ATIEH
[2020] WADC 5
•20 JANUARY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ATIEH [2020] WADC 5
CORAM: VERNON DCJ
HEARD: 13 MARCH 2019
DELIVERED : 20 JANUARY 2020
FILE NO/S: APP 123 of 2018
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: MUSTAFA MAHOUD ATIEH
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: R GUTHRIE
File Number : CI782 of 2016
Catchwords:
Criminal injuries compensation - Appeal from assessor's decision - Turns on own facts
Legislation:
Criminal Code (WA) s 76, s 80B, s 80I, s 331, s 338, s 338B
Criminal Injuries Compensation Act 2003 (WA) s 3, s 6(2), s 9(1), s 17(2), s¤17(4), s 27(1), s 41, s 50(1), s 55(3), s 56(1), s 56(2)
Result:
Appeal allowed
Compensation awarded increased to $10,025
Representation:
Counsel:
| Appellant | : | In person |
| Amicus Curiae | : | Mr B J Tomasi on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
A v D (1994) 11 WAR 481
Crumby v Kuru (1995) 13 SR (WA) 331
Dos Santos v Dos Santos [2000] WADC 256
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Gullelo v Halloran [2008] WADC 145
Jeffery v State of Western Australia [2009] WASCA 133
M v J and J v J (Unreported WASC, Library No 920598; 19 November 1992)
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
McDavitt v McDavitt [No 2] [2013] WADC 198
Mulhall v Barker [2010] WASC 359
O v J (Unreported WASC, Library No 920027; 13 February 1992)
RJE v Bandy (Unreported WASC, Library No 1365; 31 May 1974)
Robinson [2017] WADC 18
S v Neumann (1995) 14 WAR 452
Underwood v Underwood [2018] WADC 13
VERNON DCJ:
Introduction
The appellant claimed compensation, pursuant to s 17(2) of the Criminal Injuries Compensation Act 2003 (WA) (the Act) for injury and loss allegedly suffered as a result of an incident on 27 September 2014. The appellant alleges that on that date two unknown people racially abused and threatened to kill him, at the appellant's kebab shop in Northam, in front of his three children (the Incident). No person was charged with any offence in relation to the Incident.
A person who suffers injury as a consequence of the commission of an alleged offence for which no person has been charged may apply for compensation for that injury and any loss also suffered: s 17(2) of the Act. The assessor must not make an award unless satisfied that the claimed injury and loss have occurred, and that they occurred as a consequence of the alleged offence: s 17(4) of the Act.
On 12 December 2018, an assessor of Criminal Injuries Compensation, Mr R Guthrie, awarded the appellant $5,000 compensation under the Act.
The appellant appealed the amount of the award pursuant to s 55(1)(b) of the Act. The appeal was filed within the 21 day time period allowed pursuant to s 55(3) of the Act.
The court must determine the appeal afresh on the evidence and information that was in the assessor's possession, and any fresh evidence or information the court decides to receive: s 56(1) of the Act.
The court has power to confirm, vary or reverse the assessor's decision in whole or in part, and make any other order the assessor could make: s 56(2) of the Act.
The appellant does not need to demonstrate to the court that the assessor made any error in order to succeed in the appeal: Gullelo v Halloran [2008] WADC 145 [5].
Issues
The issues to be determined in this appeal are:
1.Did the Incident occur and, if so, did it constitute an offence?
2.What injury, if any, did the appellant suffer as a consequence of the alleged offence?
3.What additional loss, if any, has the appellant suffered as a result of any compensable injury? and
4.What is the appropriate compensation for the compensable injury and losses?
Evidence and information before the court
On 25 February 2019 the appellant filed an affidavit containing a number of documents. I was informed that most, if not all, of these documents were before the assessor. To the extent that any of these documents were not before the assessor, I grant leave to adduce them as additional evidence, pursuant to s 56 of the Act.
