Johnston v Watts - [2024] WADC 62

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   JOHNSTON -v- WATTS [2024] WADC 62
CORAM:   GETHING DCJ
HEARD:   30 JULY 2024
DELIVERED          :   9 AUGUST 2024
FILE NO/S:   APP 12 of 2024
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   PETER JOHN JOHNSTON
Appellant
AND
NORVAL ARTHUR WATTS
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   A BARTER
File Number            :   CIC 4029/2023

Catchwords:

Criminal injuries compensation - Appeal - Position where the appellant asserts a denial of procedural fairness - Whether the injury claimed was caused by the assault - Whether the award was manifestly excessive - Whether the amount to be recovered from the offender should be limited

Legislation:

Criminal Injuries Compensation Act 2003 (WA), s 30, s 45

Result:

Compensation assessed at $21,621.65
Recovery limited to $11,621.65

Representation:

Counsel:

Appellant	:	Ms C McKenzie
Respondent	:	Mr J Johnstone
Amicus Curiae	:	Ms R Cook appeared on behalf of the Chief Executive Office of the Department of Justice

Solicitors:

Appellant	:	McKenzie & McKenzie
Respondent	:	Johnstone Crouse Lawyers
Amicus Curiae	:	State Solicitor for Western Australia

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

August v Lynch [2019] WADC 78
B v B [2004] WASC 6
B v S (Unreported, WASC, Library No 950223, 10 May 1995)
B v W (1989) 6 SR (WA) 79
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Blackwell v Warren [2018] WADC 127
CME [2018] WADC 69
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Fitzgerald v Penn (1954) 91 CLR 268
G & N v R [2006] WADC 208; (2006) 48 SR (WA) 301
Gullelo v Halloran [2008] WADC 145
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Houlahan v Pitchen [2009] WASCA 104
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613
M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Mangisi v Boehm [2021] WADC 76
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Re Anderson [2022] WADC 97
Re Goodwin [2020] WADC 128
Re Hojetzki [2009] WADC 77
Re Richards [2022] WADC 100
Re RJA [2022] WADC 106
Re Warrek [2019] WADC 50
RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)
Robinson [2017] WADC 18
S v Neumann (1995) 14 WAR 452
Savic v Duric [2021] WADC 53
South Metropolitan Health Service v Westcott [2016] WASCA 225
T v Curnuck [2004] WASC 139
TAW v NJS [2011] WADC 187
Townend v McAlindon [2017] WADC 63
Underwood v Underwood [2018] WADC 13
Ward v Davey [2023] WADC 78
Wilden Pty Ltd v Green [No 4] [2016] WASCA 195
Winiarczyk v Tsirigotis [2011] WASCA 97
Woodward v Davies [2021] WADC 73

GETHING DCJ:

Introduction

On 29 May 2023, Peter Johnston, the appellant, was convicted of one count of aggravated assault causing bodily harm to Norval Watts, the respondent (Assault). The conviction followed a trial in the Magistrates Court.
On 17 December 2023, Mr Watts made an application for criminal injuries compensation under the Criminal Injuries Compensation Act 2003 (WA) (CICA) s 12(1) for injuries and loss arising out of the Assault (Application).
On 31 January 2024, an Assessor of Criminal Injuries Compensation (Assessor) awarded Mr Watts $51,621.65, comprising a payment of $41,621.65 with a further amount of up to $10,000 to be paid subject to CICA s 48 in respect of future dental treatment expenses (Award).[1]
[1] The Assessor's file is before the court by way of an electronic Matter Book. I will refer to pages of the Matter Book by the reference MB#.
Mr Johnston has appealed the Award to this court. He asserts that the Award provides compensation for injuries which he did not inflict in the Assault and, in any event, is manifestly excessive.
For the reasons which follow, in determining the Application afresh, I assess the compensation to which Mr Watts is entitled to be of $21,621.65. This comprises an immediate payment of $11,621.65 with a further amount of up to $10,000 to be paid subject to CICA s 48 in respect of future dental treatment expenses. Of this, recovery from Mr Johnston is limited to $11,621.65 pursuant to CICA s 45(1)(b).

