GP
[2019] WADC 75
•7 JUNE 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GP [2019] WADC 75
CORAM: BRADDOCK DCJ
HEARD: 17 APRIL 2019
DELIVERED : 7 JUNE 2019
FILE NO/S: APP 89 of 2018
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: GP
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: C F HOLYOAK-ROBERTS
File Number : WACIC 154 of 2017
WACIC 155 of 2017
Catchwords:
Appeal - Criminal injuries compensation - Person charged but not brought to trial - Person not charged - Quantum of damages - Post-traumatic stress disorder - Psychiatric injury - Economic loss - Medical expenses
Legislation:
Criminal Injuries Compensation Act 2003 (WA), s 16, s 17
Result:
Appeal allowed
Fresh award made
Representation:
Counsel:
| Appellant | : | Mr N Morrissey |
| Amicus Curiae | : | Ms Salsano appeared on behalf of the Chief Executive Officer for the Department of Justice |
Solicitors:
| Appellant | : | CLP Legal Pty Ltd |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Gullelo v Halloran [2008] WADC 145
Hogben v Darcy [2009] WADC 63
TAW v NJS [2011] WADC 187
BRADDOCK DCJ:
This is an appeal from the decision of an assessor of criminal injuries compensation made on 17 September 2018. On that date, the assessor awarded GP the sum of $5,768 in compensation for injuries and losses and the costs of medical reports obtained. The assessor, in considering the matter, had before her the following materials submitted with the original application:
1.Incident report number 230316123014991;
2.Incident report number 290316094515586;
3.Material from Western Australian police service file (redacted);
4.Restraining order number 201601054;
5.Statements to the police dated:
(a) 30 March 2016,
(b)30 March 2016 at 9.15 pm,
(c)29 March 2016,
(d)23 March 2016, and
(e)4 January 2017;
6.Letter from Pat Thomas House Inc;
7.Report from Dr Frederick Ng dated 7 June 2018; and
8.Tax invoice and receipt from Dr Ng.
By her application dated 16 December 2016, GP sought compensation in relation to a common assault on 23 March 2016, allegedly perpetrated by MG. The application was brought, on its face under s 12 and s 17 of the Criminal Injuries Compensation Act 2003 (the Act) which deal with a proved offence, where an offender is convicted, and where no person is charged, respectively. I infer that there was a second application for criminal injuries compensation. The one referred to above is 154 of 2017. In the award, there is also reference to 155 of 2017, the papers for which have not been made distinctly available, although the materials cover both the assault and alleged breaches of a violence restraining order in the days following the assault.
In addition to those documents before the assessor, the appellant seeks to rely upon further evidence as follows:
1.Report from Jan Kinghorn, counsellor, dated 19 May 2016.
2.Letter from Ms Shelley Micale, of Anglicare WA dated 21 November 2018.
3.Report of Dr Frederick Ng, dated 6 February 2019.
4.Tax invoice from Dr Frederick Ng, dated 7 February 2019.
5.Statement of Ms Jane Balmer, dated 27 March 2019.
6.Letter from Ms Kylie Dunjey of Relationships Australia, dated 28 March 2019.
7.Statement of GP, dated 1 April 2019.
8.Letter from CLP Legal Pty Ltd to Dr Frederick Ng dated 2 April 2019.
9.Centrelink records.
10.Australian Tax Office records.
11.South Metropolitan TAFE records.
Pursuant to s 56 of the Act, the District Court, on appeal, is to decide the application afresh on the evidence and information that was in the possession of the assessor, but may admit further evidence and information. The District Court is not fettered by the assessor's decision, thus the appeal is determined as a hearing de novo: s 56(1) of the Act: Gullelo v Halloran [2008] WADC 145 [5].
It is open to the District Court to confirm, vary or reverse the assessor's decision either in whole or in part: s 56(2)(b) of the Act. The assessment is by way of the application of the ordinary principles for the assessment of damages, subject to the Act and the jurisdictional limit: s 31, s 34. Thus, the appellant does not have to demonstrate error on the part of the assessor in order to succeed. It is however appropriate to give due regard to the reasons of the assessor as a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63 [13].
I admitted the further information set out above as evidence on the appeal, as it was relevant to the matters in issue. There is no formal restriction on the admission of further material, in the interests of justice.
Circumstances of the offences
The incident referred to in application 154 of 2017 occurred on the night of 23 March 2016 in Fremantle. GP was attending TAFE in Fremantle. After she had finished class, she met her then boyfriend, MG, outside the campus. They walked to the food court near the Fremantle Markets. She informed MG at this time that she no longer wished to see him because of his behaviour towards her.