These documents include, relevantly:
1.a letter dated 12 December 2018 from the assessor to the appellant enclosing the compensation award;
2.a police incident report dated 27 September 2014;
3.statements dated 11 March 2015 by the appellant's daughter and one of his sons concerning the Incident;
4.a letter dated 18 March 2015 from the appellant to the Northam Police;
5.a 'GP Mental Healthcare Plan' for the appellant by the appellant's general practitioner, Dr Nay Latt;
6.an undated letter from Geraldine Jenner, mental health social worker, referring to a GP referral of the appellant on 2 February 2015;
7.Wheatbelt General Practice notes for the appellant including consultation notes with Dr Latt dated 25 May 2015;
8.a letter dated 21 September 2015 from Sujana Kalwani to Dr Latt;
9.a document dated 28 February 2018 prepared by the appellant entitled 'The Main Claim';
10.reports from a clinical psychologist, Dr Michael Philp, dated 2 February 2018 and 23 May 2018;
11.a letter, dated 28 March 2018, from Dr Latt;
12.an undated Centrelink Medical Report Disability Support Pension Form attaching documents from Armadale/Kelmscott District Hospital including an inpatient treatment order dated 15 May 2018 signed by Dr Daniela Vecchio, consultant psychiatrist, with a page entitled 'Opinions and Recommendations'; and
13.a discharge summary dated 15 May 2018 authored by Dr Vecchio.
On 19 March 2019 the appellant adduced in evidence the following further documents obtained from Dr Latt's practice, pursuant to my granting him leave to do so at the hearing on 13 March 2019:
1.A letter dated 18 March 2019 from Dr Latt, and Dr Latt's notes dated 5 May 2015 and 2 September 2015 of consultations with the appellant;
2.A letter dated 26 February 2019 from Bouah Kardio, recovery worker, Richmond Wellbeing; and
3.An invoice dated 22 February 2019 from Wheatbelt Health Network charging a fee of $25 for the transfer of medical records.
In reaching a decision I may have regard to the assessor's assessment, as a specialist tribunal in the field of criminal injuries compensation: Crumby v Kuru (1995) 13 SR (WA) 331, 333. However, there are no written reasons for the assessment as the appellant did not request the assessor provide written reasons: s 27(1) of the Act. In those circumstances I can give little weight to the bare facts that the learned assessor was satisfied that the appellant had suffered an injury as a consequence of the commission of an offence, and assessed the appropriate compensation at $5,000.
The appellant was unrepresented at the hearing of the appeal on 13 March 2019. The Chief Executive Officer of the Department of the Justice was represented by Mr Tomasi, who appeared as amicus curiae, and who filed extensive written submissions which have greatly assisted the court.
The alleged offence
General principles
The term 'alleged offence' is defined in s 3 of the Act as meaning 'a crime, misdemeanour or simple offence of which no person has been convicted'.
The appellant must satisfy the court, on the balance of probabilities, that an alleged offence occurred: Dos Santos v Dos Santos [2000] WADC 256 [13]. The court must also be satisfied that there were no defences reasonably open to the offender: Robinson [2017] WADC 18 [22].
Evidence that an alleged offence occurred
On 18 March 2015 the appellant wrote a letter to Northam Police Station outlining the circumstances of the Incident. The appellant wrote this letter because he considered that the police had not adequately investigated the Incident, as the alleged offenders had not been charged. The appellant said in the letter that:
1.On Saturday, 27 September 2014 between 8 pm - 8.30 pm he was in his kebab shop in Northam with his three children, then aged 14, 13 and 9.
2.Two men entered the shop and asked the appellant if he was a Muslim. When he replied 'yes' they said 'we are going to kill you'.
3.The men started speaking in very loud voices and were saying words to the effect of 'go back to your fucking country or we will kill you right here.'
4.One of the men opened the drinks fridge and started dropping cans on the floor and pulled the door curtain down.
5.The appellant asked them to go outside so he could speak to them because his children were with them, but they repeated their threats.
6.The appellant noticed that there were a group of men standing in front of the pub across the road from his shop all wearing black and one was holding up his mobile phone and filming what was happening.
7.The appellant tried to get his children in the car. The two men tried to stop him saying 'we are going to kill you in front of your kids'. They said this about three times. He forced himself to get past them and left. He then went to the police station and reported the matter.
On 11 March 2015 the appellant's daughter wrote a statement describing the Incident. She says that she and her two younger brothers were at their father's kebab shop. Two men walked in and asked her father if he was a Muslim to which her father replied 'yes'. The men started saying to her father that they were going to kill him. Her father asked the men if he could speak to them outside. The men said no and started taking cans of drinks out of the drink machine and throwing them on the floor and pulling down the door curtain. Her father told her and her brothers to go to the car where they stayed, scared and crying. The appellant's daughter said that the men started saying they wanted to kill her father in front of his children, and started swearing and speaking in loud voices.
