Guy v Hampson
[2019] WADC 19
•18 FEBRUARY 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GUY -v- HAMPSON [2019] WADC 19
CORAM: BOWDEN DCJ
HEARD: 8 FEBRUARY 2019
DELIVERED : 18 FEBRUARY 2019
FILE NO/S: APP 76 of 2018
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2013
BETWEEN: KEVIN JAMES GUY
Appellant
AND
ALBERT JOHN HAMPSON
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: R GUTHRIE
File Number : CIC 561/2018
Catchwords:
Criminal injuries compensation appeal
Legislation:
Criminal Injuries Compensation Act 2013 (WA)
Result:
Compensation of $10,576 awarded
Representation:
Counsel:
| Appellant | : | In person (Ms J Black appeared as McKenzie Friend) |
| Respondent | : | Mr D G Powell |
| Amicus Curiae | : | Mr G J Stockton appeared on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Western Legal |
| Amicus Curiae | : | State SolicItor for Western Australia |
Case(s) referred to in decision(s):
Bennett v The State of Western Australia (2012) 223 A Crim R 419
Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143
CME [2018] WADC 69
Hampson [2018] WACIC 13
Hansen v Bolton [2017] WADC 25; (2017) 91 SR (WA) 137
Hatfield v Under Secretary for Law (Unreported; WASC, Library No 4012, 15 December 1980)
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
M v J (Unreported, WASC, Library No 920598, 19 November 1992)
Neall v Watson (1960) 34 ALJR 364
Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221
Pym v Richardson [2018] WADC 156
S v Neumann (1995) 14 WAR 452
Underwood v Underwood [2018] WADC 13
Watts v Rake (1960) 108 CLR 158
BOWDEN DCJ:
As at the 17 August 2017 Mr Hampson (the respondent) was approximately 74 years of age. The appellant Mr Guy was 37 years of age.
The material facts relating to the incident as stated to the Fremantle Magistrates Court on 18 December 2017 when Mr Guy pleaded guilty to common assault in circumstances of aggravation and unlawful damage are as follows:
At about 10 am on Thursday 17 August 2017 the accused (hereinafter referred to as Mr Guy) was on South Terrace in South Fremantle.
At this time Mr Guy observed Mr Hampson kicking out at a small dog. This dog had just bitten Mr Hampson on the leg and was attempting to bite him again.
Mr Guy did not observe the first bite and believed Mr Hampson was kicking at the dog maliciously.
Due to this he stopped his motor vehicle and approached Mr Hampson and grabbed him and adopted an aggressive stance. Mr Hampson tried to explain to Mr Guy what had happened and that he was 75 years old. However Mr Guy struck at Mr Hampson with both fists to the chest/collar bone area. Mr Guy was yelling at Mr Hampson telling him to apologise to the dog owner.
Mr Hampson walked off and took his mobile phone from his pocket.
Mr Guy got into his vehicle and was driving off when he observed Mr Hampson on his phone. He stopped his vehicle and approached Mr Hampson and stated he did not want him taking photographs of him.
There was another tussle which resulted in Mr Guy striking the arm of Mr Hampson causing the mobile phone to fall to the ground and become damaged.
Mr Guy was fined for both offences.
Mr Hampson subsequently lodged a claim for criminal injuries compensation pursuant to the Criminal Injuries Compensation Act2003 (the Act) and on 4 July 2018 the assessor made an award in his favour. Mr Guy appeals that decision.
Mr Guy's appeal was lodged within time.
The nature of appeal
An appeal under the Act is a hearing de novo. A court may confirm, vary or reverse the assessor's decision either in whole or in part.
The appeal is to be determined 'without being fettered by the assessor's decision'. While it has been said that it is appropriate to have regard to the assessment made by the learned assessor as a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63, I remain of the view that it is not appropriate to have regard to the assessment made by the assessor but rather to independently review the evidence. A hearing de novo requires that the appeal court consider the matter afresh without regard to any previous decision.
