| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DONOGHUE -v- HUSSAIN [2013] WADC 18 CORAM : DERRICK DCJ HEARD : 28 NOVEMBER 2012 DELIVERED : 12 FEBRUARY 2013 FILE NO/S : APP 56 of 2012 MATTER : IN THE MATTER OF Part 7 of the Criminal Injuries Compensation Act 2003 BETWEEN : LEIGH MICHAEL DONOGHUE Appellant
AND
MUHAMMAD MUSSAWAR HUSSAIN
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA Coram : H L PORTER Citation : [2012] WACIC 19 File No : CI 000521 of 2012 (Page 2)
Catchwords: Appeals - Criminal injuries compensation - Proved offence - Turns on own facts Legislation: Criminal Code (WA)
Criminal Injuries Compensation Act 2003 (WA)
District Court Rules 2005 (WA) Result: Appeal allowed
Compensation order made by Assessor varied
Representation: Counsel:
Appellant : Mr Y D Radich
Respondent : No appearance
Amicus Curiae : Ms H Richardson on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Bradley Bayly Legal
Respondent : Not applicable
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, WADC (Commissioner Nisbet), Library No 4169, 23 September 1994)
B v S (Unreported, WASC (Murray J), Library No 950223, 10 May 1995)
B v W (1989) 6 SR (WA) 79
Bedetti v Chief Executive Officer [2003] WADC 37
Bonnington Castings Ltd v Wardlaw [1956] AC 613
(Page 3)
Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143
CKM [2008] WADC 79
Crumby v Kuru (1995) 13 SR (WA) 331
De Florenca v Hayden [2007] WADC 54
Dos Santos v Dos Santos [2000] WADC 256
Fagan v Crimes Commission Tribunal [1982] HCA 49; (1982) 150 CLR 666
Gullelo v Halloran [2008] WADC 145
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
Hussain [2012] WACIC 19
M v J and J v J (Unreported, WASC (Scott J), Library No 920598, 19 November 1992)
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
MJN v MAJS [2003] WACC 9; (2003) 35 SR (WA) 219
Parsons v McWilliam [2002] WADC 62
Passaris v The Assessor of Criminal Injuries Compensation [1999] WADC 151
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
R v Forsythe [1972] 2 NSWLR 951
RBF v OSD-S [2004] WADC 97; (2004) 36 SR (WA) 61
Re Faengsungnoen [2012] WADC 59
Re Tilbury [2010] WADC 46
RJE v Bandy (Unreported, WASC (Burt J), Library No. 1365, 31 May 1974)
S v Neumann (1995) 14 WAR 452
TAW v NJS [2011] WADC 187
(Page 4)
Introduction 1 The appellant appeals against the decision of the Chief Assessor of Criminal Injuries Compensation (the Assessor) awarding the respondent criminal injuries compensation in the amount of $23,132.70. 2 The respondent did not prior to the hearing of the appeal file a notice of intention to appear under r 53 of the District Court Rules 2005 (WA) (the DCR). The respondent was therefore not entitled to, and did not attempt to, take part or be heard in the appeal. 3 To enable me to deal with the appeal I have before me copies of various documents from the Office of Criminal Injuries Compensation (the OCIC) file relating to the respondent, including the respondent's application for compensation. The documents were provided to the court by the OCIC under r 52(3) of the DCR. I also have before me all other material that was available to the Assessor at the time that she made her award of compensation to the respondent.
Factual background to the compensation application 4 The respondent was born in Pakistan on 19 November 1984. 5 In January 2009 the respondent travelled from Pakistan to Western Australia on a student visa. He planned to study in Australia for one year. 6 The respondent arrived in Perth on 26 January 2009. Shortly after his arrival he commenced studying at TAFE for his Advanced Diploma of Information Technology. 7 On 20 February 2009 the respondent was at the Maylands Train Station. While he was there he was robbed by the appellant. 8 On 28 July 2009 the appellant pleaded guilty to, and was convicted of, the offence of robbery that he had committed against the respondent (the offence). The facts of the offence as read to the court were, so far as is relevant, as follows: At approximately 4.00 pm on 20 February 2009, the complainant was walking in the underground tunnel at Maylands Train Station. He was preparing to catch a train and was about to remove his wallet from his jeans pocket. The offender approached the complainant and stood in front of him and prevented him from walking any further. (Page 5)
The offender then said to the complainant, 'Give me your money. Give me what you've got'. The complainant felt intimidated and informed the offender that he needed to go and get the train. The offender raised his right clenched fist and said, 'Give me your money or I'll hit you'. The complainant removed his wallet from his pocket and, while opening it, the offender snatched it from the complainant's hands. The complainant told the offender to take the money and pleaded with him to return the wallet. The offender then punched the complainant in the chest with the left fist and said, 'Get back. I'll kill you. I'll hit you'. The offender proceeded to walk off in possession of the wallet which contained $20.10 in cash, various sundry papers, three keys, credit cards and a Transperth SmartRider card. At 4.20 pm, the police arrived at the train station and spoke to the complainant. The complainant pointed the offender out to the police while he was standing on the train station platform. Police approached the offender to question him and the offender became aggressive. Police attempted to arrest him. However, he began to thrash his arms around. As a result, he was placed on the ground and handcuffed. The police lifted the offender off the ground and, in doing so, they located the complainant's wallet on the ground where the offender had been laying. The offender was taken to the Mirrabooka Police Station where he was searched. At the time of being searched, they found the Transperth SmartRider card concealed in the offender's underwear. … [T]he complainant suffered pain and bruising to his chest. … [A]ll the stolen property was recovered and returned to the complainant … 9 On 1 July 2009 the respondent left Perth. He returned to Pakistan. He did not complete his planned studies.
Application for compensation and Assessor's decision 10 On 10 February 2012 the respondent made an application pursuant to s 12(1) of the Criminal Injuries Compensation Act 2003 (WA) (the Act) for an award of compensation for injury and loss suffered by him as a consequence of the commission of the offence. In support of his compensation application the respondent provided the Assessor with a large number of documents. The documents included copies of a statement signed by the respondent dated 30 March 2012, a statement signed by Mr Muhammad Raza dated 19 March 2012, a statement signed by Mr Rizwan Naseer dated 25 March 2012, a statement signed by Mr Abdullah Yousaf dated 2 June 2012, a statement signed by Mr Nasir (Page 6)
Ayub dated 12 March 2012, a statement signed by Ms Anees Kousar dated 22 March 2012, bank statements, financial records, employment records and medical records. 11 Mr Raza, Mr Naseer, Mr Yousaf and Mr Ayub are all friends or associates of the respondent. Ms Kousar is the respondent's mother. 12 Some of the documents submitted by the respondent in support of his compensation application, including his statement and the statements of Mr Raza and Mr Naseer, revealed that the respondent, while he was living in Perth, either attended at, or was admitted to, Royal Perth Hospital (RPH). In light of this information the Assessor, in order to assist her to determine the respondent's compensation application, obtained from RPH by way of a notice issued under s 19(2) of the Act copies of RPH's records relating to the respondent. 13 The Assessor also obtained, again by way of a notice issued under s 19(2) of the Act, the file of the Office of the Director of Public Prosecutions for Western Australia relating to the offence (the DPP file). 14 On 12 July 2012 the Assessor awarded the respondent criminal injuries compensation in the amount of $23,132.70 pursuant to s 30 of the Act. In letters written by the OCIC's relevant case manager on behalf of the Assessor to the respondent and the appellant's former solicitors, both of which were dated 12 July 2012, the case manager stated that compensation had been assessed as follows: 15 In his letter to the respondent the case manager also made the following statement: Compensation is not included for the cost of treatment of your kidney condition as the [Assessor] was not satisfied this was suffered as a consequence of the incident on 20 February 2009.
