Jongedyk v Childs

Case •

[2012] WADC 179

•

20 DECEMBER 2012

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   JONGEDYK -v- CHILDS [2012] WADC 179

CORAM:   BRADDOCK DCJ

HEARD:   22 OCTOBER 2012

DELIVERED          :   20 DECEMBER 2012

FILE NO/S:   APP 46 of 2012

BETWEEN:   RALPH RICHARD JONGEDYK

Appellant

AND

IRENE MONICA CHILDS
Respondent

ON APPEAL FROM:

Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Coram  :H L PORTER

Citation  :[2012] WACIC 15

Catchwords:

Criminal injuries compensation - Proved offence - Whether application lodged in time - Quantum of award for general damages

Legislation:

Criminal Injuries Compensation Act 2003 s 56(1), s 9

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     Mr T C Young

Respondent:     In person

Amicus Curiae              :     Mr J Berson appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant:     Birman & Ride

Respondent:     Not applicable

Amicus Curiae              :     State Solicitor for Western Australia

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

Burke v Vittorio; Burke v Persall [2008] WADC 169

Clayton v Aust (1993) 9 WAR 364

De Florenca v Hayden [2007] WADC 54

Hogben v Darcy [2009] WADC 63

Madaschi [2011] WADC 89

Re Childs [2012] WACIC 15

Re Salmon (deceased) [1981] Ch 167

RT [2006] WADC 185

Selimoski [2012] WADC 30

Smith v The Executive Director of the Department of Conservation and Management [1999] WASC 240

TAW v NJS [2011] WADC 187

Welsh v Kelly [2008] WADC 149

BRADDOCK DCJ:

Introduction

  1. On 31 December 2004 Ms Childs was travelling with Mr Jongedyk in his vehicle when an argument developed between them.  As a consequence, she attempted to exit the car but he prevented her.  Subsequent to this Mr Jongedyk assaulted Ms Childs.  As a result of these events, Mr Jongedyk was charged with an offence of assault occasioning bodily harm, in circumstances of aggravation, being a domestic relationship between Mr Jongedyk and Ms Childs.  On 13 April 2006, after trial in the Magistrates Court at Perth, Mr Jongedyk was convicted of that offence.

  2. Ms Childs made an application for compensation under the Criminal Injuries Compensation Act 2003, the timing of which I will return to below.

  3. On 19 June 2012, an award of $24,200.25 in criminal injuries compensation was made to Ms Childs, for the injuries and loss she suffered as a result of the assault occasioning bodily harm.

  4. Following the publication of the award, Mr Jongedyk requested written reasons for decision.  On 6 September 2012, Ms Porter, the chief assessor, published reasons:  Re Childs [2012] WACIC 15.

  5. On 4 July 2012, Mr Jongedyk filed a notice of appeal in this court, pursuant to s 51(1) of the Criminal Injuries Compensation Act 2003 (the Act).

Nature of such an appeal

  1. Section 56(1) of the Act provides that:

    On an appeal under section 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information.

  2. It must be borne in mind that although the application is to be determined unfettered by the assessor's decision, and decided afresh, it is appropriate to have regard to the assessment made by a specialist tribunal in the field of criminal injuries compensation in considering the appeal:  Burke v Vittorio; Burke v Persall [2008] WADC 169 [34] and Welsh v Kelly [2008] WADC 149 [9] and [10].

Grounds of the appeal

  1. On 16 October 2012, Mr Jongedyk filed an application for an order that he be granted leave to amend his notice of appeal.  The original notice of appeal stated grounds simply: were 'awards to high' [sic].  The appellant proposed that the grounds of appeal be amended as follows:

    (1)The appellant appeals pursuant to s 55(1) of the Criminal Injuries Compensation Act 2003 against the assessor's decision to make a compensation award in circumstances where the respondent's application for criminal injuries compensation was filed after the time limit prescribed in s 9 of the Act had lapsed. [sic]

    (2)In the alternative, the appellant appeals pursuant to s 55(2) of the Act against the amount of compensation, on the basis that the compensation award was excessive in the circumstances.

  2. An affidavit was filed in support of the application to amend the grounds of appeal, in which Mr Young deposed to the fact that he had been instructed subsequent to the filing of the appeal on 9 October 2012.  Prior to that he believed that the appellant had not received legal advice in relation to the matter.

  3. The material provided from the office of criminal injuries assessor show that, in correspondence with the learned assessor, Mr Jongedyk acted for himself submitting materials, on 12 August 2011, in response to the claim of Ms Childs.  The notice of appeal gives his name and residential address for service.  I indicated at the hearing on 17 October 2012 that I would deal with the application to amend in these reasons.  I allowed argument on the matter.  In the circumstances where Mr Jongedyk was unrepresented until after the notice of appeal was filed, I consider that the application to amend the grounds of appeal should be allowed.  Accordingly, the first ground concerns the chronology of the filing of the application for criminal injuries compensation by Ms Childs and the second ground rephrases the original as expressed by Mr Jongedyk.

Chronology of the application for criminal injuries compensation

  1. Section 9 of the Act, provides that an application must be made within three years after the date upon which, (a) the offence to which it relates was committed; or (b) if it relates to more than the one offence, the last of them was committed. An assessor may allow a compensation application to be made out after three years if he or she thinks it is just to do so, on any conditions that are just to impose: s 9(2).

