Curnow v Garnant
[2012] WADC 72
•24 MAY 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: CURNOW -v- GARNANT [2012] WADC 72
CORAM: COMMISSIONER GETHING
HEARD: 27 APRIL & 14 MAY 2012
DELIVERED : 24 MAY 2012
FILE NO/S: APP 86 of 2011
BETWEEN: DARRELL WILLIAM ROBERT CURNOW
Appellant
AND
ROBYN ANNE GARNANT
Respondent
Catchwords:
Criminal injuries compensation - Proven offence - Alleged offence
Legislation:
Criminal Injuries Compensation Act 2003
Result:
Appeal allowed and award adjusted
Representation:
Counsel:
Appellant: In person
Respondent: Mr A Oswald
Amicus Curiae : Ms R Phillips appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant: Not applicable
Respondent: Cleveland & Co Lawyers
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
ALD v NCD [2012] WADC 45
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Bentham v Wass [2004] WADC 47
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Fairhead v Quartermaine [2010] WADC 1
Gullelo v Halloran [2008] WADC 145
Hatfield v Under Secretary for Law (Unreported; WASC (Burt J); Library No 4012; 15 December 1980)
Hogben v Darcy [2009] WADC 63
Hondros, Re [1973] WAR 1
KMA v DFS [2010] WADC 6
Lyle v Soc [2009] WASCA 3
M v J and J v J (Unreported WASC (Scott J); Library No 920598; 19 November 1992)
Malec v JC Hutton Pty Ltd (No 2) [1990] HCA 20; (1990) 169 CLR 638
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
MJN v MAJS (2003) 35 SR 219
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Re Utting [2011] WADC 10
RJE v Bandy (Unreported WASC (Burt J); Library No 1365; 31 May 1974)
RLG v SG [2010] WADC 132
S v Neumann (1995) 14 WAR 452
SW v BB [2010] WADC 86
TAW v NJS [2011] WADC 187
VPAN [2011] WADC 40
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
COMMISSIONER GETHING: This is an appeal from an award of $35,238 in criminal injuries compensation made in favour of the respondent on 22 September 2011 (Award). The award was made by the Chief Assessor of Criminal Injuries Compensation (Assessor). The Assessor did not publish reasons. Of the sum awarded, $738 was ordered to be paid directly to St John Ambulance for services provided to the respondent. The balance of $34,500 has been paid to the respondent.
The Award has two components. The first was an application pursuant to Criminal Injuries Compensation Act 2003 WA (CIC Act) s 12(1) in respect of injuries and losses suffered by her as a consequence of the appellant injuring her:
(a)on 31 December 2008 at Osborne Park for which he was convicted of aggravated assault occasioning bodily harm (First Assault);
(b)on 11 January 2009 at Osborne Park for which he was convicted of aggravated assault occasioning bodily harm (Second Assault);
(c)on 28 February 2009 at Osborne Park for which incident he was convicted of a breach of a violence restraining order; and
(d)on 2 June 2010 at Osborne Park for which incident he was convicted of aggravated unlawful wounding.
The second component was an application pursuant to CIC Act s 16(1)(b) in respect of injuries and losses suffered by the respondent as a consequence of the appellant injuring her on 22 July 2009 at Osborne Park for which incident he was charged with an offence of assault occasioning bodily harm (Alleged Offence). On 11 May 2010 this charge was dismissed for want of prosecution.
The Assessor was satisfied as to the relevant matters as required by CIC Act s 12(3)(a) and s 16(4)(a) and therefore made the Award. The Assessor further directed that pursuant to CIC Act s 45(1)(b), only $29,500 may be the subject of proceedings under CIC Act pt 6. It was agreed at the hearing before me that I should treat the Assessor as having apportioned $5,000 of the Award to the Alleged Offence, consequentially excluding it from being recovered from the appellant pursuant to CIC Act pt 6.
