Gabriel v Kyanga
[2011] WADC 218
•9 DECEMBER 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GABRIEL -v- KYANGA [2011] WADC 218
CORAM: SCOTT DCJ
HEARD: 2 NOVEMBER 2011
DELIVERED : 9 DECEMBER 2011
FILE NO/S: APP 8 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: HANNAN GABRIEL
Appellant
AND
KELVIN KYANGA
Respondent
Catchwords:
Mental or nervous shock - Whether evidence that pre-existing psychiatric condition exacerbated by compensable events - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003
Result:
Appeal allowed
Award increased to $8,250
Representation:
Counsel:
Appellant: Mr R E Lindsay
Respondent: No appearance
Amicus Curiae : Ms B M Allen appeared on behalf of the Chief Executive Officer of the Department of Attorney General
Solicitors:
Appellant: S C Nigam & Co
Respondent: Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Gabriel [2011] WACIC 5
Hogben v Darcy [2009] WADC 63
Krukiewicz v Hayes [2004] WADC 242
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
MJN v MAJS (2003) 35 SR (WA) 219
Purkess v Crittenden (1965) 114 CLR 164
Watts v Rake (1960) 108 CLR 158
Wilson v Peisley (1975) 50 ALJR 207
SCOTT DCJ: This is an appeal pursuant to the provisions of the Criminal Injuries Compensation Act 2003 (Act) against the awards made by the Assessor of Criminal Injuries Compensation in favour of the appellant in respect of injuries suffered by her as a consequence of the respondent assaulting her on various occasions for which he was convicted.
The offences for which the respondent was convicted and the material facts pertaining to each of those offences are as follows.
16 April 2006
On 16 April 2006 at Mirrabooka, the appellant had visited the respondent with their son. At about 12.30 am the appellant and the respondent argued because the respondent wanted the appellant to stay over, however she did not wish to do so. The appellant went outside and rang a taxi and on her return the respondent hit her about six or seven times to the head. There was no medical report, however the appellant said in her police statement of 6 May 2006 that as a consequence of this assault the side of her head felt quite sore and she developed some lumps which took a few days to go down.
On 11 May 2006 in the Magistrates Court at Perth the respondent was convicted of aggravated common assault on his plea of guilty.
26 June 2006
The appellant and the respondent were at 41 Girrawheen Avenue, Girrawheen. The appellant was trying to go to sleep when the respondent entered her bedroom and asked the appellant to come with him in order that he could get some money from his cousin. She refused, they argued and the respondent slapped the appellant on the left hand side of the face and twisted her wrist.
The appellant went outside for a cigarette, the respondent followed, they verbally abused each other and the respondent then slapped her twice to the face and stepped on her bare left foot.
The argument continued to the front of the house. The appellant stood in the front doorway endeavouring to prevent the respondent from coming into the house whereupon he pushed her head twice into the verandah wall and punched her with a closed fist to the right side of her neck.
There was no medical evidence or other information as to whether the appellant sustained any physical injury arising from that incident.
The respondent was on 7 August 2006 convicted of three counts of aggravated common assault to which he pleaded guilty.
25 July 2006
Although as a consequence of the incident on 26 June 2006 the respondent was subject to protective bail conditions the appellant invited him to stay with her. They argued and during the argument the appellant placed the respondent's belongings outside the house and attempted to lock him out. However, he pushed his way back into the house. He punched the appellant twice to her head and slapped her about four times on both sides of her face. The appellant ran down the hallway endeavouring to escape the respondent, however he followed and continued to push her and punch her to the head.
Police observed that the appellant had sustained a slight swelling to the right side of her mouth and soreness to the right side of her head. No other information was available as to any physical injuries suffered by her during that incident.
On 7 August 2006 the respondent was convicted of aggravated common assault on his plea of guilty.
30 September 2006
On that day the appellant attended at the respondent's home to discuss relationship issues. However, the respondent was very drunk and an argument ensued.
The respondent slapped the appellant to the face following which they verbally abused each other before the respondent backhanded the appellant to the forehead.
The appellant tried to leave the house but the respondent caught up with her striking her two or three times to her head and ordered her to return to the house. He dragged her back into the house by the straps of her bag which she was carrying.
