Colbung v Smith - [2015] WADC 33

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: ALBANY

CITATION: COLBUNG -v- SMITH [2015] WADC 33

CORAM: FENBURY DCJ

HEARD: 16 FEBRUARY 2015

DELIVERED : 27 MARCH 2015

FILE NO/S: APP 40 of 2014

MATTER :IN THE MATTER of Pt 7 of the Criminal Injuries Compensation Act 2003

BETWEEN: GRAEME CHARLES COLBUNG
Appellant
AND
JILLIAN TESHA SMITH
Respondent

ON APPEAL FROM:
For File No              :  APP 40 of 2014
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :H PORTER
File No  :CI 001497 of 2013

Catchwords:

Criminal law - Criminal injuries compensation - Appeal from assessor under Criminal Injuries Compensation Act 2003 - Nervous shock - Whether victim living with appellant immediately before offence

Legislation:

Nil

Result:

Appeal allowed
Compensation order made

Representation:

Counsel:

Appellant:     Ms K Heslop
Respondent:     No appearance
Amicus Curiae                   :    Ms G Bailey appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant:     Family Violence Prevention Legal Service
Respondent:     Not applicable
Amicus Curiae                   :    State Solicitor for Western Australia

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

Re Clements [2008] WADC 76

FENBURY DCJ:

Introduction

This is an appeal from a decision of the Chief Assessor of Criminal Injuries Compensation dated 11 March 2014 in which the assessor refused the appellant's application for compensation brought under the Criminal Injuries Compensation Act 2003 (WA) (the Act).
The appellant's claim arose from the unlawful killing of Brett Kevin Eades, the appellant's father, for which the respondent was convicted on 12 October 2010.
The appellant made the application on 28 August 2013, seeking compensation for mental and nervous shock. In order to succeed, the appellant had to satisfy the chief assessor that he was living with the deceased immediately before the offence was committed (s 35(2)(e) of the Act). The assessor found against the appellant on that issue, having mentioned but, so far as I can see, not decided the issue of the appellant's need for an extension of time to appeal.

The legal aspects

As was put by the Chief Executive Officer as amicus curiae, inter alia:
1.An appeal under the Act is a hearing de novo.
2.This court may confirm, vary or reverse the assessor's decision.
3.The court has a general discretion to receive and admit further evidence, which should be admitted unless there is some reason why it would be unjust to do so.

Extension of time

The appellant's father died of injuries sustained on 11 November 2009. As I have mentioned above, the respondent was convicted of unlawful killing on 12 October 2010. As I have also mentioned above, the appellant made the application for criminal injuries compensation on 28 August 2013 and this is obviously some 3 years, 9 months after the offence.
Section 9 of the Act which limits the time for making a compensation application is in the following terms:
1.A compensation application must be made within three years after the date on which –
(a)the offence to which it relates was committed
..
2.Despite s 35(1), an assessor may allow a compensation application to be made after the three years if he or she thinks it is just to do so and may do so on any conditions that he or she thinks it is just to impose.
As I have stated, the learned assessor was aware of the need for the appellant to obtain an extension of time, but seems to have put it aside whilst she dealt with the question of whether the appellant was living with his father at the time of his father's death.
In my view, a delay of about nine months in making the application is not very long in the circumstances. It is understandable the appellant was psychologically preoccupied and otherwise somewhat inert following his father's sudden death, the more so given how he died and the appellant's young age at the time.
The appellant's claim has merit and, in my view, there would be no prejudice to the respondent should time be extended. It is not asserted that there would be any such prejudice.
I extend the time for making this application to 28 August 2013.

Was the appellant living with his father at the time of death?