As it is a hearing de novo it is open to increase or decrease the compensation awarded by the assessor. Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221.
Application by both parties to adduce further evidence
The court has a wide discretion to determine the matter either solely on the evidence and information in the possession of the assessor or to receive and admit further evidence on the appeal: s 56(1) of the Act.
Further evidence should be admitted unless there is some reason why it would be unjust to do so: Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143 [37]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9].
In this case the court accepted further evidence from Mr Guy consisting of:
i)A USB showing footage of part of the incident.
ii)An email of the 14 December 2017 from Detective O'Reilly to Mr Guy's then solicitor.
iii)An undated letter from the Western Australian Police Force in response to an email from Mr Guy's then solicitor.
Although Mr Guy sought to have the last two documents adduced as evidence of a statement by the dog's owner Ms Vining and a statement from a witness, Ms Sobczak, these documents are not statements from those persons. The documents are a police officer's brief summary of the statements that those persons were prepared to make.
The court also accepted further evidence from Mr Hampson consisting of:
1)Two medical referrals,
2)Chinese massage Loyalty Cards,
3)Statement of Account from Fremantle Physiotherapy Centre.
Materials provided
In addition to the further evidence and oral arguments presented by Mr Guy, Mr Hampson and the Amicus at the appeal, I had access to the following materials:
•The compensation award and assessor's decision of Hampson [2018] WACIC 13;
•Mr Hampson's application for criminal injuries compensation including the St John of God Hospital emergency notes dated 17 August 2017, Mr Newman's report dated 2 September 2017, Dr Lim's report dated 27 September 2017 and Receipts from St John of God Hospital for $300 and Receipts from Fremantle Physiotherapy Centre;
•Mr Hampson's police statement of 17 August 2017;
•Mr Hampson's victim impact statement of 19 September 2017;
•Transcript of proceedings before the Fremantle Magistrate's Court dated 18 December 2017;
•Police information including the Information and incident report 170817134015909, Incident history report, Prosecution notices, Statement of material facts;
•Various photographs in a file from Assessor of Criminal Injuries Compensation;
•Mr Guy's appeal notice filed 25 July 2018;
•Affidavit of Mr Guy sworn 25 July 2018;
•Mr Guy's written submissions on appeal dated 23 January 2019;
•Mr Hampson's written submissions on appeal dated 31 January 2019;
•Chief Executive Officer's written submissions of appeal dated 4 February 2019.
Some general matters
Mr Hampson's application for compensation was made pursuant to s 12(1) of the Act. To award compensation the court must be satisfied on the balance of the probabilities that Mr Hampson suffered an injury and any claimed loss as a consequence of the 'proved offence'.
Mr Hampson's claim for compensation included the cost of damage to his mobile phone. These costs are not claimable as the damage to the phone is not an injury suffered by Mr Hampson or a loss as defined by the Act. Loss as defined by the Act includes personal items as defined by the Act however that definition does not include mobile phones: s 6(1), s 6(2)(d), s 6(1)(g).
Mr Guy's grounds of appeal
Mr Guy appealed originally on the basis that the ' "verdict" was unreasonable and cannot be supported by evidence as there was no injury at the time of the incident'.
Mr Guy supplemented those grounds by an affidavit sworn on 25 July 2018, written submissions filed on 23 January 2019 and oral submission made at the appeal.
The grounds relied upon by Mr Guy can be distilled to five categories, that is, he was denied natural justice, he has been punished enough, he did not punched Mr Hampson and that Mr Hampson suffered from pre‑existing injuries and Mr Hampson suffered no injury in the assault. I will deal with each category.
Ground 1 - Breach of natural justice
Mr Guy claims that he did not receive the medical reports regarding Mr Hampson until after his appeal was commenced nor did he receive invoices relating to damage to the phone.
