JB v Ramljak - [2022] WADC 110

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   JB -v- RAMLJAK [2022] WADC 110
CORAM:   WALLACE DCJ
HEARD:   20 MAY 2022
DELIVERED          :   9 DECEMBER 2022
FILE NO/S:   APP 7 of 2021
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   JB
Appellant
AND
DAVID RAMLJAK
First Respondent
EMMANUEL TABUWA
Second Respondent
MICHAEL MARROQUIN
Third respondent
JOHN MICHAEL ESPERANZATE
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R CAPARARO
File Number            :   CIC 2588 of 2018

Catchwords:

Criminal injuries compensation - Appeal - Adequacy of award - Whether appellant failed to assist investigators - Whether appellant was engaged in criminal conduct - Whether award should be reduced due to the behaviour, condition, attitude or disposition of appellant - Whether appellant suffered loss of earning capacity as a result of his injuries - Whether appellant failed to mitigate his loss - Whether orders limiting recovery from respondents should be varied

Legislation:

Criminal Code Act Compilation Act 1913 (WA)
Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal granted

Representation:

Counsel:

Appellant	:	Mr S H Cohen
First Respondent	:	No appearance
Second Respondent	:	No appearance
Third respondent	:	No appearance
Fourth Respondent	:	No appearance
Amicus Curiae	:	Mr C Arnold appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Sigi Hallis Cohen
First Respondent	:	Not applicable
Second Respondent	:	Not applicable
Third respondent	:	Not applicable
Fourth Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

Cases referred to in decision:

A v D (1994) 11 WAR 481
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Bonnington Castings Ltd v Wardlaw [1956] AC 613
CJJ v WAP [2012] WADC 25
EB v Ramljak [2021] WADC 134
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Harris v Sycamore [2022] WADC 4
Hazart Pty Ltd v Rademaker (1994) 11 WAR 26
Hutchings v Lachlan [2012] WADC 89
KBR v ADM [2018] WADC 120
McDavitt v McDavitt [2013] WADC 22
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Milburn-Thomas v Palmer [2020] WADC 158
MJN v MAJS (2003) 35 SR (WA) 219
Phillips v Mettam [2022] WADC 49
Re Butler [2020] WADC 22
Re Iaria [2018] WADC 22
Re NMB [2015] WADC 157
Reed v Reed [2002] WADC 11
Robertson v Hopwood [2018] WADC 66
Savic v Duric [2021] WADC 53
Scott v Victims Compensation Fund Corporation [2000] NSWSC 1148
Stumpagee v Sampi [2022] WADC 28
Syme v Roos [2016] WADC 164

WALLACE DCJ:

Introduction

This is an appeal against a decision of the criminal injuries assessor (Assessor) made on 2 February 2021 whereby the learned assessor awarded the appellant, JB, the sum of $30,000 under the Criminal Injuries Compensation Act 2003 (WA) (CIC Act) by way of compensation for injuries sustained by him during the commission of various offences on 5 September 2013.
The respondents to this appeal pleaded guilty to a number of those offences in the District Court on 25 May 2015, including one count of aggravated home burglary, one count of aggravated robbery and one count of stealing a motor vehicle (proved offences).
JB made his application for criminal injuries compensation on 20 August 2015 in which he indicated that he was seeking compensation in respect of personal items and loss of earnings or earning capacity. JB did not specify the quantum of earning capacity estimated to have been lost by him.
On 23 February 2021, JB filed a notice of motion against the decision of the assessor on the grounds that the learned assessor failed to allow sufficient damages for the appellant's financial losses and for the fiscal and psychological sequelae of the proved offences.
In the appeal, JB claims the following:
(a)compensation for mental and nervous shock;
(b)pecuniary/economic loss based on loss of significant income and loss of earning capacity as a result of JB's injuries since 2013 and ongoing;
(c)cost of future treatment in relation to trauma-based psychotherapy in the amount of $4,260 - $5,680; and
(d)reimbursement of report costs in the amount of $5,533.
It was submitted on behalf of JB that an award which includes amounts in respect of disbursements, treatment, general damages and economic loss/loss of earning capacity would justify the maximum allowable, namely $75,000: s 31(1) of the CIC Act.

The nature of the appeal

The appeal to this court is made pursuant to s 55(1) of the CIC Act and is a hearing de novo in that the appellant's application is determined afresh without being fettered by the decision at first instance: s 56(1) of the CIC Act.
Whilst the court has regard to the evidence and material which was before the assessor, it also has a general discretion to receive and admit further evidence and information: s 56(1) of the CIC Act.
The court has the power to confirm, vary, or reverse the assessor's decision, either in whole or in part, and to make any order that an assessor could make: s 56(2) of the CIC Act.
In addition to the information that was before the learned assessor, the appellant also sought to rely on the following:
(a)psychiatric report of Dr Frederick Ng dated 4 May 2021;
(b)NovoPsych post-traumatic stress disorder (PTSD) test dated 1 November 2021;
(c)supplementary psychiatric report of Dr Frederick Ng dated 17 November 2021;
(d)victim impact statement of JB dated 1 December 2021;
(e)neuropsychological assessment report of Dr Cindy Cabeleira dated 29 April 2022;
(f)book of documents dated 16 May 2022: income tax documents of JB; and
(g)supplementary statement of JB dated 19 May 2022.
I am satisfied that it is appropriate that I exercise my discretion pursuant to s 56 (1) of the CIC Act to receive and admit into evidence the further information set out at [10] given its relevance to the issues to be determined and being satisfied that it would not be unjust to do so.[1]
[1] Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 - 30 (Malcolm CJ).
At the commencement of the appeal hearing, I indicated to the parties that I intended to grant the appellant leave to amend his application for compensation pursuant to s 19(1)(a) and s 56(2)(a) of the CIC Act. The amendment sought by the appellant was to bring his application, pursuant to both s 12 and s 17 of the CIC Act, in relation to the proved offences and in relation to an alleged offence respectively.
The application to amend was made on the basis that, during the commission of the proved offences, JB was physically assaulted by a masked assailant who was unable to be identified. It was not in dispute at the sentencing of the respondents at the District Court that physical violence was perpetrated against JB during the commission of the proved offences and that he sustained bodily injury as a result (alleged offence).[2]
[2] Sentencing remarks 5 June 2015, page 2 (Keen DCJ).
The respondents were therefore sentenced on the basis that JB was assaulted by an unidentified co-offender causing him bodily harm in contravention of s 317 of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) during the commission of the proved offences.
On that basis I am satisfied that JB was both the victim of the proved offences and of the alleged offence committed during the course of one incident and, as such, s 17 of the CIC Act applies.
I therefore grant leave to the appellant to amend his application for those reasons.
The court was assisted by both counsel for the appellant and counsel for the amicus curiae through their written submissions dated 10 December 2021 and 17 May 2022 and by their oral submissions made at the appeal hearing.
The court did not receive oral evidence from JB, which is not an unusual position given the nature of the jurisdiction, and the requirement for compensation applications to be dealt with expeditiously and relatively informally having regard to the requirements of justice and to the provisions of the CIC Act: (s 18(1)).
Each of the respondents were properly served notice of the appeal but did not file notices of appearance and took no part in the appeal process.

