GW v JW - [2019] WADC 15

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   GW -v- JW [2019] WADC 15
CORAM:   STAUDE DCJ
HEARD:   14 DECEMBER 2018
DELIVERED          :   5 FEBRUARY 2019
FILE NO/S:   APP 73 of 2018
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   GW
Appellant
AND
JW
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   H PORTER
File Number            :   2017-001797

Catchwords:

Criminal injuries compensation - Appeal - Refusal of compensation - Application of s 36 - Whether any award would benefit the offender - Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003 (WA), s 36

Result:

Appeal allowed
Compensation awarded

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	No Appearance
Amicus Curiae	:	Mr G J Stockton

Solicitors:

Appellant	:	Not Applicable
Respondent	:	Not Applicable
Amicus Curiae	:	State Solicitor's Office

Case(s) referred to in decision(s):

Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
S v Neumann (1995) 14 WAR 452

STAUDE DCJ:

Introduction

The appellant was injured when she was stabbed by her daughter, the respondent, in an incident that occurred at her home on 3 June 2016. The respondent was later convicted of aggravated unlawful grievous bodily harm.
The appellant applied for compensation but her application was refused on the basis that the assessor was satisfied, for the purposes of s 36 of the Criminal Injuries Compensation Act 2003 (the Act), that by reason of the appellant's maternal relationship to the respondent any money paid under an award was likely to benefit or advantage her. The decision was communicated by letter dated 1 June 2018.
The appeal raises three issues:
1.Whether the appellant should be granted leave to appeal out of time.
2.Whether the appellant is disentitled to compensation on the basis that any award is likely to benefit or advantage the respondent.
3.If the appellant is entitled to compensation, the quantum of the award.

Relevant legislative provisions

Section 55(1) confers a right of appeal to this court against an assessor's decision to refuse to make a compensation award. Section 55(3) provides that it must be commenced within 21 days after the date of the decision. Section 55(4) provides that if it is just to do so this court may allow an appeal to be commenced after the 21 days even if the period has expired. Section 55(5) provides that the appeal is to be conducted in accordance with the rules of the court.
Section 56(1) provides that on an appeal this court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was then the possession of the assessor, or may receive further evidence and information. Section 56(2) provides that the court may exercise any power of an assessor under the Act and may make any order that an assessor could make under the Act.
Section 36 provides:
An assessor must not make a compensation award in favour of a victim, or a close relative of a deceased victim, if the assessor is of the opinion —
(a)that there is a relationship or connection between the person who committed the offence and the victim or close relative; and
(b)that by reason of the relationship or connection any money paid under the award is likely to benefit or advantage the person who committed the offence.

Extension of time

The appellant gave evidence at the hearing of the appeal to the effect that the chief assessor's letter was forwarded to her by Aboriginal Family Law Services which had represented her in making the application. She then received legal advice in relation to her right of appeal. She also received assistance in drafting the notice of appeal which she lodged in person at the registry of this court in the regional town in which she resides on 28 June 2018. The appeal notice was then forwarded to Perth registry. The appeal was lodged five days after the last date for appealing.
The court should grant an extension of time if it is just to do so. The court is satisfied that the delay was short and that it was occasioned by circumstances that are explained, namely, the applicant being resident in a remote regional town, the assessor's decision being communicated to the legal service representing her and then to herself, her obtaining legal advice on the merits and her lodging her notice of appeal in person. There is no prejudice occasioned to the respondent. The appeal has merit. Leave to appeal out of time is therefore granted.

The offence

At the date of the offence the appellant was aged 43, having been born in August 1972, and the respondent was aged 15 years. At that time the respondent lived in the family home. The circumstances of the incident are set out in the statement of material facts prepared by the police as follows:
Between 11.30 pm and 11.50 pm on 2 June 2016 the complainant was at home [address] with a group of friends and family playing cards.
The accused has returned home in a heavily intoxicated state after having a physical altercation with a couple of other young females …
The accused demanded help from her sister and the complainant [her mother]. The complainant refused to go with the accused and told her to calm down.
The accused picked up a steak knife (22 cm) and approached the complainant, walking through the game of cards slashing out at her. The accused stood over the complainant (on the ground) and stabbed her to the upper left arm near the armpit …
The accused threw the knife onto the ground and departed the address. The stabbing caused a deep wound that severed the artery causing severe blood loss and likely nerve damage.