Appeal 16 On 2 August 2012 the appellant filed his notice of appeal (the notice) against the decision of the Assessor. The notice contains three grounds of appeal. It is not necessary to set out the grounds as pleaded. Grounds 1 and 2 make substantially the same complaint, namely that the amount (Page 7)
awarded by the Assessor for the item 'injury' was excessive because there was insufficient evidence that the respondent suffered any injury as a consequence of the commission of the offence. Ground 3 asserts that the amount awarded to the respondent for loss of income was excessive there being no evidence, or insufficient evidence, that: 1. the respondent was in paid employment as at the date of the offence; 2. the respondent engaged in paid employment after the offence; 3. if the respondent had engaged in paid employment after the offence, he was dismissed from such employment on the grounds of the alleged psychological problems; and 4. the respondent's alleged psychological problems were causally related to the offence.
Assessor's written reasons 17 Prior to the hearing of the appeal there was nothing to indicate to the court that any interested party had asked the Assessor, pursuant to s 27(1) of the Act, to provide written reasons for her decision to award compensation to the respondent. No such request was included in the copy documents provided to the court by the OCIC. 18 During the hearing of the appeal I asked the appellant's counsel why the appellant had not made a request for the Assessor's written reasons. Counsel told me that the appellant's former solicitors had in fact, by letter dated 16 July 2012, asked the Assessor to provide her written reasons for making the award but that the request had not been responded to. Counsel provided me with a copy of the appellant's former solicitor's letter which had attached to it a facsimile transmission report verifying that the letter had been sent by facsimile to the OCIC on 16 July 2012. On receiving this advice from the appellant's counsel I adjourned the hearing of the appeal for a short time so that he could contact the Assessor's office and ascertain why the request for written reasons had not been responded to. When I came back into court the appellant's counsel informed me that he had been told by the OCIC's relevant case manager that the OCIC could not find the letter dated 16 July 2012 on file and that a request for written reasons was generally complied with 'quite promptly'. I then informed counsel for the appellant and counsel for the Chief Executive Officer (the CEO) that while I was content to continue with the hearing of the appeal I did not think that it was (Page 8)
appropriate for me to decide the appeal until the Assessor had provided her written reasons for decision in accordance with the appellant's request and I had read the reasons. The appellant's counsel said, in effect, that he would re-send the appellant's request for the Assessor's written reasons. I then made orders requiring the appellant's counsel to provide the court with a copy of the Assessor's written reasons forthwith upon their publication, giving leave for the appellant and the CEO to file and serve supplementary written outlines of submissions in relation to the Assessor's written reasons within 21 days of their publication, and giving leave for the appellant and the CEO to apply in the event that either of them wished to make further oral submissions in light of the Assessor's written reasons. 19 On 12 December 2012 the Assessor published her written reasons for awarding compensation to the respondent: Hussain [2012] WACIC 19. On 14 December 2012 the appellant's solicitors provided me with a copy of the written reasons. 20 On 21 December 2012 the appellant filed and served supplementary written submissions dealing with Assessor's written reasons. On the same date the CEO advised the court by email that it did not intend to file any supplementary submissions in relation to the Assessor's reasons. Neither party sought the opportunity to make additional oral submissions. 21 I will return to the Assessor's written reasons for awarding compensation to the respondent to the extent that is necessary when I deal with the appellant's grounds of appeal.
Additional evidence 22 Although the respondent did not take part in, and was not heard on, the appeal it is clear that he was aware of the appeal. In a letter to the OCIC dated 6 November 2012 the respondent referred to the appeal. Further he provided to the OCIC under cover of the letter what he referred to as 'additional supporting documents' (the additional documents). The respondent also provided the letter and the additional documents to the solicitor for the CEO. 23 Under s 56(1) of the Act I have a general discretion to receive and admit further evidence on the appeal. I should admit further evidence unless there is some reason why it would be unjust to do so: Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143 [37]; Re Tilbury [2010] WADC 46 [3]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9]. (Page 9)
24 At the hearing of the appeal neither the appellant nor the CEO objected to me having regard to the additional documents for the purpose of determining the appeal. Indeed, counsel for the appellant was in favour of me doing so on the basis that the additional documents assisted the appellant's case on the appeal. 25 In light of the contents of the additional documents and the attitude of the appellant and the CEO, I decided that it would not be unjust to admit the additional documents into evidence. I therefore made an order pursuant to s 56(1) of the Act admitting the additional documents into evidence.
Principles governing determination of appeal 26 Before I turn to deal with the grounds of appeal it is necessary for me to say something about the legal principles and statutory provisions which govern the determination of the appeal.
Nature of the appeal and powers on appeal 27 The appeal is a hearing de novo: the Act, s 56(1); Gullelo v Halloran [2008] WADC 145 [5]. I must decide the appeal 'without being fettered' by the Assessor's decision: the Act, s 56(1). Nonetheless, it is appropriate for me to have regard to the assessment made by the Assessor given that the Assessor is a specialist in the field of criminal injuries compensation: Crumby v Kuru (1995) 13 SR (WA) 331, 333; Hogben v Darcy [2009] WADC 63 [13]. 28 It is open to me to increase or decrease the compensation award made by the Assessor even though no cross-appeal has been filed: Dos Santos v Dos Santos [2000] WADC 256 [3]. 29 In deciding the appeal I may exercise any power of the Assessor under the Act other than a power under s 19(1)(b), s 24(1) or s 25, none of which is relevant in the present context: the Act, s 56(2)(a). It follows that in deciding the appeal I am not bound by rules or practice as to evidence or procedure and may inform myself in any manner I think fit: the Act, s 18(2). I may confirm, vary or reverse the Assessor's decision either in whole or part: the Act, s 56(2)(b).
Jurisdictional limit 30 The maximum compensation that may be awarded in favour of a person for a single offence is $75,000: the Act, s 31(1). (Page 10)
31 The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463.
Assessment of compensation
Injury and loss 32 The offence is a 'proved offence': the Act, s 3. Accordingly, the respondent, as the victim of the offence, is entitled to compensation for any injury suffered as a consequence of the commission of the offence and for any loss also suffered: the Act, s 12(1). 33 'Injury' is relevantly defined in s 3 of the Act to mean 'bodily harm, mental and nervous shock, or pregnancy'. 'Loss' is defined in s 6(2) of the Act to mean, so far as is presently relevant, expenses actually incurred by or on behalf of the victim that arise directly from the injury suffered by the victim, and loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim: the Act, s 6(2)(a) and s 6(2)(c). Loss of earnings include loss of earning capacity: A v D (1994) 11 WAR 481, 495, 496. 34 The phrase 'mental and nervous shock' includes distress, horror, disgust and other similar adverse mental reactions but excludes fright, humiliation or anguish. What is contemplated by the Act is not a mere emotional reaction but something of a more enduring character which may, in both the legal sense and in common parlance, be described as injury: M v J and J v J (Unreported, WASC (Scott J), Library No 920598, 19 November 1992); B v S (Unreported, WASC (Murray J), Library No 950223, 10 May 1995); S v Neumann (461). 35 Section 35(2) of the Act provides, in effect and so far as is presently relevant, that the court must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence, or for any loss in respect of such shock, unless it is satisfied that the victim also suffered bodily harm as a consequence of the commission of the offence or that the victim was the person against whom, or against whose property, the offence was committed.