The appellant lodged an appeal notice on 24 November 2011. The ground of appeal stated as '35,000 should be mine cause of her lies'. The appeal was not filed within the 21 day time limit imposed by CIC Act s 55(3). At a directions hearing on 14 February 2012, the registrar extended the time within which the appeal may be brought to 24 November 2011.
At the directions hearing, the registrar also issued notices pursuant to CIC Act s 19(2)(c) and s 56 (2)(a) to Royal Perth Hospital, Graylands Campus and Sir Charles Gardiner Hospital to produce their records in relation to the respondent. Each entity subsequently provided documents to the court, as did the Director of Public Prosecutions.
On 12 March 2012 the respondent filed a notice of respondent's intention in which she indicated an intention to take part in the appeal, but would argue that the decision of the Assessor should be upheld on the grounds relied on by the Assessor.
The essence of the appellant's submissions on the appeal was that the Assessor exceeded the award of damages that was just as the events which led to the proven offences were ultimately caused by the respondent, the injuries which the respondent sustained were exaggerated and because of the respondent's personal disposition, little, if any, compensation ought to be awarded.
After the hearing of the appeal it became apparent that the Assessor's office had only forwarded to the District Court (in response to the standard letter from the registry) one of the four files relating to the Award. I arranged for the Registry to obtain all four files. The parties were given the opportunity to inspect these files and make further submissions. Both the appellant and the respondent filed further submissions.
Principles governing the appeal
In hearing this appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the assessor's decision': CIC Act s 56(1). The court is able to determine the appeal 'solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information': CIC Act s 56(1). It is open to the court to confirm, vary or reverse the Assessor's decision, either in whole or in part: CIC Act s 56(2)(b).
The appeal is a hearing de novo: Gullelo v Halloran [2008] WADC 145 [5]. Notwithstanding CIC Act s 56 (1), it is nonetheless appropriate to have regard to the assessment made by the assessor as a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63 [13]. However, the appellant does not have to demonstrate an error on the part of the assessor in order to succeed: Gullelo [5].
The correct approach to adopt in assessing the amount of compensation under the CIC Act is to apply the ordinary tortuous principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the CIC Act, and to the jurisdictional limit of the CIC Act: M v J and J v J (Unreported WASC (Scott J); Library No 920598; 19 November 1992); RJE v Bandy (Unreported WASC (Burt J); Library No 1365; 31 May 1974), 3; Re Utting [2011] WADC 10 [6].
First Offence – 31 December 2008
The respondent's description of the events of 31 December 2008 is in the materials provided to the Assessor:
This assault occurred the night before New Year's Eve 2008. Darrel punched my face so bad I couldn't see for a week. His nephew was present and witnessed the assault but took Darrel's side and said nothing to the police. After an argument he grabbed me by the throat and used his fist to punch me in the face. Darrel punched my face with such force I couldn't see for a week. He threw me up against the wall and smashed my head where I still have a huge lump, even a year on.
I managed to run then he caught up with me at a lamppost out front of my home where he had me on the ground and continuously kicked and kneed me in the face and forehead till I almost passed out. I made it to the neighbours and called for the police, who were not of much help. I was taken to hospital by ambulance and spent the night there. Darrel was charged over this but managed to get me charged too which cost me, the victim 500 dollars.
The police incident reports reveal that at 2.30 am on 31 December 2008, the police had attended a house in Osborne Park. As a result of this attendance, the respondent (Ms Garnant) was issued with a police order to stay away from the address for 72 hours. At 5.30 am the police were called to the same address by the appellant (Mr Curnow). The respondent and the appellant were in a physical altercation. The respondent was arrested and taken to Sir Charles Gardiner Hospital (SCGH) for assessment.
Arising out of the 5.30 am incident, the respondent lodged a complaint against the appellant which led to the appellant being charged with aggravated assault occasioning bodily harm (First Offence). The statement of material facts for the First Offence provides:
At about 2.30 am on the 31st December 2008, the accused was at … 147 North Beach Drive, Osborne Park in company with the victim.