The appellant resisted and the respondent punched her to the lip and to the right eye.
Other occupants of the house arrived allowing the appellant to get out of the house but once those occupants left, the respondent gave chase to the appellant, catching up with her about two house blocks away. He grabbed her by the hair and told her to get back into the house with which the appellant complied.
Back at the house the respondent punched the appellant to the kneecaps of both legs whereafter the appellant contacted her sister for assistance.
She was taken by her brother to Joondalup Health Campus and treated. A report was provided by Dr Joel Stein in which he said that he saw the appellant at Joondalup Health Campus emergency department on 1 October 2006 at 0145 hours.
He conducted a general examination of the appellant which revealed the following:
(1)The appellant was visibly shaken.
(2)The appellant had the following injuries:
(a)a swollen periorbital region tender on palpitation
(b)swelling and bruising over her left eye which was tender on palpitation
(c)swelling over her top lip which was tender on palpitation
(d)swelling to her left jaw which was tender on palpitation
(e)redness to the right side of her neck
(f)bruising on her left shoulder and her left forearm with some surrounding tenderness and swelling
In the police incident report the injuries were described as 'serious' however there is no information which would enable any assessment to be made as to the veracity of that description and the basis upon which that description was made.
The appellant was at the time, pregnant with the baby due in approximately 11 weeks. In the maternity attendance form dated 2 October 2006 at Swan Districts Hospital the author of that form reported cramping and associated tightness radiating to the appellant's back. In the client progress notes dated 23 October 2006 the author reported the appellant as having physical pain due to violence.
Award
The assessor provided written reasons (Gabriel [2011] WACIC 5). In those reasons the assessor:
(a)was satisfied that the appellant was the victim of the offences for which the respondent had been convicted and that awards of compensation ought to be made;
(b)reported that the appellant only attended for medical treatment on the last occasion, viz the incident of 30 September 2006.
The assessor said however that although all of the incidents were violent in the assessor's view the appellant only suffered minor physical injuries in the first three incidents whereas her physical injuries were more substantial in the last.
(c)reported that there was insufficient information that these incidents exacerbated a pre‑morbid mental condition so as to justify an award referable to mental or nervous shock. To that end the assessor accepted that the four incidents would have been emotionally upsetting for the appellant but did not consider that there was sufficient information to satisfy him that mental and/or nervous shock arose from any of those incidents.
In the premises the assessor awarded the sum of $6,000 for the physical injuries with which the appellant suffered arising from these four incidents allocated as follows:
16 April 2006 $1,000
26 June 2006 $1,250
25 July 2006 $1,500
30 September 2006 $2,550
The appellant, in this appeal, claims that the assessor erred in concluding that the appellant did not suffer from mental or nervous shock injury as a result of the four offences committed against her and that the sum of $6,000 awarded to the appellant was in the circumstances manifestly inadequate.
Principles
An appeal under the Act is by way of a hearing de novo in which the court has a discretion to receive and consider evidence which was not made available to the assessor pursuant to s 56(1) of the Act.
Whilst it is an appeal which falls to be determined without being fettered by the assessor's decision, it is appropriate to have regard to the assessor's decision as a specialist in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63 [13].
It is common ground that the maximum compensation available to the appellant is $150,000 pursuant to s 31(1) and s 34(2) of the Act.
That is a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463.
The proper approach in fixing the appropriate amount of compensation is to apply the ordinary tortious principles for assessment of damages subject to the jurisdictional limit imposed by the Act: M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992).
It is not necessary for the offence or offences the subject of the application for compensation to be the sole cause of the injury: Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666, 673.
If it is not possible disentangle the consequences of non‑compensable events from the consequences of compensable events the applicant is entitled to compensation for the full injury and loss suffered if the applicant establishes that the compensable offences did contribute materially to the applicant's injury or loss: Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; MJN v MAJS (2003) 35 SR (WA) 219 [51].
Where the evidence establishes that non‑compensable events had a propensity to cause the applicant injury or loss and did contribute to the injury or loss the award of compensation will be reduced to take into account of that chance: Wilson v Peisley (1975) 50 ALJR 207; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; MJN v MAJS [52].
