Curran v Champion - [2012] WADC 9

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: KALGOORLIE

CITATION: CURRAN -v- CHAMPION [2012] WADC 9

CORAM: STAUDE DCJ

HEARD: 24 NOVEMBER 2011

DELIVERED : 30 JANUARY 2012

FILE NO/S: KAL APP 1 of 2011

MATTER :IN THE MATTER OF Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER OF an Appeal by

BETWEEN: NATHAN JOHN CURRAN
Appellant
AND
ANDREW DAVID CHAMPION
Respondent

Catchwords:

Appeal - Criminal injuries compensation - Criminal Injuries Compensation Act 2003 s 12(1), s 39, s 41(b)(ii), s 45(1), s 50, s 55(1), s 56 - Whether victim committing an offence at the time of injury - Whether victim's behaviour contributed to injury - Degree of contribution - Whether award should be limited to compensation for injuries for which offender is criminally responsible - Meaning of 'in consequence of a proved offence' - Whether appeal lies from an order pursuant to s 45(1) as to part of award that may be subject to pt 6 proceedings - Assessment of compensation for injury and loss - Assessment of loss of earning capacity where evidence deficient

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Appeal dismissed. Award of compensation confirmed

Representation:

Counsel:

Appellant:     Ms C A McKenzie
Respondent:     Mr E J Myers
Amicus Curiae              :     Ms J Hook appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant:     McKenzie and McKenzie
Respondent:     Simon Walters
Amicus Curiae              :     State Solicitor for Western Australia

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Lergesner v Carroll [1991] 1 Qd R 206
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
R v Raabe [1985] 1 Qd R 115
Re: Carter (1984) 4 SR (WA) 219
Re: Her Honour Judge Schoombee; Ex parte Attorney General for Western Australia [2011] WASC 23
Re: Richardson [2009] WADC 93
S v Neumann (1995) 14 WAR 452
Sideris v Censori [1983] WAR 17
SW v BB [2010] WADC 86
Tidmarsh v The Assessor for Criminal Injuries Compensation [2011] WADC 173

STAUDE DCJ:

Introduction

This is an appeal from a decision of an assessor made on 15 February 2011 whereby the respondent was awarded compensation in the sum of $44,000 pursuant to s 30 of the Criminal Injuries Compensation Act 2003 (the Act) for injuries and losses suffered as a result of an assault committed upon him by the appellant on 15 September 2007 at Kalgoorlie (the assault).
On 17 November 2008 the appellant pleaded guilty to and was convicted of assault occasioning bodily harm and fined $6,000. The respondent's right to claim compensation arose from s 12(1) of the Act which provides that a person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss suffered.
Although no written reasons for decision were given, it is apparent from the notice of the award given to the parties that the learned assessor assessed compensation in excess of the statutory maximum of $75,000. The maximum sum was reduced by one‑third to $50,000 pursuant to s 41(b)(ii) of the Act on account of a finding of a contribution by the respondent to his own injuries. This sum was further reduced by $6,000 to take account of the respondent's receipt of the proceeds of the fine imposed on the appellant which was ordered to be paid to the respondent pursuant to s 56 of the Sentencing Act 1995.
The learned assessor further ordered, pursuant to s 45(1), that only a part of the award, namely, $15,000, may be the subject of proceedings under pt 6 of the Act. Part 6 provides for reimbursement by an offender to the State of compensation paid to a victim.

The appeal

The appellant's right to appeal is afforded by s 55(1) of the Act:
An interested person may appeal to the District Court against an Assessor's decision –
(a)to make or to refuse to make a compensation award;
(b)as to the amount of a compensation award.
An 'interested person' is defined by s 3 of the Act so as to include 'a person who an assessor thinks may become liable under Part 6 to pay an amount to the State'. The appellant, therefore, has a right to appeal even though he has not been ordered to pay restitution.
Section 56 of the Act provides:
(1)On an appeal under section 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the Assessor or may receive further evidence and information.
(2)On an appeal under section 55 the District Court may do any or all of the following –
(a)exercise any power of an assessor under this Act, other than a power under section 19(1)(b), 24(1) or 25;
(b)confirm, vary or reverse the assessor's decision, either in whole or in part;
(c)make any order that an assessor could make under this Act;
(d)order an unsuccessful party to the appeal to pay a successful party's costs as set by the court in accordance with the scale of costs prescribed by the regulations;
(e)refer a question of law that arises in the appeal to the Court of Appeal for determination;
(f)make any necessary consequential order.
An appeal under the Act is therefore a hearing de novo. Accordingly, the appellant does not need to demonstrate error on the part of the assessor in order to succeed. In this case no further evidence or information is sought to be relied upon than the evidence and information in the possession of the assessor which I take to be the original application and supporting documentation and the prosecution brief.
The parties accept that the issues raised by the appeal can properly be determined upon the statement of material facts read to the sentencing judge and the witness statements contained in the prosecution brief. The court has the power conferred on an assessor pursuant to s 18(2) of the Act to inform itself in any manner it sees fit, as well as the power conferred by s 29(1) to have regard to any factors or circumstances that it thinks are relevant. Except to contend that the appellant challenged the respondent to a fight first, and to dispute that the respondent threw the first punch, the respondent did not take issue with the statement of material facts.
The notice of appeal pleads four grounds which may be summarised in terms of the following propositions:
1.The respondent is not entitled to a compensation award by operation of s 39(1) of the Act which provides that the assessor must not make a compensation award in favour of a person injured as a consequence of the commission of an offence if the injury was suffered when the person was committing a separate offence.
2.A reduction of one‑third for contributory behaviour on the part of the respondent is inadequate.
3.The compensation award should be limited to compensation for any bodily harm caused by the assault of which the appellant was convicted, and should not compensate the respondent for his subsequent head injury for which the appellant was not criminally responsible.
4.The order made pursuant to s 45(1), limiting the amount of a compensation reimbursement order to $15,000, did not take into account the sum of $6,000 paid by the appellant by way of fine, which fine was ordered to be paid to the respondent.

