ATS v Williss
[2021] WADC 58
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ATS -v- GREG WILLISS [2021] WADC 58
CORAM: GOETZE DCJ
HEARD: 19 FEBRUARY, 5 MARCH & 20 APRIL 2021
DELIVERED : 29 JUNE 2021
FILE NO/S: APP 59 of 2020
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: ATS
Appellant
AND
GREG WILLISS
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: R GUTHRIE
File Number : 1231/2019
Catchwords:
Criminal injuries compensation - Appeal from assessor's refusal to award compensation based on an alleged contemporaneous offence by the appellant, alternatively her behaviour at the time of the incident
Legislation:
Criminal Code 1913 (WA)
Criminal Injuries Compensation Act 2003 (WA)
Result:
Appeal allowed
Compensation award for the appellant in the sum of $33,322
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
| Amicus Curiae | : | Mr J F Bennett on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
ATS v WLS [2005] WADC 223
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Devos v James [2009] WADC 161
Hansen v Bolton (2017) 91 SR (WA) 137
Re ATS [2017] WADC 92
Re ATS [2019] WADC 76
Re Richardson [2009] WADC 93
Re TLJ [2016] WADC 74
Re Zadeh [2015] WADC 136
Robertson v Hopwood [2018] WADC 66
Townend v McAlindon [2017] WADC 63
Underwood v Underwood [2018] WADC 13; (2018) 94 SR (WA) 57
GOETZE DCJ:
On 3 December 2017, the respondent Gregory Raymond Williss unlawfully assaulted the appellant ATS. On 28 August 2018, he pleaded guilty to having committed that offence.
Ordinarily, a conviction for an unlawful assault would permit any victim of that offence who suffered injury, loss and damage therefrom to be awarded criminal injuries compensation under the Criminal Injuries Compensation Act2003 (WA).
However, in this case, such an award was refused by reason that the learned assessor of criminal injuries compensation determined that the assault by Mr Williss was in retaliation to the commission of an assault by ATS upon Mr Williss, alternatively by reason of her behaviour, condition, attitude or disposition towards Mr Williss having significantly contributed to her receiving injuries.
ATS appeals the learned assessor's refusal to make a compensation award in her favour.
Mr Williss did not take part in the appeal.
The nature of the appeal
By s 56(1) of the Act, an appeal against an assessor's decision is to this court which:
… must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information.
The issues
The primary issues in this appeal are:
1.Did ATS commit a separate offence of assault upon Mr Williss at the time he committed an assault upon her?
2.Did the behaviour, condition, attitude or disposition of ATS contribute, directly or indirectly, to her injuries?
3.If it is appropriate to do so, to then make an award, the quantum of which must be determined.
The conviction of Mr Williss
On 28 August 2018 in the Magistrates Court at Perth, Mr Williss was convicted on his own plea of unlawfully assaulting ATS. He was fined.
The material facts for the conviction included that, on the evening of Sunday 3 December 2017, ATS attended at Mr Williss' home to collect her motor vehicle from him. He handed the car keys to her and asked her to leave, resulting in a confrontation. During that confrontation, Mr Williss threw a large painter's trestle at ATS, who returned to her vehicle before leaving the premises. The painter's trestle has also been referred to as a painter's ladder, a garden stand and an aluminium stand.
Counsel for Mr Williss provided certain matters of mitigation, including that Mr Williss was undertaking work for ATS on her motor vehicle for only the cost of materials. She had refused to pay those costs and when she came to collect her vehicle, a 'fight' started in which Mr Williss was struck by ATS with a bag of plates. The submission was that he then retaliated by force, which was admitted to be excessive and hence, his plea of guilty. The admitted retaliation can only be the admitted act of throwing the painter's trestle at ATS.
The evidence and information as to the confrontation
In order to determine the facts, reference can only be made to the evidence and information available to the learned assessor, unless further evidence and information is sought to be tendered. At the hearing of the appeal, ATS did not tender any further evidence and information with respect to the offending.
The relevant materials available for consideration included the following:
1.an oral recording of the incident provided by ATS utilizing a mobile phone in her handbag;
2.the witness statements of:
(a)ATS;
(b)an Uber driver, who conveyed ATS to the home of Mr Williss for the purpose of collecting her car; and
(c)a near neighbour of Mr Williss.
The statements of the driver and neighbour do not assist resolution of the issues;
3.statements from members of the police force, including Richard Turner, Elliott Blann, Philip Leslie and Darren Pennuto;
4.handwritten notes from relevant police officers of interviews with ATS and Mr Williss;
5.the police incident report and running sheets;
6.the video recorded interview conducted by the police with Mr Williss and police officers' notes therefrom;
7.the statement of material facts relating to charges brought against Mr Williss;
8.the transcript of proceedings in the Magistrates Court on 28 August 2018; and
9.a letter from Mr Williss, dated 25 March 2020, to the assessor of criminal injuries compensation.
