Goodwin v Baker
[2020] WADC 43
•28 JANUARY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GOODWIN -v- BAKER [2020] WADC 43
CORAM: LEVY DCJ
HEARD: 25 OCTOBER & 20 DECEMBER 2019
DELIVERED : 28 JANUARY 2020
PUBLISHED : 3 APRIL 2020
FILE NO/S: APP 12 of 2019
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: CALLUM GORDON GOODWIN
Appellant
AND
CHRISTOPHER KEVIN BAKER
First Respondent
MATTHEW CHARLES CLIFFORD HAMMOND
Second Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: L V DEMPSEY
File Number : CI 1516 of 2015
Catchwords:
Criminal injuries compensation - Appeal against amount of award - Further evidence - Whether there was a 'proved offence' - Joinder of co‑offender as respondent - Barring orders - Turns on own facts
Legislation:
Criminal Code (WA), s 304, s 371A, s 378
Criminal Injuries Compensation Act 2003 (WA), s 3, s 6(2)(b), s 12, s 42, s 55, s 56(1), s 56(2)
Road Traffic Act 1974 (WA), s 49AB(1)(c), s 60(1)
Result:
Appeal allowed
Further amounts allowed for medical expenses and past loss of earnings
Representation:
Counsel:
| Appellant | : | Mr R W Yates |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Amicus Curiae | : | Mr L W Geddes appeared on behalf of the Chief Executive Officer of the Department of Justice on 25 October & 20 December 2019 |
| Amicus Curiae | : | Mr M I Olds appeared on behalf of the Chief Executive Officer of the Department of Justice on 28 January 2020 |
Solicitors:
| Appellant | : | Tindall Gask Bentley Lawyers |
| First Respondent | : | Not applicable |
| Second Respondent | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
A v D (1994) 11 WAR 481
Baker v His Honour Judge Stone of the District Court of Western Australia [2015] WASCA 56
Bangmoro [2009] WACIC 12
Bayens v Laws [2009] WADC 3
Bothma v Hildebrand [2019] WADC 92
Cooper v Smith [2017] WADC 82
Curran v Champion [2012] WADC 9
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Gullelo v Halloran [2008] WADC 145
Guy v Hampson [2019] WADC 19
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
Kittelty v Davies [2011] WADC 1
Martin v Martin [2015] WADC 138
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Re ATS [2019] WADC 76
Re Blight [2007] WADC 52
Re Robinson [2017] WADC 18
S v Neumann (1995) 14 WAR 452
TAW v NJS [2011] WADC 187
Tidmarsh v The Assessor for Criminal Injuries Compensation [2011] WADC 173
Townend v McAlindon [2017] WADC 63
Underwood v Underwood (2018) 94 SR (WA) 57
LEVY DCJ:
Introduction
On 4 March 2016, Criminal Injuries Compensation Assessor L V Dempsey (as she then was) made an award of compensation in favour of the appellant Callum Gordon Goodwin in the sum of $7,115. The award of compensation was made pursuant to s 12(1) and s 30(1) of the Criminal Injuries Compensation Act 2003 (WA) ('the Act') in respect of injuries and losses suffered by him as a consequence of a proved offence committed by Christopher Kevin Baker on 19 March 2015 at Girrawheen.[1] The compensation award was made up as follows:
[1] Goodwin v Baker (CI 1516/2015, Assessor L V Dempsey, 4 March 2016).
Injury
$5,000.00
Lost earnings
$1,800.00
Travel expenses
$315.00
The 'proved offence' was identified by the learned assessor to be the conviction imposed upon Mr Baker in the District Court at Perth on 10 July 2015 for the offence of, with intent to harm, doing an act as a result of which the life, health or safety of any person was or was likely to be endangered.[2] The proved offence was one of a number of offences committed by Mr Baker on the day.
[2] Goodwin v Baker (CI 1516/2015, Assessor L V Dempsey, 4 March 2016).
When Mr Baker was dealt with in the District Court for the proved offence, he was also convicted of stealing a motor vehicle, namely a Mazda utility owned by David John Arbuckle. This offence, like the proved offence, was committed on 19 March 2015. Mr Baker committed this offence with a juvenile co‑offender, Matthew Charles Clifford Hammond. Master Hammond (as he then was, but for ease will be referred to as Mr Hammond) was dealt with separately in the Children's Court of Western Australia.