The facts

At the sentencing hearing in this court at Kalgoorlie on 17 November 2008 the State discontinued an indictment charging the appellant with unlawful grievous bodily harm pursuant to s 292 of the Criminal Code and presented a new indictment alleging assault occasioning bodily harm pursuant to s 317(1). The appellant pleaded guilty and a conviction was recorded. The statement of material facts read by the prosecutor was as follows:
At about 2.35 am on Saturday, September 15, 2007 the offender was standing at the front of licensed premises located in Boulder Road, Kalgoorlie. The complainant had been refused entry and approached the offender who had been standing nearby, purposefully bumping into him. A verbal argument ensued, prior to both the complainant and the offender challenging each other to a fight.
The complainant walked onto the roadway and was approached by the offender. The complainant stood in a boxing stance with both clenched fists raised before he attempted to strike the offender to the face with a clenched fist. The offender blocked this punch, immediately striking the complainant twice to the face with his right clenched fist in quick succession. The complainant fell to the ground without trying to break his fall and then struck his head on the bitumen road surface.
The offender walked from the scene as onlookers provided assistance to the complainant. As a result of injuries received from striking his head on the concrete the complainant became unconscious and was subsequently [air-]lifted to Royal Perth Hospital with life-threatening head injuries.
These facts were admitted on behalf of the appellant. In his police statement the respondent said that he had no recollection of the incident due to loss of memory. The available evidence may be summarised by reference to the statements contained in the prosecution brief as follows.
Jesse Ratallack was a friend of the appellant and had been drinking with him that night from about 8.00 pm. He admitted that he was quite drunk by the time the incident occurred. He was with the appellant outside the main entrance to Paddy's Ale House when he saw an Aboriginal person being removed by two bouncers. He said he seemed angry after being removed and began walking through the people who were standing outside the entrance. He stated:
Male 1 walked up to Nathan and purposely bumped into him with his shoulder as though he was trying to get past. (20)
Nathan wasn't blocking the path of or any access to the pub and there was no reason for him to barge through Nathan. (21)
Male 1 said 'Get out of my way you prick'. (22)
Nathan said, 'What, do you want a go mate?' (23)
Male 1 said, 'Come out onto the road if you want a shot'. (24)
After that exchange he saw the two men walk on to the road and face each other at arm's length. He said that the respondent took a boxing stance with his fists up. The appellant had his fists clenched by his side. The respondent swung his right fist towards the appellant's head. The appellant blocked the punch and then punched the respondent twice to the side of the head, causing him to fall to his right and land so that he was partly on the traffic island and partly on the roadway. (It may be observed that the statement of material facts reflects this version of events.)
Jason Emile Fagerstrom was a crowd controller employed at Paddy's Ale House. At about 1.00 am on 15 September 2007 he was asked by the bar manager to remove the respondent from the premises. The respondent later tried to get back into the bar, but was denied entry because he was intoxicated. Mr Fagerstrom did not observe the altercation between the parties.
Carl George Goss was also a crowd controller employed at Paddy's. He spoke to the respondent between 2.15 and 2.30 am and observed him to be affected by alcohol. He refused him entry to the bar. He later saw the respondent lying on the roadway, but he did not see the altercation.
Lorraine Helen Anne Lavery was working as a crowd controller at the Palace Hotel across the street from the Exchange Hotel where Paddy's Ale House is located. Her observations were as follows:
I saw an aboriginal male standing in the southbound lanes of Boulder Road just in front of Paddy's Bar.
I saw two Caucasian males walk across Boulder Road from the northbound lanes.
One was wearing a black shirt, jeans and a dark-coloured cap.
He was about 170 cm in height, average build and I think he had blondish hair.
The second guy was wearing jeans, a shirt, I'm not sure what colour and a cap that I think was light in colour.
He was about 160 cm in height and also of average build.
As the white males crossed the road and walked past the Aboriginal male I saw the guy with the black shirt hit the aboriginal male. He hit him with his right hand and it connected with the aboriginal male's head. The aboriginal male hit the ground as soon as the punch connected with his head.
Kris Phillip Ross Murray was also employed as a crowd controller. He was working at the Wild West Bar which is part of the Exchange Hotel. At one point he saw the respondent lying on the ground on the road in front of Paddy's Ale House. He recognised the respondent as the person he had seen earlier that evening trying to get into Paddy's.
A number of persons, all of whom were at Paddy's Ale House that night, at least some of whom were associated with the respondent, made statements.
Clinton Troy Dimer was talking with another person when he looked out of the window and saw a person step off the kerb holding 'his hands out to his side [sic]'. Another man walked towards him and punched him twice in the face with his right hand causing him to fall and strike the back of his head on the kerb.
Kellie Anne Richards said she happened to look out the window and saw the respondent walking across Boulder Road towards the Palace Hotel with two males following him. She said the respondent's hands were by his side. One of the males swung his arms twice at the respondent's head. She did not see the blows connect, but saw the respondent crumple to the ground and hit his head on the kerb.