The Assault

At the time the Assault took place Mr Watts was 77 years old. Mr Johnston was his neighbour, then aged 62. They had known each other for about 20 years. They both live just outside the township of Esperance.
At about 10.00 am on 4 January 2022, Mr Watts was driving along Hicks Road, Myrup, near where they both live. Mr Watts was waived down by Mr Johnston who was doing something with his bin on the verge of his property. Mr Watts stopped his vehicle as requested. Mr Johnston approached him, and began a verbal altercation. As Mr Watts opened his door to try and get out of his vehicle, Mr Johnston punched him multiple time to his face with a closed fist. Mr Watts fell to the ground. Some other people driving past stopped to help Mr Watts. An ambulance was called, and Mr Watts was conveyed to the Esperance Health Campus.[2]
Mr Watts was convicted after trial. The transcript of the magistrate's reasons for decision is not in the materials before the court. The transcript of the sentencing hearing is. The magistrate incorporated her reasons for decision and facts found after trial into the reasons for sentencing. Her honour summarised those facts as follows:[3]
I don't intend to go through the factual basis of the sentencing I incorporate the reasons for decision into the sentencing today. But needless to say, I found that you assaulted the victim on the road by punching him several times. I find that it was an unprovoked assault and that you had some issue with Mr Watts and him assisting your wife and other factors that I referred to …
… It goes without saying that it was a serious assault. I found that it was at least several blows to Mr Watts and the injury was significant. He required medical attention and the doctor who gave evidence in the trial said that he suffered a complex facial fracture of the right maxilla and described it as an eggshell fracture. That is, the fracture occurs in one spot but then spreads over other bones. So it was a significant injury. This had an impact on Mr Watts, as well as his wife, as per the victim impact statement and what Mr Watts refers to in that victim impact statement, the sort of effects one would expect on a person having been assaulted in that way.
I do accept that you offered assistance to Mr Johnston immediately afterwards, namely by asking if he was okay and offering him a hanky and that was when other people arrived and provided him with further assistance. It's not surprising that Mr Watts did not want your assistance at that time. By pleading not guilty, Mr Watts had to go through the trauma of attending court and giving evidence. And as I said in my reasons, what was put to him in some regards, namely that he did the wanking motion to you, I simply did not accept, or that he said to you, 'Come on,' and started throwing haymakers at you. Didn't accept any of those things. And certainly to Mr Watts, it was offensive, some of those things that were put to him. I found that you have an issue with Mr Watts and you've assaulted him in a significant way. Whilst it might not have been sustained, I find it wasn't one blow. It was at least several blows. And as I say, what's significant for sentencing purposes is that he suffered a significant injury and that he's still having ongoing issues.

Injuries suffered by Mr Watts
[2] MB 194 (Statement of material facts), 200 - 201.
[3] ts 2 - ts 3, 19 June 2023 (Magistrates Court).

On presentation at Esperance Health Campus, Mr Watts was found to have bruising to his nose and around his right eye. Mr Watts said he had some numbness to his right upper gum. Hospital staff reported a reduced sensation in distribution of the right inferior orbital nerve. He reported that none of his teeth were loose. His nose was bleeding and looked disjointed. He underwent a CT scan of his head which demonstrated a fractured right maxillary sinus, with a comminuted inferior orbital rim fracture and a comminuted bilateral nasal fracture. Mr Watts also had an X‑ray taken of his wrist, which was normal. He was discharged with oral antibiotics and oral analgesia. He was referred for review by a plastic surgeon.[4]
[4] MB 52 - MB 53, MB 117, MB 119 - MB 131.
In a subsequent report to police, a Dr Lil Tucker reviewed the hospital records and advised that:[5]
(a)the nature of Mr Watts' presenting injuries were consistent with having been inflicted as alleged;
(b)the injuries did interfere with Mr Watts' health and comfort;
(c)the injuries did penetrate both layers of skin as was accompanied by bleeding; and
(d)at the time of receiving the injuries they did not endanger Mr Watts' life and were not of such a nature as likely to cause permanent injury to his health if not seen by a health professional.
[5] MB 117.
Whilst Mr Watts was at Esperance Health Campus, police took photographs of his injuries. It is readily apparent from these photographs that Mr Watts sustained a markedly black right eye.[6]
[6] MB 18 - MB 21.
Shortly after his hospital attendance, Mr Watts was reviewed by Mr James Savundra, a plastic surgeon. Mr Savundra provided a report to Mr Watts' general practitioner dated 24 January 2022.[7] Dr Savundra reviewed the CT scan and spoke to Mr Watts by telephone. His report reads:
The CT showed a right medial maxillary fracture involving the pyriform aperture and the nose, with a fracture through the orbital floor and anterior lower maxilla. The fractures were not badly displaced and I do not expect Norval to have any significant facial asymmetry after this injury. I do not think he requires surgical intervention. However, it is an indication of quite a severe injury to the fact without much displacement.
I explained to Norval that he needs to not blow his nose for a period of six weeks. He has been on a course of antibiotics.
I am optimistic he will heal without any long term sequalae but he certainly has suffered a significant and serious injury. I would be happy to see Norval at any stage in the future and certainly if he has any problems I have encouraged him to get in touch with me.
[7] MB 55.
In a subsequent report to police of 27 October 2022, Mr Savundra, repeated the substance of what was in his earlier letter, and added:[8]
The displacement was not too severe and I did not think surgical intervention was required, given the mild displacement on CT.
I only spoke to Mr Watts on one occasion and have not spoken to him for follow up, as I suggested that if he had any ongoing problems he should see me, or at least call me, given the distance involved. I did not examine him so am unsure if he has been left with any permanent impairment as a result of his injury but I would expect there to only be mild impairment, if there was any.
This sort of injury is a significant facial fracture with breakage of a major part of the facial skeleton. A fracture such as this involves a fairly significant force to cause the bone to break.
[8] MB 147.
Mr Watts reports being told by Dr Savundra that, although the bone under his eye was broken in three places and slightly depressed, it would heal over the next 8 to 10 weeks.[9]
[9] MB 88.
Mr Watts subsequently attended Harris Dental on a couple of occasions and was reviewed by a Dr Rani Flynn. Dr Flynn provided an undated report, in which she states as follows:[10]
I saw Norval for emergency dental treatment on Wednesday 19/01/2022.
Norval presented to the Harris Dental Surgery Wednesday 19 January 2022 where he reported he had been involved in an incident where he was hit in the face on 4 January 2022. Norval reported at the time of the incident he presented to Esperance Hospital for treatment and they recommended he have a dentist check the teeth for injury. He also had a filling knocked out during the hit to the face which was a gold inlay. Norval presented to the appointment with the gold inlay which he hoped would be able to be replaced. Norval's main symptoms at the time of the dental appointment include loss of anterior tooth gold inlay, numbness to front and right hand side upper teeth.
A clinical dental examination, radiographs and pulp vitality testing was carried out, no clinical photos were taken. No tooth or alveolar boney fractures detected, dentition appears in line with no luxation or displacement injuries. The upper right first permanent incisor missing inlay (patient hand inlay in bag). Radiographic assessment and pulp vitality testing on all quadrant 1 teeth demonstrated mixed results, however tooth 11 was non vital to pulp testing. Patient reports teeth 12 and 13 also feel numb. Immediate dental treatment included recementation of the lost 11 gold inlay and monitoring of quadrant 1 teeth. Review appointment on 30 March 2022 found tooth 11 had become infected following the trauma and so root canal treatment was completed.
Possible future treatment required includes indirect ceramic crown for tooth 11 and root canal treatment of teeth 12 and 13 if the prolonged numbness does not resolve. Norval is on a 3 monthly review to monitor progress on teeth 12 and 13.
Costings for likely future treatment have be provided, but they would be very much approximate at this stage, until further investigation is carried out.
[10] MB 54.
Dr Flynn provided a treatment plan dated 20 April 2022. The treatment amounted to an initial estimate of $10,334.70, with an amount of $9,549.40 identified as 'estimated remaining'.[11]
[11] MB 56 - MB 57.
In his police witness statement signed 4 January 2022, Mr Watts said that his teeth had been numb since he had been hit.[12] In his victim impact statement (written in December 2023) he refers to the Assault causing him damage to his teeth. He writes that his right eye socket was cracked which has caused nerve damage to his teeth. He says that the 'eye tooth and the one next to it no longer have any feeling and will turn black'.[13]
[12] MB 11.
[13] MB 14 - MB 15.
In his victim impact statement, Mr Watts then refers to an issue with his nose:[14]
Some time back I had a skin cancer removed from between my left eye and the bridge of my nose which left a slight lump. After my nose was broken during the attack by the offender, the lump was impacted and has become considerably larger, unsightly and uncomfortable as I wear glasses.
[14] MB 15.
In his victim impact statement, Mr Watts also refers to the emotional impact of the Assault:[15]
Since the offence I have been worried and fearful for mine and my wife's safety. Our house is just over a kilometre away from our nearest neighbours. Driving past the offender's property has considerably impacted my wellbeing.
I have never been fearful of my property or my wife's safety before this crime, however, given the offender's proximity to my home, it now weighs me down all the time.
My wife and I have since had extensive security installed. The only time we have been away from our property since the offence has been for medical reasons and a brief 3‑day holiday as we do not have any friends to check on our property while away.
[15] MB 15.

