 12 ALR 333 at 337:

	"As a general rule a court will adopt that construction of a statute which will give some effect to all the words which it contains."

	The applicant also referred to sub-paragraphs (e), (f), (g) and (h) which are not restricted to the past and which attract Common Law assessment principles:  see Hansen v The Northern Territory of Australia and Kennedy, unreported, 18 May 1994, Mildren J.

	Differences of opinion have been expressed by learned Magistrates on the question.  In no. 8502839 Archer v Deas and the Northern Territory, Mr McGregor SM held that s9(d) of the former Crimes (Compensation) Act, the predecessor to s9(1)(d), did not permit an award in respect of future expenses.

	The learned Magistrate said:

	"[Submissions were led] that these future dental expenses cannot be certified by me under 9(d), 10(e) or any other part of the Act.  [In particular it was submitted] that 'expenses reasonably so incurred' in 9(d) are, like 'expenses actually incurred' in 9(a) limited to expenses which have been incurred.  I agree that is the plain meaning of the words [sic].  'Incurred' is a past participle."

	The learned Magistrate concluded:

	"I have reached the view, by no means reluctantly, that the neither s9 nor s10 covers anticipated dental expenses.  I see good reason for this, they are in a different category, say, loss of the amenities of life.  If they did not eventuate there would be unjust enrichment of the victim at that expense of the tax payer (and possibly of the offender).  In view of the Act's deficiencies I am most reluctant to construe it so as to increase its liberality.  I note that the applicant had easy remedy - to get the hearing adjourned till some or all of the dental work was done.  And of course he can sue [the offender]."

	In McDowall v Jardin and Crown Solicitor for the Northern Territory, supra, another learned Magistrate reached a contrary conclusion.  He said:

	"Medical, hospital and like expenses have traditionally been considered a form of pecuniary loss.  However, if they have already been incurred by the time of the trial of the matter they are covered, so it would appear by (a) of s9.

	If (d) is to be interpreted to refer only to losses that have already been incurred, there is in my opinion very little work for (d) to do and perhaps the only situation that it may be applicable is that which was dealt with in Griffiths v Kerkemeyer (1977) 139 CLR 161 [at 165].  It's interesting to note that the ratio of Griffiths v Kerkemeyer is that the principle upon which damages for pecuniary loss is based is that the injury creates a need, and that expenses are a measure of that need.  I believe the point is that if an injury creates a need in an applicant, say for dental treatment, why should the expenses related to that need finish at the trial or at a date earlier, and that future expenses be ignored even though the need continues.  In my view, why would the legislature confine pecuniary loss to those expenses that have been incurred and then allow consideration of future loss in some of the remaining subparagraphs of s9.  Subparagraph (b) uses the language of workers compensation legislation; at common law it was usually termed loss of earning capacity.  By linking pecuniary loss to incapacity s9(b) invokes the common law principle as stated by Gibbs, as he then was in Griffiths v Kerkemeyer, supra, at 165, and I will not quote the passage.  There is nothing in (b) that suggests that compensation for incapacity should be limited to a loss that is incurred up to the date of the hearing or at some stage prior to that date.  

	In my view, where (d)  refers to any other pecuniary loss, it is appropriate to interpret it as including future medical or like expenses.  And dental expenses would come within that category.  To that extent I would disagree with the decision of my brother Magistrate in Archer v Dias [sic]."

	In Pool v Johnson, supra, Ms Deland SM held future expenses were covered, saying:

	"With respect to my brother Magistrate, Mr McGregor, I do not agree with his judgement that expenses incurred must necessarily mean, incurred as at the time of the Assistance Certificate being signed.  There is no reason why one cannot say 'expenses incurred in the future', or 'expenses incurred in the past'.  The Act is silent as to the exact meaning of the time to be inferred from the words 'expenses incurred'.  However, given that section 9(a) refers to expenses actually incurred, I accept the argument that there would be little point for having s9(d), unless there were other expenses anticipated by the Act to be paid.

	I do not consider that to interpret the Act in this manner is to enable an applicant to have unfair enrichment.  If one is to authorise payment for costs which are reasonably anticipated to be incurred in the future, and if one assumes in this case, that those costs once incurred, would medically reduce the other effects upon the victim, then the amount to be paid to her would be reduced as far as 'pain and suffering of the victim and loss of amenities of life' is concerned."  