From the abovementioned materials, ATS proceeded by Uber taxi to the home of Mr Williss to collect her motor vehicle. On the evidence, there is a dispute as to whether this attendance had been pre‑arranged, with Mr Williss being required to leave the key on a car tyre, which he had not done. It is not necessary to resolve this issue. It was however, necessary for ATS to knock on the front door of his residence to retrieve her car key.
From the audio tape of the incident, it is clear that once Mr Williss answered the door, he was immediately abusive towards ATS. He told her to leave. There is then a brief pause before a sound and a further passage of time consistent with Mr Williss exiting his house. ATS claimed that, at this time, Mr Williss pushed her in the chest up against a wall and that he had both of his hands on her throat. ATS can be heard on the tape yelling at Mr Williss to remove his hands from her throat.
It is not disputed that ATS was holding a bag of plates which she was returning to Mr Williss. In an attempt to have him to let go of her throat, she claimed to have flung the bag over his arms and the plates smashed against a wall.
Consistent with the audio tape, ATS can then be heard walking away as she claimed, with each of ATS and Mr Williss shouting abuse at each other.
ATS claimed that, as she was walking away towards the Uber taxi, Mr Williss fetched what she described as a painter's ladder. He struck her car with it and then, he threw it at her, striking the back of her head. From her police statement, ATS fell to her knees, picked herself up and then picked up the ladder and struck another car belonging to Mr Williss' brother‑in‑law with that ladder. She then walked to the Uber taxi and then to her car, which she entered. Mr Williss followed and opened her car door. There was then a struggle between them as he took hold of her and she tried to push him off, but he would not let go of her, grabbing her arms and legs before he finally let her go. She then made an escape.
In his recorded interview with the police, Mr Williss said, variously, that:
1.he was not expecting ATS, but when she arrived, he gave her the car keys and told her to leave. He did not swear at her. He also said that, at first, he had his hand on her back and they then walked three to four steps away from his front door towards her car;
2.ATS then stopped and took a full swing of the bag containing plates, hitting him in the side of the head. She then took off running;
3.the hit to his head left him dazed. He was in shock;
4.he then picked up the bag of plates and threw it at her, hitting her in the back of the head;
5.ATS then ran to the Uber driver and asked if he had filmed the incident. The driver said 'no'. She asked him to take photographs. Mr Williss told the driver to leave;
6.ATS went to her car and was abusive to Mr Williss and honking the car horn, in response to which, he retaliated by twice striking her car with an aluminium stand;
7.he then threw the stand on to a lawn and went inside to call the police. Before he could do so, Mr Williss claimed that ATS then picked up the stand and started hitting his brother‑in‑law's car with it; and
8.he then went outside and took the stand from ATS. He tried to put her in her car. She was punching and kicking him. Her leg was then struck by her car door as he tried to shut the car door. Mr Williss said this was self-inflicted. He then left to call the police.
In the same police interview, Mr Williss denied that he:
1.touched ATS anywhere, other than on her back. He said he did not touch her throat or neck; and
2.hit ATS in the head with anything other than the bag of plates. He said he did not hit her with the garden stand.
In his letter to the assessor, Mr Williss said that:
1.he gave the car keys to ATS;
2.ATS started to walk away from him. He followed her for a few steps telling her to leave;
3.ATS suddenly turned and swung the plastic bag at him, hitting him on the side of the face and knocking him to the ground unconscious; and
4.he staggered to his feet and threw the bag of broken plates at her, hitting her in the head.
His letter also repeated what he said at [18.6] above.
Findings of fact of the confrontation
From the audio tape provided by ATS, the following findings of fact can be made:
1.ATS knocked on the front door;
2.it took some time, but when Mr Williss opened the door, he was immediately orally abusive and threatening towards ATS, telling her the car keys were on the seat and to leave;
3.although it cannot be seen from the audio tape, the background sounds on it are consistent with Mr Williss exiting his house and ATS almost immediately yelling at Mr Williss to take his hands off her throat as set out at [14] above;
4.there is then noise on the tape which is consistent with, or at least not inconsistent with, the sound of breaking plates, as described by ATS as set out at [15] above;
5.there are then sounds consistent with footsteps, also consistent with ATS walking away and in retreat from Mr Williss;
6.ATS then complained of something having happened to her, which she said was 'on camera', being film she hoped had been taken of the incident by the Uber driver. The reference to something having happened was a reference to her wound to the back of her head as set out at [17] above. The audio tape is consistent with this claim; and
7.sounds then follow consistent with a car or cars being struck with a metal object.
In his police interview, Mr Williss denied swearing at ATS from inside his front door, but that can be clearly heard on the tape. Mr Williss denied that he pushed ATS to the throat, yet the tape is consistent with him having done so. ATS clearly yelled at Mr Williss to remove his hands from her throat. This yelling can only have been in response to Mr Williss having his hands on her throat, rather than her saying it without genuine cause and certainly, Mr Williss is not heard to refute that he had his hands on her throat.
Further, as will be seen below, the pushing to the chest and the grabbing of the throat, as claimed by ATS, are consistent with the injuries suffered by her as determined by her treating medicos, such that the claims in this regard by ATS can be accepted.