Factual basis for application for criminal injuries compensation

JB was born on 30 October 1968 and is currently 54 years old. He resides with his wife, SB, together with their five children.
At the time of the relevant incident which took place in September 2013, JB owned and operated a painting and decorating business which employed approximately 12 ‑ 14 people and in respect of which SB had an administrative role. The appellant largely subcontracted to building companies.
JB and SB were also involved in the sale and/or supply of methylamphetamine in or about 2013 and both were methylamphetamine users.
It was through their mutual association with methylamphetamine that the fourth respondent became known to JB in the days leading up to the incident.[3]
[3] Witness statement of SB dated 10 September 2013, pars 39 - 51; Witness statement of JB dated 16 September 2013, pars 4 - 22.
On 3 September 2013, the fourth respondent attended JB's home and attempted to sell a quantity of methylamphetamine to JB and SB. The fourth respondent gave a sample of the methylamphetamine to SB which both she and JB smoked. An agreement was unable to be reached on the price of the methylamphetamine and the fourth respondent left the premises, taking the drugs with him.[4]
[4] Witness statement of SB dated 10 September 2013, pars 108 - 141.
Whilst JB provided somewhat contradictory accounts in his police witness statements in relation to whether any of the respondents were previously known to him. I find that his 16 September 2013 statement is the most reliable source of information in that regard. In that statement JB admitted that he had met the fourth respondent previously.[5] That position is consistent with SB's witness statement in relation to the existence of a prior drug-related association with the fourth respondent.
[5] Witness statement of JB dated 16 September 2013, par 18.
The incident during which the proved offences and alleged offence occurred took place in the early hours of Thursday, 5 September 2013. At that time, JB was at his home in Mindarie conversing with friends. SB was asleep in the master bedroom and four of their five children were also home that evening.
At some point during the night, the fourth respondent rang the doorbell and JB let him into the garage. Approximately 15 minutes or so later the fourth respondent gave access to the garage to one of his co‑offenders. Access to the property was then gained by the other two respondents. The first and third respondents were masked.
It is unclear whether there was a total of four offenders or whether additional unidentified masked men were also present.
The intention of the respondents was to enter the property and steal from JB and his wife.
Whilst it is unclear whether JB and SB were targeted due to an alleged outstanding drug debt, Keen DCJ, at the sentencing hearing, noted that a submission had been made to the court that the burglary was not drug related which was a position not challenged by the State.[6]
[6] Sentencing remarks 5 June 2015, page 2.
Upon entering JB's property, one of the masked offenders assaulted JB by punching and kicking him, as a result of which he received injuries amounting to bodily harm. Each of the offenders then moved through JB's house taking various items of property. Other family members of JB were moved to the garage from various parts of the house.
Whilst in the garage, the offenders compelled JB to sign vehicle transfer papers which they had brought with them. Under compulsion of threats made to his family and to himself, JB signed the vehicle transfer papers.
The offenders then left the premises with the papers and other items of property, with one of the offenders departing in JB's motor vehicle.
Property stolen included: two sets of car keys to JB's motor vehicle, the motor vehicle itself, two mobile phones, computers, two large bottles of alcohol, 20 pairs of sunglasses, the safe, $300 in cash, assorted jewellery including a pink diamond and eight small white diamonds, old bank notes and coins, two guitars, a driver's license in JB's name and assorted cosmetics.
Various items of property were later recovered during a search warrant executed on the respondents. JB's motor vehicle was also subsequently recovered.
JB sought medical treatment on 7 September 2013 at the Joondalup Health Campus Emergency Department.
JB subsequently reported the offending to the police in the evening of 9 September 2013.
JB was initially reluctant to seek medical assistance or to report the matter to police because he was concerned about reprisal given the threats that the offenders had made against him and his family during the commission of the proved offences.[7]
[7] Witness statement of JB dated 16 September 2013, pars 98 and 99.
In respect of the injuries JB asserts that he has sustained, the court has before it:
(a)JB's witness statements dated 9 and 16 September 2013;
(b)JB's victim impact statements dated 2 June 2015, 1 December 2021 and 15 May 2022;
(c)Joondalup Health Campus private hospital records;
(d)report of Mr Robin Lillico, psychologist, dated 3 October 2018;
(e)NovoPsych PTSD test dated 1 November 2021;
(f)reports of Dr Ng dated 4 May 2021 and 17 November 2021; and
(g)neuropsychological assessment report of Dr Cabeleira, clinical neuropsychologist, dated 29 April 2022.
On the basis of the collective witness statements/victim impact statements provided by JB, I note the following:
(a)the physical assault on JB lasted approximately one minute or so during which he was pinned to the ground, punched approximately seven times to the region of his head with a clenched fist and kicked once to the face, following which JB believed that he lost consciousness;[8]
(b)when JB woke the following morning he was unable to recall his date of birth, felt sick and vomited and his face was sore and he was feeling quite shaky;[9]
(c)on 7 September 2013, SB drove JB to Joondalup Health Campus because he was still experiencing pain and memory loss. He was admitted into hospital overnight for treatment;[10]
(d)JB now finds it difficult at times to concentrate. He experiences forgetfulness and always feels anxious and nervous of his surroundings;[11]
(e)JB suffers severe headaches and nose bleeds which he did not suffer prior to the incident;[12]
(f)JB is now hypervigilant and preoccupied with concerns in respect of his own safety and that of his family;[13]
(g)JB now suffers depression and insomnia and feels 'emotionally shattered' such that his life has dramatically changed;[14]
(h)JB was unable to work for months after the incident because of his physical injuries, because his vehicle and tools were stolen and because he lost contracts given that JB was unable to inform his contractors why he was unable to work;[15] and
(i)JB has now become withdrawn, angry, is easily irritated and socially withdrawn, which has impacted on his interpersonal relationships.[16]
[8] Witness statement of JB dated 16 September 2013, pars 61 - 68.
[9] Witness statement of JB dated 16 September 2013, pars 88 - 93.
[10] Witness statement of JB dated 16 September 2013, pars 101 - 102.
[11] Victim impact statement of JB dated 15 May 2022, pars 27, 46 and 60.
[12] Victim impact statement of JB dated 15 May 2022, pars 45 and 49.
[13] Victim impact statement of JB dated 15 May 2022, pars 48 and 57.
[14] Victim impact statement of JB dated 15 May 2022, pars 51, 52, 55 and 56.
[15] Victim impact statement of JB dated 15 May 2022, pars 22, 23, 37, 38 and 39.
[16] Victim impact statement of JB dated 15 May 2022, pars 44 and 47.
The injuries sustained by JB during the alleged offence as reported by the Joondalup Health Campus Emergency Department were confined to:
(a)presenting in a distressed state complaining to be suffering from a headache;
(b)he had bled from his right nostril the previous day which had since desisted;
(c)he had little recollection prior to or following the assault;
(d)consistent with blunt force trauma JB presented with:
(i)0.5 cm by 0.5 cm left forehead supraorbital area superficial laceration;
(ii)0.5 cm by 0.5 cm left periorbital area superficial laceration;
(iii)right sided racoon eye; and
(iv)minor bruising on the left upper eye lid;
(e)scans of JB's face, head and neck were all reported by the radiologist as being normal; and
(f)JB was discharged the following day with a diagnosis of post‑concussion syndrome.[17]
[17] Report of Dr Paul Koh, Joondalup Health Campus Emergency Department, dated 16 January 2014.
JB also claims to have suffered mental and nervous shock as a result of being the victim of both the proved offences and alleged offence. In this regard, Mr Lillico identifies that JB now suffers the following:
(a)     post-traumatic stress disorder;
(b)     depression; and
(c)     anxiety.
The report of Mr Lillico attaches a NovoPsych test assessment in relation to his diagnosis of JB with PTSD. That assessment comprises 20 questions which were answered by JB by selecting a number between the range of 0 to 4.
JB also relies upon the reports of Dr Ng that, following the incident, the appellant developed an unspecified trauma-related disorder, at its worst to a moderate to moderately severe extent, which is currently partially treated, persistent and problematic.[18]
[18] Report of Dr Ng dated 4 May 2021, page 10.
Dr Ng disagreed with Mr Lillico's diagnosis of PTSD for the following reasons:
(a)JB did not have memory of the assault and was therefore not able to re-experience it to the same extent that witnesses who remain awake and conscious during an assault or who witness a person being assaulted are able to do;
(b)JB was unconscious for much of the incident and, as a result, could not remember experiencing the physical assault and therefore his reported post-trauma anxiety symptoms fell short of the diagnosis of PTSD;
(c)the assessment instrument utilised by Mr Lillico is simply a screening instrument and not a diagnostic instrument;
(d)further, any definitive psychiatric diagnosis can only be made from a comprehensive clinical (interview based) psychiatric assessment; and
(e)JB was unable to provide Dr Ng with the psychiatric symptoms required to make the diagnosis of PTSD at the time of assessment.
JB's position is that he either suffers PTSD or an unspecified trauma‑related disorder as a result of being the victim of the proved offences and/or alleged offence.
Given the possibility that JB also sustained cognitive impairment as a result of the alleged offence, Dr Ng recommended a neuropsychological assessment be conducted. This was subsequently performed by Dr Cabeleira.
Dr Cabeleira found the following:
(a)JB's neuropsychological profile appeared primarily characterised by mild attentional/executive weaknesses, which seemed to be causing variability or fluctuations in his learning and memory functions and are a result of the severity of his psychological presentation, including marked symptoms of depression and anxiety and a diagnosed unspecified trauma‑related disorder;[19]
(b)there was no evidence that JB had suffered an acquired brain injury, nor any cognitive impairment arising from such an injury; and
(c)as such, JB requires the input of trauma‑focused therapies so as to enable him to develop strategies to more effectively cope with his ongoing psychosocial stresses associated with the incident, which would in turn assist in reducing the negative impact of the psychological factors on his cognition and daily functioning.[20]
[19] Neuropsychological report of Dr Cabeleira dated 29 April 2022, page 10.
[20] Neuropsychological report of Dr Cabeleira dated 29 April 2022, pages 10 ‑ 11.

