HH by his next friend MH
[2012] WADC 71
•1 JUNE 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
LOCATION: PERTH
CITATION: HH by his next friend MH [2012] WADC 71
CORAM: SCHOOMBEE DCJ
HEARD: 23 APRIL 2012
DELIVERED : 1 JUNE 2012
FILE NO/S: APP 44 of 2011
MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: HH by his next friend MH
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram :LV DEMPSEY
File No :CI 1178 of 2010
Catchwords:
Criminal injuries compensation – Appea1 from assessor's quantification of compensation allowed for injury and assessor's failure to allow for future medical expenses – Further evidence allowed on appeal – Whether deduction from amount allowed should be made because victim has suffered from preexisting condition – Whether deduction from amount allowed should be made because uncharged incidents contributed to the victim's mental health injury
Legislation:
Criminal Injuries Compensation Act 2003
Guardianship and Administration Act 1990
Result:
Appeal allowed
Representation:
Counsel:
Appellant: In person
Amicus Curiae : Mr I A Repper appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant: Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
B v W (1989) 6 SR (WA) 79
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
Hogben v Darcy [2009] WADC 63
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
McAllister v Stansbury [2010] WADC 71
Purkess v Crittenden (1965) 114 CLR 164
S v Neumann (1995) 14 WAR 452
SW v BB [2010] WADC 86
Watts v Rake (1960) 108 CLR 158
Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485
Zumeris v Testa [1972] VR 839
SCHOOMBEE DCJ: This is an appeal under the Criminal Injuries Compensation Act 2003 (the Act) against a decision by the assessor of Criminal Injuries Compensation. The grounds of appeal state that the award of $18,500 made by the assessor in respect of the injuries suffered is inadequate and that a sum for future medical expenses should have been allowed for.
In addition to the $18,500 compensation for the injuries, the assessor allowed $440 for the report by Ms German‑Belmont, a psychologist, and $40 for travel expenses.
Background facts and the Assessor's award
The compensation awarded was in respect of the mental health injuries that HH suffered in October 2006. The offender was convicted of three charges of indecently dealing with HH, a child of 13 years, by showing him pornographic material, by exposing his penis to HH and by encouraging HH to expose his penis to the offender. Another boy of similar age was present at the time and the offender was also convicted of similar charges with regard to the other boy.
The information before the assessor showed that HH was invited by the offender, who was in his 30's, to his unit which was in the same block of flats as where HH lived with his father. On one occasion when HH had not returned home late in the evening, his father searched for him and located him in the offender's unit. HH told his father that he had been shown pornographic movies, that the offender and both boys had taken their penises out and that the offender had measured them with a tape measure. HH also reported that the offender had given the boys some tablets which he said would give them energy and make them strong.
These are the offences in respect of which HH is entitled to be compensated in so far as they have resulted in an injury or loss to HH.
There is also reference in a summary of events provided by HH's father to the assessor after she had made her award, to the offender having obtained a violence restraining order against HH in the Children's Court without any good reason which caused HH further distress. The violence restraining order was cancelled after six months and the offender was convicted in about August 2009 of having made a false statement.
HH's father, who was appointed guardian and administrator of HH's estate under the Guardianship and Administration Act 1990, applied for written reasons from the assessor. The assessor subsequently wrote a letter to HH's father stating that she had obtained police incident reports which corroborated the matters relating to the violence restraining order, but that she had not been aware of these matters when she made the award for compensation. It is not apparent from the assessor's letter whether she thought that the matters pertaining to the violence restraining order would have led her to have increased or decreased the amount of compensation awarded.
The assessor also referred in the letter to a report by Ms Dastyar, the school psychologist at Cyril Jackson Senior Campus, dated March 2009. The report indicated that HH and his father came to Australia in 2001 from Afghanistan and HH was enrolled at a primary school. HH was reported to have been a difficult and demanding student because he was extremely unsettled, withdrawn, disruptive and had a very short temper. He also had difficulty mixing and playing with other students. HH was referred to a school psychologist from about 2001 onwards. He was also placed in various special classes which focused on learning English and coping with demanding students. Ms Dastyar indicated in the report that tests done to assess HH's intellectual functioning showed that he scored in the extremely low range.
