Blackwell v Warren
[2018] WADC 127
•12 OCTOBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BLACKWELL -v- WARREN [2018] WADC 127
CORAM: TROY DCJ
HEARD: 3 SEPTEMBER 2018
DELIVERED : 12 OCTOBER 2018
FILE NO/S: APP 54 of 2017
BETWEEN: GLEN ROBERT BLACKWELL
Appellant
AND
MICHAEL WARREN
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: C HOLYOAK-ROBERTS
File Number : [2017] WACIC 18
Catchwords:
Criminal injuries compensation - Assessment for damages - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003
Result:
Appeal allowed
Representation:
Counsel:
| Appellant | : | Mr R W Yates |
| Respondent | : | No appearance |
| Amicus Curiae | : | Mr J F W Cardell-Oliver appeared on behalf of the Chief Executive Officer for the Department of Justice |
Solicitors:
| Appellant | : | Tindall Gask Bentley Lawyers |
| Respondent | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
B v W (1989) 6 SR (WA) 79
Cooper v Smith [2017] WADC 82
Delaveris [2010] WADC 146
Dunne [2013] WACIC 21
Gallo [2014] WACIC 10
Gullelo v Halloran [2008] WADC 145
Hogben v Darcy [2009] WADC 63
Parsons v McWilliam [2002] WADC 62
R v Forsythe (1972) 2 NSWLR 951
Re Tilbury [2010] WADC 46
RJE v Bandy (Unreported, WASC, Library No 1363, 31 May 1974)
S v Neumann (1995) 14 WAR 452
TAW v NJS [2011] WADC 187
TROY DCJ:
Introduction
The appellant, Mr Glen Blackwell is a serving police officer with the Western Australia Police. He was on duty on 8 November 2015. On that date a Michael Warren punched him to the face causing injury. Mr Warren was in due course convicted of an offence of assaulting a public officer contrary to s 318 of the Criminal Code. Mr Blackwell suffered harm as a result of a proved offence. The assessor, Ms Holyoak‑Roberts, awarded him the sum of $10,508.45 under the Criminal Injuries Compensation Act 2003 (WA). By this appeal Mr Blackwell challenges the adequacy of that award.
There is no challenge to the assessor's determination that Mr Blackwell was eligible for compensation. The assessor was plainly correct in so concluding.
It is well established that an appeal under the Act is a hearing de novo: Gullelo v Halloran [2008] WADC 145. The court may confirm, vary or reverse the assessor's decision either in whole or in part pursuant to s 56(2)(b) of the Act.
The court has a discretion to receive and admit further evidence under s 56(1) of the Act unless it would be unjust to do so: Re Tilbury [2010] WADC 46.
Even though the appeal is a hearing de novo it is appropriate to have regard to the assessment made by the assessor being a specialist tribunal in the field: Hogben v Darcy [2009] WADC 63 [13].
Mr Warren did not file a notice to appear and was not heard on the appeal.
The maximum compensation that can be awarded is $75,000 under s 31(1) of the Act. This is not reserved for the worst of cases but is merely a jurisdictional limit: S v Neumann (1995) 14 WAR 452 (463) (Murray J).
When assessing the proper compensation for an incident, I must give consideration solely to the injury suffered by the appellant as a consequence of the commission of the offence: Delaveris [2010] WADC 146 [29] (Groves DCJ). This amount is not to be punishment for the offender or an expression of sympathy for the victim: B v W (1989) 6 SR (WA) 79 [89]; R v Forsythe (1972) 2 NSWLR 951 (953) as cited in Delaveris.
In considering any award for mental and nervous shock, s 35 of the Act relevantly provides that:
(2)An assessor must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence, or for any loss in respect of such shock, unless the assessor is satisfied —
(a)that the victim also suffered bodily harm as a consequence of the commission of the offence; or
(b)that the victim was the person against whom the offence was committed.
Incident
On 8 November 2015 Mr Blackwell was on duty in a marked police vehicle. Along with another police officer he was directed to drive to Scarborough to investigate a potentially stolen vehicle. Mr Blackwell and his colleague stopped at an intersection of Deanmore Road and deployed a 'Stinger' mechanism.