Cissy Sarah Irenea Wolgar spoke to the respondent at about 2.00 am. She described him as being drunk, in a happy mood, and not aggressive or angry. She later looked out a window and saw him walking from Paddy's Ale House across the road. She saw two males walking from the corner of the Palace Hotel. As the respondent passed the two men at the island one of them turned and he walked towards him punching him in the right face. She said that the respondent started to fall. His hands were up.
Lisa Sherie Champion, the respondent's sister, was involved in an argument with him at about 2.00 am. She said he left Paddy's when he was told by the bouncers to do so because he was too drunk. She saw him standing out the front for a while and she then saw him and others walking onto the road. She turned away. When she looked back she saw him lying unconscious on the ground on the road next to the kerb of the island.
Charmaine Gladys Rose Champion, a cousin of the respondent, looked out the window of Paddy's to see two men start fighting. She did not pay much attention to them and could not recognise or describe them. Later she saw a man lying on the ground on his back near the island whom she eventually recognised as the respondent.
No other persons from whom the police obtained statements saw the assault.
After the incident the appellant left the scene for fear of injury to himself by others, but he contacted the police and later attended the Kalgoorlie Police Station. On the telephone he told an officer that he had had a fight and hit a person, but that the other person hit him first: see statement of Nicole Louise Simon.
Constable Daniel O'Connor spoke with the appellant at the lock‑up. The conversation was recorded, but was not a formal interview. He stated:
9.He told me words to the effect of 'I was standing outside of Paddy's and I saw this Aboriginal guy arguing with the bouncers'.
10.He said, 'The Aboriginal guy came past me and dropped his shoulder into me on the way past'.
11.He said, 'I said to him was there any reason for that cunt?'
12.He said, 'The Aboriginal guy came back and started coming towards me, I started towards him'.
13.He said, 'We got close and I hit him. He had a few mates around'.
14.I don't recall him explaining why he hit the Aboriginal guy.
15.He said, 'I hit him twice and he fell over, but I saw his eyes were wide open when he was on the ground and I knew he was in trouble'.
Although the appellant’s admissions are not wholly consistent with the statement of material facts, it appears from the other evidence that the two men, who appear not to have known each other, had a verbal exchange and then went onto the roadway in anticipation of a physical altercation of some kind. On the evidence contained in the prosecution brief, it is clear that both men were significantly affected by alcohol, the appellant less so than the respondent. The medical records indicated that the respondent's blood alcohol level was 0.28%: see statement of Dr Mark Lam (5 March 2008).
As it was described in the statement of material facts, the incident was instigated by the conduct of the respondent. However, the respondent was not charged with assault or any other offence. Moreover, the respondent was not privy to the formulation of the statement of material facts which, one might assume from the discontinuance of the indictment charging grievous bodily harm and the substitution of a charge of assault occasioning bodily harm, was the subject of some negotiation in the lead‑up to a trial of the original charge. The material facts are based on the account given by the appellant's companion Ratallack and are somewhat more favourable to him than his admissions to Constable O'Connor.
The learned sentencing judge accepted that the head injuries sustained by the respondent when he fell were not anticipated by the appellant. It was indisputable that those injuries amounted to grievous bodily harm, so the substitution of a charge of assault occasioning bodily harm for grievous bodily harm necessarily involved a concession on the part of the State that it could not prove that the appellant intended or foresaw the event by which the head injury was caused, or that such event was reasonably foreseeable.
In other words, it was accepted that the event caused by the act of punching the respondent, namely, the striking of the respondent's head on the road surface, occurred by accident. Accordingly, the appellant was not criminally responsible for that event by reason of the operation of s 23 of the Criminal Code as it was at that time.
Assault occasioning bodily harm is a lesser offence than grievous bodily harm. While no bodily harm other than the consequential head injury was alleged, it is clear from what occurred at the sentencing hearing that no criminal responsibility was established on the appellant's part for the respondent's head injuries.
In the context of this appeal the conviction of the appellant of assault occasioning bodily harm is problematic. Clearly, on the facts, the appellant and the respondent, having challenged each other to a fight and having moved onto the roadway, evinced mutual consent to the infliction of force by one upon the other. The respondent threw the first blow. The appellant blocked it and then punched the respondent twice to the head. On these facts the basis upon which the appellant pleaded guilty is not immediately apparent.
An assault is defined by s 222 of the Criminal Code as follows:
A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.
Section 223 provides:
An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.
The application of force by one person to the person of another may be unlawful, although it is done with the consent of that other person.