  2. On 5 December 2007, the Women's Law Centre sent to the Assessor of Criminal Injuries Compensation an application in the prescribed form in the name of Ms Childs, under cover of a letter of that date.  That letter was stamped 'received' on 7 December 2007.  The letter records that the Women's Law Centre was assisting Ms Childs in relation to the application, recited the date of the assault and the details of the subsequent conviction of Mr Jongedyk and stated that as a result Ms Childs had been diagnosed with post‑traumatic stress disorder and had undergone various treatment.  The letter asserts that the cumulative effect of those matters were that Ms Childs had had difficulty in completing her application within the required time.  The letter acknowledged the imminent expiry of the limitation date, and acknowledged the incompleteness of the application but requested that her application be preserved.  The letter enclosed an application in proper form, a statement to the police a victim impact statement, medical and psychological reports, some details of dental treatment, expenses and payments and indicated that Ms Childs would endeavour to provide her 'statement of injury and effect' along with documents relating to any interim payment claim and further expenses as soon as possible.  The form appears to have been signed by Ms Childs and it detailed some report expenses and contained a schedule of documents.

  3. The chief assessor wrote on 11 December 2007, acknowledging the application and returning it as incomplete.  The letter went on to say:

    I note that the three year limitation period expires on 31st December 2007 and as such the date this office first received your claim will be noted so that an extension of time will not be required when resubmitted.

  4. On 19 May 2011, the Women's Law Centre wrote to the chief assessor again on behalf of Ms Childs.  The letter referred to the earlier correspondence, and enclosed a completed application, together with evidence in support.  The letter details the background, the injuries and the treatment, both physical and mental, gives details of losses of earnings, future treatment expenses and report costs.

  5. On 29 July 2011, the chief assessor wrote to Mr Jongedyk notifying him of the claim.  Mr Jongedyk responded by a letter dated 12 August 2011 with materials attached for the assessor's consideration.  From there, the chief assessor sought comments from the Women's Law Centre on Mr Jongedyk's materials and further information in relation to dental treatment and future treatment expenses.  Details were requested concerning a violence restraining order, that had been taken out by Ms Childs against Mr Jongedyk.  In January of 2012, the Women's Law Centre responded, furnishing further medical reports and seeking interim payments to obtain others.  In March of 2012, as the assessor formally requested information from Dr Gregory Chang, under s 19(2) of the Act.  An assessment was made on 19 June 2012.

Jurisdiction of the assessor – date of filing

  1. There are strong policy reasons requiring that limitation periods be complied with:  see Smith v The Executive Director of the Department of Conservation and Management [1999] WASC 240 [20] – [21].

  2. In Clayton v Aust (1993) 9 WAR 364, 366 Malcolm CJ (with whom Rowland and Franklyn JJ agreed) referred with approval to Re Salmon (deceased) [1981] Ch 167, 175:

    The time limit is a substantive provision laid down by the Act itself and it not a mere procedural time limit imposed by rules of the court which will be treated with the indulgence appropriate to procedural rules.  The burden on the applicant is thus, I think, no triviality.  The applicant must make a substantial case for it being just and proper for the court to exercise its statutory discretion to extent time.

  3. Although Clayton v Aust was an inheritance claim, the principle applies to claims such as Ms Childs.  See also RT [2006] WADC 185 [28] – [33].

  4. The Women's Law Centre were aware of the time limit when they lodged documents in December 2007.  The correspondence indicates that they were also aware that further materials were required to complete the application.  Although incomplete, the application was in the proper form.  I find that the application was accepted as properly lodged by the assessor, on the date when it was received and stamped by the office of the criminal injuries compensation assessor: 7 December 2007.  There was then a very substantial delay before more comprehensive documents were supplied in 2011 and notice of the application given to the respondent.

  5. The appellant argues that the application was not filed and was rejected by the office of the criminal injuries compensation.  Mr Young referred to the heading of the letter accompanying the application entitled 'Request to preserve limitation date'.  In addition, he argued that the application was lodged without supporting evidence, and therefore was not duly completed, as required by the Act.  The appellant contends that a duly completed application was not filed until 2011, and therefore was out of time.  Mr Young argued that Mr Jongedyk was prejudiced by having to deal with the matter seven years after the event.  He pointed to the fact that the transcript of the hearing in the Magistrates Court was no longer available, and that the ability to have an independent medical examination would have been lost.

  6. An assessor has a broad discretion to allow a compensation application, after three years, if he or she thinks it is just to do so.  It was not argued that this provision did not confer a general discretion to extend time in circumstances where the assessor considered it just.  The application for leave to amend the grounds of appeal was effectively served on the State about a week prior to the hearing of this matter.  The respondent, Ms Childs, had no opportunity, before the matter was heard, to consider the point.

  7. Ms Child's position was that she understood, after her application was returned in December 2007, that an extension of time would not be required.  She believed that she could re‑submit the application with all supporting documents later.  She objected to the application to amend the grounds of appeal.  From the bar table she indicated that there had been a number of difficulties in her life after the first letter from the assessor's office and she did not contact the Women's Law Centre at all for 12 months.  It is also clear from the dates correspondence that there was some delay in the office of the Women's Law Centre.

  8. The State's position, as amicus curiae, was that it was open to the court to find that the application was but accepted, together with a requirement under s 19(1) for further information to be provided in due course.  Counsel for the State noted that the chief assessor in later correspondence with the Women's Law Centre, had apparently confirmed that the application was filed within time and proceeded on that basis.

