Besch v Assessor of Criminal Injuries - [2000] WADC 241

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BESCH -v- ASSESSOR OF CRIMINAL INJURIES & ANOR [2000] WADC 241

CORAM: O'SULLIVAN DCJ

HEARD: 22 AUGUST 2000

DELIVERED : 5 OCTOBER 2000

FILE NO/S: CIV 60 of 1999

MATTER :Part VI of the Criminal Injuries Compensation Act 1985

BETWEEN: JEROME PATRICK BESCH
Appellant
AND
ASSESSOR OF CRIMINAL INJURIES
First Respondent
KYLENE FIONA MORRISSEY
Second Respondent

Catchwords:

Criminal injuries compensation - Appeal from determination of Chief Assessor - Award of $41,636.45 for pain and suffering, cosmetic disability, past and future economic loss, medical, chemists and travelling expenses.

Legislation:

Nil

Result:

Appeal allowed. Respondent awarded compensation of $41,136.45

Representation:

Counsel:

Appellant:     Mr S Melville
First Respondent           :     Ms A C Johnson
Second Respondent       :     Ms C A Morrissey

Solicitors:

Appellant:     Gibson & Gibson
First Respondent           :     State Crown Solicitor
Second Respondent       :     Ms C A Morrissey

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

O'SULLIVAN DCJ: This is an appeal against a decision whereby the second respondent was awarded compensation under the Criminal Injuries Compensation Act 1985 ("the Act") amounting to $41,955.70. The appeal is brought pursuant to s 41 and is required to be determined by a Judge of this Court "afresh without being fettered by the determination of the Chief Assessor". (s 41(3)).
On 10 November 1992 the appellant was convicted in the Perth Court of Petty Sessions of assaulting the respondent and thereby causing her bodily harm. He was fined $1,000 and the learned Magistrate made an order that of that amount $500 be paid to the second respondent.
The offence occurred on 26 April 1992, late on a Saturday night. In a statement tendered in evidence the second respondent described the incident in these terms:
"On Saturday 25 April 1992 Jerome began drinking at about 2 pm. He drank eight cans of a light bitter beer and then a carton of Emu Bitter bottles. He had been drinking alone all that time.
I went to bed at about 11 pm that night.
Before I went to bed I told Jerome not to bother to come to my bed as he had been drinking.
As I went to bed I got up several times and asked him to turn off the music he was playing and to go to sleep. Jerome did not pay any attention to me.
Jerome came to bed at about 3.30 am on Sunday 26 April 1992. He rolled over next to me.
I don't remember my exact words but I told him something similar to get out and I gave him a push.
Jerome was intoxicated and then he started to yell at me. He grabbed me by my hair and pulled my head back and forward. He flung me and I fell across the bed and I struck my forehead against the right hand side bedside table.
I don't know how but I got away from him and tried to run out of the bedroom. Jerome ran after me and put his fist right through the bedroom door.
I started screaming and Jerome left the room and went to the other end of the house.
I shut the bedroom door behind him and lay on the bed crying.
At about 6.30 am I got dressed and packed a small bag.
I left the house by the front door. As I was leaving I could see Jerome fast asleep on the couch.
I then drove to my parents house in Bullsbrook."

Contribution

The appellant does not challenge his conviction but he does raise an issue under s 25 of the Act which is headed "Behaviour etc of applicant to be considered". It provides:
"In determining the amount of an award of compensation the Chief Assessor should have regard to any behaviour condition attitude or disposition of the applicant or deceased person which contributed directly or indirectly to the injury or loss suffered by him or to his death as the case may be and may reduce the amount which he would otherwise award by such a percentage as he thinks just."
The appellant said in evidence:
"As we walked into the bedroom, she told me that she had been seeing a postie, rooting - having sex with a postie. We went into the bedroom; she pushed me, slapped me. I pushed her onto the bed."
The appellant was asked what his reaction was, when told of the "postie" and he said:
"I wasn't too happy … I suppose I did believe her. I didn't know what to believe with her."

The second respondent denied that she said she was having an affair and said that when she and the appellant later reconciled, the appellant told her that "he had just made that up anyway".
The appellant committed the assault upon the respondent after he had, on his own admission, been drinking for some 12 hours. He was very drunk. In cross examination he readily agreed that his judgment might have been impaired by alcohol and that he pushed the second respondent "quite hard". The second respondent had not been drinking at all. In the end I am not satisfied on the balance of probabilities that the respondent told the appellant that she was having an affair with a postman. I do not consider that her behaviour, condition, attitude or disposition contributed directly or indirectly to her injuries and loss, which were clearly caused by the intoxicated conduct of the appellant.