The assessor further referred in her letter to the report by the psychologist, Ms German‑Belmont, provided in May 2010. Ms German‑Belmont came to the conclusion that HH was then suffering from a severe psychotic disorder, a moderate major depressive disorder, a severe post traumatic disorder, a severe generalised anxiety disorder and a severe panic disorder. Ms German‑Belmont was of the view that the major psychological injury suffered by HH was the psychotic disorder from which he had probably suffered all of his life. However, she was of the opinion that this had been 'severely compromised' by the post‑traumatic stress disorder and that the latter was most likely the result of the indecent dealing offences committed against HH.
Ms German‑Belmont explained that prior to the offending HH had demonstrated gross motor skills (played soccer after school with his friends) as well as fine motor skills (a neat, good hand writing). After the offending HH's father reported that he no longer played soccer or went out with his friends and HH's handwriting became twice as large and untidy. Dr German‑Belmont also relied on the facts that prior to the offending HH used to play with friends, watched TV and had part time labouring jobs. After the offending his father reported that HH's social and communication skills deteriorated to the extent that he became totally withdrawn and lazy and only sat quietly in a corner, shaking a lot and in shame. His father said he had to help HH with personal grooming and eating. HH also expressed suicidal thoughts. However, he was not aggressive or destructive to property, nor was he socially offensive.
Ms German‑Belmont came to the conclusion that given time and appropriate treatment some of the negative symptoms acquired could possibly be reversed, although it was unlikely that HH would recover 100% of his personality and behaviour prior to the offending.
It is on the basis of these two reports that the assessor came to the conclusion that a signification proportion of HH's mental health problems were already in existence prior to the offending. She nevertheless accepted that the offending was a substantial cause of HH's post‑traumatic stress disorder.
After receipt of the letter from the assessor, HH's father did not ask for further reasons and no formal reasons for the assessor's decision were supplied by her.
The appeal and the further evidence
The appeal was filed out of time, but leave to appeal has already been granted by order of Deputy Registrar Hewitt on 24 January 2012.
Under s 56(1) of the Act an appeal against an assessor's decision is to be decided afresh by the court of appeal, without the judge being fettered by the assessor's decision. The appeal is to be decided on the evidence and information that was in the possession of the assessor, but the court of appeal may receive further evidence and information.
For purposes of the appeal HH's father filed a further report by Dr Ng, a psychiatrist, dated 20 February 2012. Dr Ng consulted with HH and his father and seems to have referred to a number of reports which were not before the assessor and are not before me, such as a Bentley Hospital patient medical admissions list, dated 14 October 2009, a report by HH's general practitioner, a report of the associate principal at HH's school, dated March 2001, and similar documents. Dr Ng also took into account the psychological report from Cyril Jackson Senior Campus and the report by Ms German‑Belmont.
Dr Ng reported that HH had been diagnosed with schizophrenia and intellectual difficulties. He stated that the intellectual difficulties would have pre‑dated the offending, but that it was unclear exactly when the diagnosis of schizophrenia was made. Dr Ng explained that behavioural and emotional difficulties can often pre‑date the formal diagnosis of schizophrenia. He came to the conclusion that such pre‑existing psychiatric difficulties could have accounted for why HH was found to be extremely unsettled and disruptive at school, had a short temper and difficulties with relating to friends, although this may also have been partly due to the fact that HH was from a different culture and had an intellectual disability.
Dr Ng was of the view that it was likely that the onset of psychosis arose as a result of significant psychosocial stress. It was usually a significant precipitating life event which contributed to the first psychotic episode found in schizophrenia. Dr Ng said it was unclear exactly when HH became socially withdrawn to a significant extent and when he developed delusions. However it appeared that he was diagnosed with schizophrenia after the onset of psychotic symptoms in the form of delusions and possibly hallucinations, sometime after 2007. HH's father reported his son having delusions about half of his body belonging to the offender and that he was a demon and bad.
As a result of this background information, Dr Ng came to the conclusion that on a balance of probabilities the sexual offending contributed to a large extent to the onset of the psychotic symptoms. He explained that the schizophrenia itself was an inherent defect in the neuro‑chemical balance of the brain and would therefore have been present since birth. However the sexual offending was likely to have been the trigger for the onset of psychosis in a person such as HH who was neuro‑chemically vulnerable. Dr Ng pointed out that it was possible that the psychotic symptoms could have arisen due to other life stressors, but that it was more probable that they were triggered by the offending.
