Bothma v Hildebrand
[2019] WADC 92
•4 JULY 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BOTHMA -v- HILDEBRAND [2019] WADC 92
CORAM: GETHING DCJ
HEARD: 24 JUNE 2019
DELIVERED : 4 JULY 2019
FILE NO/S: APP 39 of 2019
BETWEEN: BRANDON BOTHMA
Appellant
AND
DEAN STEPHEN HILDEBRAND
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: R GUTHRIE
File Number : CIC 3353 of 2017
Catchwords:
Criminal injuries compensation - Appeal on the ground of manifest excess - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003 (WA), s 30
Result:
Appeal allowed and award reduced
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
| Amicus Curiae | : | Mr T Ledger 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):
AH v RW [2016] WADC 114
August v Lynch [2019] WADC 78
Bennett v The State of Western Australia [2012] WASCA 70
Gullelo v Halloran [2008] WADC 145
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hildebrand [2019] WACIC 8
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 71
Re Utting [2011] WADC 10
Re Warrek [2019] WADC 50
RJE v Bandy (Unreported WASC, Library No 1365; 31 May 1974)
Robertson v Baker [2014] WADC 14
Robinson [2017] WADC 18
S v Neumann (1995) 14 WAR 452
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 23 April 2019 (Appeal) the appellant, Brandon Bothma, appealed against a decision of a Criminal Injuries Compensation Assessor (Assessor) made on 4 April 2019. The decision was to award the respondent, Dean Stephen Hildebrand, compensation pursuant to Criminal Injuries Compensation Act 2003 (WA) (CICA) in the amount of $20,454 (Determination). The Determination arose out of an incident on 18 October 2015 at Northbridge in which the appellant assaulted the respondent (Assault). On 11 April 2016, the appellant pleaded guilty to an offence of common assault in relation to the Assault, for which he was fined $800 and received a spent conviction.
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 $7,954 with an allowance of $600 for future treatment (subject to CICA s 48) 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):[1]
At about 12:30 am on Sunday the 18th of October 2015, the accused was in the Game Bar, 90 Aberdeen Street Northbridge.
The accused was standing behind the victim, who was seated on a bar stool whilst watching a live rugby game on the tv screens.
For no apparent reason, the accused pulled the victim off his bar stool onto the floor and punched the victim numerous times to the face. The accused was pulled away from the victim by door staff and removed from the Game Bar.
The victim was left with bruising and attended hospital, he later reported the matter to police.
On Monday 16 November 2015 police spoke to the accused under caution and he made admissions to the assault.
[1] 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 131.
After the incident occurred, the victim recalls being on the ground with his hands in front of his face. He thought he had been knocked unconscious. He recalled being taken to a back room of the bar by the bar owner and given a towel to wipe blood from his face. He felt short of breath and had pain on the right side of his body, right leg, side and ribs. He felt very confused and disoriented.[2]
[2] MB 157.
The respondent stayed in the room for approximately 10 minutes cleaning himself up and later left with his brother who took him home. When the respondent got home, he noticed he had cuts to his forehead and the right side of his face and neck.[3]
[3] MB 157, 159.
On 18 October 2015 at 6.38 pm, the respondent presented to Royal Perth Hospital where he was examined. According to hospital records, his presenting injuries were multiple abrasions and contusions including a contusion behind the right ear, multiple small superficial abrasions to his face, a contusion over his right eighth rib anteriorly and an abrasion to the right medial malleolus (inner side of the ankle joint). The respondent described to those treating him symptoms of anterior and posterior chest pain on the right side and a sensation of shortness of breath. The respondent was discharged and advised to take simple oral analgesia. He was provided with a medical certificate for work.[4]
[4] MB 95, 96.
On 19 October 2015, the respondent attended Perth Police Station and provided a statement to police.[5]
[5] MB 156 - 159.
On 16 November 2015, police interviewed the appellant under caution and he made admissions regarding the assault.[6] He was charged with a common assault contrary to Criminal Code s 313(1)(b).
[6] MB 131.
