August v Lynch
[2019] WADC 78
•19 JUNE 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: AUGUST -v- LYNCH [2019] WADC 78
CORAM: GETHING DCJ
HEARD: 24 MAY 2019
DELIVERED : 19 JUNE 2019
FILE NO/S: APP 112 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: MELISSA AUGUST
Applicant
AND
BROOKE MAREE LYNCH
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: CIC 3261 of 2017
File Number : C F HOLY-OAK ROBERTS
Catchwords:
Criminal injuries compensation - Appeal on the grounds of manifest excess - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
| Applicant | : | In person |
| Respondent | : | No appearance |
| Amicus Curiae | : | Mr T Ledger appeared on behalf of the Chief Executive Officer of the Department of the Attorney General |
Solicitors:
| Applicant | : | Not applicable |
| Respondent | : | Not applicable |
| Amicus Curiae | : | State Solicitors Office |
Case(s) referred to in decision(s):
AH v RW [2016] WADC 114
Garton v McCormack (2002) 30 SR (WA) 307
Gullelo v Halloran [2008] WADC 145
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) 5
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Houlahan v Pitchen [2009] WASCA 104
KMA v DFS [2010] WADC 6
M v J and J v J (Unreported WASC, Library No 920598, 19 November 1992)
Michael v Panetta (1994) 10 SR (WA) 323
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Re ATS [2019] WADC 76
Re Karra (1984) 2 SR (WA) 97
Re Utting [2011] WADC 10
Re Warrek [2019] WADC 50
RJE v Bandy (Unreported WASC, Library No 1365; 31 May 1974) 3
Robertson v Baker [2014] WADC 14
Robinson [2017] WADC 18
S v Neumann (1995) 14 WAR 452
Shepherd v Shepherd [2010] WADC 30; (2010) 71 SR (WA) 143
TAW v NJS [2011] WADC 187
Townend v McAlindon [2017] WADC 63
Underwood v Underwood [2018] WADC 13
Winiarczyk v Tsirigotis [2011] WASCA 97
GETHING DCJ:
By notice of appeal filed 9 November 2018 (Appeal) the appellant, Melissa August, appealed against a decision of a Criminal Injuries Compensation Assessor (Assessor) made on 17 October 2018.[1] The decision was to award the respondent, Brooke Lynch, compensation pursuant to Criminal Injuries Compensation Act 2003 (WA) (CICA) in the amount of $4,000 (Determination). The Determination arose out of an incident on 10 December 2016 at Atwell in which the appellant assaulted the respondent (Assault). On 13 September 2017 the appellant pleaded guilty to an offence of assault occasioning bodily harm in relation to the Assault, for which she was fined and received a spent conviction.
[1] The notice of appeal incorrectly refers to the Decision being made on 24 June 2017.
The appellant says that the Determination is manifestly excessive and should be reduced.
For the reasons which follow, having reviewed the matter afresh, I have determined that the amount of $4,000 is the appropriate amount of the criminal injuries compensation to which the respondent is entitled.
Background facts
The background facts are sufficiently summarised in the Statement of Material Facts (SOMF):[2]
On Saturday the 10th of December 2016, in between 10:30 pm and 11:30 pm, the accused was at 1 O'Farrell Close in Atwell at a friend's 19th birthday party.
The victim was a guest at the party also and was situated in a bedroom when the accused, who was very intoxicated, entered the room.
The accused attempted to converse with the victim and her friend but soon became aggressive and hit the victim with a beer bottle in the head causing a minor injury. They continued to push and shove each other until they fell over.
The accused bit the victim on the middle of her back which caused the layers of skin to break and for the wound to bleed.
[2] The CEO for the Department of Justice, appearing as amicus curiae, filed a Matter Book for the appeal which included both the police file and the Criminal Injuries Compensation File. I will refer to pages in the Matter Book as 'MB' followed by the page number. The SOMF is at MB 152.
After the incident occurred an ambulance was called and attended. Ambulance officers treated the respondent but did not take her to hospital.[3] Police also attended that evening.
[3] MB 26.
On the afternoon of 12 December 2016 the respondent presented to Fiona Stanley Hospital Emergency Department where she was examined. According to hospital records, her presenting injuries were a blunt force injury to the back of the head and a bite mark on her back. The respondent described to those treating her symptoms of nausea and dizziness, with intermittent headaches and occasional feelings of 'fuzziness'.[4] Examination revealed a small palpable haematoma over the scalp where the respondent had said she had been struck. There was no spine tenderness and full range of motion in her neck. There was a superficial abrasion over the middle of her back from a bite mark. The respondent was prescribed ibuprofen and determined safe for discharge.[5]
[4] MB 159.