Dr Ng's prognosis was that HH's chronic psychotic illness would wax and wane in intensity and more likely than not require anti‑psychotic medications and possibly anti‑depressant medications into the foreseeable future. HH would also require close supervision of his psychotic illness from his treating psychiatrists and other mental health professionals into the foreseeable future.
Dr Ng came to the conclusion that he could not diagnose HH with post‑traumatic stress disorder as he had not been provided with sufficient symptoms to make such a diagnosis. He noted that Ms German‑Belmont had made such a diagnosis. Dr Ng could also not make a diagnosis of major depression, but said this might have been because HH had already been treated with antidepressants.
At the hearing of the appeal I asked HH's father to give me more information about the current status of HH's mental health, as there was very little information in this regard in the documentation available to me. Under s 19(1)(d) the assessor has the power to make any enquiries and investigate any matters that he or she thinks necessary. Under s 56(2)(a) of the act the court of appeal may exercise any of the powers that the assessor has.
HH's father gave evidence that HH had spent substantial periods in various mental health hospitals over the last three years. He spent three to four months in Bentley Hospital in 2009, at least five months in the same hospital in 2010 and almost the whole of 2011 in Graylands and Bentley Hospitals. HH's father said he only took his son home for one or two nights per week. His son still told him a number of times per night that he was worried about the offender killing him.
HH's father stated that during the day HH just sits in a corner, stares in front of him and does nothing. He does not partake in any sport as he used to do, does not have friends and only stares at the television screen without taking in what he is seeing. When he tells his son to go for walk, he knows that his son just walks to the nearby park and sits on a bench staring in front of him.
HH's father gave evidence that prior to the offending his son used to come home from school, do his homework, show the homework to his father, played cricket and soccer with his friends and even encouraged his father not to waste water and to stop smoking. HH's father said his son is not able to look after himself at present. He has to shop and cook for him and even help him to shave as his son otherwise cuts his face.
HH's father gave evidence that he believed that his son did not disclose fully what had happened to him on the occasion when the indecent dealings with the offender occurred. HH's father had also told Dr Ng that his son had recently disclosed to him that the offender 'did sex' on HH. Dr Ng reported that HH confirmed this when prompted by his father during a consultation with Dr Ng.
It seems that Dr Ng did not rely on any further sexual acts having been perpetrated by the offender, as he said in his report that it would be speculation to rely on other potential offences. Dr Ng expressed the view that the psychotic symptoms were likely to have been brought on by the sexual assault that happened on that day. He stated in his report that it was clear that HH developed severe psychotic symptoms which required psychiatric admission in 2009, 2010 and 2011.
The law applicable to the assessment of criminal injuries compensation
Pursuant to s 12 of the Act a victim who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss suffered. 'Injury' is defined in s 3 of the Act as 'bodily harm, mental and nervous shock, or pregnancy.'
The phrase 'mental and nervous shock' has been construed as including any malfunction of the victim 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) 5. Mental and nervous shock includes distress, horror, disgust and other similar adverse mental reactions, but excludes mere fright, humiliation or anguish: M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992) 10 ‑ 11. What is contemplated by the Act is not a mere emotional reaction but something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury: S v Neumann (1995) 14 WAR 452, 461.
There is no doubt that the psychotic symptoms that HH currently suffers from, at least from time to time, as well as the post-traumatic stress disorder diagnosed by Ms German‑Belmont qualify as 'mental shock' which is compensable.
In determining the appropriate amount of compensation the correct approach is to apply the ordinary tortious principles for assessment of damages subject to the jurisdictional limit imposed by the Act: M v J and J v J. In assessing the amount of compensation the court should have regard solely to the injury suffered by the applicant in consequence of the commission of the offence. The amount of compensation is not to be fixed as punishment of the offender or as an expression of sympathy for the victim: B v W (1989) 6 SR (WA) 79, 89.
As the appeal is a rehearing, the court of appeal is not bound by the determination of the assessor. However, because the assessor is a specialist tribunal, it is appropriate to take into account the assessor's reasons for making the particular award: Hogben v Darcy [2009] WADC 63 [13].