The Application and Award

The Application was filed on 17 December 2023. Mr Watts annexed to the notes from the Esperance Health Campus, the letter from Dr Savundra quoted at [12] and the letter from Harris Dental quoted at [15]. The Assessor also received the complete police file, which is in the materials before the court.
Mr Watts claimed medical expenses incurred with Dr Flynn at Harris Dental in the amount of $1,501.65 (gap after private health insurance).[16] He provided receipts and other documentation in support of his claim for these expenses. He also claimed travel expenses of 204 kms in relation to his trips to see Dr Flynn and his general practitioner, a Dr Byrne.[17]
[16] MB 5 - MB 6.
[17] MB 6 - MB 8.
Mr Watts further claimed $9,549.40 for future dental treatment based on the treatment plan from Harris Dental which he had provided with the Application (see [16]).
He noted in his victim impact statement that this private health insurance had covered his ambulance expenses, Dr Savundra had not charged him and that the cost of a consultation with his general practitioner had been paid for by Medicare.[18]
[18] MB 16.
Mr Watts did not make any claim for loss of income or earning capacity.
Mr Johnston was advised of the Application and invited to provide submissions by letter dated 4 January 2024.[19] Mr Johnston did not respond.[20]
[19] MB 32.
[20] MB 41.
The Award was made on 31 January 2024.[21] The Assessor was satisfied that the conviction for the Assault was a proven offence for the purposes of the CICA. The amount of $51,621.65 comprised:
(a)$40,000 for 'injuries';
(b)treatment expenses of $1,501.65;
(c)travel expenses of $120; and
(d)up to $10,000 to be paid subject to the provisions of CICA s 48 for dental treatment to teeth #11, 12 and 13.
[21] MB 1.
Section 48 of CICA allows an assessor to make an allowance 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'.[22] However, the amount is not to be paid unless, relevantly, 'an assessor is satisfied that the expenses have been reasonably incurred by or on behalf of the victim for treatment that the victim required as a direct consequence of the injury suffered by the victim in consequence of the commission of the offence to which the award relates'.
[22] CICA s 6(2)(b).
Mr Johnston requested the Assessor to provide written reasons pursuant to CICA s 27, which the Assessor did by letter dated 11 March 2024.[23] Given that I 'must decide the application to which the decision relates afresh, without being fettered by the Assessor's decision',[24] I do not need to review the Assessor's decision in detail.[25] However, I do note that the Assessor was satisfied on the balance of probabilities that the psychological symptoms described by Mr Watts in his victim impact statement were sufficiently enduring in character so as to amount to 'mental and nervous shock' for the purposes of the definition of an 'injury' under CICA s 3.[26]
[23] MB 40 - MB 44.
[24] CICA s 56(1).
[25] See generally: Re RJA [2022] WADC 106 [28] (Commissioner Collins); Re Anderson [2022] WADC 97 [30] - [32] (Commissioner Collins).
[26] MB 42.
The Assessor's reasons also reveal that she considered whether to not make an order pursuant to CICA s 45(1)(b) limiting the amount which the State could recover from Mr Johnston, but declined to do so.[27]
[27] MB 44.