[5] MB 159.
On 14 December 2016 the respondent presented to the Cockburn Medical Centre and was seen by a Dr Lacey who provided a report to police.[6] Dr Lacey's examination revealed a 30 mm haematoma at the back of the respondent's head, as well as full thickness lacerations on her mid‑back consistent with a human bite. The bite wounds exhibited penetration of the epidermis and dermis. There was no swelling, erythema or discharge to suggest infection.[7]
[6] MB 160.
[7] MB 160.
On 2 March 2017, the appellant was arrested and interviewed at Fremantle Police Station, where partial admissions were made. She was initially charged with unlawful wounding.[8]
[8] MB 152.
At the first appearance on 31 March 2017 the matter was set down for trial on 13 September 2017. However, at this hearing the charge was amended to one of assault occasion bodily harm, to which the appellant pleaded guilty. She was fined $1,000 and a spent conviction was recorded.[9]
[9] MB 158.
Application for Criminal Injuries Compensation
By application received on 22 November 2017 the respondent applied for criminal injuries compensation (Application).[10]
[10] MB 161 – 175.
In the Application the respondent only claimed for compensation for her injury. No claim was made for loss, treatment and report expenses, future treatment expenses, travel, personal items, loss of earning capacity, worker's compensation or any other compensation.[11]
[11] MB 162.
The respondent included with the Application a detailed statement of the physical and mental injuries which she sustained:[12]
[12] MB 174 – 175.
Physical
After being assaulted and hit in the back of the head with the bottom of a full bottle of beer I sustained a large lump to the back of my head. This lump/bruise caused me pain for three months after the incident. I wasn't' able to sleep on the right side of my head for those three months, or lay on my back as the pressure to my head would still hurt. Two days after the incident I went to the emergency department because I was worried I was having a delayed reaction to the concussion as I became dizzy, unfocused and 'fuzzy'. To the point where holding a conversation was hard. I got the all clear but for a week after I still felt dazed and 'off'.
I am a very active person and because of my injuries I was not able to do what usually relieves my stress. I wasn't able to go for a run or do a workout in the gym. I didn't workout for three and a half months after the incident and that was very hard for me, as someone who usually works out five times a week. I tried to workout after a month but the throbbing to the back of my head was so intense I couldn't continue. I was taking pain medication (either Panadol or ibuprofen) every day to stop the constant throb whenever I did anything. Standing up, walking, changing the direction I was looking in and trying to exercise all caused a lot of throbbing and made even doing the smallest thing very hard. My neck was also very sore for the month afterwards, having a lot of pain when trying to turn my head, lay or just having to hold my head up for long periods of time. Driving was difficult as I couldn't turn my head fast to see and my neck was so sore that if I braked too hard or suddenly it would cause sharp pains in my neck.
I also sustained a wound to the middle of my back, half way up my spine where I had been bitten by the girl who assaulted me. The bite went through more than two layers of my skin, including my shirt I was wearing at the time. The wound had clear teeth marks. This bite mark also made it hard to sleep and wear clothes as it was very bruised and scabbed. It continuously broke open and would bleed. I had to have my Mum put antiseptic cream on the wound morning and night for two weeks until it healed as I wasn't able to reach it. I couldn't sit properly in my car while I drove because of the bite rubbing and the bruise being pushed. The bruises and grazes that were on my arm were uncomfortable and lasted a week.
Mental:
After being assaulted and making my statement to police I had to take a week off from work as I was unable to cope with any form of stress or rush. I was very upset for the month after the incident and would often stay by myself and not be involved in my family's lives. I am usually very involved and active, and not being able to join in was very distressing. I found it really hard to talk to anyone about what had happened because I never felt as though people thought it was as serious as I did. Not being able to workout was very hard for me. I always find so much satisfaction and relief after a run or a workout and not being able to caused a lot of built up anger and stress causing me to often have outbursts or breakdowns.
I saw the girl who assaulted me about three weeks after the incident which caused a lot of anxiety. She works at a restaurant in a shopping centre near me and had finished work when I was at the shops. This caused me to get upset, cry and have to sit down from hyperventilating. Even seeing her in court almost ten months later caused hyperventilation and a lot of stress. The day before court when I spoke to the police officer who was representing me I broke down in his office while going over my statement because it brought back memories that I had tried not to think about for the ten months since it happened.
