CJJ v WAP - [2012] WADC 25

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CJJ -v- WAP [2012] WADC 25

CORAM: KEEN DCJ

HEARD: 24 JANUARY 2012

DELIVERED : 22 FEBRUARY 2012

FILE NO/S: APP 58 of 2011

BETWEEN: CJJ
Appellant
AND
WAP
First respondent
TLF
Second respondent

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :R GUTHRIE
File No  :CI 545 of 2011

Catchwords:

Criminal injuries compensation - Section 39(1), whether appellant engaged in criminal conduct and disentitled to an award - Section 41, whether appellant's behaviour at time disentitled him to an award - Whether any conduct had ceased at time of injury and effect of such cessation - Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Appeal allowed

Representation:

Counsel:

Appellant:     Mr T H Offer
First respondent            :     No appearance
Second respondent        :     No appearance
Amicus Curiae              :     Mr N T L John appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant:     Leonard Cohen Legal
First respondent            :     Not applicable
Second respondent        :     Not applicable
Amicus Curiae              :     State Solicitor for Western Australia

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

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Re; Richardson [2009] WADC 93
SW v BB [2010] WADC 86

KEEN DCJ: This is an appeal against the decision of the Assessor of Criminal Injuries Compensation in which the assessor refused the appellant's application for compensation under the Criminal Injuries Compensation Act 2003 (the Act).
The appellant made application for criminal injuries compensation on 25 March 2011 arising out of injuries sustained by him in an incident which occurred on 5 April 2008 when he suffered injuries as a result of an assault upon him.
In reasons for his decision, expressed in a letter dated 27 July 2011, the assessor refused the application on two bases: first, under s 39 of the Act in that at the time of sustaining injury the appellant was committing a separate offence, and, secondly, under s 41 of the Act that the appellant's attitude and disposition contributed to his injuries.