MG became abusive, pulled her hair and hit her with his fist to the left side of her face near her ear. She managed to break away from MG and ran off, calling for help. Members of the public intervened and assisted her. He was shortly apprehended. He was arrested and taken to Fremantle Police Station. She attended Fremantle Police Station to make a statement. At that time GP did not seek medical assistance.
MG was charged with common assault in circumstances of aggravation. He was held in custody, appeared in court and was remanded on bail to 15 April 2016. There were protective bail conditions. Furthermore, GP sought and obtained a violence restraining order against MG.
On 15 April 2016, MG failed to appear in the Fremantle Magistrates Court to answer his bail. An arrest warrant was issued. As at the date of hearing of the appeal, MG had not been located or arrested. He has not attended court in relation to the criminal matter or these proceedings.
I conclude that the second numbered application 155 of 2017, concerns breaches of the violence restraining order mentioned above. The order was issued on the afternoon of 24 March 2016. It was served upon MG on 25 March 2016. After that, GP received a call at 8.16 pm the same evening from a number unknown, which she believed to be MG. She swore at him and hung up. The phone rang again immediately and a voice that she recognised as MG said 'I love you'. She hung up. The phone rang a third time and MG threatened her saying 'my brother died today in a car crash and you dog I am going to kill you.' GP hung up. She later received a further three or four calls which she rejected.
More calls and attempted calls followed later that evening. There were multiple calls which she did not answer on 27 March 2016, mostly from withheld numbers. On 30 March, GP complained to the police that she had received seven further text messages and over 30 phone calls from MG's number. As the police were unable to locate MG, he was never interviewed in relation to these allegations.
As a result of the behaviour of MG, on 24 March 2016, GP and her child took refuge at Pat Thomas House, a women's refuge. Correspondence from the refuge confirms this. Staff there attempted to assist her in obtaining suitable longer term housing in the Mandurah area.
The correspondence shows that there were a number of personal difficulties which she had to overcome as a result of the events in the next few days, such as: obtaining her belongings, having the violence restraining order served, reporting breaches of it to the police, dealing with her studies at TAFE, child care and Centrelink. Pat Thomas House assisted her in relation to these matters and there are references to getting her to seek a mental health plan and support. Her response was that she was okay and did not need medication.
GP did not seek medical assistance, whether for her physical or any other difficulties at this time.
The assessor's decision
On 24 August 2018, the assessor of criminal injuries made an award of $4,310 plus $1,458 for future treatment. That award was broken into $2,500 for injuries, $1,760 for medical reports and $50 for travel expenses. The sum for future treatment was calculated on the basis of 12 sessions with a clinical psychologist after the Medicare rebate.
On 17 September 2018, the assessor published reasons for decision. After summarising the facts of the incidents, the other evidence in relation to GP's accommodation after the incident, the psychiatric report from Dr Frederick Ng, the assessor found that the alleged offences were perpetrated upon GP as described. She was satisfied that GP suffered a degree of physical injury, causing immediate pain, discomfort and shock. She further suffered psychological trauma associated with the first incident and to a lesser extent with the second incident. She said she took into account the duration of the applicant's relationship with the alleged offender. The assessor determined that in relation to the first incident the sum of $2,000 was appropriate compensation. With respect to the second incident a global award of $500 was made. Based upon Dr Ng's recommendations, the assessor accepted that GP would benefit from eight to 12 sessions of trauma specific individual psychotherapy. The assessor made allowances for treatment in the sum mentioned above.
GP appealed to this court by notice dated 4 September 2018. The appeal therefore is lodged within time and no question of an extension of time arises.
Assessment
GP is a young woman, born on 4 October 1995, who at the time of the assault and other incidents was 20 years of age. She was born in Kalgoorlie and grew up in Perth as part of a large family. She completed Year 10 at school. She left school early as she fell pregnant. She now has a young daughter. She started studies at TAFE, in self-development and leadership, apparently at the beginning of the academic year 2016. Prior to the incidents, she was generally physically healthy and described herself as a confident, outgoing, sociable person.
She met MG in January 2016, after which she described that he forced himself into her life. Over a period of about eight weeks, he intimated her, threatened her verbally, abused her, locked her in her house, assaulted her and would wait outside of TAFE for her to finish lectures. She said that he was controlling and obsessive of her.
She told Dr Ng that the incident on 23 March 2016 left her feeling very frightened, hurt and depressed. In the following days, she had multiple calls from him. As a result she said that she was obliged to stop her studies at TAFE, lost contact with her friends and acquaintances, was not able to go out freely, had to 'dump' her mobile phone so that he could not contact her, change her daughter's school and move house. She felt unsafe, due to MG and his behaviour. She reported to Dr Ng at first that she remained frightened of MG and frightened of the fact that he might find out where she lived.