Going out clubbing or to parties was very difficult for me afterwards. Being around drunk and loud people caused a lot of distress and anxiety. I was always so worried it would happen again that I just wouldn't go out or if I did I would stay right beside my boyfriend the whole time holding onto him to make sure I didn't get hurt. If anyone yelled at me or even made a loud noise in my direction I would get very upset.
I still find now, even after almost a whole year since being assaulted, I still scare very easy, jump, shy away from any kind of conflict or aggressive situations from fear of being hurt again. I consider myself to be a strong person and physically capable of defending myself, but still always find that even the slightest raise of a voice, physical gestures towards me or even talk of violence causes me to become very upset.
Criminal Injuries Compensation staff wrote to the appellant by letter dated 24 June 2018 advising her of the respondent's application and inviting her to provide a written submission setting out any matters she wished the Assessor to consider.[13] The appellant did not provide any written submission.
[13] MB 179.
The Assessor made an award dated 17 October 2018 in the amount of $4,000 (being the Determination).
The appellant was advised of the Determination by letter dated 17 October 2018.[14] This letter also set out her appeal rights, including that the appeal must be lodged within 21 days of the date of the compensation award.
[14] MB 9.
No party requested the Assessor to provide written reasons pursuant to CICA s 27.
The appeal to the District Court
The Appeal was filed two days outside the 21 day time limit in CICA s 55(3). The appellant thus requires, and has sought, leave to commence the appeal out of time.
On 12 December 2018 the appellant filed a statutory declaration in which she stated that 'I was overdue with my application for appealing against compensation as I wasn't sure what the due date for it was'. Although, this statutory declaration was filed under an affidavit cover sheet, it is not properly sworn as an affidavit. Nonetheless, in the circumstances, I will waive this irregularity and take the contents of the statutory declaration into account.
The District Court may allow an appeal to be commenced after the 21 days if 'it is just to do so, and may do so even if the period has expired'.[15] I set out the principles governing the exercise of this discretion in Underwood v Underwood.[16] Applying those principles, as the Appeal was only filed two days late and the respondent has not placed before the court any material suggesting that she has been prejudiced by the delay, it is appropriate to extend the time within which the appeal may be brought.
[15] CICA s 55(3), (4).
[16] Underwood v Underwood[2018] WADC 13 [25] – [35] (Gething DCJ).
By orders made on 8 January 2019, the Chief Executive Officer of the Department of Justice (CEO) took part in the appeal as amicus curiae. On 20 May 2019 the CEO filed written submissions,[17] as well as a matter book.[18]
[17] Which I well refer to as the 'CEO's Submissions'.
[18] See footnote 2.
On 11 April 2019 the respondent filed a notice of respondent's intention in which she advised the court that her position is that the Determination should be upheld on the grounds relied on by the Assessor, but that she did not intend to take part in the appeal and will accept any order made by the court in the appeal other than as to costs.
In hearing this appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the assessor's decision'.[19] The appeal is a hearing de novo.[20] I am to treat the Application as if it came before the court for the first time, save that the appellant has the right as well as the obligation to open the appeal.[21] The appellant does not have to demonstrate an error on the part of the Assessor in order to succeed.[22] I do, however, have to consider all issues relating to the respondent's claim for criminal injuries compensation, and not just the issue of whether the amount of the award is excessive.[23]
[19] CICA s 56(1).
[20] Underwood [19]; Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude); Robinson [2017] WADC 18 [7] (Troy DCJ).
[21] Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcom CJ).
[22] Underwood[19]; Gullelo [5].
[23] Re ATS [2019] WADC 76 [19] (Davis DCJ).
The court must determine the appeal 'solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information'.[24] Neither the appellant nor the respondent has requested the court to consider any further evidence or information.
[24] CICA s 56(1).
It is open to the court to confirm, vary or reverse the assessor's decision, either in whole or in part.[25]
[25] CICA s 56(2)(b).
On the materials before the court and the submissions made by the appellant at the hearing before me, the only issue in the appeal is what award of compensation is appropriate. The appellant, as I have said, is of the view that an award of $4,000 is manifestly excessive. At the hearing of the appeal the appellant sought to place before the court information as to her lack of ability to pay the amount of the Determination. The lack of ability of a person to pay an amount by way of criminal injuries compensation is not a relevant factor in assessing the appropriate amount of compensation. It is, however, a relevant consideration in the actions taken by the CEO to recover the compensation paid from the appellant in due course.[26]
[26] CICA pt 6.
What award of compensation is appropriate?