Effect of pre-existing condition or effect of uncharged offence
Although the assessor did not furnish reasons, it is likely that she deducted a substantial percentage from the amount of compensation that she would otherwise have awarded for HH's injuries because Ms German‑Belmont came to the conclusion that the psychotic disorder was something that HH had suffered from all his life. Ms German‑Belmont did come to the conclusion that the psychotic disorder had been 'severely compromised' by the post‑traumatic stress disorder, but did not seem to be of the view that the sexual offending was a material contributor to the onset of psychotic symptoms.
Dr Ng's report had not been available to the assessor. Dr Ng made it clear that he was of the view that it was likely that the sexual offending had contributed to a large extent to the onset of psychotic symptoms. He said this was particularly so because one of the reported delusions involved HH believing that half of his body belonged to the offender.
The burden is on the applicant for compensation to establish, on the balance of probabilities, a causal relationship between the commission of the proved offence and the injury or loss for which compensation is sought: S v Neumann (463 – 464). It is not necessary for an applicant to establish that the proved offence was the sole cause of the injury or loss. It is sufficient if the proved offence materially contributed to any injury or loss: Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, 673 and S v Neumann (463 – 464).
On the basis of Dr Ng's report HH has established that the indecent dealing offences committed against him materially contributed to the onset of the psychotic symptoms that he now suffers from. Insofar as there are any differences, I prefer the report by Dr Ng to that of Ms German-Belmont, as Dr Ng is a psychiatrist and therefore better qualified to diagnose the psychiatric diseases that HH suffers from and to identify their likely causes.
It seems to be accepted that HH suffered from schizophrenia since his date of birth. However, although this may have manifested itself in behavioural and social adjustment problems, it had not developed into a psychotic disorder prior to the offending. Dr Ng did not provide information in his report regarding the likelihood of HH developing a psychotic disorder if the sexual offending had not occurred. He said that it was possible that the psychotic symptoms from which HH was now suffering could have been due to other life stressors, but came to the conclusion that on the balance of probabilities the sexual assault was the main contributor.
There is therefore no information on the basis of which it could be said that in all likelihood HH would have developed a psychotic disorder irrespective of the sexual assault. The fact that a victim has a predisposition to the development of a disease does not mean that he or she is not entitled to compensation for the disease. A perpetrator must take his victim as he finds him: Watts v Rake (1960) 108 CLR 158, 164.
It is only where a pre‑existing condition would have led to the same injury or illness in due course that a deduction may be made from the compensation awarded which deduction will reflect the chance of the pre‑existing condition having resulted in the same injury or illness: Watts, 160, 164 and Zumeris v Testa [1972] VR 839, 843.
There also needs to be evidence which establishes with some reasonable measure of precision what the pre‑existing condition was and what its future effects, both as to their nature and future development and progress, were likely to be: Purkess v Crittenden (1965) 114 CLR 164, 168. There is no indication on the information before me that the schizophrenia was likely to have developed into a psychotic disorder in any event.
If I were to take into account the fact that HH already suffered from schizophrenia prior to the offending, I would have had to evaluate the chance of the schizophrenia leading to a psychotic disorder in any event and would then have to discount the compensation awarded by the percentage that represents that chance: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 642 – 643; Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485, 499 – 500. In the present case I am unable to allocate any percentage to that chance.
It was not suggested that s 41 of the Act would have any application to this case. I have previously come to the conclusion that s 41, which allows the assessor to reduce the amount of compensation on the basis of taking into account any 'condition' of the victim which contributed directly or indirectly to his injury, was not intended to deal with pre‑existing medical conditions: SW v BB [2010] WADC 86. (Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 was an appeal against this decision but did not deal with the issue of s 41 of the Act).
If s 41 of the Act has no application, the ordinary tortious principles for assessment of damages, subject to the jurisdictional limit imposed by the Act, must be applied: M v J and J v J. I have already discussed these principles and the rule that a pre-existing condition can only lead to a deduction in the amount of compensation if there is evidence or information that the pre-existing condition would have caused the applicant to suffer the same injury irrespective of the offending.
