DELAVERIS
[2010] WADC 146
•30 SEPTEMBER 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: DELAVERIS [2010] WADC 146
CORAM: GROVES DCJ
HEARD: 30 AUGUST 2010
DELIVERED : 30 SEPTEMBER 2010
FILE NO/S: APP 25 of 2010
MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND IN THE MATTER of an appeal by
BETWEEN: MADE KEMUDESARI DELAVERIS
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram :L V DEMPSEY
File No :CI 964 of 2009
Catchwords:
Criminal injuries compensation - Appeal from assessor's award - Application to extend time to appeal - Admission of additional evidence - Appropriate amount of compensation - Past loss of earnings - Future loss of earnings capacity
Legislation:
Nil
Result:
Assessor's award not disturbed
Representation:
Counsel:
Appellant: Mr T Offer
Amicus Curiae : Ms K Pope appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant: Stephen Browne Lawyers
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
A v D (1994) 11 WAR 481
ASJES v Assessor of Criminal Injuries Compensation, unreported; DCt of WA ; 23 September 1994
B v B (2004) WASC 6
B v W (1989) 6 SR (WA) 79
CLH v PJW [2007] WADC 157
Crumby v Kuru (1995) 13 SR (WA) 331
Delaveris [2010] WACIC 22
Dos Santos v Dos Santos [2000] WADC 256
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Garton v McCormack [2002[ WADC 111
Gullelo v Halloran [2008] WADC 145
Hatfield v Under Secretary for Law, unreported; SCt of WA; Library No 4012; 15 December 1980
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
K v P (1992) 8 SR (WA) 256
LMC v RJO (2002) WADC 147
M v J and J v J, unreported; SCt of WA; Library No 920598; 19 November 1992
Malec v JC Hutton Pty Ltd [1990] HCA 20
Medlin v State Government Insurance Commission [1995] HCA 5
MJN v MAJS (2003) 35 SR (WA) 219
Nguyen v Assessor of Criminal Injuries Compensation [2000] WADC 221
R v Forsythe (1972) 2 NSWLR 951
Re Tilbury [2010] WADC 46
RJE v Bandy, unreported SCt of WA; Library No 1365; 31 May 1974
S v Newmann (1995) 14 WAR 452
GROVES DCJ: On 19 February 2010 the Assessor of Criminal Injuries Compensation awarded compensation in the amount of $36,002.75 to the appellant for injuries and losses she suffered as a result of an incident at West Perth on 14 November 2003 ("the incident"). The compensation awarded included an amount of $27,500 for injuries and a further $5,000 for past loss of earnings. The balance of the award was made up of non disputed travel expenses, medical report fees and medical expenses.
On 15 March 2010 the appellant lodged a notice of appeal on the grounds that she was "… dissatisfied with the decision of the Assessor because the award of compensation in respect of the appellants injuries was below the range of a sound award of compensation". The notice of appeal was filed out of time and the appellant makes application to extend time to appeal.
As part of the appeal the appellant seeks to place before the court additional evidence by way of medical reports.
Nature of the appeal
The appeal is brought under the provision of the Criminal Injuries Compensation Act 2003 and, specifically, the provision of Pt V11 of that Act dealing with appeals and referrals. Section 56(1) of that Act provides:
"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."
The hearing of the appeal is by way of a hearing de novo: Gullelo v Halloran [2008] WADC 145 at [5].
The court may confirm, vary or reverse the Assessor's decision either in whole or in part: Section 56(2)(b) of the Act.
It is open to the court upon hearing an appeal to increase or decrease the award of compensation even if no cross appeal is filed: Dos Santos v Dos Santos [2000] WADC 256; Nguyen v Assessor of Criminal Injuries Compensation [2000] WADC 221.
Notwithstanding that the application is to be determined "without being fettered by the Assessor's decision", it is nevertheless appropriate to have regard to the assessment made by the learned Assessor as a specialist tribunal in the field of criminal injuries compensation; Crumby v Kuru (1995) 13 SR (WA) 331 at 333; Hogben v Darcy [2009] WADC 63 at [13].