The Appeal

By Appeal Notice filed 21 February 2022, Mr Johnston appealed from the decision of the Assessor to make the Award (Appeal). The Appeal Notice was filed within the required 21‑day time limit.[28]
[28] CICA s 55(3).
On 22 February 2024 the Chief Executive Officer of the Department of Justice (CEO) filed a memorandum of appearance. At a directions hearing on 30 April 2024, the CEO was given leave to appear as amicus curiae.
On 15 March 2024, Mr Watts filed a Notice of Respondent's Intention in which he advised the court that he intended to take part in the appeal and would argue that the Assessor's decision should be upheld on the grounds relied on by the Assessor.
Counsel for each of Mr Johnston, Mr Watts and the CEO filed written submissions.
As I have mentioned, in hearing the Appeal, the court 'must decide the application to which the Decision relates afresh, without being fettered by the Assessor's decision'.[29] The appeal is a hearing de novo.[30] I am to treat the Application as if it came before the court for the first time.[31] Mr Johnston does not have to demonstrate an error on the part of the Assessor in order to succeed.[32]
[29] CICA s 56(1).
[30] Re Richards [2022] WADC 100 [27] (Gething DCJ) (Richards); Savic v Duric [2021] WADC 53 [21] (Gething DCJ) (Savic); Underwood v Underwood [2018] WADC 13 [19] (Gething DCJ) (Underwood); Robinson [2017] WADC 18 [7] (Troy DCJ); Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude) (Gullelo).
[31] Richards [27]; Savic [21]; Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcom CJ).
[32] Richards [27]; Savic [21]; Underwood[19]; Gullelo [5].

In deciding the appeal, the court, like the Assessor, is not bound by the rules or practice as to evidence or procedure and may inform itself in any manner it thinks fit.[33]
[33] CICA s 18(2).
The court must determine the Appeal 'solely on the evidence and information that was in the possession of the Assessor or may receive further evidence and information'.[34] No party sought to place any further evidence before the court.
[34] CICA s 56(1).
It is open to the court to confirm, vary or reverse the Assessor's decision, either in whole or in part.[35] As the Appeal is a fresh hearing, it is necessary for the court to determine all matters relating to the Application. So it is open to the court to increase or decrease the award of compensation even if no cross‑appeal is filed.[36]
[35] CICA s 56(2)(b).
[36] Richards [33]; Savic [27]; CME [2018] WADC 69 [11] (Bowden DCJ).
The Application was made pursuant to CICA s 12, which provides that a 'person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered'. It is not in issue that the Assault is a proven offence for the purposes of CICA s 12.
Three grounds of appeal are identified in the Appeal Notice. The first is that Mr Johnston was denied procedural fairness and not given an opportunity to respond to the Assessor prior to a decision. The fact that the appeal requires the court to determine the Application 'afresh' cures any failure by the Assessor to provide procedural fairness.[37] This is because it is not necessary for Mr Johnston to show (among other potential errors) that the Assessor failed to provide him with procedural fairness in order found the District Court's jurisdiction to determine the Application afresh.[38]
[37] Wilden Pty Ltd v Green [No 4] [2016] WASCA 195 [40] (judgment of the court); Savic [29].
[38] Savic [29].
The second and third are that:
(a)the Award is manifestly excessive; and
(b)the Award provides for compensation for injuries not inflicted by Mr Johnston.
Logically, it makes sense to consider the third ground before the second. Consequently, the following issues arise for determination:
•What injuries did Mr Watts suffer as a consequence of the commission of the Assault?
•What award of compensation is appropriate?
•Should an order about reimbursement be made pursuant to CICA s 45(1)(b)?
•What final orders are appropriate?

What injuries did Mr Watts suffer as a consequence of the commission of the Assault?

