Criminal Injuries (Compensation) Act 1973

[20 December 1973]

[preamble and words of enactment omitted]

Interpretation

1 (1) In this Act, unless the context otherwise requires—

"Board" means the Criminal Injuries Compensation Board estab lished under section 2;

"child" includes stepchild, illegitimate child, adopted child and the child of a spouse;

"dependants", in respect of a deceased victim, means such of the relatives of the victim as were wholly or partially dependent upon his income at the time of his death or would have been so dependent but for the incapacity due to the injury from which the death resulted; and for the purposes of this defini tion, a child of the victim conceived prior to the injury which caused the victim's death, but born after that death, shall be deemed to have been wholly dependent upon the victim's in come at the time of that death;

"injury" means actual bodily harm and includes pregnancy and mental or nervous shock;

"motor vehicle" has the same meaning as "motor car" in the Mo tor Car Insurance (Third Party Risks) Act 1943 [title 21 item 5];

"offence" means a criminal offence and includes any act which would be a criminal offence were the act performed by a per son of full age and capacity, as well as an attempt to commit a criminal offence;

"relative", in respect of a victim, means his or her spouse (including any spouse by any former marriage), parent, grandparent, great-grandparent, stepfather, stepmother, child, grandchild, great-grandchild, brother, sister, half-brother, half-sister or spouse's parent and, in respect of an illegitimate victim, includes his or her mother, father, brother, sister, half-brother or half-sister;

"victim" means a person who has sustained an injury in the cir cumstances set out in section 3;

"violence" includes—

(a) the use of physical force;

(b) the threatened or apprehended use of physical force;

(2) For the purposes of this Act "crime of violence" means—

(a) any offence constituted by any provision of law of which violence is an element;

(b) any offence constituted by the Criminal Code [title 8 item 31] of which negligence is an element,

but does not include an offence arising from the driving or use of a motor vehicle unless the motor vehicle was, at the time of the commission of the offence, being primarily used for the purpose of—

(i) causing injury; or

(ii) committing, or facilitating the commission of, some other offence; or

(iii) avoiding arrest, or escaping detention, in con nection with some other offence.

(3) For the purposes of this Act the Board may deem persons to be spouses of each other if—

(a) although not married, they cohabit as man and wife and were known as such in the community where they lived; and

(b) the relationship was of some permanence.

(4) For the purposes of this Act the Board may deem a person not to be the spouse of another if he or she were living apart from such other person in circumstances that would have disentitled such person from maintenance.

Criminal Injuries Compensation Board

2 (1) For the purposes of this Act there shall be established a body of persons to be called the Criminal Injuries Compensation Board.

(2) The members of the Board shall be appointed by the Gover nor on the advice of the Premier, and shall consist of—

(a) a Chairman, who shall be a judge of the Supreme Court of Bermuda;

(b) one member who shall be a person entitled to practise in Bermuda as a medical practitioner under the Medical Practitioners Act 1950 [title 30 item 8];

(d) two other members.

(3) The incidental provisions contained in the Schedule shall have effect with respect to the Board.

Injuries which may be compensated

3 (1) Where a person is killed or injured, and the death or injury is directly attributable to—

(a) the commission by any other person of a crime of vio lence;

(b) the lawful arrest, or lawfully attempted arrest, of any person for having committed an offence or who is sus pected of having committed an offence;

(d) the prevention or attempted prevention of an offence,

the Board may on application make an order for the pay ment of compensation, in such amount as it may deter mine—

(i) to or for the benefit of the victim; or

(ii) where the compensation is in respect of pecu niary loss suffered or expenses incurred, as a result of the victim's injury, by any person re sponsible for the maintenance of the victim, to that person; or

(iii) where the death of the victim has resulted—

(A) to or for the benefit of the victim's de pendants or any one or more of them; or

(B) if there are no such dependants and the compensation is in respect of expenses incurred as a result of the victim's death, to the person who incurred those expenses.

(2) In determining whether to make an order under this sec tion, the Board shall, without prejudice to section 6(4)(a), have regard to all such circumstances as it considers relevant and, in particular, to any provocative or negligent behaviour of the victim which it is satisfied con tributed, directly or indirectly to his injury or death.