The court has a general discretion to receive and admit further evidence: Section 56(1) of the Act. Further evidence should be admitted unless there is some reason why it would be unjust to do so: Re Tilbury [2010] WADC 46 at [3]; Hinchcliffe v Hinchcliffe [2010] WADC 78 at [9].
Application to extend time to appeal
Section 55(3) of the Act provides that an appeal must be commenced within 21 days after the date of the decision. If it is just to do so, the court may grant leave to commence an appeal after the expiry of that period: Section 55(3) of the Act.
The last day for commencing this appeal was Friday 12 March 2010. The notice of appeal was filed on 15 March 2010.
The reason for the appeal being filed out of time is set forth in an affidavit of the appellant's solicitor sworn 17 May 2010. The solicitor calculated the 21st day from the date of the compensation award to be Saturday 13 March 2010 "… and, as such, I was of the belief that the last date to lodge the appeal was Monday 15 March 2010". In fact the 21 day from the date of the award was Friday 12 March 2010. Thus the reason for the appeal being lodged late was entirely due to the solicitor's miscalculation of the time period within which the appellant could appeal.
In the circumstances I am satisfied that the appellant should not be prejudiced in pursuing her appeal by reason of a simple miscalculation. Accordingly leave will be granted to allow the appeal to proceed.
Application for compensation lodged out of time
A compensation application must be made within three years after the date on which the offence to which it relates was committed. However, 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: Section 9(1)(a) and s 9(2) of the Act. The incident giving rise to the appellants claim occurred on 14 November 2003. The last day for lodging a compensation application was 14 November 2006. The application was lodged on 6 August 2009.
The Assessor allowed the appellant's compensation application to be made out of time: Delaveris [2010] WACIC 22 at [6].
Given that an appeal is a hearing de novo, the court is required to consider again whether an application should be permitted because the time limit for making the application has expired: Hinchcliffe (supra) at [24].
The application was made nearly three years out of time. In explanation, the appellant informed that she first sought legal advice in August 2005. At that time she had been dealing with her solicitors for over a year about an accident involving a public liability claim when she suffered a fall in a supermarket on 20 March 2004. In that accident the appellant claimed to have hurt her shoulder and also to have aggravated the psychological trauma she claimed to have suffered arising from the incident. According to the appellant her solicitors advised her it would be best to finalise the public liability claim before making the compensation application. Further, she stated that in the 18 months period after the incident she was not in an emotional state to be able to deal with making a claim. She also explained that the information required to be compiled by the solicitors, particularly obtaining income tax information, took some time to arrange. She stated that at no time did her solicitors tell her there was a three year limitation period on making a compensation application.
Clearly there was the possibility of overlap of the public liability claim on the compensation claim. That was acknowledged by the Assessor in that the final determination of the compensation claim was delayed pending an outcome of the public liability claim: Delaveris (supra) [32].
The public liability claim was finalised by way of a consent judgment dated 18 January 2010 whereby it was adjudged that the appellant receive the sum of $20,000 plus cost in settlement of that claim. Upon receiving that advice the Assessor proceeded then to deal with the compensation application and accepted the appellant's explanation as to the delay in allowing the application to be made out of time.
I am satisfied that the justice of the case demands that the compensation application be allowed albeit that it was made out time. Although the length of delay is substantial the reason for the delay is understandable having regard to all the circumstances and no prejudice was likely to be suffered by any parties involved in the compensation application. The incident and the wrongdoers' subsequent plea of guilty always meant that an application for compensation had prospects of success. I concur with the Assessors conclusion that the appellant's compensation application should be allowed albeit that it was lodged out of time.
Admission of additional evidence on appeal pursuant to s 56(1) of the Act
The court has discretion to admit or receive additional evidence or information.
The further evidence which the appellant puts before the court are two further psychiatric reports prepared subsequent to the Assessor's decision, the appellant's tax returns for the 2009 and 2010 financial years as well as documentation evidencing the cost of obtaining the latest psychiatric reports.
