Button v Lannigan
[2022] WADC 94
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BUTTON -v- LANNIGAN [2022] WADC 94
CORAM: STAUDE DCJ
HEARD: 31 OCTOBER 2022
DELIVERED : 4 NOVEMBER 2022
FILE NO/S: APP 66 of 2021
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: CRYSTAL BUTTON
Appellant
AND
CECILENE MAUREEN SHONELLE LANNIGAN
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: R GUTHRIE
File Number : CIC 211 of 2021
Catchwords:
Appeal - Criminal injuries compensation - Penetrating eye injury resulting in total blindness in the left eye and cosmetic disability - Compensation for non‑pecuniary loss only
Legislation:
Criminal Injuries Compensation Act 2003 (WA)
Result:
Appeal allowed
Compensation assessed
Representation:
Counsel:
| Appellant | : | Ms V E Long-Droppert |
| Respondent | : | No appearance |
| Amicus Curiae | : | Ms A Y Westerside on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Patrick J Cannon Coburn & Associates |
| Respondent | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Nil
STAUDE DCJ:
Introduction
This is an appeal from a decision as to the amount of a compensation award made on 25 August 2022 for injury caused by a proven offence pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA). The appeal is brought pursuant to s 55 of the Act. By virtue of s 56(1) the appeal is a hearing de novo of the appellant's application dated 5 November 2020. The appeal is to be determined on the evidence and information that was before the assessor. The court may receive further evidence and information.
In this case, as well as the material before the assessor, I am informed by an undated signed statement of the appellant lodged on 26 October 2022, a Lions Outback Vision Clinical report dated 23 November 2021 and a colour photograph of the appellant's face.
The respondent did not appear. By earlier order of the court the respondent was served by substituted service in the form of a notice published in the 'Legal Notices' section of the NT News on 21 May 2022. No notice of intention to be heard in the appeal was filed.
Entitlement to compensation
On 5 April 2019, the appellant was assaulted by the respondent who punched her twice to the left side of her head before she armed herself with a pair of hairdressing scissors and struck the appellant on the right forearm, causing a minor cut, and to her left eye, causing a penetrating injury. The left eye injury has, despite medical treatment, rendered the appellant totally blind in that eye.
On 3 July 2019, the respondent was convicted of assault occasioning bodily harm.
I am satisfied that the appellant was not committing a separate offence at the time of the offence that caused her eye injury. This was raised as a potential issue in the written submissions of the Chief Executive Officer as amicus curiae. The submissions drew attention to references in the hospital notes to the appellant having been smoking marijuana. Section 39 prohibits the making of an award of compensation if at the time the injury was suffered the injured person was committing an offence.
The appellant in her statement admits to having smoked 'some marijuana' on the morning of the day of the incident. She states further that she was not smoking marijuana when she was attacked later that day and had no drugs in her possession at that time. There is no other evidence of illicit drug possession. Indeed, there is no evidence of any temporal connection between a Misuse of Drugs Act offence and the assault that caused the injury in question.
I have read the documents provided to the assessor by WA Police relating to the investigation of the offence and the statement of material facts prepared for the prosecution of the respondent. There is nothing in those records that suggests any behaviour, condition, attitude or disposition on the part of the appellant that contributed directly or indirectly to the injury for the purposes of s 41.
Accordingly, I am satisfied that the appellant is entitled to an award of compensation. Compensation is to be assessed by applying common law principles for the assessment of damages for personal injury, subject to the statutory definition of injury and loss, and the jurisdictional limit of $75,000.
Evidence
In this case, the evidence of injury before the learned assessor consisted of the ambulance and hospital records relating to the appellant's treatment in April 2019. There was no evidence of any subsequent treatment, sequelae, or residual symptoms or disabilities. There was no statement by the appellant of the effect of the eye injury upon her.
The report of Lions Outback Vision, to which I have referred is brief. It names the ophthalmologist as Dr Vaibhavun Shah and the registrar as Dr Rachael Heath Jeffery. It records that the appellant's unaided visual acuity in her right eye was 6/6, and that she had no light perception in the left. The diagnosis was left eye Phthisis bulbi, a clinical condition defined in the Butterworth's Medical Dictionary as a soft and shrunken eye usually following severe inflammation or injury. The photograph of the appellant's face to which I have referred depicts a significantly smaller left eye relative to the right, consistent with the diagnosis.