(3) Without restricting the generality of the discretion vested in the Board under this section the Board may refuse to make an order hereunder if the victim was, at the time when the injury was sustained, living with the offender as his wife or her husband or as a member of the offender's household.

(4) No order shall be made under this section—

(a) if the injury is one for which a total compensation of less than $400 would be payable; or

(b) if the victim fails, without reasonable cause—

(i) to undergo any medical examination which he may be required to undergo by the Board; or

(ii) to produce or cause or permit to be produced to the Board any medical records, X-rays or other documents relating to his injury or medical his tory which the Board may require to be pro duced.

(5) The Board may refuse to entertain a claim for compensation where no person has been prosecuted for the offence giving rise to the injury or death unless the offence has been reported to the police as soon as reasonably practicable after its commission by the victim or some other person on behalf of the victim or, in the event of his death, by one of his dependants or some other person on behalf of such person.

[section 3 amended by 1991:105 effective 1 April 1992]

Application for compensation

4 (1) An application for compensation shall be made within one year of the date of the injury or death in respect of which the application is made; but the Board may, if it thinks fit, extend the period of one year for such further period as it thinks fit.

(2) A copy of every application under subsection (1) shall be served on such persons as the Chairman of the Board may direct and ev ery person upon whom such copy is served shall be deemed to be a party to the proceedings with effect from the date of such service.

(3) An application for compensation may be made by any of the persons mentioned in section 3(1)(i), (ii) or (iii), but so that—

(a) where the death of the victim has resulted, the applica tion may be made by the victim's spouse on behalf of both the applicant and of such of the children of the marriage, if any, as are the victim's dependants;

(b) where—

(i) there is no surviving spouse of a deceased vic tim; or

(ii) the victim or other person entitled to apply for compensation is, by reason of age or other wise, incapable of making the application,

the application may be made by such person as the Board may allow.

Procedural matters

5 An order may be made under section 3 whether or not any per son is prosecuted for, or convicted of, any offence connected with the injury, but so that an application may be made, by or on behalf of the Attorney General, at any time before the order is made, for an adjourn ment of any proceedings under this Act on the ground—

(a) that a prosecution or appeal in respect of an offence connected with the injury has been commenced; or

(b) that such a prosecution or appeal is likely to be com menced soon,

and, in any such case, the Board may adjourn the proceedings for such period as it thinks fit.

Assessment of compensation

6 (1) Subject to the succeeding provisions of this section, com pensation may be awarded under this Act in respect of any one or more of the following matters only—

(a) expenses actually and reasonably incurred as a result of the victim's injury or death;

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

(d) other pecuniary loss resulting directly from the victim's injury;

(e) any other expenses resulting directly from the victim's injury which, for special reasons stated by the Board, it is, in the opinion of the Board, reasonable and proper to make good to the victim or his dependants out of public funds;

(f) pain and suffering of, and loss of amenities by, the vic tim;

(g) maintenance of a child born as a result of rape;

(h) costs of proceedings under this Act.

(2) No compensation shall be awarded by way of exemplary or vindictive damages, or by way of aggravated damages.

(3) When the victim of a criminal injury dies, the compensa tion, if any, under subsection (1)(c) shall, subject to subsection (4), be determined without reference to any loss or gain to his estate consequent on the injury.

(4) The Board, in determining the amount of compensation, if any, to be awarded under this section, shall—

(a) make such deduction, as in the circumstances it may think fit, in respect of any provocative or negligent be haviour of the victim which the Board is satisfied con tributed, directly or indirectly, to the injury;

(b) deduct any sums paid to or for the benefit of the victim or any of his dependants, by way of compensation or damages from the offender or any person on the of fender's behalf, consequent on the injury or on death re sulting therefrom; and

(c) take into account any right to pension, gratuity, statu tory benefit or compensation under a contract of insur ance or assurance payable to or for the benefit of the victim or any of his dependants which the Board is sat isfied has been or will be paid consequent on the injury or on death resulting therefrom.