Issues to be determined

The issues which arise to be determined in the appeal are as follows:
1.Whether there are any statutory bars to an award being made.
2.Whether the mental and nervous shock sustained by JB was caused, either wholly or in part, by the proved offences and/or alleged offence.
3.What amount of non-pecuniary compensation is appropriate to award JB, if any, in relation to the physical injuries and mental and nervous shock suffered by him?
4.Has JB suffered pecuniary loss in the form of loss of earning capacity as a result of the injuries sustained by him arising from being the victim of the proved offences and/or alleged offence and, if so, what is that loss?
5.Did JB fail to mitigate any loss suffered by him by failing to seek medical treatment and/or psychological assistance earlier in time?
6.What, if any, award should be made for future medical treatment?
7.What award of compensation, if any, should be made payable to JB and should the s 45 (1)(b) orders made by the learned assessor be varied?

1. Whether there are any statutory bars to an award being made

The following issues arose at the appeal hearing in relation to potential impediments to an award being made in favour of the appellant:
(a)pursuant to s 38 of the CIC Act due to a potential failure on the part of JB to assist police in their investigation and prosecution of the alleged offenders;
(b)pursuant to s 39 of the CIC Act as to whether JB was engaged in criminal conduct with a temporal connection to the commission of the proved offences/alleged offence; and/or
(c)pursuant to s 41 of the CIC Act as to whether any award of compensation ought to be refused or reduced when having regard to any behaviour, condition, attitude or disposition of JB that contributed directly or indirectly to him sustaining his injuries.

Failure to assist

In relation to a failure to assist, the issues are as follows:
(a)the failure of JB not to report the incident to police earlier than the evening of 9 September 2013; and
(b)the provision of witness statements to the police in which JB stated that he did not know any of the offenders; failed to disclose his association with illicit drugs, namely methylamphetamine; and failed to disclose an alleged drug debt owed to an associate of the fourth respondent.
Section 38 of the CIC Act relevantly provides:
An assessor must not make a compensation award in favour of a victim, … if the assessor is of the opinion that the victim … did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence.
Davis DCJ in Re Iaria,[21] found that a failure to assist investigators will not necessarily preclude an award of compensation being made if one or both of the following factors exist:
…
(a)a legitimate fear by the appellant of reprisal by the offender, especially where the threat of harm to the appellant was real and immediate. However, a general fear of an offender is not, on its own, sufficient to justify a failure to report an offence to the police.
and/or
(b)something in the appellant's personal circumstances which demonstrates that their failure to report or provide assistance to the police was reasonable.[22]
[21] Re Iaria [2018] WADC 22.
[22] Re Iaria [18].
In my view, assuming that the delay in reporting the incident to police and/or the initial lack of candidness in JB's witness statement, can be seen as a failure to assist investigators, such failure/s are not unreasonable and do not preclude an award of compensation being made given the following:
(a)I accept that JB had a legitimate fear of reprisal from the respondents in circumstances where I accept that they threatened to return and harm JB and/or his family (including his children) if he complained to the police. This was a threat which JB took seriously because the respondents knew where he lived;[23]
(b)the delay in reporting the matter to the police was only a matter of four days;
(c)the initial witness statement provided by JB to police was supplemented by a far more detailed and more candid statement one week later, namely on 16 September 2013; and
(d)in the immediate aftermath of the incident JB was suffering the effects of post-concussion and shock having been the victim of a violent home burglary committed by a group of men, some of whom were masked, and he was suffering various physical and mental trauma: see [40] above.
[23] Witness statement of JB dated 16 September 2013, par 99; Victim impact statement of JB dated 15 May 2022, par 13.
Thus, in my view, s 38 of the CIC Act does not preclude an award of compensation being made to JB.