The adequacy of the evidence relied on by the appellant to satisfy the chief assessor he was living with his father at the time of death was adversely affected by allegedly inaccurate information prepared and presented by the appellant's solicitor.
In his statement dated 31 July 2013, prepared by the solicitor, the appellant stated:
When I became an adult I still used to live with Dad on and off. One month before he had died I had just moved from his house back to Mt Barker to stay with Mum.
The above paragraph was regarded by the assessor, understandably, as not sufficient to ground a conclusion the appellant was living with his father at the time. Indeed it suggests the appellant was not living with his father.
After the assessor's ruling, the appellant became aware an error had been made in the drafting of the statement. He had not noticed it when he signed it. The appellant made a statutory declaration on 24 January 2014 and strongly suggested his legal advisor had erred.
Thereafter the legal practitioner admitted erring in his drafting of the document in at least two letters that he wrote to the chief assessor. Those statements are relied on as evidence in the appeal.
In my view any doubt about the matter, and I am not casting aspersions on the legal practitioner's declarations, is put to rest by the significance of a prior consistent statement apparently made to the clinical psychologist Stephanie Morrigan and mentioned in her report dated 26 September 2012 as follows:
At the age of 14, Mr Colbung was treated for severe anxiety in hospital at Mt Barker. He dropped out of secondary school in year 10.
Mr Colbung left maternal care about this time to seek out his father. He resided with father in Perth and with father's partner (not the perpetrator) whom he called his stepmother. He states he became very close to his father during this time and stated he was 'like a shadow' with his father. He bears a close physical resemblance to his father. Mr Colbung describes this period as being stable for him, he felt happy that he had some casual employment. Mr Colbung returned to Mt Barker to visit his mother just prior to his father's death. He describes feeling some responsibility for his father's death, stating this would not have happened if he had been with him. (Emphasis added)
Clearly this statement is strongly suggestive that, although Mr Colbung visited his mother, he was living with his father. Clearly, also, this statement suggests that the solicitor's assertion that an error was made in communication in relation to the preparation of Mr Colbung's statement is likely to be true.
In his affidavit sworn 6 February 2015 and submitted and accepted as further evidence in this appeal, the appellant stated at par 15 as follows:
My living situation when my father died
15.I move around a great deal throughout Western Australia, between the homes of family members. As a teenager, I moved between my parents' homes depending on various circumstances.
16.At the time of my father's death, I was living with him, although I also spent time at my mother's house. I split time between my parents' addresses.
17.At the time of my father's death, I was staying with my mother in Mt Barker. I probably split my time about 50/50 between my parents' homes.
18.I had a room in my father's house, where I slept and kept clothes.
19.I had been moving between my parents' homes since I was about 15, and at an age where I could make my own decisions. I know that for a period of time my father was receiving parenting payments for me.
20.When my father was in a relationship with the respondent, Jillian Tesha Smith, I lived with them when they lived together.
21.I considered my father's home to be my home and as such I believed that we were living together. My father and his partner also regard that I lived with them.
My attention has been drawn to various cases which deal with what is required in the notion, for the purposes of the Act, that the appellant must be shown to have been 'living with' his father at the time he died. Particularly I have been referred to Re Clements [2008] WADC 76 and the review therein of various authorities, where the meaning of 'living with' was carefully considered by Macknay DCJ.
In Clements, after discussing the approach of judges in New Zealand authority his Honour said at [95]:
As is said, people, particularly children from an estranged family, can and do have more than one place of abode.
It does not follow however that if a child spends time, even considerable time, with another person, or is a frequent or even regular visitor, that the child is living with that other person.