Principles

'An assessor must not make a compensation award in respect of a compensation application unless satisfied that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence'.[39] 'Satisfied' means 'satisfied on the balance of probabilities'.[40]
[39] CICA s 12(3).
[40] CICA s 3.
The words 'as a consequence of' require a causal relationship or connection.[41] Whether that causal relationship exists is essentially a question of fact, to be resolved as a matter of common sense.[42] It is sufficient that, as a matter of ordinary common sense and experience, the Assault should be regarded as having 'materially contributed' to the injury, in the sense that it was 'one cause' or 'a cause' of the injury sustained by Mr Watts, something that played 'some part' in contributing to the injury.[43]
[41] Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673 (Mason & Wilson JJ) (Fagan); Richards [55]; Savic [33]; Underwood [87]; Townend v McAlindon [2017] WADC 63 [36] (Sleight CJDC); T v Curnuck [2004] WASC 139 [27] (Barker J); B v B [2004] WASC 6 [14] (Barker J).
[42] Fitzgerald v Penn (1954) 91 CLR 268, 277 (Dixon CJ, Fullagar & Kitto JJ); Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 ‑ 413 (Mason CJ, Deane & Toohey JJ); Fagan (673); East Metropolitan Health Service v Ellis [2020] WASCA 147 [277] (judgment of the court) (Ellis); Richards [55]; Savic [33]; Underwood [87].
[43] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613 [45] (French CJ, Hayne & Kiefel JJ); Ellis [597] - [699]; Richards [55]; Savic [33]; Underwood [87].
In the materials submitted with the Application, Mr Watts identifies four categories of injuries which he says were as a consequence of the commission of the Assault:
•Fractures to his right eye and nose
•Injuries to his teeth
•An exacerbation of a lump on his nose
•Psychological injuries
Given the issues in the appeal, it is necessary to consider each separately, along with their short and long term significance. The factual findings I make in this part are made on the balance of probabilities.

Fractures to his right eye and nose

There is ample evidence for the conclusion that, as a direct consequence of the Assault, Mr Watts sustained:
(a)bruising to his nose and around his right eye;
(b)epistaxis (a blood nose);
(c)a right maxillary sinus fracture, with a comminuted inferior orbital rim fracture (eye socket);
(d)a comminuted bilateral nasal fracture (that is, a broken nose); and
(e)reduced sensation in distribution of the right inferior orbital nerve.
Counsel for Mr Johnston did not suggest otherwise.
Mr Savundra described the facial injuries as 'a right medial maxillary fracture involving the pyriform aperture and the nose, with a fracture through the orbital floor and anterior lower maxilla' ([12]). The magistrate, based on the medical evidence presented at trial, described this as 'a complex facial fracture of the right maxilla' and as 'an eggshell fracture [that] is, the fracture occurs in one spot but then spreads over other bones' ([8]).
Mr Savundra describes the injury which Mr Watts sustained as being 'a significant facial fracture with breakage of a major part of the facial skeleton'. He also observed that it involved 'a fairly significant force to cause the bone to break', describing the injury as being 'severe' and 'significant and serious' ([12] and [13]). It clearly interfered with Mr Watts' health and comfort, but did not endanger his life or place him at risk of permanent injury ([10]).
On the other hand, the fracture was not serious enough to require surgical intervention. In January 2022, Mr Savundra was optimistic that the injury would heal without any long term sequalae or significant facial asymmetry ([12]). Aside from issues with his teeth and nose, Mr Watts did not place before the Assessor any evidence to the effect that he had any ongoing issues as a result of these fractures. So there is no evidence from which I could be satisfied on the balance of probabilities that he did. Rather, I find that the injury has healed as Dr Savundra expected, without any long term sequalae or significant facial asymmetry.

Injuries to Mr Watts' teeth

Counsel for Mr Johnston submitted that there is insufficient evidence to support a finding on the balance of probabilities that either the initial dental treatment obtained by Mr Watts, or the future treatment proposed were injuries sustained as a consequence of the commission of the Assault.
Counsel for Mr Johnston invited the court to place weight on the fact that although the Assault occurred on 4 January 2022, Mr Watts did not go and see Dr Flynn until 19 January 2022. However, Mr Watts did not require anything that might be described as emergency treatment. Waiting a fortnight before seeking dental treatment is quite explicable in the context of the facial injuries which Mr Watts sustained.
At the hospital, although he had no loose teeth, Mr Watts complained of numbness to his right upper gum. The teeth that Mr Watts has issues with (teeth 11, 12 and 13) included one of this eye teeth meaning that they are towards the front of the mouth. Damage to the teeth in this area is consistent with an assault comprising multiple punches to the face which fractured his eye socket and broke his nose.
There is no evidence to suggest that the issues which Mr Watts complained of to Dr Flynn predated the Assault.
Mr Watts presented to Dr Flynn saying that the gold filling to tooth 11 was knocked out in the Assault. There is nothing inconsistent with this statement in the materials before the court and no other basis to suggest that this did not occur. Dr Flynn first recemented the lost gold inlay to tooth 11, and then did root canal treatment on that tooth shortly afterwards as it had become 'infected following the trauma'.
Mr Watts reported to Dr Flynn that teeth 12 and 13 felt numb. She opined that root canal treatment may be required for teeth 12 and 13 if the prolonged numbness did not resolve ([15]). By December 2023, Mr Watts was still experiencing a lack of feeling in these teeth.
As a matter of ordinary common sense and experience, I am readily satisfied that the Assault caused the injuries sustained to Mr Watts' teeth. More specifically, I am satisfied that:
(a)the injuries to Mr Watts' teeth reported by Dr Flynn were as a direct consequence of the Assault; and
(b)there is a likelihood that Mr Watts will require further dental treatment for these teeth.