The injury and its effects

The appellant was admitted to the local hospital where she was she was observed to be suffering from a major haemorrhage from a 5 ‑ 6 cm incision wound on the anteromedial aspect of the left upper arm, 5 ‑ 6 cm from the axilla: report of Dr I Hohaia (statement dated 22 June 2016). She was then transferred by Royal Flying Doctor Service to another place where she underwent surgery that was described in the medical discharge summary as follows:
Exploration and closure of left proximal arm laceration – partially divided basilic vein and laceration through subcutaneous fat. Wound explored and washed out. Vein ligated and tied. Layered closure performed.
In the appellant's statement dated 15 June 2017 attached to her application for compensation she described the effects of the incident as follows:
Immediately after I was stabbed I had a bad feeling inside. I was scared and frightened. And I thought I was going to die.
In the months following the incident I had trouble sleeping. I would regularly wake up during the night after having a bad dream. This went on for about three months. I still wake up now but it only happens every now and then.
Since the incident I have become stressed and depressed. I have had suicidal thoughts.
I also began drinking more often.
The appellant was interviewed by Mr Bart Wszola, psychologist, on 15 March 2017 for the purposes of a psychological assessment. As well as interviewing her for two and a half hours and later speaking with her by telephone, Mr Wszola had two conversations with Ms Rebecca Ingram, a community health nurse, and was informed by hospital notes and a medical report.
Mr Wszola reported that psychiatric testing revealed moderate depressive symptoms with severe anxiety and stress symptoms. He also reported that in a structured interview he used (called the Clinician ‑ Administered PTSD Scale for DSM‑5) the appellant described symptoms that supported a diagnosis of post‑traumatic stress disorder (PTSD). These were (in summary) that she:
(a)was stabbed and suffered life threatening injury;
(b)experienced recurrent and distressing memories of the event on an almost daily basis and had dreams related to the event weekly;
(c)avoided memories and feelings associated with the trauma;
(d)experienced pervasive emotional states, such as feeling unsafe and worrying about being assaulted again; and
(e)experienced a heightened startle response.
Mr Wszola was informed by Ms Ingram that in May 2017 the appellant's mental state had worsened. She was worried about the respondent's mental stability and was concerned that if her daughter became more unwell she was likely to assault her again. She had resorted to alcohol.
The appellant told Mr Wszola that her mother passed away when she was three years of age. She was raised by her paternal aunt and her husband. She was not exposed to alcohol abuse or violence as a child and finished Year 12 at school. She had her first child at age 17. The respondent is the third of five children whose ages range from 5 years to 25 years. Her husband worked seasonally on cattle stations.
According to Mr Wszola, being stabbed by her daughter had resulted in the appellant feeling unsafe, isolating herself and developing some depressive symptoms, as well as symptoms of PTSD. Her symptoms had improved following her engagement with local community health services. Mr Wszola reported that the appellant still feared the respondent. At [7.8] he stated:
Given [GW's] concerns about her safety in regard to her daughter it appears unlikely that she will be maintaining any contact with her. The presence of alcohol misuse, which appears to be a recent development in [GW's] life is a concern in regard to her ability to maintain her stability and hence prevent her daughter from accessing any of this compensation. As such the current presence of elevated PTSD symptoms and alcohol use increases [GW's] vulnerability. If her symptoms stabilise, she limits her alcohol use and engages with local sources of support and treatment, concerns about this are likely to decrease.
At the hearing of the appeal, having regard to the passage of time, I invited the appellant to give further evidence in relation to the effects of the offence committed by the respondent. She said that she had continued to engage with Ms Ingram to good effect, but she still experienced flashbacks and occasionally had trouble sleeping at night. She acknowledged that her mental state had improved and that she no longer felt stressed and depressed as she said in her statement. She no longer had suicidal thoughts. She said she had been helped by Ms Ingram who she had seen when she was available. She was no longer using alcohol.
I find that as well as suffering from the stab wound and the associated loss of blood, the appellant experienced symptoms of depression and anxiety and had flashbacks and dreams of the incident in which she was injured for a period of about a year after the incident, following which, with the help of community mental health services her symptoms improved.
According to the assessment tool applied by Mr Wszola, the appellant's symptoms met the diagnostic criteria for PTSD. It would seem that her symptoms have improved over time with counselling. The appellant has not required psychiatric treatment or medication.
No medical diagnosis of the disorder has been made. Nevertheless, the psychological report is of assistance in that it demonstrates that the symptoms reported are consistent with the trauma of the offence and the injury caused thereby. Post‑traumatic stress disorder is a label given to a cluster of symptoms or experiences. The diagnostic label may have clinical significance (e.g. for the purpose of treatment or prognosis), but forensically it merely serves to establish the nexus between the symptoms and the injury.