  9. This is not a case in which I am considering an extension of time from the date of the incident in 2004 to 2011 in isolation.  Although the delay in dealing with the matter and providing comprehensive materials was lengthy, there are exceptional circumstances, in my view, because an application was lodged before the expiry of the limitation period, albeit it incomplete, accepted by the chief assessor as an application, and the applicant was so advised.

  10. This appeal is to be considered afresh, pursuant to the Act.  It is significant, in my view, that the chief assessor treated the matter as filed within time, and led the respondent to believe that it had been filed within time.  In correspondence with Ms Childs' legal advisors, there was no reference subsequently to any difficulty with the filing of the application.  I do not consider that the choice of heading by the Women's Law Centre 'Request to preserve limitation date' has any persuasive force in the determination of the question.  The body of the letter shows that they were lodging all materials they could at the time.

  11. On the other hand, there is force in the argument that it is difficult for a party to deal with a matter many years after the event, although this is not an unusual situation for example where young applicants are concerned.  Apart from the absence of the transcript from the Magistrates Court and the reference to an inability to obtain independent medical evidence, there is no evidence of any specific prejudice suffered by Mr Jongedyk due to the delay.  On considering whether it would be just to extend time, there would be, of necessity, a balancing of factors for each respective party, and usually a consideration of any reasons for delay.  I accept that the respondent suffered psychological difficulties subsequent to the incident, and other life events to some extent took priority over proceedings in the intervening years.  I take into consideration that the appellant cannot go behind the fact of conviction in the Magistrates Court.  The materials submitted by him appear to attempt to do so.  Ultimately, sufficient materials were obtained by the chief assessor to enable a determination to be made of the consequences which resulted from the incident, and those which did not, in terms of the dental and psychological damage.  Further, most of the materials submitted come from the period of three years subsequent to the incident.  Nothing additional was identified by Mr Jongedyk which he might have been able to obtain and rely on, but for the delay.

Ground 1 - merits

  1. Firstly, I consider that the application was lodged in time, although it lacked full supporting documentation.  Secondly, even if the application had not been lodged in December 2007, I am not persuaded that it would be unjust to extend time in the particular circumstances:  Ms Childs was led to believe that she had filed an application within time, and proceeded subsequently on that basis; no suggestion was made to the Women's Law Centre that she could not proceed to have the application considered on the merits; no specific prejudice has been identified as affects Mr Jongedyk's position.  The transcript of the Magistrates Court proceedings would be of minimal relevance in the circumstances of the fact of conviction.  Whilst it is accurate to state that an independent medical examination would be of little use long after the event, no specific prejudice or detriment was identified to have arisen from it.  Contemporaneous records were obtained, when requested from Dr Chang.  Accordingly, it would not be unjust to extend time and I would do so if the application had not been properly lodged, as I find it was.

The quantum of the award

  1. It is conceded by Mr Jongedyk that the award for medical expenses and loss of earnings are not in issue and that those awards may stand.  The facts considered by the learned chief assessor in determining the quantum of the medical expenses allowable necessarily involved detailed consideration of and findings on the dental damage and treatment resulting from the incident.  Accordingly, although those matters are not in issue they are relevant to the quantum of the general damages.  Counsel for Mr Jongedyk did not seek to challenge on appeal the underlying findings of fact by the chief assessor.

  2. Mr Jongedyk submits that the award of $17,000 for general damages was excessive in the circumstances, and in his submissions Mr Young argued that:  regard had to be had to the following matters:

    (i)there was no formal diagnosis of post‑traumatic stress disorder;

    (ii)Ms Childs only attended three sessions of counselling, where she was eligible for further sessions with Commonwealth funding;

    (iii)Ms Childs' condition was exacerbated by stress associated with the court proceedings trial in Magistrates' Court and an interim VRO application;

    (iv)Ms Childs' medical certificates in relation to fitness for work expired in May 2005;

    (v)there is no evidence of any treatment between March 2006 and May 2007;

    (vi)there was limited information in relation to antidepressant medication;

    (vii)there were pre‑existing injuries which would have contributed to depression;

    (viii)Ms Childs' reasonable loss was adequately compensated by an award for reports, treatment expenses, loss and income.

  3. Further, it was argued that compensation for injury should be discounted because of the delay.

  4. In conclusion, Mr Young's submission was at the sum of $8,000 plus expenses, such as was awarded in the case of Madaschi [2011] WADC 89 was appropriate.

Evidence

  1. Ms Childs submitted her police statement, the incident report and brief jacket from the West Australian Police Service, the statement of material facts and photographs taken of herself after the incident.  In addition, she provided a copy of the police victim impact statements for the purpose of the Magistrates Court proceedings on 12 April 2006, and a personal statement in relation to the criminal injuries compensation matter, dealing with the long term effects of the incident.  The police file contains a copy of the original complaint dated 21 January 2005 which shows that Mr Jongedyk was charged with unlawful assault occasioning bodily harm upon Ms Childs, in circumstances of aggravation namely that the parties were in a family and domestic relationship.  The complaint shows that the matter was dealt with by way of a hearing, upon a plea of not guilty, that the case was found to be proved and that Mr Jongedyk was fined $1,500 with costs of $115.50.  A spent conviction order was made.  The outcome was recorded on 13 April 2006.