Compensation is payable where a person has suffered 'injury' in consequence of the commission of a proved offence. Both bodily harm and mental and nervous shock are included in that definition. The phrase 'mental or nervous shock' means more than a mere emotional reaction and means something of a more enduring character which may in both the legal sense and common parlance be described as an injury. The term includes distress, horror, disgust and other similar adverse mental reactions but does not include mere fright, humiliation or anguish: M v J and J v J, and the cases there cited.
Sufficient evidence ought to be put before the assessor or this court so as to enable an appropriate award of compensation to be made: Passaris v The Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No D990151, 1 June 1999), 5 – 6.
By s 41 of the Act in determining the amount of an award the assessor and this court on appeal must have regard to any behaviour, condition, attitude or disposition of the appellant which contributed, directly or indirectly to the injury or loss suffered by her and the amount to which she would otherwise be entitled may be reduced by such a percentage as is thought just.
Pre‑existing and subsequent injuries including a pre‑existing psychiatric illness must be taken into account in accordance with that section: Krukiewicz v Hayes [2004] WADC 242 [25].
Issues
The issues which fall to be determined on this appeal are whether, on the evidence before me:
(a)the awards made by the assessor for physical injury were inadequate;
(b)the appellant suffered mental or nervous shock as a consequence of any of these four incidents and, if so, the amount of compensation which should be awarded.
Physical injuries
Apart from the offences committed on 30 September 2006 there was no medical evidence adduced before the assessor or me concerning the injuries with which the appellant suffered as a result of the offences committed on 16 April 2006, 26 June 2006 and 25 July 2006.
As to the offence on 16 April 2006 the extent of the injuries appears to be some soreness to the appellant's head and some lumps which took a few days to go down. In respect to those injuries I do not consider that the award of $1,000 was inadequate.
With respect to the incident on 26 June 2006 there has been no information as to whether the appellant suffered any physical injury arising from that incident, I do not consider that the assessor's comment that he assumed that the appellant would at least have had some short term pain and discomfort to her face, wrist and left foot was unreasonable. I am not satisfied that the award of $1,250 was inadequate.
As to the offence committed on 25 July 2006 the only information as to the injuries sustained by the appellant appear in the statement of material facts in the prosecution of the respondent in which the police officer reported that the appellant 'sustained a slight swelling to the right side of her mouth and soreness to the right side of her head'.
On this evidence I do not consider that the award of $1,500 was inadequate.
As to the offences committed on 30 September 2006 these were by far the most serious circumstances with which the appellant was confronted.
The incident took place over some time during the course of which the appellant was repeatedly assaulted and in respect to which there was a report, as I have said, from Dr Stein. The appellant was assaulted numerous times and suffered painful injuries.
In my view the award by the assessor was inadequate. The appropriate award for the injuries sustained by the appellant is $4,500.
In the premises the total I award for physical injuries is increased from $6,000 to $8,250.
Mental or nervous shock
In written submissions in support of the appellant's appeal counsel for the appellant summarised the evidence upon which the appellant relies in support of her contention that the assessor erred in concluding that there was no evidence that the offences committed by the respondent did not exacerbate her pre‑existing mental health condition.
The matters particularised were:
1.On 28 August 2006 the appellant was accepted into Koolkuna Women's Refuge which only accepts women who are victims of domestic violence. In a letter dated 2 April 2007 a refuge worker reported that the appellant stated that she was the victim of ongoing physical and emotional abuse from her ex‑partner. The abuse continued whilst the appellant was residing at the refuge (par 26 of the submissions).
2.The medical notes from King Edward Memorial Hospital for Women dated 5 September 2006 state that in relation to the respondent the 'patient felt he was emotionally abusive towards her' (par 27).
3.The letter from Dr Stein stated that on 1 October 2006 following the incident on 30 September 2006 the appellant was 'visibly shaken from the ordeal' (par 28).
4.The letter from a clinical psychologist, Michelle Wettinger, dated 13 October 2006 reported that the appellant was feeling depressed and anxious 'which appeared to be related to her current living circumstances and her conflictual relationship with … the father of her children' (par 29).