The respondent's claim for compensation is based on 'the commission of a proved offence'.[27] The term 'proven offence' is defined to mean 'a crime, misdemeanor or simple offence of which a person has been convicted'.[28] The appellant's conviction of the offence of assault occasioning bodily harm is a proven offence for the purposes of the CICA.
[27] CICA s 12(1).
[28] CICA s 3.
In relation to a claim of this kind, the scheme of the CICA is that the Assessor starts from the basis of the proved offence, and then proceeds to determine causation and assess compensation.[29]
[29] Underwood [46].
As to the facts on which the claim is to be assessed, in Underwood after reviewing the relevant authorities I summarised the principles which apply where there has been a plea of guilty:[30]
First, in a CICA appeal, the offender cannot re-litigate the facts which led to the proved offence; it is not a backdoor means by which to appeal the conviction.
Second, a plea of guilty to a criminal charge necessarily involves an admission by the offender of material facts comprising the elements of the offence. Proof of the fact of the conviction may also constitute evidence of those material facts.
Third, a plea of guilty necessarily means that all relevant defences have been conceded as not applying. This would preclude the offender from adducing evidence in criminal injuries compensation assessment, including for the purposes of CICA s 41, to the effect that he or she had a defence to the proved offence.
Fourth, a claimant for criminal injuries compensation cannot re‑litigate the facts which led to the proved offence….
Fifth, where there is an issue as to the precise identification of the facts evidenced by the conviction following a plea of guilty, the 'only reliable guide to that issue' will 'usually be' the facts admitted for the purposes of sentence… This will ordinarily be able to be discerned from the transcript of the sentencing hearing.
Sixth, a plea of guilty does not constitute an admission of all of the facts stated in the State's witness statements, or otherwise contained in the brief. On the other hand, nor does a plea of guilty constitute a rejection of the facts stated in the State's witness statements, or otherwise contained in the brief, that do not comprise the essential facts necessary to constitute the elements of the offence. These other facts or circumstances are not incontrovertible.
Seventh, both a claimant and an offender may introduce evidence and other material in relation to the facts and circumstances not falling within the second and third principles. The CICA contains procedures to enable an assessor to resolve a factual conflict, including the power to conduct a hearing: CICA s 24.
[30] Underwood [55] – [62].
As I have already observed, neither party sought leave to adduce further evidence or information beyond that before the Assessor.
There is no information before me to the effect that the appellant was sentenced on a factual basis different from that set out in the SOMF. So the appeal is to be determined on the basis that the appellant was sentenced on the facts set out in the SOMF, and that those facts were admitted and cannot be re-litigated in this appeal.
The general power of an assessor is contained in CICA s 30. It provides that 'on application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered'.
As the offence occurred after 23 September 2003, the maximum amount of compensation payable for a single offence is $75,000.[31] The maximum in CICA s 31(1) is a jurisdictional limit and is not reserved for the worst cases.[32]
[31] CICA s 31(1).
[32] S v Neumann (1995) 14 WAR 452, 463 (Murray J); TAW v NJS [2011] WADC 187 [21] (Bowden DCJ); Underwood [30].
The correct approach to adopt in assessing the amount of compensation under the CICA is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the CICA, and to the jurisdictional limit of the CICA.[33]
[33] M v J and J v J (Unreported WASC, Library No 920598, 19 November 1992) (Scott J); RJE v Bandy (Unreported WASC, Library No 1365; 31 May 1974) 3 (Burt J); Re Utting [2011] WADC 10 [6] (Braddock DCJ); Robertson v Baker [2014] WADC 14 [12] (Stone DCJ); Underwood [113].
In the present appeal, the only issue I need to consider is what amount of compensation is just for the respondent for non-economic loss arising out of her injuries. I do not need to consider the issue of 'loss' as the respondent did not make a claim for compensation for any loss.
The term 'injury' is relevantly defined to mean 'bodily harm, mental and nervous shock'.[34]The phrase 'mental and nervous shock' contemplates the impact of the offence on the mind or nervous system.[35] It refers to 'mental or emotional harm as opposed to physical injury or bodily harm'.[36] It must be of an enduring character so as to amount to an injury, as opposed to a mere emotional reaction.[37] For example, mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress and disgust are seen as compensable.[38]
[34] CICA s 3.
[35] Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) 5 (Burt J); Underwood [83]; KMA v DFS [2010] WADC 6 [24] (Sweeney DCJ).
[36] S v Neumann, 461 (Murray J); Underwood [83].