The appeal is brought on two grounds:
1.The compensation award was grossly inadequate in all of the relevant circumstances; and
2.The learned assessor erred by failing to find that the injuries arose (either in part or in whole) as a consequence of a proved offence committed by Matthew Charles Clifford Hammond.
Original application for compensation and the appeal to this court
The appellant's original application for compensation nominated both offenders, Mr Baker and Mr Hammond. As already noted, Assessor Dempsey found the proved offence to be an offence committed by Mr Baker. Assessor Dempsey did not publish reasons when she made the order and has retired, so reasons cannot be requested pursuant to s 27(1) of the Act. Consequently, there are no written reasons setting out the learned assessor's findings, including why the compensation award was made only against Mr Baker and not Mr Hammond.
The appeal notice, which was filed out of time, originally only named Mr Baker as the respondent and was brought on the sole ground that the 'award was grossly inadequate in all of the relevant circumstances'. However, on the day listed for the hearing of the appeal, counsel for the appellant orally applied for leave to add a further ground to the appeal, namely that:[3]
… the [learned] assessor erred [by failing to find that] the injuries arose (either in part or in whole) as a consequence of [a proved offence] against Matthew Charles Clifford Hammond.
[3] Transcript of Proceedings, Goodwin v Baker (District Court of Western Australia, APP 12 of 2019, Judge Levy, 25 October 2019) 10.
This had the effect of adding Mr Hammond as a second respondent to the appeal and he subsequently became a respondent to the appeal. I also ordered that the Commissioner of Police produce to the District Court a copy of the Western Australia Police prosecution brief relating to Mr Hammond for any offence relevant to this matter. The hearing of the appeal was adjourned to enable the appellant to serve Mr Hammond with the amended Notice of Appeal and any relevant material.
On 5 December 2019 an order was made that, in lieu of personal service of the appeal notice on Mr Hammond, there be substituted service by publication of these proceedings in the Public Notices of the West Australian newspaper.
Prior to the first listed hearing day of the appeal, the appellant filed further evidence that he sought to rely upon in the appeal. None of that material was available to the learned assessor at the time that his application for compensation was originally determined.
The primary issues to be determined
There are four primary issues. They are:
1.whether leave to appeal out of time should be granted;
2.whether the appellant suffered an injury as a consequence of the commission of a 'proved offence';
3.whether leave should be granted to admit further evidence; and
4.the appropriate amount of any award of compensation.
Nature of appeals to the District Court against an assessor's decision
Pursuant to s 55(1)(b) of the Act, an interested person may appeal to the District Court as to the amount of a compensation award by an assessor.
The appeal is a hearing de novo and the appellant is not required to demonstrate error on the part of the assessor.[4] The court may confirm, vary or reverse the assessor's decision in whole or in part.[5]
[4] The Act s 56(1); Gullelo v Halloran [2008] WADC 145 [5].
[5] The Act s 56(2)(b).
The court is required to consider the appeal 'solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information.'[6] The appellant seeks leave to rely upon fresh evidence.
[6] The Act s 56(1).
The court is to determine the appeal afresh without being fettered by the determination of the assessor.[7] Authorities conflict on whether it is appropriate to have regard to the assessor's reasons. Earlier authorities suggested that it is appropriate;[8] more recently a number of authorities suggest that the appeal is to be determined without regard to the reasons for decision of the assessor.[9] In this case, since there were no reasons provided by the learned assessor it is somewhat a moot point.
Second primary issue - whether the appellant suffered an injury as a consequence of the commission of a 'proved offence'?
[7] The Act s 56(1).
[8] Hogben v Darcy [2009] WADC 63 [13]; Gullelo v Halloran [5].
[9] Guy v Hampson [2019] WADC 19 [14]; Re Robinson [2017] WADC 18 [9].
It is convenient to deal with the second primary issue first.
On the morning of 19 March 2015 a Mazda utility was stolen by an unknown offender from a property in Carine, a suburb of Perth. That vehicle was subsequently involved in a number of stealing offences throughout the day.
At about 1.10 pm on that day, police officers observed the vehicle with two male occupants in Girrawheen,[10] being Mr Baker and Mr Hammond. Mr Baker was driving. Mr Hammond, then aged 16 years, was a passenger.[11] Police activated the emergency lights and siren in an unsuccessful attempt to intercept the vehicle. Police then pursued the vehicle. Mr Baker drove recklessly and at speed, onto vacant land and parklands, through bollards and at times on the incorrect side of the road.