On 11 April 2016, the appellant was convicted of common assault at the Perth Magistrates Court. The appellant was unrepresented at sentencing and pleaded guilty. He was fined $800 and a spent conviction was recorded.[7]
[7] MB 147.
Application for Criminal Injuries Compensation
By application received on 1 December 2017, the respondent applied for criminal injuries compensation (Application).[8]
[8] MB 46.
In the Application the respondent claimed compensation for injury and for loss being, treatment and report expenses, future treatment expenses, travel and personal items. No claim was made for loss of earning capacity, workers compensation or any other form of compensation.[9]
[9] MB 49.
The respondent included with the Application a detailed statement of effects of the physical and mental injuries which he sustained:[10]
[10] MB 57 - 59.
As a result of the 18th of October 2015, I suffered lacerations and bruising to my face and head, bruising to my rib cage, pain and soft tissue injuries to my neck, arms, right wrist and back and ongoing headaches.
Following the assault I immediately attended Royal Perth Hospital and was discharged several hours later. I attended my General Practitioner and also Clinical Psychologist, Sharon Elsley.
After the assault, I struggled with anxiety in public places. I became hyper vigilant and extraordinarily aware of my surroundings because the attack came as a shock and I did not see it coming. I felt that I always needed to be on the lookout, as I was worried it would happen again.
The biggest change I noticed in myself following the assault, is my lack of confidence and my self-esteem. Prior to the assault, I believe that I was able to defend myself in such a situation however, that belief was taken away. This incident was a novel situation to me, as I had never been involved in a fight before. These thoughts and flashbacks of the assault preoccupied my mind, which made it extremely difficult to get to sleep. My lack of sleep made me extremely fatigued throughout my work day.
Prior to the assault I used to be a confident, social person who was comfortable with starting up a conversation with a stranger. Since the assault I have become more guarded and less friendly especially in social situations.
I do not personally know the offender however I am aware that he shares common friends with my brother. I found it extremely difficult when some friends of his tried to defend him. This has made me feel incredibly disappointed and unsupported; especially considering it was an unprovoked attack.
From a male perspective, I feel the need to defend and protect myself and my loved ones. Fortunately my partner was not at the bar at the time of my assault, however, this damaged my sense of masculinity. I felt worthless and as though I clearly could not fulfil my duty as a man.
At the time of the assault to date, I was employed as a financial analyst at a major corporate firm. Due to financial reasons and the pressure and responsibility of my job, I returned to work immediately following my assault. As I work in a corporate environment, I deal with professionals such as Chief Financial Officers of large companies every day. It was extremely unpleasant and embarrassing to attend work with bruises on my face. I felt as though I always had to explain myself, which created doubt among my co-workers and clients. I felt as though my integrity was being called into question, as I felt my co-workers and clients began to view me differently. While I was healing, I really dreaded going into work every day I constantly thought about what people thought of me and whether people believed me.
During this time I found it extremely difficult to concentrate and difficult to complete my work. I also found myself procrastinating and putting things off, when usually I am extremely determined and motivated.
Following the assault, I was unable to ride my bike or play golf for several months. I also had intended to rejoin the cricket club, but my injuries prevented me from doing so. I used to enjoy my active lifestyle, as it helped me maintain a healthy body and a healthy mind. This assault has been a major setback for me, as I continue to worry that I will be attached again for no reason. Since the assault I experience periods where I feel extremely down. I hope that with continued psychological treatment I will get back to how I used to be.
I would like to feel happy and relaxed again. I look forward to getting back on enjoying my social and sporting activities again and regaining my confidence.
The respondent saw his general practitioner, Dr Chee Meng Chang, about his injuries on two occasions. Dr Chang provided a report to the respondent's solicitors dated 16 May 2017.[11] On the respondent's initial consult on 26 October 2015, Dr Chang reported:[12]
Dean told me that since the assault, he had not been sleeping well. His work has been affected. He was suffering from headaches, right sided neck pains, right shoulder pains, right rib pains and right leg pains…Clinically, he had full range of movements of his neck and shoulders. He walked normally and could squat normally. There was tenderness at his right ribs. My impression was then Dean had suffered soft tissue trauma, these would heal with him.