Factual background

The assessor had before him a range of material. There were two statements from the appellant dated 5 April 2008 and 25 March 2011, a statement and letter from the appellant's mother, TC, dated 27 April 2008 and 22 March 2011 respectively, CCTV footage taken at the service station where the injury occurred, miscellaneous incident reports from the Western Australian Police, files of the Director of Public Prosecutions and other documents including documents going to the nature and consequences of the injuries sustained by the appellant.
All of that material is relevant for the purposes of the appeal. At the time of dismissing the application, the assessor had not given the appellant the opportunity of leading any further evidence to deal with the matters that the assessor took into account, that is to say those arising under s 39 and s 41 of the Act. Accordingly, as a matter of fairness I allowed the appellant the opportunity of adducing evidence in the hearing of the appeal, it being a hearing de novo.
Accordingly, the appellant gave evidence in the appeal and was cross‑examined by counsel representing the Chief Executive Officer of the Department of the Attorney General (CEO).
The factual background that arises from the statements of the appellant and his evidence is that on 5 April 2008 the appellant was 17 years old. It appears from his application that he was born on 18 October 1990.
According to his statement dated 5 April 2008 he was with six other friends. They caught the last train to Armadale. In his evidence he said that they were under the influence of alcohol.
From the train station they walked to the Gull Service Station in Armadale where they purchased some food. They left the service station and went to a nearby roundabout. Whilst they were sitting on the roundabout three cars drove by. The appellant recognised one of the people in the car who was ultimately one of his assailants.
The cars then drove out of sight but very shortly afterwards the appellant saw a group of people, maybe 20 in number, coming towards them. They were about 50 m away. He recognised some of them as including the respondents in the present proceedings. He said in evidence that they were armed with weapons, being poles, machetes and axes; they all had something.
In his statement to the police he said that one of them, WAP, was carrying a machete and another, TLF, was carrying two axes. In that statement he said that as they got closer 'we all started throwing things at each other. We were all just picking up things from around us like bottles and bricks and rocks'.
In his evidence he said that one of his friends left the group to go up to this group to say that he had nothing to do with them but nevertheless they attacked him. Under cross‑examination he said that after his friend left the group at the roundabout he did not leave the group as he thought that he would be attacked as well. The appellant and his friends then ran back towards the Gull Service Station. He said that he and one of his friends ran into the shop in the service station.
In his statement he said that the doors were shut behind them but that TLF came up to the doors and used the axes to get in and they opened the door. WAP then came after him with the machete and tried to hit him. The appellant put up his left arm to stop being hit and he was struck on his left hand with the machete. In evidence he said that as he went to pass him he was then hit on the head. He managed to get out of the service station and jumped a fence.
In his statement to the police he said that he had a brick in his hand and after WAP had hit him he hit WAP with the brick. He described trading a couple of blows before being struck over the head. In his evidence he said that he had picked up the brick in order to defend himself. He did not know what had happened to the brick after he had been struck.
He was also taken to an incident on 8 December 2007. Part of the evidence comprises the appellant's criminal record. This includes offences on this date of carrying an article with intent to cause fear that somebody would be injured or disabled and disorderly behaviour in public. He was dealt with in the Perth Children's Court on 17 October 2008 when no punishment was recorded under s 67 Young Offenders Act 1994. No information has been provided as to the matters on which the court was satisfied in imposing that order.
The appellant said that on this occasion he had been in Northbridge with a friend and they joined up with a group who were already there. Another group came out of the park and a confrontation arose between these two groups. He said that he grabbed a picket from a fence but he did not use it. He said that this was a different group to the group that was involved in the incident on 5 April 2008.