During the course of the early hours, an altercation took place during which the accused grabbed the victim by her hair and pushed her to the ground. The victim told the accused that she would call the Police at which point he ran away from the address and waited around the corner until he believed Police had attended and left.
The accused returned to the address and some time after, a second altercation has taken place between the accused and the victim. The accused slapped the victim with an open hand and pushed her to the ground. He grabbed her head and hit the back of her head against the ground three times. The accused punched the victim with a closed fist once to the left eye, once to the right eye and once to the mouth.
The victim got up and ran away from the premises. The victim sustained noticeable swelling and bruising to her left eye, right eye and to her mouth. She also lost a small amount of hair.
It is apparent that there are some discrepancies between the police incident reports and the statement of material facts.
On 14 February 2009, the appellant pleaded guilty to the First Offence and was given a 14 month sentence of imprisonment, suspended for a period of 12 months.
The emergency department notes from SCGH on 31 December 2008 record that the respondent initially attended at 5.47 am. She complained of an assault by her partner. The notes of this attendance describe extensive facial bruising and pain to her head. She was discharged on the evening of 31 December 2008.
For the purposes of CIC Act s 12(3)(a), I am satisfied that:
(a)the First Offence was a proven offence;
(b)the respondent suffered extensive facial bruising and pain to her head; and
(c)the injury in (b) occurred as a consequence of the commission of the First Offence.
In transposing the appellant’s general submissions into the context of the CIC Act, I need to consider the application of CIC Act s 39(1) in relation to the First Offence. CIC Act s 39 relevantly provides:
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.
It appears from the materials before me that the charge against the respondent referred to at the end of the quote in par 13 above was for breaching the police restraining order for her to stay away from the Osborne Park property. A breach of a police restraining order constitutes an offence pursuant to Restraining Orders Act 1997 (WA) s 61(2a). I am satisfied that the injury suffered by the respondent was suffered ‘when the person was committing a separate offence’ as that phrase was defined by the Court of Appeal in Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29. It follows that no compensation may be awarded for the First Offence.
Second Offence - 11 January 2009
The incident on 11 January 2009 is described by the respondent in a statement to police dated 14 January 2009. It appears that the respondent was in the same house as the appellant. The respondent describes being punched in the left eye by the appellant, with sufficient force to cause her to fall backwards against a wall. She then immediately left the house.
The statement of material facts provides that:
A verbal altercation took place between the victim and the accused during which the accused hit the victim once to the left eye. The victim collected her handbag and left the address.
The victim sustained noticeable bruising and swelling to her left eye.
The appellant was charged with one count of aggravated assault occasioning bodily harm (Second Offence). On 4 February 2009, he pleaded guilty to the Second Offence and was fined $2,500.
For the purposes of CIC Act s 12(3)(a), I am satisfied that:
(a)the Second Offence was a proven offence;
(b)the appellant suffered bruising and swelling to her left eye; and
(c)the injury in par (b) occurred as a consequence of the commission of a proved offence.
I will deal with the issue of the overall psychological impact at a later point.
Third Offence – 28 February 2009 breach of VRO
The circumstances of the incident on 28 February 2009 are set out in the statement of material facts as follows:
At 7.00 pm on Wednesday the 14th of January 2009, the accused was personally served a Violence Restraining Order, number 2009 00123, the person protected on that order is the complainant in this case.
Part of the terms of that order are that the accused is not to 'enter or remain upon any premises where the person protected lives or works or to be within 200 meters of the nearest external boundary of such a premises.'
At approximately 5.30 pm on Saturday the 28th February 2009, the accused entered 147 North Beach Drive, Osborne Park. The accused entered the premises to move furniture.
On the 3rd of March 2009 the accused attended at the Stirling Police Station where he participated in a video record of interview making admission to the breach. The accused was advised he would be summonsed to appear before the court on the present charge.