It is not necessary for me to make findings as to whether these documents were or were not forwarded to Mr Guy.
I am hearing the matter afresh and Mr Guy accepted that at the appeal he had been provided with all the documents except for the hospital notes and had been given an opportunity to make submissions on them.
At the hearing of the appeal the hospital notes (one page) was photocopied and provided to Mr Guy and an adjournment was provided to enable him to consider those notes and make submissions on them.
Irrespective of what Mr Guy did or did not receive in the past, at the time of the hearing de novo before me he had received all of the medical reports and was given the opportunity to make submissions on them.
It cannot be said that Mr Guy has been denied natural justice in relation to the hearing de novo.
Ground 2 - Mr Guy has been punished enough
The thrust of these submissions is that Mr Guy says he was fined by the Magistrates Court for the offences and compensation orders for damage to the phone have been made and therefore there should not be any further orders made. Mr Guy says he is currently paying off those fines and is making arrangements to pay off the damage to the phone.
He also says a compensation award is not necessary considering the nature of the incident.
He also pointed out that he was a hard‑working man who was supporting himself, his fiancé, stepson and his partner was expecting a child.
These submissions misunderstand the nature of an application for criminal injuries compensation. Questions as to the punishment imposed by the court, Mr Guy's previous good character, whether the court made a spent conviction order and the like are irrelevant to my task.
An award is not made to further punish Mr Guy, it is made to compensate Mr Hampson for any injury that he sustained as a result of the proven offence committed against him.
Ground 3 - Mr Guy's submission that he had not punched Mr Hampson
Mr Guy says he did not punch Mr Hampson and only pushed or shoved him with an open palm. In this regard Mr Guy relies on his submissions filed on 23 January 2018 and his affidavit of 25 July 2018 and on the footage contained on the USB, which appears to have been taken from a mobile phone, and statements from Ms Vinning and Ms Sobczak.
In relation to Mr Guy's claim that he did not punch Mr Hampson and only pushed or shoved him with an open palm, Mr Guy is essentially seeking to controvert the facts upon which he was sentenced for the offences to which he pleaded guilty.
At the appeal the transcript of the proceedings before the Fremantle Magistrates Court on 18 December 2017 were provided to the parties. They establish that the only issue taken by Mr Guy's counsel in relation to the material facts that were read to the court was that he did not hear Mr Hampson state his age.
The material facts read to the court included that Mr Guy had 'grabbed' Mr Hampson, struck at him with both fists to the chest/collarbone area and struck the arm of Mr Hampson causing the mobile phone to fall on the ground and become damaged.
A plea of guilty to the offence of common assault in circumstance of aggravation is an admission by Mr Guy of all the essential facts which constitute the elements of the offence and which are accepted by the court sentencing the offender. The line of authority commencing with Bennett v The State of Western Australia (2012) 223 A Crim R 419; Underwood v Underwood [2018] WADC 13 (Gething DCJ); Pym v Richardson [2018] WADC 156 (Scott DCJ) establish that the material facts constituting the proved offence cannot now be controverted in a criminal injuries compensation claim.
Simply put if Mr Guy wished to maintain that he shoved and did not punch Mr Hampson he should have contested the statement of material facts when they were read in the Magistrates Court. Mr Guy cannot controvert the material facts upon which he was sentenced.
In any event even if Mr Hampson was shoved to the chest rather than punched he would still be entitled to compensation for injuries that he proves on the balance of probability resulted from that shove.
As previously indicated the court does not have statements from either Ms Vinning or Ms Sobczak. The court has a police officer's summary of what they were apparently prepared to put in their statements. Taking it at its most favourable for Mr Guy I shall treat those summaries as evidence from Ms Vinning and Ms Sobczak.