An exacerbation of a lump on Mr Watts' nose

I have set out at [18] the relevant portion of Mr Watts' victim impact statement dealing with the exacerbation of a lump on his nose.
Counsel for Mr Johnston submitted that Mr Watts' statement is not a sufficient basis for the court to be satisfied that Mr Watts suffered this injury to his nose as a consequence of the commission of the Assault. For example, counsel drew the court's attention to the fact that there were no before and after photos.
However, the medical evidence makes it clear that Mr Watts sustained a broken nose. There is nothing in the materials before the court which is inconsistent with what Mr Watts has said and no other basis to doubt it. I am satisfied that, as a consequence of the Assault, the lump on Mr Watts' nose has become considerably larger, unsightly and uncomfortable as he wears glasses.

Psychological injuries

The term 'injury' in CICA s 12, s 16 and s 30 includes 'mental and nervous shock'.[44] This phrase contemplates the impact of the offence on the mind or nervous system.[45] It refers to 'mental or emotional harm as opposed to physical injury or bodily harm'.[46] There is a distinction 'between a mere emotional reaction and something of a more enduring character which may in both the legal sense and in common parlance, be described as an injury'.[47] For example, mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress, horror, disgust and other similar adverse mental reactions are seen as compensable.[48] Post traumatic stress disorder (PTSD) is an example of mental and nervous shock constituting an injury.[49]
[44] CICA s 3.
[45] Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) 5 (Burt CJ); Richards [51]; Savic [45]; Underwood [83].
[46] S v Neumann (1995) 14 WAR 452, 461 (Murray J) (Neumann); Richards [51]; Savic [45]; Underwood [83].
[47] Neumann (461); B v S (Unreported, WASC, Library No 950223, 10 May 1995) (Murray J); Richards [51]; Savic [45]; Underwood [83].
[48] M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992) (Scott J); Richards [51]; Savic [45]; Underwood [83].
[49] See for example Savic [46]; Underwood [84].
There is a further limitation in CICA s 35(2)(b) which is that, relevantly, an 'assessor must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence, or for any loss in respect of such shock, unless the assessor is satisfied that the victim was the person against whom the offence was committed'. Mr Watts falls within this limitation.
I have set out at [19] the relevant portion of Mr Watts' victim impact statement dealing with the emotional consequences of the Assault. His counsel asserted that this was sufficient to constitute mental and nervous shock for the purposes of the CICA.
Supporting medical evidence from an appropriately qualified medical practitioner is generally required to prove that an injury exists and was caused by the proven offence.[50] In this case, Mr Watts did not provide to the Assessor any report from a psychiatrist, general practitioner or even a psychologist to the effect that he was suffering from any psychological symptoms as a consequence of the commission of the Assault. Nor is there a claim for medical expenses for treatment for psychological services.
[50] Re Hojetzki [2009] WADC 77 [48] (Sleight DCJ).
Counsel for Mr Johnston submitted that, in the absence of any medical evidence, what Mr Watts describes rises no higher than an emotional reaction, albeit an understandable one.
What Mr Watts describes is certainly an emotional reaction, even hyper‑vigilance. However, in my view, it does not rise above a mere emotional reaction to become something of a more enduring character which may, both in the legal sense and in common parlance, be described as an injury. I am not satisfied on the balance of probabilities that Mr Watts suffered mental and nervous shock, and thus an injury, for the purposes of the CICA.

What award of compensation is appropriate?