Explanation:- 'Robyn would not let the me take my furniture if I didn't help her get her lounge'.
On 10 March 2009 the appellant was charged with one count of breaching a violence restraining order in circumstances of aggravation (Third Offence). On 16 April 2009 the appellant pleaded guilty to the Third Offence and was fined $500.
The Third Offence was a proven offence within CIC Act s 12(3)(a). However, the appellant did not sustain any physical injuries as a result of the Third Offence. I will deal with the issue of the overall psychological impact at a later point.
Fourth Offence - 2 June 2010
The fourth incident occurred on the respondent's 50th birthday. The circumstances of this incident are set out in the statement of material facts, as follows:
At about 11.00 pm on the 2nd of June 2010 the accused, the complainant and another male where (sic) at home celebrating the complainant's 50th birthday. The accused consumed a large quantity of alcohol and at about 10.30 pm all the occupants of the house went to bed.
The accused and complainant argued for about 10 minutes in the bedroom. The accused left the bedroom and returned a short while later with a kitchen knife, he grabbed the complainant by the hair and pulled her from the bed. The complainant fell on her back onto the floor and the accused stood over her and struck at her with the knife several times. During the attack the accused said to the complainant 'I'm not going to kill you, I'm just going to make you suffer and make sure you're in a wheel chair' and 'If I only maim you I won't get life, I'll only get 5 to 7 years and when I get out you will still be in a wheel chair'.
The complainant managed to use a mirror to protect herself from the attack and get away from the accused running to a room where they rang the police.
The accused left the area, eventually handing himself into police on the 4th of June 2010.
The complainant received a stab wound to her stomach, a large laceration to her right arm, a smaller laceration on her left hand and several other smaller defensive wounds to her arms and hands. She was conveyed to Royal Perth Hospital where she underwent surgery for her wounds.
As a consequence of the assault, the respondent was conveyed to Royal Perth Hospital (RPH) by ambulance and admitted. She had surgery on her right forearm and left palm. The respondent spent four days in hospital and had 40 stitches, for which she has consequential scars. The records of RPH provide that the respondent sustained the following injuries:
(a)penetrating stab wound to the right upper quadrant of the abdomen, about 5 cm to 7 cm across, with the comment 'does not appear to be deep penetration';
(b)penetrating stab wound to the right forearm, approximately 3 cm to 5 cm long, involving the muscle of the arm;
(c)stab wound to the right hand; and
(d)a 3 cm stab wound to the left palm; and
(e)muscular injury to her right fingers.
The appellant was charged with one count of unlawful wounding with intent to maim or disfigure. The State accepted a plea of guilty to aggravated unlawful wounding (while in a family and domestic relationship). On 17 February 2011 pleaded guilty to this offence and was sentenced to two years imprisonment.
For the purposes of CIC Act s 12(3)(a), I am satisfied that:
(a)the Fourth Assault was a proven offence;
(b)the respondent sustained the injuries described in the RPH records;
(c)the injuries in (b) were as consequence of the Fourth Assault.
I will deal with the issue of the overall psychological impact at a later point.
Alleged offence - 22 July 2009
The appellant was charged with an offence of common assault relating to events which occurred on 22 July 2009 (Alleged Offence). The circumstances of this event are set out in the statement of material facts, as follows:
At about 2.40 am on Wednesday the 22nd of July 2009 the accused was at 147 North Beach Drive, Osborne Park, this is the victims premises.
The accused was having a verbal altercation with the victim which escalated over a period of time in the main bedroom of the residence. The accused became physically aggressive towards the victim and as the victim attempted to leave the bedroom she was restrained by the accused in the hallway of the residence.
The accused grabbed the hair of the victim with his left hand and with his right clenched fist hit the victim four times to the forehead causing swelling and bruising.
The victim then went to the main bedroom of the residence locked the door and called Police.
The accused then kicked the door on five continuous occasions causing a visible hole in the door. The accused was alerted to Police being called to the residence and left before their arrival.