[10] The State of Western Australia v Christopher Kevin Baker (Sentencing Judgment) (District Court of Western Australia) IND 408 of 2015, 10 July 2015, 6 (Braddock DCJ).
[11] Statement of material facts, police brief 1341812-1, relating to prosecution of Matthew Charles Clifford Hammond with respect to the offence of steal motor vehicle pursuant to s 371A of the Code.
The appellant, who was then a First Class Constable attached to the Police Dog Squad, was in a vehicle nearby. He joined the pursuit of the vehicle driven by Mr Baker.[12]
[12] Appellant's First Statement, 5 May 2015, pars 1 ‑ 11.
During the pursuit, Mr Baker drove the Mazda utility in reverse into a police car and injuring two police officers.[13] The appellant witnessed this from his vehicle.[14] Mr Baker then drove at speed towards the appellant's vehicle causing the appellant to take evasive action.[15]
[13] Detective Senior Constable Shane Mark Hugo and Detective Senior Constable Nicholas David Armour.
[14] Appellant's First Statement, pars 13 ‑ 16.
[15] Appellant's First Statement, pars 17 ‑ 18.
Shortly after this, Mr Baker drove the stolen Mazda utility into bushes. Both Mr Baker and Mr Hammond fled on foot.
The appellant then deployed and gave chase with his Police Dog 'Anya'. After the appellant lost sight of both offenders, he and 'Anya' found Mr Baker hiding in bushes and arrested him.[16]
[16] Appellant's First Statement, 5 May 2015, pars 21 ‑ 24.
Following Mr Baker's arrest, the appellant turned his attention to locating Mr Hammond. He too was found hiding in bushes. When Mr Hammond realised he had been located, he fled on foot. As the appellant and Anya gave chase, the appellant rolled his ankle on the soft terrain and was immediately incapacitated. Other police officers were able to apprehend Mr Hammond.[17]
[17] Appellant's First Statement, 5 May 2015, pars 25 ‑ 30.
The appellant was immediately taken to Joondalup Health Campus for treatment to his injured ankle.[18] He was advised by a doctor on the day of the incident that he had suffered 'a stage 3 sprain to his right ankle.'[19] The following day, he was informed by a physiotherapist that he had 'torn [his] inferior tibiofibular ligament and damaged some nerves in [his] foot'.[20]
[18] Appellant's First Statement, 5 May 2015, par 31.
[19] Appellant's First Statement, 5 May 2015, par 5.
[20] Appellant's First Statement, 5 May 2015, par 7.
For the offences committed on 19 March 2015 the two offenders were dealt with as follows:
1.Mr Baker pleaded guilty to, and was convicted and sentenced by her Honour Judge Braddock in the District Court at Perth on indictment 408 of 2015 for the offences of:
Count 1 - stealing a motor vehicle [the Mazda utility involved] pursuant to s 371A and s 378 of the Code.
Count 2 - aggravated reckless driving [driving the vehicle to escape pursuit by police] pursuant to s 49AB(1)(c) and s 60(1) of the Road Traffic Act 1974 (WA).
Count 3 - with intent, doing an act [ramming the police vehicle with the Mazda utility he was driving] as a result of which the life, health or safety of Shane Mark Hugo [officer in the police car] was or was likely to be endangered pursuant to s 304 of the Code.
Count 4 - with intent, doing an act [ramming the police vehicle with the Mazda utility he was driving] as a result of which the life, health or safety of Nicholas David Armour [officer in the police car] was or was likely to be endangered pursuant to s 304 of the Code.
2.Mr Hammond (aged 16 at the time of the offence) was charged and convicted of the offence of stealing a motor vehicle [the Mazda utility involved], pursuant to s 371A and s 378 of the Criminal Code (WA) ('the Code'). He was sentenced by Magistrate Hogan in the Children's Court to three months detention.[21]
Mr Baker was sentenced to a total effective sentence of 3 years and 6 months' imprisonment.
[21] Papers produced by Commissioner of Police pursuant to a Notice to Produce dated 11 November 2019.
Pursuant to s 12(1) of the Act:
[A] person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered.