No award if victim was engaged in criminal conduct

Section 39 of the CIC Act relevantly provides as follows:
(1)If an assessor is satisfied -
(a)that a person was injured as a consequence of the commission of an offence; and
(b)that the injury was suffered when the person was committing a separate offence,
the assessor must not make a compensation award in favour of the person.
The issue that arises in relation to s 39 of the CIC Act, is the factual finding that I have made at [24] that the day prior to the proved offences/alleged offence being committed against JB, he was in possession of methylamphetamine and had consumed it contrary to s 6(2) of the Criminal Code.
Of importance, however, is that there is no evidence before the court that JB was in possession of methylamphetamine at the time of the commission of the proved offences/alleged offence.
This is significant because the term 'when' in s 39(1)(b) of the CIC Act does not require a causal connection between the offence allegedly committed by JB and the offence or offences giving rise to the injuries sustained by him, but it does require a temporal connection to exist. The temporal connection does not require JB's alleged criminal conduct and the offences giving rise to his injuries to occur simultaneously, but they do need to form part of one incident.[24]
[24] Hutchings v Lachlan [2012] WADC 89 [32].
The following can be gleaned from relevant case authority in relation to when a temporal connection has been found not to exist:
(a)when the criminal conduct committed by the appellant is 'separate and distinct' in nature from the offence committed against them;[25]
(b)a time lapse which is a sufficient temporal 'hiatus' to break a temporal connection (which can be as brief as two hours);[26] and
(c)a clear cessation or withdrawal by the appellant from engagement in the criminal conduct at the time that the injuries are sustained by them.[27]
[25] Phillips v Mettam [2022] WADC 49 [30]; McDavitt v McDavitt [2013] WADC 22 [126].
[26] KBR v ADM [2018] WADC 120 [69].
[27] CJJ v WAP [2012] WADC 25 [67] and [73].
In my view, the necessary temporal connection does not exist such that s 39 of the CIC Act prohibits an award being made in the circumstances of this case.
Whilst the question as to whether a sufficient temporal connection exists is always a question of fact and degree,[28] what is clear from a review of the relevant authorities is that a temporal connection ordinarily involves concurrency with the proved offences/alleged offence or, at the very least, a degree of immediacy such that they can be said to form part of one incident albeit they may be separate offences.
[28] Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [54].
It appears clear to me, that JB briefly smoking methylamphetamine at his home the day before the proved offences/alleged offence were committed, is a sufficient temporal hiatus. It also appears to me that the alleged criminal conduct committed by JB was separate and distinct in nature to the proved offences/alleged offence which were committed against him the following day.

Behaviour of the appellant to be considered

Lastly, in relation to whether any conduct or behaviour of the appellant could act as a partial bar to the court awarding compensation, s 41 of the CIC Act provides as follows:
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor -
(a)must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury or death; and
(b)may, if he or she thinks it is just to do so -
(i)refuse to make a compensation award because of that contribution; or
(ii)reduce the amount that the assessor would otherwise have awarded.
Whilst the consideration in s 41(a) is a mandatory one, the court clearly has a discretion pursuant to s 41(b) as to whether to refuse or reduce a compensation award as a result of considering those mandatory matters. Any reduction of course can only be apportioned after an award is made.
The following useful guidance as to the application of s 41 of the CIC Act arises from a consideration of relevant authorities:
(a)whether or not the appellant's behaviour, condition, attitude, or disposition will preclude or reduce any award of compensation is a matter of fact and degree to be determined in light of the particular circumstances;[29]
(b)whether an award ought to be discounted will often involve a consideration as to whether the appellant's own behaviour or action contributed, directly or indirectly, to the criminal behaviour then taken by the respondent/s whereby the appellant was injured;[30]
(c)section 41 may be applicable in an appropriate case where:
(i) the appellant provoked or incited a respondent to assault them causing injury;[31]
(ii)the appellant has previously engaged in an assault perpetrated against the respondent or participated in incidents of 'mutual violence' or undertaken acts of retribution against a respondent who then commits an offence against the appellant as a result of which they sustain injury;[32] or
(iii)the appellant is found to have acted in an antagonistic and provocative manner thus contributing in a material way to the resultant offence being committed against them and any injuries then arising;[33] and
(d)the question ultimately is whether the appellant, by his own behaviour, condition, attitude or disposition, contributed, either directly or indirectly to his injuries, as opposed to the commission of the offence or offences themselves.[34]
[29] Harris v Sycamore [2022] WADC 4 [45].
[30] Reed v Reed [2002] WADC 11 [23].
[31] Harris v Sycamore [2022] WADC 4 [128].
[32] Scott v Victims Compensation Fund Corporation [2000] NSWSC 1148 [30] where the court discussed the application of a provision in identical terms to s 41 of the CIC Act.
[33] Stumpagee v Sampi [2022] WADC 28 [83] ‑ [84]
[34] Robertson v Hopwood [2018] WADC 66 [66].
The intent of s 41 of the CIC Act is clear, namely to ensure that compensation awards are made solely to compensate for injury sustained as a result of the commission of an offence as opposed to those injuries which arise as a result, either in part or in whole, of conduct engaged in by the victim themselves.
After careful consideration of all of the material which was before the learned assessor, as well as the additional material that was before the court for the purposes of the appeal, the following relevantly appears to be the case:
(a)over an indeterminate period of time prior to the incident, JB and SB were involved in the sale and/or supply of methylamphetamine;
(b)the fourth respondent had attended JB's home in the months/weeks leading up to the incident seeking to recover an alleged drug debt owing to an associate;
(c)there was some dispute between JB and SB and the fourth respondent and his associate as to what, if any, of the outstanding drug debt remained;
(d)the day before the incident the fourth respondent attended JB's home and attempted to sell a quantity of methylamphetamine to JB and SB. During the course of those discussions, the fourth respondent provided a sample of methylamphetamine to JB and SB which they consumed. Ultimately, the sale did not proceed and the fourth respondent took the remaining methylamphetamine with him when he left the premises;
(e)there was no methylamphetamine or any other illicit substance at JB's home at the time of the commission of the proved offences/alleged offence;
(f)the commission of the proved offences/alleged offence was not related to a drug debt but was related to an unspecified alleged debt owing by JB and/or SB to an associate of the fourth respondent; and
(g)JB and SB became known to the fourth respondent through the sale or supply of illicit drugs, as a result of which he was able to identify their home as a target for the proved offences.
What appears clear from the above is that, but for JB's involvement in the illicit drug trade, the fourth respondent would not have come into contact with JB and/or SB and it is unlikely that they would have become the target for the proved offences.
However, in my view, that is not a factual situation that s 41 of the CIC Act is intended to guard against. That is, simply because the fourth respondent was able to identify JB's home as a potential lucrative target because of their illicit drug association, does not provide a sufficient basis on which the court could find that JB therefore contributed, directly or indirectly, to his own injuries.
The factual findings identified at [68], reflect too tenuous a connection for the court to conclude that JB has contributed to the injuries sustained by him. In my view something more than a mere illicit drug association between a victim and an offender is required to enliven s 41 of the CIC Act.
That section is enlivened in circumstances where the appellant engages in behaviour that has a causal connection to the offence/s during which they sustain injury, such as engaging in behaviour that is intentionally provocative, aggressive or intimidatory in nature. Those characteristics are missing in this case.
The factual circumstances in this case are therefore not of the kind which would in my view enliven s 41 of the CIC Act.