Terms of the order

7 (1) An order for the payment of compensation under this Act may be made on, and subject to, such terms and conditions as the Board thinks fit as to—

(a) the payment, disposition, allotment or apportionment of the compensation;

(b) the holding of the compensation or any part thereof in trust for the victim or the dependants, or any of them, whether as a fund for a class or otherwise.

(2) Any compensation payable in respect of expenses may, in the discretion of the Board, be paid directly to the person entitled thereto.

Interim compensation

8 Where—

(a) the applicant is in actual financial need; and

(b) it appears to the Board that it will probably award com pensation to the applicant,

the Board may, in its discretion, order interim payments to the applicant in respect of maintenance and medical expenses and, if compensation is not awarded, the amount so paid shall not be recoverable from the appli cant.

Form of compensation

9 Subject to section 10 the Board may order compensation to be paid in a lump sum or in periodic payments, or both, as the Board thinks fit.

Maximum awards

10 The amount awarded by the Board to be paid in respect of the injury or death of one victim shall not exceed—

(a) in the case of lump sum payments, $70,000; and

(b) in the case of periodic payments, $700 per month, up to a maximum of $70,000,

(c) in the case of both lump sum and periodic payments, $70,000, $20,000 as the lump sum, and $700 per month as the periodic payment.

[section 10 repealed and replaced by 1991:105 effective 1 April 1992]

Variation of award

11 (1) The Board may at any time on its motion or on the applica tion of the victim or any dependant of the victim or the Attorney-General, vary an order for payment of compensation in such manner as the Board thinks fit, whether as to terms of the order or by increasing or decreasing the amount ordered to be paid, or otherwise.

(2) In proceedings under subsection (1), the Board shall con sider—

(a) any new evidence that has become available;

(b) any change of circumstances that has occurred since

the making of the order or any variation thereof, as the case may be, or that is likely to occur; and

Civil proceedings and subrogation

12 (1) Subject to the following provisions of this section, nothing in this Act affects the right of any person to recover from any other per son by civil proceedings damages in respect of the injury or death.

(2) The Board shall be subrogated to all the rights of the person for whose benefit an award of compensation is made under this Act to recover damages by civil proceedings in respect of the injury or death and the Board may maintain an action in the name of such person against any person against whom such action lies.

(3) Any amount recovered by the Board under this section shall be applied,—

(a) firstly, to payment of the costs actually incurred in the action and in levying execution;

(b) secondly, to reimbursement to the Board of the value of the compensation awarded,

and the balance, if any, shall be paid to the person whose rights were subrogated.

(4) Any settlement or release shall not bar the rights of the Board under subsection (2) unless the Board has concurred therein.

Recovery from victim or dependant

13 (1) Where compensation is paid under this Act to or for the benefit of any victim or dependant and there has been or is subsequently paid to or for the benefit of such victim or dependant, by way of compen sation or damages from the offender or any person on the offender's be half, any sum which has not been deducted under section 6(4)(b), the person receiving any such sum shall forthwith notify the Board and shall forthwith reimburse to the Board—

(a) the amount of the compensation paid under this Act to or for the benefit of such victim or dependant, if that amount is equal to or less than the said sum; or

(b) the said sum, if the amount of the compensation paid under this Act is greater,

but so that no person shall be required by virtue of this subsection to reimburse, in all, to the Board more than the amount of the compensa tion paid by the Board.

(2) Any moneys required to be reimbursed under subsection (1) and not so reimbursed shall be recoverable as a debt due to the Crown.

(3) Any person who, being required by subsection (1) to notify the Board of the receipt of any sum by way of compensation or damages, fails to do so shall, without prejudice to his liability under that subsec tion to reimburse any moneys to the Board, commits an offence:

Punishment on summary conviction: imprisonment for 6 months or a fine of $1,000, or both such imprisonment and fine.

Presumptions

14 (1) In any proceedings under this Act—

(a) the fact that a person has been convicted of an offence by or before any court in Bermuda shall be receivable by the Board as evidence for the purpose of proving the acts, omissions or conduct on which the conviction was based, whether he was so convicted upon a plea of guilty or otherwise; but no conviction other than a subsisting conviction shall be so receivable in evidence;

(b) in which a person is proved to have been convicted of an offence by or before any court in Bermuda he shall be taken to have been guilty of the acts, omissions or con duct on which the conviction was based, except in so far as the contrary is proved.