There is no doubt that the offences for which both Mr Hammond and Mr Baker were convicted fall within the definition of a 'proved offence'.[22]
[22] Section 3 of the Act defines a 'proved offence' as 'a crime, misdemeanour or simple offence of which a person has been convicted.'
The learned assessor was satisfied that the appellant suffered an injury as a consequence of the commission of a proved offence pursuant to s 304 of the Code that Mr Baker 'with intent to harm, [did] an act as a result of which the life, health or safety of any person was or was likely to be endangered.' In fact, Mr Baker was convicted of two separate offences pursuant to s 304. Which of these was the 'proved offence' was not identified by the learned assessor.
Satisfaction of a proved offence is not, of itself, sufficient to justify an award of compensation. An applicant for compensation pursuant to s 12(1) of the Act must also establish a causal connection between the commission of the offence and the injury or loss for which compensation is sought.[23]
[23] S v Neumann (1995) 14 WAR 452, 463 (Murray J); Martin v Martin [2015] WADC 138 [82].
When assessing whether the injury or loss was a consequence of the proved offence, in other words whether there exists a causal connection between them, there is no warrant to construe the words 'as a consequence of the proved offence, narrowly'.[24]
[24] Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, 673 (Mason & Wilson JJ) and adopted by Murray J in S v Neumann (463).
So far as Mr Baker is concerned, at the time the appellant suffered the injury he was already in police custody having been apprehended by the appellant. The appellant later sustained the injury whilst pursuing Mr Hammond.
Nonetheless, I am of the view that there is a sufficient causal connection between all of the offences committed by Mr Baker and the injury suffered by the appellant. At the time that the appellant sustained the injury, he could not have known what precise offences would ultimately be preferred against Mr Baker. Both Mr Baker and Mr Hammond had been travelling in the Mazda utility when all the relevant proved offences were committed. Both were clearly suspects, although their precise roles in each offence was not known at that time. At the very least, even if Mr Hammond was not an offender in relation to any offence, he was a potential witness. Having fled the scene, it was necessary for the appellant to purse him for various reasons, including obtaining his details so that he could potentially become a relevant witness against Mr Baker.
Even if I am wrong, there is clearly a strong causal connection between the offence committed by Mr Hammond and the injury suffered by the appellant whilst pursuing him. Mr Hammond was subsequently convicted of stealing the Mazda utility. The appellant pursued Mr Hammond who was fleeing police, having committed the offence of stealing the motor vehicle. In my view, the words 'as a consequence of the proved offence' found in s 12 of the Act is consistent with the legislature's intention that an act or omission occurring consequent to the proved offence, but sufficiently causally connected to the proved offence, falls within the requirement that the injury was as a consequence of the commission of a 'proved offence'.[25]
[25] Fagan v Crimes Compensation Tribunal.
There is a causal connection between the offence of stealing the Mazda utility committed by Mr Hammond and the injury suffered by the appellant.
Consequently, I am satisfied that the appellant suffered an injury as a consequence of the commission of a 'proved offence'. There are in fact five separate 'proved offences' being all of the offences committed by Mr Baker and Mr Hammond.
First and third primary issues - whether the appellant should be granted leave to appeal out of time; whether leave should be granted to admit further evidence
Appeals to this court must be made within 21 days from the date of the primary decision.[26] An extension of time to appeal can be allowed by the court 'if it is just to do so'.[27] The appellant seeks leave to appeal out of time. The appellant also seeks to admit further evidence.
[26] The Act s 55(4).
[27] The Act s 55(4).
It is convenient to deal with these issues together.
The learned assessor made the award of compensation on 4 March 2016.
The appellant filed his Notice of Appeal against the learned assessor's award of compensation on 19 February 2019. The appeal is approximately 2 years and 11 months out of time.
On 11 October 2019 the appellant filed numerous documents, seeking to rely upon further evidence on the appeal.
As noted above, the court is required to consider the appeal 'solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information'.[28] Further evidence should be admitted by the court unless there is some reason that makes it unjust to do so.[29]
[28] The Act s 56(1).
[29] Hinchcliffe v Hinchcliffe [2010] WADC 78 [9].
The further evidence filed by the appellant on 11 October 2019 includes:
•The appellant's statement dated 11 October 2019.
•Eight (8) letters from Mr Anthony Geddes, Orthopaedic surgeon, to Dr L Cullen, in the period between 20 November 2017 and 31 January 2018.