General principles of assessment 36 The correct approach to adopt in fixing the appropriate amount of compensation is to apply ordinary tortious principles for the 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 (Page 11)
the Act: RJE v Bandy (Unreported, WASC (Burt J), Library No. 1365, 31 May 1974) 3; M v J and J v J; A v D (486 – 487). In assessing the appropriate amount of compensation I must focus solely upon the injury suffered by the respondent as a consequence of the commission of the offence. Considerations of sympathy for the respondent are completely irrelevant: R v Forsythe [1972] 2 NSWLR 951, 953; B v W (1989) 6 SR (WA) 79, 89.
Causation 37 The onus is on the respondent to establish, on the balance of probabilities, a causal relationship between the commission of the offence and the injury and loss for which compensation is sought: the Act, s 3 (definition of 'satisfied'); S v Neumann (463 - 464). 38 It is not necessary for the respondent to establish that the offence was the sole cause of any injury or loss. It is sufficient for the respondent to establish that the offence materially contributed to any injury or loss: Fagan v Crimes Commission Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673; S v Neumann (463 - 464). 39 If the evidence establishes that a non-compensable event contributed to the respondent's alleged injury or loss the award of compensation must be reduced to take account of that contribution: Malec v JC Hutton Pty Ltd [1990] HCA 20;(1990) 169 CLR 638; MJN v MAJS [2003] WACC 9; (2003) 35 SR (WA) 219 [52]; TAW v NJS [2011] WADC 187 [83]. If it is not possible to disentangle the consequences of a non-compensable event from the consequences of the offence the respondent is entitled to compensation for the full injury and loss suffered provided that he can establish that the offence materially contributed to the injury or loss: Bonnington Castings Ltd v Wardlaw [1956] AC 613; Fagan v Crimes Compensation Tribunal; Purkess v Crittenden [1965] HCA 34;(1965) 114 CLR 164; MJN v MAJS [51]; CKM [2008] WADC 79 [136] - [145]; TAW v NJS [84].
Mitigation of loss 40 An applicant for criminal injuries compensation is obliged to obtain reasonable medical treatment in respect of any injury caused by a proved offence. The failure to do so can be taken into account when determining the award of compensation to be made: Bedetti v Chief Executive Officer [2003] WADC 37 [11]; RBF v OSD-S [2004] WADC 97; (2004) 36 SR (WA) 61 [59]; (Page 12)
Grounds of appeal 41 I return to the appellant's grounds of appeal.
Grounds 1 and 2 – award for injury excessive 42 The material submitted by the respondent in support of his application for compensation reveals that he alleges that he suffered as a consequence of the commission of the offence two physical injuries as well as injury to his mental health, or to use the terminology of the Act, 'mental and nervous shock'. Accordingly, in order to deal with the appellant's first two grounds of appeal it is necessary to first consider whether the available material is sufficient to prove that either of the asserted physical injuries or the asserted mental health injury was an injury suffered as a consequence of the commission of the offence. If I am satisfied that any one or more of the alleged injuries was suffered as a consequence of the commission of the offence I must then consider the appropriateness of the award made in respect of the injury or injuries.
Physical injury - chest 43 As is apparent from my above citation of the facts of the offence as read to the court, the appellant's act of punching the respondent during the commission of the offence caused the respondent to suffer pain and bruising to his chest. 44 In his statement provided in support of his compensation application the respondent states that when the police took him back to the police station after the commission of the offence he showed the police the 'impression of punch on my chest and told them that I was feeling severe pain'. The respondent did not provide in support of his application any photographs depicting the injury to his chest or any medical record relating to the injury. The prosecution brief which is contained in the DPP file does not contain any photographs of the alleged injury. 45 The Assessor did not make a finding as to whether or not the respondent suffered an injury in the form of pain and bruising to his chest as a consequence of the commission of the offence. 46 Despite the wording of the grounds of appeal, the appellant's counsel did not contend with any force that I should not be satisfied that the respondent suffered an injury to his chest as a consequence of the commission of the offence. This is unsurprising given that when the appellant appeared in court and was convicted of the offence he did not take issue with any of the facts of the offence read to the court. (Page 13)
The essence of the appellant's submission so far as the chest injury is concerned is that I should find that it was so minor as to not warrant an award of compensation. 47 The term 'bodily harm' is not defined in the Act. The term is, however, defined in s 1(1) of the Criminal Code (WA) (the Code) to mean 'any bodily injury which interferes with health or comfort'. There is, in my view, no reason why the definition of 'bodily harm' contained in the Code should not be applied to the use of the term in the Act. I therefore propose to interpret the term 'bodily harm' as used in the Act to mean any bodily injury which interferes with health or comfort. 48 I do not consider it to be implausible that the respondent suffered bruising and associated pain to his chest as a result of being punched in the chest by the appellant during the robbery. Bruising to the chest causing pain is a bodily injury which interferes with health or comfort. Accordingly, I am satisfied on the available material that the appellant did suffer an 'injury' in the form of bruising to his chest as a consequence of the appellant's commission of the offence against him.
Physical injury - urological condition 49 In his statement made in support of his compensation application the respondent refers to his attendances at RPH in the months following the commission of the offence for kidney stones and associated abdominal pain. The respondent does not assert in his statement that the commission of the offence was the direct cause of his urological condition and abdominal pain. The respondent does, however, appear to allege a causal connection between the offence on the one hand and his urological condition and abdominal pain on the other. More specifically, the respondent seems to allege, in substance, that the mental health and other difficulties that he experienced following the commission of the offence caused, or contributed to, the onset of his urological condition and associated abdominal pain. The fact that the respondent does make this allegation is further evidenced by his claim as part of his compensation application for medical expenses that he incurred while he was in Western Australia. 50 The Assessor was not satisfied that the respondent's urological condition and abdominal pain was caused by the commission of the offence: Hussain [20] - [21]. 51 I have reviewed RPH's records relating to the respondent. The records reveal that the respondent first presented to the hospital (Page 14)
complaining of lower right abdominal pain on 6 March 2009, that further attendances by him in April and May 2009 led to him being diagnosed with kidney stones, and that following admission to RPH on 17 May 2009 he underwent a ureteroscopy and lasertripsy during which his right kidney stone was removed. There is, however, nothing in the records which provides any support for either the contention that the offence was a direct cause of the respondent's urological problems, or the contention that any mental health or other difficulties which the respondent was experiencing at the time contributed to, or were the cause of, the urological problems. In these circumstances I am not, despite the respondent's apparent belief to the contrary, satisfied that there was any direct or indirect causal link between the commission of the offence and his urological condition and associated abdominal pain. It follows that in my opinion the respondent's urological condition was not, and to the extent that it still exists is not, an injury suffered as a consequence of the commission of the offence. The respondent is therefore not entitled to any compensation in respect of his urological condition.