She had three counselling sessions through Allambee Counselling Services, to which she was referred by her housing support agency. Subsequently, she went to Relationships Australia for further counselling. At the time of the first report of Dr Ng, she was generally anxious, did not trust men, stayed at home most of the time, was frightened to go out and when she did she was hypervigilant of her surroundings. Her moods were unstable, her sleep was disturbed. She experienced some ongoing bad dreams about MG. She described herself as avoiding Fremantle, lacking self-confidence and having an erratic appetite. She was socially withdrawn and uninterested in any future relationships.
Dr Ng, made a diagnosis based on the history, his mental state examination and the documents provided, that she was suffering from post-traumatic stress disorder with associated depressive symptoms. He described it, at its worst, to be a moderate to moderately severe extent and partially treated. His opinion was that the physically, sexually and verbally abusive relationship of eight weeks had been a contributing factor. He recommended at least eight to 12 sessions of trauma specific individual psychotherapy, which would cost $355 per session if provided by a consultant psychiatrist at the currently published AMA rate. She should seek treatment from her doctor if the systems persisted, especially the depressive component. As to prognosis, Dr Ng's opinion was that with further passage of 12 months, he would expect psychiatric improvement to occur. His report was dated 7 June 2018.
On 6 February 2019, Dr Ng provided a further report in answer to specific questions posed by the appellant's solicitors. He expressed the opinion that the specific incidents (that is the assault and harassment) did materially and significantly contribute to the existence of post‑traumatic stress disorder. He said it was not possible to suggest that the post‑traumatic stress disorder came about solely as a consequence of the specific incidents. Dr Ng was further asked to apportion a percentage of responsibility between the incidents and the effects of the pre-existing relationship. His opinion was that the specific incidents contributed approximately 40% to the existence of the post-traumatic stress disorder. His reasons were that the incidents came at the end of the relationship and in light of the nature of the alleged multiple and unreported incidents of abuse, the specific incidents were more likely than not to have caused distress ranging from moderate to significant, given her adverse experiences with the offender over the preceding weeks. Dr Ng noted that he referred to the existence of the post-traumatic stress disorder rather than the precipitation of it, because it was unclear to him exactly when the post‑traumatic stress disorder arose in the course of the eight‑week relationship with the offender.
GP's claim is primarily for psychological injuries as a result of the assault on 23 March 2016 and the subsequent breaches of the violence restraining order.
On appeal, in written submissions counsel for GP argued for compensation for loss of earnings, on the basis that GP's education had been delayed and therefore her ability to seek employment with the benefit of a certificate from TAFE had been also delayed, resulting in her current position being some two or more years behind where it should have been. She also claimed future medical expenses in accordance with the recommendations of Dr Ng, in his report of June 2018.
I am satisfied that GP suffered a compensable injury as a result of the assault on 23 March 2016 when MG punched her in the face and ear. I am also satisfied that his subsequent conduct in telephoning and texting GP in an offensive and intimidating fashion, contrary to the violence restraining order, in the following few days, caused her additional injury cumulative upon the injury caused by his physical assault. I consider the assault to be one offence and the multiple breaches of violence restraining order to be further offences and a number of related but offences for the purposes of s 33 of the Act.
The Act defines injury to mean bodily harm, mental and nervous shock or pregnancy: s 3. In relation to applications after 23 September 2003, s 35(2) deals with compensation awards for mental and nervous shock and contemplates an enduring injury which is significant and detrimental.
I am in no doubt that GP's injury, diagnosed by Dr Ng as post‑traumatic stress disorder (PTSD), satisfied those requirements, in that it is enduring and detrimental to her. I am also satisfied that the conduct of MG on 23 March 2016 and in the days subsequent to that exacerbated the condition suffered by GP.
In this instance, MG was charged with aggravated common assault, but has never been tried and convicted of it. Pursuant to s 16 of the Act, a person who suffers injury as a consequence of the commission of an alleged offence may apply for compensation for that injury and any loss suffered. An 'alleged offence' includes where a person is charged but not brought to trial for some other reason (s 16(1)(e)). I am satisfied that the assault on 23 March 2016 occurred and caused GP to suffer injury.
For the breaches of restraining order, in contacting GP by telephone, no person has been charged. Section 17 provides that where a person suffers an injury as the consequence of the commission of an alleged offence where no person has been charged, they may apply for compensation for injury and loss. I am satisfied that the acts occurred as alleged by GP, in breach of the violence restraining order, where she identified his voice and telephone number and that additional injury was precipitated by that harassment and caused GP to suffer additional consequences in the nature of psychological injury.
GP was able to return to TAFE in the middle of 2018 and obtained a Certificate III in Community Service. She has received help from her social worker and referrals to counsellors and has managed to move away from the area in which she formerly lived. She had financial and organisational difficulties in achieving these things. This much is understandable. She has clearly, as set out in her statement of impact, had a difficult time adjusting. She still suffers from flashbacks to the incident of assault outside TAFE. She says that her employment opportunities have been limited due to missing out on TAFE. Her enjoyment of classes and education has also been impaired by what happened. Her relationships with others have been impaired, she has been socially withdrawn, ashamed and lacking confidence.