	The applicant submitted that there is a marked difference between s9(1)(a) and 9(1)(d) in the usage of the past tense "incurred".  Section 9(1)(a) uses the expression "actually incurred", and this was said to be distinct from s9(1)(d) which uses the expression "reasonably so incurred".  The court, it was submitted, ought utilise the purposive approach or "Golden Rule" in respect of this different terminology.  It was submitted, that whereas, s9(1)(a) related to expenses or bills that had been paid by the victim for which recompense was sought, s9(1)(d) not only related to unpaid expenses incurred, but potential or future liabilities.

	As to verb conjugation, it was submitted that the past participle, "incurred", is broad enough to be interpreted in the future tense, ie treated as the "future perfect" tense: "shall have so incurred", "will have so incurred".  Section 9(1)(d) so read, it was said, enabled the court to allow future pecuniary expenses in assessing for the purposes of an Assistance Certificate pursuant to s5 of the Act. 

	The second respondent on the other hand submitted that future pecuniary losses or expenses could not be read into s9(1)(d) of the Act.  The nub of the matter, it was submitted, turned on the words "other expenses reasonably so incurred".

	It was submitted that "incurred" being a past-participle, it necessarily related to existing liabilities or costs paid at the date of the hearing of the application, not to liabilities yet to arise.  It was submitted the fact of payment was not as significant as liability to pay, and that  liability to pay must have already been incurred at the time of the hearing.

	In support of this submission the second respondent referred to 'incurred' in Stroud's Judicial Dictionary, Fifth Edition.  Part three of the definition reads:

	"(3)	But the phrase 'have incurred expenses' meant at least that the local authority had paid those expenses, or become liable to pay them, as distinguished from estimated expenses (West Ham v Grant, 58 L.J.Ch. 121)."

	It was submitted that s9 limits the heads of assistance available to an applicant by virtue of sub-paragraphs (a) to (j).  It was submitted, s9(1) neither stipulates nor permits Common Law heads of damage to be the subject of an Assistance Certificate.  Section 9(2) and s11 expressly confine the scope and subject matter of an award; it was said, s9(1) defined the ambit of any assessment which may be made by reference to the confines of sub-paragraphs (a) to (j).

	The second respondent submitted it was significant that the Act, since its most recent amendments, now provided for 'assistance' rather than 'compensation'.

	The second respondent pointed to s23 of the Act which expressly reserves the victim's right to claim or recover compensation or damages under the Common Law or any other law. Hence, it was said, the Act was not a substitution for a person's common law rights but in addition thereto.  Therefore, it was said, a legislative intention for s9(1)(d) to include future pecuniary losses or expenses was unlikely; the statutory regime was to cover 'out of pockets', as they are known in the personal injury sphere, not matters that lay in the future.

	It was submitted that the Act is designed to expedite claims and applications (s15(2)) and that an applicant could only make one claim, ie an applicant could not successively apply again and again as he or she incurred expenses.  Section 5 requires applications to be made within 12 months after the date of the offence.  In local courts in the past, applications brought within 12 months have been adjourned in order for expenses to be properly identified and ascertained: Archer v The Northern Territory and Deas, supra, at 6. 

	The second respondent pointed out that pursuant to s8 and s14 of the Act only one Assistance Certificate could be issued by the court, and that the procedure at the hearing of an application is at the discretion of the court pursuant to s15.

	The second respondent also submitted that the "most powerful argument" as to the reach of s9(1)(d) is that it does not specifically refer to future expenses.  The legislature in drafting this section could have and should have so stated had such been intended, it was said.  

	An expanded construction of s9(1)(d) had the potential for "mischief", it was said; there was the possibility an applicant would not incur, let alone pay, future expenses.  The intent of the Act, it was said, is that assistance be provided to victims, not "a windfall".  It was submitted such a "mischief" might only be averted by a local court postponing or withholding the hearing of a matter until all relevant expenses had been incurred, but that such a course would often be inconsistent with the expedition contemplated by s15(2).

	Counsel for the parties also considered the effect of s21 dealing with recovery of the Northern Territory's payments  from the offender, and how that might be affected by "past" or "future" pecuniary losses.  However, the purpose of the Act is to assist the victim.  Were sole reliance to be placed on the victim's civil remedies to recover in respect of future pecuniary expenses, the victim would often be in jeopardy; criminals are often "persons of straw". 

	It was also submitted that sub-paragraphs (b), (f), (g) and (h), although relating to future losses, were well established common law heads of damage, assessable as at the time of the offence on the basis of present value.  Those matters, it was argued, bore no relation to s9(1)(d) which if it covered future expenses, related to matters contingent upon some future event.  Hence s9(1)(d), it was said, should not be given a 'tortured' or 'stretched' interpretation to find in its words the sanctioning of future medical expenses which might only possibly be incurred by the victim.