The targeted vehicle, driven by Mr Warren arrived at the intersection. Mr Warren exited the vehicle and attempted to run away. Mr Blackwell ran towards Mr Warren who punched him to the left side of his chin, knocking him backwards to the ground. Mr Warren was then subdued and arrested. Mr Blackwell, who was bleeding from his face, was driven to Sir Charles Gairdner Hospital for treatment.
Mr Blackwell first attended at his dentist the following day, 9 November 2015 with the necessary repair work completed on 18 November 2015.
Damage suffered
Physical injuries
On his admission to hospital Mr Blackwell received 13 stitches to a laceration caused by the punch. Four of the stitches were internal, nine external. These stitches remained in place for a period of one week before being removed.
The laceration has left a scar on the point of Mr Blackwell's chin in a visible location. I have a discretion under s 56(1) of the Act to receive new or additional evidence. Accordingly, during the hearing I invited Mr Blackwell to stand approximately 1 m in front of me so that I could observe the scar for myself. In my view, whilst the scar is certainly noticeable it would not be immediately noticeable unless one was particularly looking for it.
Mr Blackwell described experiencing great pain in the right hand side of his jaw, but he did not sustain any fractures.
He did however sustain damage to his teeth, namely five chipped teeth which required filling and capping. There was an initial diagnosis of a loose tooth. Ten days lapsed between the initial consultation and the date the treatment was provided. In that period Mr Blackwell was unable to eat solid foods or engage in normal activities.
On 18 November 2015 Mr Blackwell's dentist completed the necessary filling and capping.
There had been an initial diagnosis of a loose tooth. On 18 November 2015 Mr Blackwell was advised that the loose tooth had corrected itself and would require no further treatment.
Applying s 56(1) of the Act, I received a psychological assessment report of Dr Gerrish dated 2 July 2018 along with the other documents making up Mr Blackwell's book of additional documents.
Dr Gerrish referred to ongoing loose teeth in his report. That was clarified at the hearing before me. All that can be safely concluded is that Mr Blackwell's teeth are not as structurally sound as they ideally should be.
On 20 November 2015 Mr Blackwell sought further treatment for ongoing pain in the upper right of his jaw which was characterised as stopping him from normal biting and causing pain when he yawned or slept on his face. His dentist prescribed anti-inflammatory medication. Mr Blackwell was subsequently referred to a maxillofacial surgeon for examination as well as an MRI.
Mr Blackwell continued to feel pain and discomfort in his jaw until mid‑February 2016. He was not able to run without pain until early January 2016. His diet was abnormal until mid-February 2016. In February 2016 there was a diagnosis of a jaw strain.
Mental or nervous shock
Mr Blackwell attended on Dr Gerrish for two clinical interviews on 6 and 12 June 2018 for a total period of 230 minutes. The interviews formed the basis of Dr Gerrish's psychological report.
Mr Blackwell had previously attended another psychologist, on 20 occasions, over a period of approximately 10 months from July 2017. The purpose of those appointments, however, was not confined to the consequences of the assault on 8 November 2015, but included other matters, in particular a heart attack that Mr Blackwell suffered in June 2017.
Dr Gerrish notes at [36] 'It was understood that his psychiatric response to the incident in November 2015 was not reviewed as part of any of the treatment provided'.
Dr Gerrish states at [37] that Mr Blackwell believed that he has mostly recovered from the incident.
Dr Gerrish considered that Mr Blackwell was consistent with his responses to the psychological testing but may have 'under-represented the extent and degree of some of his problems': [40].
According to Dr Gerrish, Mr Blackwell exhibits some of the symptoms of Post-Traumatic Stress Disorder although his reaction at the time of the incident was not consistent with making such a diagnosis: [31].
Dr Gerrish considered that Mr Blackwell was likely to have suffered from Major Depressive Disorder directly related to the incident. This disorder would have moved into partial remission in the early months of 2016 and full remission subsequently: Answer 2 at page 9.
Mr Blackwell's heart attack is an intervening event that may have re‑activated some symptoms but is otherwise irrelevant for my purposes.