The term 'consent' is not defined in the Criminal Code for the purposes of assault. The issue of whether consent is a defence to a charge of assault occasioning bodily harm has been considered in two leading Queensland cases, R v Raabe [1985] 1 Qd R 115 and Lergesner v Carroll [1991] 1 Qd R 206.
In Raabe, Connolly J held (Thomas J not deciding and Derrington J not agreeing) (119):
In my judgment s 245 [WA s 222] is not to be read in isolation but in association with the rest of the Criminal Code and in particular with ss 246 and 339 [WA s 223 and s 317] and with regard to the state of the law when the Code was enacted. So guided, the conclusion to which I have come is that the consent which may be given for the purposes of s 245 is to force which is not intended to and does not cause bodily harm as defined by the Code. This construction of s 245 would bring the law into line with the current law of England. It is the preferable view from a social point of view, as discouraging violence. The accepted legality of properly conducted games and sports can be justified, in the absence of legislative provision because there is nothing to deny the effect of the consent of the participants.
In Lergesner v Carroll Shepherdson J held (212):
Raabe does not decide that consent is a not a defence to a charge of assault occasioning bodily harm pursuant to s 339 [WA s 317] of the Criminal Code. I think the true view is that in some cases of assault occasioning bodily harm the prosecution will, on the evidence, have to negative consent beyond reasonable doubt, i.e. prove that the assault was unlawful, s 246 [WA s 223]. Each case must be looked at in the light of its own facts. I favour the view that in the case of assault occasioning bodily harm where consent to the assault is in issue and there is evidence capable of amounting to such consent the tribunal of fact in deciding whether the prosecution has proved beyond reasonable doubt that the assault was unlawful must decide whether the degree of violence to the person assaulted exceeded that to which consent was given. This view generally accords with the views of Derrington J in Raabe. The definition of bodily harm in s 1 of the Criminal Code is such that it would encompass a black eye or a bloodied nose received in, say, a fist fight. To say that consent is no defence to a charge under s 339 [WA s 317] when the injury is, say, a black eye or a bloodied nose cannot be correct.
Section 1(1) of the WA Code defines bodily harm as meaning 'any bodily injury which interferes with health or comfort'.
The material facts do not support a defence of self defence because the fight was consensual. It follows, then, that as the appellant pleaded guilty to assault occasioning bodily harm, he must be taken to have admitted implicitly that the degree of violence he applied to the respondent exceeded that to which consent was given, such that consent was no defence.
It cannot be inferred what bodily harm was occasioned by the assault as the medical evidence does not describe any injuries apart from those caused by the respondent’s head hitting the ground.

Ground 1 – commission of offence by the victim (s 39)