2. Whether the mental and nervous shock sustained by the appellant was caused, either wholly or in part, by the proved offences/alleged offence

On the basis of the medical evidence summarised at [42] ‑ [48] above, I make the following findings in relation to the mental/psychological injuries sustained by JB:
(a)whilst JB does not have a diagnosis of PTSD, he does suffer from an unspecified trauma-related disorder, which at its worst, is moderate to moderately severe, and which is currently partially treated, albeit nevertheless persistent and problematic in nature;
(b)JB suffers moderately severe anxiety and depression;
(c)JB has a neuropsychological profile primarily characterised by mild attentional/executive weaknesses causing fluctuations in his learning and memory functions, as a result of his psychological symptoms, which require ongoing treatment in order to reduce their severity; and
(d)JB does not suffer from an acquired brain injury or cognitive impairment.
It was not in contention that JB's unspecified trauma-related disorder, anxiety and depression each constitute an 'injury' pursuant to s 3 of the CIC Act. It was also not in contention that JB's mental and nervous shock are injuries capable of being compensated: s 35(2)(b) of the CIC Act.
In relation to the psychological injuries sustained, the reports before the court all identify the cause of the psychological injury being the physical and psychological trauma directly arising as a consequence of JB being the victim of the subject incident.[35]
[35] Report of Dr Ng dated 4 May 2021, page 10; Neuropsychological report of Dr Cabeleira dated 29 April 2022, page 10.
However, it is clear that the reports were prepared on the basis of the appellant self‑reporting to the authors that he is not a consumer of illicit drugs and, as such, there was no consideration as to whether JB had any predisposing influences elevating his susceptibility of psychological injury due to past or recent illicit drug use.
Although it appears that JB was a methylamphetamine user as at September 2013, the court has no information before it in relation to whether JB had any mental health issues arising from illicit substance use nor any evidence before it as to the frequency or quantity of JB's consumption of methylamphetamine at that time.
In all the circumstances, therefore, it is not possible for the court to make any finding, as to whether methylamphetamine or other illicit drug use had any predisposing influence in respect of JB's psychological condition at the time of the incident.
Therefore, I am satisfied that the psychological injuries sustained by the appellant noted by me at [74] were caused by the commission of both the proved offences and alleged offence.
However, it also appears to me that the psychological injuries sustained by JB have been impacted, as far as ongoing severity and persistence, by the worsening financial situation of the appellant in the years following the commission of the proved offences/alleged offence, particularly in the aftermath of JB's home being repossessed and JB being the victim of five subsequent robberies whilst residing in a rental property.[36]
[36] Victim impact statement of JB undated, par 41.
The impact of the ongoing dire financial situation of JB was acknowledged by Mr Lillico in his report as follows:[37]
… the huge financial losses [JB] has suffered through the loss of his home and business has increased his stress and anxiety levels greatly …
As a result his family home was repossessed and the family had to move into a rental in Nollamara. Even though it has been five years since the home invasion the whole family are still suffering greatly from the financial loss. This has had a massive effect on [JB] and has contributed greatly to his anxiety, stress and depression.
[37] Report of Mr Lillico dated 3 October 2018, page 2.
The impact of JB's worsening financial situation on his psychological presentation was also noted in the neuropsychological report:[38]
[JB] reported ongoing symptoms of depression (i.e., feelings of apathy and struggling to get out of bed in the mornings) since being attacked in 2013 and felt that these had worsened over the years. … He denied any history of depression prior to this incident and partially attributed these symptoms to his expectation that he would be 'back on his feet' (seemingly financially) by now.
…
[JB's] psychological symptoms resulting from the incident, together with various ongoing psychosocial stressors associated with such, are considered to be of such a severity that they would be contributing to/causing the (attentional/executive) nature and pattern of weaknesses observed on neuropsychological assessment.
(emphasis added)
[38] Neuropsychological report of Dr Cabeleira dated 29 April 2022, page 5.
Therefore, whilst JB's unspecified trauma-related disorder, depression and anxiety, which are impacting on his neuropsychological presentation, are in my view materially causally linked to the proved offences and/or alleged offence, they appear to have persisted in nature and increased in severity over time due to the worsening financial position of JB. I will say more about the relevance of this shortly.

3. What amount of non-pecuniary compensation is appropriate to award JB, if any, in relation to the physical injuries and mental and nervous shock suffered by him?

In my decision Re Butler [2020] WADC 22 at [94] I set out the general principles which apply when the court determines what is an appropriate award of compensation in any particular case and I need not repeat them here.

I have already set out at [40], [41] and [74] above both the physical injuries and the mental and nervous shock injuries suffered by the appellant as a result of the proved offences and/or alleged offence.
In my view, the physical injuries suffered by JB were fairly minor in nature and did not require ongoing treatment.
In relation to JB's psychological injuries, counsel directed me to the decision of EB v Ramljak [2021] WADC 134 [52] in which Whitby DCJ awarded JB's daughter, EB, in respect of her psychological injuries arising from the same incident (PTSD, anxiety and depression), the sum of $25,000.
JB's counsel submitted to the court that the award of compensation in respect of his injuries ought to be greater than that awarded to EB given that she merely witnessed the alleged offence (as opposed to being the victim of it) and JB's psychological injuries are comparatively more severe in nature.
I am not persuaded by that submission.
It appears to me that both JB and EB suffered very similar psychological injury given that JB has been diagnosed with a trauma‑based injury, as has EB, in addition to anxiety and depression. Indeed, the impact and the effects on EB as set out at [41] ‑ [42] of that decision almost mirror those that I have identified at [40], [42] and [44] above.
However, JB did suffer minor physical injuries which in my view ought to be reflected in a slightly higher non-pecuniary award being made in his favour than that which was awarded to EB.
I have therefore decided that an appropriate award to compensate JB for both his physical and psychological injury is the amount of $30,000.

4. Has the appellant suffered pecuniary loss in the form of loss of earning capacity as a result of the injuries sustained by him arising from being the victim of the proved offences/alleged offence and, if so, what is that loss?