He was asked in cross‑examination whether or not there was some feud between these two groups. He referred to a falling out over a girl but it had nothing to do with him. He denied that there was any feud between him and the respondents. However in a medical report dated 16 October 2008 from Dr Wojnarowska, psychiatrist, under the heading 'Medical History', it is noted that '[i]n April 2008 (the appellant) sustained a head injury after being repeatedly hit with a machete over his head in a gang related feud' (emphasis added). Further, in a report from Dr Leonie Coxon dated 24 March 2011 she notes that the appellant had been involved in a previous altercation with one of the men who had attacked him. In cross‑examination he agreed that he had had a fight with TLF previously when TLF had hit him and he hit him back. In a statement to the police dated 27 April 2008 the appellant's mother refers to an ongoing feud for eight months between her son and WAP and TLF and others. Again, such a feud was denied by the appellant in evidence. He agreed that he knew the other group had some issues with the people in his group.
In a statement to the police, made 7 April 2008, the service station operator, Iain Bowen, said that a person came to the door shouting 'call police, call police'. Then another man came to the door saying he wanted to come in. Another person then entered and the two of them asked if he had any hand axes. In cross‑examination the appellant did not recall asking for a hand axe but did recall asking the operator to call the police.
He was asked in cross‑examination whether he had thrown a brick. He said he still had it in his hand in the service station for self‑defence if he was attacked.
In a statement dated 8 April 2008, Mr Gordon Riley said that earlier that evening there had been a previous altercation. In his evidence the appellant said that he knew nothing about that.
The events or part of the events of this night were captured on CCTV at the service station. There are cameras which view the forecourt and also the inside of the shop at the service station.
The footage of the forecourt commences at approximately 5.02.32 showing a vacant forecourt. At 5.02.40 the appellant can be seen arriving from the left‑hand side of the screen holding a brick in each hand. He walks up and down. From 5.02.50 the appellant and some of the others in his group appear to be looking towards the left‑hand side of the screen. The appellant then disappears from the right hand side of the screen and some of the others are seen throwing bricks or rocks to the left.
At 5.03.52 a number of men start to appear from the left, some running, and are heading towards the right of the screen. Some appear to be carrying sticks or other weapons.
At 5.04.52 men start to appear travelling from the right of screen heading to the left and looking back to the right. One man in blue appears to be carrying a machete.
The vision inside the shop is taken from the counter and there is a clear view of the twin glass sliding doors. The time on this vision is obscured. The man in charge of the store opened the sliding doors and the appellant entered. He can be seen holding a brick in his right hand. Shortly after another two persons also enter holding bricks and one leaves shortly after. In this vision one can see the people running outside in the forecourt.
A man then appears at the sliding doors holding two axes and uses them to prise the doors open. He enters the shop followed by another man holding what appears to be a machete and another one holding a long stick.
This is followed by a very short passage where there appears to be no activity in frame and then people rushing into the view of the camera. One escapes out of the door after knocking over the man with the stick. The appellant then appears and he is caught at the door where he is beaten about the head by the man with the axes. He is also beaten by the man with the stick and the man with the machete.
After a short altercation the appellant and his attackers leave the area of the store.
Also on the DVD there is a close‑up of the incidents at the door. It can clearly be seen that the appellant is carrying two bricks. It can also be seen that the man with the machete initially throws a brick into the shop. The blows raining down on the appellant are also clearly depicted in graphic detail. In another view of the store at 5.03.56, and before the ultimate assault which I have described, the appellant and another can be seen cowering down behind one of the shelves. At 5.04.14 a man is seen running passed the counter heading to the rear of the shop. At 5.04.22 the man who appeared earlier to be cowering behind the shelves with the appellant is seen running from the back of the shop and passed the counter towards the doors. He is carrying something in his right hand which he throws towards the doors. He is followed by the appellant running towards the doors chased by a man in black holding a machete and behind him a man in blue holding two axes. This vision is of an event immediately before the appellant is assaulted at the doors.