Ms Vinning said Mr Guy was:
So aggressive towards the older male I couldn't be sure he wasn't on drugs because his behaviour was so aggressive. He got right in the face of the old gentleman and was at one point about two centimetres from his face demanding he apologise to the dogs and to apologise to me. I tried telling the guy that I didn't want him to apologise my dog had bitten him but he wasn't listening. Details are a bit foggy as I had some jetlag but I believe the guy pushed the older guy in the chest. The older guy was being defensive and was trying to walk away. I don't remember the older guy showing any aggression he did say that he wouldn't apologise to me or the dogs but I said it was ok. I got the dog and was putting it aside to I never saw what happened next…
Ms Vinning does not state she saw a push. She says she believes 'the guy pushed the older guy in the chest'. It is not apparent whether she is relying on what she actually saw or what somebody told her. Therefore little weight can be attached to her statement.
Ms Sobczak's said:
She observed the accused approach the victim and began berating him about kicking the dog. The accused was aggressive to the older male he was big guy and the only person verbally abusing anyone. He appeared to be demanding the complainant apologised to the dog owner. At no point was the complainant aggressive towards the victim. The accused walked away and when he observed the victim using his mobile phone he parked his car and got out again, he appeared to grab the phone from the victim or knock the phone to the ground and at this point got really in his face.
Ms Sobczak then says she believes she started the video and 'saw the accused go back to his vehicle before coming back and then forcibly taking the victim's wallet and walked around the corner with it'.
I accept that Ms Sobczak does not refer to any physical contact between Mr Guy and Mr Hampson. However, by his plea Mr Guy has accepted that he behaved in the manner alleged in the material facts.
In relation to the phone footage Ms Sobczak believes she did not start the video until after the incident had commenced and indicates that the footage commenced after Mr Guy originally approached Mr Hampson and after he had gone back to his car and then returned. If that is so then the footage commences after the punch/shove is said to have occurred. This is confirmed by viewing the footage which appears to show Mr Guy taking Mr Hampson's wallet and looking inside it.
The phone footage does not show Mr Guy punching Mr Hampson in the chest. As previously stated the footage does not show the incident in its entirety and in any event when Mr Guy pleaded guilty in the Fremantle Magistrates Court to the assault, the material facts of the assault included that he had punched Mr Hampson to the chest/collarbone region and Mr Guy cannot controvert those facts in these proceedings.
Ground 4 - Pre-existing injury
Section 41 of the Act requires the court to take into account any condition of Mr Hampson which contributes directly or indirectly to the injury or loss suffered by him and the court may reduce the amount which they would otherwise award by such a percentage as it thinks just.
It is of little practical consequence whether a pre-existing condition is taken into account by virtue of s 41, or because of the ordinary principles applying to assessment of damages, or because s 30 of the Act requires the award to relate to injuries suffered as a consequence of the offence: CME [2018] WADC 69.
Mr Hampson's police statement of 17 August 2017 and victim impact statement of 19 September 2017 show that he had previously undergone a heart bypass operation, suffers from high blood pressure, carotid artery disease, a heart condition, cardiovascular disease and arthritis.
The issue of pre-existing conditions was comprehensively dealt with in Hansen v Bolton [2017] WADC 25; (2017) 91 SR (WA) 137 [85] - [86] by Herron DCJ who stated:
(a)compensation would not be awarded if the injury or loss would have occurred in any event due to a pre-existing condition;
(b)where it cannot be positively stated that the injury or loss would have occurred in any event but it remains a probability then the award of compensation must be reduced to take into account that probability; and
(c)where it is not possible to disentangle the consequences of a pre-existing condition and the consequence of the events the claimant is entitled to compensation for the full injury and loss if the claimant can establish that the compensable offence did contribute materially to the claimant's injury or loss.
Mr Guy is not responsible for the pre-existing condition of Mr Hampson but if that condition resulted in Mr Hampson being more vulnerable to an injury as a result of an assault then any injury sustained in that assault is compensable as a result of the principle that an offender takes the victim as they find them and that any special susceptibility that the victim has does not reduce but may increases the damages: Watts v Rake (1960) 108 CLR 158; Neall v Watson (1960) 34 ALJR 364.