Further, Mr Williss has also been clearly inconsistent in that:
1.in both his police interview and his letter to the assessor, he said he gave the car keys to ATS, but from the audio, he told her the keys were on the car seat;
2.in his police interview, he said that he put his hand in her back and that they both then walked away from the front door. The only lawful purpose of the hand in the back must have been to guide ATS away from his front door. He also said he followed her for a few steps, before she then swung the plastic bag of plates at him. This claim is inconsistent with the tape as outlined at [21] above;
3.in his interview, he denied that he touched ATS anywhere other than on her back. He did however, admit that he threw the bag of plates at her;
4(a) in his interview, Mr Williss denied throwing the garden stand at ATS;
(b)in his letter, Mr Williss said that he staggered to his feet to throw the bag at ATS, striking her in the head with it. Further, he did not include in his letter that he threw a painter's trestle at ATS; and
(c)when pleading guilty, he admitted to throwing a large painter's trestle at ATS, not a bag of plates;
and
5.in his police interview, he said the hit to his head by ATS with the bag of plates 'left him in a daze' and in 'shock', yet in his letter, he claimed this hit rendered him 'unconscious'.
At the time Mr Williss opened his door, ATS had not wrongfully entered or remained at his place. She was at his front door for a lawful purpose, namely to collect her car keys so that she could drive away in her car. Even if Mr Williss did not want ATS at his home, she nonetheless had the right to attend to collect her car. She was not behaving in a disorderly manner requiring, or justifying, removal.
In these circumstances, the provisions of s 254 of the Criminal Code did not entitle Mr Williss to use force to remove ATS from his premises. Even if he was entitled to use force to remove her, that force must have been only that which was reasonably necessary and it must not have been intended, or likely, to have caused grievous bodily harm or death.
It can be readily found that by placing his hands on her throat, Mr Williss was not acting in a reasonable manner to remove ATS from his premises and ATS was clearly entitled to swing the bag of plates over Mr Williss' arms in an endeavour to have him release his hold of her throat. Even if the bag then struck Mr Williss on the side of the head, as he claimed to police officers, her act was justifiable by way of self‑defence against an assault from Mr Williss.
The audio recording of the incident is inconsistent with Mr Williss' claims as set out at [18.1] and [18.2] above. The recording is however, consistent with the first act of violence being committed by Mr Williss in that, from the recording, as set out at [14] above. The plates were smashed in the manner described by ATS as self‑defence, rather than as claimed by Mr Williss.
From the materials referred to above, it is not difficult to be satisfied that Mr Williss was less than frank with the police in his video recorded interview, and likewise, in his letter to the assessor. He did not admit to the police, or to the assessor, the fact which he admitted before the Magistrates Court namely, that he threw a painter's trestle at ATS and not the bag of plates which he alleged he had thrown as set out in his interview and his letter to the assessor. In both the interview and the letter, he indicated that when he threw the bag of plates at ATS, it hit her in the back of the head. ATS did not claim to have been struck by the bag of plates. On the file, there are police photographs of lacerations to the back of her head. However, it was the throwing of the painter's trestle which caused those lacerations and which was the gravamen of the assault charge. That assault neither began nor ceased there. It began as set out at [14] above and continued as set out at [17] above, resulting in injuries detailed below.
There can be no doubt that Mr Williss threw a painter's trestle at ATS, striking her in the back of the head. This act of throwing was not reasonably necessary, as ATS had completed her act of self‑defence to break free of Mr Williss' grip around her throat and was walking away from him when he threw the painter's trestle at her. Whether it be the trestle or the bag of plates that he threw at her, even Mr Williss accepted that he threw it when she was walking away from him, such that it struck her on the back of the head, when she was in retreat. There was no need for him to have thrown anything at her at all.
Mr Williss then followed ATS and the assault continued. It matters not for the purpose of the compensation application that the assault started before and continued beyond that specified in the statement of material facts admitted by Mr Williss in court. Those facts were negotiated in the reduction of the original charge of assault occasioning bodily harm to common assault. Likewise, a charge of property damage was also discontinued.
ATS is entitled to be compensated for the whole of the assault, not just that part to which Mr Williss pleaded guilty. It could not be suggested that, because the offence to which he pleaded guilty was common assault that that, in itself, precludes a claim for compensation from the consequences of an assault, including bodily harm, and all that that assault entailed in the absence of any disqualifying conduct by ATS.
Finally, from the police statements:
1.Police Constable Leslie said that:
8.While I was waiting for the victim to sign the form, I heard the victim tell Senior Constable Turner that she hit him with a bag containing plates.
…
10.I heard the victim say that she had a shopping bag of plates she was returning to the accused and after a verbal altercation she threw the bag, hitting him;
2.Senior Constable Turner said that:
10.At (Mr Williss') front door a disagreement occurred with the victim stating she had thrown the plastic bag containing the dinner plates back at the suspect 'accidentally hitting him in the head';
and
3.Senior Constable Pennuto took four photographs of Mr Williss. He observed a laceration to Mr Williss' left cheek near his eye which had dried and scabbed over. The observation was made, and the photographs were taken, one week after the confrontation.