  2. Medical materials comprise:

    •a report from Dr Vanessa Hester dated 28 March 2007;

    •a letter dated 2 January 2005 from Royal Perth Hospital accident and emergency officer;

    •all records held by Dr Gregory Chang in relation to Ms Childs, Dr Chang, a dentist.  (These records comprise details from his progress notes, and a letter to Dr Tim Silbert emailed on 22 December 2005);

    •a report from Ms Elyse Frankel, clinical psychologist, dated 25 September 2007;

    •reports from Dr Rick Lazar dated 12 May 2005 and 13 May 2008;

    •two letters from Dr Brostek dated 11 August 2005 and 5 October 2007;

    •Centrelink medical certificates dated 5 January 2005, 4 March 2005, 21 June 2005, 2 March 2005.

    •a letter from Dr Hester to the magistrate at Central Law Courts dated 7 June 2005;

    •a letter from Dr Mariet Job dated 16 May 2005.

  1. In response to the application, Mr Jongedyk wrote on 12 August 2011 asserting his belief that he was wrongly convicted, and making various allegations against Ms Childs.  He refers to violence restraining order proceedings which he asserts Ms Childs wished to have dropped.  He also asserts that at sometime prior to 2004 Ms Childs had undergone rhinoplasty and alleges that this would have made her nose unstable.  The documents attached include a letter allegedly from Ms Childs to Mr Jongedyk (undated and unsigned), a birthday card, a Christmas card, a typed statement from Mr Jongedyk about the incident on New Year's Eve 2004, statement signed by Ms Kerry Bell concerning 1 January 2005, a statement from Elaine Joyce concerning phone calls to Mr Jongedyk's home, correspondence with Telstra, a copy of an application to vary a restraining order and a letter from Williamson & Co, Barristers and Solicitors in relation to that order.

  2. It is apparent that there was a two day hearing or thereabouts in the Magistrates Court following which Mr Jongedyk was convicted of assault occasioning bodily harm.  I infer that at the hearing both Mr Jongedyk and Ms Childs gave evidence, as to what each of them say occurred on that night.  Under the Act, an award can be made for injuries and losses suffered as a consequence of the commission of a proven offence.  A conviction demonstrates a proved offence in this regard.

  3. Considering the injuries actually suffered by Ms Childs, the attendance upon accident and emergency the following day, and the matters set out in her statement to the police, I am satisfied that the conviction was substantially based upon  her account of the events.  The suggestion in Mr Jongedyk's statement that he gave her a 'gentle tap' on the left cheek, when she was behaving in an hysterical manner such as to cause him to fear that she was going to harm herself, is inherently implausible and I reject it, as the magistrate must have done.  I find that on the night of 31 December 2004, Ms Childs was travelling with Mr Jongedyk in his vehicle when an argument developed between them.  Mr Jongedyk stopped his vehicle on the side of the road.  When Ms Childs tried to get out of the vehicle, he prevented her from doing so.  He then hit her hard across the face with his right hand.  Ms Childs suffered pain and was in fear, her nose and her eyes were immediately affected and watered.  Mr Jongedyk immediately apologised and asked her where she wished to go.  They had been on their way out for New Years Eve.  They went to a car park near the beach and then drove to his house.  He assisted her to lie on the bed.  After some time she roused herself, accepted a drink and cigarette, and asked to be taken home.

  4. She reported the matter the following morning to the police.  She went to Royal Perth Hospital.  She returned to the police station and gave a statement.  On 2 January, she awoke feeling dizzy and sick, she was vomiting and attended Royal Perth Hospital again.  She was investigated for a head injury and the diagnosis was 'head injury closed without loss of consciousness'.  She was treated for nausea.  A statement from Dr Mark Vinar confirms that she attended at Royal Perth after hours GP clinic on 1 January at 12.45 pm, when his notes record that she had bilateral mild peri orbital bruising and swelling and a mildly swollen nose.  She was given analgesia and advised to follow up with her GP.  She first saw her GP, Dr Hester, on 5 January 2005, when she had pain and tenderness on the right side of her nose and was unable to work in her temporary posting as a teacher.  She was given a medical certificate for this reason.

  5. I am satisfied that Ms Childs suffered injury as a result of the offence, and is eligible for compensation for those injuries and associated losses.

  6. Ms Childs claimed compensation for both physical and mental injuries.  The physical injuries comprised the swelling, bruising and pain to her nose and face, in addition she claimed that the impact had damaged a dental bridge which she had worn for a number of years, that one of her teeth was fractured and other abutting teeth were damaged, compromising the bridge.  As a result of this she claimed extensive dental treatment.  She also claimed to have suffered mental injuries.  Dr Hester reports that she returned to work on 28 January, but could not sustain this, as she was experiencing increasing anxiety, lack of concentration and inability to remember children's names.  Dr Hester reports seeing her subsequently on 27 March 2007 when she reported anxiety attacks and stress.  She reported having difficulties leaving the house, facing crowds and had difficulties sleeping.  Dr Hester's opinion as at 28 March 2007 was that she had suffered post traumatic stress disorder due to the assault.  On 7 June 2005, Dr Hester prescribed fluvoxamine and referred her to Ms Frankel, a psychologist. 