The nature of the discretion was analysed by Commissioner Staude in Gullelo v Halloran (supra) at [7] – [13]. The Commissioner concluded as follows:
"In my opinion, although it is reasonable to construe s 56(1) as conferring a discretion, the nature of the scheme created by the Act, as I have described it, supports the view that the reception of further evidence and information of a relevant nature should not be restricted."
In recent years there has been a difference in approaches taken by various District Court Judges hearing similar appeals. The different approaches were outlined and analysed by Bowden DCJ in CLH v PJW [2007] WADC 157. Whilst acknowledging that the particular circumstances of each case will determine the discretion to admit or refuse additional evidence, his Honour adopted what he described as "the wider view" as the preferable view. For the reasons there expressed, I concur with that conclusion.
In my opinion therefore it is appropriate to receive the additional evidence, which will enable the court to determine if just compensation has been allowed for the injury and loss.
Jurisdictional limit
Pursuant to s 31(1) of the Act the maximum amount of compensation for a single offence between 1 July 1991 and 31 December 2003 is $50,000. The incident occurred on 14 November 2003.
Assessment of compensation – general principles
The maximum compensation payable under the Act is merely a jurisdictional limit and it is not reserved for the worst cases: S v Newmann (1995) 14 WAR 452 at 463.
The correct approach to adopt in fixing the appropriate amount of compensation is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of "injury" and "loss" in the Act and subject also to the jurisdictional limit imposed by the Act: M v J and J v J, unreported; SCt of WA; (Scott J); Library No 920598; 19 November 1992; RJE v Bandy, unreported SCt of WA; (Burt CJ); Library No 1365; 31 May 1974 at 3.
In assessing the amount of compensation which should be awarded the court must have regard solely to the injury suffered by an applicant in consequence of the commission of the offence. The amount is not to be fixed as punishment of the offender or as an expression of sympathy for the victim: B v W (1989) 6 SR (WA) 79 at 89; R v Forsythe (1972) 2 NSWLR 951 at 953.
A comparison of other awards of compensation or damages for personal injury has long been disavowed by the courts as providing an effective means of quantifying damages because of the inability of appeal courts and tribunals to know that they are comparing like with like: ASJES v Assessor of Criminal Injuries Compensation, unreported; DCt of WA (Commissioner Nisbet); 23 September 1994 at 7 – 8.
In order for an applicant to be entitled to compensation it is not necessary for the offences which are the subject of the application to be the sole cause of the injury: Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666 at 673; S v Newmann (supra) at 463 – 464.
However, it does not follow that where non-compensable events contributed to the injury, or had a propensity to do so, the applicant is entitled to compensation for the full injury: MJN v MAJS (2003) 35 SR (WA) 219 at [47] – [52]; LMC v RJO (2002) WADC 147 at [20] – [23]; see also K v P (1992) 8 SR (WA) 256 at 261; B v B (2004) WASC 6 at [33] – [34].
Compensation is payable where a person has suffered injury in consequence of the commission of an offence. "Injury" includes bodily harm and mental or nervous shock. Compensation is also payable for any loss which includes expenses actually and reasonable incurred that arise directly from the injury suffered or arise in obtaining any report from a health professional or counsellor in relation to the injuries suffered as well as expenses that are likely to be reasonably incurred by the victim for treatment that is likely to be needed as a direct consequence of the injury.
The phrase "mental or nervous shock" comprehends any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence or associated with the commission of the offence as those events impact on the mind or nervous system: Hatfield v Under Secretary for Law, unreported; SCt of WA; (Burt CJ); Library No 4012; 15 December 1980. Severe emotional reaction is not compensable but something of a more enduring character which may in both the legal sense and common parlance be described as an injury is required: S v Newmann at 463. The term "mental or nervous shock" includes distress, horror, disgust and other similar adverse mental reactions but excludes mere fright, humiliation or anguish: M v J and J v J (supra).