•Medical Notes from Quinns Mindarie Super Clinic.
•Clinical notes from Arena Joondalup Physiotherapy Clinic.
•Clinical notes from Jindalee Physiotherapy Clinic.
•Appellant's statement of his medical report costs.
•Appellant's WA Police Health and Welfare Medical file.
I have also received the file and materials that were originally available to the learned assessor. None of the further documents were before the learned assessor when the original award of compensation was considered, mostly as they were not produced until after the date of the award.
It is also relevant to consider the events that occurred subsequent to the appellant's original application.
By 15 May 2015, the appellant's understanding of his injury and its consequences was as follows:
1.As noted above, on the day of the incident the appellant was advised by a doctor that he had suffered a sprain to his right ankle. The next day he discovered that he had 'torn [his] inferior tibiofibular ligament and damaged some nerves in [his] foot'.[30]
[30] Appellant's second statement dated 5 May 2015, par 7.
2.He was unable to work for four weeks following the injury and when he returned to work was placed on light duties. He was then not capable of resuming work within the Canine Unit given the need for a high level of physical health and fitness. He was also instructed to use crutches for two weeks.[31]
[31] Appellant's second statement dated 5 May 2015, pars 8 ‑ 9.
3.The appellant continued to seek and receive physiotherapy treatment to his right ankle and leg in the period following the injury and leading up to the award of compensation dated 4 March 2016.
4.There were numerous indirect consequences flowing from the injury the appellant suffered, including:[32]
(a)an inability to exercise or play sport;
(b)increased stress leading to problems in his relationship with his girlfriend, family members and friends;
(c)sexual difficulties;
(d)loss of self‑esteem;
(e)ridicule from colleagues;
(f)weight gain;
(g)loss of fitness; and
(h)loss of income due to an inability to work as a dog handler, including night duty.
[32] Appellant's second statement dated 5 May 2015, pars 10 ‑ 20.
The application for compensation was made on or about 21 May 2015. At that stage, based upon the medical advice he had received, he believed that his injury had stabilised. Although he continued to receive physiotherapy treatment, he believed that little more could be done to medically assist him. His claim for compensation was determined in early March 2016. On the available medical information, the appellant accepted the amount of compensation allowed.[33]
[33] Appellant's further statement, 11 October 2019, pars 3 - 8.
He subsequently attempted to return to his 'normal' routine and lifestyle, including the resumption of his role within the Canine Section of the police service. He also returned to playing soccer. He continued to suffer pain and discomfort, at times, 'excruciating pain'.[34] The appellant continued to intermittently seek physiotherapy treatment for his injury.
[34] Appellant's further statement, 11 October 2019, par 19.
In mid to late 2017, frustrated with the lack of improvement to his ankle, the appellant sought out the services of a different physiotherapist, Ms Naomi Udjak. On Ms Udjak's recommendation, the appellant had further scans of his ankle. Following these scans, he was referred to Mr Anthony Geddes, an orthopaedic surgeon. Following further X‑rays and an MRI scan, the appellant underwent surgery, namely an arthroscopy and open surgery on the left and right sides of his right foot.[35]
[35] Appellant's further statement, 11 October 2019, pars 29 - 30; letter from Mr Anthony Geddes, orthopaedic surgeon, 17 January 2018.
Post‑surgery, the appellant was required to wear a cast on his right foot for two weeks, then a moonboot for a further 12 weeks.
The appellant was either on sick leave or restricted duties in the period between 17 January 2018 and 8 December 2018. The further consequences of his injury and treatment in the period between the award of compensation and the appellant's statement dated 11 October 2019 included:[36]
1.reduced earning capacity and income and increased financial stress;
2.the inability to properly carry out his duties as a dog‑handler resulting in him leaving that unit;
3.loss of self‑esteem as a consequence of an inability to live a 'normal life';
4.further stress in his personal relationships, including with his partner;
5.additional pain and suffering and emotional and psychological stress; and
6.scarring to his ankle.
[36] Appellant's further statement, 11 October 2019, pars 31 - 38.
In considering whether to allow an extension of time to appeal, the court is required to consider those matters set out in Underwood v Underwood,[37] including:
1.the length of the delay;
2.the reasons for the delay;
3.whether the length and reasons for the delay have been adequately explained;
4.the applicant's prospects of success; and
5.any prejudice to the respondent.