  7. Ms Frankel saw Ms Childs on three occasions:  20 June and 4 July 2005, and 28 May 2007.  She was eligible at the time for a low cost counselling service funded by the Commonwealth, which would provide up to 12 sessions per year.  Ms Frankel saw her for the purpose of treatment not for medico‑legal reasons.

  8. Ms Childs described to Ms Frankel that she had panic attacks since the assault, difficulty concentrating, hypersensitivity to noise, agitation, detachment, disinterest in usual activities, loss of confidence, sleep disturbance, flashbacks and feelings of worthlessness.  At her second session, Ms Childs reported feeling unable to attend the court hearing due to anxiety about facing Mr Jongedyk.  Ms Frankel considered the symptoms reported by Ms Childs at the time, in the context of the DSM‑IV and the diagnostic criteria for post‑traumatic stress disorder.  She did not provide a diagnosis at the time; she provided counselling.  She notes that a retrospective diagnosis of post‑traumatic stress disorder cannot be given.  However, she has analysed the reported symptoms in detail and concluded that Ms Childs satisfied those criteria at the time she saw her in 2005.  She was of the opinion that the symptoms experienced by Ms Childs had a significant impact on her ability to manage her daily living tasks, including work and her social interaction.  She noted that Ms Childs had experienced symptoms of depression and anxiety in the past, following her marital breakdown several years earlier, however she was told that Ms Childs was functioning well prior to the incident.  She notes that further sessions of counselling were offered, but she did not continue with them.  She notes that antidepressant medication and sleeping tablets had been prescribed.  She recommended further psychological treatment.  Her report to this effect is dated September of 2007.

  9. In her statement, Ms Childs described the immediate effects of the assault including the physical injuries and the attendance at Royal Perth Hospital on 2 January.  She said that it took weeks for the bruising and tenderness to diminish.  She reports that a week or so after the assault, the front bridge of her teeth started making strange sounds while she was eating and seemed to move.  This became more pronounced with time.  She was not immediately able to see her dentist, because she was too frightened to leave her home for a couple of weeks.  Ultimately, she saw Dr Brostek in April of 2005, who sent her to Dr Lazar.  She has subsequently had extensive dental work done.

  10. From a psychological point of view, she describes those traumas as being more damaging than the physical injuries.  She says she was petrified at the time, and feared for her life.  As a result she was too frightened to leave the house unaccompanied for a few weeks.  She had accepted a teaching position to start in January but after five weeks she found it hard to concentrate and she was physically shaking.  Ultimately she was unable to cope and by Easter resigned the position.  She was hypervigilant, according to her description, keeping an excessive lookout to make sure Mr Jongedyk was not in familiar places, such as the shopping centre car park.  She had panic attacks often and did not go out socially.  She described day‑to‑day tasks as becoming overwhelming.  The incident has impacted upon her relationships with family and friends, her work, and has cost her money in terms of loss of income.  After resigning she had to claim Centrelink benefits, which she found degrading.

The dental consequences

  1. When Dr Brostek saw Ms Childs on 5 April 2005, she had a loose anterior bridge spanning from tooth 13 to tooth 23.  He investigated with x‑rays and discovered that tooth number 12 had a fracture under its crown and had compromised the anterior bridge.  His opinion was it needed to be replaced, once the fractured tooth was removed.  Due to the difficulty of such a bridge, he referred Ms Childs to Dr Lazar.  Dr Brostek saw her again in October of 2007, when he found that her upper denture was loose and described her very deep palate, which made it extremely difficult to construct a new plate which functioned well.

  2. Dr Lazar first saw Ms Childs on 3 May 2005.  She told him that since the incident the bridge had been loose and she experienced pain and discomfort in the area around the apex of tooth 11.  His opinion was it was likely that the bridge retainer on tooth 23 had been uncemented for some months and was likely to have decay below it, and that if that tooth was lost then the other bridge abutments being teeth 13 and 11 would make very poor abutments.  In short, he thought the remaining teeth were unlikely to support new bridgework and she would have to consider a partial denture or alternatively, implant treatment.  She went back to Dr Brostek of the removal of the teeth, and these were replaced by a partial denture.  Dr Lazar again examined Ms Childs in December of 2007 and at that time he found that her remaining teeth had deteriorated considerably in the upper jaw and had a very poor prognosis.  He also noted that medication had induced gingival hypertrophy in the lower teeth.  He recommended various treatments including implant treatment, extraction of other teeth.

  3. Dr Gregory Chang's documents show that he removed teeth on 2 June 2005 in order that the anterior bridge could be removed.

  4. It is clear from the dental reports that Ms Childs had a number of difficulties with her teeth, not all of which were consequent upon the incident.  There was pre‑existing damage and work, as well as dental decay.