As to quantum, the general power of an assessor is contained in CICA s 30. It provides that 'on application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered'.[51]
[51] CICA s 30(1).
The correct approach to adopt in assessing the amount of compensation under the CICA is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the CICA, and to the jurisdictional limit of the CICA.[52]
[52] Richards [64]; Savic [47]; M v J and J v J (Scott J); RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974) 3 (Burt J) (RJE).
The jurisdictional limit is $75,000.[53] This maximum is a jurisdictional limit and is not reserved for the worst cases.[54]
[53] CICA s 31.
[54] Richards [65[; Savic [49]; Neumann (463).
The amount awarded is to be assessed solely on the basis of the injury suffered by the applicant. The amount is not to be fixed as punishment for the offender or as an expression of sympathy for the applicant as victim.[55]
[55] Richards [66]; Savic [50]; G & N v R [2006] WADC 208 [8]; (2006) 48 SR (WA) 301 (Goetze DCJ); B v W (1989) 6 SR (WA) 79, 89 (Williams DCJ).
The losses to which Mr Watts is entitled to claim are set out in CICA s 6(2) which relevantly includes 'expenses actually and reasonably incurred by… the victim… that arise directly from… the injury suffered by the victim'.[56]
[56] CICA s 6(2)(a)(i).
I am satisfied that the expenses claimed in relation to the treatment provided by Dr Flynn were expenses actually and reasonably incurred by Mr Watts that arose directly from the injuries he sustained in the Assault. I allow the amount claimed of $1,501.65.
I also allow the travel expenses claimed in relation to the consultations with Dr Flynn and Dr Byrne in the same amount the Assessor did, being $120.
As to future medical expenses, Mr Watts is also able to claim expenses that are 'likely to be reasonably incurred' by him for treatment that he 'is likely to need as a direct consequence' of the injuries which he suffered.[57]
[57] CICA s 6(2)(a)(i).
I am satisfied on the basis of the unchallenged opinion of Dr Flynn that Mr Watts is likely to need further dental treatment for the teeth affected by the Assault. The amount claimed based on Dr Flynn's quote is, in my view, for an expense that would be reasonably incurred by Mr Watts for treatment that he is likely to need as a direct consequence of the injury which he suffered.[58] Like the Assessor, I am of the view that $10,000 is the appropriate estimate of these expenses based on the quote provided by Dr Flynn. The payment of this amount is subject to the regime in CICA s 48.
[58] CICA s 6(2)(b).
That leaves general damages. These are ordinarily awarded to compensate for pain and suffering and other non‑pecuniary loss.[59] According to ordinary tortious principles, the amount of general damages must be fair and reasonable compensation for the injuries received by the claimant and the disabilities caused, having regard to current general ideas of fairness and moderation.[60] The amount must be proportionate to the situation of the particular claimant.[61]
[59] Richards [68]; Savic [51]; M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [113] (Pullin JA, with whom Newnes JA agreed & Murphy JA generally agreed).
[60] Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ); South Metropolitan Health Service v Westcott [2016] WASCA 225 [133] (judgment of the court); Houlahan v Pitchen [2009] WASCA 104 [107] (Newnes JA with whom Pullin & Miller JJA agreed) (Houlahan); Winiarczyk v Tsirigotis [2011] WASCA 97 [71] (judgment of the court) (Winiarczyk); Richards [68]; Savic [51].
[61] Savic [51]; AA [46]; Houlahan [107]; Winiarczyk [71].
In assessing the appropriate amount of compensation, a broad and subjective assessment must be undertaken with consideration of what the community would regard as reasonable compensation.[62]
[62] Richards [69]; Savic [52]; Re Warrek [2019] WADC 50 [37] (Troy DCJ) (Re Warrek); Blackwell v Warren [2018] WADC 127 [36] (Troy DCJ) (Blackwell).
To assist the court, each counsel drew the court's attention to some similar assessments undertaken by other judges of this court. It is permissible for me to look at awards of criminal injuries compensation in other appeals.[63] However, due regard must be given to the unique circumstances of each case. In addition, in Mangisi, Staude DCJ observed:[64]
The court is also informed by its general experience of other cases involving the assessment of damages for injuries of different kinds. These enable the court to place the respondent's injuries and associated loss within a range relative to those of others.
I respectfully agree with this observation.
[63] Mangisi v Boehm [2021] WADC 76 [32] (Staude DCJ) (Mangisi); TAW v NJS [2011] WADC 187 [24] (Bowden DCJ); Savic [54]; Re Warrek [37]. This is consistent with the position when assessing damages at common law, see: Civil Liability Act 2002 (WA), s 10A.
[64] Mangisi [33].
Between them, counsel drew my attention to eight cases.
The first is Ward v Davey.[65] In that case, the appellant was convicted of an assault occasioning bodily harm against the respondent. The appellant applied force to the respondent's face, causing him to suffer a loose tooth, swollen lip and a bruised and blood nose. At the time of the assault, the respondent had a cerebral shunt which had been inserted when he was a child. The shunt appeared to be treating a condition characterised by abnormal accumulation of cerebrospinal fluid. The judge accepted that the assault caused a disruption to the shunt resulting in the respondent having shunt revision surgery. Since that surgery, the respondent suffered from persistent headaches, which at times were debilitating, and which contributed to the severity of his depression and anxiety. The judge further accepted that the changes to the shunt, as reflected by its initial disruption and subsequent revision, materially contributed to the headaches. The judge also accepted that the respondent suffered and continued to suffer mental and nervous shock as a result of the offence committed against him. The judge assessed the compensation for the respondent's physical injuries and his mental and nervous shock in the sum of $40,000.
[65] Ward v Davey [2023] WADC 78.
The second is Savic. In that case, the appellant punched, and then either kicked or punched, the respondent in his face. The respondent sustained a bruised eye and severe pain to his jaw, though it was not fractured. I also found that the respondent had suffered PTSD as a consequence of the assault. I assessed compensation for pain and suffering and other non‑pecuniary loss at $7,500.