The Lions Outback Vision report and the photograph of the appellant prove that the appellant has suffered a total and permanent loss of sight in her left eye, associated with a significant cosmetic disability due to the shrinkage of the eyeball. This information was not before the learned assessor.
It is notable that the medical evidence is, as I have observed already, principally records relating to the appellant's initial treatment in April 2019. There is no evidence of any ongoing treatment. The Lions Outback Vision clinical report shows that by November 2021 the appellant's ocular disability was permanent.
The appellant was attended to by ambulance officers after the incident and seen to have a bruised and swollen left eye with blood coming from the corner of the eye. The appellant was conveyed to Halls Creek Hospital and from there to Royal Darwin Hospital. The referral described her injury as follows:
Left periorbital hematoma. Inner canthus has small tear (2 - 3mm) in sclera medially with small vitreous extrusion. Laterally has large corneal hematoma extending posteriorly. Unable to see posterior edge. Retinal exam difficult but is hazy, dark, no clear line or hyphaemia.
A pathology report dated 6 April 2019 concluded:
Penetrating injury left orbit. Extensive left sided ocular haemorrhage is shown and the penetrating injury perforates the posterior aspect of the globe lateral to the optic nerve.
The appellant underwent the surgery for repair of the eye injury on 6 April 2019. The surgeon, Dr Sanditha Wichramasinghe, in a statement dated 20 May 2020, described the surgery as follows:
There was a wound on the white of the eye (sclera) on the side of the eye towards the nose … about 5.5 mm behind the junction of the white of the eye and the cornea (the clear circle portion of tissue in front of the eye). The wound itself was about 4 mm in length going behind towards the back of the eye. The wound edges were irregular. The deep tissues of the eyeball were exposed at the wound site. The attachment of the muscle was damaged as well.
I have viewed photographs of the appellant taken when she was in hospital that are consistent with the nature of the eye injury as described. There is also a photograph of the right arm showing a small superficial cut to the forearm. There is no evidence that the right arm injury required any medical treatment.
There is no evidence of any psychological sequelae, but it may be inferred that the eye injury, accompanied by bleeding and swelling of the eye, was painful and distressing. The appellant was discharged on 23 April 2019, some 18 days after the incident.
As I have remarked, there is no evidence in the form of any statement by the appellant as to the nature and effect of any ongoing symptoms and disabilities. In particular, there is no evidence of any economic loss due to an inability to work or be otherwise gainfully employed. Such a statement would have been helpful to the assessor and to this court.
As for the medical evidence, I am greatly assisted by the careful and thorough analysis of the documentary records contained in the outline of submissions lodged on behalf of the Chief Executive Officer.
On behalf of the appellant it is submitted that the claim is for non‑pecuniary loss only. That assessment, in my view, should take into account the nature of the eye injury, the extent of the treatment required and the resulting blindness and altered appearance that the appellant will suffer for the rest of her life. There is no evidence of any need for future treatment.
The appellant was born in 1996. She was 23 at the date of the incident and is now 26. While I do not have a report of a consultant ophthalmologist, I can infer that the appellant is likely to be compromised in many respects by the loss of binocular vision and put at increased risk of total blindness in the event of an injury to her right eye. As a matter of common sense and experience (bearing in mind that this court has what may be described as a specialist personal injury jurisdiction), it may be found that a loss of sight in one eye is likely to reduce peripheral vision and to diminish the person's ability to judge distances, perceive depth and track moving objects; functions for which binocular vision is required.
Assessment
There is no evidence to suggest that the cut to the right arm was of any clinical significance. On the evidence, any award for that injury alone would be nominal.
There are no out-of-pocket losses for items such as loss of earnings, treatment expenses or report fees to be assessed.
For non-pecuniary loss caused by the penetrating injury to the appellant's left eye for which hospitalisation and ophthalmic surgery was required, and which has resulted in permanent loss of sight in the eye and permanent cosmetic disability due to phthisis bulbi, I would assess the compensation to which the appellant is entitled to be not less than $75,000 and would award her that sum.
For the sake of consistency I have had regard to the decisions referred to by the amicus curiae. I am otherwise informed by awards of general damages for ocular injuries in this and other courts. The facts and circumstances of each case are different and there is limited assistance to be gained by comparison. For that reason I do not propose to cite them.
So, the orders will be, unless counsel wish to be heard, that the appeal be allowed, that the appellant be awarded compensation in the sum of $75,000 and that 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.
DC
Associate to Judge Staude
3 NOVEMBER 2022
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