These statements from the police officers do not detract from the findings made above for these reasons:
1.First, it is clear from the start of the audio tape that Mr Williss was abusive and threatening towards ATS. He told her the keys were on the car seat and to leave. He then moved from inside the house to the outside. Then, ATS complained of Mr Williss having his hands on her throat before there is any other sound, including a sound which might be plates striking either him, or a wall, or falling onto the ground. The consequence is that ATS was defending herself from an assault upon her by Mr Williss when she did whatever she did with the bag of plates.
2.Secondly, the statement from Police Constable Leslie provides that he heard ATS say she threw the bag hitting Mr Williss in the head. Senior Constable Turner said she heard ATS say that this was accidental. This is not inconsistent with ATS endeavouring to throw the bag over his arms by way of self‑defence as she claimed.
3.Thirdly, the photographs taken by Senior Constable Pennuto and his observations as set out in his statement do not disclose any information as to the cause of the laceration, or when the cheek was lacerated. It may or may not have been the confrontation.
Did ATS assault Mr Williss?
Section 39(1) of the Act provides that:
If an assessor is satisfied -
(a)that a person was injured as a consequence of the commission of an offence; and
(b)that the injury was suffered when the person was committing a separate offence,
the assessor must not make a compensational award in favour of the person.
It is necessary to determine whether the injury suffered by ATS occurred when she herself committed a separate offence. If that finding is made, then there must not be a compensation award in her favour.
In Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29, the Court of Appeal held that s 39(1) does not require a causal connection between the offence committed by a complainant and the offence which gave rise to the complainant's injuries. However, a temporal relationship is required and whether such relationship exists is to be determined after considering all the facts and circumstances of the case. The Court of Appeal followed Re Richardson[2009] WADC 93 [31] that:
Generally, if the applicant's injuries and the applicant's offence are part of the one incident, that would be sufficient to show a temporal connection.
For reasons outlined above, the court can be satisfied that, the so‑called act of assault by ATS upon Mr Williss was no more than a reasonably necessary act in self‑defence by reason of him having pushed her in the chest and having taken hold of her neck. ATS did not commit a separate offence against Mr Williss giving rise to his admitted assault.
There is clearly a temporal connection, as being part of the one confrontation.
Further, the police photographs confirm that ATS was struck on the back of her head and therefore, it can be found that she was walking away from Mr Williss when he then threw the ladder or painter's trestle at her. Her act of walking away from Mr Williss, with her back to him, was an act of retreat. The confrontation should by then have been complete, but Mr Williss took it further by throwing the trestle at her. This is consistent with his admission of excessive force in his plea of guilty.
Did the behaviour of ATS contribute to her injury?
Section 41 provides that:
Behaviour etc. of victim to be considered
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor -
(a)must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim’s injury or death; and
(b)may, if he or she thinks it is just to do so -
(i)refuse to make a compensation award because of that contribution; or
(ii)reduce the amount that the assessor would otherwise have awarded.
The question here is not whether she contributed to the offence, but whether she contributed to the injuries she suffered: Robertson v Hopwood [2018] WADC 66 [22], [66].
If the court is satisfied that any behaviour, condition, attitude or disposition of ATS contributed, directly or indirectly to her injuries, the court may either refuse to make a compensation award or reduce the amount that would otherwise have been awarded. It is therefore necessary to consider the conduct of ATS.
For the same reasons expressed above, it cannot be concluded to the required level of satisfaction that ATS contributed, directly or indirectly, to her injuries. Even if she did, then, because she acted in self-defence and was in retreat before she was injured, as set out at [38] and [40] above, there is no reason to refuse or reduce her amount of compensation.
The assessment of compensation
The injuries suffered by ATS and her treatment
Initial hospital treatment
A report, dated 28 December 2017 from the St John of God Midland Public Hospital, revealed the following injuries to have been suffered by ATS on the night of 3 December 2017:
1.multiple lacerations to left parietal scalp, left posterior neck and shoulder, left arm and right index finger; and
2.bruising to the right forearm, right lower leg and right hand.
In addition, the St John Ambulance report refers to bruising to ATS's left lateral leg and redness to the left side of her cheek.
Further, there are contemporaneous police photographs of ATS showing fresh injuries to the back of her head and neck, her right index finger, right middle finger, lower right arm and lower left leg.
The following treatment was administered at the hospital:
1.pain relief, X‑ray; and
2.staples to the scalp wound.
Dr C Payne, from the hospital, certified that the injuries received were of such a nature as to interfere with the health and comfort of ATS. X‑rays did not reveal the presence of any intracranial injury. Her injuries did not require hospitalisation. She was discharged after treatment and provided analgesia.
ATS was requested to return within 7 to 10 days for the removal of sutures.
On 11 December 2017, ATS again presented to St John of God Hospital, Midland complaining of headaches and an inability to stand on her legs. An intracranial haemorrhage was suspected, but on investigation, nothing abnormal was detected in this respect, apart from a haematoma in the left posterior parietal scalp as an effect of her recent trauma.