[37] Underwood v Underwood (2018) 94 SR (WA) 57.
Save for the question of prejudice to the respondent, the appellant addressed these issues in his affidavit filed 4 February 2019; his statement dated 11 October 2019 and the further materials. The appellant was not aware of the extent of his injuries until after he underwent surgery on 17 January 2018 and subsequently received Mr Geddes medical report on 29 January 2019. He lodged his appeal six days later.
Acknowledging that there is clearly some prejudice to the respondent in this case, and being aware of the ability to make a barring order pursuant to s 45 of the Act, it is appropriate to allow an extension of time to appeal as well as to admit the further evidence given the history of the injury, medical advice and treatment and the appellant's understanding of these issues.
Fourth primary issue – quantum of damages
The appellant seeks compensation under different heads. They are dealt with separately.
Compensation for the injury (non-economic loss)
The maximum amount of compensation which may be awarded is $75,000.[38] This is a jurisdictional limit only, and is not reserved for the most serious cases.[39] In determining the appropriate amount of compensation, regard must be had solely to the injury suffered by the appellant in consequence of the commission of the offence.[40]
[38] The Act s 31(1).
[39] S v Neumann (463).
[40] Townend v McAlindon [2017] WADC 63.
The quantum of damages for non-economic loss must be 'fair and reasonable compensation for the injuries received by the appellant and the disabilities caused, having regard to current general ideas of fairness and moderation. The amount must be proportionate to the particular situation of the [appellant]'.[41] In determining the quantum of damages for the injury itself, such injury includes not only bodily harm, but also the mental harm,[42] namely the emotional and psychological issues detailed in the material, including:
1.the nature and extent of the injury;
2.the treatment for the injury;
3.the effect that the injury had on the appellant's life, immediately after the injury, before undergoing surgery and after he underwent surgery; and
4.the scarring left after surgery.
[41] Bothma v Hildebrand [2019] WADC 92 (Gething DCJ).
[42] The Act s 3.
There is limited utility at looking at other cases setting out awards of compensation as no two cases are identical.[43] Nonetheless, I have considered a number of other cases including: Re Blight,[44] Re ATS[45] and Bangmoro.[46]
[43] Bothma v Hildebrand; TAW v NJS [2011] WADC 187.
[44] Re Blight [2007] WADC 52.
[45] Re ATS [2019] WADC 76.
[46] Bangmoro [2009] WACIC 12.
In all the circumstances, the appropriate award of compensation for the injury is $20,000.
Loss of earning capacity
Section 6(2)(c) of the Act defines 'loss' as 'loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim.'
Although the Act speaks of 'loss of earnings', the recognised position in Australia is that it is the loss of earning capacity, not loss of earnings itself, that is ordinarily the subject of compensation.[47] Relevantly, loss of earnings has been considered to include a reference to loss of earning capacity.[48]
[47] Medlin v State Government Insurance Commission (1995) 182 CLR 1, 3 (Deane, Dawson, Toohey & Gaudron JJ), 16 (McHugh J); Kittelty v Davies [2011] WADC 1 [228] (Derrick DCJ).
[48] A v D (1994) 11 WAR 481, 495 (Nicholson J, Ipp J agreeing).
The appellant supplied a schedule of payslips/ loss[49] relating to the period following the injury. In total, he claims $9,189.25 as the amount he lost in overtime and shift penalties. Economic loss for lost shift penalties and overtime may be recoverable, provided the appellant is able to show that they arose as a direct consequence of the injury he suffered.[50]
[49] Appellant's further evidence on appeal, 41 ‑ 42.
[50] Cooper v Smith [2017] WADC 82 [20] ‑ [23] (Derrick DCJ).
I am satisfied on the materials that the loss of income arising from lost opportunity to earn overtime and shift penalties did arise directly from the injury the appellant sustained on 19 March 2015.
Applying the nominal tax rate of 30% to the total of $9,189.25,[51] I allow the sum of $6,432.48 for loss of earning capacity.
Claim for the cost of medical reports and other medical expenses
[51] Bayens v Laws [2009] WADC 3 [56] - [57].