Section 39 of the Act relevantly provides:
(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.
As no reasons have been provided by the assessor the court does not know on what basis the issue raised with respect to the operation of s 39(1) was resolved at first instance. It is apparent, however, from the assessor's correspondence with the parties' solicitors that the issue arose for consideration. Submissions were received from the parties' solicitors.
The basis upon which the appellant pleaded guilty to the charge of assault occasioning bodily harm is material to the question of whether the respondent can be found to have been committing an offence at the time he was injured for the purposes of s 39(1).
The appellant points to three separate acts of the respondent as amounting to the commission of an offence for the purposes of s 39 of the Act.
The first is his bumping into the appellant at the front of the hotel which is said to amount to an assault contrary to s 317 of the Criminal Code.
The second is the respondent's verbal exchange with the appellant and his voluntary participation in a fight with the appellant which are said to amount to offences against either s 71 or s 74A of the Criminal Code. Section 71 provides:
A person who in, or in view of, a public place takes part in a fight with another person in circumstances that are likely to cause fear to any person is guilty of a crime …
Section 74A of the Code provides:
(1)In this section –
'behave in a disorderly manner' includes –
(a)to use insulting, offensive or threatening language; and
(b)to behave in an insulting, offensive or threatening manner.
(2)A person who behaves in a disorderly manner –
(a)in a public place or in the sight or hearing of any person who is in a public place; or
(b)in a police station or lockup,
is guilty of an offence …
The third act is the attempted striking of the appellant by the respondent immediately prior to the assault.
In dealing with these contentions I am mindful that the civil standard applies to the proof of an offence for the purpose of claiming compensation under the Act where no conviction has been entered: Re Carter (1984) 4 SR (WA) 219. It follows in my opinion that the same standard applies to the proof of an offence by the victim for the purpose of s 39(1). Furthermore, in my opinion, the gravity of the imputation of a criminal offence against a victim of crime and, in this case, the significance of its consequences, warrant the application of the principles enunciated in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, [2], following Briginshaw v Briginshaw (1938) 60 CLR 336, 362.
In this court there has emerged a conflict in the approach to be taken to the construction of s 39(1), in particular, with respect to the word 'when' in s 39(1)(b). This conflict may be resolved by a decision of the Court of Appeal in a matter yet to be heard. In Re Her Honour Judge Schoombee; Ex parte Attorney General for Western Australia [2011] WASC 23 Corboy J made an order to show cause with respect to an application for certiorari to issue to quash her Honour's decision in SW v BB [2010] WADC 86. The application for certiorari arose from a decision on an appeal from the Chief Assessor of Criminal Injuries Compensation not to award compensation to the applicant who had been the victim of offences of sexual violence for the reason that at the time of the commission of the offences the applicant (and the offender) had been smoking amphetamines, thereby committing an offence contrary to the Misuse of Drugs Act 1981.
At first instance, the chief assessor had applied a decision by Yeats DCJ in Re: Richardson [2009] WADC 93 in which her Honour held that s 39(1) did not require such a causal relationship to be shown, merely a temporal one.
On the appeal the learned judge held that s 39(1)(b) should be construed so as require a causal relationship between the offence for which compensation was claimed and the offence committed by the victim. This was necessary in order to avoid unreasonable and irrational outcomes. Her Honour found no causal relationship between the victim's illicit amphetamine consumption and the offences committed against her.
The resolution of ground 1 of the appeal does not, in my view, require a resolution of the conflict in statutory interpretation to which I have referred and can be otherwise determined.
With respect to the bumping of the appellant, no temporal relationship can be shown between that act and the injury. The respondent did bump the appellant, but there was a separation in time and place between that incident and the assault. The bumping incident precipitated a conversation, as recounted by Ratallack, which resulted in the two men moving onto the roadway intending to having a fight. If the respondent did commit an assault by bumping the appellant, which I would be hesitant to find due to his highly intoxicated state, he was not committing that offence when he was later assaulted.
With respect to the respondent's engaging in a fight with the appellant, the facts do not support the conclusion that at the time he was injured the respondent was committing an offence against either s 71 or s 74A.
With respect to s 71, one can conclude from the facts that the respondent took part in a fight with another person in a public place, but the facts do not disclose circumstances that would have rendered it likely that the fight would cause fear to any person. That is an element of the offence. Accordingly, I am not satisfied that an offence contrary to s 71 was being committed when the respondent was injured.
With respect to s 74A, the respondent may be seen as having behaved in a disorderly manner when he bumped into the appellant outside the Exchange Hotel, but I am not satisfied that the bumping was contemporaneous with the injury.
As to the respondent's use of the words recounted by Ratallack, I am satisfied that whether the witness has recalled them accurately or not, language was used by the respondent that was insulting, offensive or threatening for the purposes of s 74A(1). However, as I have concluded with respect to the respondent's bumping of the appellant, any such disorderly conduct on the part of the respondent preceded and was not contemporaneous with the injury. The appellant and the respondent both moved to the roadway and faced each other at arm's length. By that time each had accepted the other's challenge to a fight and had given tacit consent to being assaulted. I am unable to conclude that at the time of the assault the respondent was committing the offence of disorderly behaviour in public by using insulting, offensive or threatening language or behaving in such manner.
The third act said to be an offence by the respondent was his throwing the first punch. This punch, which the appellant blocked, would have been an assault, but for the appellant's tacit consent to a fight. By going out onto the road following the exchange of words recounted by Ratallack, the appellant manifested his tacit consent to the respondent striking or attempting to strike him. In the circumstances, the respondent's punch could not reasonably be characterised as an assault on the authority of Lergesner v Carroll. The appellant's punches might also be viewed in the same way, but for the admission, implicit in his plea of guilty, that the degree of violence they involved exceeded that to which consent was given.
In the result, therefore, I find that the respondent was not committing an offence when the injury for which he claimed compensation was suffered.

Ground 2- contribution by the victim (s 41)