Further, on 11 December 2017, ATS suffered from what she described as an irregular heartbeat. However, apart from confirming that she did not suffer from a pulmonary embolism, this was not further investigated. Rather, the discharge summary referral notes that ATS discharged herself against medical advice.
Otorhinolaryngological review
In January 2018, ATS was referred to Mr K Lew, otorhinolaryngologist, for the follow up of symptoms resulting from Mr Williss grabbing her neck. This required a Barium swallow and subsequent clinical examination on 31 January 2018, both of which were normal. Further treatment was not required.
Left leg swelling
In January 2018, Mr Martin referred ATS to Mr R Shelley, physician, to investigate 'drop' attacks and the swelling of ATS's left leg, as she was still suffering oedema in that leg. Symptoms included syncopy, ie fainting. A report from Mr Shelley is not to hand. On appeal, ATS advised she is still intermittently suffering these symptoms.
Mr Martin also reported that ATS had seen Mr K Sieunarine, vascular surgeon, because of left leg swelling issues. A report from Mr Sieunarine is not to hand, but on appeal, ATS said that he was not able to help her.
Chiropractic treatment and physiotherapy
ATS received chiropractic treatment from Dr J Martin for her head, neck and chest injuries. A report from Dr Martin is not to hand.
Further, by reason of torticollis being evident on X-ray, ATS was also referred to another chiropractor, Dr J Russell‑Clark. This condition of torticollis caused a turning movement of ATS's head, which became more persistent, so that her head was eventually held to one side. Chiropractic treatment was required to relieve this condition which was deemed in keeping with the assault on 3 December 2017.
Dr Russell-Clark then, in turn, referred ATS to Ms P Windsor, physiotherapist.
A report, dated 22 August 2018, was provided to the police by Ms Windsor, concerning treatment she provided to ATS for injuries received by her in the assault, particularly neck pain, which was not resolving and dysfunctional breathing suffered by ATS, following her neck pain.
Ms Windsor reported that dysfunctional breathing typically results from a stressful event or time and can have multi‑system effects on the body from increasing pain levels, muscle tension and sympathetic nervous system arousal. It affects oxygen distribution to the body and can contribute to feelings such as poor concentration, chest tightness/pain and dizziness. The muscles of respiration are key to posture and movement, which together with balance, can also be affected.
On examination, ATS was found to be breathing into her upper chest, using her neck/shoulder muscles to inhale and hyperventilating, which can manifest into panic attacks or be far more subtle and cause a drop in carbon dioxide levels in the body. ATS was diagnosed with chronic hyperventilation and altered biomechanics of breathing as a result of long term stress, PTSD and the recent assault on 3 December 2017. Chronic hyperventilation is a difficult condition to recognise and self‑correct, as the overriding system is a feeling of air hunger, thus causing further over breathing.
Over the course of 11 treatments to August 2018, the breathing pattern of ATS improved significantly. She ceased being in a state of constant hyperventilation and was able to implement relaxation techniques to help manage her ongoing stressful situations. Daily practice was required to prevent reversion to older patterns. Ongoing support was required in the event that ATS felt her self‑management strategies were not being effective.
Breast tissue trauma
Unfortunately, ATS has a strong family history of breast cancer from which, she too, suffers. For this reason, medical reports exist from prior to the assault, including from Mr Richard J Martin, specialist breast, endocrine, oncoplastic and general surgeon and also from radiologists detailing investigations in respect of her cancer concerns.
In January 2018, ATS was X-rayed after she complained to Mr Martin of being tender over the fourth and fifth ribs on the left side. The X‑rays were to exclude a fractured rib. Echogenic changes were noted after the assault, which at first, were thought to be attributable to either, or both, the assault and fat necrosis. On 12 January 2018, Mr Martin reported that ATS was tender over the fourth and fifth ribs on the left side, which, he said, 'may well' have been the result of the trauma she had experienced 'prior to Christmas'. Mr Martin was able to reach this conclusion following X-ray reports from before and after the assault.
In March 2018, Mr Martin reported that repeat ultrasounds showed new nodules in both breasts to be more cystic. They appeared to be resolving in keeping with healing, possibly from trauma on 3 December 2017. The ultrasound results were consistent with the assault. More ultrasounds were required because of that trauma than would normally have been requested. Mr Martin reported that ATS had been struggling since that trauma and was having problems with her PTSD.
In February 2020, further changes of an enlarging lesion were noted on X-rays. These changes caused increasing tenderness in the left breast and significant mental distress to ATS.
On 18 May 2020, Mr Martin reported that ATS had PTSD and significant anxiety because of tenderness and lumpiness in her breasts. New lumps in her breasts caused significant mental distress and after the trauma of 2017, she had more and more stress ongoing on top of her PTSD. Her nodules still required more ultrasounds.
Mr Martin discussed mastectomy and reconstruction surgery with ATS, who was not ready to embark on such strategy, but it was the only way to remove tender breast tissue and remove ongoing worry about the lumps in her left breast.