[11] MB 97 - 99.
[12] MB 97 - 98.
Dr Chang referred the respondent to a Dr Sharon Elsley, a clinical psychologist.
The respondent's second consultation with Dr Chang was on 29 December 2015. Dr Chang made the following observations about the respondent:[13]
Dean's physical injuries had healed up but he still had poor sleep and was fearful when in public places. There were no reports of nightmares but he did dream of the assault several times.
[13] MB 98.
Dr Chang reported that the respondent's soft tissue injuries had all healed, and he presumed the respondent was well given he had not returned to seek more counselling sessions.[14]
[14] MB 99.
The respondent also obtained a report from Dr Elsley. He saw Dr Elsley for three sessions between December 2015 and March 2016, and then again between for three sessions between March 2017 and May 2017.[15] Dr Elsley provided a report dated 18 July 2017 which was included in the Application.
[15] MB 91.
Dr Elsley made the following observations about the respondent:[16]
Since the assault Mr Hildebrand stated that he has lacked confidence in public spaces and now he ensures that he can be positioned where he can be aware of others and possible danger. He is anxious and feeling unsafe when out in public, bars or restaurants and does not enjoy himself as he did prior to the assault. He said he fears looking at guys in case one could decide to be abusive. He now tries to be inconspicuous in public.
Mr Hildebrand reported that he was having difficulties with a lack of initiative at work since the assault and suffered general procrastination. He now has difficulty asking for help with work when feeling less engaged or when stressed as he feels he should cope as before. He considers that he is less efficient due to being easily distracted, his memory is not as effective and he has some concentration difficulties since the assault, and he gets to work later than he used to because he is often tired.
[16] MB 90.
Dr Elsley diagnosed the respondent with Acute Stress Disorder for the month following the assault. He also had ongoing distressing symptoms of trauma related anxiety, but did not meet the criteria for Post-Traumatic Stress Disorder.[17] Dr Elsely opined that his anxious symptoms have impacted on the respondent cognitively, emotionally, socially and in the workplace.[18] She also opined that the symptoms experienced by the respondent were caused by the assault. Dr Elsley observed that the respondent had gradually improved over the course of treatment and time itself helped for him to manage his symptoms and move forward.[19] She concluded that the respondent did not require further treatment, but that if he suffered another trauma, it may reactivate his anxieties, and further therapy would be required.[20]
[17] MB 92.
[18] MB 92.
[19] MB 93.
[20] MB 93.
Criminal Injuries Compensation staff wrote to the appellant by letter dated 6 December 2018 advising him of the Application and inviting him to provide a written submission setting out any matters he wished the Assessor to consider.[21]
[21] MB 13.
On 18 December 2018, the appellant provided submissions by way of a letter to the Chief Assessor of Criminal Injuries Compensation, which included a number of personal references. The appellant's letter included the following description of the circumstances which preceded the Assault: [22]
On the night of the common assault, both Mr Hildebrand and I had a few drinks. I was with two girls known to Mr Hildebrand. We all watched a rugby game on the night. Mr Hildebrand made a few laughs and mocking comments. Can't recall if it was about my pink shirt or something I have said or the fact that I was with the girls he knew. I had on a few occasions asked Mr Hildebrand to mind his own business and to stop turning around. Mr Hildebrand kept turning and I believe he provoked me and I lost my temper.
[22] MB 32.
The Assessor made an award dated 4 April 2019 in the amount of $20,454 (being the Determination). The Determination comprised:[23]
•Injuries - $17,500
•Reports - $1,724
•Treatment expenses - $1,140
•Travel expenses - $90.
The Assessor also allowed future treatment expenses to a maximum of $729 subject to CICA s 48.
[23] MB 16.
The appellant was advised of the Determination by letter dated 4 April 2019. This letter also set out his appeal rights, including that the appeal must be lodged within 21 days of the date of the compensation award.[24]
[24] MB 16 ‑ 18.
On 15 April 2019, the appellant wrote to the Assessor and requested written reasons for the Determination.[25] These were provided.[26]
[25] MB 29.