Injury - mental and nervous shock
Evidence 52 In his statement submitted in support of his application the respondent describes his personality and disposition prior to the commission of the offence. He states that he was a 'cheerful and jolly young man' who 'used to enjoy the good company of [his] friends with special taste for music and internet'. He states that he was fond of touring and that he used to visit different places to 'enjoy and get knowledge about the world'. He states that his 'physical life was very active', that he loved to play snooker almost everyday, and that he also used to play cricket about three days a week. He states that when he arrived in Perth and was met by his friend Mr Muhammad Raza he was excited and that it was a 'new world' for him. He states that he was glad to be in Perth and that on the days following his arrival in Perth Mr Raza showed him around. He states that he enjoyed the Perth lifestyle and his studies. He states that he 'liked the Perth city very much and did not feel homesickness'. 53 In his statement the respondent also describes in considerable detail his mental state following the commission of the offence. He states that after the offence he kept thinking that the same thing could happen again. He states that he thought that the robber and his associates would search for him, would trace him through his address, would hurt him badly and would kill him. He states that he had sleepless nights and was 'very much (Page 15)
disturbed mentally'. He states that he refused to go outside of his residence alone, that he felt giddy and lonely, and that he suffered from an eating disorder in the form of a loss of appetite. 54 In his statement the respondent states that after the offence he requested his friend Mr Raza to help him move to a new address, and to change his academic course and educational institution so that he could not be traced. He states that he moved residence on 25 February 2009 and transferred to a course in dental nursing which was run by Kingston College in South Perth. 55 In his statement the respondent also asserts that 'due to [his] sleeping and eating disorder [he] felt pain in the right side of [his] belly' with the result that on 6 March 2009 he attended RPH. He describes the course of medical treatment which lead to the cause of his abdominal pain being diagnosed as kidney stones. He refers to the medical treatment that he received in Australia for his urological condition over the ensuing months. He states that he 'took medicine which relieved me of my pain but due to loneliness I continuously having same obsessive thoughts of being murdered which started making me depressed and frustrated'. He states that when he was told that he had kidney stones he was 'extremely frightened of death'. He states that he 'could not sleep most of the nights because of the terror', that he had difficulty eating, that his weight was decreasing, and that he felt weak due to 'improper consumption of diet and passing of urine with blood'. He asserts that when he woke up from his operation to remove his right kidney stone he felt 'great pain which was unbearable', that he started to think about 'the pain of death' and that 'in this condition he remained in hospital for three days'. 56 The respondent also states in his statement that when he found out that the 'offence had been proved against the robber' he felt lifeless and feared that the robber, after completing his penalty, would find him and murder him. He states that he was convinced that he would 'die soon' and was of the opinion that 'living was of no use'. 57 The respondent refers in his statement to visiting RPH on 25 June 2009 to see the doctor who had operated on him. He states that after his check up the doctor advised him to see a psychiatrist but that he decided that he would go back to Pakistan and obtain treatment in that country. 58 As to his condition on his return to Pakistan the respondent in his statement asserts, in substance, that when he got home his psychological (Page 16)
condition initially remained the same. He states that even though he was in his own country he still worried that the robber would find and harm him. However, the respondent goes on to state that over time, and with the help of his mother, friends and psychiatrists, his condition began to gradually improve. 59 The respondent refers in his statement to seeing two psychiatrists after he had returned to Pakistan, namely Dr Ali Zulqernain and Dr Akrem Hamdani. He states that Dr Zulqernain provided him with medication. He states that in May 2011 Dr Hamdani 'advised some medicines and told that with some more medical and social treatment I would be a normal person'. He further states that the last time he visited his doctor, this apparently being a reference to Dr Hamdani, he was told that he was 'almost symptoms free' but that he had to take 'anti-anxiety medicine in [his] routine life to avoid any psychological problem again'. 60 The respondent also asserts in his statement that his family members are forcing him to get married but that he is hesitant to do so 'due to my sexual deficiency which is because of my constant usage of medicines for depression'. He states that he may therefore have to face relationship difficulties in the future. 61 The respondent's friends and his mother also refer in their statements to the respondent's condition following the commission of the offence. 62 Mr Raza, in his statement, confirms that he met the respondent when the respondent arrived in Perth from Pakistan and that the respondent appeared to be enjoying his life in Perth during the short period of time between his arrival and the offence. He states that the respondent phoned him from the station immediately after the offence sounding extremely frightened and suffering language difficulties which had been made worse because of the shock of the offence. He states that after the offence the respondent seemed 'scared, fed up and overwhelmed with fear'. He states that the respondent refused to leave the house on his own and suffered from eating and sleeping disorders. He states that although he tried to console the respondent he ultimately, at the respondent's request, helped the respondent to move to new accommodation in the hope that a new environment would help the respondent to adjust. He states that he took the respondent around the city and assisted him to change his study course but that the respondent remained scared. He states that 'all of my hopes for [the respondent's] recovery went broken when he was taken into emergency ward of the Royal Perth Hospital with a severe kidney pain and was later on operated'. He states that eventually the respondent (Page 17)
decided to return to Pakistan and that when he saw the respondent off at the airport the respondent was 'a different, unhappy, scared, depressed and disappointed fellow'. 63 Mr Naseer, in his statement, confirms that in late February 2009 he agreed, at the request of Mr Raza, to allow the respondent to move in with him. He states that he found the respondent scared and depressed and that he tried to comfort and distract him. He states that the respondent was afraid to be at home alone or to go outside. He describes the respondent's attendance at Royal Perth Hospital for treatment for his kidney stones and notes that the respondent's condition worsened after surgery in May 2009 'because of not taking meal properly and always remained busy in his obsessive thoughts'. He states that when on 6 June 2009 the respondent was informed that the robber had been found guilty and was to be sentenced the news shocked the respondent instead of 'comforting his mind'. He states that when on 9 June 2012 the respondent began mentioning thoughts of suicide he took the respondent to a doctor. He also describes the respondent as being a 'very depressed, scared and disappointed' person on his departure from Australia. 64 In his statement Mr Yousaf states that he shared accommodation with the respondent from April 2009. He states that he found the respondent 'very scared and terrified' and reluctant to engage in conversation. He states that the respondent was fearful of leaving the house and going outside alone. He states that after some time the respondent told him of his fear that the robber would seek revenge, that he tried to convince the respondent that this would not happen, but that his efforts proved useless. He states that when the respondent was treated for his kidney condition and told by the doctors that he needed an operation to remove the stone from his kidney, the respondent shared with him his 'thought about the pain and the feelings of die'. He asserts that after the respondent was informed that the robber had been found guilty the respondent became 'more scared and totally stopped his meal'. He states that he agreed with the respondent's decision to return to Pakistan because the respondent needed his family to feel secure. 65 Mr Ayub is a resident of Pakistan. In his statement Mr Ayub states that he has known the respondent for 9 years. He states that the respondent is his best friend and was a cheerful and full-of-life person who enjoyed every moment of life. 66 Mr Ayub states that when he met the respondent on 1 July 2009 on his return to Pakistan from Australia, the respondent's appearance made (Page 18)