Injuries and treatment

Shortly after the incident the second respondent attended upon her general practitioner Dr Laura Willey who reported on 23 February 1993 that she was suffering from a large bruise on the right hand side of her forehead, a smaller bruise on the occiput and bruises on the right arm and leg. She also complained of short term memory lapses and headaches. Dr Willey provided no specific treatment except sleeping tablets.
According to the second respondent she went to her work as a hairdresser the day after she saw Dr Willey but by that time her eyes had begun to swell and she was having difficulty seeing. She was embarrassed by her appearance and suffered headaches. By the Tuesday after the incident the swelling on her forehead had not subsided and she remained away from work.
I have been provided with little documentary proof of medical attention received by the first respondent in the immediate aftermath of the assault. The respondent does appears to have seen a Dr Benson of the St Andrews Medical Group on 27 April 1992 and Dr Willey on 18 May. On 20 May she was apparently referred by Dr Willey to Dr MacFie of the Perth Radiological Clinic. In June 1992 she saw Dr Manners a psychiatrist on three occasions.
On 23 February 1993 Dr Willey wrote:
"She has now developed migrainous headaches, which occur about twice a week. She still has a lump at the site of the bruise on her right forehead. This may be permanent. She has also suffered some emotional scarring."
In a second report dated 22 December 1994 Dr Willey wrote that she saw the second respondent on 18 May and 14 October 1992 and 17 February 1993 but did not see her after that. She confirmed that she did organise a skull x-ray which was normal and arranged sick leave for the second respondent for a period of one month.
On 30 April 1993 the second respondent saw Dr E Bajrovic for the first time. Dr Bajrovic reported on 2 August 1994:
"Kylene consulted me about a tender lump on her right forehead. She informed me of an assault by her estranged husband approximately one year earlier when he struck her on the head in approximately the location of the lump. Since then she has had a persistent hard lump that varies in size and tenderness. She also complained of classical migraine headaches."
Dr Bajrovic arranged for a skull x-ray which he said demonstrated appearances consistent with a calcified cephalhaematoma of the right frontal bone. It was decided that no intervention should take place at that stage to see if the lump would gradually subside.
In a report dated 14 December 1994 Dr Bajrovic wrote:
"The next relevant consultation was not until 21.4.94 when Kylene consulted me again after the forehead lump swelled up spontaneously overnight. There was no physical trauma although Kylene complained of feeling stressed and mentioned that the lump tended to temporarily increase in size when she was feeling stressed. The lump felt slightly fluctuant and had a slightly bruised appearance. I attempted to aspirate it to see if it was fluid filled. I was not able to obtain any fluid. I then decided to refer Kylene to Dr Ed Van Been a plastic surgeon for a specialist opinion about the lump."
Dr Van Been saw the respondent for the first time in May 1994 and on 1 July of that year performed an operation to explore and excise the lump. He stated in a report of 5 September 1994:
"At the time of surgery the swelling was noted to be a sub-periosteal cyst which would be consistent with an organised haematoma as a result of the alleged assault.
Histological examination of the specimen confirmed the diagnosis of an organising haematoma. The scar and swelling on her right forehead are settling now however there is some residual swelling. It may take up to two years for this to improve."
On review of the second respondent on 1 February 1996 Dr Van Been found that the sub-periosteal haematoma had recurred on her forehead and that she would require further surgery. This was performed on 19 February 1996 and on 28 November of that year Dr Van Been wrote:
"After this procedure there was continued intermittent swelling and obvious scarring within the area and she therefore underwent injection of steroid solution into the area to assist in decreasing the swelling. There was some atrophy within the region, however there was still some residual swelling in the area of the original trauma.
On review on 9.9.96 I felt that her condition had stabilised and she does have significant asymmetry of her forehead with residual swelling approximately 2 to 3 centimetres in diameter being more prominent on the right side approximately 2 to 3 millimetres. Kylene did say that this intermittently swells without any reason or predisposing factors and that she can actually have swelling of the whole forehead and upper eyelid on the right side. This is obviously a problem for her intermittently.
I do not feel that there is any further treatment that may help Kylene. She certainly does have a residual disability in terms of the appearance of her forehead where there is obvious asymmetry. I do not think that this will improve with time."
The respondent consulted Dr Bajrovic and his partner Dr Beinart on 10 occasions in 1995 and 1996 for continuing problems with recurring headaches and a fluctuating lump on her right forehead. In a report of 10 October 1996 Dr Bajrovic observed that it was "interesting that the lump seems to become more evident (increases in size) at times of stress for Kylene. This is usually associated with an increasing intensity of her headaches."
On 12 March 1996 the respondent saw Dr Peter Silbert, neurologist on referral from Dr Beinart. Dr Silbert wrote in a report of 13 March of that year, after recounting her history and recording her complaints:
"I feel that Kylene's headaches are predominantly chronic daily headaches of muscle contraction type, and the intermittent throbbing headaches are probably more tension vascular headaches rather than migraine. It can however be difficult to separate these headache types. She has significant sleep disturbance relating to the discomfort and her current stresses are also significant. The options for therapy include relaxation and other therapy through a psychologist, however Kylene is not happy to proceed along these lines and therefore pharmacological therapy is preferable. Amitriptyline is the drug of choice and I have commenced her on 12.5 milligrams Nocte increasing to 50mg Nocte. The aim of therapy is to provide adequate relaxation and sleep overnight, so that when the patient awakens the following morning they are headache free. The morning headache free period would eventually extend throughout the day. Kylene is aware as her headaches have been chronic for so long they will take several months to come under control.
I review Kylene again in two weeks time but will be happy to see her before then should she feel it necessary."
I have no further evidence from Dr Silbert and curiously the respondent told me that she has no recollection of taking Amitripyline nor of being reviewed by him.