The appellant's son also provided a statement on 11 March 2015 in similar terms.
The police incident report in evidence confirms that police attended the appellant's shop and a nearby tavern at 11.30 pm on 27 September 2014 in relation to a racial vilification complaint by the appellant, and that two people of interest were spoken to by police. It appears from this report that after the Incident, one of the people of interest went on to attempt to re-enter the tavern, was arrested, committed a number of offences whilst in custody, and was charged in relation to those. The two people who had entered the kebab shop were not, apparently, charged with any offence in relation to the appellant. The reasons are unclear.
Although the statements given by the appellant and his children were made nearly six months after the events of 27 September 2014, I have no reason to doubt their truthfulness or accuracy, particularly as they were given in the context of the appellant's criticism of the police that they had not pursued the offenders. Neither do these statements appear to me to be embellished or inherently unlikely. I accept the facts of the Incident as set out in those statements.
The appellant does not identify precisely what offence he alleges was committed by the offenders. As the amicus curiae submits, on the facts, three possible offences appear to arise. These are:
1.Racial harassment: s 80B of the Criminal Code (WA) provides that:
Any person who engages in any conduct, otherwise than in private, that is likely to harass a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 3 years.
The term 'harass' is defined in s 76 of the Criminal Code to include:
to threaten, seriously and substantially abuse or to severely ridicule.
Muslims are included in the definition of a racial group: Mulhall v Barker [2010] WASC 359 [14].
2.Threatening to kill in circumstances of racial aggravation: s 338B of the Criminal Code provides that:
Any person who makes a threat to unlawfully do anything mentioned in section (a), (b), (c), (d) or (e) is guilty of a crime and is liable -
(a)where the threat is to kill a person, to imprisonment for 7 years or, if the offence is committed in circumstances of racial aggravation, to imprisonment for 14 years;
(b)in the case of any other threat, to imprisonment for 3 years or, if the offence is committed in circumstances of racial aggravation, to imprisonment for 6 years.
Section 338(a) of the Criminal Code provides that:
A reference to a threat is a reference to a statement or behaviour that expressly constitutes, or may reasonably be regarded as constituting, a threat to:
(a)kill, injure, endanger or harm any person, whether a particular person or not.
Proof of a threat to kill requires evidence that a threat was made and objectively declares an intention to kill. The context in which the words are spoken is relevant in determining whether the statement does, in fact, declare an intention to kill. There is no requirement that the victim subjectively believes they were in danger of being killed, but the circumstances must convey that the threat reached some level of seriousness: Jeffery v State of Western Australia [2009] WASCA 133 [30].
Circumstances of racial aggravation for the purposes of s 338B is defined in s 80I of the Criminal Code to mean circumstances in which:
(a)immediately before or during or immediately after the commission of the offence, the offender demonstrates hostility towards the victim based, in whole or part, on the victim being a member of a racial group; or
(b)the offence is motivated, in whole or in part, by hostility towards persons as members of a racial group.
3.Assault: s 313(1) of the Criminal Code provides that:
Any person who unlawfully assaults another is guilty of a simple offence and is liable:
(a)if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, to imprisonment for 3 years and a fine of $36,000.
The term 'assault' is defined in s 222 of the Criminal Code and, relevantly, includes:
A person … by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose …
Findings on the alleged offence
I am satisfied on the facts I have accepted that the requirements of both the offences of racial harassment under s 80B of the Criminal Code, and a threat to kill in circumstances of racial aggravation under s 338B of the Criminal Code have been met, and that it is more likely than not that both these offences occurred. In relation to the former offence, on the facts I have accepted, the appellant was threatened and abused because he was a Muslim man. In relation to the latter offence, on the facts I have accepted, a threat to kill was made, and repeated. Given the words spoken, the circumstances those words were said, the physical actions of the two men whilst in the shop, the fact it was night, and the appellant was alone in the shop with his children, in my view the threats were objectively serious. There is no suggestion in the facts of any matter which would be raised by way of defence. As such it is not necessary for me to determine whether the circumstances also amount to an assault.
The alleged injury
General principles
The term 'injury' is defined in s 3 of the Act to mean 'bodily harm, mental or nervous shock, or pregnancy'.
The injury the appellant claims to have suffered is mental and nervous shock. There is no evidence that any physical force was applied to the appellant during the commission of the offence, or that he suffered any physical injury.