[26] MB 2 – 9, reported as Hildebrand [2019] WACIC 8.
The Assessor also made an order limiting the amount that may be recovered by the State from the appellant to $15,000 pursuant to CICA s 45(1)(b).[27]
[27] MB 8 ‑ 9.
The appeal to the District Court
The appeal was filed on 23 April 2019. The sole ground asserted was that the 'award of compensation to be cancelled'. In the hearing before me on 24 June 2019, after I explained the nature of the appellate review, it became apparent that the appellant's real concern was that the amount of the Determination was manifestly excessive.
The respondent was properly served with the appeal notice but did not file a notice of respondent's intention. He did not appear at the hearing of the appeal. Counsel for the CEO of the Department of Justice, appearing amicus curiae, advised the court that he had spoken to the respondent who said he would accept any order made by the court in the appeal. I am satisfied that the respondent was given a sufficient opportunity to be heard to for the appeal to proceed in his absence.
In hearing this appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the assessor's decision'.[28] The appeal is a hearing de novo.[29] 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.[30] The appellant does not have to demonstrate an error on the part of the Assessor in order to succeed.[31] I do, however, have to reconsider 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.[32]
[28] CICA s 56(1).
[29] Underwood v Underwood [2018] WADC 13 [19] (Gething DCJ); Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude); Robinson [2017] WADC 18 [7] (Troy DCJ).
[30] Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcom CJ).
[31] Underwood [19]; Gullelo [5].
[32] Re ATS [2019] WADC 71 [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'.[33] Neither the appellant nor the respondent has requested the court to consider any further evidence or information.
[33] 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.[34]
[34] 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 $20,454 is manifestly excessive. At the hearing of the appeal, the appellant sought to place before the court information that he was struggling financially and lacked the 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 relevant to the issue of whether the court should make an order pursuant to CICA s 45 barring or limiting recovery proceedings (as the Assessor did). It is also a relevant consideration in the actions taken by the CEO to recover the compensation paid from the appellant in due course.[35]
[35] CICA pt 6.
What award of compensation is appropriate?
The respondent's claim for compensation is based on 'the commission of a proved offence'.[36] The term 'proven offence' is defined to mean 'a crime, misdemeanor or simple offence of which a person has been convicted'.[37] The appellant's conviction of the offence of common assault is a proven offence for the purposes of the CICA.
[36] CICA s 12(1).
[37] 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.[38]
[38] 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:[39]
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.
[39] Underwood [55] – [62].
As I have already observed, neither party sought leave to adduce further evidence or information beyond that before the Assessor.
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'. 'Satisfied' means 'satisfied on the balance of probabilities'.[40]
[40] CICA s 3.
As the offence occurred after 23 September 2003, the maximum amount of compensation payable is $75,000.[41] The maximum in CICA s 31(1) is a jurisdictional limit and is not reserved for the worst cases.[42]
[41] CICA s 31(1).
[42] 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.[43]
[43] 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 first issue I need to consider is what amount of compensation is just for the respondent for non-economic loss arising out of his injuries.
The term 'injury' in CIC Act s 12, s 16 and s 30 includes 'mental and nervous shock'.[44] This phrase contemplates the impact of the offence on the mind or nervous system.[45] It refers to 'mental or emotional harm as opposed to physical injury or bodily harm'.[46] It must be of an enduring character so as to amount to an injury, as opposed to a mere emotional reaction.[47] For example, mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress and disgust are seen as compensable.[48]
[44] CICA s 3.
[45] Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) 5 (Burt J); KMA v DFS [2010] WADC 6 [24] (Sweeney DCJ).
[46] S v Neumann (461) (Murray J).
[47] Neumann (461); KMA [24]; AH v RW [2016] WADC 114 [63] (Braddock DCJ); Townend v McAlindon [2017] WADC 63 [46] (Sleight CJDC).
[48] KMA [24].
The respondent outlined his physical injuries in the Application (quoted at [13]), which in summary were:
•Lacerations and bruising to the face and head
•Bruising to the rib cage
•Soft tissue injuries to the neck, arm, right wrist and back
•Ongoing headaches.