Mr Martin referred ATS to Dr P Willsher, specialist surgeon, for a second opinion in respect of the breast pain suffered by ATS. By his report dated 8 April 2021, Dr Willsher found this pain to be multifactorial, but a significant component of that pain originated from her left chest wall which Dr Willsher believed to originate from the personal trauma in December 2017 of being punched just left and lateral to the sternum. Fibroadenomas, being benign tumours of epithelial origin, could also have been a contributing factor. Dr Willsher took the view that bilateral mastectomy was unlikely to significantly improve ATS's pain. Medication had not been successful, but a referral to a physiotherapist, Ms Elizabeth Eastwood, was made.
Although a report is not to hand from Ms Eastwood, ATS advised she had had three sessions of physiotherapy in 2020 and 2021 with Ms Eastwood, without lasting relief.
In addition to this, ATS was referred to Dr M V Atienza‑Hipolito, radiologist dealing in breast imaging, to determine the feasibility of a mammotome excision of a fibroadenoma in her left breast. However, ATS did not pursue this relief due to the cost thereof being $152 for the consultation and $900 per excision. Given that Mr Martin had told her that such an excision would not relieve her pain, the financial cost outweighed any possible benefit. Further, Dr I Timms advised ATS to not proceed with excision because of her higher than normal risk of a pulmonary embolism.
Psychiatric and psychological treatment
On 10 January 2018, Dr W C Chiu, psychiatrist, reported that ATS had been attending him since 2014. He said she suffered from Post‑Traumatic Stress Disorder, with a complicated clinical presentation. Importantly, he opined that, following the assault on 3 December 2017, the symptoms of her stress disorder had escalated, with increased distress, fluctuating concentration and attention and impaired stress tolerance.
There is also a report, dated 5 September 2018, from Mr C G Semmens, clinical psychologist specialising in anxiety, trauma and panic services.
Mr Semmens had been consulted by ATS since February 2008. He reported that, in many ways, she had had a very difficult life, the details of which he provided. Other familial circumstances were also operative in her childhood, which together, contributed to psychological, emotional, behavioural and physiological symptoms being consistent with the diagnosis of a complex traumatic stress. She has been struggling for most of her adult life to make sense of the world which continues to deal with her in a rough handed manner, while she maintains an adherence to fundamental principles of fairness and equality.
Mr Semmens reported that the emotional, behavioural and psychological experiences reported by ATS are consistent with the diagnostic criteria for post‑traumatic stress disorder and that they relate to the assault by Mr Williss.
Mr Semmens had been working on assisting ATS to process and resolve traumatic stress.
Mr Semmens had been able to achieve meaningful advances towards resolution of the traumatic stress and moving ATS towards having an improved quality of life. However, ATS found herself to be the victim of other traumatising experiences resulting in significant psychological setbacks despite her ongoing clinical psychology therapy.
Mr Semmens was of the view that one traumatic event cannot be reasonably seen to be subsumed by previous traumatic experiences. Each experience needs to be considered in its own right, together with the traumatic effects and the disruption to any ongoing treatment for previous traumatic experiences. Back in 2018 when Mr Semmens' first report was written, a further twenty clinical psychological sessions were then required for the provision of trauma therapy related to the assault by Mr Williss.
ATS has continued to consult Mr Semmens. On 2 May 2021, Mr Semmens reported that ATS:
continues to be burdened by the cumulative effects of the adverse consequences in her life and she continues to require clinical psychology input …
… this incident (referring to Mr Williss) continues to have a triggering effect on (ATS) and accordingly treatment for this incident can be seen to be ongoing.
The resolution of this matter will go a long way towards us being able to achieve an emotional resolution to the adverse consequences that it has had upon her.
New medical evidence
Although ATS provided some limited medical reports to the assessor from St John of God Hospital Midland, St John Ambulance, a police running sheet containing information from Ms Windsor and the intial report from Mr Semmens, other medical information referred to above has been provided by ATS over the course of hearing this appeal.
The court has a discretion to receive 'further evidence and information'. Given that the Act is beneficial in nature in favour of an applicant for compensation and the informal nature of the application to the assessor, such further evidence and information provided during the course of the appeal should be received, unless there is some reason why it would be unjust to do so: Underwood v Underwood [2018] WADC 13 [37]; (2018) 94 SR (WA) 57 [37]. There is no reason making it unjust to receive this further information.
Findings on injuries
In the circumstances, it is not difficult to find that there were some short term physical difficulties relating to the lacerations and bruising as set out in the report from St John of God Hospital at [45] above. The staples to the scalp wound were removed after seven to ten days. The physical wounds contributed to the interference with the health and comfort of ATS.
ATS's left leg bruising and oedema, as set out at [46], [54] and [55] above, was persistent and her syncopy resulted therefrom, together with swelling which could not be treated successfully.