The assessor's reasons

In his reasons the assessor noted that the CCTV footage showed the appellant with three others engaging in rock and brick throwing. On my viewing of the footage I cannot detect the appellant throwing any bricks.
The assessor then referred to a running battle occurring between the two groups. He described that as including the appellant. He formed the opinion, given the number of people involved, that there was sufficient evidence to find that the appellant was taking part in a riot contrary to s 65 of the Criminal Code. In the alternative, the assessor relied upon s 74A of the Criminal Code, that the appellant was engaging in disorderly conduct and common assault contrary to s 313 of the Criminal Code.
The learned assessor came to the view that at the time of sustaining his injury the appellant was committing a separate offence for the purposes of s 39 of the Act and as a consequence the assessor could not make an award of compensation in his favour.
The assessor also relied upon s 41 of the Act. It was his view that an examination of the circumstances of that night showed that the appellant had a disregard for the law. He found that for the previous three years he had been engaging in ongoing feuds with other young indigenous men.
The assessor referred to the incident on 8 December 2007 and described the appellant as engaging in a melee in Northbridge resulting in serious injuries to a Mr Garlett.
The assessor then referred to an assault which the appellant committed on 14 March 2010 which the assessor said was directly related to the incident which occurred on 5 April 2008 in that the persons assaulted were associates of TLF.
The assessor then went on to describe another incident on the following day when Mr Y was injured when a group attempted to exact retribution upon WAP.
The learned assessor described these matters as part of a continuum of law‑breaking by the appellant and others which had resulted in violence and public disorder.
The assessor took the view that the appellant's attitude and disposition as evidenced by those matters and, in particular, his conduct on 5 April 2008 directly or indirectly contributed to his injuries. They were part of an ongoing feud in which he took part. The assessor took the view the contribution was so significant it would be unjust to make an award of compensation.

The legal framework

The general legal framework for the granting of compensation arising out of criminal injuries is not controversial. It is dealt with in detail in written submissions filed on behalf of the CEO.
In the context of the present case what is of importance are the provisions of s 39 and s 41 of the Act. Those sections relevantly provide:
39.No award if victim was engaged in criminal conduct
(1)If an assessor is satisfied —
(a)that a person was injured as a consequence of the commission of an offence; and
(b)that the injury was suffered when the person was committing a separate offence, the assessor must not make a compensation award in favour of the person.
(2)…
41.Behaviour etc of victim to be considered
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor —
(a)must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury or death; and
(b)may, if he or she thinks it is just to do so —
(i)refuse to make a compensation award because of that contribution; or
(ii)reduce the amount that the assessor would otherwise have awarded.