JB submitted to the court that as a result of being the victim of the proved offences/alleged offence and the resultant injuries sustained by him, he has consequentially suffered significant pecuniary loss.
JB submitted that he was unable to secure contracts for reasons relating to his mental health and damage to his reputation, which resulted in him losing his business, and failing to be able to meet mortgage repayments on his home culminating in it being repossessed by the bank.
In addition, JB submitted that following the loss of his business, he also suffered a reduced capacity to work due to his psychological injuries. In this regard, JB relies on the diagnosis attributed to him by Dr Ng of unspecified trauma-related disorder in relation to which Dr Ng stated in his report that the appellant's work capacity (as at May 2021) was part‑time, namely only being able to work approximately 20 ‑ 30 hours per week and that his quality and outcome would be much less than it was pre‑injury as a consequence of JB's ongoing cognitive and other psychiatric difficulties.[39]
[39] Report of Dr Ng dated 4 May 2021, page 11.
JB carries the onus of proving the loss of earning capacity and the extent to which that loss produces or might produce financial loss.[40]
[40] Re NMB [2015] WADC 157 [105] (Braddock DCJ) citing Medlin v State Government Insurance Commission (1995) 182 CLR 1.
The appellant's taxation notices of assessment identify the following taxable incomes for the financial years prior to the incident:

2006/2007

$91,390

2007/2008

$65,591

2008/2009

$38,405

2009/2010

$79,631

2010/2011

$49,656

2011/2012

$90,548

2012/2013

$14,754

The appellant's taxation notices of assessment identify the following taxable incomes for the financial years following the incident:

2013/2014

$11,362

2014/2015

$14,278

2015/2016

$20.574

2016/2017

$11,955

2017/2018

$1,156

2018/2019

$42

2019/2020

$4,173

In relation to the information before the court as to the potential cause/causes for the decline in the profitability of JB's business, I note the following:
(a)In JB's initial victim impact statement he stated that after the proved offences/alleged offence he could not work for months due to physical injuries, given that his vehicle and tools had been stolen and given the impact of the incident on the reputation of his business. In relation to the reputation of the business, the appellant stated the following:[41]
[41] Victim impact statement of JB dated 29 May 2015.
After the builder found out what happened he said he didn't want it to spill over onto the work site. He took contracts off us and we didn't get any more work from them.
(b)In JB's subsequent victim impact statement prepared for the purposes of this appeal he stated that he lost contracts because 'I had to tell my contractors why I was unable to work'. JB did not elaborate on what he informed contractors in this regard or what if any concerns they raised with him;[42]
[42] Victim impact statement of JB dated 15 May 2022.
(c)In JB's supplementary statement he asserts that the decline in his business' income for the 2012/2013 financial year, which immediately preceded the incident, was caused by the non‑payment of debts owed to JB by Robinson Build‑Tech, a building company in respect of which JB was a subcontractor. JB stated that he was subcontracted for a large painting project at Mindarie Senior College and effectively lost almost a year's work in the 2012/2013 financial year due to Robinson Build‑Tech being placed into liquidation in March 2015;[43]
[43] Supplementary statement of JB dated 19 May 2022.
(d)Dr Ng identified in his report that JB informed him of the following:[44]
[44] Report of Dr Ng dated 4 May 2021, page 4.
(i)at the time of the 2013 incident JB worked as a painter and decorator and had 14 workers under his employment. He worked on the tools, as well as supervising the other workers;
(ii)following the 2013 incident, JB attempted to return to work, however the builders he worked for found out about what happened and started to pull contracts from him;
(iii)JB however was able to find other work contracts, but those other builders went bankrupt;
(iv)the business also received a significant setback because the offenders stole JB's valuable tools and car and he had to spend some time in hospital, all of which affected his business;
(v)JB currently works as a painter and decorator, working occasionally but at a slower pace and is less persistent at his work.
(e)Dr Cabeleira noted that she was informed of the following in her interview with JB:
(i)JB owned his own painting business until 2013 and had 12 employees;
(ii)JB lost various work contracts following the 2013 incident as a result of his injuries and clients being apprehensive about his injuries and what had led to them '(i.e, not wanting to be involved in any issues)';
(iii)JB later began working for another builder and after completing the work the builder declared bankruptcy and JB never received payment; and
(iv)since then JB has largely performed smaller painting jobs on his own when he can find them and is also in receipt of a Newstart Allowance through Centrelink for financial assistance.[45]
[45] Neuropsychological report of Dr Cabeleira dated 29 April 2022, pages 3 and 4.
In relation to whether the physical injuries sustained by JB caused him to suffer economic loss I note the following.
Firstly, it is clear from my description of JB's physical injuries at [41], that they were minor in nature and involved JB being admitted to hospital for only one night following which he was discharged on the basis that he required no further treatment or follow up.
Other than JB's own assertion that he was unable to work for a number of months in part due to his physical injuries, there is no medical evidence before the court on which I could award compensation for loss of earning capacity as a result of physical injury per se. I am therefore not satisfied that JB has established an economic loss caused by the physical injuries he sustained as a result of the alleged offence.
In relation to JB's psychological injuries, I note that he claims economic loss suffered as a consequence of the commission of either the proved offences and/or alleged offence pursuant to either s 12 and/or s 17 of the CIC Act. Those provisions enable an assessor to compensate an applicant for the injury they have sustained and 'any loss also suffered'.
The term 'loss' has been defined in s 6 of the CIC Act which, relevantly in the context of the appellant's claim for pecuniary loss, provides the following:
…
(2) …
(c) loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim …
Thus, JB can only be compensated for loss of earning capacity suffered as a direct consequence of the injury suffered by him, as opposed to being as a direct consequence of him being the victim of the proved offences and/or alleged offence.
Therefore, JB cannot be compensated for loss of earning capacity arising as a result of the following (which clearly are not as a result of the injuries sustained by him):
(a)his vehicle and tools being stolen;
(b)loss of earnings due to a building company to whom he was subcontracted being placed into liquidation; or
(c)damage to JB's business reputation because he was the victim of the proved offences and/or alleged offence and builder/s 'found out what happened' and 'said he didn't want it to spill over onto the work site'. That is, reputational damage unattributable to JB's injuries.
Ultimately, I am not satisfied that the decline in the profitability in JB's business was caused, either in part or in whole, by the psychological injuries he sustained due to the commission of the proved offences and/or the alleged offence. I make this finding for a number of reasons.
Firstly, there is very little evidence, if any, before the court which clearly identifies JB's role in the operation of the business. However, given that JB had up to 14 tradesmen working for him, his role must have been, at least in part, managerial and supervisory in nature. JB may also from time to time have assisted with the hands‑on performance of the painting and associated works, although with a team of 14 employees it is unlikely that this would have been the predominant role of JB.
Secondly, there is no evidence before the court which identifies whether JB was no longer able to perform the essential responsibilities of his particular role in the business following sustaining his psychological injuries, including whether he would have been able to perform some of the responsibilities sufficiently on a part‑time basis and/or delegate to others some of the less complex responsibilities.
Indeed, the only comment on JB's diminished earning capacity is that of Dr Ng, on the basis of JB working as a painter as opposed to his ongoing ability to operate what the appellant says was a large and successful business.
Thirdly, there is evidence before the court that JB did in fact secure other contracts for his business post the 2013 incident, and that he was not paid due to the builder becoming bankrupt, and he lost other contracts because of reputational issues (see [100]). This position is contrary to the submission made on JB's behalf that the business declined in profitability because JB could no longer perform his role due to the psychological injuries sustained by him.
Fourthly, JB's business suffered a significant decline in profit in the financial year immediately preceding the 2013 incident which, in my view, remains unexplained.
In particular, whilst JB asserts that the loss of earnings post the 2013 incident was due to Robinson Build‑Tech being placed into liquidation, I am unable to accept that position based on the following:
(a)JB was unable to provide even the most cursory evidence in relation to the quantum of debt allegedly outstanding and owing by Robinson Build‑Tech at the time that it was placed into liquidation by way of outstanding invoices issued to that entity, letters of demand, proof of debt in the liquidation or even a broad estimate as to the quantum of the debt owing;
(b)it is difficult for the court to reconcile the inconsistency in timing such that JB had significant funds outstanding and owing to it by Robinson Build‑Tech during the financial year 2012/2013 which remained outstanding almost two years later when that entity was placed into liquidation in March 2015 and that the appellant had not, as at September 2013 when the incident took place, terminated that contract and secured replacement ongoing contracts;
(d)the appellant appears to have consistently informed both Dr Ng and Dr Cabeleira that post the proved offences/alleged offence he then secured a contract with a builder who subsequently became bankrupt as a result of which he suffered significant financial loss. That is, JB has, contrary to what has been submitted to this court, informed two medical specialists that he was not only able to secure a significant contract after the 2013 incident, but presumably he was able to operate his business without issue and meet those contractual obligations but suffered financial loss when the entity was placed into liquidation; and
(e)the position communicated to both Dr Ng and Dr Cabeleira, namely that JB suffered significant financial loss due to a bankrupt builder after the 2013 incident (rather than in the 2012/2013 financial year) is in my view far more consistent temporally with the liquidation of Robinson Build-Tech occurring in early 2015.
Therefore, in the absence of understanding what was the precipitating factor in the sudden and dramatic decline in the profitability of JB's business between the 2011/2012 and 2012/2013 financial years, it is not possible for the court to exclude as a reasonable possibility that the cause of that decline was still having a material impact in the 2013/2014 and subsequent financial years.
Fifthly, the financial losses flowing after the 2013/2014 financial year appear to be, on JB's own admission, as a result of a growing reluctance on the part of builders to contract with JB's business given the damage to his reputation as a result of JB being the target of a violent home invasion with at least one of the respondents being associated with illicit drug offending.
Sixthly, in addition, as a matter of common sense, losing a year's worth of income due to the collapse of Robinson Build‑Tech as a result of which JB was unable to pay his employees, would have had a significant adverse financial impact on the ongoing viability of JB's business.
Ultimately, I find that the appellant's loss of earning capacity from his business has not been established, on the balance of probabilities, to have been caused, or materially contributed to, by the injuries sustained by him as a result of the proved offences and/or alleged offence.
This finding is a matter of significance because in my view, the ongoing decline of JB's financial position due to the demise of his business resulted in his home being repossessed by the bank and in him renting a property which was then robbed five times, all of which understandably exacerbated his psychological injuries.
Nevertheless, the court's consideration as to whether JB has suffered pecuniary loss as a result of his injuries is not limited to a consideration of the operation of his business. That is because, following the loss of the appellant's business, he commenced working on small painting contracts as a sole tradesman. Given the findings made by Dr Ng summarised at [96] above, it may be open for the court to find that JB has nevertheless suffered compensable economic loss.
In this regard, Dr Ng states that JB is only capable of working approximately 20 ‑ 30 hours per week due to his ongoing cognitive and other psychiatric difficulties.
It is difficult for the court to quantify the impact that a reduced capacity to work may have had on JB as there is no evidence before the court as to what JB would have been capable of earning if he were working full‑time as a painter/decorator as opposed to operating his business. It is also unclear to the court in what financial year JB abandoned his business and began working as a sole tradesman, and when he did so what hours he was working (whether he completed contracts working full-time hours or whether he negotiated contracts such that he only performed small jobs or worked on a reduced hours basis).
It also appears to the court that the impact of JB's psychological injury on his ability to work as a sole tradesman full-time is impacted by both his failure to mitigate his loss by seeking psychological assistance earlier in time and the exacerbation of his symptoms due to the psychosocial stressors of losing his home and the adverse consequences which flowed (which I have found was not caused by JB's injuries, but rather due to the decline in profitability of his business due to the factors identified at [112] - [117]).
However, despite the complexity of this task, it is open to the court to find that JB did suffer psychological injury as a result of the proved offences and/or alleged offence which has had an impact on JB's capacity to earn albeit that that loss is incapable of precise quantification (and noting that it is not the sole cause of pecuniary loss suffered by JB or even the predominant cause).
Where, as in this case, there are too many imponderables to make any precise calculation of the damages to be awarded for the loss of earning capacity a global amount may be awarded.[46]
[46] A v D (1994) 11 WAR 481, 487 (Pidgeon J); Syme v Roos [2016] WADC 164 [157] - [158].
In my view, given all of the relevant factors to which I have just referred, it is appropriate for a global, but modest, amount to be awarded to JB for loss of future earning capacity in the amount of $15,000.