him disappointed because he found the respondent very weak and reserved. He states the respondent was very disturbed mentally due to his depression and remained quiet on the way to his home city of Sargodha. He states that on the next day he went to see the respondent and the respondent's mother and the respondent's mother asked him to spend time with the respondent. He states that he therefore took the respondent to different places in the city and to meet their common friends. He states that the respondent shared his thoughts and psychological problems with him and that he tried his best to comfort the respondent. He describes how he assisted the respondent to see the psychiatrists Dr Zulqernain and Dr Hamdani. 67 The respondent's mother, Ms Kousar, in her statement asserts that on arriving in Australia the respondent's phone contact with her was 'regular and cheerful' but that after about a month this changed. She states that she became concerned about the respondent's health because of his kidney problems and thought that he sounded disturbed and depressed. She states that when the respondent arrived home she was disappointed to find him physically weak and that although he tried to be cheerful he remained reserved with his family. She states he declined food and declined to attend family gatherings. She states that she was eventually told about the offence. She states that the respondent attended a doctor for psychiatric treatment and gradually showed improvement. She states that at the time of writing her statement the respondent had almost returned to normal. 68 The respondent submitted in support of his application copies of medical notes made by Dr Zulqernain and Dr Hamdani. The letterhead on the notes of Dr Zulqernain records his qualifications as 'MBBS (Karachi), DIP. PSY. (AFPGMI), FCPS (PAK)'. According to the letterhead Dr Zulqernain is a 'Consultant Classified Psychiatrist' based at the 'PAF Hospital, Musaf Base, Sargodha'. 69 The letterhead on the notes of Dr Hamdani records his qualifications as 'MBBS, DPM(AFPGM), FCPS'. According to the letterhead Dr Hamdani is a 'Mental Health Specialist' and head of the psychiatry department at 'P.A.F. Hospital Sargodha'. 70 Most of the pages of the notes of both Dr Zulqernain and Dr Hamdani are written in their native language (presumably, although not necessarily, Urdu). (Page 19)
71 One of the pages contained in the notes of Dr Zulqernain is a letter handwritten in English addressed to 'To Whom it May Concern' dated 19 August 2009. The letter is in the following terms: It is certified that Mr M Mussawar Hussain D.O.B 19.11.1984 is suffering from phobic neurosis with obsessional intrusive thoughts. According to careful assessment made here it is considered that his illness is of moderate to severe intensity and requires prolong psycho pharmaco therapeutic and social support. 72 One of the pages contained in the notes of Dr Hamdani is also a letter handwritten in English addressed to 'To Whom it May Concern'. The letter is dated 27 December 2011 and is in the following terms: It is certified that Mr M Mussawar Hussain D.O.B 19.11.84 is under care of psychiatrist since 2009. MEDICAL CERTIFICATE of the previous psychiatrist of this facility is also attached with. He was suffering from phobic neurosis with obsessive intrusive thoughts. Presently he is almost symptom free with off and on exacerbation of residual symptoms of anxiety - [illegible] - especially once he is under stress. 73 The additional documents contain copies of handwritten notes made by Dr Hamdani in relation to the respondent on 12 June 2012 and 31 October 2012. The notes are again written in Dr Hamdani's native language save that his references to medication appear to be written in English. In addition, on the left hand side of the page of notes dated 31 October 2012 the words 'obsessional symptoms' are written in English. 74 Another of the documents submitted by the respondent in support of his application was a copy of a handwritten letter of Dr Raymond Tong, urology fellow, dated 25 June 2009. The letter, which is written on RPH letterhead and does not specify an addressee, is in the following terms: This gentleman presented to us with [right] renal colic. CT KUB showed 8 mm [right] uretic stone and a 2 x 1 cm [left] partial stag horn stone. The [right] stone has been treated with lasertripsy but [left] stone remains and requires further treatment. He is also a bit anxious and depressed since the surgery. I offered him a psychiatric referral but he prefers to be seen back in Pakistan. 75 RPH's records relating to the respondent do not contain a copy of Dr Tong's letter and make no mention of the offence or of the respondent suffering from any mental health symptoms as a consequence of the offence. The records do, however, contain the outpatient case notes made by Dr Tong on 25 June 2009, that is, at the time that he saw the (Page 20)
respondent and wrote his letter. Dr Tong's notes read, so far as is relevant, as follows: Well since [right] URS + laser. Still has a 2 x 1 cm [left] Staghorn. [Patient] states he has been quite emotional/depressed since surgery - taking serapax to calm him down. Advised he should see [illegible] doctor but [patient] states he is going back to Pakistan next [week]. No suicidal ideation. Wrote letter for doctor in Pakistan.
Assessor's decision 76 On the basis of the material that I have referred to above the Assessor made the following findings: 1. The respondent has suffered a 'significant psychiatric condition constituting injury in the form of mental and nervous shock' brought about initially by the occurrence of the offence; 2. To a significant extent the respondent's psychiatric condition was exacerbated by the consequences of suffering a painful kidney condition requiring surgery which put the applicant in some fear of further pain and possibly death, particularly after the surgery; 3. The kidney condition suffered by the respondent was not causally related to the offence and therefore the respondent could not be compensated for its occurrence or treatment, nor for its contribution to his 'psychological injury'; 4. The symptoms of the respondent's 'psychological condition' began to appear quite soon after the offence and continued 'throughout the time before and after he returned to Pakistan'; 5. The respondent's 'psychological condition…suffered exacerbation around the time of diagnosis of the kidney condition'; and 6. The respondent suffered some aggravation of his symptoms at the time when he was notified of the prosecution of the appellant, and 'to the extent that the injury was contributed to by aspects of the prosecution such as advice of the outcome and indeed fear of the [appellant] committing further offences, it is not compensable': Hussain [21].
Appellant's submissions 77 Against the background of the above outlined evidence and the Assessor's decision, the appellant submits that I should find that the (Page 21)
respondent has failed to establish that he suffered mental and nervous shock as a consequence of the offence. In support of this submission the appellant makes the following points: 1. At no point in time between 1 March 2009 and 1 July 2009 did the respondent seek counselling or a referral to a clinical psychologist or psychiatrist despite attending a doctor (in relation to his abdominal pain) within 14 days of the offence; 2. The letters written by Dr Zulqernain and Dr Hamdani make no reference to the offence or its relationship to the respondent's mental condition; 3. The respondent has not provided in support of his application a psychiatric report which sets out in detail his history, deals with the circumstances of the offence, provides a detailed summary of the psychiatrist's clinical findings on examination, provides a considered diagnosis (preferably in accordance with the Diagnostic and Statistical Manual of Mental Disorders), gives a proper consideration to causation issues or provides a prognosis; and 4. The additional documents do not in any way address the issue of the causal link, if any, between the offence and the respondent's mental condition.