The submissions

The appellant

It is argued on behalf of the appellant that insofar as s 39 is concerned the evidence taken at the hearing of the appeal overtakes and is inconsistent with the assessor's assessment that the appellant was at the time engaged in a riot or other criminal behaviour. The submission is that the appellant was doing no more than trying to protect himself from the attack that had been launched by this group of other people.
Further, counsel adopted an alternative scenario that if there was some initial criminal behaviour on the part of the appellant it had ceased at the time of the attack. The appellant was attempting to get away from this other group of people. He was seeking sanctuary in the shop at the service station. Others in his group had run off elsewhere. Accordingly, it is argued that the injury was not suffered when he was committing a separate offence.
As to s 41, counsel argued on behalf of the appellant that there was no clear connection between these events in Northbridge and the events the subject of the application for compensation. The Northbridge events occurred some four months before. They were not proximate in time and involved different people.
In relation to the events of 5 April 2008 it is argued that the appellant was not doing anything that was not justified in the circumstances that he was facing at the time. There was no evidence to show that he threw any missiles at this other group and indeed, as I have noted, he still had bricks in his hand whilst in the shop.
None of these bricks were used offensively and it is argued that it was legitimate for him to have them in his possession in order to defend himself if necessary.

The CEO

The submissions made on behalf of the CEO noted that for the purposes of s 41 of the Act there is no requirement for proximity of time. As to the events on the night in question, it is said from all of the evidence that was available to the assessor that the appellant was aware of what was going to happen that particular evening. Statements made by others to the police are relied upon for this purpose.
It is said that as to s 39 that it was open to the court to find that the word 'when' in s 39(1)(b) required a temporal connection between the suffering of the injury and the committing of the separate offence. It is argued that it is open to conclude that there was that connection because all the events were part of a single incident.
Counsel argued that it was open to the court to find that that offence comprised one of a number of offences within the Criminal Code including riot (s 65) unlawful assembly (s 63), fighting in public in circumstances likely to cause fear (s 71), disorderly behaviour in public (s 74A), and assault (s 313).
It was also suggested the court might have regard to s 8 Criminal Code as to offences committed in the prosecution of a common purpose in that it could be argued that the appellant was part of a group of persons who were throwing rocks and otherwise engaging in criminal behaviour and therefore he was deemed to have committed the offence(s).

Findings

It is agreed by counsel for the CEO that it is the respondents who bear the burden of proof on s 39 and s 41 on the balance of probability. On those issues the appellant is entitled to the benefit of any doubt; see SW v BB [2010] WADC 86 [66] (Schoombee DCJ).
Whilst the appellant was not prepared to admit that there was any ongoing feuding between himself and the respondents, it seems from the evidence that there was some ill‑feeling between them. Nevertheless, I cannot be satisfied on the evidence that it was any more than that.
I have referred to the reference to a feud in the report of Dr Wojnarowska. The doctor noted the sources of information as including the appellant's mother. I have noted that in her statement she refers to a feud and when the appellant was questioned about this in cross‑examination he agreed that they were his mother's words and he said 'I don't know why she thinks there was a feud going on because nothing really happened'. I cannot be satisfied that it was the appellant who provided this information to the doctor as opposed to his mother. In the circumstances it does not discredit his statement that there was no feud.