Mental or nervous shock must be more than a mere emotional reaction and be something of a more enduring character which may be described as an injury in both the legal sense and in common language: S v Neumann (1995) 14 WAR 452, 461 (Murray J). This includes distress, horror, disgust and other similar adverse mental reactions: M v J and J v J (Unreported WASC, Library No 920598; 19 November 1992), 11.
A causal connection between the injury and the commission of the offence is required, which is primarily a question of fact. It is not, however, necessary for the offence to be the sole cause of the injury in order for that causal connection to be established: Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, 673 (Mason and Wilson JJ).
It is, however, necessary to attempt to distinguish between the direct impact of the offence and further damage that may be suffered by such things as the reaction of the victim's friends and family, court proceedings or public attention for which compensation cannot be allowed under the Act: RJE v Bandy (Unreported WASC, Library No 1365; 31 May 1974) (Burt J).
Section 41(a) of the Act provides that an assessor must have regard to any behaviour, condition, attitude or disposition of the victim that contributed, directly or indirectly, to the victim's injury. Section 41(b)(i) and s 41(b)(ii) provide respectively that the assessor may, if he or she thinks it is just to do so, refuse to make a compensation award because of that contribution or reduce the amount the assessor would otherwise have awarded.
As was submitted in the amicus' submissions, there are two lines of authority in this court about the meaning of s 41 of the Act. The first line of authority holds that the reference in s 41 to the victim's behaviour, condition, attitude or disposition is limited to the extent to which those factors contribute to the commission of the offence against the victim which is causally connected to the injury. The alternative view is that there is no basis for imposing that limitation on the apparently clear meaning of the words in s 41, and that section requires an assessor to take into account the contribution to the injury made by any pre-existing or subsequent condition, attitude or disposition which has contributed to the injury being assessed, and to carry the effect of that into the assessment of compensation if the assessor considers it is just to do so.
Her Honour Judge Davis provided an extensive analysis of the two lines of authority in McDavitt v McDavitt[No 2] [2013] WADC 198 [24] - [54]. I respectfully agree with her Honour's conclusion that the latter is the correct approach. As her Honour says, the extent to which such conditions are taken into account is subject to the court's determination of what is just in the circumstances of the case. However as his Honour Judge Gething said in Underwood v Underwood [2018] WADC 13 [30], the first line of authority also provides a framework for other causes to be taken into account where there are multiple causes of injury for which compensation is claimed under the Act, and s 30 of the Act requires the compensation to be awarded in an amount the assessor thinks is just.
Accordingly, if an assessor is satisfied on the evidence that a non‑compensable condition has causally contributed to the injury the appellant will not necessarily be entitled to full compensation and the award of compensation may be reduced to take into account that contribution, provided it is just to do so.
Evidence of the alleged injury
The medical evidence before me is limited and is as follows:
1.On or about 2 February 2015, Dr Latt referred the appellant to the Wheatbelt GP Network for 10 counselling sessions, which were allocated to Geraldine Jenner, a social worker.
2.The appellant saw Ms Jenner on three occasions between February and May 2015, although he also attended sessions scheduled for his daughter. Ms Jenner said in her letter reporting to Dr Latt, relevantly:
[The appellant] was affected by his life being threatened by two men in his kebab shop. It was had [sic] a huge impact due to the fact that his children were witness to the incident.
I provided [the appellant] with the psycho education around the survival response and how trauma affects the victim physically and psychologically.
[The appellant] was not very receptive, however, to the introduction of any physical or psychological strategies to help him recover from the traumatic incident.
[The appellant] appears to be unable to pass to the recovery stage at the moment as he is focussed on seeking compensation. He asked me for a copy of my report. I explained my role as counsellor was not to write a report. [The appellant] then said he no longer wanted to see me if I could not help him. I explained I sent you a letter in response to your referral.
In my professional opinion I feel that [the appellant] requires more imput in regard to his mental health. I recommend he is referred to Wheatbelt Mental Health Service.
3.On 5 May 2015, Dr Latt saw the appellant and noted in his consultation notes that the purpose of the visit was 'review, referral letter, anxiety' and that the appellant reported that he was 'still having worry, ongoing problem'. Dr Latt referred the appellant to another psychologist.
