Bacich v Blight
[2019] WADC 94
•9 AUGUST 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BACICH -v- BLIGHT [2019] WADC 94
CORAM: LEVY DCJ
HEARD: 27 FEBRUARY 2019
DELIVERED : 29 MARCH 2019
PUBLISHED : 9 AUGUST 2019
FILE NO/S: APP 104 of 2018
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: FRANCA KATE BACICH
Appellant
AND
TANIKA-LEE BLIGHT
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: C F HOLYOAK-ROBERTS
File Number : CIC 2768 of 2017
Catchwords:
Criminal injuries compensation - Appeal against award - Application for leave to cross-appeal out of time - Failure to make award for future medical expenses - New evidence - Turns on own facts
Legislation:
Criminal Code (WA), s 317(1)(a)
Criminal Injuries Compensation Act 2003 (WA), s 3, s 6(2)(b), s 12, s 49, s 55(1)(b), s 56(1)
District Court Rules 2005 (WA), r 53(4)
Result:
Appellant's appeal dismissed
Respondent's application to vary the decision and cross-appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | In person |
| Amicus Curiae | : | Mr J F Bennett appeared 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):
BT v BT [2014] WADC 166
Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143
Gullelo v Halloran [2008] WADC 145
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
LEVY DCJ:
On 14 May 2018, Franca Kate Bacich (appellant) pleaded guilty and was convicted at Fremantle Magistrates Court of an offence of unlawfully assaulting Tanika-Lee Blight (respondent) and thereby doing her bodily harm in circumstances of aggravation, namely being in a family relationship contrary to s 317(1)(a) of the Criminal Code (WA) (the offence).
By an application dated 11 September 2017, Ms Blight sought compensation pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA) (the Act).
On 21 September 2018, the learned criminal injuries assessor (assessor), having been satisfied that Ms Blight had suffered injuries that occurred as a consequence of the offence, awarded her compensation in the sum of $51,088.75. That amount was made up of $50,000 for her injuries, $1,068.75 for her out of pocket medical expenses and travel of $20.00. The learned assessor declined to allow any award for future medical expenses. Pursuant to s 45(1)(b) of the Act, the learned assessor ordered that only $20,000 of the total sum may be subject to proceedings under pt 6 of the Act (the barring order).[1]
[1] Pursuant to pt 6 of the Act, the CEO of the Criminal Injuries Compensation Tribunal may request or seek orders requiring an offender to reimburse to the State the whole or part of the amount paid or payable under the award.
Ms Bacich appealed against the award of criminal injuries compensation made in favour of Ms Blight.
Ms Blight subsequently filed a notice of respondent's intention seeking a variation of the original decision and cross-appealing. Both her application for a variation and the cross-appeal relate to the learned assessor's failure to allow for future medical expenses.
The hearing of this matter took place before me on 27 February 2019. Both Ms Bacich and Ms Blight were unrepresented. The Chief Executive Officer of the Department of the Attorney General (CEO) was represented by Mr Bennett who appeared as amicus curiae and greatly assisted the court. I reserved my decisions in the matter on that day.
On 29 March 2019 I dismissed Ms Bacich's appeal. I also dismissed both Ms Blight's application for the decision to be varied and her cross‑appeal. Consequently, the award of compensation in the sum of $51,088.75 made by the learned assessor on 21 September 2018 was confirmed.
History of the appeal
At the hearing of the matter, Mr Bennett, as amicus curiae on behalf the CEO, submitted that Ms Blight's appeal was out of time. Consequently, it is necessary to set out some of the procedural history relating to the matter.
On 11 October 2018, Ms Bacich filed an appeal notice against the assessor's award. The appeal notice was filed within the time prescribed by the Act.
On 25 October 2018, the State Solicitor for Western Australia entered an appearance on behalf of the CEO as amicus curiae in the appeal.
On 4 December 2018, the appeal was listed for a directions hearing before a registrar of the District Court. Both Ms Bacich and Ms Blight appeared at that directions hearing. Neither Ms Bacich nor Ms Blight were represented by a legal practitioner at that hearing and remained unpresented at the hearing of the appeal. The CEO appeared via amicus curiae at the directions hearing and at the appeal. At the directions hearing, the learned registrar made orders that included:
1.Service of the notice of appeal on Ms Blight be dispensed with.
2.Ms Blight file a notice of respondent's intention within 24 hours.