Further, there was some evidence both in a statement from the appellant's mother and from the appellant himself that these respondents or one or other of them had been responsible for damaging his mother's car. He was not challenged in any way when he said that he did not seek retribution for these events.
In the end whilst I can accept there may be some ill‑feeling, I cannot accept that there was some ongoing running battle or feud between these groups or, more specifically, the appellant and the respondents.
I am satisfied that so far as the appellant is concerned there was no altercation earlier in the evening involving this group. There may have been an altercation with others but the appellant explained that at one stage of the evening he had been arrested on a warrant and then later released and it is then he rejoined his friends.
I am satisfied on his evidence that he and his group of friends were on the roundabout when they saw a large group approaching them. Clearly this group were armed. So much is evidenced by the CCTV footage taken later.
I am also satisfied that there was probably some exchange of words. It appears quite clear that a Mr Y had said that there should be a fair fight. Nevertheless, I am not satisfied that the involvement of the appellant's group went any further than that.
I accept his evidence that there came a time when one of his group detached himself from the group and approached the other group to try to get away but was himself attacked. On seeing this it was reasonable for the appellant and his group to expect there was going to be trouble and they would also be attacked. They were outnumbered.
The evidence clearly shows that they then armed themselves with bricks and rocks that were nearby. However they did not stand and fight but it appears from the evidence that they retreated towards the service station. So much again is evident from the CCTV footage.
Whilst some of the boys threw bricks in the direction of the other group, they all appeared to be wary and on guard and indeed a number of them can be seen to take off and then a number from the other group come into view in the forecourt running in what is presumably the same direction.
It is at this stage that the appellant does not run with the others but he and one or two others seek refuge in the shop. At this point he is still carrying the brick(s). I am satisfied that he was seeking refuge. As I have noted, he can be seen cowering down behind shelves trying to hide. He looks concerned for his safety.
There is no controversy that the respondents and another entered the shop and attacked the appellant with weapons in a most severe way.
I am not satisfied on the evidence that the appellant was engaging in the commission of any offence prior to being attacked in the service station. I am not satisfied that merely because others may have been involved in committing an offence he was necessarily so involved under s 8 Criminal Code. His evidence is that he did not throw any bricks but merely armed himself for the purposes of defence in the circumstances that arose. I accept that to be so.
I accept that he did not stand and fight but tried to make his escape from what was clearly becoming a very dangerous situation. Unfortunately he did not succeed.
On the evidence before me I cannot take the same view as the assessor, that he was taking part in a riot or engaged in any other criminal conduct.
Accordingly, in my view s 39 of the Act has not been made out against the appellant to disentitle him from compensation.
In any event if I was wrong on that and he was committing some offence, whether it be riot, disorderly behaviour or otherwise, in my view there came a time when he decided to try to escape. It is unfortunate he made the wrong decision by going into the shop. By this time he was seeking refuge or sanctuary. Any criminal activity that he was then engaged in had ceased.
In SW v BB Schoombee DCJ dealt at length with s 39 and whether there had to be a causal connection between the offence being committed by the claimant and the injury sustained by him as a consequence of the commission of an offence. Her Honour considered in detail the history of the section and the relevant case law. It appears that her Honour took a different approach to that contained in cases such as Re; Richardson [2009] WADC 93 in which Yeats DCJ came to the conclusion that s 39(1) did not require any causal connection between the injury suffered by the victim and the separate offence committed by the victim. Her Honour held that the only relationship required was a temporal one. Yeats DCJ also said at [31] that the question whether there was a temporal connection required an assessment of all the facts and circumstances of the case and that generally, if the victim's injury and the separate offence were part of one incident, that would be sufficient to show a temporal connection.
In Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29, the Court of Appeal overturned her Honour's requirement for a causal connection and approved her Honour Judge Yeats' temporal connection approach in Richardson.
Adopting what was said by Yeats DCJ that the only relationship required was a temporal one and that requires an assessment of all the facts and circumstances of the case, in my view, in the present case, there was no such temporal connection.
In Attorney General for Western Australia at [32] the chief justice gave a number of examples of a claim for compensation involving persons engaged in an assault. His Honour said:
Another obvious example is the case of a claimant who suffers injury as a result of an offence committed while fleeing from the scene of a crime which he or she committed, but which was complete at the time injury was suffered. It is clear from the language used in s 39 of the Act, and from the secondary materials referred to by the District Court judge, that it was intended that compensation would not be available in either of these examples.
It seems to me that there is a difference between merely fleeing from a crime and fleeing from the scene of the crime to seek sanctuary from the risk of serious harm. In the context of the present case what would be the position if, albeit unlikely, the complainant had sought sanctuary in and had gained access to a police station in order to secure his safety only to be attacked inside?
As her Honour noted in Richardson, if the victim's injury and the separate offence were part of one incident, that would be sufficient to show a temporal connection. In the present case, that temporal connection was severed when the appellant was seeking to escape being attacked and sought sanctuary in the shop of the service station. There was not one continuing event and he had ceased being engaged in criminal activity (if any).
In Attorney General for Western Australia at [55] the chief justice referred to a narrower view which might be taken of the requisite temporal connection such that there must be a precise temporal overlap between the two offences. In view of my findings it is not necessary for me to decide whether such a narrower view is the preferred view. It is sufficient to note that if it was then in the present case there was clearly no precise temporal overlap.
So far as s 41 is concerned, I am not satisfied that the events which occurred on 8 December 2007 in Northbridge are in any way associated with the events of 5 April 2008. The evidence of the appellant is that there was no connection between those two groups. In any event his involvement was very minor. So much may be inferred from the penalty that was handed down, notwithstanding that the appellant had what can only be described as a serious prior record.
Insofar as the activities on 5 April 2007 are concerned, I am not satisfied that there was any distinct behaviour, condition, attitude or disposition of the appellant that contributed, directly or indirectly, to his injury for the reasons I have expressed in relation to s 39.
Further, I am not satisfied that any offending on the part of the appellant subsequent to the incident on 5 April 2008 has any bearing on his claim to compensation. I am not satisfied that any such offending contributed directly or indirectly to his injury. Further, there is insufficient evidence before me to show that the injuries sustained to Mr Yarran on the following day were in any way associated to the appellant and demonstrated on his part a continuum of law‑breaking as the assessor described it.
In all the circumstances I am not satisfied that the respondents have been able to demonstrate on the materials before the court that either s 39 or s 41 should disentitle the appellant from compensation. Further, under s 41 I am not satisfied that his behaviour is such that it would be just to reduce the amount of the award that he should otherwise receive. My findings are that he was essentially in flight at the time the assault occurred and that there was nothing that was directly referable to him which would reflect behaviour, condition, attitude or disposition on his part that contributed directly or indirectly to his injury.
Accordingly, I allow the appeal.