The accused was arrested nearby and given his rights and agreed to participate in an electronic record of interview at Mirrabooka Police Station where no admissions were made. Protective bail conditions were put in place to protect the victim and the present charge preferred.
The victim did not speak or require any medical attention for her injuries.
On 11 May 2010, the prosecutor sought to discontinue the charge and it was dismissed for want of prosecution pursuant to Criminal Procedure Act WA 2005 (WA) s 25. The transcript from this hearing records the following reasons given by the prosecutor:
Although there's a prima facie case. As a result of a prior inconsistent statement there’s no reasonable prospect of conviction and secondly, it’s not in the public interest to continue, having regard to the impact of giving evidence on the complainant’s physical and emotional welfare.
The prior inconsistent statement appears to be a letter dated 2 August 2009 written by the respondent in which she retracted her complaint and said that the injuries were sustained when she fell and hit her head on the end of the bed. There is further material on the Assessor's file to the effect that the respondent wrote this letter under duress by the appellant.
I am satisfied on the materials before me that the respondent sustained bruising and swelling to her face, caused by being punched in the face by the appellant in this incident.
The award of compensation in relation to an Alleged Offence which is not determined is governed by CIC Act s 16. For the purposes of CIC Act s 16, I am satisfied that:
(a)the charge was dismissed (s 16(1)(b));
(b)the appellant has not otherwise been charged with the Alleged Offence or tried for it (s 16(1)(f));
(c)CIC Act s 15 does not apply (s 16(1)(g)); and
(d)the respondent has suffered injury and loss as a consequence of the commission of the Alleged Offence (s 16(4)).
I will deal with the issue of the overall psychological impact at a later point.
Appellant's submissions
The appellant's submissions are drawn from four sources: his written submissions to the Assessor, his written submission in a letter to the 'presiding Judge', received 13 March 2012, his oral submissions at the hearing of the appeal and his written submissions in a second letter to the 'presiding judge' received 21 May 2012.
There were three themes to the appellant's submissions. The first was that the events which lead to the proven offences were ultimately caused by the respondent. The appellant said that the First Offence occurred while the appellant had a violence restraining order (VRO) against the respondent. After the conviction, the respondent obtained a VRO against the appellant. The appellant stated that the respondent lied to a 'female judge' about owning a house (which the appellant says was rented by him) and its contents (which the appellant says were owned by him). The result was that the appellant says he was 'kicked out' of his own house.
He then states that on 17 November 2009, due to the respondent's lies he was taken into custody and held on remand for six months. At the end of that time the charges were dropped (being the Alleged Offence) which he says led to the Fourth Offence (June 2010).
The second theme was that the injuries which the respondent sustained were exaggerated. In relation to the First Offence, the appellant submitted that all the respondent sustained was 'soft tissue bruising that was grossly exacerbated by her alcoholism'. The Fourth Offence resulted in 'a small laceration to the stomach, a large laceration to the arm and a stab to the hand all of which have no lasting effects at all'.
The third theme is a series of comments about the respondent's personal disposition which would suggest that little, if any, compensation ought to be awarded. In summary terms, the appellant stated:
(a)the respondent has made many attempts at suicide;
(b)she has had several previous relationships that were violent;
(c)her previous boyfriend 'did 18mth goal [sic] because of her';
(d)members of her family have restraining orders against her 'due to her drunken violent behaviour';
(e)the respondent has cost the appellant 'tens of thousands of dollars as well as [his] credit rating';
(f)she assaulted him on two occasions;
(g)the respondent never worked during or before any of the assaults;
(h)she was frequently the instigator of domestic violence;
(i)she has been charged with fraud before and is committing fraud in relation to her application for criminal injuries compensation; and
(j)although there are claims for assaults, the respondent has visited the appellant in jail and has written to him.