Analysis 78 It is trite to say that before I can make an award of compensation in favour of the respondent for mental and nervous shock there must be sufficient evidence to enable me to conclude that I am satisfied on the balance of probabilities that the respondent did, as a consequence of the commission of the offence, suffer mental and nervous shock: Passaris v The Assessor of Criminal Injuries Compensation [1999] WADC 151. 79 I accept that the material submitted by the respondent as to his mental condition following the offence is not as detailed, precise or as comprehensive as it could be. As the appellant points out, I do not have the benefit of a psychological or psychiatric report which provides a diagnosis of the respondent's condition by reference to the Diagnostic and Statistical Manual of Mental Disorders, which sets out the reasons that have lead the practitioner to arrive at the diagnosis and which deals with the issue of the causal link, if any, between the commission of the offence and the mental condition. Nonetheless, I am satisfied on the available (Page 22)
material that the appellant did suffer, as a consequence of the commission of the offence, 'mental and nervous shock' in the form of an enduring adverse mental reaction of moderate intensity comprised of at least recurrent thoughts that he would be offended against again, fear of being alone, disturbed sleep, depression and anxiety. My reasons for arriving at this conclusion are as follows. 80 First, the respondent's account of his mental condition immediately following the offence while he was in Perth is substantially supported by the statements of Mr Raza, Mr Naseer and Mr Yousaf, while his account of his mental condition on his return to Pakistan is substantially supported by the statements of Mr Ayub and Ms Kousar. It is obviously the case that Mr Raza, Mr Naseer, Mr Ayub, Mr Yousaf and Ms Kousar are all to varying extents associated with the respondent, did not sign their statements until relatively recently and have not been cross-examined on the contents of their statements. However, I do not consider that these factors provide a basis for rejecting as unreliable or untruthful the assertions made by each of them in their statements as to the respondent's condition, particularly when there is an absence of other material which casts doubt on their credibility. 81 Second, the opinion of Dr Zulqernain as expressed in his letter dated 19 August 2009, that the respondent was suffering from 'phobic neurosis with obsessive intrusive thoughts' is consistent with the respondent suffering, for an extended period of time, from the symptoms that I have specified, namely recurrent thoughts of being offended against again, fear of being alone, disturbed sleep, depression and anxiety. I take the word 'phobic' as used by Dr Zulqernain to bear its ordinary meaning of an abnormal or morbid fear and the word 'neurosis' as used by Dr Zulqernain to also bear its ordinary meaning of excessive and irrational anxiety or depression. 82 I recognise, in placing reliance on Dr Zulqernain's opinion, that it is not clear from the material provided whether his opinion was arrived at after conducting any psychiatric or psychological tests on the respondent, or whether his opinion was based solely on the respondent's account of his condition. However, given that Dr Zulqernain is apparently a qualified psychiatrist I think that it is reasonable to assume that he would not have concluded that the respondent was suffering from 'phobic neurosis with obsessive intrusive thoughts', and would not have prescribed medication for the condition, unless he was satisfied that the respondent's account of his symptoms was genuine. (Page 23)
83 I have not overlooked the fact that Dr Zulqernain does not state in his letter that the respondent's condition is caused by the commission of the offence. However, given that the condition of 'phobic neurosis with obsessive intrusive thoughts' is consistent not only with the respondent's account of his mental condition following the commission of the offence but also the observations made of the respondent by the other persons who have provided statements, I am satisfied that the offence was a material cause of the appellant's condition as diagnosed by Dr Zulquernain. 84 My third reason for arriving at the conclusion that I have is that Dr Hamdani's assessment of the respondent's condition, as stated in his letter dated 27 December 2011, is also consistent with the respondent having suffered, on an enduring basis, from the symptoms that I have identified. I note in this regard that Dr Hamdani does not express in his letter any disagreement with the opinion previously arrived at by Dr Zulqernain that the respondent was suffering from a phobic neurosis. 85 The comments that I have made above in relation to the absence of evidence that Dr Zulquernain, in arriving at his diagnosis, conducted any psychiatric or psychological tests are equally applicable to Dr Hamdani. So too are my comments concerning the absence in Dr Zulquernain's notes of any express reference to a causal link between the offence and the respondent's condition. 86 Although I am satisfied that the respondent did suffer mental and nervous shock as a consequence of the commission of the offence, I am also satisfied that the symptoms of his condition that I have identified were exacerbated by his urological condition and by the advice that he received in relation to the prosecution of the appellant. 87 As is apparent from what I have said as to the nature of the respondent's condition, I am not satisfied that the respondent's expressed fear of death was a symptom of the mental and nervous shock caused by the offence. To the contrary, in my view it is relatively clear on the available material that the operative causes of this fear were the respondent's urological condition and associated treatment in combination with the advice that the respondent received about the prosecution of the appellant. 88 Although I am satisfied that the respondent did suffer mental and nervous shock as a consequence of the commission of the offence, I am not satisfied that he will continue to suffer from this condition indefinitely. Based on the respondent's statement, the statement of his (Page 24)
mother Ms Kousar, the letter written by Dr Hamdani dated 27 December 2011 and the respondent's course of employment in 2012, to which I will refer in more detail below, I am satisfied that by the end of 2011 the respondent's condition had substantially resolved and that he continues to suffer from some minor residual symptoms only. I am also satisfied, bearing in mind the nature of the offence and the apparent continual improvement in the respondent's condition, that his condition will resolve completely at some point in the not too distant future.
Award 89 Having arrived at my above stated conclusions as to the injuries suffered by the respondent as a consequence of the commission of the offence, it remains for me to deal with the issue of the appropriate award of compensation for the injuries.
Assessor's decision 90 Given that the Assessor did not make a finding that the respondent suffered an injury constituted by bruising to his chest as a consequence of the commission of the offence, she obviously did not make any award in respect of this injury. 91 For the respondent's mental and nervous shock injury the Assessor awarded $18,000. In this regard she said the following in her written reasons [22]: Taking all these matters into account, and in particular discounting the compensation for the [respondent's] psychological injury to take account of the matters which I was satisfied that contributed to it referred to above, I determined that the appropriate compensation for the injuries suffered by the [respondent] as a consequence of the [offence] the subject of this application was the sum of $18,000. I note that I considered that the other matters which have contributed to his injury were responsible for approximately a quarter of its extent.
Analysis 92 The injury constituted by the bruising to the respondent's chest was on any view of the matter minor. The bruising and any associated pain would inevitably only have lasted for a few days at the most. In these circumstances I do not consider that the injury is of sufficient significance to warrant any award of compensation. (Page 25)
93 I turn to the amount of compensation to be awarded to the respondent for the mental and nervous shock that I have found that he suffered as a consequence of the commission of the offence. 94 There are cases in which it has been suggested that in determining an appropriate award of criminal injuries compensation it is not appropriate for the court to take into account awards made in other cases because it is not possible for the court to know if it is comparing like with like: Asjes v Assessor of Criminal Injuries Compensation (Unreported, WADC (Commissioner Nisbet), Library No 4169, 23 September 1994) 7 - 8; De Florenca v Hayden [2007] WADC 54 [16]. However, in other cases a contrary view has been expressed: TAW v NJS; Re Faengsungnoen [2012] WADC 59 [13]. 95 In my view there is no reason why a court, in determining an appropriate award of criminal injuries compensation, should not have regard to awards made in other similar cases provided, of course, that it is kept firmly in mind that no two cases are the same and that the award made in the case in question must be appropriate to the particular facts and circumstances of the case. To this end I have reviewed some of the more recent decisions of criminal injuries compensation assessors and judges of this court in which awards of compensation have been made for mental and nervous shock. I consider it appropriate to have regard to the decisions of assessors given that they are specialists in the field of criminal injuries compensation. 96 The mental and nervous shock suffered by the respondent as a consequence of the offence is reasonably significant. It has had a considerable impact on his quality of life. It has lasted for a relatively lengthy period of time. It may be that others who are the victim of an offence similar to that committed against the respondent would not suffer mental and nervous shock to the extent that the respondent has. However, that is not to the point. My task, in assessing the amount of compensation to be awarded to the respondent, is to focus solely upon the injury suffered by the respondent as a consequence of the commission of the offence. 97 Having said this, and paying due regard to the Assessor's position as a specialist in the field of criminal injuries compensation, I am of the view that the Assessor's award of $18,000 for the respondent's mental and nervous shock is in all the circumstances excessive. In my view, applying ordinary tortious principles for the assessment of damages, and taking into account to a limited extent awards made in other cases for (Page 26)
mental and nervous shock, an appropriate award of compensation for the respondent's mental and nervous shock is $14,000. 98 In deciding that an award of $14,000 is appropriate I have borne in mind my finding that the respondent's urological condition and the notification provided to him of the appellant's conviction for the offence exacerbated a number of his mental and nervous shock symptoms. The respondent cannot be compensated for the exacerbation of his symptoms caused by his urological condition. Nor can he be compensated for the exacerbation of his symptoms caused by the notification given to him of the appellant's conviction. The exacerbation of the respondent's symptoms caused by these factors is not an injury suffered 'as a consequence of the commission of the offence'. Accordingly, the award of $14,000 reflects my view as to the appropriate amount of compensation for the mental and nervous shock suffered by the respondent solely as a consequence of the offence. 99 I do not consider that the respondent's failure to seek psychiatric or psychological treatment or counselling while in Perth following the commission of the offence amounted to a failure to mitigate his loss such that his award of compensation should be reduced. The respondent was a young man from Pakistan. He was in a country he was not familiar with. He had only been in Perth a short time when the offence was committed. After the commission of the offence he was required to deal with, and obtain treatment for, his urological condition. He returned to Pakistan a little over a month after his surgery. In these circumstances I do not consider that the respondent's failure to seek psychiatric or psychological treatment in Perth after the commission of the offence was unreasonable. Furthermore, according to Dr Zulqernain's notes the respondent first consulted him on 28 July 2009, that is, approximately four weeks after his arrival back in Pakistan. Accordingly, I do not consider that the respondent took an unreasonable amount of time to seek psychiatric help once he was back in Pakistan.