It is in my view also not appropriate to make a deduction from the award of compensation on the basis that the there may have been other offending by the same offender which contributed to the development of HH's psychotic disorder but was not relied upon in the application for compensation made to the assessor. It appears from the summary prepared by HH's father and provided to the assessor that HH was frightened and sad when the police served him with a violence restraining order. However, there is no indication that this conduct by the offender would also have triggered a psychotic disorder even if the sexual offending had not occurred.
This is not a case where two distinct causes, one being a proven offence and the other not, would each have caused the same injury or mental illness irrespective of each other. There is also no information on the basis of which the chance of the violence restraining order incident having triggered the psychotic disorder irrespective of the sexual offending could be evaluated. In my view it is not in accordance with the principles applying to the assessment of damages in tort to merely apportion a compensation award between two causes which each contributed to some extent to the same injury or illness.
In any event, the conduct relating to the violence restraining order was by the same offender and apparently resulted in a conviction for making a false statement. It seems to me to be supportive of an allowance of the full amount of compensation appropriate to the injury rather than requiring a deduction from it. The conduct relating to the violence restraining order could constitute another proven, although potentially related offence or, at least, an alleged offence under s 16(1) of the Act.
It is not necessary to further investigate the facts surrounding the offender's conduct regarding the violence restraining order, as the application to the assessor did not rely on this conduct as a proven or alleged offence, nor has HH's father relied on it on appeal. Dr Ng also does not refer to this conduct by the offender as having caused any mental illness.
However, in my view, this conduct by the offender is certainly not a reason to make a deduction from the award of compensation allowed. It is, in any event, not clear to me whether the assessor intended to convey in her letter that she would have made a further reduction if she had known about the matters concerning the violence restraining order.
Determination of amount of compensation for the injury and for loss
The maximum compensation available under the Act in respect of one offence is $75,000. On the basis of the application of the ordinary principles for the assessment of damages in tort, HH would be entitled to at least that amount for general damages which include compensation for his pain and suffering and loss of amenities of life. It seems that for the past five years HH has suffered from repeated episodes of psychosis and has spent considerable times in psychiatric hospitals. His quality of daily life is also severely compromised in that he no longer has social contact with friends, does not play any sport and does not appear to have the ability to communicate on a social level with anyone.
Dr Ng's prognosis is that the chronic psychotic illness will wax and wane in intensity for the foreseeable future. Unfortunately Dr Ng does not specify what he means by the 'foreseeable future'. However, HH has now had treatment at various psychiatric hospitals for at least the past three years and his mental condition does not seem to have substantially improved. On this basis it is in my view appropriate that the amount of compensation for the injury be at least $75,000.
There may also be some loss of earnings suffered by HH in the past and in the future as a consequence of the injury, which loss is compensable under s 6(2)(c) of the Act. HH's father did not claim loss of earnings in the application for compensation, but this is a matter which should be taken into account where it is apparent on the information before me that HH is no longer able to have gainful employment. However, it would be difficult to quantify the loss of income because the report by the psychologist from Cyril Jackson Senior Campus indicated that HH's intellectual functioning was within the extremely low range. There is also no information before me to what extent HH may have been able to obtain gainful employment if he had not developed the psychotic disorder.
The question of loss of earnings is, however, academic, as I am of the view that HH is already entitled to the full amount of the allowable compensation for his pain and suffering and loss of amenities.
HH's father also applied on appeal for compensation in respect of future medical care arising from the injury. Section 6(2)(b) of the Act allows for the payment of expenses that are reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by him.
There is little doubt that HH is in need of future medical care in the form of medication, psychiatric treatment and psychological counselling. Dr Ng provided details of the costs of such future treatment in his supplementary report. Dr Ng explained that HH would need anti‑psychotic medications, antidepressants and also a minor tranquiliser for the foreseeable future. He estimated the costs of these medications to be at least $50 to $150 per month. According to HH's father, HH currently receives these medications free of charge apart from one particular medication, the name of which he could not recall, but which costs $40 and is not available on the Medicare scheme. HH's father could not say how often that medication is required.
Dr Ng also recommended that HH see a psychiatrist once every one or two months to allow for a review of HH's medication regime. A session with a psychiatrist costs $315. Dr Ng also recommended that HH have psychotherapy to assist with developing better insight into his psychiatric condition and into his general functioning. This could be provided by a psychiatrist or by a psychologist. Dr Ng did not provide the costs of seeing a psychologist, but HH's father claimed $200 per session which seems to be reasonable.