Section 41 of the Act provides:
In deciding whether or not to make a compensation award, or the amount of the 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.
This provision differs significantly from s 39 in that it confers a discretion on an assessor to refuse to make an award or to reduce the amount which the assessor would otherwise have awarded on account of any contribution which the victim is found to have made to the injury.
The terms of s 41 are broad. The provision compels consideration of any blameworthiness on the part of the victim which may have causally contributed, directly or indirectly, to the injury. The words 'behaviour, condition, attitude or disposition' describe a wide spectrum of potentially causative circumstances.
Whether the victim contributed to his injuries is a question of fact. My findings are that prior to the assault the respondent was inebriated to the point of being disorderly, such that he was asked to leave Paddy's Ale House. Outside on the footpath the respondent's conduct in bumping the appellant gave rise to a heated exchange which resulted in the two agreeing to a fist fight and moving onto the roadway for this purpose. I accept that not all of the witnesses recall what occurred in this way, but the consensus of the evidence is that the altercation occurred on the roadway, such that the respondent, when he fell, was near the island in the middle of Boulder Road.
With respect to intoxication, the evidence suggests that the respondent was more intoxicated than the appellant. The intoxication of each contributed to the incident which precipitated the fight. On the evidence the respondent's conduct in bumping the appellant was provocative, but not so provocative that it made a physical altercation inevitable. There were other people about, and there were crowd controllers nearby. Each of the two men had the opportunity to back off and walk away. Neither did so. Having tacitly agreed to a fight, the respondent did, I find, throw the first punch, but by that stage the appellant expected that that is what would occur. He was, by reason of being less inebriated, able to block the blow and deliver the two punches to the head which constituted the assault, and which resulted in the respondent's severe injuries.
Once it is accepted that both men agreed to fight and that the respondent's head injury was accidental in terms of criminal responsibility, the respective degrees of contribution are only differentiated by the acknowledged criminality of the act of the appellant which resulted in the respondent's injury. It stands to reason therefore that the respondent's contribution was less than equal.
In my opinion the respondent's contribution was not such as would justify a refusal to make an award, but it does call for a substantial reduction of the award. While the court is bound to exercise its discretion afresh, I consider that a contribution of one‑third reasonably reflects the assessment I have made of the relative contributions of the parties to the injuries suffered.

Ground 3 – extent of the injury referable to the offence

The appellant's contention is that the respondent is not entitled to compensation for his head injuries for the reason that the appellant bears no criminal responsibility for them. In this case any bodily harm the respondent suffered as a result of the punches of the appellant, as distinct from the injuries suffered by reason of his head striking the ground, is unknown.
Section 12(1) provides a right to claim compensation to 'a person who suffers injury as a consequence of a proved offence'.
In Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 it was held that the words 'by or as a result of' included consequential injury. In that case a child suffered nervous shock as a consequence of learning of his mother's murder. Mason and Wilson JJ held (673):
All that is required is a causal relationship; both the word 'by' and the phrase 'as a result of' indicate a causal connection. Whether that relationship exists or not it is primarily a question of fact. 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. The only requirement is that the injury is caused 'by or as a result of' a criminal act.
Murphy J agreed. Brennan J held that the Act in question, being the Criminal Injuries Compensation Act 1972 (VIC), contained no expression limiting the consequences of a criminal act or omission which would be taken into account in awarding compensation, and that the Act ought not be construed as imposing a more stringent limit upon those consequences than the limit which governs the liability of a negligent tortfeasor.
Fagan was followed in S v Neumann (1995) 14 WAR 452 and Sideris v Censori [1983] WAR 17. The expressions 'by or as a result of' and 'as a consequence of' are synonymous.
I do not accept the proposition that compensation under the Act is limited to compensation for the injuries for which the appellant is criminally responsible. It runs contrary to those authorities. The Act in my opinion, having regard to the decision in Fagan, enables the respondent to be compensated for consequential injuries caused by the appellant's assault, notwithstanding that the appellant may not be criminally responsible for the full extent of such injuries.
On the available evidence it is established that the appellant's blows caused the respondent to fall to the ground and strike his head. The causal connection between the assault and the head injury is clear.

Ground 4

The appellant's proposition is that the order of the assessor that his liability to reimburse the State pursuant to pt 6 of the Act be limited to $15,000 is wrong because it fails to take into account the sum of $6,000 paid by the appellant to the respondent by way of the fine imposed on the appellant by the sentencing judge and because it would render the appellant liable to reimburse more than could reasonably be attributed to any injuries caused by the assault.
The order was made under s 45 which provides:
(1)When or after making a compensation award in respect of an application made under section 12, an Assessor who thinks it is just to do so may make –
(a)an order barring proceedings under Part 6 in respect of the award; or
(b)an order that only a part of the award (specified in the order) may be the subject of proceedings under Part 6.
(2)At any time, on an application by the CEO, an Assessor may cancel an order made under subsection (1).
It seems to me that this aspect of the appeal is incompetent for two reasons. First, this ground of the appeal is not with respect to the assessor's decision to make or refuse to make a compensation award or as to the amount of a compensation award and is therefore not open pursuant to s 55(1). Second, no appeal from a s 45 order is available.
An appeal on this basis was dismissed by Bowden DCJ for want of jurisdiction in Tidmarsh v The Assessor for Criminal Injuries Compensation [2011] WADC 173 [6]. I respectfully agree with his Honour that s 55(1) does not permit an appeal from an order pursuant to s 45. Part 6 provides a procedure whereby the CEO, if a compensation reimbursement order is sought, must apply to an assessor. A compensation reimbursement order may be enforced as a judgment. A right to appeal from such an order is created by s 55(2). No compensation reimbursement order has been made in this matter.
This ground of appeal raises a number of important questions.
The first is whether the payment of $6,000 by the appellant by way of fine should reduce the appellant's liability in the event of a compensation reimbursement order being made. On one view, to credit the offender with the payment of a fine where that fine has been paid to the victim would negate the penal aspect of the fine. It would lead to anomalous consequences where a fine was imposed without there being any order made that it be paid to the victim, or where a different sentence is imposed for an offence which causes injury.
Another question is whether the s 45 order fixing an amount of $15,000 was properly made in circumstances where the compensable head injuries were not injuries for which the appellant was criminally responsible. In this case the medical evidence did not identify any injuries amounting to mere bodily harm, as opposed to grievous bodily harm. It is not clear on what basis the sum of $15,000 was determined.