4.On 2 September 2015, Dr Latt saw the appellant and noted that the appellant as seeking a psychologist's report. Dr Latt subsequently wrote a letter to the psychologist, Sujana Kalwani, asking for a report.
5.On 21 September 2015, Ms Kalwani wrote to Dr Latt confirming Dr Latt's referral of the appellant on 5 May 2015 and said, relevantly:
[The appellant's] initial session was conducted on the 7/7/15 during which a clinical interview and assessment tools, such as the DASS21, aided the design of the intervention plan.
Presenting complaint is client's referral reports:
•Anxiety
•Stress
Assessment
•Clinical interview
•DSM-IV Classification
•DASS21 (Pre)
Score indicated
Depression: severe range
Anxiety: moderate range
Stress: moderate range
Treatment progress including obstacles to progress
[The appellant] attended four counselling sessions. He primarily utilised counselling appointments to report of an extensive history of what he reportedly believes and perceives, that he and his family have been the victims of discrimination.
[The appellant] informed that he does not consider that he has any mental health issues that he needs to address. [The appellant] informed that he wants legal assistance as such I suggested he contacts legal aid to ascertain any legal support or assistance that may be available to him.
6.The next evidence occurs approximately 2 ½ years later. On 2 February 2018, a clinical psychologist, Mr Michael Philp, wrote to Dr Latt confirming that he had received Dr Latt's referral of appellant on 27 November 2017. Mr Philp said that the appellant reported a long history of stressful events including being attacked with a knife while working at a kebab shop. Mr Philp said that the appellant was suffering significant financial hardship after separating from his wife. The appellant reported depressive symptoms of low mood, feelings of hopelessness and passive suicidal thoughts (praying to God to end his life). Mr Philp said the appellant felt discriminated against due to his religion and ethnicity. Mr Philp considered it was possible there was a persecutory belief structure in the appellant's personality as well as symptoms of depression. Mr Philp said that he would continue to see the appellant to address his symptoms of depression.
7.On 28 March 2018, Dr Latt wrote a letter concerning the appellant 'to whom it may concern' which said relevantly:
This letter is to confirm that above-mentioned patient has skin lesions which seems to be aggravated by habitual picking directly due to patient's ongoing stress and situational crisis. Patient is currently seeing psychologist for counselling.
8.On 9 May 2018, the appellant was involuntarily admitted to Armadale/Kelmscott District Hospital Mental Health Service. He was discharged on 15 May 2018. An incomplete, unsigned document entitled 'Opinion and Recommendation' dated 14 May 2018 has been provided to me. It is a reasonable assumption, in my view, that this document was prepared by Dr Daniela Vecchio who is referred to in documents as the 'revoking psychiatrist'. The contents of this document read relevantly:
[The appellant] was assessed by the ATT clinical nurse specialist and consultant on the 7th of May 2018. He described long-standing ideas of being unfairly treated by a number of institutions since 1997 and his belief that the government, police and justice system have ganged up to destroy him. The working diagnosis was of paranoid delusional disorder.
Following a phone call on the 8th of May in which he disengaged from the service and declined medication he was admitted to Armadale Mental Health unit under the Mental Health Act.
…
The picture at present is incomplete and further collateral information from a number of sources is needed.
However, it appears that his ideas are long-standing, fixed and are unlikely to be fully explained by his cultural or religious background. There is also the possibility that there has been a change in his mental health and functioning over the last five years with possible intensification in recent months.
He is aware that he is feeling 'stressed' and he is asking for help 'as long as people are honest and straightforward'.
In my opinion he is likely be (sic) suffering from a mental illness and would benefit from treatment for this. A further period of assessment, including seeking collateral information is needed. ...
9.The hospital discharge summary, authored by Dr Vecchio and dated 15 May 2018 says, relevantly, that the provisional diagnosis was delusional disorder and that:
[The appellant] was referred to ATT by clinical psychologist for psychiatric review based on M's beliefs for past ten years that there is a government conspiracy against him because he is Palestinian, he believes government is run by Zionists and that police is corrupt because they did not persecute the offenders who threatened him in the kebab shop. Clinical psychologist felt M's mental health has been deteriorating over the past months due to financial stress.
10.The discharge summary also says that there was no formal diagnosis of mental illness in the past, but there had been one referral to the West Australian Transcultural Mental Health Centre, and one enquiry from police seeking mental health information. In addition, it stated that the clinical findings on admission included:
… talking about beliefs of conspiracy against him by government, police and the whole system, corruption by police, nil TOSH, limited insight.