3.That the court issue a notice to produce documents to:
(a)St John of God Hospital (Murdoch);
(b)Associate Professor Gareth Prosser (Orthopaedics WA);
(c)Coolbellup Medical Centre; and
(d)Black Swan Health.
Ms Blight filed a notice of respondent's intention on 4 December 2018, being the day of the directions hearing. Pursuant to that notice, Ms Blight sought to both vary the learned assessor's decision and appeal against the assessor's failure to allow for future medical expenses. It is not contended that her notice of respondent's intention was filed out of time.
Nature of appeals to the District Court against an assessor's decision
Pursuant to s 55(1)(b) of the Act, an interested person may appeal to the District Court as to the amount of compensation awarded by an assessor. The appeal is a hearing de novo: Gullelo v Halloran [2008] WADC 145 [5].
The appellant is not required to demonstrate error on the part of the assessor. Although the court is to determine the application afresh without being fettered by the determination of the assessor (s 56(1)), it is appropriate to have regard to the assessor's reasons for decision: Hogben v Darcy [2009] WADC 63 [13]. The court, relevantly may:
(a)exercise any power of an assessor under this Act, other than a power under s 19(1)(b), s 24(1) or s 25: s 56(2)(a);
(b)confirm, vary or reverse the assessor's decision, either in whole or in part: s 56(2)(b); or
(c)make any order that an assessor could make under this Act: s 56(2)(c).
The appellant does not have to show error on the part of the assessor in order to succeed on an appeal.
The court is required to consider the appeal 'solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information': s 56(1).
Further evidence should be admitted unless there is some reason why it would be unjust to do so: Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143 [37]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9]. On the hearing of the appeal I allowed further evidence to be admitted. I will address that further evidence in due course.
An appeal must be filed within 21 days of a decision: s 55(3). However, the District Court may allow an appeal to be commenced after the 21 days if it is just to do so: s 55(4).
As already noted above, the CEO, through counsel who appeared as amicus curiae, submits that Ms Blight's appeal is out of time (the assessor's decision was made on 21 September 2018 and her notice of respondent's intention was not filed until 4 December 2018) and that she consequently requires an order granting her an extension of time to proceed with the cross-appeal.
At the hearing of the appeal, although I invited Ms Blight to make submissions as to why the court should allow her an extension of time to appeal, in reality the issue does not arise. I infer from the orders made by the learned registrar on 4 December 2018 that Ms Bacich's appeal notice was not served upon Ms Blight prior to the directions hearing. Ms Blight's application for a variation of the decision and her cross-appeal were initiated by the filing of her notice of respondent's intention pursuant to r 53(4) of the District Court Rules 2005 (WA). As already noted, that document was filed by Ms Blight on the day of the directions hearing and was not out of time. Consequently, she is not required to seek an extension of time to proceed with her cross-appeal or application for a variation of the original decision. In any event, even if I am wrong about that, it does not affect the outcome of this appeal.
An assessor must not make a compensation award in favour of a person unless they are satisfied that the person suffered an injury or loss as a consequence of the commission of a proved offence: s 12(3)(a). A proved offence is defined to mean 'a crime, misdemeanor or simple offence of which a person has been convicted': s 3.
There is no dispute that Ms Bacich's conviction for the offence constitutes a proved offence.
Ms Blight's application for a variation of the decision and cross-appeal
Ms Blight's original application sought compensation for injuries being both bodily harm as well as mental and nervous shock. In addition, Ms Blight sought compensation for future treatment, travel, personal items and loss of earning capacity. The personal items included a lost bracelet, a damaged phone and damaged cars.
Ms Blight sought compensation for loss of earnings in a global amount of $10,000, as well as the sum of $7,200 being the cost of a course she claimed she could not complete as a consequence of the offence.
The learned assessor did not make any award of compensation with respect to Ms Blight's claim for future treatment, personal items, loss of earning capacity or the cost of her course. Save for her claim for future treatment, neither Ms Blight's application for a variation of the decision nor her cross-appeal raises any issue with respect to those parts of the assessor's decision. Consequently, it is not necessary to consider those matters. Nor does Ms Blight take any issue with respect to the assessor's allowance of $20 for travel expenses.
The only issue raised by Ms Blight's cross-appeal is the assessor's failure to make any award that allowed for future treatment.
Ms Blight's original application for compensation was considered in light of the documents and evidence then before the learned assessor which included the following:
•Ms Blight's victim impact statement dated 6 September 2017.