5.The progress notes from the Eastern Regional Employment & Community Services Inc show the appellant considered taking her own life following a threat from the respondent (par 30).
6.In her statement to the police dated 1 October 2006 the appellant said that the respondent tried to put blame onto her for his violent actions (par 31).
7.In the appellant's statement to the assessor she stated that the respondent was emotionally abusive towards her and she 'became very depressed to where I started to believe all the mean things he would tell me I was' and that the respondent's abuse made her feel 'worthless' and that she considered suicide before being taken into the refuge on 28 August 2006 (par 32).
8.The appellant also stated that the domestic violence has left her feeling 'insecure' and unable to trust people.
During the hearing of this appeal counsel for the appellant adduced into evidence a statement of the appellant dated 1 November 2011 in addition to which the appellant gave evidence.
Relevantly in that statement the appellant said:
1.She first met the respondent when she was 17 years of age and commenced a relationship with him. Around 2003/2004 the respondent moved away to Meekatharra, she visited him and during her stay he first beat her. As a result she left him and when she returned to Perth she found out she was pregnant with Joseph. She chose not to tell the respondent or her parents and said it was a very stressful time for her.
2.In early 2006 she and the respondent renewed their relationship and after three months she became pregnant again.
It was about that time that she started to see a change in the respondent's behaviour. His alcohol and drug use increased and he became possessive and aggressive.
3.The domestic violence began with pushes and shoves and soon escalated. During a sustained period of domestic violence she would try to leave the respondent and end their relationship, however she kept taking him back as he would apologise and promise that he would change, that he would seek help and stop drinking and taking drugs. On each occasion she believed him.
4.However each time she took him back the physical and emotional abuse got worse. The respondent would call her awful names and stop her seeing her friends. He would accuse her of cheating on him and became increasingly possessive and paranoid.
5.As a result of the constant emotional and physical abuse she became increasingly depressed and started to believe the things he was saying to her.
6.On 24 August 2006 the situation became so bad that she considered taking her own life. In this regard the medical evidence upon which the appellant relies is at odds. In the King Edward Memorial Hospital notes of 5 September 2006 the author reports under the heading 'Suicidal Ideation/Attempt' that 'fleeting thoughts when in the company of father of baby but no attempt in the past 6 months or plans'. In her report of 18 June 2007 Ms Wettinger noted that at her first presentation on 5 September 2006 the appellant reported that she was 'not currently suicidal nor thoughts of ongoing self‑harm experiences'.
7.As a consequence she contacted Crisis Care and was taken to Koolkuna Women's Refuge.
8.She said that she married her current partner in October 2008, however as a result of the respondent's behaviour she constantly feels insecure and struggles to trust her [present] partner.
9.She often fears being hurt again both physically and emotionally. She is insecure about her appearance because of the verbal abuse and insults from the respondent and often feels as though people are looking at her and laughing.
10.She said that the respondent manipulated the situation with her and made her blame herself for what was happening and she still does as a consequence of which she feels as though she has wasted much of her life. She said she struggles to understand why she kept taking him back but at the time she simply could not leave him.
11.She said that she still suffers from depression and suffered badly from post‑natal depression after her daughter was born in December 2006.
12.She believed her post‑natal depression was exacerbated by the respondent's behaviour towards her when she was pregnant and the position she found herself in when she gave birth.
13.She said that she was sure that the violence inflicted on her by the respondent affected her mental health. It made her feel depressed especially during her pregnancy and after the birth of her daughter.
14.The violence from the respondent has meant she has ongoing relationship issues. She is still on antidepressants and suffers from a lack of self confidence and a feeling of worthlessness.
During the course of her evidence given during the appeal she said that:
(1)She was prescribed antidepressant medication in 2004 as a result of her relationship with the respondent and continued to take antidepressant medication well after she left him.
(2)She did not resume any relationship with the respondent until early 2006 and for a period of about three months the relationship was happy until such time as the respondent commenced to drink heavily and take drugs and that was when the emotional abuse commenced and from then on continued.