Compensation for mental or nervous shock can only be awarded for what is commonly described as "impact damage" as opposed to damage arising from subsequent events even though those subsequent events may be related to the offence such as court proceedings. In assessing compensation for mental or nervous shock it is necessary to make a distinction between this direct impact damage which is compensable and further damage which may be suffered by subsequent events including the reaction of the victims friends and family, adverse public reaction, court proceedings and the release of the offender. These matters are not compensable: Garton v McCormack [2002] WADC 111 at 15.
The incident and relevant findings
On 14 November 2003 the appellant was assaulted by her daughter's boyfriend ("the offender"), also the father of the appellant's then two month old granddaughter. The offender was subsequently convicted of assaulting the appellant occasioning her bodily harm ("the offence") in the Court of Petty Session at Perth 27 July 2004.
The circumstances of the incident are detailed at [7] – [8] of the Assessor's reasons. No challenge was made as to those findings and I simply adopt, without repeating, those findings. In [10] – [29] of the Assessor's reasons for decision, the Assessor has undertaken a comprehensive analysis of the information pertaining to the appellant's injuries. Again no issue is taken as to those findings and again I adopt, without repeating, those findings.
At [37] the Assessor concluded:
"On the basis of the reports provided, I was satisfied that the applicant suffered a fractured nasal bone; injury to her left wrist; lacerations to her forehead, the bridge of her nose and left wrist; a painful right neck; and deep abrasion to her left knee. I am also satisfied that the applicant suffered residual scarring to her forehead and pigmentation on her right knee from those injuries. Further, I am satisfied that the applicant's ongoing nasal difficulties, which ultimately required her to undergo the pain and discomfort of a septorhinoplasty, are compensable."
Again those findings are not challenged. The appellant recovered from the physical injuries, apart from scarring, within a reasonably short period of time following the incident.
The issue which the appellant takes with the Assessors award for injuries is identified in the appellant's written outline of submissions in the following terms:
"It is submitted that when one takes into account the nature and extent of the plaintiff's psychological injury both past and future, the effect her physical injuries had upon her and her need for corrective surgery, the learned Assessor's award for the appellant's injuries was below the range of awards of a sound discretionary judgment."
The Assessor also concluded, [38] – [39], that the appellant suffered and continues to suffer from psychological symptoms within the meaning of the phrase "mental and nervous shock injury". However, the Assessor concluded that a significant component of the appellant's "… psychological trauma arose from the overall and ongoing impact the offender had on the lives of the (appellant) and her family, and not just the impact of the incident itself". Further it was concluded that "… a significant component of the (appellant's) mental condition has been caused other than by the incident. I can only compensate the application (sic applicant) for what, in my best estimation, is the proportion of the mental and nervous injury I consider arose from the incident and was not caused from other impacting factors".
Issue is taken by the appellant that the Assessor has wrongly "intermingled other factors" insofar as the nature and extent of the psychological trauma is concerned.
The reports of Dr Frederick Ng
The appellant saw Dr Ng, a consultant psychiatrist, on 11 May and 27 May 2007 who provided a most comprehensive medico legal report dated 24 May 2007. The Assessor considered that report and dealt with it at [19] – [25] of the reasons. That report deals with Dr Ng's findings with respect to both the incident and the public liability (supermarket) claim.
As at May 2007 Dr Ng thought the appellant's post traumatic stress disorder had largely improved although she retained some residual anxiety and avoidance symptoms. He believed that the residual anxiety symptoms would persist "for the foreseeable future". In Dr Ng's opinion the appellant sustained a permanent psychiatric impairment of 10 per cent with respect to the post traumatic disorder which he apportioned 7.5 per cent to the incident and 2.5 per cent to the fall in the supermarket. He thought the appellant may benefit from four to six sessions of psychotherapy.