Accordingly, I will make an allowance for the following future medical treatment:
Estimated amount for additional medication over five years
$ 2,000
Treatment by a psychiatrist at $315 per session once a month for five years
$18,900
Treatment by a psychologist at $200 per session once a month for five years
$12,000
TOTAL
$32,900
Pursuant to s 48 of the Act, the compensation allowed for the future medical expenses will not be paid directly to HH or his father, but will only be paid upon the assessor being provided with evidence that expenses have been reasonably incurred on behalf of HH for treatment that he required as a direct consequence of the injuries suffered by him.
This does not mean that HH is confined to obtaining the exact future treatment that I have allowed for. In other words, if he has more sessions per year with a psychiatrist, but these are reasonably incurred by reason of his mental health condition they should be allowed for out of the amount of $32,900 that I have allocated. However, HH's father will have to provide proof to the assessor that these expenses were reasonably incurred.
Having allowed for a sum of $32,900 in respect of future medical expenses, this amount will have to be deducted from the total of $75,000 available for pain and suffering and loss of amenities. This means that the amount allowed for as compensation for HH's injury will have to be reduced to $42,100.
HH is also entitled to the costs of the report by Ms German-Bentley which were $440, and the cost of the report by Dr Ng in the amount of $1,430. He is further entitled to travel costs in the sum of $40. This is an additional total of $1,910 which needs to be deducted from the remaining total of $42,100 of available compensation. This means that the compensation available for pain and suffering and loss of amenities is $40,190.
Other expenses claimed
In a schedule filed subsequent to the notice of appeal, HH's father claimed further amounts for past and future gratuitous services and for future paid respite care if he were to go overseas. Compensation for gratuitous services is not allowed for in the Act: McAllister v Stansbury [2010] WADC 71 [30] – [74].
There is also no specific provision in the Act for compensation for costs incurred in respect of respite care. It is apparent from an overview of the history of the Act (see McAllister v Stansbury, [48] ‑ [59]) that there was initially no provision for compensation for loss when the first Criminal Injuries (Compensation) Act 1970 was enacted. Compensation for loss was incrementally introduced. The amendments to the act in 1976 introduced compensation for loss of earnings and loss arising from damage to personal items or the need to obtain hearing aids, vision aides or surgical appliances. The 1982 amendments extended the definition of 'loss' to some degree by providing that any expenses actually and reasonably incurred and caused by or directly arising from the injury were recoverable. The 2003 Act introduced compensation for future treatment to be reasonably incurred by the injured person.
As I discussed in McAllister v Stansbury [61], the incremental additions to the definition of 'loss' indicate that the legislature intended that only such losses should be recoverable under the criminal injuries compensation scheme as were specifically set out in the Act under the definition of 'loss'. The costs of future respite care could only possibly be recoverable under s 6(2)(b) which allows for 'expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim'. The question is therefore whether the word 'treatment' could include paid respite care.
There is no definition of the word 'treatment' in the Act. The new shorter Oxford English Dictionary relevantly defines the word 'treatment' as 'the application of medical care or attention to a patient'. The Oxford English Dictionary defines it as 'management in the application of remedies; medical or surgical application or service.' Anther definition found in the Macquarie Dictionary is 'the application of medicines, surgery, psychotherapy etc, to a patient to cure a disease or condition.'
These definitions indicate that the word 'treatment' is generally intended to signify the application of medical treatment or remedies. I do not consider that the provision of care intended to provide assistance with daily living falls under the definition of 'treatment'. It may be a different situation if care is required as part of medical treatment.
Accordingly, the claim for compensation for respite care can also not succeed.
Orders made
Accordingly, I make the following orders:
1.The appeal be allowed.
2.The award of compensation made by the assessor on 2 November 2010 be varied such that:
(a)the amount of compensation awarded to HH pursuant to his application under s 12 of the Act be increased to the sum of $42,100 ($40,190 + $1,910);
(b)HH be awarded the further sum of $32,900 for the expenses incurred by him, less any relevant rebates, in obtaining future psychiatric and psychological treatment and for medication in accordance with the provisions of s 48 of the Act.
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