It remains good law that the reaction of Mr Blackwell's friends, relatives or acquaintances to the events which have happened and to his involvement in them must by reason of the statute be excluded from consideration: RJE v Bandy (Unreported, WASC, Library No 1363, 31 May 1974) (Burt J).
I am satisfied that Mr Blackwell suffered compensable distinct psychological harm, amounting to mental or nervous shock for a period of approximately three months.
I have had some regard to other assessments involving criminal injury compensation, including the assessments that counsel for Mr Blackwell drew to my attention: Dunne [2013] WACIC 21 and Gallo [2014] WACIC 10.
In TAW v NJS [2011] WADC 187 Bowden DCJ observed [24]:
Although it has been suggested that it is not appropriate to compare other awards because of the inability of appeal courts to know that they are comparing like with like (De Florenca v Hayden [2007] WADC 54 (Yeats DCJ) [17]; Asjes v Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 4169, 3 September 1994 (Commissioner Nisbet)) I prefer the contra view adopted by his Honour Judge Jackson QC in Michael v Panetta (1994) 10 SR (WA) 323 when he said:
… To suggest that there is something wrong with the range being referred to before a judge would seem to me to limit the appropriate information available.
… I can see no reason why it is inappropriate for counsel to refer a judge to a range of damages … (323 - 324)
With respect I also agree with the approach taken by Jackson QC DCJ.
The task of assessing the appropriate amount of compensation can only be carried out by way of a broad and subjective assessment of what, according to community attitudes, would be regarded as reasonable compensation: B v W (Williams DCJ) (89).
Conclusions on non-economic loss
In assessing the merits of this appeal and having reviewed the available materials together with the new evidence, I regard it as appropriate to increase the award specifically related to non-economic loss damages.
In my opinion compensation for the bodily injuries and nervous or mental shock sustained by Mr Blackwell should be assessed in the sum of $17,500.
Additional claims
I agree with the findings of the assessor in regards to awarding sums for the following:
1.$137.50 for the medical report obtained from Scarborough Beach Medical Centre;
2.a global sum of $100 for travel expenses for medical and dental treatment;
3.loss of income calculated to the total net amount of $270.95.
Additional medical expenses
I am satisfied that Mr Blackwell was justified in attending the clinical sessions I have referred to and in obtaining Dr Gerrish's report, limited to the 8 November 2015 assault as opposed to other later incidents, in particular Mr Blackwell's heart attack. I found it appropriate to receive Dr Gerrish's report as new evidence. I consider it appropriate in the circumstances to allow the claim for reimbursement of Dr Gerrish's expenses of $2,899.04 given that the material in that report partially influenced my decision to increase the award for injury.
Deductions
In their respective written submissions counsel for Mr Blackwell and for the amicus curiae drew my attention to the decision of his Honour Derrick SC DCJ in Cooper v Smith [2017] WADC 82. The assessor did not refer to this decision in her assessment, but as counsel for the amicus curiae noted it had only been handed down 11 days earlier.
Is not necessary to resolve any controversies that may emerge from that decision, as the appropriate treatment of the assessment of medical expenses and sick leave in the present case is uncontroversial.
I increase the compensation by $3,020.51 encompassing the $1,364.85 for medical expenses and the $1,655.66 for sick leave referred to in document 2 of Mr Blackwell's book of additional documents.
I then deduct that same amount of $3,020.51, having been a benefit paid by Mr Blackwell's employer Western Australia Police under s 42 of the Act.
Orders
1.The appeal is allowed in that the original decision of the assessor is varied.
2.I increase the amount of compensation for the injuries sustained by Mr Blackwell to $17,500.
3.I allow the sum of $2,899.04 for additional medical expenses.
4.Like the assessor, I award $137.50 for the report from Scarborough Beach Medical Centre, $270.95 for loss of income and $100 for travel expenses.
Accordingly, the total sum to be awarded in compensation to Mr Blackwell is $20,907.49.
Applying Parsons v McWilliam [2002] WADC 62 [42] it is not appropriate to make any order of costs against the respondent when he did not appear or contribute to the hearing. Nor is it appropriate to make an order against the Chief Executive Officer who has appeared as amicus curiae. There will be no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MW
ASSOCIATE TO JUDGE TROY12 OCTOBER 2018
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