11.On 23 May 2018 Mr Michael Philp wrote to Bouah Kardio of Richmond Wellbeing saying that he had seen the appellant for 12 sessions, which was the maximum allowed under Medicare for 2018. Mr Philp said that the appellant presented with significant stress from financial hardship, but also reported a history of trauma when he was stabbed while working in a kebab shop (which appears to be a different incident to that which is the subject of this claim), and that he had been threatened to be harmed by a group of men while living in Northam, in which police were required to attend (which appears to be the Incident). Mr Philp says:
However, it is my view that [the appellant] has a persecutory belief system that has been exacerbated by his ongoing stress. He is experiencing significant symptoms of stress and anxiety at present.
12.On 26 February 2019 Bouah Kardio, Richmond Wellbeing, wrote a letter addressed 'to whom it may concern' which said (in part):
•This letter is to advise that [the appellant] was supported by Partners in Recovery Service (PIR) with respect to [his] mental and physical health which is being affected by past and current situations in his life.
•At present [the appellant] is currently going through some difficult times, due to his stress level. Because of his past experience with law enforcement officers and other related government agencies. (Sic)
13.On 18 March 2019, Dr Latt, wrote a letter again addressed 'to whom it may concern' which says relevantly:
•This letter is to confirm that the above-mentioned patient is currently under my care.
•I have known [the appellant] since 2015.
•[The appellant] has mentioned to me that he was affected by his life being threatened by two men in his kebab shop on 27 September 2014. It was had (sic) a huge impact as he has ongoing having (sic) anxiety and stress since the above incident. I referred [the appellant] to psychologist for counselling.
•In my opinion, [the appellant] has ongoing stress, anxiety and mental illness related to the above‑mentioned incident.
The appellant has also provided a number of documents concerning:
(a)the appellant's complaints about what he perceived to be the inadequate response of police officers to the Incident, and the legal action he attempted to bring against a number of police officers as a result; and
(b)the appellant's complaints about the circumstances of his admission to Armadale/Kelmscott District Hospital in May 2018, including the behaviour of police, and of the side effects of certain medication he was required to take during that admission.
In addition, on 28 February 2018 the appellant completed a document entitled 'The Main Claim'. In that document the appellant says that the offence was a crime against his children and amounted to child abuse, and that the police were covering this up, aided by government departments. The appellant alleges that on 27 April (presumably in 2016 or 2017) he had been shot with a rubber bullet and believed the police were involved. The appellant lists as the offenders of the offence the subject of this claim as not only the two people who entered his shop, but also '14 police officers', 'FOI', 'CCC', 'other government departments', 'the Supreme Court' and the 'High Court'. The appellant lists himself, and members of his family as the victims. He claims that the victims have lost over $250,000. He says there has been a very high impact psychologically, with suicidal thoughts, and that it has affected his children psychologically in their education and day to day life. He asks that he and his children be compensated for the financial and psychological suffering and suggests $2,000,000 in compensation.
Findings about the alleged injury
I accept that the appellant found the events of the 27 September 2014 very distressing, as the appellant said in the course of the hearing on 13 March 2019, consistent with the other evidence before me. This was both because of the threat to himself, but also because of the effect of those events on his children, who were visibly distressed and whom he felt he was not able to protect. I also accept that, in his own mind, all the appellant's current problems, be they financial, emotional or with respect to his family situation, are attributable to the offending which occurred during the Incident. However, the evidence does not support a finding to that effect.
On the evidence before me I make the factual findings and draw the inferences and conclusions set out in par 38 - par 51 below.
On or about 2 February 2015, the appellant saw his GP, Dr Latt, complaining of anxiety in relation to the Incident which occurred on 27 September 2014, both on his own part and also that of his daughter. As a result Dr Latt referred the appellant and his daughter for counselling, which was undertaken by Ms Jenner between February and May 2015. In that time Ms Jenner saw the appellant on at least three occasions on his own account as well as during six sessions which were scheduled for the appellant's daughter.
The appellant told Ms Jenner that he had been affected by the Incident and that he was particularly affected because his children were present. At that point, the appellant was not receptive to physical or psychological strategies suggested by Ms Jenner to help him recover from the trauma of the Incident, and informed Ms Jenner that he did not wish to see her if she could not assist him in a compensation claim by providing a report.