•Ms Blight's victim impact statement dated 19 April 2018.
•Ms Blight's statement dated 5 May 2018.
•Letter from Dr Christina Shaw of Coolbellup Medical Centre.
•The police brief of evidence including other witness statements, and photographs of the bite mark and bruising to Ms Blight's wrist and face.
•A copy of a referral letter from Dr Alison Hughes dated 27 April 2018 addressed to Dr Jane Fitch requesting diagnostic clarification and management against a background of borderline personality disorder and previously diagnosed ADHD and adjustment disorder as well as childhood depression.
•A referral letter from Dr Alison Hughes to Professor Prosser dated 27 April 2018 for ongoing management of the recent hip replacement revision on 9 March 2018 two subsequent dislocations which occurred whilst the applicant has been four whilst standing.
•A number of letters and reports from Associate Professor Prosser including:
•Letter/report dated 19 March 2014.
•Letter/report dated 21 March 2014.
•Letter/report dated 21 May 2014.
•Letter/report dated 6 April 2017.
•Letter/report dated 17 August 2017.
•Letter/report dated 31 August 2017 including scans.
•Letter/report dated 7 December 2017.
•Letter/report dated 28 February 2018.
•Letter/report dated 11 April 2018.
•Letter/report dated 26 April 2018.
•Letter/report dated 3 May 2018.
•Letter from Coolbellup Medical Centre dated 19 March 2018.
•Medical certificate from Dr Natalie Ghosh dated 6 November 2017.
•Report from Dr Natalie Ghosh dated 11 May 2017.
•Medical notes from Coolbellup medical Centre relating to Ms Blight dating back to at least 2011.
•Various accounts for treatment as a result of surgery totalling $1068.07.
•Medical notes from Black Swan Health including a report from Bernard Hughes, Senior Clinician, Clinical Psychologist, dated 16 June 2017 team.
Some of the documents and materials available to the assessor were procured as a result of the assessor issuing notices pursuant to s 19(2) of the Act to Coolbellup Medical Centre, Black Swan Health and Associate Professor Gareth Prosser of Orthopaedics WA, all of whom treated Ms Blight at some relevant stage. The documents and materials referred to above are further considered in more detail later in these reasons (see [43] - [52] below).
History of letters and correspondence between Ms Blight and the learned assessor – Ms Blight's failure to provide information, documents or materials to support her claim for future treatment
It is evident that as early as 28 June 2018, the learned assessor sought further information from Ms Blight with respect to her claim for future treatment. In the learned assessor's letter to Ms Blight dated 28 June 2018 and sent via email that same day, the learned assessor advised Ms Blight as follows:
If you require future treatment with respect to your injury, for me to consider an allowance for same, you need to provide me with evidence of the future treatment you require including the duration and cost …
If you intend to provide additional information in support of your application particularly with respect to your injury, future treatment, past medical treatment and loss of income, please provide a detailed summary and submissions with respect to those losses and any supporting documentation within the next 28 days. These will then be taken into account by myself when assessing your claim. If the information is not provided and is not available to me at the time your claim is assessed, then no allowance can be made for those items not before me.
On 30 June 2018 Ms Blight responded to the learned assessor's letter by email stating as follows:
Hi, I'll just let use [sic] do the assessment with what I have supplied. I have had 4 operations as a result which iv [sic] supplied medical evidence. When will use [sic] have a [sic] assessment completed?
On 30 August 2018, the learned assessor caused another letter to be sent to Ms Blight again advising her as follows:
As you are claiming for future treatment expenses, please also provide the following:
1.A report or letter from Dr Prosser outlining future treatment for your hip, with approximate costs;
2.A report or letter from your GP regarding the need for future psychological treatment.
In response to the above, Ms Blight advised the learned assessor by email of 30 August 2018 as follows:
Hi,
I would u [sic] prefer if you just process it as i [sic] dont [sic] have a vehicle atm. I havent [sic] got any councelling [sic] apointments [sic] for the future booked and Mr Prosser cant do much more for my hip as its nerve damage from the dislocation which is permanent.
No further information or evidence was provided by Ms Blight to the learned assessor with respect to her claim for future medical expenses or treatment. Unsurprisingly therefore, the learned assessor did not allow Ms Blight's claim for future treatment.
Ms Bacich's appeal
Ms Bacich's sole ground of appeal is somewhat ambiguous and simply reads: 'Judgement [sic] has been incorrectly assessed.'