If the pre-existing condition is the type that would have ultimately affected Mr Hampson in any event then Mr Guy would only be liable for the acceleration of the condition brought about by his assault.
Mr Hampson's pre‑existing conditions are long-standing. The physiotherapist's, Mr Newman, report adopted by Dr Lim indicates that Mr Hampson had not required any treatments since 2011 and was otherwise in good physical condition prior to the offending.
Mr Newman also points out that as a result of Mr Hampson's previous heart surgery his sternum remained a permanent weak point and when force is applied to both sides of the anterior chest it causes deep and long‑lasting pain through the rib cartilage. This may well have meant that due to Mr Hampson's pre‑existing condition he sustained an injury as a result of Mr Guy's assault that a person in normal health would not have sustained however Mr Guy must take his victim as he finds him.
There is no evidence at all to suggest that the injury sustained by Mr Hampson would, or there was a high probability that it would, have occurred in any event.
As Dr Lim and Mr Newman's reports show Mr Hampson has not required any treatment since 2011 and was otherwise in good physical condition.
The pre‑existing condition meant that Mr Hampson's sternum remained a permanent weak point. It may well be that the nature of the assault carried out by Mr Guy would not have affected a person of 'normal health'. However, it certainly affected Mr Hampson and he is entitled to be compensated for the injuries that he sustained.
I would not reduce the award for any pre-existing condition of Mr Hampson under s 41 of the Act or pursuant to common law principles.
Ground 5 - Mr Hampson sustained no injury
Mr Guy says that Mr Hampson did not sustain any injury at the time of the incident. This has been the constant submission of Mr Guy, maintained in his original grounds of appeal, his affidavit of 25 July 2017, his written submissions filed on 23 January 2019 and the oral submissions made on his behalf at the appeal on 8 February 2019.
Mr Hampson must satisfy me on the balance of probabilities that he did sustain an injury as a result of Mr Guy's assault.
In his statement to the police of 17 August 2017 Mr Hampson states that he was punched 'with both hands curled into a fist and struck at the upper chest/collarbone simultaneously hitting both left and right sides. This punch caused my neck to jar and I felt the pain in it. I also have arthritis in my neck which exacerbated the pain'.
Mr Hampson continues to state that after the incident his hands were shaking so much he was unable to use his phone. He describes Mr Guy subsequently swinging his arm outwards towards his right arm and striking him with the base of his fist on his wrist and knocking the phone out of his hand causing it to fall onto the footpath.
Mr Hampson says he was in such a state of shock that he could not remember some of the things said. He says Mr Guy was threatening and aggressive.
Mr Hampson describes shaking and trembling in fear and says the incident caused both his blood pressure and his heart rate to increase severely.
The St John of God medical notes of 17 August 2017 are very difficult to read however they state there was no bruising, redness or laceration to the chest and diagnose soft tissues injuries which were not likely to have long‑term consequences.
The medical report of Dr Lim of 27 September 2017 says Mr Hampson had ongoing issues with chest, neck and left shoulder pain and Dr Lim said he supported the physiotherapist, Mr Newman's letter and treatment plan.
Dr Lim reported that Mr Hampson was still getting neck and upper back muscle pain and pain in the upper chest when reviewed on 29 August 2017. An examination showed Mr Hampson had a tender posterior neck muscle and trapezius, tender upper sternum, and the range of movements in his neck were slightly reduced.
Dr Lim diagnosed a soft tissue injury to be managed by Panadol and physiotherapy.
Mr Newman's physiotherapist report of 2 September 2017 referred to most of Mr Hampson's pain being in the upper chest and shoulder girdle which he said was consistent with the type of assault described by Mr Hampson.