  5. Before the chief assessor, Ms Childs sought compensation for all dental treatment expenses incurred between 5 April 2005 and 21 January 2010.  The assessor sought additional evidence of the dental damage treatment and any future expenses.  When the materials had been collated, the learned assessor interpreted the dental reports, an exercise which she described as complicated.  It involved the assessment of multiple accounts and receipts for various dental treatment over the years.  At the hearing of this appeal, counsel for the appellant indicated that the learned assessor's determination in relation to the dental expenses, the loss of earnings and the reports was not challenged.  Accordingly, the findings of fact made by the learned assessor in relation to the causal connection between the dental treatment and the dental expenses is not challenged.  The chief assessor dealt with the matter by tabulating all the claims for dental work and indicating which were accepted by her as being due to the incident.  The chief assessor was satisfied that Ms Childs had pre‑existing poor dental health and that, even in early 2005, a number of the treatment items were not required as a consequence of the disruption of the denture.  She found that the dental health had deteriorated further in the years since the partial denture was replaced.  She was not satisfied that the deterioration in her upper dentition was a consequence of the injuries suffered in 2004.  The chief assessor accepted that it was appropriate to compensate Ms Childs for the 'gap' expense in relation to the partial upper denture, for treatment to tooth number 12 (which was fractured) as reported on by Dr Brostek on 5 April 2005 and tooth 23, the condition of which was noted by Dr Lazar on 3 May 2005.  Attached to these reasons is a copy of the schedule prepared by the chief assessor, from which it can be seen how extensive the treatment and cost to Ms Childs has been for her overall dental work, but that the items directly related to the incident form a smaller part of this.  The expenditure awarded for dental treatment by the assessor was $1,122.85.  She was satisfied that the items marked with a cross on the schedule, did not arise as a consequence of the injuries.

  6. In relation to the fees claimed for consulting Ms Frankel, and the fees claimed for medication, the chief assessor was not satisfied that it was appropriate to compensate Ms Childs for ongoing medication, after the date in 2007 when the last medication purchase was documented.

  7. The assessor awarded a net sum of $4,000 for lost earnings.  The calculation of precise losses was difficult.  She took into consideration that Ms Childs' symptoms were significant enough, in early 2005 for her to resign from the contract work that she had taken up with the Department of Education and Training, although she was able to return to casual teaching.  She accepted that this was less stable and that she had suffered actual loss of earnings.  She accepted that there had been occasions when she had turned down work because of her symptoms.

  8. On New Year's Eve 2004, Ms Childs was 53 years of age, she was a school teacher with grown up children.  She had been in a short relationship with Mr Jongedyk.  She describes her life prior to the assault as being quiet, uneventful and peaceful.  She had a close relationship with her sons, one of whom was living with her.  She was an outgoing and sociable person who frequently went for coffee and on outings.  She walked her dogs daily and entertained her friends.  She worked as a primary school relief teacher on average four days a week and enjoyed her work.  At the time of the assault, she had already made an application to the Education Department for a fixed term position in 2005.  She accepted a position for 2005 in Ellenbrook.  This is the position that she subsequently resigned.  I accept that for the first half of the year the psychological effects of the incident had a major impact upon her ordinary life, as well as her working life, limiting her outings due to anxiety and distress, limiting her social contact with friends which she found too stressful, and left her overwhelmed by ordinary events.

  9. Physically Ms Childs suffered bruising and swelling to her face including black eye type injury, and a loosening of her anterior upper bridge.  She suffered a fracture to her tooth number 12 and this compromised the bridge and the ability to replace the damaged bridge with something similar.  As a result she underwent dental treatment, including the extraction of teeth number 23, and the replacement of her bridge with a denture and plate.  Tooth 11 was also extracted and the chief assessor found that to be related to the incident.  Thus the consequences of the offence involved a number of diagnostic consultations, as well as the extractions, radiographs and other therapy.  Clearly, such dental treatment as was found by the assessor to be directly related to the incident would have been painful, stressful, inconvenient and distressing.  From a psychological point of view, Ms Childs' symptoms continued from 2005 until at least her consultation with Ms Frankel in May 2007, with many symptoms persisting such as sleep disturbance, social withdrawal, avoidance of activities and hypervigilance.  The learned assessor accepted that the need for antidepressant medication continued throughout 2007.

  10. I am satisfied that in addition to the immediate effects of the physical assault, and the dental damage I have referred to, Ms Childs suffered the symptoms she described to Dr Frankel and that they are consistent with post‑traumatic stress disorder.  In my view, it is not determinative that a formal diagnosis was made not contemporaneously.  It is irrelevant whether or not Mrs Childs was prone to such a psychological condition or had suffered depression on the past.  I am satisfied she was well and happy enough before the incident.  Mr Jongedyk's assault precipitated her injuries physical and mental.  I am satisfied that that condition has had a long-term effect upon Ms Childs' wellbeing and has compromised her ability to work, led to her undertaking some psychological counselling and being treated by antidepressant medication.  I do accept that, to a degree, her condition was affected by the stress associated with attending the Magistrates Court for the purpose of the hearing of the assault charge, and the prospect of the return hearing of the interim violence restraining order.

Legal principles

  1. The assessment of appropriate compensation requires the application of the ordinary tortious principles for the assessment of damages, subject to the definition of 'injury' and 'loss' contained in the Act, and the jurisdictional limit of $75,000 imposed by the Act.  The jurisdiction is purely compensatory, and has no role to play by way of punishment of the offender, or sympathy for the victim.  Comparison with other cases in the assessment of compensation or damages for personal injuries, is not an appropriate or effective method of quantifying damages, because of the inability of courts and tribunals to truly compare like with like; Asjes v The Assessor of Criminal Injuries Compensation (1994) 11 SR (WA) 226; De Florenca v Hayden [2007] WADC 54 [167] cf: TAW v NJS [2011] WADC 187 [24].