It is not clear from the ground of appeal whether Ms Bacich contends that no amount of compensation should have been awarded, or whether it is only the quantum of the compensation awarded that is in issue. Allowing for the fact that Ms Bacich was unrepresented and the manner in which she argued the appeal, I have assumed that the appeal raises both issues and will address each in turn.
I also note that the assessor's 'barring order', made pursuant to s 45(1)(b) of the Act. That order limited the amount that may be subject to proceedings brought against Ms Bacich under pt 6 of the Act to $20,000. An order made pursuant to s 45(1)(b) of the Act is not a decision in respect of the amount of a compensation award and therefore not appealable: BT v BT [2014] WADC 166 [25].
Did Ms Blight suffer an injury or loss as a consequence of the commission of a proved offence?
During the course of Ms Bacich's oral submissions on the hearing of the appeal, she submitted that none of the injuries to Ms Blight's hip were brought to anyone's attention in the Magistrates Court during her sentencing proceedings. Ms Bacich submitted that the only injury referred to was the fact that she had been bitten 'and some other injury'.[2] I took this submission to amount to a contention by Ms Bacich that Ms Blight's claimed hip injury could not be taken into account. It is necessary therefore to set out some of the background to the offence and the proceedings in the Magistrates Court at Fremantle on 14 May 2018.
[2] Submissions of Ms Bacich, ts 6.
The offence was committed by Ms Bacich on 11 February 2017. Ms Blight had previously been in a de facto relationship with Ms Bacich's son, Mikel Bacich. Ms Blight and Mikel Bacich had a child together. That relationship ended when Mikel Bacich committed suicide on or about 22 December 2015.
Ms Bacich was represented by counsel at the time she entered her plea of guilty before a magistrate sitting at Fremantle Magistrates on 14 May 2018. I permitted Ms Bacich to tender the transcript of that hearing (exhibit FKB1) during the course of the appeal before me. The facts, as read to the court on sentencing, included the following:
The accused in this matter is the mother of the victim's ex-partner, and the ex-partner passed away in December 2015. Between 10.30 and 11:30 pm on Saturday, 11 February this year [sic], the accused and the victim were at 9 Robertson Place in Bibra Lake. It's the victim's residential address … It's the home address of the victim. The accused attended to visit other family members. Whilst at the address, an argument commenced between the accused and the victim. The argument related to the deceased estate [indistinct] the victim's ex‑partner, the accused's son. Whilst in the lounge room of the property, the argument developed into a physical altercation. The accused punched the victim, causing her to fall back on the couch.
A fight between the accused and the victim commenced, during which the accused bit the victim to her right forearm. Other persons present at the house intervened and separated the two. As a result of the assault, the victim incurred injuries, including bruising and a bite mark to the right forearm, was later reported to police, and charge was laid [sic].
(emphasis added)
Counsel, who represented Ms Bacich, advised the learned Magistrate that:
The facts are largely admitted, with the exception of the issue concerning the argument … It doesn't relate to the injuries … However, it's my clients position that, whilst attending other family members at that particular residence at that time, she had a conversation with the complainant and asked the complainant whether or not there was any truth in what she had heard from a third-party, that unless a sum of $50 was repaid to the complainant- that the complainant would prevent Ms Bacich – sorry. She tells me it's Ms Bacich - from seeing her grandson.
Counsel for Ms Bacich also submitted that the offence was committed in circumstances where she was 'in a state of emotional turmoil', was grossly provoked by Ms Blight and consequently 'lost the plot'.[3]
[3] Exhibit FKB1 - transcript of sentencing hearing Fremantle Magistrates Court, 14 May 2018, page 4.
There is no doubt that that the offence that Ms Bacich pleaded guilty to on 14 May 2018, namely on 11 February 2017, unlawfully assaulting Ms Blight and thereby doing her bodily harm in circumstances of aggravation, namely being in a family relationship contrary to s 317(1)(a) of the Criminal Code is a 'proved offence' under the Act.
Nor is there any doubt that Ms Blight suffered an injury as a result of a proved offence. On Ms Bacich's own submission, Ms Blight suffered, at the very least, bruising and a bite mark to the right forearm as a consequence of Ms Bacich biting.
It is of note that the police file, which was provided to the learned assessor, contained witness statements from not only Ms Blight, but also two other witnesses present at the time of the offence. Both of those witnesses, AM and AV, gave accounts consistent with the facts read out during Ms Bacich's sentencing hearing. Both AM and AV said that they saw Ms Bacich on top of Ms Blight on the couch. Ms Bacich is much heavier and larger than Ms Blight.