Mr Newman noted that, as a result of previous heart surgery, Mr Hampson had a permanent weak point in the upper thoracic integrity and when force was applied to both sides of the anterior chest it caused deep and long‑lasting pain throughout the weak cartilage.
Mr Newman noted that Mr Hampson's left shoulder appeared to have multi‑muscle strain due to impact which may reflect into reduced rotor cuff function, the upper thoracic and cervical spine presented with symptoms similar to whiplash with both sides affected and that typically whiplash injuries can take between 3 to 12 months to resolve.
Mr Newman's opinion was that given Mr Hampson's age and the nature of some of the soft tissues injuries it may take 12 months to resolve, if ever.
The statement of account from Mr Newman shows that Mr Hampson has attended the physiotherapist on 17 occasions from August 2017 through to November 2018.
I am satisfied on the balance of probabilities that as a result of the admitted assault Mr Hampson suffered soft tissue injury to his upper chest and shoulder girdle, multi muscle strain to the left shoulder and soft tissue injuries to the upper thoracic and cervical spine. The nature of that injury was such as to require medical examination and treatment by way of analgesics and physiotherapy. I am satisfied that these injuries caused pain to Mr Hampson's neck, chest, upper back, arm and left shoulder and at least initially caused a slightly reduced range of neck movements.
Mr Hampson's injuries are supported by the medical reports previously referred to. I am satisfied that the injuries were caused by the assault. I am not satisfied that any pre-existing condition would have caused the bodily harm of which Mr Hampson now complains.
I reject the submissions that Mr Hampson sustained no injury.
Mr Guy's submission that Mr Hampson never fell to the ground and that no ambulance was called are irrelevant in circumstances where I have found that Mr Hampson sustained injury.
The award
In his victim impact statement dated 19 September 2017 Mr Hampson refers to his initial reaction being that of shock and refers to experiencing pain from the double blow which exacerbated the arthritic pain to his neck and winded him. He was also worried that the blows to his chest and shoulder may cause a heart attack or stroke.
Mr Hampson says the severe pain since the incident caused him to consult Dr Lim for pain relief and says he attended physiotherapy on 22 August 2017 because of continuing pain and discomfort. Mr Hampson says he was required to attend physiotherapy every week for pain relief and therapy.
Mr Hampson says in his victim impact statement that he has continuing pain and discomfort. He describes pain in his left arm, shoulder, chest and neck and says he has a feeling of vulnerability and discomfort on his daily walks and missed a season of lawn bowls because of the pain and discomfort to his chest, neck and left shoulder.
Mr Hampson states that two of his most enjoyable past times, his daily walk and lawn bowls, have been affected by the incident and he feels that the security of his home environment has been compromised because Mr Guy had obtained his wallet and knew his name and address.
At the time of the incident Mr Hampson was 74 years of age.
I am satisfied on the balance of probabilities that Mr Hampson suffered soft tissue injury to his upper chest and shoulder girdle, multi muscle strain to the left shoulder and soft tissue injuries to the upper thoracic and cervical spine. The nature of that injury was such as to require medical examination and treatment by way of analgesics and physiotherapy. I am satisfied that these injuries caused pain to Mr Hampson's chest, upper back, arm and left shoulder and at least initially caused a slightly reduced range of neck movements.
The pain and discomfort were of a greater severity initially and required medical treatment and analgesics and subsequently a course of physiotherapy over a period of approximately 12 months. Although Mr Hampson also had Chinese massage therapy he has not claimed the cost of that therapy and I am not satisfied that therapy was necessary as a result of these injuries.
Mr Hampson attended St John of God Hospital on the day of the assault, he attended his GP on one occasion and attended the physiotherapist on 17 occasions. The only medical reports before me relate to consultations occurring on the 17 August 2017 (St John of God Hospital), 22 August 2017 (Fremantle Physiotherapy Centre) and the 29 August 2017 (Dr Lim). I have no reports relating to Mr Hampson's condition subsequent to the 29 August 2017. I accept that the physiotherapy treatment has continued pursuant to referrals from Dr Lim.