Yet another question is whether the fine ought to be taken into account in reduction of an order for compensation pursuant to s 42 of the Act which, by s 42(2), requires an assessor to deduct from the compensation award any amount that the victim may be entitled to receive under a contract of insurance, and by s 42(3) any amount received by way of compensation or damages, or under a contract of insurance. The Act does not provide expressly for the reduction of a compensation award by the amount of a fine paid to the victim. Section 42 is complementary to s 21 which empowers an assessor to require a victim to enforce other remedies for compensation, damages or insurance. The question, then, is whether the amount of a fine made payable to the victim is an amount received by way of compensation.
These questions will not fall for decision unless a compensation reimbursement order is made from which the appellant appeals.

Assessment

Although the appeal does not challenge the assessment of the learned assessor, this court is required in the event of an appeal to determine the application afresh.
I am bound therefore to consider the evidence of the respondent's injuries and losses which were found at first instance to warrant compensation in excess of the statutory maximum of $75,000. Compensation is assessable in accordance with common law principles and the statutory maximum is a jurisdictional limit not the upper end of a scale: S v Neumann (1995) 14 WAR 452, 463.
Whilst it may be appropriate to have regard to the assessor's decision as that of a specialist tribunal, in this case there are no published reasons to inform the initial assessment.
The respondent was born on 20 November 1984 and was therefore aged 22 at the date of the assault. He is described in his application for compensation as a process sampler. In his statement in support of the application dated 2 August 2010 the respondent said that prior to being interviewed he was a confident, fit and healthy young man. Following his injuries he was taken to Kalgoorlie hospital from where he was transferred to Royal Perth Hospital. He was in a coma for a week. He was discharged from Royal Perth on 11 October 2007 having undergone surgery to remove part of his skull. He underwent surgery again on 17 March 2008 at Sir Charles Gairdner Hospital to replace the bone previously excised. He spent eight days in hospital on that occasion. Subsequently he was prescribed medication. His main residual symptom was headache. He said:
For the past three years I have not been able to work and [am] still not able to work, which has cause[d] me and my partner a huge amount of stress financially.
Before my accident I [had] always provided for myself, my partner and my two daughters financially. Now we are getting a lot of help from our family and friends, which makes me feel depressed.
During the last three years I have not been able to play any sports at all, cannot play out in the backyard too long with my daughters, joke around with family and friends too much, go motorbike riding. My head even hurts when I laugh or cough too much.
This really upsets me and makes me feel really angry with myself.
The respondent also deposed to poor memory, loss of enjoyment of playing football and a reduced social life due to headaches.
A report from Royal Perth Hospital dated 14 May 2009 states that upon admission to Royal Perth Hospital on 15 September 2007 the respondent was intubated and ventilated. A CT scan confirmed a left‑sided subdural haematoma, a haemorrhage within the Sylvian fissure and contusion in the left temporal lobe. A left frontoparietal craniectomy was performed and the respondent was admitted to the intensive care unit before being transferred to Shenton Park campus for rehabilitation on 28 September 2007. He was discharged on 12 October 2007.
On 12 June 2008 neuropsychological testing revealed some weakness in verbal memory. Occasional headaches were treated with Panadeine Forte. Examination revealed no neurological deficits. At that time it was thought that he should be able to return to work in a graded manner. He was referred to the State Head Injury Unit for follow‑up and a vocational training programme.
In the meantime, according to information from Sir Charles Gairdner Hospital, the respondent underwent a cranioplasty on 17 March 2008 at which time he reported that he had experienced recurrent headaches since the assault.
A report from Dr Juliette Frost dated 12 December 2008 indicates that she first saw the respondent in October 2007 when he reported problems with balance, memory, irritability and headaches. When seen in early 2008 he was experiencing bad headaches most afternoons with irritability, poor concentration, some memory impairment and some balance problems, as well as symptoms of depression as a result of his inability to work.
From February 2009 when the respondent moved to Perth he attended the Mosman Park Medical Group. According to a report dated 29 October 2009 he had attended on seven occasions up to that date and seen four different general practitioners. When seen on 29 August 2008 he complained of ongoing frequent headaches and requested Panadeine Forte for pain relief. He was also treated for secondary depression. On 11 February and 12 October 2009 the respondent was certified unfit for work for Centrelink purposes. At the date of the report he was under review by rehabilitation specialists at Shenton Park. He was also awaiting psychiatric review at Avro Clinic.
The author of the report, Dr Jasmine Bell, indicated that she was not able to say for how long the respondent's work capacity would be affected by his injuries. At the date of the report she considered him unfit for work, but was unable to assess any residual disability. The respondent's most recent consultation had been on 12 October 2009.
There is no evidence of any medical consultations for any injury‑related condition after that date. The respondent's statement of 2 August 2010 does, however, indicate that he was continuing to have headaches at that time for which he took medication. His statement also deposes to significant restrictions in terms of physical exertion and with respect to family and recreational activities.