The third is Re Goodwin.[66] In that case, the appellant had been placed in the Christmas Island Detention Centre. He alleged that while he was walking near the dining area he was struck to the right side of his face with such force that caused him to slip over onto the floor where he was struck again in the head. The appellant sustained a number of injuries from the assault including lacerations to his forehead and nose, bruising to his right temple, swelling on the left side of his jaw, two broken teeth, neck tenderness and dizziness. The appellant also described residual disabilities including depression, damage to the left third molar and broken right upper lateral incisor and ongoing dizziness. Looking at the matter afresh, the judge assessed non‑economic loss at $8,500.
[66] Re Goodwin [2020] WADC 128 [244] - [245] (Levy DCJ).
The fourth is Woodward v Davies.[67] In that case, the respondents pleaded guilty to two charges of assault occasioning bodily harm and two charges of common assault respectively. The judge was satisfied that the appellant suffered from a swollen left eye, a blood nose and the fracture and eventual removal of tooth 11. The judge did not accept that the appellant suffered from PTSD, but did accept that he suffered distress, discomfort and pain and some social anxiety for a reasonable but limited period of time following the assault. The appellant was awarded $18,000 for non‑pecuniary loss.
[67] Woodward v Davies [2021] WADC 73.
The fifth is Mangisi. In that case, the appellant pleaded guilty to one count of assault occasioning bodily harm, comprising a single punch to the respondent's face in the area of his mouth. The respondent was rendered unconscious and suffered from a laceration to his head, a swollen top lip, a graze to his left arm and a chipped tooth. His scalp was glued and his dental injury repaired. The respondent also suffered from anxiety as a result of the assault. He was awarded $10,000 for non‑pecuniary loss.
The sixth is August v Lynch.[68] In that case, the appellant was convicted of assault occasion bodily harm for hitting the respondent in the head with a beer bottle and biting her in the middle of her back. The respondent sustained two main physical injuries, the first being a blunt force injury to the back of her head leaving bruising, and the second being the bite to her back which caused bleeding. The respondent also experienced ongoing stress, distress and anxiety as a result of the assault. Looking at the matter afresh, I assessed damages for non‑economic loss at $4,000.[69]
[68] August v Lynch [2019] WADC 78 (Gething DCJ) (August).
[69] August[46].
The seventh is Bothma. In that case, the appellant was convicted of common assault for punching the respondent numerous times to the face. The respondent sustained four main physical injuries, the first being lacerations and bruising to the face, the second being bruising to the rib cage, the third being soft tissue injuries to the neck, arm, right wrist and back and the fourth being back and ongoing headaches. The respondent also described high levels of fatigue and continued distress which he experienced as a result of the assault. Looking at the matter afresh, I assessed damages for non‑economic loss at $5,000.
The final decision is Underwood. In that case, the appellant was convicted of aggravated assault occasioning bodily harm for slapping the respondent across the face with an open palm and kicking her in the leg. The respondent received bruising and swelling to her face and bruising to her left leg. The respondent suffered PTSD as a consequence of the commission of the assault for which she received treatment which addressed the symptoms, there being no evidence of ongoing symptoms. Looking at the matter afresh, I assessed non‑economic loss at $5,000.[70]
[70] Underwood [120].
On the evidence, and taking all of these matters into account, I would assess the damages for Mr Watts' non‑pecuniary loss in the sum of $10,000. The injuries to Mr Watts' face, nose and teeth were certainly significant when they occurred, and the result of some considerable force. However, he does not report any long‑term sequalae from the fracture to his face, consistent with Dr Savundra's optimistic prognosis. The impact to his nose is aesthetic and practical, but not significant. The damage to his teeth is significant, but the provision made for future treatment will be sufficient to functionally address the issues that are likely to arise.
In summary, I assess the compensation payable to Mr Watts in the amount of $21,621.65, comprising:
(a)treatment expenses of $1,501.65;
(b)travel expenses of $120;
(c)$10,000 for pain, suffering and non‑pecuniary loss; and
(d)up to $10,000 to be paid subject to the provisions of CICA s 48 for dental treatment to teeth #11, 12 and 13.

Should an order about reimbursement be made pursuant to CICA s 45(1)(b)?

The final substantive issue to consider is whether an order about reimbursement should be made pursuant to CICA s 45(1)(b). That section provides:
45.Order about reimbursement order may be made
(1)When or after making a compensation award in respect of an application made under section 12, an assessor who thinks it is just to do so may make -
(a)an order barring proceedings under Part 6 in respect of the award; or
(b)an order that only a part of the award (specified in the order) may be the subject of proceedings under Part 6.
(2)At any time, on an application by the CEO, an assessor may cancel an order made under subsection (1).
In Savic, I considered in detail the issue of when there is an appeal from a decision falling within the scope of CICA s 55(1), and the assessor makes an order pursuant to CICA s 45(1), whether the court has the power to vary that order in deciding the application to which the decision relates afresh. I determined that it did.[71] For the same reasons, I am of the view that where the assessor does not make an order pursuant to CICA s 45, in determining the matter afresh, I am able to.
[71] Savic [89] - [102].
Section 56(2)(c) of CICA expressly provides that, on an appeal under CICA s 55, the court may, amongst other things, 'make any order that an assessor could make under' the CICA. An order pursuant to CICA s 45 is such an order.
The power in CICA s 45 is able to be exercised if the assessor 'thinks it is just to do so'.[72] In my view it is just to limit recovery to $11,621.65 so as to exclude the future treatment cost component ($10,000). In this way Mr Johnston will have immediate finality as to the amount of his liability.
[72] CICA s 45(1).

What final orders are appropriate?

The appropriate final orders are that:
(a)the decision of the Assessor be varied to reduce the amount of compensation to $21,621.65, of which $10,000 is subject to CICA s 48; and
(b)pursuant to CICA s 45(1)(b), only the amount of $11,621.65 be subject to CICA pt 6.
As to costs, by CICA s 56(2)(d), the court may order an unsuccessful party to the appeal to pay a successful party's costs as set by the court in accordance with the scale of costs prescribed by the Criminal Injuries Compensation Regulations 2003 (WA).
As is usual, no order for costs should be made against the CEO for its assistance to the court.
Otherwise, I will hear from the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
EC
Associate to Judge Gething
8 AUGUST 2024