Cosmetic Disability

The respondent is 30 years of age having been born on 22 December 1969. I am satisfied that she has suffered a significant cosmetic disability which should be regarded as permanent. The asymmetry in her appearance diminishes her attractiveness and is no doubt a cause of embarrassment. When the lump swells, as it appears to do on quite frequent occasions, it impacts upon her everyday life preventing her from engaging in both social and working activities. In my view, having regard to these considerations it would be appropriate to make an award of compensation for cosmetic disability in the sum of $15,000.

Pain and suffering and loss of amenities

I have no doubt that in the period immediately following the assault the respondent suffered quite significant pain and discomfort and she should be compensated for that. The question of her headaches has caused me some difficulties. The appellant submits that the respondent suffered from headaches before the assault and that there is no evidence to establish that there has been any increase either in their frequency or their severity. On the other hand the respondent said that although she did suffer from headaches from time to time before the assault these were only of the "normal" type and nothing like that from which she has suffered since.
Having had the opportunity of hearing and seeing the respondent give her evidence I have no doubt that she suffers from headaches as she has described them but that of course is not enough to entitle her to compensation in respect of them. Before that can be done it must be established on a balance of probabilities that they were caused by the offence.
The medical evidence is of no great assistance. Dr Bajrovic who saw and treated the respondent longer than any other doctor stated in a report dated 14 December 1994:
"With regard to the migraine headaches I can't really comment on the causation of these as I have never treated her for a classical migraine. However on one occasion Kylene consulted me complaining of pain from the forehead lump and an associated non specific headache which I treated with strong analgesia."
It does not seem to me that Dr Silbert's report sheds much light on the cause of the headaches and, as I have already observed, he recommended treatment by Amitripyline but there is no evidence that this has occurred.
While, on the respondent's evidence, the headaches are linked temporally with the offence I am left to speculate about other possible causes including several episodes of emotional trauma experienced by the respondent in the years since the assault. In the end the conclusion to which I have come is that it has not been established on a balance of probabilities that the respondent headaches from which she undoubtedly suffers were caused by the appellant's criminal conduct.
It follows that in assessing compensation for pain, suffering and loss of amenities I should exclude as a consideration the effect on the respondent of her headaches. Nevertheless her discomfort has been significant. In my view having regard to the pain occasioned by the assault itself as well as the discomfort and inconvenience suffered as a result of the necessity to attend for medical treatment, including surgery on two occasions, and the adverse impact of her injuries upon her ability to engage in everyday activities and to enjoy life, an appropriate award for what, in another context, would be described as general damages would be $10,000.