The existence of these injuries is evident in the medical evidence which I have summarised above ([7], [14] ‑ [17]). The respondent's description of his physical injuries is consistent with the other materials before the court. I am satisfied on the balance of probabilities that the respondent sustained the injuries described, and that these were caused by the Assault. I also find that he has fully recovered from these physical injuries.
The respondent also describes a number of other sequalae of the Assault, being that he:
•Struggled with anxiety in public places;
•Experienced a lack of confidence and self-esteem;
•Had difficulty sleeping, as his mind was preoccupied by thoughts and flashbacks of the assault;
•Became more guarded and less friendly, especially in social situations;
•Felt worthless and as though he failed to fulfil his duties as a man;
•Dreaded going to work as he felt embarrassed by his visible injuries;
•Found that he was extremely fatigued at work and less efficient;
•Found himself procrastinating lacking in motivation at work, while also arriving later;
•Continued to worry that he will be attack again;
•Became angry more quickly and was frustrated by other drivers on the roads; and
•Experienced periods where he felt extremely down.
Dr Elsley diagnosed an Acute Stress Disorder for the month following the assault. It is evident on the materials before the court that the respondent had ongoing distressing symptoms of trauma related anxiety (see [20] – [26] above). These extended into the beginning of 2017 (18 months after the Assault) and necessitated further sessions with Dr Elsley. I accept Dr Elsley's opinion that the respondent has recovered to the point of not requiring further treatment, but that if he suffered another trauma it may reactivate his anxieties, and further therapy would be required.
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.
I am satisfied on the balance of probabilities the injuries at [43] and the sequalae set out in [45] and [46] occurred 'as a consequence of the commission of an offence', being the Assault.[49]
[49] CICA s 30(1).
The amount of damages for non-economic loss must be fair and reasonable compensation for the injuries received by the respondent and the disabilities caused, having regard to current general ideas of fairness and moderation.[50] The amount must be proportionate to the particular situation of the respondent.[51]
[50] 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).
[51] 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.[52] With this caveat, two recent decisions of mine provide useful benchmarks as to the broad order of magnitude of compensation appropriate.
[52] Michael v Panetta (1994) 10 SR (WA) 323, 323 - 324 (Jackson DCJ); TAW [24]; Re Warrek [2019] WADC 50 [37] (Troy DCJ).
The first is the decision in Underwood. 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.[53]
[53] Underwood [120].
The second is the decision in August v Lynch.[54] In that case, the appellant was convicted of assault occasion bodily harm for hitting the respondent in the head with a beer bottle and biting her in the middle of her back. The respondent sustained two main physical injuries, the first being a blunt force injury to the back of her head leaving bruising, and the second being the bite to her back which caused bleeding. The respondent also described ongoing stress, distress and anxiety which she experienced as a result of the assault. I agreed with the Assessor that the appropriate award for non-economic loss was $4,000.[55]
[54] August v Lynch [2019] WADC 78 (Gething DCJ).
[55] August [46].
In the circumstances of the present appeal which I have outlined, I am of the view that an appropriate award for non-economic loss is $5,000.
The respondent claimed treatment and other expenses of $1,140. Of this $225 was for Dr Cheng and $915 for Dr Elsley. The 'loss' which the respondent may claim includes 'expenses actually and reasonably incurred by or on behalf of the victim … that arise directly from … the injury suffered by the victim'.[56] The treatment expenses claimed fall within this description and should be allowed. The appellant also claimed for travel of 188 km to attend medical appointments.[57] I will also allow these expenses at $90.
[56] CICA s 6(2)(a)(i).
[57] MB 108.
The respondent claimed $1,724 for the preparation of medical reports to accompany the Application. Of this, $924 was for Dr Elsley,[58] $550 for Dr Cheng[59] and $250 from the Department of Health.[60] The 'loss' which the respondent may claim includes 'expenses actually and reasonably incurred by or on behalf of the victim … that arise in obtaining any report from a health professional or a counsellor in relation to … the injury suffered by the victim'.[61] The medical report fees claimed fall within this description, and should be allowed. There is also a claim for $30 from the WA Police for an information release.[62] However, I am not satisfied that this is a report falling within the definition I have just described.