Respondent's submissions
In the materials given to the Assessor, the respondent describes the appellant as being 'a narcissistic sadistic person who was extremely controlling and demanding of me throughout our relationship'. She continues that 'as a result of this relationship I have lost 10 housemates, several friends, my job as a carer for the disabled, and I now have ongoing issues with my family'. She said that the respondent 'violated me mentally, physically and sexually over the period of the relationship'. She summarised the respondent's behaviour as follows:
Darrel is usually intoxicated when he attacks me; he strangles me with his bare hands, and even suffocates me with pillows. On many occasions he has dragged me from room to room by hair which he has torn out many times. Also, he punches me in the face and forehead which has resulted in many hematomas' and has hog tied me and bashed me in front of witnesses including my daughter. As a result I have become a recluse in my own home suffering depression, anxiety and I constantly fear for my life. I can hardly get out of bed these days since the last assault. I have no social life and always feel sad, lonely and miserable which generally isn't my persona.
She goes on to state:
There are more offences, but I think you have heard enough. Now Darrel has cost me big time in court fees and fines, loss of self esteem, loss of property, social life, quality of life, loss of income, legal fees, loss of car, medical bills, medication costs, counselling costs and psychiatrist bill. He also cost me mobile phone bills, transport and damage to my house which I have had to replace. In addition I have lost lifestyle gym membership, costs for 2 ambulance bills, and loss of liberty.
My financial expenses are in the thousands because of him. I would ask for a fair settlement from the court to compensate for all the grief he has forced me to endure so I can move on with my life. I will stay well away from him as I have a current AVO. I may need surgery in the future for the repair to my cheek and lip that are now disfigured. I'm a broken woman and so are my beautiful children due to the actions of this horrible violent man.
The materials given to the Assessor contain the following information as to the specific impact of the assaults on the respondent:
(a)she no longer feels safe in her own house;
(b)she feels she needs to move to protect herself and her family;
(c)she has impaired vision;
(d)she has loss of movement in her right arm, impacting her ability to do housework; and
(e)she feels fearful
Maximum award allowable
As the offences occurred after 23 September 2003, the maximum amount of compensation payable for a single offence is $75,000: CIC Act s 31(1).
In the present case, the appellant's injuries are said to be as a consequence of four proven offences and the Alleged Offence, each occurring on different dates. I am satisfied that they comprise multiple unrelated offences by an offender. The maximum compensation payable is thus $150,000: CIC Act s 34.
The maximum in CIC Act s 31 (1) is a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463; TAW v NJS [2011] WADC 187 [21].
Psychological injuries and impact
In addition to the impact of the physical injuries, the respondent claims that she has suffered post traumatic stress disorder and anxiety as a result of the assaults the subject of the application. In a letter dated 29 November 2010, the respondent's doctor certified that she was then suffering from post traumatic stress disorder (PTSD) related to her assaults between December 2008 and June 2010. In addition, the respondent was then suffering from nocturnal numbness in the affected hand (right), blurred vision and anxiety. She was then on anti‑depressants.
The term 'injury' in CIC Act s 12 and s 16 is relevantly defined in CIC Act s 3 to include 'mental and nervous shock'. This phrase contemplates the impact of the offence on the mind or nervous system: Hatfield v Under Secretary for Law (Unreported; WASC (Burt J); Library No 4012; 15 December 1980) 5; KMA v DFS [2010] WADC 6 [24]. It refers to 'mental or emotional harm as opposed to physical injury or bodily harm': Neumann, 461. It must be of an enduring character so as to amount to an injury, as opposed to a mere emotional reaction: Neumann, 461; KMA [24]. For example, mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress and disgust are seen as compensable: M v J and J v J, KMA [24].
From the information before me, it appears that the respondent's PTSD and anxiety has four causes:
(a)the Second Offence, the Fourth Offence and the Alleged Offence (compensable causes);
(b)the First Offence (for which no compensation may be awarded pursuant to CIC Act s 39);
(c)other instances of domestic violence (emotional and physical) against the respondent by the appellant set out in the police incident reports; and
(d)other instances of domestic violence by people other than the appellant.