(3)They did not live together after they resumed the relationship. They would stay with each other for a few days.
(4)Before the first incident on 16 April 2006 there was also verbal abuse from the respondent. The violence and the verbal abuse made her feel quite depressed. Before the first incident on 16 April 2006 her ex-boyfriend rang her in front of the respondent whereupon he punched her and slapped her across the face on perhaps three occasions like she was an 'animal or something to be hit'.
(5)Between each of the four incidents for which he was convicted, he would continually verbally abuse her nearly every day to the point that she started to believe what he was saying about her. She felt like her heart was dead and that no-one loved her. She said he was calling her all of these things which made her feel worthless to the point that she wanted to take her own life. In addition he was cheating on her.
(6)In between these incidents he was threatening her that he would kill the baby she was then carrying and slapped, pushed and kicked her.
(7)She was taking antidepressant medication for about a year from 2004 and then weaned herself off. Then she started taking low doses during her pregnancy in 2006 until her son was born in December 2006 and thereafter due to post-natal depression.
The appellant has relied upon a number of medical reports and notes in support of her contention that she suffered mental or nervous shock as a consequence of the commission by the respondent of these offences. That material was available to the assessor. It is helpful to recite excerpts from those materials given that, apart from the information provided by the appellant herself, these materials comprise the only medical information which was made available to the assessor and to me:
King Edward Memorial Hospital for Women outpatient's case notes dated 5 September 2006
Reason For Referral:
… Patient on antidepressants and has a history of depression and involvement in KEMH Department of Psychological Medicine.
Client's Presentation:
Hannan presented as a tired woman with flat affect. … She reported being of Iraqi/Arabic descent. She claimed to have had a difficult childhood and at this stage she became tearful. Hannan expressed deep sorrow and frustrations throughout her life, including her current predicament of being in the women's refuge and 25 weeks pregnant.
Current Situation:
Kelvin is 33 years old. Patient felt he was emotionally abusive towards her.
Current Symptoms:
Patient reported long-standing low mood and now emotionally labile with increased anger and moodiness related to current circumstances.
Suicidal Ideation/Attempt:
Fleeting thoughts when in the company of [respondent] but no attempt in the last six months nor plans.
Patient is known to Psych Medicine due to delivering at KEMH in 2004. Patient spent some time in Cullity Unit post-delivery due to recurrent and severe depression. She was offered ongoing treatment but did not engage. In August 2005 patient assessed by DCD. Clinical psychologist and ongoing treatment offered but patient did not attend many appointments.
Hannan provided a family social history that involved significant family of origin stress, childhood physical abuse, and alcohol misuse. Plaintiff did not feel appropriately or adequately supported by her parents and this seems to be ongoing particularly with reference to her mother. … Hannan became teary at this point of discussion.
Provisional Diagnosis:
Recurrent depression, moderate to severe with angry relationship issues and a vulnerable personality.
Letter from Lynette L Gilliam, coordinator for CLAN WA Inc to Homeswest dated 26 September 2006
Hannan was referred to our service by the Department for Community Development on 20 April 2004. At that time Hannan was due to deliver her first child, Joseph. Her referral stated that Hannan had a history of severe anxiety and depression. Hannan was linked with one of our volunteers on the 12 August 2004.
Hannan's anxiety and depression was exacerbated with the birth of her son, coupled with the family home being overcrowded and being the carer for her youngest sibling. Initially Hannan found it difficult to relate to her child and her new world and found solace with old school friends with an increase in the use of substances.
During this time Hannan's family had the upheaval with the mother leaving the family to live over east … Consequently this added pressure saw Hannan unable to care for Joseph. This saw Joseph being apprehended by DCD-Mirrabooka. Eventually this saw Hannan homeless and moving from one accommodation to the next.
At the beginning of 2006 Joseph had been returned to the care of his mother, Hannan. Soon after this Hannan resumed her relationship with the father of Joseph and soon found herself pregnant with their second child. Not long after falling pregnant, the children's father became abusive and violent toward Hannan again.
Swan Hospital maternity attendance form 2 October 2006
Victim of assault 2/7 ago … complained of upper abdominal cramping associated with tightness and radiating to back. Hannan tender to palpate.