In addition to the prosecution brief of evidence, the learned assessor also had available to her various medical documents and letters relating to injuries over and above those that Ms Blight sustained as a consequence of the bite. The learned assessor also had a number of victim impact statements from Ms Blight. These documents, set out not only the further damage that Ms Blight suffered to her pre-existing hip injury, but also the psychological impact that Ms Blight suffered as a result of the assault.
The victim impact statements
Ms Blight provided a number of statements to the learned assessor which set out the background to the offence as well as her medical issues. These statements were made by Ms Blight before Ms Bacich was sentenced in the Magistrates Court. At least four of these statements were made before Ms Bacich was dealt with by the learned Magistrate on 14 May 2018. At least one of the statements was apparently made for the purposes of the sentencing proceedings before the learned Magistrate (statement dated 5 May 2018).
In a document titled 'Victim Impact Statement' dated 30 August 2017, Ms Blight stated that she was suffering from Perthes Disease causing her hip to deteriorate which resulted in a full hip replacement three years earlier. She also said that she struggled on a daily basis because Ms Bacich's assault had caused a tear of 'the main muscle that runs from the knee to the hip' and she had to have '2 lots of cortisone followed with surgery to release the tenants [sic].'
Ms Blight, in a victim impact statement dated 6 September 2017, said on the night in question Ms Bacich 'came through the door yelling at [her].' Ms Blight then told her not to speak to her in that manner, stood up and asked 'her to leave if she did not settle down'. She said as she was standing up, Ms Bacich 'struck [her] in the right ear and fell on her, pushing her back on the lounge. She landed on her wrist. She said that Ms Bacich repeatedly hit her to the side of the head. Ms Blight struggled to get Ms Bacich off her as she was on top of her stomach and her hip, to which she had previously had a full hip replacement. She said she attempted to restrain Ms Bacich and in doing so was bitten by her on her right arm. Ms Blight believed Ms Bacich had Hepatitis C, and she screamed at her to stop. She said Ms Bacich then 'pretended to have a heart attack' and whilst she was on the phone calling an ambulance and police, Ms Bacich jumped up, hit her in the face, and walked out of the house.'
In an impact statement dated 19 April 2018 she said that as a direct result of the assault, she was required to have her 'hip replacement revised'. This was because the assault by Ms Bacich had caused 'the stem or the replacement' itself to become loose. She said that prior to the incident, it had not been anticipated that she would require surgery for at least ten years. She underwent the revision surgery and was suffering pain. Her surgeon, Professor Prosser had advised her that further surgery may still be necessary if the hip did not settle over the next few weeks. She also attached a photograph of the scarring following surgery to the victim impact statement.
In her statement dated 5 May 2018, she further elaborated on her previous statement. She said following the incident she had excessive pain that would not settle and, following a bone scan, she needed the stem of her hip replaced as it had come loose from the impact of the assault. She had revision surgery on 9 March 2018 but suffered two further dislocations resulting in surgical procedures to insert her hip back into the socket. She underwent hip replacement revision surgery and a new cap replaced on 25 April 2018. Ms Blight also said that this had a significant negative impact on her life and was very painful.
There is also a further statement which appears to have pages missing and is undated. In that statement Ms Blight said she had suffered psychologically since the incident. She referred to the fact that she bore a scar from the bite mark on her arm. She also said that she had suffered bruises on her arm, face and head.
The medical evidence
As already noted above, the learned assessor had available to her a copy of the police file. The file included a letter from Dr Cristina Shaw of Coolbellup Medical Centre dated 13 February 2017. Numerous other medical letters and documents were subsequently sought by, and provided to, the learned assessor. The medical evidence, in chronological order, included:
1.Medical notes from Coolbellup Medical Centre identifying that Ms Blight had a pre-incident history of various medical issues including mental health issues. From as early as January 2011 Ms Blight had suffered stress, family trauma, anger management issues and problems associated with her partner and child. She had been prescribed with various medications including Panadeine Forte, Celebrex and Lovan. Ms Blight's partner committed suicide in December 2015, following which she sought a referral to the Alma Street Clinic. She subsequently entered into a legal dispute relating to her deceased partner's superannuation. She was also struggling due to grief.