[58] MB 100.
[59] MB 101.
[60] MB 102.
[61] CICA s 6(2)(a)(ii).
[62] MB 100.
The respondent then claimed an allowance of $2,000 for future treatment expenses.[63] The 'loss' which the respondent may claim includes 'expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim'.[64] Where this type of loss is included in a compensation award, CICA s 48 provides the amount is not to be paid (so far as is relevant) 'unless an assessor is satisfied that the expenses have been reasonably incurred by or on behalf of the victim for treatment that the victim required as a direct consequence of the injury suffered by the victim in consequence of the commission of the offence to which the award relates'.[65] The Chief Assessor must be given evidence to this effect by the victim.[66] Hence, the Assessor allowed future treatment expenses to a maximum of $729 subject to CICA s 48.
[63] MB 109.
[64] CICA s 6(2)(b).
[65] CICA s 48(1)(b).
[66] CICA s 48(1)(a).
Dr Elsley opined that while she did not believe that the respondent would require further treatment regarding the Assault, it is 'likely that should he suffer another trauma it may reactivate his anxieties as trauma reactions can he accumulative'. He would then need to return for some therapy to re-establish psychological balance.[67]
[67] MB 93.
Given how long the respondent's psychological issues have lingered, I am satisfied that it is just to make an allowance for future treatment. The provisions of CICA s 48 will ensure that the treatment is a direct consequence of the Assault. As to the amount, it is not apparent to me the basis on which the Assessor allowed $729. In my view, an allowance of three further sessions with Dr Elsley would be appropriate. Based on the cost of the most recent prior consultations,[68] an amount of $600 is appropriate.
[68] MB 107.
This gives rise to a determination in the amount of $7,954 together with an allowance of $600 for future treatment.
As I have already mentioned, I 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.[69] There are two further matters which arise on the materials before the court.
[69] Re ATS [19].
The first is whether there is anything in the 'behaviour, condition, attitude, or disposition' of the respondent that contributed, directly or indirectly, to his injury. If there is, if I consider it 'just to do so' I may 'refuse to make a compensation award because of that contribution' … or … 'reduce the amount that … would otherwise have awarded'.[70] This issue arises as the appellant in his submission to the Assessor (quoted above [22]) makes comments about the respondent's behaviour towards him immediately prior to the Assault occurring. However, a plea of guilty necessarily means that all relevant defences have been conceded as not applying, in particular in this case those of provocation and self-defence.[71] Moreover, even if the events were as the appellant described, the respondent's actions did not at any level justify or even explain the violence of the response by the appellant. I do not consider that the respondent's behaviour, condition, attitude or disposition in any way contributed to his injuries. The discretion to refuse to make an award on this basis, or reduce one I would have otherwise made, has not been enlivened.
[70] CIC s 41.
[71] Bennett v The State of Western Australia [2012] WASCA 70 [110] (Buss JA).
The second is whether I should bar or limit the recovery able to be obtained against the appellant. The Assessor limited recovery to $15,000. The power to limit or bar recovery in CICA s 45 is able to be made if the assessor 'thinks it is just to do so'.[72] In considering this issue I have reviewed the material which the respondent placed before the Assessor[73] and have considered the submissions which he made on the hearing of the appeal. Both go to his character and financial capacity. With one caveat, in view of the fact that I have reduced the award significantly, I do not consider it just to either bar or limit recovery. The caveat is that the amount of recovery should be limited to $7,954, and should exclude future treatment costs. This is just as it will allow the respondent to have some finality as to the amount of his liability.
[72] CICA s 45(1).
[73] MB 32 - 38.
What final orders are appropriate?
The appropriate final orders are that:
1.The award of the Assessor dated 4 April 2019 be varied from $20,454 with an allowance of $729 for future treatment to $7,954 with an allowance of $600 for future treatment (subject to CICA s 48).
2.Recovery against the appellant be limited to $7,954.
3.There 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.
JM
Associate4 JULY 2019
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