Ground 3 – award for economic loss excessive
Evidence 100 In his statement the respondent makes the following assertions in relation to the issue of economic loss: 1. When he changed his course of study so that nobody could trace him, only 40% of the paid course fee, namely $2,000, (Page 27)
was refunded to him. He therefore suffered a loss of $3,000. He paid a further $1,700 for admission into his new course; 2. On 31 March 2010 he requested his previous employer in Pakistan to extend the period of his leave. However, his employer dismissed him; 3. In July 2011 his employer re-employed him but fired him on 30 September 2011 due to his unsatisfactory performance caused by his psychological problems; 4. By mid-June 2010 he had spent all of the money that he had set aside for studying in Australia on his 'medical treatment and daily routine expenses' in Australia and Pakistan; 5. In mid-2010 his mother sold items of her personal property so that she could meet his medical expenses and support him financially; and 6. His loss of income is 'proved through the Certificate issued by the Principal of Bostan High School Sargodha ... and my bank statements'. 101 In support of his application for compensation the respondent provided a copy of a letter written by Mr Malik Abbas, the principal of Bostan High School which is located in Sargodha, Pakistan. The letter is addressed to 'To Whom it May Concern' and is dated 7 February 2012. The letter is in the following terms: It is stated that [the respondent] was my employee as IT teacher under the registration … through order…dated 1 August 2008 for Rs. 18,500 /- per month salary. On 20th January 2009, I granted him leave until 31st March 2010 for further study at abroad on request. After the completion of his leave period, he furnished his medical certificate stating his psychological disorder and also accompanied with his application to extend his period of leave. Unfortunately, owing to shortage of IT staff, I was unable to allow him more extension in leave. Therefore, he was fired from his job on 31st March 2010. Moreover, on 1 July 2011 he was again hired as IT teacher but was dismissed on 30 September 2011 due to unsatisfied performance. The above statement is true according to the record. (Page 28)
102 The respondent also submitted a copy of his employment contract with Bostan High School dated 1 April 2012 which indicated that his salary was 18,000 Pakistani rupees (PKR) per month. 103 In the additional documents there is a copy of a further letter written by Mr Abbas as the principal of Bostan High School. The letter is again addressed to 'To Whom it May Concern' and is dated 5 November 2012. The letter is in the following terms: It is stated that [the respondent] was my regular employee as I.T. teacher under the registration … and through order…dated 1st August 2008. He was paid Rs. 18500/- per month salary for his services from August 2008 to 31 December 2008 and Rs. 20000/- per month salary from January 2009 to 20 February 2009, then he was granted unpaid leave from 21st February 2009 until 31st of March 2010. He was dismissed from his services on 31st of March 2010 because he was unable to perform his service. He was appointed again as I.T. teacher for salary Rs. 17000/- per month on 1st July 2011 and paid up to 30th September 2011. He was dismissed on 30th September. Furthermore on 1st of March 2012, he was hired third time on contract basis for his services as I.T. teacher for three months for the salary Rs. 18000/- per month and later on his contract was extended for one month more on the initial contract expiry. The above statement is true according to the record.
Respondent's claim for economic loss 104 In a document that formed part of his application which was headed 'my requested amount for compensation' (the claim document) the respondent claimed compensation for the loss that he suffered as a result of changing his academic course, the living and medical expenses that he incurred while in Australia, the living and medical expenses that he incurred on his return to Pakistan during the period July 2009 to 30 March 2012 and the amount that his mother sold her personal property for in order to support him and meet his medical expenses. He also claimed compensation for loss of income.
Assessor's decision 105 On the basis of the respondent's employment contract with the Bostan High School the Assessor found that the respondent's salary package was 18,500 PKR per month, although the contract specified the salary to be 18,000 PKR per month: Hussain [19]. The Assessor found that 18,500 PKR per month was the equivalent to $185 per month: Hussain [19]. The Assessor, on the assumption that the respondent might (Page 29)
have holidays during the teaching year, calculated that 'for a year's employment over 10 months the [respondent] would have earned approximately $1,850 a year': Hussain [19]. The Assessor concluded in relation to loss of earning and loss of earning capacity as follows [23]: I was satisfied that the [respondent] had been unable to work at least significantly due to the psychological symptoms, for the period of approximately 2 years after he returned to Pakistan. Further, I was satisfied that at least in part his decision to abandon his studies in Australia had been brought about by the psychological injury, and that this would affect the [respondent's] earning capacity in the future. On the limited information available as to the [respondent's] pre-offence earning capacity and the salary level of trained workers in Pakistan, doing the best that I could on the basis of the information available I awarded the [respondent] the amount of $5,000 compensation for loss of earning and loss of earning capacity. 106 Given the Assessor's finding that the respondent would have earned $1,850 per year and that his mental and nervous shock prevented him from working as an information technology teacher for approximately 2 years after his return to Pakistan, it would appear that the Assessor's total award of $5,000 was comprised of $3,700 for loss of earnings and $1,300 for loss of earning capacity. 107 In relation to treatment expenses the Assessor found that the respondent had paid 12,897 PKR or $132.70 for medication and for fees levied by Dr Hamdani: Hussain [17], [23]. The Assessor made this award on the basis of copies of a number of receipts for the purchase by the respondent of medication in Pakistan which the respondent filed in support of his application. The receipts disclose the amount paid for the various medications in PKR. However, on the last page of the receipts a person has written 'total 12897 = A132.70'. 108 In awarding the amount of $132.70 the Assessor said that it was not always possible for her to read the name of the medication prescribed and that it was possible that some of the medications related to the respondent's kidney condition. However, she said she was unable to identify drugs which may not have been required to treat the respondent's psychological injury and because the amounts were all relatively small she included compensation for all of the medication claimed: Hussain [17]. 109 The Assessor did not make any award of compensation in respect of the economic loss which the respondent asserts that he suffered by reason of having to change his academic course, financially support himself in (Page 30)
Australia, pay for his medical expenses in Australia and financially support himself on his return to Pakistan. Nor did the Assessor make any award in respect of the loss allegedly suffered by the respondent's mother as a result of her having sold items of personal property.
Appellant's submissions 110 The appellant submits that the respondent has failed to establish that he has suffered any loss of income as a consequence of the commission of the offence. In this context he contends that the respondent has failed to particularise his claim in a way that can be readily understood and that the letters from the principal of the Bostan High School do not adequately explain how the respondent's termination of employment is related to the offence. The appellant also points out that the respondent has not provided income taxation returns as evidence of his earnings. 111 In addition, the appellant submits that the Assessor erred by failing to factor into the assessment of loss of earnings the respondent's urological condition.