There appears to have been no expert evidence of any ongoing loss of earning capacity available at the date of the assessment, although I note that Dr Bell did predict in October 2009 that the respondent may have to avoid driving or operating heavy machinery as a result of the effects of medication and that he would have to avoid activities which may put him at risk of a further head injury.
There is no evidence of any need for ongoing treatment apart from medication to relieve headaches.
It seems clear from the evidence that the plaintiff required emergency medical treatment for a life‑threatening head injury and that from the date of the assault until late 2009 was considered to be unfit for work. He was profoundly disabled from the date of his release from Royal Perth Hospital in October 2007 until some time after his discharge from Sir Charles Gairdner Hospital in March 2008 following his cranioplasty. There is no evidence of residual neurological deficits or of any permanent cognitive disability, but the respondent reports some ongoing memory problems. Given that it is so well known to judges dealing with personal injury claims as to be a notorious fact that head injuries generally take about two years to settle, it is remarkable that the application for compensation was not supported by a report of a rehabilitation physician dealing with any residual symptoms, disabilities and needs, as one would expect in a claim for such a serious injury.
Doing the best I can on the information available, in my opinion it would be reasonable to assess compensation for the injury itself, being non‑pecuniary loss, at $60,000. In doing so I take into account the serious effects of the initial injury which warranted emergency surgical treatment, a substantial period of hospitalisation, rehabilitation and specialist follow‑up, high personal dependency upon discharge, significant neurological problems for some months following discharge as well as painful headaches, secondary depression and memory problems, further surgery some months later to replace cranial bone and substantial loss of enjoyment of life at a young age, with a likelihood of ongoing problems, albeit of somewhat imprecise nature and degree. I assume also that there are some residual cosmetic changes due to scarring from two operations, although the only evidence is photographs taken of the respondent in hospital.
The respondent is also entitled to compensation for loss which is relevantly defined by s 6(2) to mean actual expenses incurred with respect to treatment or in obtaining any report from a health professional, any expenses likely to be reasonably incurred as a direct consequence of the injury and any loss of earnings.
There appear to have been no medical expenses incurred as the respondent was treated as a public patient. Reports obtained for the claim cost $605.
The application for compensation claimed loss of earning capacity but did not particularise the claim.
It does seem clear on the medical evidence, however, that the respondent was unfit for work for at least two years following the assault and was likely to be restricted in his ability to work in the event that he needed to take significant medication.
The application was supported by various documents, including two taxation returns for 2007 and 2008. The 2007 return indicated that he had been employed as an apprentice for a period of time in that financial year and earned a gross income of $2,009 and Centrelink benefits of $8,987. The 2008 return indicated earned income, presumably up to the date of the assault, of $934 and Centrelink benefits of $8,446. His employer prior to the date of injury was Actlabs Pacific Pty Ltd. Surprisingly, no letter was obtained from that company to prove what the respondent did, for how long he worked, what his wage rate was, or what his prospects were. According to a Centrelink payment summary for 2008 the respondent received a Newstart allowance from 2 August 2007 to 30 June 2008.
In my view the issue of loss of earnings and loss of earning capacity are not susceptible to any precise assessment. It is not known how much the respondent was capable of earning on a weekly basis in any paid employment and his application is conspicuously deficient in this regard. The only evidence of income from gainful employment are the references in his 2007 tax return to earning $2009 and in the 2008 return to earning $905. There is reference in one of the medical reports to the respondent stating that he had worked for 1 1/2 months on a mine site.
It is reasonable, in my opinion, to conclude from all the evidence that the respondent suffered a significant loss of opportunity to work at all for at least two years by reason of his serious head injuries, and that by reason of ongoing memory problems and headache symptoms the respondent would be compromised in terms of his competitiveness for jobs for which he might be suited and inability to maintain employment. On the most conservative assessment of actual loss of earnings and loss of earning capacity, which this must necessarily be due to the paucity of evidence in support of the claim, the respondent’s loss in my view would not be less than $25,000. It may well be greater, but the evidence does not allow for a more informed assessment and it would be inappropriate to speculate.
In the circumstances, my assessment of the respondent's injury and loss exceeds the statutory maximum of $75,000, comprising $60,000 for non‑pecuniary loss and not less than $25,000 for loss of earning capacity.

Conclusion

On my findings in relation to contribution I would reduce the award by one‑third and leave undisturbed the assessor's deduction of $6,000 for compensation received by way of the offender's fine. Accordingly, the net award made at first instance in the amount of $44,000 is confirmed. The appeal is therefore dismissed.

Costs

The appeal having been unsuccessful, I consider that the respondent is entitled to costs pursuant to s 56(2)(d) to be assessed in accordance with the scale prescribed by the Criminal Injuries Compensation Regulations 2003. There should be no costs order with respect to the appearance of the chief executive officer as amicus curiae.