By way of additional evidence there is before me a further medico legal report of Dr Ng dated 5 May 2010 and a follow up letter of 7 May 2010. Dr Ng saw the appellant for reassessment on 5 May 2010. Dr Ng was of the opinion that the post traumatic stress disorder had improved but had not gone into remission and that the depressive component of the appellant's psychiatric difficulties have now largely resolved. The appellant reported ongoing residual anxiety symptoms. Dr Ng reiterated, as he had said in his earlier report, that she will have some degree of residual anxiety as part of the post traumatic stress disorder for the foreseeable future given its persistence since the date of the incident. He did not foresee any further psychiatric improvement occurring. He did not consider that the appellant requires psychotherapy. There is no information as to whether she had embraced his earlier recommendation that she may have benefited from four to six sessions of psychotherapy. He did note that she was receiving "counselling support once a fortnight from her naturopath". Consistent with his earlier report he concluded that the nature and quality of the appellant's reported and ongoing residual psychiatric symptoms would indicate to him that the large and vast proportion of her reported ongoing psychiatric symptoms stem from the incident of November 2003.
Compensation for the injuries
It is clear from the reasons for decision that the Assessor has taken into account the impact of both the physical injuries and, to some extent, the mental and nervous shock sustained by the appellant. In my view the additional report from Dr Ng does not add anything that was not already before the Assessor.
Unlike the Assessor, I do not discount or attribute the appellant's psychological trauma to other factors which may have been impacting on her at the time of the incident. It is to be expected that she would have been worried and have grave concerns, if not fear as a consequence of her daughter's relationship with the offender and his predisposition to illicit substances which predated the incident. That emotional reaction was exacerbated as a consequence of the physical assault which elevated those concerns to actual psychological injury. An offender takes his/her victim as he/she finds the victim to be. Undoubtedly she was vulnerable. It is the impact of that injury i.e. the impact damage, that is compensable and all that followed, the post traumatic stress disorder, the depression and the residual anxiety falls to be taken into account.
I am not satisfied on the information before me, that any non-compensable factors had a propensity to cause or contribute to the psychological trauma. The appellant is entitled to compensation for the full injury.
The amount of an award for injuries is essentially a matter for judgment. The question comes down to an assessment as to whether the amount of $27,500 is in all the circumstances an appropriate award. On the one hand I can have regard to the amount assessed by the Assessor, it being appropriate to take into account the assessment of a specialist tribunal involved in making judgments of this nature. The Assessors award was presumably less than it might have been had she considered that a significant component of the appellant's mental condition had been caused other than by the incident. On the other hand not regarding myself as being fettered in any way, I should arrive at my own assessment on the basis of my own findings.
For myself I hold to the view that the Assessor was generous if not overly so when regard is had to the injuries, both physical and mental, the appellants recovery within a short period of time from the physical injuries taking into account the painful operative procedure, the psychological impact and her improvement with the passage of time and the prognosis, namely that she will have some residual anxiety which may persist for the foreseeable future.
In all of the circumstances although it is open to me to award a lesser amount I will refrain from so doing. An award of $27,500 will adequately compensate the appellant for the injury.
Economic loss – general principles
The general principles in assessing past loss of earnings and loss of earning capacity are well known: See Medlin v State Government Insurance Commission [1995] HCA 5; Malec v JC Hutton Pty Ltd [1990] HCA 20.
In order to maintain a claim for compensation for economic loss, an applicant must establish a loss of earning by reason of the offence and the loss must be a direct consequence of the injury. The loss of earnings includes loss of earning capacity; s 6(2)(c) of the Act; A v D (1994) 11 WAR 481 at 489.
When loss of earnings are proved the damages to be assessed are essentially a matter of judgment and often can not be proved by precise figures: A v D (supra) at 489.
What is being assessed is the loss of the chance that the applicant could have worked unaffected by injury but for the commission of the offence.
The appellant's loss of earnings submissions were detailed in full at [45] of the Assessor's reasons. It is not necessary for me to repeat those submissions here. Further the appellant's employment history and the effect of both the incident and the public liability (supermarket) claim is set out in detail in her Impact Statement dated 16 June 2009 at [139]‑[192].