5. Did the appellant fail to mitigate any loss suffered by him by not seeking medical treatment and/or psychological assistance earlier in time?

In relation to the issue in respect of mitigation, the amicus curiae raised the following:
(a)the failure of JB to seek immediate medical treatment; and
(b)the delay of five years before JB sought psychological assistance for his mental distress and shock.
In relation to JB's failure to seek immediate medical assistance, I note that there is no evidence before the court that such delay aggravated the appellant's physical injuries or necessitated additional treatment. Indeed, JB does not seek any compensation directly associated with the treatment of any physical injuries. In addition, there is no evidence before the court that the delay of a few days adversely impacted on JB's recovery from those injuries.
In relation to psychological treatment, the report of Mr Lillico identifies that his first psychology session with JB was on 21 March 2018 having been referred to him under a GP mental health care plan dated 9 February 2018. It is therefore not in dispute that JB delayed a period of five years before he sought any psychological assistance for his symptoms.
Unfortunately, there is no consideration by either Dr Ng or Dr Cabeleira as to the impact, if any, of a significant delay in diagnosing and treating JB's injuries in respect of mental and nervous shock. It is therefore, not possible for the court to find that the symptoms of JB's psychological injuries have become more severe simply due to lack of treatment earlier in time. However, it is open to the court to find that those symptoms have continued unabated over that period at least in part due to the absence of any treatment.
It appears from the reports before the court that JB's symptoms and underlying condition are capable of being treated and that the symptoms will reduce in severity over time in response to appropriate treatment.