Swan District Hospital maternity attendance form 3 October 2006
2/10 – complained of tightness and upper abdominal pain radiating to back. Discomfort settled last night.
Letter – Michelle Wettinger, clinical psychologist, Department of Psychological Medicine – KEMH to Dr Dianne Loeffler dated 13 October 2006
Hannan was referred to the department of Psychological Medicine – King Edward Memorial Hospital due to a history of mood disorder and risk of developing ongoing adjustment or post-natal depression disorder.
Hannan attended an initial interview with this department on 5 September 2006 where she presented with flat affect and low mood. She stated feeling distressed and anxious, which appeared to be related to her current living circumstances and her conflictual relationships with her (sic) the father of her children and her family of origin. Hannan reported that over the past three months she has experienced a number of symptoms characteristic of mood disorder. For example, she reported low mood, easily reduced to tears, initial insomnia, poor concentration, low frustration tolerance and increased irritability.
From 5 September 2006 to current, Hannan has attended one of two scheduled appointments with this department. At the appointment on 28 September 2006 there did not appear to be much change in her presentation with the exception that she seemed more agitated and she described an increased sense of helplessness related to her living situation and management of her two year old son.
Hannan agreed to an appointment with the department's psychiatry services and it was scheduled for 13 October 2006. Hannan did not attend her psychiatry or therapy sessions at the department today.
Letter – Michelle Wettinger to Mirrabooka Mental Health Clinic dated 18 June 2007
Thank you for organising follow up for this woman who has a complex psychiatric history as listed here:
• major depressive disorder with prenatal exacerbations
• dysthymia
• previous admission to Cullity Unit
• history of substance abuse and dependence
• morbid obesity
• care and protection concerns with previous Department for Child Protection Involvement
… We can no longer provide support for her at KEMH. Her attendance at the Department of Psychological Medicine – King Edward Memorial Hospital has been erratic and we believe there are ongoing risk issues.
Referral Information
In September 2006 Hannan was referred to the Department of Psychological Medicine – King Edward Memorial Hospital due to a history of mood disorder and risk of developing ongoing adjustment or post‑natal depression disorder.
Current Situation
Hannan attended an initial interview with this Department on 5 September 2006 where she presented with flat affect and low mood. She stated feeling distressed and anxious which appeared to be related to her current living circumstances, her conflictual relationships with the father of her children and strained relationships with her family of origin. At the time of this assessment Hannan was residing at a women's refuge due to violence and substance misuse in her relationship with her partner Kelvin.
Relevant Background Information
She reported a complex childhood history that involved poor relationships with parents where she felt misunderstood and lack of emotional warmth or validation. She stated that they were strict and discipline was in the form of physical abuse as perpetrated by her father. In primary school she felt socially marginalisation [sic] by ethnic background and sustained teasing and bullying which resulted in her being ostracised by her peers. She reported that this continued into high school and despite her daily pleas and crying to her parents, she remained at school.
In mid‑2003 Hannan commenced a relationship with Kelvin who is the father of her two children. She described this relationship as volatile and involved marijuana and amphetamine use. Hannan reported that her family were critical of her relationships and she did not tell them about her pregnancy until she was 36 weeks gestation [sic].
Hannan was first known to the Department of Psychological Medicine in March 2004 … She was assessed by my colleagues, Dr Jon Rampono … and Sue Somerville …
The outcome was a diagnosis of 'moderate recurrent depression, and adjustment disorder with a mixed anxiety and depressive features and amotivational syndrome secondary to chronic marijuana use (with dependence)' … Given her presentation it was recommended that she engage in therapy and she was prescribed antidepressant medication …
From the Discharge Summary from Graylands Selby‑Lemnos Special Care Health Services – Cullity Unit … it would appear that Hannan continued to struggle to appropriately care for her baby and her mood remained low and affect was restricted … At discharge it was recommended that she continue with antidepressant medications and therapy via the Department of Psychological Medicine.