Quantum

Medical records from the Royal Perth Hospital show that the appellant was admitted to hospital on 5 April 2008 with injuries comprising fractures to his skull, lacerations to his back, fracture to the head of the second metacarpal and a fracture to the base of the first metacarpal and bruising over the shoulder. There was also swelling and bruising to the left hand. Around the fracture sites in the skull there was intracranial haemorrhaging.
The appellant underwent surgery being a craniectomy and repair of his dura. His left hand was treated and K wires were inserted into his first metacarpal and the hand was placed in a plaster of Paris cast. He remained in hospital for seven days.
On 7 August 2008 he was admitted to hospital for two days and underwent a cranioplasty with titanium mesh.
In a report dated 7 September 2010, Dr Kim Fong, specialist rehabilitation physician, noted that he had seen the appellant on 4 March 2010. He complained of residual symptoms and disabilities arising out of the assault and comprising frequent frontal headaches two to three times a week relieved by paracetamol. There was hypersensitivity in the skull and scarring and deformity of the left hand causing some discomfort and reduced manual dexterity. The appellant also claimed that it was necessary to avoid body contact sports. His family reported a range of emotional dysfunctions including social withdrawal, poor motivation, anxiety and some elements of post‑traumatic stress disorder.
The neurological examination showed intact power, sensation, reflexes and coordination.
Dr Fong was of the opinion that the appellant was likely to face a reduced level of sporting prowess and should avoid any future participation in body contact sports. He opined a moderate diminution of quality of life due to this. There was also a need to restrict himself from any future social recreational activities which may be associated with an increased risk of brain injury.
Dr Fong suggested that the appellant might develop osteoarthritis changes in his left hand over time.
I have been provided with photographs of the appellant. Those photographs show lacerations to the back and base of the skull and to the back area. There are also photographs of the left hand in a bloody state. There are also photographs showing the appellant skull after treatment. There are five distinct areas where the skull has been either sutured or stapled where he had been injured. The extent of the wounds appears significant.
The report of Dr Wojnarowska, to which I have already referred, noted that since the head injury the appellant's mother had noted him to be more irritable, withdrawn and unmotivated. He had underlying anger. At that time there was no evidence of history of flashbacks which would be present if he suffered from post‑traumatic stress disorder.
The doctor's mental state examination revealed that the appellant's judgement was not impaired and there was no evidence of heightened arousal. On cognitive assessment, his concentration was adequate, his immediate recall was good and there was no evidence of long or short‑term memory impairment.
The doctor's diagnosis was that the appellant did not appear to be left with any major psychiatric or neurological sequelae from the head trauma but the attack had left him with negative feelings towards the perpetrators, some irritability and lack of motivation. The doctor's view was that the head trauma did not increase or decrease the appellant's tendency to antisocial behaviour. The psychiatrist recommended counselling.
On 27 January 2011 and 2 February 2011 Dr Leone Coxon, a clinical and forensic psychologist, saw the appellant and produced a report dated 24 March 2011, to which I have already referred.
In that report, after dealing with the incident, Dr Coxon noted the changes said to have occurred in the appellant since the assault. He said that he had no motivation to do anything much with his life and had become socially withdrawn and feared being attacked again. His mother claimed that his memory was poor. He was sometimes anxious and fearful and had lost confidence in himself. He felt tired and fatigued and had an erratic sleeping pattern. He almost never went out.
Dr Coxon carried out a number of psychometric assessments. In her summary of those tests she said that the appellant's emotional state revealed moderate levels of anxiety, moderate stress and moderate depression symptoms. He also fulfilled the DSM‑IV criteria for chronic post‑traumatic stress disorder of a moderate to severe degree with a moderate level of impairment in day‑to‑day functioning. His intellectual functioning skills were found to be within the borderline to average range.
Dr Coxon was of the belief that the appellant had undergone some counselling sessions. There was no evidence before me that that had occurred. She was of the view that he would be further assisted in his emotional and traumatic stress problems if he were to see a clinical psychologist. She thought that that would be required over a 12‑month period, initially weekly then fortnightly and finally monthly. The total cost of such treatment she placed at between $2,120 and $3,000.
The appellant is not currently working. In his evidence he said that he was waiting for the court case to finish and that he would go to Port Hedland and try to get a job there. He has been receiving Centrelink payments for the last six months. Prior to that he was supported by his mother. He did not know of any particular reason why he could not have got Centrelink payments before.
The appellant did not think that the injury to his hand would affect his chances of employment. Dr Fong in his report in September 2010 noted that as of March 2010 the appellant was coping well with his horticulture traineeship and it was probably unlikely he will suffer any significant diminution of his current and future work capacity as a result of his injuries. However, as noted, he may develop osteoarthritis changes in the left hand which may gradually reduce his capacity for physical employment.
It appears that prior to this incident the appellant was an excellent sportsman and played football. On medical advice it appears that such activity is no longer open to him.
The injuries sustained by the appellant were, on any view, serious and life‑threatening. However, following surgery, he appears to have made a very good recovery. Nevertheless, he still suffers ongoing problems both of the physical nature including scarring to the head and hand and also others of a psychological nature. I am satisfied on the evidence of Dr Coxon that he is suffering post‑traumatic stress disorder which falls within the definition of injury in s 12(1) and s 3 of the Act.
Nevertheless the precise extent of the physical injuries and psychological injuries is not clear and was not fleshed out in evidence before me. There is evidence in the letter from the appellant's mother about his emotional state but I am satisfied that that does not fall within the definition of injury in the Act.
As to economic loss I am not satisfied that there is any loss to date arising from these injuries. There is simply no evidence to support that fact. The evidence as to any future loss is limited to that of Dr Fong when he opines the possibility of osteoarthritis changes in the left hand which may reduce his capacity for physical employment.
In assessing the appropriate amount of compensation it is necessary to apply ordinary tortious principles for assessment of damages. On that basis, doing the best I can from the information before me, I am of the view that an appropriate award in respect of the injuries sustained and the possibility of a loss of earning capacity in the future by reason of degeneration arising out of the injuries to his hand would be $60,000.
In addition I am satisfied that it would be beneficial to the appellant to have some counselling. Based upon the report of Dr Coxon I would award $2,500.
In addition to this I am satisfied that the appellant has incurred expenses in respect of Dr Fong and Dr Coxon in the sums of $880 and $3,751 respectively. Whilst the application for compensation also refers to expenses of $30 and $30 to the Western Australian Police, I have not been provided with any evidence to support the same.
Accordingly, the total award will be $67,131.
Counsel for the CEO suggested that the court might apportion the compensation between the respondents pursuant to s 30 (4) of the Act. Neither respondent appeared at the hearing despite being given the opportunity to do so.
There is no evidence before me as to the impact that each individual respondent's actions had on the overall effect upon the appellant. Nevertheless, having viewed the CCTV footage and the medical reports and having seen photographs of the injuries to the appellant, it seems to me that it would not be unreasonable to apportion 75% to the injuries inflicted by TLF striking the appellant with axes and 25% to the injuries inflicted by WAP from the use of the machete. Accordingly, I so order.