Analysis and decision 112 The economic loss which the respondent asserts that he suffered by reason of having to change his academic course, financially support himself in Australia and financially support himself on his return to Pakistan is not loss within the meaning of the Act. Similarly, the amount that the respondent's mother sold her personal property for in order to support the respondent is not loss within the meaning of the Act. These expenses and losses were not expenses that were actually or reasonably incurred by or on behalf of the respondent that arose 'directly from' the injury suffered by the respondent: the Act, s 6(2)(a). The Assessor was clearly correct in not awarding any amount of compensation in respect of these claimed losses. 113 As to the respondent's claim for medical expenses incurred by him while he was in Australia, the available material establishes only that the expenses were incurred in paying for treatment of, and medication for, the respondent's urological condition. I have already found that the respondent's urological condition was not causally related to the commission of the offence. It follows that the respondent is not entitled to any award of compensation for medical expenses that he incurred while he was in Australia. In any event, it is difficult to see how the respondent has incurred any loss in paying for his medical treatment associated with the treatment of his urological condition given that in his statement he (Page 31)
asserts that his friend Mr Naseer helped him to recover all 'the Medical Treatment Expenses from my Health Insurance Company MediBank'. 114 The Assessor's modest award of $132.70 for treatment expenses incurred by the respondent on his return to Pakistan is not challenged by the appellant. I would not disturb it. I note, although nothing turns on the issue, that my calculation of the total amount spent on medication as revealed by the copy receipts is 13,437 PKR. 115 The real issue for my determination, as is apparent from the terms of the ground of appeal and the appellant's submissions, is whether the respondent has established that he has suffered a loss of earnings or a loss of earning capacity or both as a direct consequence of his mental and nervous shock: the Act, s 6(2)(c). 116 On the basis of my findings as to the nature and extent of the respondent's mental and nervous shock caused by the offence, the respondent's statement and the terms of the letters written by the principal of the Bostan High School, I am satisfied of the following: 1. The respondent's mental and nervous shock was a material cause of him being unable to work as an information technology teacher at the Bostan High School from the date of his return to Pakistan (1 July 2009) until 1 July 2011; 2. The respondent's mental and nervous shock was the material cause of his unsatisfactory performance during his period of employment at the Bostan High School between 1 July 2011 to 30 September 2011, and that it was this unsatisfactory performance which resulted in his employment being terminated; and 3. The respondent's mental and nervous shock was the material cause of him being unable to work as an information technology teacher at the Bostan High School during the period 1 October 2011 to the end of 2011. 117 However, given my finding that the respondent's condition had substantially resolved by the end of 2011 and the fact that the respondent has worked as a teacher at the school for a number of months in 2012, I am not satisfied that the respondent's mental and nervous shock has caused him to be unable to work as a teacher for any period since the end of 2011. In summary, I am satisfied that the respondent was, as a direct consequence of his mental and nervous shock suffered as a consequence of the commission of the offence, unable to work in his chosen occupation (Page 32)
as an information technology teacher during the period 1 July 2009 to 30 June 2011 and 1 October 2011 to 31 December 2011, that is, a total period of 27 months. I am also satisfied that the respondent's urological condition did not materially contribute to the respondent's inability to work as an information technology teacher during the periods that I have identified. 118 It remains to determine the appropriate award of compensation for the respondent's loss of income caused by his inability to work as a teacher during the periods that I have specified. 119 There will be cases in which the amount of compensation to be awarded for loss of income cannot be determined by precise calculations: A v D (489). However, where the material before the court is sufficient to enable the court to calculate loss of income the necessary calculations should be performed in order to avoid the award for loss of income having the appearance of guesswork: A v D (489). I think that the present case is one in which the material before the court permits the respondent's loss of income to be calculated with a reasonable degree of accuracy. 120 The letters from the principal of the Bostan High School establish that the monthly salary that the respondent was paid during the periods of his employment with the school ranged from 17,000 PKR per month to 20,000 PKR per month. I therefore think it is appropriate to calculate any loss of income by reference to a figure of 18,500 PKR per month. Moreover, given that the respondent would, if he had been working constantly during the period July 2009 to December 2011, presumably have taken holidays, I think that it is fair to calculate loss by reference to a figure of 24 months rather than 27 months. Accordingly, and assuming for the moment that the respondent was by reason of his condition unable to secure any other less demanding form of employment, I calculate the respondent's loss of income to be 444,000 PKR. 121 In the claim document the respondent contends that during the period July 2009 to 30 March 2012 the exchange rate between PKR and Australian dollars (AUD), due to continuous inflation in Pakistan, increased constantly from 65 PKR for $1 to 95 PKR to $1. The respondent therefore calculated his loss of income for the period July 2009 to June 2010, July 2010 to June 2011 and July 2011 to 30 March 2012 on the basis that $1 was worth 65 PKR, 80 PKR and 92 PKR respectively. (Page 33)
122 I have, as I am permitted to do by s 18(2) of the Act, reviewed the official exchange rates for the AUD and PKR as at the date of this judgment. The exchange rate is a little in excess of 100 PKR to $1. It therefore seems to me that the best way of calculating any loss of income suffered by the respondent during the period July 2009 to the end of 2011 is to take the appropriate exchange rate to be 100 PKR to $1. On this basis I calculate the current AUD value of the income that the respondent has lost by reason of not being able to work as an information technology teacher at the Bostan High School for a period of 24 months to be $4,440. 123 Before I can award the amount of $4,440 to the respondent in respect of loss of income I must be satisfied that he was, by reason of his mental and nervous shock, unable to earn any income. In other words, I must be satisfied that the mental and nervous shock caused him to suffer a total loss of ability to earn income during the relevant period. 124 I am not satisfied on the material submitted by the respondent that his mental and nervous shock was of such severity that he was unable to perform any form of paid work during the period prior to 31 December 2011. Nor am I satisfied on the basis of the material submitted that conditions in Pakistan prevented the respondent from securing some form of temporary short term employment while he was not working as a teacher. However, by the same token it is impossible for me to pretend to be able to calculate with any precision the amount of income that the respondent could have earned during the relevant period in some less intellectually and emotionally demanding job than that of an information technology teacher. This being the case, and bearing in mind the degree of imprecision inherent in my calculation of the respondent's loss by reference to his earnings as an information technology teacher at Boston High School, I think that the appropriate course is to reduce the figure of $4,440 by only a relatively small amount to take account of what the respondent could have earned in some less demanding occupation. I think that reducing the figure to $4,000 is in all the circumstances appropriate. 125 I turn to the issue of loss of earning capacity. 126 With respect to the Assessor, I do not consider that it is correct to conclude that the respondent has suffered a loss of earning capacity because the injury that he suffered as a consequence of the offence contributed to his decision to abandon his studies in Australia. It does not follow from the fact that the injury in the form of the mental and nervous (Page 34)
shock suffered by the respondent as a consequence of the offence was at least a partial cause of the respondent's decision to abandon his studies in Australia that the respondent has, as a consequence of the offence, suffered a loss of the earning capacity which he had prior to the offence. The question is whether the injury has caused the complainant to suffer a loss of earning capacity. I am not satisfied that it has. In light of my findings that by the end of 2011 the respondent's condition had substantially resolved, that he continues to suffer from some minor residual symptoms only, and that his condition will resolve completely at some point in the relatively near future, I am not satisfied that the mental and nervous shock suffered by the respondent as a consequence of the offence has caused him to suffer a loss of earning capacity. I therefore decline to make any award to the respondent in respect of loss of earning capacity. 127 In summary, I am not satisfied that the respondent has suffered a loss of earning capacity as a direct consequence of the mental and nervous shock suffered by the respondent as a consequence of the offence. However, I am satisfied that the respondent suffered a loss of earnings as a direct consequence of the mental and nervous shock suffered by him as a consequence of the offence. In my opinion the appropriate award of compensation for the respondent's loss of earnings is $4,000.
Costs 128 It is not appropriate to make any order for costs against the CEO. Moreover, given that the respondent did not appear on the hearing of the appeal, did not contribute to the costs of the appeal and is not responsible for the costs that have been incurred by the appellant it is also not appropriate to make an order for costs against the respondent: Parsons v McWilliam [2002] WADC 62 [42].
Conclusion 129 For the reasons I have stated I make the following orders: (Page 35)
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