2.Various reports and letters from Associate Professor Prosser including a report dated 19 March 2014 in which he said that Ms Blight required surgery by way of hip replacement. On 21 March 2014 he reported she was to proceed with the hip replacement. On 21 May 2014 he reported it was just over three weeks since her complex hip replacement and she was doing well.
3.Medical certificate from Dr George Howell dated 29 September 2016 certifying she attended the medical centre on that date with a history of depression and some tragic events such that she could not study and required an extension for her studies.
4.Letter from Dr Cristina Shaw of Coolbellup Medical Centre dated 13 February 2017 stating that Ms Blight had suffered injuries including muscle spasm and a sprained neck, with decreased range of motion, bruising and bite marks to the right medial aspect of the arm and bruising to the upper right cheek. Dr Shaw also noted that Ms Blight believed that Ms Bacich 'may be Hep C positive'. Consequently Dr Shaw arranged for Ms Blight to have blood tests. Antibiotics were also prescribed for the bite injury to the arm. It is of note that Ms Blight's belief that Ms Bacich was suffering from Hepatitis C is consistent with the account that she gave in her written statement to police in relation the incident.
5.Letter from Associate Professor Prosser dated 6 April 2017 to Ms Blight's GP, Dr Natalie Ghosh, stating that he had reviewed her that day, which was three years post the left hip replacement secondary to childhood Perthes disease. In the letter Professor Prosser said '[s]he did very well from [the surgery] but was assaulted around six weeks ago when a 140 kgs lady wrestled her to the ground and since then she has been complaining of pain around her left hip. She doesn't think her hip dislocated. It is slowly improving.' Associate Professor Prosser noted that on examination she was walking without support but with a subtle gait on the left side. She was mildly tender over the hip joint but had a good range of movement. At that point, Associate Professor Prosser thought it was a soft tissue injury which he hoped would improve with time but noted that he was due to see her again in four weeks' time and would arrange an MRI if her symptoms were not improving.
6.Report from Dr Natalie Ghosh, Ms Blight's general practitioner, dated 11 May 2017 to the Criminal Injuries Compensation Tribunal. Dr Ghosh reported that Ms Blight had been involved in an altercation with her fiancée's mother and was traumatised by the incident. Ms Blight had been engaging in counselling for psychological support. Dr Ghosh had also arranged for Ms Blight to have an ultrasound of her right wrist. The result of the ultrasound conducted by Dr Lim was that she had suffered a mild synovitis of the ulna aspect of the wrist joint and conservative management could be considered.
7.Notes from Black Swan Health indicated Ms Blight was referred by Dr Natalie Ghosh to the service. In a report dated 16 June 2017, Mr Bernard Hughes, Clinical Psychologist, said Ms Blight reported symptoms consistent with grief, anxiety and depression. She presented with low mood as a result of a combination of stressors including the death of her partner, disruptive developmental events and family dysfunction and abuse. She failed to attend any further appointments and the service was terminated.
8.Letter from Associate Professor Prosser dated 26 March 2018 to Ms Blight's GP, Dr Natalie Ghosh, stating that Ms Blight had been admitted three days earlier, which was two weeks after the stem of her left total hip replacement was revised, and which had been loosened after the assault. She had suffered a posterior dislocation when she slipped and fell in the bathroom. He took her to theatre that afternoon and did a closed reduction with the hip remaining reasonably stable. He said if she dislocated it again he would have to exchange the liner of the socket to a captive liner (emphasis added).
9.Letter from Associate Professor Prosser dated 11 April 2018 to Ms Blight's GP, Dr Natalie Ghosh, in which he said that he had reviewed Ms Blight on that day, which was almost three weeks since she had dislocated her revised left hip replacement and five weeks since the revision. He said that she was doing well and had no further episodes of instability although experienced occasional sensation of crepitus. He was to review her in six weeks' time.
10.Referral letter from Dr Hughes dated 27 April 2018 to Dr Jane Fitch requesting diagnostic clarification and management against a background of borderline personality disorder and previously diagnosed ADHD and adjustment disorder, as well as childhood depression.
11.Referral letter from Dr Alison Hughes to Associate Professor Prosser dated 27 April 2018 for ongoing management of Ms Blight's recent hip replacement revision on 9 March 2018 with two subsequent dislocations which occurred whilst the applicant was leaning forward whilst standing. She was having signs of subluxation.