It is also apparent that the respondent has other mental health issues which are reflected in the documented suicide attempts, and has issues with alcoholism.
The onus is on the respondent to prove that her psychological injuries are 'as a consequence of' the assaults the subject of the application: CIC Act s 12 (1), s 16 (2); TAW [85]. The words 'as a consequence of' require a causal relationship or connection: Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673. Whether that causal relationship exists is 'essentially a question of fact, to be resolved as a matter of common sense': Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 ‑ 413; Fagan, 673; RLG v SG [2010] WADC 132 [12]; ALD v NCD [2012] WADC 45 [47]. It is sufficient that, as a matter of ordinary common sense and experience, the assaults should be regarded as having 'materially contributed' to the harm, in the sense that the contribution was not negligible: Bonnington Castings Ltd v Wardlaw [1956] AC 613, 620; March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515, 522; Lyle v Soc [2009] WASCA 3 [40]; ALD [47].
'The fact that other unconnected events may also have had some relationship to the occurrence is not material if the criminal act was a cause, even if not the sole cause': Fagan, 673; Fairhead v Quartermaine [2010] WADC 1 [16]; VPAN [2011] WADC 40 [83]; ALD [49]. Where there are non‑compensable co‑existing causes and the evidence establishes they did contribute to the injury or loss, the award of compensation should be reduced to take account of that chance: Malec v JC Hutton Pty Ltd (No 2) [1990] HCA 20; (1990) 169 CLR 638; MJN v MAJS (2003) 35 SR 219 [50]; TAW [84]. On the other hand, if it is not possible to disentangle the consequences of those non‑compensable co‑existing causes from the consequence of compensable causes, the appellant is entitled to compensation for the full injury and loss suffered provided it is established that the proven offence contributed materially to her injury or loss: Bonnington Castings, 620; Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, 160; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, 168; MJN [47] ‑ [52]; TAW [84].
In the present case, I am satisfied that the Second Offence, Fourth Offence and the Alleged Offence materially contributed to, and thus caused, the respondent's PTSD and anxiety. These injuries thus occurred 'as a consequence of' the claimed assaults. In particular, the nature of the assault the subject of the Fourth Offence would have caused the respondent to fear for her life, or at least that she would suffer injuries which would have permanent consequences. The respondent's doctor also reported that she has difficulty viewing the photographs of herself in a bruised condition suggesting that this is a specific trigger of the PTSD.
I am not satisfied that the Third Offence, the breach of the violence restraining order, materially contributed to the respondent's PTSD and anxiety. The appellant appears to have been assisting the respondent move some furniture at the time when the breach occurred. I am therefore not satisfied within CIC Act s 12(3)(a) that any of the claimed injury and loss occurred as a result of the commission of the Third Offence.
I am not able to disentangle the respondent's current psychological symptoms as between the compensable and non‑compensable causes. She is thus entitled to full compensation for her PTSD and anxiety.
Assessment
The general power of the assessor is contained in CIC Act 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'.
In relation to proven offences, the scheme of the CIC Act is that the assessor starts from the basis of the proven offences, and then proceeds to determine causation and assess compensation. The CIC Act does not contemplate that the assessment process involves a re‑litigation of the facts which led to the proven offence: Hondros, Re [1973] WAR 1, 3; Bentham v Wass [2004] WADC 47 [5]. It follows that the appeal process also does not involve a re‑litigation of the facts which led to the proven offence. It also follows that the assessor, and the court on appeal, must accept the facts on which the proven offences were based, typically (but not necessarily) set out in the statement of material facts. In the present case, the appellant appeared to accept the facts on which the proven offences were based, but sought to provide the context in which the offences occurred.
The three themes which I have identified in the appellant's submissions cause me to consider CIC Act s 41, which is in the following terms:
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.