Nevertheless, on 28 November 2018, she commenced work at Allambee Care as an 'early year's activities officer' for two days per week. This started as a work placement during her studies, but she was then offered and accepted a permanent position, for which she is paid.
Currently she earns $221.89 net per week. She is also in receipt of some Centrelink benefits. She has difficulty psychologically in having contact with and has no trust of men. She has not yet moved into another relationship, although she says she would like to. She avoids Fremantle area and if she does go back there she is jumpy and prone to panic attacks. She says that for a long of period of time after the incidents her psychological symptoms persisted and if anything got worse due the housing situation. However, she feels that since going back to TAFE and since obtaining employment she has been feeling better psychologically.
Counsel for GP abandoned the economic loss claim based upon her delayed education and entry into the workforce, at the hearing. In my view it is impossible to assess how GP would have progressed had the assault not caused her to leave TAFE in Fremantle when she did. She was in the early stages of her studies. She was also in a relationship with MG. She had a young child. She subsequently changed her direction of study somewhat. Her employment was due to a placement in her recent studies where she obtained her current position, which may not have eventuated on her original plan of study. I can make no financial assessment of this delay in all these circumstances.
I am satisfied that GP would benefit from ongoing psychological treatment or psychotherapy as recommended by Dr Ng, but I consider that the assessor's approach to calculating that treatment is to be preferred to that proposed by GP's counsel.
Conclusion
It is clearly difficult to be precise about what contributions the assault on 23 March 2016 and subsequent harassment of GP by MG made to her condition psychologically and how much the overall effect of the relationship she had MG otherwise caused the trauma she suffered. However, as I have already said, I am satisfied that she suffered psychological injury as well as physically injury by reason of the assault, exacerbated by his conduct in breaching the violence restraining order. If GP was vulnerable to psychological injury by that criminal conduct, then it seems to me that such vulnerability had been created by MG's extremely unpleasant conduct towards her in the previous weeks. By assaulting her in the manner in which he did, MG precipitated or exacerbated an injury and he must take his victim as he finds her.
Accordingly, in these circumstances, I am unable to distinguish the extent to which the actual assault or harassment caused her disabilities as opposed to MG's prior conduct. Dr Ng's attempts to do so, in percentage terms, I find to be highly artificial, and I do not accept his evidence in this particular.
I accept that there may have been other contributing factors to cause the degree of disability that GP suffered, but it is in my view difficult to make any rational apportionment of that responsibility to specific acts. On general principles therefore I consider that GP's condition as a whole is attributable, for the purposes of the Act, to the offences committed against her by MG: TAW v NJS [2011] WADC 187. It would, in my view, be offensive if MG were able to argue that because he had caused her to be more vulnerable by his prior conduct, his responsibility in relation the effects of to his offences against her should in any way be diminished.
In the assessment of compensation there is no mathematical formula which may be applied. It is assessed in the same way as general damages for an injury at common law. I have no doubt that the symptoms experienced by GP would have been debilitating, frightening, and had a considerable impact on her enjoyment of life. She has, however, been able to continue to care for her young daughter, and has now obtained a certificate of qualification from TAFE, pursues a career and has employment. However, she continues to have residual symptoms which interfere with her functioning.
Taking all of those factors in consideration, an appropriate award for the injuries suffered by GP is the sum of $7,500, divided $5,500 to the assault and $2,000 to the breaches of violence restraining order.
In addition, the costs of obtaining reports as claimed are allowed as follows: $1,760 for the original report of Dr Ng, plus $165 for the recent report and $50 travelling = $1,975.
Psychological or psychotherapeutic treatment is indicated and an award will be made for this, so that GP may pursue appropriate treatment. I make an allowance for 12 sessions of specialist trauma individual counselling. This is not exclusively provided by consultant psychiatrists, but often by psychologists skilled in that area. I make provision for 12 sessions in the same manner as the assessor did at [17] of her reasons in the sum of $1,458.
In submissions, counsel also claimed $3,600 for antidepressant medications. There is no evidence to support this claim. Dr Ng only said that if psychotherapy did not resolve her symptoms, her treating doctor should consider a trial of antidepressant medications. This may or may not eventuate.
The award therefore comprises:
Damages (par 40) $7,500.00
Psychological counselling subject to s 48 of the Act (par 42) $1,458.00
Costs of reports and travel (par 41) $1,975.00
Resulting in a total of $10,933.00
Accordingly, the appeal is allowed and GP is awarded a total of $10,933.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
Associate to Judge Braddock7 JUNE 2019