Past loss of earnings
The appellant's tax returns reveal the following earnings through work, leaving out Centrelink benefits, which she received:
2001/2002 $30,761.00
2002/2003$21,213.00
2003/2004$ 8,645.00
2004/2005$ 4,300.00
2005/2006$10,825.00
2006/2007$14,625.00
2007/2008$17,611.00
2008/2009$20,800.00
2009/2010$20,800.00
In December 2001 the appellant and her stepfather purchased the business known as Sutton Solutions, a distributor of health and alternative medicine products. The appellant's role was marketing and sales. For the period December 2001 to 30 June 2002 she was paid director's fees in respect of work carried out by her. For the financial year ended 20 June 2003 she was paid both as an employee and as a subcontractor in respect of the work she carried out for the business. There is no explanation apparent as to why her income for 2002/2003 was some $9,500 less than she was paid for the half year to 30 June 2002.
In June 2003 the appellant sold her share in the business to her stepfather but continued to work in sales and marketing as a sub‑contractor. Again there is no explanation as to why she sold out of the business and nor is there any information as to the basis upon which she was remunerated as a sub-contractor.
Her earnings reduced in 2003/2004. On 14 November 2003 there occurred the injury as a result of the assault. Dr Ng said in his report that, from a psychiatric perspective, he would have considered the appellant to be fully unfit to perform any form of work for about one month following the incident. He added however, that it seems that the appellant did return to work because "she runs her own business and needs to be there". In Dr Ng's view the appellant would thereafter have gained partial capacity for work for about two to three months after which she would have regained full capacity for work. In March 2004 the appellant suffered a fall in a supermarket. In Dr Ng's opinion that incident exacerbated the appellant's psychiatric symptoms. He opined that she would have been totally unfit purely from a psychiatric prospective [sic perspective] to attend work for at least one month. She would have then regained partial capacity for work in the following two to three months and then regain full capacity for work.
Clearly both of these incidents impacted upon the appellant's earning capacity in 2003/2004. In her impact statement, [170] the appellant states "it is difficult to say whether I was unable to do on the road sales work because of my psychological injuries from the assault or because of my shoulder injury". She goes on to say that she was too scared to do the road sales work alone in the belief that "… it was my psychological state that was preventing me from driving". With respect, that belief is contradicted by Mr Tony Robinson, orthopaedic and knee surgeon, who reviewed the appellant for the purposes of her public liability (supermarket) claim. In his report of 8 June 2007, repeated in a further report dated 28 July 2009 Mr Robinson opined that the appellant "… is unable to return to her pre-accident occupation as an outdoor sales representative. The reason for this is the pain which she experiences with driving from the point of view of her right shoulder". In any event the appellant's sales performance in that year was impacted and she claims that her stepfather was giving her "… quite a hard time". As a consequence she ceased working with the stepfather. Nevertheless in June 2004 she and a colleague purchased the business of her stepfather with the intention that they would both carry out all the required duties equally. Clearly the appellant must have believed then that she was able and capable of carrying out the necessary duties of the business, viz marketing, sales and development. However, that was not to be in that she and her colleague had difficulty running the business and her colleague lost interest in the business and started reducing her hours. Those circumstances undoubtedly contributed to the appellant's reduced earnings in the 2004/2005 year. In mid 2005 the business activities were extended to offering massage and beauty therapy services. As well as engaging someone to carry out this work the appellant also carried out occasional massage sessions and beauty therapy including facials, waxing, manicures and pedicures. In October 2005 the appellant purchased her colleagues share of the business. She has continued to operate the business herself and has not taken on another business partner (submissions sub-para (x)). By around late 2005 the appellant was able to return to on the road sales work alone (submissions sub-para (u)).
She stated at that time she did not do any of the physical work of the business but was only involved in marketing, sales and product development. It does appear that over the latter years the nature of the business has changed to some extent. It is pertinent that in her Impact Statement under the heading "How the businesses would be operating if I had not been injured in the fall" that the appellant stated:
"191. If I had not suffered the shoulder injury in the fall I would not only be able to carry out all the sales and marketing of the business, but I would also be able to carry out Swedish massage and hot stone massage … .
192.I am physically unable to carry out that massage work."