The term I think connotes the existence of a household of which both the close relative and the victim were members immediately before the offence against the victim, a group to which both of those persons belonged, as opposed to the situation where one or the other was merely a visitor.
The purpose of the provision is, as stated, to provide a limit on those who can claim for injury caused by the psychological effects of observing or learning of injury to a relative.
Given the many forms a household and living arrangements can take, an attempt at a comprehensive definition is neither desirable nor possible.
Rather, the question is usually likely to be one of facts, and hence of degree.
That is especially likely to be the case where the victim is said to have been a member of more than one household.
A consideration of the position over an extended time is relevant where necessary to put in context the significance of one shorter period contained within it.
Thus a relatively short period may establish the close relative was living with the victim when viewed against a pattern of not infrequent episodes of a similar kind, and where there is a likelihood or expectation that such will continue in the future.
Other incidents of an arrangement such as the existence of possessions in the house of the person going to it and the sleeping arrangements are also likely to be relevant.
Without feeling it necessary to regurgitate the legal analysis provided in the helpful submissions, in my view the appellant should be dealt with on the basis that he was living with his father at the time his father died, for the purposes of the Act.
I accept the submissions made on behalf of the appellant by his counsel in that regard. Although the appellant was actually visiting his mother at the time of his father's death, he was relevantly living with his father.
I turn to other legal aspects again, very helpfully analysed and set out in the submissions of the Chief Executive Officer.
I note that the maximum compensation available is $75,000. I realise that this is merely a jurisdictional limit and is not reserved for the worst cases.
I am also aware that I am to apply the ordinary tortious principles for assessment of damages subject to limitations imposed by the definitions of 'injury' and 'loss' in the Act.
As the Chief Executive Officer has pointed out, in order for an applicant to be entitled to compensation it is not necessary for the offences which are the subject of the application for compensation to be the sole cause of the injury. Where the evidence establishes that non‑compensable events had a propensity to cause the applicant injury or loss, and did contribute to the injury or loss, the award of compensation should be reduced to take account of that chance.
Further, if it is not possible to disentangle the consequences of non‑compensable events from the consequences of compensable offences, the applicant is entitled to compensation for the full injury and loss suffered if the applicant has established that the compensable offences did contribute materially to the applicant's injury or loss.
These observations of the Chief Executive Officer have relevance of course because the applicant did suffer from other health difficulties. As the Chief Executive Officer mentions later in the submissions, medical evidence reveals that the prior to his father's death on 26 October 2007 the appellant was admitted to Fremantle Hospital after suffering an anxiety attack and he was noted as having a prior history of anxiety. The extent to which the appellant's pre-existing anxiety has impacted on his injury the subject of the claim is unknown. There is also evidence which shows the appellant had two admissions to hospital in November 2012 for abdominal pain and removal of an ulcer.
I take these matters into account but they do not seem to me to require any significant adverse findings concerning the appellant's entitlement.
Again as it is pointed out in the submissions, compensation is payable where a person has suffered 'injury' in consequence of the commission of an offence, and mental and nervous shock are included. The phrase comprehends 'any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence or offences, or associated with the commission of the offences, as those events impact on the mind or nervous system'.
It must be more than a mere emotional reaction, being something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury. The term includes distress horror disgust and other similar adverse mental reactions but excludes mere fright humiliation or anguish.
As has been seen this case involves the effect upon a vulnerable young man of the violent death of his father.