(2) In subsection (1)—

"conduct" includes the state of mind or manner in which any thing was done or omitted;

"offence" means an offence resulting in injury or death;

"subsisting conviction" includes, where a conviction for an of fence has been replaced on appeal by a conviction for another offence, the conviction for that other offence.

Exclusion of public

15 (1) The Board may, with the consent of the person making ap plication for compensation, exclude the public or any representative of the press from any of its sittings.

(2) At any hearing held in public the Board may make an order prohibiting the publication of any report or account of the whole or any part of the evidence at such hearing where the Board considers it neces sary.

(3) Any person who publishes a report or account of any evi dence at a hearing contrary to an order of the Board under subsection (2) commits an offence:

Punishment on summary conviction: a fine of $1,000.

Appeal to Court of Appeal

16 (1) The Attorney-General, or any party to the proceedings be fore the Board who is aggrieved by the decision of the Board, may appeal to the Court of Appeal for Bermuda against that decision within twenty-one days (or such longer period as the said Court of Appeal may in any particular case for good cause allow) after the Board delivers its decision, by lodging a notice of appeal with the Board upon the grounds that the decision of the Board is—

(a) erroneous in law; or

(b) unreasonable.

(2) Upon hearing any appeal under this section, the Court of Appeal for Bermuda may make such order, including an order for costs, as it thinks fit.

(3) Section 9 of the Court of Appeal Act 1964 shall be deemed to extend to the making of rules under that section to regulate the prac tice and procedure on an appeal under the provisions of this section.

Payment of compensation

17 (1) Compensation ordered to be paid shall be paid out of the moneys appropriated therefor by the Legislature.

(2) Any reimbursement to the Board under section 13 shall be paid into the Consolidated Fund.

Rules

18 (1) The Chairman of the Board may make rules—

(a) for regulating the practice and procedure of the Board;

(b) providing for the manner in which the service of any document is to be effected for the purposes of this Act or the rules;

(c) prescribing any matter which is necessary or convenient to be prescribed for the carrying out of or giving effect to this Act.

(2) Section 6 of the Statutory Instruments Act 1977 [title 1 item 3] shall not apply to rules made under this section.

Annual report

19 (1) The Board shall as soon as practicable after the termination of each calendar year, submit an annual report to the Premier on the ac tivities of the Board.

(2) The Premier shall as soon as practicable after receiving the report of the Board, lay such report before both houses of the Legisla ture.

Application of Act

20 This Act applies in respect of claims for compensation arising from an act or omission that occurs after this Act comes into force.

Commencement

21 [omitted]

[this Act was brought into operation on 26 January 1974 by SR&O 5/1974]

SCHEDULE (Section 2)

1 The Chairman and members of the Board shall be appointed to hold office for such period as the Governor thinks fit, but within such period shall hold office at the Governor's pleasure.

2 Any member of the Board may at any time resign his appoint ment by notice in writing addressed to the Governor.

3 The Board may act notwithstanding any vacancy in its member ship, and no act of the Board shall be deemed to be invalid only by rea son of a defect in the appointment of a member thereof.

4 The Board shall meet as often as may be necessary for it to dis patch its business under this Act.

5 A minute shall be made of every decision of the Board.

6 In any matter before the Board the Chairman or person acting as Chairman shall have a deliberate as well as a casting vote.

7 Where any member of the Board, including the Chairman thereof, is absent from Bermuda, ill, or otherwise unable to discharge the functions of a member of the Board, the Governor may, for the period of the inability, appoint any person he thinks fit to be a member of the Board in the place of the member who is so unable.

8 Subject to the foregoing provisions of this Schedule and the rules, the Board may determine its quorum and procedure.

9 In this Schedule "Governor" means the Governor acting on the advice of the Premier.

[Amended by
1977 : 35
1977 : 47
1984 : 5
1991 : 101]

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Bermuda Consolidated Legislation

Criminal Injuries (Compensation) Act 1973