	It was submitted that s9(1)(a) and s9(1)(d) could be read together with each having work to do.  It was submitted 'expenses actually incurred' in s9(1)(a) covered out-of-pocket expenses already paid by the victim, whereas 'expenses reasonably so incurred' in s9(1)(d) covered expenses the liability for which had been incurred but not yet paid.

	I am of the view a local court can include an amount for future pecuniary loss in an Assistance Certificate issued in respect of an application under s5 of the Act.  Sub-paragraphs (a) to (j) of s9(1) are preceded by the words:

	"... the court may, subject to this Act, include an amount in respect of - ".

	Thus the court has a broader jurisdiction than only to examine the matters referred to in sub-paragraphs (a) to (j) of s9(1).  Subject to the Act, including the matters expressly excluded by virtue of s9(2) and s11, the task of the local court is to specify an amount of assistance to a victim of crime which is to be payable by the Northern Territory to the victim or to someone on behalf of the victim, s20.  That amount can not exceed the amount limited by s13.  It must be in respect of an injury suffered by the applicant as a result of an offence, s5(1), provided assistance is not unavailable by virtue of s12.  The quantum of assistance is to be assessed at a hearing, which is to be conducted with as little informality and technicality and with as much expedition as the requirements of the Act and a proper consideration of the application permits, s15(2), and the local court is not bound by the rules of evidence and may inform itself in such manner as it thinks fit, s15(3).  

	Once an Assistance Certificate is issued, the Northern Territory is bound to pay to the victim or another specified under s8(8) the sum certified, s20, which is recoverable from the offender, s21, and the Northern Territory, upon payment, is subrogated to the rights of the victim as against the offender, s22(a) and subrogated to the rights of the offender as against any insurer or other person from whom the offender is entitled to indemnity or contribution in respect of the offender's liability, s22(b).  The victim's common law rights against the offender are unaffected, s23(1), and payments under the Act are not to be taken into account in an ordinary civil action for damages, s23(2).  

	The local court's task in assessing assistance is a broad one, albeit circumscribed by the provisions of the Act.  An assessment is to be made having regard to all circumstances considered by the court to be relevant, s10(1), including the pecuniary state or otherwise of the offender or of the victim or both, the past and future 'out of pockets' of the victim and the matters in s9(1)(a) to (j).  The assessment may be made having regard to such matters as the temporary relief of immediate stress, both pecuniary and non-pecuniary, of a victim with self-evident long-term prospects of obtaining complete relief from the offender or the permanent relief of an applicant without hope of any recompense from the offender.

	The use of 'include' in s9 is significant.

	A broad general power to assess assistance is given to the local court, a power not confined by sub-paragraphs (a) to (j) of s9(1).  That this is so is evident from the use of the word 'include' in s9(1) and from s10 which provides:

	"(1)	In considering an application for assistance, and in assessing the amount of assistance to be specified in an assistance certificate, the Court shall have regard to the conduct of the victim and to any other matters it considers relevant.

	(2)	Where the Court, on having regard under sub-section (1) to the conduct of the victim, is satisfied that the victim's conduct contributed to the injury or death of the victim it shall reduce the amount of assistance specified in the assistance certificate by such amount as it considers appropriate in all the circumstances."

	Given the broad terms of s10(1), there is no reason why allowance could not be made for future medical or dental costs directly associated with the offence, in an appropriate case. The provisions of s9 do not expressly exclude such matters.  Nor does that section expressly include such matters.  No other section excludes such matters.  I am of the view the Local Court may make allowance for future medical or dental costs irrespective of the terms of s9(1)(d) of the Act.  

	All this is not to say a local court must make such allowance.  The court may, in the exercise of its discretion, for example, think temporary immediate relief only is indicated, knowing the offender is able to fully compensate a victim who overall has a much larger claim which is being actively pursued.  As I have said, the quantum of assistance properly certifiable, depends on all the relevant circumstances.

	It may be added that generally speaking, the court would only allow future pecuniary losses or expenses once the court was satisfied, on the balance of probabilities (s17); first, that the injury suffered by the victim had been caused as a result of the offence perpetrated;  secondly, that the ameliorative or curative measures proposed were reasonable and reasonably incidental to the injury; thirdly, that the proposed cost of such measures was reasonable; and fourthly, that the applicant genuinely intended to proceed with such measures and incur such cost.

	I would answer the question reserved thus:  the local court may include an amount for future pecuniary loss in an Assistance Certificate issued under s5(1) or (2) of the Crimes (Victim's Assistance) Act NT.
 
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