Section 36 issue

In her statement, the appellant said that she would make sure that the respondent did not receive any benefit from a compensation award made to her. She said that the respondent had not lived with her since the incident and had rarely stayed overnight at her house. She said she did not receive a parenting benefit for her. Her daughter was at high school and received an Abstudy payment. The appellant also said that she was still afraid of the respondent hurting her again and this was another reason why she did not spend a lot of time with her. However, she wanted her to get better and to have the support and help she needed. In her statement the appellant said that she was receiving Centrelink payments. She had established savings accounts for her two youngest children.
In response to the application the assessor wrote to Aboriginal Family Law Services stating that she had received information from Western Australian Police that she relayed and commented upon as follows:
Your client's daughter was charged with the offence and was released on bail to reside at your client's address [address] with a curfew between 7.00 pm and 7.00 am. CAD reports show that on a number of occasions the police checked and the offender was found to be residing at the house as required by a condition of her bail.
On seven occasions between the date of the incident and 21 May 2017, police were called to attend [address] and the offender was found to be present and was invariably described as living at the address. Your client and her daughter were on occasions recorded as witnesses to incidents which happened between other persons at the house. On one occasion an officer of the Education Department attended the house to inquire into your client's daughter's failure to attend school.
In your client's victim impact statement she asserted that the offender had not lived with her since the date of the incident and had rarely had overnight stays at the house. On the basis of the information presently available to me I am not satisfied that this is a true statement of the circumstances.
It is my provisional determination that because of the ongoing relationship and connection between your client and her daughter, it is likely any money awarded to your client would be a benefit or advantage to the offender. In light of this, your client's application must be refused.
The letter afforded the appellant's lawyer an opportunity to respond. In a letter dated 20 November 2017 the appellant's solicitor wrote:
We are instructed that [GW] insists that any compensation she may receive will not benefit the offender.
[GW] instructs us that [the respondent] has not lived with her since the incident and has only attended her home accompanied by her aunt, and current carer, [DK]. [GW] instructs us that [the respondent] and [DK] have attended the home on a few occasions to use the washing machine and for [the respondent] to spend time with her younger siblings. [GW] has had minimal contact with [the respondent] during her visits to the home and the respondent has not been alone with [GW] since the incident.
We are instructed that [GW] was unaware that [the respondent] was bailed to her home following the incident as she had been transported to Perth for medical treatment where she remained for a number of weeks. [GW] states that when she returned home [the respondent] was not living in the home and had commenced living with [DK].
The letter went onto say that the respondent was then 17 years of age and financially independent. The appellant did not provide any financial support to her. If the assessor's concern was not allayed, it was proposed that any money awarded be placed with the Public Trustee for her appellant's benefit.
The learned assessor in her letter of 1 June 2018 communicating her decision stated as follows:
Since receipt of your letter I have received further information from the WA Police which indicates your client's daughter the offender JW is still, [sic] or has returned to live with your client. Incident reports compiled by the police between March and May 2018, the most recent being on 26 May 2018 revealed the offender to be living with the applicant and present when police attended in response to complaints by your client of conduct by her partner [name].
I have reviewed the police incident reports.
On 3 February 2018 the police were called to the appellant's address upon a complaint that her husband was drunk and arguing with her. There was no mention of the presence of the respondent on that occasion.
On 28 February 2018 the police attended the appellant's address for an undisclosed reason. The appellant and her husband commenced a heated argument in the presence of the police. The respondent was not noted to have been present.
On 3 March 2018 the police were called to the appellant's address upon a complaint relating to her husband being drunk. The respondent was noted to be staying at an aboriginal community with a friend.
On 15 March 2018 the police were called by the appellant, again in relation to her husband becoming intoxicated and argumentative. The incident report states that there were no children present.
On 24 March 2018 the police attended at the appellant's address upon a complaint that her husband was being aggressive towards her and that she wanted him removed. There were no children present.
Another incident report dated 24 March 2018 states that the police attended at the appellant's address in response to a complaint by the appellant of an assault by her daughter (not the respondent). In that report there is no reference to the respondent being present.
On 5 May 2018 the police attended at the appellant's address upon her complaint that her husband was threatening her. When police attended the appellant was unharmed and there was no sign of any disturbance. No children were present.
On 12 May 2018 the police attended at the appellant's address upon a complaint by a caller that the appellant and her husband were arguing. There is no reference to any children being present on that occasion at the address.
On 23 May 2018 the appellant complained to the police that she could not deal with her husband who was shouting when she wanted to sleep having just returned home from hospital. The respondent was stated to be sleeping in the appellant's room when the police arrived.
On 26 May 2018 the police attended at the appellant's address upon a complaint by the appellant that her husband was drunk and refused to leave the house. The respondent was noted as being present on that occasion.
The appellant's evidence at the hearing of the appeal was that the respondent had not lived with her since the incident in which she was injured, but had lived with family members and friends. The appellant said that she encouraged the respondent and her other adult children to live independently. The appellant occasionally returned to do her washing, but she had little contact with her. On one occasion the respondent had been nearby when an incident occurred between the appellant and her husband. The respondent had pushed her father away. She was there when the police came. She assumed that the respondent would have given the address of the family home as her usual address.
Having had the advantage of seeing and hearing the appellant give evidence, I do not consider that the documentary evidence of the police attendances contradicts in a material way the appellant's evidence that the respondent has not lived with her since the day of the offence. I accept the appellant's evidence. I am satisfied that although the appellant continues to show concern for the respondent's welfare, she has little to do with her. The respondent is now 18 years of age. She is financially independent. She does not reside with the appellant. The respondent is not reliant on the appellant for any material support. The appellant has two younger children who are dependent on her.
On the basis of these findings I am satisfied that any money paid under an award of compensation is not likely to benefit or advantage the respondent.