Following discharge from the Cullity Unit Hannan did not attend the therapy sessions as arranged by the Department of Psychological Medicine … The outcome was that she was offered individual counselling to focus on developing inner resources and coping mechanisms as her insecurities and anxieties appeared to overwhelm her, that she would become emotionally labile and by her own report 'self medicate' with daily marijuana use. … It was found that Hannan did not attend any arranged individual therapy or group appointments and Joseph remained in the care of the Department.
Current Symptoms
At the initial interview in September 2006 Hannan reported that over the past three months (from July to September 2006) she had experienced a number of symptoms characteristic of mood and anxiety related disorders. Her scores on the Beck Depression Inventory and Beck Anxiety Inventory were within the moderate to high range and consistent with her presentation and self‑report of depression and anxiety. For example she reported low mood, easily reduced to tears and emotional libility, poor concentration, loss of motivation, low frustration tolerance and increased irritability and agitation. … There was one reported incident of self‑harm that was impulsive and occurred in the context of an argument with her partner, whom she left shortly after discovering that she was pregnant. This incident was approximately six months ago and she stated that she was not currently suicidal nor thoughts of ongoing self‑harm experiences …
Interventions & Outcomes
From 5 September 2006 to delivery of her baby Hannan has attended one of two scheduled appointments with this Department. At the appointment on 28 September 2006 there did not appear to be much change in her presentation with the exception that she seemed more agitated and she described an increased sense of helplessness related to her living situation and management of her 2‑year‑old son.
She did attend an appointment and was seen by Dr Bassiri, the psychiatry registrar, Department of Psychological Medicine, on or about 20 October 2006 and it was her impression that Hannan was experiencing a moderate mood disorder in the context of dysthymia and significant psycho‑social stressors. Hence it was recommended that a trial of increased compliance and increased dosage of antidepressant medication (Cipramil 40 mg) and review in two weeks.
Despite a number of attempts to engage Hannan, she did not attend another appointment until two months post‑delivery of her daughter (DOB 22/12/06).
On 28 February 2007 Hannan was briefly reviewed by myself and she presented with a flat affect, slow speech, was teary throughout the interview and seemed dishevelled in attire and grossly overweight … While she appreciated the input, she also reported ongoing low mood, sleeping throughout the day and night, limited motivation, poor self‑care and weight gain of approximately 32 kg post‑natally through comfort eating.
From March 2007 to current Hannan has attended one of three scheduled appointments. At the appointment in mid‑March she presented with ongoing symptoms of depression within the moderate range and she seemed amotivational to attempt change. She stated that she had not adhered to her thyroxine or antidepressant medication regimes, respectively. However she reported that she had not returned to substance misuse or any self-harm, risk taking or suicidal ideations or behaviours. … At the time it seemed that Hannan's relationship with her mother was emotionally conflicting for her yet she relied on her support.
Hannan was offered further appointments with this Department but these were not attended. From our contact it would appear that Hannan has long‑standing dysthymia with regular periods of moderate to severe depression.
We would appreciate your follow-up with this patient as it would appear that her mental health issue [sic] have been long-standing and pre‑existed yet exacerbated by the events of her pregnancies and deliveries.
Letter – Dr Dianne Loeffler to Homeswest dated 20 March 2008
We hereby kindly request Hannan and her family be considered for priority for a housing transfer. She has had increased anxiety and depression symptoms and has been recommenced on medical therapy and counselling. Her ex-partner will shortly be released from prison and she is fearful of him.
This is the extent of the medical reports upon which the appellant relies. Whilst it is the case that the appellant in her statement of 1 November 2011 and in her evidence given during the appeal attributed a number of debilitating symptoms to the physical and emotional abuse from which she says that she has over time suffered from the respondent, those conclusions, general as they are, must carry little weight without any supporting medical diagnosis and opinion by which those symptoms are said to bear to any causal connection to the offences for which the respondent was convicted ie, the compensable incidents.
It is for the appellant to adduce evidence that as a consequence of an offence for which the respondent has been convicted she has suffered an exacerbation, in her case, of mental health issues which would fall within the definition of mental or nervous shock.
Whilst I accept that there may need to be a global approach given the nature of each of these four incidents, I would still need to be satisfied that there was a relevant causal connection.