On 5 May 2015, the appellant complained to Dr Latt that worry was an ongoing problem for him and Dr Latt referred him to a psychologist, Ms Kalwani.
Between May and the beginning of September 2015 the appellant saw Ms Kalwani on four occasions for counselling. I accept that Ms Kalwani was qualified to administer the tests that she reports having administered and was qualified in assessing the appellant is suffering from severe depression and moderate anxiety and stress at that point. However, it is clear from the contents of Ms Kalwani's report that, by that stage, the appellant's mental health issues were related to, not just the offending which occurred during the Incident, but an extensive subsequent history in which he believed that he had been the victim of discrimination.
There is no evidence that the appellant sought any further medical treatment for his mental health conditions until November 2017. At that time he again went to see Dr Latt, who referred him to a clinical psychologist, Michael Philp. Mr Philp saw the appellant for 12 sessions between November 2017 and May 2018.
In March 2018 the appellant was habitually picking at his skin, which Dr Latt considered to be the result of stress and situational crisis. However Dr Latt did not then identify what he considered the particular stressors to be.
Mr Philp's opinion in May 2018, which he was apparently qualified to give and which I accept, particularly in light of the evidence which follows, was that the appellant has a persecutory belief system, which was exacerbated by the ongoing significant symptoms of stress and anxiety the appellant was suffering, to which there were a number of contributing issues including significant financial hardship and separation from his wife.
There is no evidence before me that the appellant's marital difficulties arose as a result of the offending which occurred during the Incident. In addition, I have concluded below that there is no basis upon which I can find any economic loss has flowed from that offending.
By 9 May 2018 the appellant's mental health had deteriorated to the extent that he was admitted to hospital. Dr Vecchio was the psychiatrist who assessed him. Dr Vecchio's opinion, which she was apparently qualified to give and which I accept, was whilst there was an incomplete picture, the appellant was suffering from mental illness, with the working diagnosis being paranoid delusional disorder. Again however, the facts reported a particular focus by the appellant on his having suffered unfair treatment by the government, the police and the justice system. Dr Vecchio also expressed the opinion, which I accept, that these ideas were longstanding and fixed, that there was a possibility that the changes in his mental health had occurred over the last five years (that is around 2013) and that they had intensified in the months before his admission in May 2018. However, the persecutory beliefs were of longer standing, going back 10 years or more, given the reference to 1997.
In February 2019, the appellant continued to attribute his current position, which was causing him stress, to be the result of his past experience with law enforcement officers and related government agencies, as evidenced by Mr Kardio's letter.
I have no difficulty in concluding, on the balance of probabilities, that the appellant suffers from a mental illness, in particular paranoid delusional disorder, and that this is exacerbated by stress and anxiety he is, and has, experienced in his life.
It is clear from the documents I have referred to in par 34 and par 35 above, that the appellant was considerably affected by issues he had, predominantly with the police, but also with other interactions with government, following the offending. I am satisfied on the balance of probabilities on the evidence before me, that the appellant has a pre-existing condition, namely his paranoid distrust of authority, which led to his belief that the authorities' treatment of him was unfair and affected by racism. However, even if that condition arose after the Incident, there is no evidence that it was caused by the offending which occurred during the Incident. As a result the consequences which flow from it are not compensable under the Act.
I find on the balance of probabilities that:
(a)For a period of about twelve months after the Incident the appellant suffered from depression and anxiety, which were largely attributable to the offending in the four months following the Incident. However, by the beginning of February 2015 the appellant's focus had shifted to being predominantly on his treatment by police in relation to the Incident, and his anxiety and depression was largely attributable to that, rather than the offending.
(b)From late 2015, any direct impact of the offending on the appellant's mental health issues was minimal, and from early 2018, had been completely overtaken by the consequences of the appellant's pre-existing mental condition coupled with his negative interactions with various government departments, in particular the police, exacerbated by his financial stress and the breakdown of his family, none of which are compensable under the Act.
Whilst Dr Latt has 'related' the appellant's ongoing stress, anxiety and mental illness to the Incident, Dr Latt does not explain the basis of that opinion, other than by reference to the appellant's report to him. To the extent that Dr Latt intends, based on what he is told by the appellant, to attribute the whole of the appellant's current issues to the Incident itself rather than what has subsequently occurred (which is not clear), I can give that opinion little, if any, weight, in light of my findings that the basis of the opinion cannot be substantiated: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 [69] ‑ [85]. As I have found, the appellant's current issues with stress and anxiety are based on a number of other issues, in particular his ongoing disputes with various government agencies including the police, his financial stress and the breakdown of his family. Any mental injury suffered as a result of those issues is not compensable under the Act.