Assessment

Compensation is payable where a person has suffered 'injury' in consequence of the commission of an offence: s 12(1). The definition of injury in s 3 includes bodily harm and mental or nervous shock. Mental or nervous shock means 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: Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) [5] (Burt J).
Mental or nervous shock is not a mere emotional reaction, but something of a more enduring character which may, in both in the legal sense and common parlance, be described as an injury: S v Neumann (1995) 14 WAR 452, 461 (Murray J).
The bodily harm suffered by the appellant has been documented in the medical reports and hospital notes that were submitted with the appellant's application. She suffered a life threatening injury that required surgical repair. The injury and its aftermath would have been distressing. Moreover, the psychological symptoms that have been reported are consistent with the traumatic nature of the injury and constitute mental or nervous shock.
I allow a sum of $10,000, payable to the appellant, in compensation for the injury.
I also allow as a compensable loss the fee paid by Aboriginal Family Law Services for the report of Mr Wszola. This fee was claimed in the appellant's application for compensation. Loss is defined by s 6(2) to include expenses actually and reasonably incurred by or on behalf of the victim that arise in obtaining any report from a health professional or a counsellor in relation to the injury suffered by the victim. The cost of Mr Wszola's report was $1,320. I order that this amount be reimbursed to Aboriginal Family Law Services.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to the Honourable Judge Staude
5 FEBRUARY 2019