Dr Ng recommended that JB engage in a further 12 ‑ 16 sessions of psychotherapy occurring at least once every 2 ‑ 4 weeks. Dr Ng noted:[47]
Even though it is now so many years since the subject incident of attack, with the psychiatric treatment recommended above, some degree of further psychiatric improvement may well occur.
[47] Report of Dr Ng dated 4 May 2021, page 11.
Dr Cabeleira also opined in her report that appropriate psychological input would assist JB in addressing the trauma he experienced in 2013 and his resultant symptoms of mood and anxiety, as well as enable him to develop strategies to more effectively cope with his ongoing psychosocial stressors. In Dr Cabeleira's view, this would also in turn likely assist in reducing the negative impact of the psychological factors on JB's cognition and daily functioning.[48]
[48] Neuropsychological report of Dr Cabeleira dates 29 April 2022, pages 10 - 11.
I accept that appropriately tailored psychological support earlier in time would have assisted in reducing the severity of JB's symptoms over time and by failing to seek treatment earlier than 2018, JB has failed to mitigate the impact of his psychological injury insofar as its impact on his earning capacity.
However, in my view it is an impractical and a particularly precarious task to attempt to reduce an award made in favour of JB due to a failure by him to mitigate his loss. This is because I have made a global award in circumstances where it is uncertain the exact extent of the loss. This is not a case where I have awarded economic loss suffered over 12 months which could perhaps be reduced to a shorter period of time within which presumably an appellant would have improved with the benefit of treatment.
Thus, in all of the circumstances whilst I find that JB failed to mitigate his loss by failing to seek psychological assistance before 2018, I find that in all of the circumstances of this case it is not appropriate to reduce the award made for pecuniary loss.

6. What award if any should be made in respect of costs of future treatment?

The definition of loss in s 6(2)(e) of the CIC Act includes expenses that are likely to be reasonably incurred by an appellant in respect of future treatment that is required as a direct consequence of the injuries sustained by them.
JB claims $5,680 in respect of the future treatment recommended by Dr Ng and Dr Cabeleira, namely 16 sessions at the AMA rate of $355 per session.[49]
[49] Report of Dr Ng dated 4 May 2021, page 11; Neuropsychological report of Dr Cabeleira dated 29 April 2022, pages 10-11.
Whilst I have found that JB's symptoms have been somewhat exacerbated by the collapse of his business, it is unnecessary for JB to show that the proved offences/alleged offence was the sole cause of the injury - only that they materially contributed to it.[50]
[50] Bonnington Castings Ltd v Wardlaw [1956] AC 613; Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666; MJN v MAJS (2003) 35 SR (WA) 219, 227.
The court accepts that the future treatment costs identified by Dr Ng will be incurred by JB as a direct consequence of the psychological injuries he sustained as a result of the proved offences/alleged offence.
The court therefore awards the total claim of $5,680 subject to the operation of s 48 of the CIC Act.
It is also appropriate that JB be awarded, as forming part of the loss suffered by him, the report expenses incurred by him, namely $1,815 for the report of Dr Ng and $3,718 for the interview, testing and report of Dr Cabeleira: s 6 (2)(a)(ii), s 12 and/or s 17 of the CIC Act.

7. What award of compensation should be made payable to the appellant and should the s 45 orders made by the learned Assessor be varied?

The learned assessor made orders limiting recovery under pt 6 of the CIC Act to the sum of $7,500 from each respondent. The combined total of those orders is $30,000.
Whilst reasons were not published by the learned assessor, it is clear to this court that the apportionment was determined on the premise that each of the four respondents were equally culpable in the proved offences and thus bore equal responsibility for the injuries and loss suffered by the appellant in respect of which the learned Assessor awarded $30,000.
Whilst it is uncontroversial that orders limiting recovery of compensation from offenders cannot be the basis of an appeal, I adopt the position of recent judgments of this court that in deciding an application afresh, this court can make any order an assessor could have made at first instance, including in respect of s 45 of the CIC Act.[51]
[51] Savic v Duric [2021] WADC 53 [89] ‑ [103]; Milburn-Thomas v Palmer [2020] WADC 158 [97] ‑ [100].
There are two issues arising in this appeal which may make an adjustment of the s 45 orders made by the learned assessor at first instance appropriate:
(a)leave has been granted to JB to amend his application such that it has now been brought pursuant to s 12 of the CIC Act in respect of the proved offences committed by the respondents and s 17 of the CIC Act in respect of the alleged offence which cannot be attributed to the respondents; and
(b)the award imposed by the learned assessor has increased from $30,000 to $56,213 on appeal.
I note that the amicus curiae wishes to be heard further before the court reaches a conclusion on this matter.
However, my preliminary view is that the s 45 orders made at first instance by the learned assessor were appropriate and I am not currently persuaded that they should be adjusted.
Whilst it must be acknowledged that the proved offences and the alleged offence comprise one course of offending conduct, nevertheless, it must be the case that the alleged offence has had some material impact on the injuries sustained by the appellant and the losses suffered by him.
That is, the alleged offence has had some material part to play in the injuries suffered by the appellant and the losses arising thereof.
However, in my view it is practically impossible to quantify what loss (particularly by way of psychological injury) arose directly as a result of the proved offences as opposed to the alleged offence, given how inextricably linked they appear to be.
Further, given the reports of Dr Ng, the court can confidently conclude that the entirety of the incident caused the appellant to suffer an unspecified trauma-related disorder, rather than the alleged offence per se given that the appellant had no memory of the assault.
Ultimately, I am not persuaded that the s 45 orders should be increased in line with the increase in the award of compensation given that the alleged offence has had some, albeit unquantifiable, impact on the quantum and is not capable of being directly attributed to the respondents.
I also hold the view that the s 45 orders ought not to be reduced because the respondents were each equally culpable in the proved offences which clearly has had a significant role in the level of trauma the appellant experienced. Indeed, in the absence of the respondents committing the proved offences, the alleged offence would not have been committed.
Thus, whilst I am satisfied that it is appropriate to make orders pursuant to s 45(1)(b) of the CIC Act in all of the circumstances of this case, I am currently of the view that the original order made by the learned assessor limiting the amount of recovery from each respondent to $7,500 should be undisturbed.

Award and orders

In conclusion, JB will be awarded:
(a)non-pecuniary loss in the amount of $30,000;
(b)loss of earning capacity in the amount of $15,000;
(c)future treatment costs in the amount of $5,680; and
(d)report expenses in the amount of $5,533.
Subject to hearing from the parties within 14 days of the date of this judgment, orders in the following terms will be made:
1.Pursuant to s 19 (1)(a) of the Criminal Injuries Compensation Act 2003 (WA) the appellant is granted leave to amend his application to enable him to also claim compensation for injury and any loss arising under s 17.
2.Pursuant to s 56 (1) of the Criminal Injuries Compensation Act 2003 (WA) the court exercises its discretion to allow the appellant to rely on further evidence and information in the appeal.
3.The appeal is allowed.
4.The decision of the learned assessor is varied to increase the amount of compensation payable to the appellant to $56,213, inclusive of the amount of $5,680 which is subject to s 48 of the Criminal Injuries Compensation Act 2003 (WA).
5.Pursuant to s 45(1)(b) of the Criminal Injuries Compensation Act 2003 (WA), the amount that can be recovered from each respondent is limited to $7,500.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
GL
Associate to Judge Wallace
13 DECEMBER 2022

2006/2007	$91,390
2007/2008	$65,591
2008/2009	$38,405
2009/2010	$79,631
2010/2011	$49,656
2011/2012	$90,548
2012/2013	$14,754

2013/2014	$11,362
2014/2015	$14,278
2015/2016	$20.574
2016/2017	$11,955
2017/2018	$1,156
2018/2019	$42
2019/2020	$4,173