The appellant also claims the costs associated with obtaining medical reports, notes and materials. They are:
Arena Joondalup physiotherapy notes
$60.00
Move Forward Jindalee physiotherapy notes
$95.00
Quinns Mindarie Super Clinic
$176.00
Medical report of Dr Anthony Geddes
$3,960.00
Expenses associated with obtaining medical reports or materials relating to the injury suffered and which are reasonably incurred fall within the definition of 'loss' pursuant to s 6(2) of the Act.
I am satisfied that the appellant suffered a loss of $4,291 in obtaining the medical reports, notes and materials set out above.
Other compensation received by the appellant
In the period following the injury, the appellant was paid sick leave in the sum of $5,806.72 by his employer, the Commissioner of Police for Western Australian. Medical expenses totalling $18,011.85 were also paid on his behalf. The total sum of other compensation paid by the Commissioner of Police to the appellant was $23,818.57.
Counsel for the appellant produced evidence to demonstrate that there was no overlap between the amounts claimed pursuant to the Act and the amounts paid to him by the Commissioner of Police.[52]
[52] Various emails between Richard Yates, counsel for the appellant and Jim Anderson, Executive Manager, Claims Management Unit, WA Police Service and Nick Di Pietro, Claims Management Unit, WA Police Service, 31 July 2019 - 24 October 2019.
Pursuant to s 42(3) of the Act, an assessor is required to deduct from a compensation award any amount that the applicant has received by way of compensation or damages, or under a contract of insurance for injury or loss. This must be deducted after the jurisdictional maximum has been applied (if applicable).[53]
[53] Baker v His Honour Judge Stone of the District Court of Western Australia [2015] WASCA 56 [39] ‑ [50] (Buss, Newnes & Murphy JJ).
Medical expenses and sick leave paid to the appellant by the Commissioner of Police fall within the definition of compensation for the purposes of s 42(3) of the Act and must be deducted from any award of compensation.[54]
[54] Cooper v Smith [64] (Derrick DCJ).
Conclusions
In this appeal I am satisfied that:
1.Leave to appeal out of time should be granted.
2.It is appropriate to admit the fresh evidence.
3.The appellant suffered injury as a consequence of the commission of a 'proved offence', namely the four offences committed by Christopher Kevin Baker and the offence committed by Matthew Charles Clifford Hammond, all of which were committed on 19 March 2015.
4.I have also determined (taking into account the sick leave and medical expenses paid by the Western Australian Police service, a total of $23,818.57, and applying the method set out in Cooper v Smith[55] that the total compensation payable to the appellant will be varied to the sum of $31,038.48, inclusive of the $7,115 already paid to the appellant. The amount is made up as follows:
[55] Cooper v Smith namely initially including the amount of $23,818.57, applying the jurisdictional limit if necessary, then reducing the total amount by $23,818.57 to arrive at the amount payable to the appellant.
Injury
$20,000.00
Medical reports
$4,291.00
Travel
$315.00
Loss of earning capacity
$6,432.48
Barring order – s 45(1)(a) of the Act
The learned assessor made a barring order in favour of Mr Baker in relation to the original compensation award. The making of a barring order pursuant to s 45(1) of the Act is not appealable.[56]
[56] Tidmarsh v The Assessor for Criminal Injuries Compensation [2011] WADC 173; Curran v Champion [2012] WADC 9; Martin v Martin.
Mr Olds as amicus curiae helpfully drew the court's attention to various authorities and submitted that it is arguable that the original barring ordered also covered Mr Hammond. In the event that it does not, and bearing in mind that he was a juvenile at the commission of the offences and has not been heard in this appeal, it is appropriate that I make a further barring order pursuant to s 45(1)(a) of the Act specifically relating to him.
Orders
Leave to appeal out of time is granted to appeal.
The application to admit the fresh evidence is granted.
The appeal is allowed and the award of compensation varied to the total sum of $31,038.48, inclusive of the $7,115 already paid to the appellant.
The amount is made up as follows:
Injury
$20,000.00
Medical reports
$4,291.00
Travel
$315.00
Loss of earning capacity
$6,432.48
There will be an additional barring order made in favour of Matthew Charles Clifford Hammond pursuant to s 45(1)(a) of the Act, barring proceedings under pt 6 of the Act in respect of this compensation award.
No order as to costs.
To avoid any doubt, the additional amount that is now payable to the appellant (over and above the sum of $7,115 he has already been paid) is $23,923.48.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DF
Associate to Judge Levy3 APRIL 2020
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