12.Letter from Associate Professor Prosser dated 3 May 2018 to the 'Case Manager, Criminal Injuries Compensation', which was written in response to queries about Ms Blight in April 2014, he said that he had performed a total hip replacement on Ms Blight, following which she had done very well. Following this, she 'was assaulted in February 2017 and this assault loosened the stem of the hip replacement inside her thigh bone and we subsequently had to redo this part of her hip replacement on 9 March 2018 and we did indeed find that the stem had come loose. This loosening and the need for Ms Blight to have her hip replacement redone was entirely due to the assault.' Professor Prosser also said in the letter that '[u]nfortunately Ms Blight fell at home around two weeks after her hip replacement and dislocated her hip. We had to reduce it in the operating theatre on 23 March 2018 and following this her hip continued to feel unstable and dislocated again. I then had to replace the head and the liner of the socket of her hip replacement to stop it dislocating. This instability was a result of her fall, but she wouldn't have needed to have the revision hip replacement on 9 March 2018 if she hadn't been assaulted' (emphasis added).
13.Letter from Dr Winsome Santa-Maria dated 9 August 2018 to the Disability Services Commission in support of the applicant receiving a disability pension, noting that Ms Blight was diagnosed with Perthes disease as a child and had a hip replacement followed by multiple dislocations and infection which had since been revised. Ms Blight also had ongoing pain and muscle wasting and was left with left sided sciatic nerve damage from hip dislocation. She was also under the care of specialists at Alma Street Clinic and had been diagnosed with a personality disorder and severe depression, as well as Acute Shock Reaction in early 2016.
14.Ms Blight also submitted a number of accounts mainly for gap treatment as a result of the surgery. All of these accounts were paid by way of interim payments at various times. These totaled $1,068.75.
As already noted, the learned registrar of this court issued a notice to produce documents to:
(a)St John of God Hospital (Murdoch).
(b)Associate Professor Gareth Prosser (Orthopaedics WA).
(c)Coolbellup Medical Centre.
(d)Black Swan Health.
Having considered the documents produced pursuant to those notices, I am satisfied that there is nothing that in any real way changes or alters the position that this court has over that which was available to the learned assessor with respect to the injuries claimed by Ms Blight.
Furthermore, it was and is appropriate to take into account the hip injury and any other injury Ms Blight suffered as a result of the proved offence. There is no reason to limit the award of compensation to the injuries specifically identified by the police prosecutor on the occasion that Ms Bacich pleaded guilty to the proved offence. Indeed, Ms Bacich is fortunate that the full extent of the injuries suffered as a consequence of the proved offence were not identified when she pleaded guilty before the learned magistrate.
On all of the relevant materials I am satisfied that Ms Blight suffered a number of injuries as a consequence of the proved offence, namely:
•The physical injury and resulting pain, discomfort and degree of dysfunction associated with the further injury to the hip, exacerbation of her earlier hip injury and subsequent surgeries.
•The physical injury including pain and discomfort associated with the bite to her forearm.
•The trauma associated with the incident including an exacerbation of pre-existing and significant mental health condition.
The learned assessor's failure to make an order allowing for future treatment
Ms Blight's original claim for compensation included for future treatment, travel, personal items and loss of earning capacity. Since this appeal only relates to the award of compensation for her injuries and the failure to award any compensation for future treatment, it is not necessary to consider the learned assessor's refusal to allow any compensation for loss of personal items, loss of earning capacity, or the amount of travel allowed. However it is necessary to consider whether any award of compensation should be made with respect to future treatment.
The relevant materials and documents available to the learned assessor as at 21 September 2018, when the learned assessor made the award of compensation in favour of Ms Blight for the injuries she suffered and declined to allow any award for future medical expenses, have already been discussed and set out above. There was no evidence capable of establishing or supporting any claim for future treatment or what it was likely to cost. Furthermore, despite the learned assessor's requests for further information relating to this aspect of the claim, Ms Blight not only failed to provide any evidence to support the claim, but also made it abundantly clear that she was content for the learned assessor to proceed with her claim on the available information.[4]
[4] Ms Blight's emails to Criminal Injuries Compensation Tribunal of 30 June 2018 and 30 August 2018.