There is nothing in the medical reports or Mr Hampson's application or victim impact statement or any of the supporting documents to show the injuries interfered with his ability to sleep or perform tasks around his home or left him with any permanent disability or otherwise reduced his ability to enjoy his life, other than in respect to his daily walks and inability to play lawn bowls for one season nor is there any evidence showing the extent of the pre-existing arthritic pain in his neck.
I am satisfied that the pain and discomfort, particularly to Mr Hampson's left arm and shoulder, chest and neck region has interfered in his day to day enjoyment of his life. In particular, his ability to enjoy lawn bowls and his ability to enjoy his daily walks.
Mr Hampson is not entitled to compensation for his concern that Mr Guy, having seen his licence, knows his name or address. That was not part of the material facts upon which Mr Guy was sentenced and did not constitute part of the assault for which Mr Guy was convicted.
Compensation is payable to Mr Hampson for the injuries suffered in consequence of the assault. Bodily harm and mental and nervous shock are included in the statutory definition of injury (s 3).
'Mental or nervous shock' comprehends any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence or associated with the commission of the offence as those events impact on the mind or nervous system (Hatfield v Under Secretary for Law (Unreported; WASC, Library No 4012, 15 December 1980) (Burt CJ)).
Severe emotional reaction is not compensable but something of a more enduring character which may in both the legal sense and common parlance be described as an injury is required (S v Neumann (1995) 14 WAR 452, 463 (Murray J)).
The term 'mental or nervous shock' includes distress, horror, disgust and other similar adverse mental reactions, but excludes mere fright, humiliation or anguish: M v J (Unreported, WASC, Library No 920598, 19 November 1992).
Mr Hampson's counsel properly conceded that there was no evidence to support a finding that Mr Hampson had suffered mental or nervous shock.
The maximum compensation allowed pursuant to the Act is $75,000 (s 31(1)) which is a jurisdictional limit.
The court's task is to fix the appropriate amount of compensation by applying ordinary tortious principles for the assessment of damages.
In assessing that I am not to consider the seriousness of the offence or to fix an amount to punish Mr Guy or as an expression of sympathy to Mr Hampson.
I am satisfied that there has not been any failure by Mr Hampson to litigate the injury or loss he sustained. He sought appropriate and reasonable medical treatment as and when it was required. I am satisfied the medical treatment that he received was reasonable.
I am not satisfied that there is a requirement for any future treatment expenses. There is no evidence before me that would enable such a finding.
I am not satisfied on the balance of probabilities that Mr Hampson has suffered any reduced rotor cuff function. There is no evidence before me that would enable such a finding.
Bearing in mind the injuries sustained by Mr Hampson and the effects of the assault on him and the effect on his ability to enjoy his walks and lawn bowls I would allow a sum of $10,000 for general damages.
There is no claim for economic loss.
I would also allow the sum of $300 for the attendance at St John of God Hospital, $195 for physiotherapy expenses occurred up to the 10 October 2017 and $9 for each of the 9 physiotherapy consultations occurring since that date, making a total of $276. This represents the costs actually incurred by Mr Hampson after health fund rebates.
This makes a total award of $10,576.
In relation to s 45(1)(i)(b) of the Act I make no order limiting the amount of the award subject of proceedings under pt 6 of the Act.
As to costs it is not appropriate that a costs order be made against the Chief Execute Officer and in circumstances where the appeal has been partially successful and Mr Guy was unrepresented, I would make no order as to costs.
In accordance with the reasons expressed I order that:
1.The appeal be allowed;
2.The decision of the assessor delivered 4 July 2018 is set aside;
3.The sum of $10,576 is awarded to Mr Hampson as compensation for injuries and losses in respect of the proved offence and I order that Albert John Hampson be paid $10,576.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AO
Court Officer15 FEBRUARY 2019
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