  2. It is not necessary for the offence or offences to be the sole cause of the injury but where a non‑compensable event contributes to an injury or loss compensation should be reduced to take account of that chance.  Injury includes bodily harm and mental and nervous shock: s 12(1) and (3) of the Act.  It is well‑established that mental or nervous shock must be more than an emotional reaction and must be something of an enduring character that can be described both in a legal sense and in common parlance as an injury.  It includes distress and other adverse mental reactions.  However, in assessing mental injuries the court must attempt to distinguish between direct consequences and other damage that may be caused because of other matters such as the stress of court proceedings, the embarrassment of public attention or the effect on family and friends.

Ground 2 - merits

  1. Counsel for the appellant submitted that the award for general damages of $17,000 was manifestly excessive and unjust and alleged that the chief assessor had failed to identify how the 'arbitrary figure' had been calculated.  In submissions, counsel referred to an award of $8,000 in relation to the matter of Selimoski [2012] WADC 30. Counsel for the appellant also argued an argument that delay might have some bearing upon the award of damages, although this matter was not ultimately pursued.

  2. It is appropriate to take into consideration, in my view, these matters:

    (i)the immediate physical effects of pain, bruising, dizziness, disorientation and nausea;

    (ii)the dental damage, contributing to the loss of teeth, pain and considerable amount of treatment;

    (iii)the psychological effects of the incident, being fear, anxiety, stress, sleeplessness, reclusiveness, loss of interest in usual activities, loss of concentration: whilst remembering that some degree of stress was caused by legal proceedings;

    (iv)the loss of enjoyment of social activity and professional working activity, due to the combined effect of items (i) ‑ (iii) above.

  3. In my view, it matters not that there was no formal diagnosis of post‑traumatic stress disorder in 2005, for the reasons I have already outlined.  Nor is it a disqualification that Ms Childs did not attend all counselling sessions that might have been available to her on a subsidised basis.  The merits of the violence restraining order application or otherwise are entirely irrelevant to the question of appropriate measure of compensation.  I find that there is no evidence of any pre‑existing injury or condition that would relevantly have contributed to her mental distress.  In my view, it is entirely inappropriate and contrary to principle to discount a compensatory award for injuries, by reason of delay.

Conclusion

  1. In summary, whilst Ms Childs' immediate physical injuries resolved reasonably quickly, and the dental work she required was attended to, (and has been distinguished from other dental work not connected with the incident), the assessment of general damages or compensation requires a consideration of the overall effect of the combined sequelae of the incident upon the life of Ms Childs, in order adequately to compensate her for the effects of the offence.  In finding facts relevant to the calculation of the cost of psychological and dental treatment, loss of earnings, the chief assessor canvassed all relevant matters, and made allowances for those matters which diminished any award as well as those which quantified it.  In my view, the effect on the stability of Ms Childs's professional life was very significant from 2005 to 2007 and has been ongoing, in terms of stability of employment.  This not only gives rise to an assessment of loss of earnings, but is a factor relevant to the psychological disability and loss of enjoyment of life.

  2. Taking all of these matters into consideration, and again noting that there is no challenge to the findings of fact which underpin the assessment of the financial losses, I find that the assessment made by the chief assessor is entirely apposite to the case.  In my view, this is a situation in which considerable weight must be given to the assessment of an expert tribunal in the field of criminal injuries compensation:  Hogben v Darcy [2009] WADC 63 [13]. Bearing that principle in mind, having reviewed the matter afresh and considering all the features of this case, I am not persuaded that the award of $17,000 by way of general damages is inappropriate or unjust. Accordingly, I affirm the decision of the chief assessor and award damages in that sum together with the special damages, unchallenged on this appeal. Accordingly, this appeal is dismissed.

ANNEXURE A

CRIMINAL INJURIES COMPENSATION

Applicant     IRENE MONICA CHILDS

'A'

DATE

'B'

PROVIDER

'C'

SERVICE

'D'

NUMBER

'E'

COST

'F'

M/CARE

'G'

PRIVATE

'H'

GAP

ü ×

21/01/10

Mills Bradley Stuart

Prosthetist Denture

Full denture, not related

$880

$704

$176

×

09/12/09

Mills Bradley Stuart

Prosthetist Consultation

$46

$36.80

$9.20

×

09/12/09

Mills Bradley Stuart

Prosthetist Denture Repair

$55

$44

$11

×

02/07/09

Tran Them

Dental Consultation

No account or Report

$43

$34.40

$8.60

×

02/07/09

Tran Them

Dental Radiograph

$39

$31.20

$7.80

×

16/07/08

Mahendran

Components

Not related

$261

$208.80

$52.20

×

27/06/08

Mahendran

Dental Occlusal Therapy

"

$47

$37.60

$9.40

×

26/06/08

Mahendran

Dental Radiograph

"

$87

$69.60

$17.40

×

10/04/08

Brostek, Marcel

Prosthodontic Service

No account or report

$72

$56.80

$15.20

×

10/04/08

Brostek, Marcel

Dental Consultation

"

$43

$34.40

$8.60

×

01/02/08

Lazar, Emeric

Dental Diagnostic

For report

$60

$16

$44

ü

01/02/08

Lazar, Emeric

Services

"

$30

$17

$13

ü

01/02/08

Lazar, Emeric

Dental Occlusal Therapy

"