ATS also suffered torticollis and dysfunctional breathing following the assault which improved significantly with chiropractic treatment and physiotherapy as set out at [57] - [62] above. Ongoing support was required in the event that self‑management strategies were not effective. An up-to-date physiotherapy report is not to hand.
Further, after being pushed in the chest, ATS suffered long term sequelae to her breasts, including tenderness, new nodules and lumps and then, 'more and more stress on top of her PTSD' as outlined at [63] - [71] above.
Tenderness over the fourth and fifth ribs on the left side was consistent with the claim by ATS that Mr Williss pushed her in the chest prior to grabbing hold of her neck. She suffered increasing tenderness in the left breast which is supported by echogenic changes noted on X-ray after the assault. Mr Martin reported that significant mental stress was caused on top of her PTSD as set out at [66] and [67] above.
Further, Dr Chiu reported that, following the assault on 3 December 2017, ATS suffered from escalated PTSD symptoms, with increased distress, fluctuating concentration and attention and impaired stress tolerance.
The main difficulty for ATS is most probably the fact that the assault set back her complex traumatic stress disorder in a significant manner. As Mr Semmens noted, the effects of the 3 December 2017 assault cannot reasonably be seen to be subsumed by previous traumatic experiences.
ATS suffers a complex traumatic stress disorder. Traumatising experiences have resulted in significant psychological setbacks. To understand the complexity, it is necessary to have regard to relevant historical matters, being past criminal injury compensation appeals by ATS.
Past compensation claims by ATS
ATS v WLS [2005] WADC 223
In this matter, ATS sought criminal injuries compensation for intrafamilial sexual abuse she suffered between about 1985 and 1991 and commencing when she was aged about 11 years. By the time her compensation application was resolved, ATS had also suffered serious injuries in a motor vehicle crash in 1994.
Evidence was provided by a Dr Hayward, psychologist, revealing ATS to have suffered PTSD from the sexual abuse, but not from the car crash, which caused some anxiety symptoms, together with a depressive disorder: [31] and [32].
However, the car crash provided an additional stressor which made it more difficult for ATS to cope with the sexual abuse and resulting PTSD. Dr Hayward reported that the combination of her distress over her physical injuries from the car crash and the pre‑existing abuse together created significant depression with symptoms of anxiety: [33].
Dr Edwards‑Smith, psychiatrist, reported that the sexual abuse made ATS vulnerable to the development of a psychiatric disorder later in life: [39]. Dr Edwards‑Smith diagnosed PTSD with a major depressive disorder: [40]. The prognosis was relatively poor. ATS's vulnerability to psychiatric disorder would not change: [43] and [44].
This vulnerability to the development of a psychiatric disorder later in life is consistent with Dr Chiu's opinion that the assault by Mr Williss caused increased distress, fluctuating concentration and attention and impartial stress tolerance as set out at [72] above.
Re ATS [2017] WADC 92
In this matter, ATS alleged indecent assault by her podiatrist in August 2011. Her application for compensation was dismissed, as was her appeal from that dismissal. However, in passing, it was observed that Mr Semmens then reported that he had been treating ATS for PTSD since February 2008. Primarily, this was for sexual abuse by a family member as outlined and commencing at [90] above. Findings were not necessary on the report of Mr Semmens because of the dismissal of the appeal on the basis that the alleged assault had not occurred.
Re ATS [2019] WADC 76
In this matter, ATS alleged that, in February 2014 at a hotel, she was pushed roughly, and with significant force, by another female resulting in a swollen ankle, requiring the use of a 'moon boot' for three months. This allegation was accepted.
Dr S Proud, consultant psychiatrist, reported chronic treatment resistant depression, chronic pain and PTSD from childhood abuse and more recent trauma. He cited significant recent stressors, but not the hotel fall: [77].
Dr B Dellar, clinical psychologist, to whom ATS was referred by Mr Semmens, also reported on the complexity of the PTSD suffered by ATS due to it occurring in late childhood and then being re‑triggered by later events. Dr Dellar did not refer to the hotel fall: [95].
The claim by ATS for psychological injury was reliant upon a report from Mr Semmens. Davis DCJ observed that the first mention of any psychological or psychiatric difficulty from the hotel fall was reported by Mr Semmens on 11 June 2015, when he noted that the ankle injury thwarted efforts to lift her psychotherapeutically from her severe depression which she had been experiencing prior to the ankle injury: [92]. Mr Semmens reported this depression was mainly caused from her childhood sexual abuse and the motor vehicle crash, together with a range of other traumas in her life, all of which have had a cumulative effect. Her chronic pain condition and traumatic stress have been exacerbated by each incident: [92].
However, Davis DCJ placed little weight on the opinion of Mr Semmens. Her reasons set out at [121] - [131] provide that:
1.ATS had longstanding PTSD;
2.Dr Proud and Dr Dellar did not report on the hotel assault;
3.Mr Semmens is not a qualified medical practitioner and although the opinion of a clinical psychologist is admissible, the issue as to his report was one of weight;
4.Mr Semmens was not an independent expert witness because he challenged the findings of the assessor as to the failure of Mr Semmens to report on the hotel assault in a specific manner;
5.Mr Semmens had not stated the reasons upon which his opinion was based;
6.Mr Semmens relied upon the self-reporting by ATS of the effects of the hotel assault and did not report on the pre-existing diagnosis of PTSD from childhood sexual assault and other matters already compromising ATS's medical conditions; and
7.expert witnesses cannot usurp the functions of the court.