At the time when the Impact Statement was made the appellant was still persuing her public liability claim. I have no reason not to believe that the statement was prepared as much for the purpose of that claim as it was for her compensation claim. Nevertheless it is apparent that the appellants poor sales performance at least in the years 2003/2004 and 2004/2005 and her reasons for ceasing work with her stepfather were multi-factorial. That her earnings thereafter were also lower similarly is attributable to the multitude of factors. Against that background it can not be accepted that the appellants past loss of earnings was solely or even substantially attributable to her claimed incapacity to be able to carry out on the road sales work by reason of her psychological state.
In submissions to the Assessor the appellant claimed in respect of the 2003/2004 financial year a past loss of earnings related to the injuries she suffered in the assault in the sum of $5,000. For the 2004/2005 financial year the appellant claimed a loss of $2,500.
In the Assessor's reasons at [53] – [55] reference is made to the report of Mr Tony Robertson (mentioned earlier) whose comments the Assessor said were "… at odds with the tenor of much of the (appellants) solicitors submissions in regard to loss of earning". The Assessor went on to analyse the appellants solicitors approach to the assessment of loss of earning and noted that the submission was predicated on an incorrect basis. Issue was not taken on those matters by the appellant either in written submissions nor in oral argument on the hearing of the appeal. On my assessment the Assessor's conclusions are well founded. I too am of the views as there expressed by the Assessor. The Assessor determined that an award for past loss of earnings in the sum of $5,000 was appropriate.
The appellant's complaint is "… that when proper regard is given to the interruption to the appellant's earnings the award of $5,000 is insufficient". For the reasons which I have expressed I do not accept that to be the case. I would not vary the award of $5,000 for past loss of earnings.
Future loss of earning capacity
The Assessor did not make a compensation award for this head of claim.
Since about October 2005 the appellant has continued to operate the business herself and has not taken on another business partner. There has also been a change in work direction of the plaintiff's business. Her earnings as revealed by her tax returns indicate a year on year increase since 2005 to 2009. Coincidentally the income for 2009 and 2010 years were the same. In her Impact Statement the appellant does not suggest that her injuries as a result of the incident impact on her business. Quite the contrary in that it was the shoulder injury, as at June 2009 which precluded her from carrying out all the sale and marketing of the business.
The appellant contends that her loss of earning capacity may be productive of economic loss in the future. It is said that her injuries "… may impact on her ability to further promote and develop her business, her injuries may impact on her ability to perform on the road sales duties, and her injuries may prevent her consistently performing the hours of work and tasks required of her within her business".
Dr Ng suggests in his reports that the psychological injury may have an adverse impact on the appellant's capacity to perform on the road sales duties. As the appellant submitted to the Assessor "by around late 2005 [she] was able to return to on the road sales work alone". Since about October 2005 she has continued to operate the business herself. There is no suggestion that in fact her residual anxiety symptoms have precluded her at anytime since from performing those duties. Nor is there any indication that over those past years the appellant has by reason of her anxiety symptoms be precluded from further promoting and developing her business. Quite the contrary in that her business has expanded into other areas.
Furthermore, having regard to the nature of her business and her expressed intention to continue that work for the rest of her career the likelihood of finding herself in an aggressive or confrontational situation is negligible. I cannot conceive that she would find herself in the presence of potentially dangerous or violent clientele (see Dr Ng's report 24 May 2007 at point 9 on p 17).
Nor do I accept that by reason of the residual anxiety symptoms her parameters of employment have been reduced. She has a broad range of work experience as outlined in her Impact Statement. She chooses to operate her own business and to continue in that business until her retirement. The business rewards her with only a modest income. That income is less than what she might earn if she were to engage in any of the forms of work in which she has previously been engaged. I am therefore not of the view that the appellant's residual anxiety symptoms has the potential to impact upon her capacity to earn income in the future. I would not make any award of compensation under this head.
Further medical report fee
Dr Ng's fees for his further report have been vouched for in the sum $1,100. It is appropriate, having admitted his reports as additional evidence, that I should allow the appellant to be reimbursed in that sum.
Save for the additional report fee I would not otherwise disturb the total compensation as awarded by the Assessor.
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