In SW v BB [2010] WADC 86, Schoombee DCJ reviewed the legislative history of CIC Act s 41. Her Honour observed [97] ‑ [98]:
Section 41, as it now reads, was first introduced in very similar terms as s 27 in the Criminal Injuries Compensation Act 1982. The 1982 Act was a new Act which replaced the Criminal Injuries (Compensation) Act 1970. The 1982 Act included the words 'behaviour, condition, attitude or disposition' of the applicant, whereas the 1970 Act had only referred to the 'behaviour' of the applicant in a similar section.
In the second reading speech of the Bill preceding the 1982 Act the Minister said the following about cl 27:
'Clause 27 allows the assessor to apportion responsibility between the victim and the assailant and to reduce the amount of compensation which otherwise he might have awarded by the extent to which the victim himself contributed to his injuries or loss.'
Schoombee DCJ held that the words 'condition' and 'disposition' 'do not refer to a pre-existing physical or mental illness or disability, but only to a condition or disposition which was relevant to the commission of the offence and therefore contributed to the injury of the victim' [101]. I respectfully agree with her Honour's analysis.
I note her Honour went on to consider the authorities on causation which I have dealt with above. Those authorities provide a framework for a court to deal with a situation in which the injuries the subject of the CIC Act claim have multiple causes, including pre‑existing physical or mental illnesses or disabilities. This in turn supports an interpretation of CIC Act s 41 limiting it to a condition or disposition (as well as a behaviour or attitude) which was relevant to the commission of the offence.
It is apparent from the information before me that there was a significant history of domestic violence in the relationship between the appellant and the respondent aside from the five incidents the subject of the present appeal. The police incident report for a call out on 5 July 2009 (at 2.12 am) recorded the fact that there has been 17 previous domestic violence related incidents involving police call out between them to that date.
It also appears that from time to time it is the respondent who is the aggressor. A police incident report for an incident on 1 July 2009 includes the comment that 'it appears from the reports that [the respondent] is often the aggressor when Police attend the Domestic Incidents and often fuelled by Alcohol'. In a number of the incident reports she is described as abusive and under the influence of alcohol, whereas the appellant was described as being calm, compliant and cooperative. It is also apparent that the appellant had obtained violence restraining orders against the respondent, who had on occasion breached them.
It is also apparent that even when the appellant was under protective bail conditions not to contact the respondent, he did so, apparently with her consent (judging from the frequency of the contact and the absence of complaint). Then again, there is also evidence suggesting duress by the appellant against the respondent to get her to withdraw a complaint to the police.
On balance, I am not satisfied 'any behaviour, condition, attitude, or disposition' of the respondent 'contributed, directly or indirectly' to her injuries. Although the Second Offence, the Fourth Offence and the Alleged Offence, occurred in the context of a complex and unfortunate relationship, one in which the respondent was on occasion the aggressor of the domestic violence, there is no excuse for the level of violence inflicted by the appellant on the respondent.
Turing to the appropriate assessment, the respondent provides some information as to her expenses. Aside from the invoice from St John's Ambulance Service, it is difficult to ascertain the level of financial losses sustained by the respondent. She has claimed losses for clothing damaged in the Fourth Assault. She has noted losses for property damage, though it is difficult to tie these losses to one of the claimed assaults. She has not provided specific details of future medical expenses, though some professional assistance for her PTSD seems appropriate.
The severity of the assaults, the level of scarring and the ongoing PSTD and anxiety are all factors suggesting that a nominal award is not appropriate.
Given that no compensation is payable in relation to the First Offence and the Third Offence, in my view the award of $35,238 is excessive and ought to be set aside. An appropriate award is $25,738. This award is made in relation to the Second Offence, the Fourth Offence and the Alleged Offence. Of this $738 is to be paid to St John Ambulance Australia and the balance to the respondent. I also order that, pursuant to CIC Act s 45(1)(b), only $20,000 may be the subject of proceedings under CIC Act pt 6.
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