Additional losses
General principles
The term 'loss' is defined in s 6(2) of the Act, in the case of a victim who is injured, as meaning:
(a)expenses actually and reasonably incurred by or on behalf of the victim that arise directly from the injury suffered or that arise in obtaining a report from a health professional or a counsellor in relation to that injury;
(b)expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment the victim is likely to need is a direct consequence of the injury;
(c)loss of earning suffered by the victim as a direct consequence of the injury;
(d)any loss arising from any damage caused as a direct consequence of the commission of the offence to any personal item that was being worn by the victim when he or she suffered the injury.
There is some suggestion in the document entitled 'the Main Claim' referred to in par 35 above, that the appellant considers that he has suffered a loss of earnings as the result of the injury he suffered as a consequence of the offence. In addition the appeal notice refers to 'Financial – mental illness – Family Lost'.
The appellant must produce evidence to prove either past or future loss of earning capacity: A v D (1994) 11 WAR 481, 489 (Pidgeon J). Section 6(2)(c) of the Act requires that any such loss be suffered as a direct consequence of the injury suffered.
Evidence and findings of additional losses
Whilst it might be accepted that a person with the appellant's current mental health issues may well have a reduced earning capacity over a person without those issues, my finding above are to the effect that, whilst the offending has contributed to some extent, the offence only had a minimal impact on the appellant's mental condition after late 2015. Accordingly, it could only have had a minimal impact on any reduction on the appellant's loss of earning capacity between late 2015 and the beginning of 2018, and none since then.
In any event, I have no evidence before me that would enable me to make any assessment of any such lost income earning capacity in the appellant's case. I have no evidence of the appellant's income before the offence, or his income after the offence. The only evidence I have going to income, other than the assertion of loss in the document entitled 'the Main Claim' is that in 2018 an application was made to place the appellant on a disability pension.
Where a loss is not capable of precise calculation the court must attempt to make an assessment as best it can. However, this does not entitle the court to guess at either the existence of a loss of income earning capacity, or what that loss might amount to, in the absence of any evidence.
Accordingly, I can make no finding that the appellant has suffered any loss of earning capacity as a result of any compensable injury.
The documents indicate that the appellant has received treatment in the form of psychological counselling in 2015 and then again in 2017 to 2018, and treatment in hospital. However, that treatment was received without cost to the appellant. Accordingly, no award is appropriate.
It would appear that the appellant does require treatment for his mental illness. However, I do not consider it is appropriate to make any allowances for those future costs in light of my findings above. Even if I were of a different view, it appears from the papers that the appellant does not accept that he requires treatment and is unlikely to seek such treatment, and I have no evidence of the likely costs of such treatment. Accordingly, I make no award on this basis.
Assessment of compensation
General principles
The maximum amount that the court can award in compensation is $75,000: s 31(1) Act. This is a jurisdictional limit and is not reserved for the worst cases: S v Neumann, 463 (Murray J).
The amount of compensation is to be determined solely with regard to the injury suffered by the appellant as a consequence of the commission of the offence and is not to be fixed as a punishment of the offender or as an expression of sympathy for the victim: O v J (Unreported WASC, Library No 920027; 13 February 1992).
The appropriate manner to assess an application is to apply the ordinary principles for the assessment of damage, bearing in mind the definition of 'injury' and 'loss' in the Act and award that sum subject to the jurisdictional limit imposed by the Act: M v J and J v J.
To the extent that the appellant has referred to other people, such as his children, as being entitled to compensation, obviously in this appeal the court cannot compensate anyone other than the appellant for any injury or loss.
Assessment
In my view, the appropriate award of compensation for the appellant's injury is $10,000.
For the reasons referred to in par 55 ‑ par 60 above, I make no award for loss of income earning capacity, either past or future, or for past or future medical expenses.
I will however, award the appellant a further $25, being the cost of obtaining his medical reports, of which I do have evidence.
Accordingly, I will allow the appeal and substitute an award of $10,025.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
Associate to Judge Vernon17 JANUARY 2020
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