Economic loss

The respondent is a qualified hairdresser. She has been the owner of two businesses and at the time of the offence was working on a full time basis for Intercity Hair Studio. She had been so working since 10 September 1991 and prior to that had worked for Sam Rafici but only for about two weeks. Before that she had been engaged in her own businesses and then (for about 6 months) she had been assisting her parents on their rural property.
Following the assault the respondent did not return to work until 11 May 1992 but she was troubled by her appearance and informed her employer on that day that she was unable to continue. She was then unemployed for some 15 weeks during which she received no income save sickness benefits for two weeks. At the time of the offence she was earning $315 per week gross ($252 per week net) and I would therefore assess this aspect of her claim in the sum of $3,075.25 calculated as follows:
15 weeks x $252 = $3780 less sickness benefits $704.75 = $3075.25
On 8 August 1992 the respondent returned to working on a part time basis for Sorrento Hair Design. She worked approximately one and a half days a week and earned $6,893.53 gross in the financial year ended 30 June 1993. In addition she received the sum of $5,000 which was declared as income from her parents out of their kennel business.
The respondent claims that but for the difficulties caused by the lump on her forehead and the headaches with associated blurred vision and nausea she would have worked full time as a hairdresser during the financial year ended 30 June 1993. She also says that she would have worked full time in the following two financial years but concedes that in the tax year ended 30 June 1997 when she became pregnant she would have worked only two days per week. In the year ended 30 June 1998 she says that she would not have worked at all but after that she says that she would have returned to work two days per week and would currently still be working two days per week. She says that from the end of next year when her child will be at pre-school she would have been in a position to work full time and would have worked full time thereafter but now cannot do so because of her headaches and the swelling on her forehead.
I have already held that although the appellant is responsible for loss occasioned by the lump on the respondent's forehead it has not been established that he has caused her headaches. In my view given the severity and frequency of the latter complaint she would not have worked full time after the date of the offence. In addition it is clear on the evidence that the respondent underwent a lot of stress and emotional trauma as a result of the death of her father and the illness of her second husband which makes it likely that she would not have worked for longer than she in fact worked in any of the years since the accident even if she had not suffered the injury which I have found was caused by the appellant.
It follows that in my view the respondent’s entitlement to past economic loss is confined to the sum of $3075.25.
As to future loss it is clear that the respondent suffers from a disability which may well have an adverse impact upon her ability to earn an income in the future. Given her headaches and the debilitating effect of them as well as her other health problems I am not satisfied that she will ever be able to work full time but I am satisfied that as from 1 January 2002 she will be able and likely to work on a part time basis. I was told that at current rates a qualified hairdresser can earn $541 per week before tax and using this as a guide and doing the best I can I would assess the second respondent's earning capacity at $200 per week net. It is necessary to estimate the extent to which this capacity to earn income while working part time has been impaired by the injuries caused by the appellant’s offence. Although the respondent will only be working part time there will be times when she will be unable to attend for work because of the unsightly appearance caused by an increase in the swelling on her forehead and it is also necessary to bear in mind that her opportunities for employment will be more limited than they otherwise would be by reason of this handicap. On the other hand I have formed the view that she is an intelligent and resourceful woman who has already taken the step of adjusting her hairstyle so as to hide the lump and I am confident that she will make the best of her difficulties. In all the circumstances I think that it would be appropriate to assess future economic loss upon the basis that her capacity to earn an income part time at the rate indicated has been reduced, as a result of the offence, by 10 per cent.

The respondent is currently 30 years of age. Allowing for a working life of 25 years the multiplier on the 6% table is 730. Upon the basis of a capacity to earn an income part time of $200 per week net her loss may be calculated thus:
10/100 (200 x 730) = $14,600
I would reduce this sum by 25 per cent to allow for contingencies adverse to the respondent. The result is $10,950.
It is agreed that the respondent should have compensation for medical expenses in the sum of $1,726.80, travelling expenses of $759.05 and chemist expenses of $125.35. It follows that the respondent should have a total amount of compensation of $41,636.45 calculated as follows:

Pain suffering and loss of amenities	$10,000.00
Cosmetic disability	$15,000.00
Past economic loss	$ 3,075.25
Future economic loss	$10,950.00
Medical expenses	$ 1,726.80
Travelling expenses	$ 759.05
Chemist expenses	$ 125.35
Total	$41,636.45

The respondent has already been awarded $500 compensation in the Court of Petty Sessions and this should be taken into account.
It follows that for these reasons the appeal should be allowed but only to the extent indicated.