[37] Underwood [83]; Neumann, 461; KMA [24]; AH v RW [2016] WADC 114 [63] (Braddock DCJ); Townend v McAlindon [2017] WADC 63 [46] (Sleight CJDC).
[38] Underwood [83]; KMA [24].
The respondent sustained two main physical injuries. The first was a blunt force injury to the back of her head. It left a 30 mm haematoma (bruise).
The second physical injury was a bite to her back. In the photographs in the materials before the court, the bite mark is distinct.[39] I readily infer that it must have taken some force by the appellant to have given the respondent this bite.
[39] MB 118, 119, 127.
Both of these injuries are referred to in the SOMF as being part of the Assault. The existence and severity of these injuries is evident in the medical evidence which I have summarised at [6] and [7]. The respondent's description of her physical injuries is consistent with the other materials before the court.[40] I am satisfied on the balance of probabilities that the respondent sustained the injuries described.
[40] Statement of Kassandra Mary-Anne Hayden, par 19 (MB 103 – 105); Statement of Chloe Thompson, par 49 (MB 96 – 102); Statement of Karl Woolmer, pars 8 – 9 (MB 112 - 113).
I am also satisfied that the respondent suffered the bruises and grazes to her arms referred to in the Application.[41]
[41] MB 174. See also the Police Running Sheet at MB 19 - 21; see CEO subs 47(f).
The respondent outlined the physical impact of her injuries in the Application (quoted at [12]), which in summary are:
•Initially, dizziness and a lack of focus
•Pain from the bruise to the head for three months requiring pain medication
•Throbbing on standing up, walking, changing direction and moving her neck
•Difficult driving
•Inability to go to the gym
•Ongoing bleeding from the bite.
The respondent also describes the ongoing stress, distress and anxiety which she experiences as a result of the Assault (which I have again quoted in detail above [12]). I am satisfied on the balance of probabilities that what the respondent describes is of a sufficiently enduring character to amount to 'mental and nervous shock' for the purposes of the definition of an 'injury' in the CICA.
In assessing mental and nervous shock, the court must attempt to make a distinction between direct 'impact damage' and further damage that may be suffered by such things as the reaction of the victim's family and friends, court proceedings or public attention.[42] I am satisfied that the mental and nervous shock sustained by the respondent was direct impact damage from the injuries sustained in the proven offence.
[42] Bandy (3); Re Karra (1984) 2 SR (WA) 97, 100 - 101 (Heenan DJC); Garton v McCormack (2002) 30 SR (WA) 307 [15] (Yeats DCJ); Shepherd v Shepherd [2010] WADC 30 [20]; (2010) 71 SR (WA) 143 (Wager DCJ).
I am satisfied on the balance of probabilities the injuries at [36] to [39] and the sequalae set out in [40] and [41] occurred and did so 'as a consequence of the commission of a proved offence'.[43]
[43] CICA s 12(3).
The amount of damages for non-economic loss must be fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused, having regard to current general ideas of fairness and moderation.[44] The amount must be proportionate to the situation of the particular applicant.[45]
[44] Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ); Houlahan v Pitchen [2009] WASCA 104 [107] (Newnes JA with whom Pullin & Miller JJA agreed); Winiarczyk v Tsirigotis [2011] WASCA 97 [71] (Judgment of the Court).
[45] Houlahan [107]; Winiarczyk [71].
Whilst it is permissible to look at awards of criminal injuries compensation in other appeals there is often limited utility in doing so as the circumstances of each case are unique: Michael v Panetta (1994) 10 SR (WA) 323, 323 - 324 (Jackson DCJ); TAW [24]; Re Warrek [2019] WADC 50 [37] (Troy DCJ). With this caveat, the recent decision of mine in Underwood v Underwood does provide a useful benchmark as to the broad order of magnitude of compensation appropriate. In that case, the appellant was convicted of aggravated assault occasioning bodily harm for slapping the respondent across the face with an open palm and kicking her in the leg. The respondent received bruising and swelling to her face and bruising to her left leg. The respondent suffered PTSD as a consequence of the commission of the assault for which she received treatment which addressed the symptoms, there being no evidence of ongoing symptoms. Looking at the matter afresh, I assessed non-economic loss at $5,000.[46]
[46] Underwood [120].
In the circumstances which I have outlined, I agree with the Assessor that the appropriate award for non-economic loss is $4,000.
What final orders are appropriate?
The appropriate final orders are that:
1.The appellant have leave to appeal out of time.
2.The decision of the Assessor be confirmed.
3.There be no orders as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
Associate19 JUNE 2019
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