Findings
On the evidence I have seen and heard I am satisfied as to the following matters:
(a)Prior to meeting the respondent the appellant suffered from psychological problems associated with a complex childhood history involving poor relationships with her parents.
(b)After she commenced a relationship with the respondent in or about 2003/4 and then left him she was diagnosed by Ms Somerville (report dated 22 June 2004 referred to in the correspondence from Ms Wettinger dated 18 June 2007) as having 'moderate recurrent depression, an adjustment disorder with a mixed anxiety and depressive features and amotivational syndrome secondary to chronic marijuana use (with dependence)' in respect to which she was prescribed antidepressant medication by Dr Rampono.
(c)She took that medication or other antidepressant medication for about a year before weaning herself off it.
(d)She resumed her relationship with the respondent in early 2006 during which for three months the relationship was harmonious and she became pregnant again. The respondent then began to drink heavily and take drugs resulting in the relationship becoming progressively abusive both physically and emotionally.
(e)Between 16 April 2006 and 30 September 2006 (when the compensable incidents occurred):
(i)there were unspecified occasions other than the compensable incidents when the respondent was physically abusive towards the appellant;
(ii)almost on a daily basis the respondent was verbally and emotionally abusive towards the appellant which made her feel progressively worthless with suicidal ideations;
(iii)the appellant was separated from the respondent but continued to have contact with him and meet him due primarily to the respondent continually apologising to her for his behaviour, promising that he would change, that he would seek help and stop drinking and taking drugs in respect to which she believed him. Each time she took him back the physical, verbal and emotional abuse worsened. That abuse involved calling her awful names, stopping her seeing her friends, accusing her of cheating on him and becoming increasingly possessive and paranoid.
The most recent medical report is that of Ms Wettinger dated 18 June 2007. In that report Ms Wettinger opined that it would appear that 'Hannan has longstanding dysthymia with regular periods of moderate to severe depression. In recent contact she has also described symptoms characteristic yet contextually appropriate of anxiety. '… [it] would appear that her mental health issue [sic] have been longstanding and pre‑existed yet exacerbated by the events of her pregnancies and deliveries'.
In her letter of 20 March 2008 Dr Loeffler reports 'increased anxiety and depression symptoms' and the appellant's fear about the respondent being released from prison.
Whilst one can readily understand the escalating nature of the verbal and emotional abuse being directed by the respondent to the appellant and the snowballing effect on the appellant of that abuse as to her self‑esteem, her feeling of worthlessness and her despair, none of that conduct is compensable under the Act.
And whilst one can imagine that the four incidents in which the respondent committed these offences may have been distressing, there is no medical opinion expressed as to the mental effect on her by that offending and particularly the extent (if any) to which her pre‑existing psychiatric condition had been exacerbated by that offending. The medical reports make scant mention of the compensable incidents.
The appellant had been suffering from significant psychiatric issues for many years. Whilst I accept that the respondent was abusive towards her physically on the occasions for which he was convicted, the fact is that he was also physically abusive before and during the period in which these offences were committed. In addition the respondent was verbally and emotionally abusive to the appellant on a daily basis before and in that period which made her feel worthless to the point that she wanted to take her own life.
As I have said, although in her statement of 1 November 2011 and in her evidence given during the course of this appeal the appellant lays blame on the respondent for her ongoing symptomology there is no evidence in which that symptomology is said to have been caused by or exacerbated by the compensable incidents, or any of them as opposed to being attributable to her long-term psychiatric condition and the non‑compensable behaviour by the respondent.
This is not a case where it is not possible to disentangle the consequences of non-compensable events from the consequences of compensable events. There is simply no medical evidence which attempts to explain the extent to which these incidents have caused the appellant mental or nervous shock or have exacerbated a pre‑existing psychiatric condition.
There is no more medical evidence before me in this appeal than there was before the assessor. It was open to me to receive further evidence but none was put forward.
The assessor was not, in my view, in error in finding that there was insufficient information to satisfy him that mental or nervous shock was caused by any of the compensable incidents, and I am likewise not persuaded.
In the premises the appeal will be allowed by the award being increased from $6,000 to $8,250.
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