$83.35

$57

$26.35

ü

18/12/07

Lazar, Emeric

Dental Consultation

? No account

$185

$ -

$185

×

05/10/07

Brostek, Marcel

Dental Consultation

no account, report = loose denture, not related

$41

$32.80

$8.20

×

05/10/07

Brostek, Marcel

Dental Radiograph

$36

$20.40

$15.60

×

28/05/07

Frankel, Elyse Claire

Psychology – Clinical

$140

$70

$70

ü

26/04/07

Chang, Gregory

Dental Consultation

General check up, not related

$41

$24

$17

×

26/04/07

Chang, Gregory

Dental Radiograph

"

$33

$17

$16

×

26/04/07

Chang, Gregory

Dental Prophylaxis

"

$85

$42

$43

×

26/04/07

Chang, Gregory

Dental Preventative Care

"

$32

$20

$12

×

28/10/06

Chang, Gregory

Dental Consultation

General check up, not related

$37

$24

$12

×

28/10/06

Chang, Gregory

Dental Prophylaxis

"

$79

$42

$37

×

28/10/06

Chang, Gregory

Dental Topical

"

$21

$15

$6

×

16/05/06

Chang, Gregory

Dental Restorative

Tooth 43, not related to incident

$200

$33

$167

×

02/05/06

Chang, Gregory

Dental Extraction

Tooth 11, related?

$120

$52

$68

ü

27/04/06

Chang, Gregory

Dental Restorative

Filling, not related

$180

$63

$117

×

13/04/06

Chang, Gregory

Dentures

New dentures

$104

$ -

$104

ü

13/04/06

Chang, Gregory

Dentures

"

$180

$108

$72

ü

13/04/06

Chang, Gregory

Dentures

Crown, not related

$1,180

$620

$560

×

05/04/06

Chang, Gregory

Dental Crown

Teeth 16 & 24, not related

$2,200

$1,236

$964

×

01/04/06

Chang, Gregory

Dental Crown

Teeth 16 & 24, not related

$640

$342

$298

×

07/03/06

Silbert, Timothy

Dental Pulp

Tooth 26, not related

$260.50

$106

$165.50

×

07/03/06

Silbert, Timothy

Dental Pulp

"

$214

$90

$124

×

07/03/06

Silbert, Timothy

Dental Radiograph

"

$78

$34

$44

×

25/02/06

Chang, Gregory

Dental Consultation

$44

$29

$15

ü

25/02/06

Chang, Gregory

Dental Radiograph

$31

$17

$14

ü

11/01/06

Chang, Gregory

Dental Occlusal Therapy

New denture

$47

$26

$21

ü

11/01/06

Silbert, Timothy

Dental Consultation

Tooth 26, not related

$94

$34

$60

×

11/01/06

Silbert, Timothy

Endodontic Service

"

$107

$44

$63

×

11/01/06

Silbert, Timothy

Dental Pulp

"

$160.50

$103

$57.50

×

11/01/06

Silbert, Timothy

Dental Pulp

"

$214

$92

$122

×

22/12/05

Chang, Gregory

Dental Consultation

$44

$ -

$44

ü

20/12/05

Chang, Gregory

Dental Extraction

23 Extraction

$100

$52

$48

ü

20/12/05

Chang, Gregory

Dental Pulp

26 RTC not related

$95

$50

$45

×

19/12/05

Johnson, C

Dental Repairs

Temp denture

$135

$47

$88

ü

19/12/05

Johnson, C

Dentures

"

$357

$300

$57

ü

19/12/05

Johnson, C

Dentures

"

$111

$54

$57

ü

12/12/05

Chang, Gregory

Dental Extraction

Teeth 14 & 24, not related

$200

$104

$96

×

10/11/05

Chang, Gregory

Endodontic Service

Not related

$85

$43

$42

×

28/09/05

Chang, Gregory

Dental Consultation

$44

$ -

$44

ü

25/08/05

Johnson, C

Dental Consultation

Advice re plate

$187

$ -

$187

ü

23/06/05

Chang, Gregory

Dental Extraction

Tooth 15, not related

$99

$52

$47

×

02/06/05

Chang, Gregory

Dental Consultation

Teeth 24 & 25, not related

$42

$29

$13

×

02/06/05

Chang, Gregory

Dental Radiograph

"

$30

$17

$13

×

02/06/05

Chang, Gregory

Endodontic Service

"

$85

$43

$42

×

12/05/05

Brostek, Andrew

Dental Consultation

Tooth 43, not related to incident

$36

$28.80

$7.20

×

12/05/05

Brostek, Andrew

Dental Restorative

"

$30

$24

$6

×

03/05/05

Lazar, Emeric

Dental Consultation

Referred by Brostek

$165

$42.50

$122.50

ü

05/04/05

Brostek, Andrew

Dental Consultation

Attended for loose bridge

$36

$28.80

$7.20

ü

05/04/05

Brostek, Andrew

Dental Radiograph

"

$64

$51.20

$12.80

ü

03/03/05

Rabin, Laz

Physiotherapy

No report, but ok

$47

$39

$8

ü

18/01/05

Kailis, Cary

Cosmetic Surgery Consultation

No report, no laceration

$60.50

$ -

$60.50

×

Medication                

$182.40 to end 07

Total Paid

$4,893.75

Allowed

$1,122.85

Frankel x 3

$35

Total

$1,340.25
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Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

1

Smith & Ors v The Executive Director of the Department of Conservation and Land Management [1999] WASC 240
Bird v Bird [2002] QSC 202
Bird v Bird [2002] QSC 202