Davis DCJ concluded that ATS's mental health had already been significantly compromised prior to the hotel assault. The most that could be said was that that assault led to a setback in psychotherapeutic treatment, with a slight exacerbation of her previously diagnosed PTSD symptoms. Further, since the hotel assault, there have been other matters which have contributed to ATS's mental state, one of which was the assault on 3 December 2017, which had added to her trauma: [132]. Indeed, to make this finding, Davis DCJ relied upon the same psychiatric report of Dr Chiu as set out at [72] above.
The assessment of an award
The learned assessor denied the claim for compensation by ATS as outlined at [3] above. Now that ATS has succeeded in her appeal against that finding, there is power to remit her application for compensation to the assessor to determine the award. However, following Devos v James [2009] WADC 161 [69], Re Zadeh [2015] WADC 136 [15] and Re TLJ [2016] WADC 74 [67], the preferred view is that it is appropriate that an assessment of the award should now be made.
Before an award by way of compensation can be made, there must be satisfaction that the applicant suffered a compensable injury caused by the proven offence. Here, there were first, the physical injuries requiring medical treatment as outlined above.
Secondly, the assault on 3 December 2017 has added to the trauma suffered by ATS and caused a serious setback in her PTSD and depression. This has been reported on by Mr Martin at [66] and [67] above and further, by Dr Chiu as set out at [72] above, and by Mr Semmens as set out at [74] - [79] above.
The term 'injury' is defined to include 'mental and nervous shock': s 3. Post‑traumatic stress disorder falls under that definition: Underwood [84].
The fact that, in 2018, the psychological condition of ATS was set to endure into the future requiring twenty ongoing psychological sessions indicates that the mental harm from which she has suffered is of an enduring character so as to amount to an injury, as opposed to a mere emotional reaction: Townend v McAlindon [2017] WADC 63 [46]. Now, three and a half years later, the mental harm remains ongoing as set out at [79] above and still requires clinical psychological input.
An award is required to compensate ATS for both her physical injuries detailed above and the worsening of her pre‑existing psychological conditions. A sum of $30,000 is appropriate.
In providing this award, it should be noted that this amount has been determined on the basis of both the physical injuries and the worsened psychological condition now suffered by ATS. Further, the award has been determined as best can be done after the ongoing compensable psychological effects resulting from the assault have been disentangled from the non-compensable pre‑existing psychological condition as at the time of the assault: Hansen v Bolton (2017) 91 SR (WA) 137 [84] and [85].
Past medical expenses
Only some details of medical expenses have been provided as follows:
| 1. | Helena Valley Chiropractic | |
| 15 January 2018 | $60 | |
| 18 January 2018 | $60 | |
| 23 January 2018 | $60 | |
| Four other chiropractic appointments were conducted on 9, 13 and 17 February and 13 March 2018, but the cost thereof has not been provided. However, there is no good reason to conclude that ATS was not likewise charged $60 in respect of each such appointment. I will allow these other costs. | $240 | |
| 2. | Dr P Willsher | |
| 29 June 2020 | $280 | |
| 3. | Dr I Timms | |
| 16 September 2020 | $250 | |
| 4. | Ms P Windsor | |
| 2 March 2018 | $65 | |
| 2 May 2018 | $65 | |
| Ms Windsor reported that she provided nine other physiotherapy treatments to ATS. Details of the cost of these treatments have not been provided. Again, there is no good reason to conclude that ATS was not likewise charged $65 for each of these appointments. I will allow these costs. | $585 | |
| 5. | Ms E Eastwood | |
| 2 November 2020 | $64 | |
| 9 November 2020 | $64 | |
| 6. | Mr R Martin | |
| 15 June 2020 | $110 | |
| March 2021 | $110 | |
| Other details of consultations with Mr Martin and all of his medical fees have not been provided. | _____ | |
| $2,013 | ||
I will allow $2,013.
It appears that additional, but unknown, treatment expenses have been met, although it is not known by whom.
Future medical expenses
The costs of any future and ongoing treatments are not known and in particular, from Mr Semmens. However, they can be provided for by s 48 so that, as and when such expenses full due, they can be met as required.
Economic loss
ATS has, at all material times, been the recipient of a disability pension. Economic loss is not a factor in her claim. At least, she has not provided any evidence thereof.
Conclusion
I will allow the following:
1.Award $30,000
2.Past known medical expenses $2,013
3.Dr Semmens report fees: 25.2.2020 - $825
2.5.2021 - $484 $1,309
$33,322
There will be an award for the sum of $33,322, plus any other future treatment expenses reasonably incurred by reason of the assault as provided by s 48.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JB
Associate to Judge Goetze
29 JUNE 2021
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