As already noted above, the registrar of this court caused notices to produce documents to St John of God Hospital (Murdoch); Associate Professor Gareth Prosser (Orthopaedics WA); Coolbellup Medical Centre; and Black Swan Health. Nothing contained in any those materials advances Ms Blight's claim for future treatment. Nor has Ms Blight provided anything that might properly further her claim for future medical expenses
Conclusion on the findings
Having considered all of the materials available to both the learned assessor and this court, as already note above, I am satisfied that Ms Blight did suffer injuries as a consequence of the commission of a proved offence committed by Ms Bacich upon her on 11 February 2017. The injuries Ms Blight suffered were both physical and psychological.
The physical injuries included an injury to her hip, as well as an injury to her arm as a result of Ms Bacich biting her. The hip injury required Ms Blight to subsequently have multiple surgeries. This occurred against a background of Ms Blight's pre-existing hip condition which required a hip replacement prior to this incident. However, based upon the reports provided by Associate Professor Prosser which note that Ms Blight was asymptomatic before the incident, I am satisfied that Ms Blight suffered an exacerbation of her earlier condition which caused her to suffer ongoing pain and stress associated with the further hip injury and her recovery.
Ms Blight also suffered other physical injuries as a result of the proved offence. She suffered from the bite inflicted by Ms Bacich to her wrist which left a mark and bruising to her wrist. Ms Blight also had bruising to her face.
The bite caused Ms Blight to undergo a blood test as she believed that Ms Bacich was suffering from Hepatitis C. This resulted in further stress to her whilst she awaited the results of that test.
Although Ms Blight also suffered a psychological reaction to this incident, it is clear that she was already suffering from psychological issues that predated this incident. Those already existing psychological issues, which were significant, complex and longstanding, cannot be separated from any psychological reaction she suffered as a result of this incident. I am satisfied that this incident did in some way exacerbate those pre‑existing psychological issues.
Taking into account all of the relevant available information, the pain, discomfort and degree of dysfunction, including the pain and suffering associated with the injury to the hip and subsequent surgeries, the trauma associated with the incident including the exacerbation of Ms Blight's pre-existing and significant mental health issues and the physical and psychological injury from the bite, $50,000 is the appropriate amount of compensation for the totality of all of her injuries. In addition, the sum of $1,068.75 was appropriately allowed for her out of pocket medical expenses which was paid to her by way of interim payments. Travel was properly assessed at $20.00.
Events following the hearing and the court proceedings on 29 March 2019
As already noted, this matter was heard before me on 27 February 2019.
Following the hearing of this matter in court on 27 February 2019, my associate received further documents from Ms Blight. I caused my associate to contact the parties to inform them that I would not consider these further documents unless a formal application was brought by Ms Blight. Ms Blight declined to do so.
I also subsequently received a copy of the learned assessor's reasons for decision dated 11 March 2019. Again, I caused my associate to contact the parties to enquire whether any party wanted to make any further submissions in relation to that document. No party sought to do so.
Being conscious of the need to provide finality in this matter expeditiously, particularly bearing in mind that Ms Blight's original application for compensation was filed on 11 September 2017, I caused the matter to be listed for the delivery of my decision on the basis that I would provide detailed reasons at a later date. My associate notified all parties including the State Solicitors Office that the matter was listed for delivery of my decision on 29 March 2019 at 9.30 am. A representative of the State's Solicitor's Office (again as amicus curiae) appeared on behalf of the CEO on that date. Ms Blight did not appear. Ms Bacich did not appear at the appointed time, but contacted the court to say that she would be 20 minutes late. Consequently, I afforded Ms Bacich some time to attend court before having the matter called in court. Ms Bacich did not appear when the matter was called in court. I announced my decision in open court and advised counsel who appeared on behalf of the CEO of my decision to dismiss Ms Bacich's appeal and Ms Blight's application for a variation of the decision and cross-appeal. I also indicated that I would deliver my reasons at a later time. Subsequently, Ms Bacich apparently attended the court. My associate was made aware that Ms Bacich wanted to make further submissions. I declined to reconvene the court having given all parties ample opportunity to address all relevant matters and having already announced my decision.
Final orders
I confirm the orders made on 29 March 2019:
1.Ms Bacich's appeal is dismissed.
2.Ms Blight's application dated 4 December 2018 for a variation of the criminal injury assessor's award of compensation is dismissed.
3.Ms Blight's cross-appeal dated 4 December 2018 against the criminal injury assessor's award of compensation is dismissed.
4.The criminal injury assessor's award of criminal injuries compensation to Ms Blight in the total sum of $51,088.75 is confirmed.
5.There be no order for costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DF
Associate to Judge Levy5 AUGUST 2019
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