The medical evidence

The medical evidence relied upon by the appellant principally comes from the opinion of a clinical psychologist named Stephanie Morrigan, who wrote a report dated 26 September 2012 to which reference has already been made.
Given the significance of the report it is appropriate to recite significant portions of it. Having missed his first two scheduled appointments the appellant attended on 12 September and was described as 'quiet in manner and thoughtful in his responses to questions. He was visibly distressed at times when talking of his father's murder'.
By way of background Ms Morrigan writes:
Mr Colbung is 22 years of age. He has recently separated from a three year defacto relationship and two and half year old daughter with his ex‑partner in Perth. He hopes to reconcile. He is unemployed and is currently residing with his mother in Mt Barker.
Mr Colbung was born in Mt Barker. He is the second of four children, his father being Mr Brett Eades. His parents separated when he was about 5 years of age. He describes a volatile relationship with his mother and often feels angry towards her. He states he felt very loved by his father. There was no physical violence between father and children. There was occasional access with father. Mr Colbung states the family moved around a bit for a couple years before returning to Mt Barker where he attended primary school from year 2 to year 7. At the age of 14, Mr Colbung was treated for severe anxiety in hospital at Mt Barker. He dropped out of secondary school in year 10.
Mr Colbung left maternal care about this time to seek out his father. He resided with his father in Perth and with his father's partner (perpetrator) whom he called his stepmother. He states that he became very close to his father during this time and stated he was 'like a shadow' with his father. He bears a close physical resemblance to his father. Mr Colbung described this period as being stable for him, he felt happy and he had some causal employment. Mr Colbung returned to Mt Barker to visit his mother just prior to his father's death. He described feeling some responsibility for his father's death, stating this would not have happened if he had been with him.
Since his father's death he states he is always up and down and emotionally volatile. He finds it difficult to believe his father is dead and expects him 'to walk through the door'. He attended all court proceedings and was very distressed by the traumatic details of his death revealed in court. He feels very angry about the perpetrator and considers she took his life also. He states that since his father's death he has felt very angry and reacted in all his relationships 'for no reason'. He describes having little emotional control on his reactivity. He is withdrawn from his family and constantly thinks negative thoughts and thoughts of father. He has some suicidal ideations. He also mentions father in conversation and is anxious that people may forget him. Mr Colbung describes feeling generally exhausted, has trouble sleeping and often feels tearful. He lacks motivation and has been unemployed since his father's death. He describes tightness in his chest and symptoms of body tingling. He is close to his paternal grandfather and states he can feel close to his father when with him. He fears his death from old age. Mr Colbung has recently separated from his defacto partner and young child and feels sad by not being a steady father. He has some difficulty with drug and alcohol use since his father's death.
Mr Colbung is a young man of 22 years who described profound difficulties with developing an adult life and independence since the murder of his father when he was aged 19 years. He describes limited capacity to emotionally regulate and develop a stable life. He impresses as a young man with an underlying venerable personality who is experiencing complicated grief arising from his father's murder.
Having administered a number of standardised tests Ms Morrigan reached her diagnosis as follows:
Mr Colbung has a complicated grief process characterised with severe anxiety and depression. His symptoms are directly related to his father's murder.
Later in answer to the question described 'how the incident affected enjoyment of life, both immediately following the offence and now', Ms Morrigan wrote:
The murder death of Mr Colbung's father in 2009 has had a significant and ongoing impact on his capacity to enjoy his life and has caused significant disruption to his capacity to develop independent adult status. Mr Colbung experienced a sense of security in his relationship with his father in mid adolescence and his death has destabilised him both emotionally and developmentally.
As to prognosis Ms Morrigan wrote:
The murder death of his father has occurred during transition to adulthood and has prevented Mr Colbung from establishing a steady and purposeful adult life. With adequate psychological and psychiatric treatment and development of more maturity, Mr Colbung may be able to develop a satisfactory life. The prognosis is guarded at this stage given his clear underlying vulnerability.
She comments further:
Mr Colbung is a young aboriginal man in whom the murder of his father has undercut his confidence both in himself and the world he lives in. He fears loss in many ways and wishes to be able to resolve his distress, develop a secure life and be a father to his child.
I accept the medical evidence, such as it is, concerning the psychological effects suffered by the appellant as a result the murder of his father.
For the injury sustained by the appellant as a result of the murder of his father I would assess and award an amount of $17,500.

Future treatment

Within the definition 'loss' in the Act the claim can be made for reasonably required future treatment needed as a direct consequence of the injury. The only evidence on the matter is also contained in Ms Morrigan's report where she says:
Mr Colbung may benefit from a combined approach of psychological therapy and antidepressant medication. I would anticipate the need for 40 to 50 sessions at a cost of $222.00 per session (APS recommended rate).
Mr Colbung may benefit from a medical/psychiatric assessment to assess the benefit of antidepressant medication the cost of medication is approximately $70 per month for a minimum of 12 months.

The appellant makes a claim for future medical expenses and under the Act is entitled to an award of compensation for that future treatment. Having regard to the information provided in Ms Morrigan's report the minimum recommended period of 40 treatment sessions at $222 per session gives a total of $8,880.
Similarly, $70 per month for 12 months' worth of antidepressants medication gives $840 bringing a total of $9,720.
Accepting the suggestion made by the appellant's counsel in par 67 of the submissions, I award $9,720 for future treatments. I order that sum be held until presentation of an invoice or receipt for treatment or medication, such arrangement to end on 27 March 2020.