| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : JY [2013] WADC 187 CORAM : SLEIGHT DCJ HEARD : 13 NOVEMBER 2013 DELIVERED : 4 DECEMBER 2013 FILE NO/S : APP 47 of 2013 MATTER : IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
and
IN THE MATTER of an Appeal by
BETWEEN : JY
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA Coram : CHIEF ASSESSOR OF CRIMINAL INJURIES File No : CI 1236 of 2012 Catchwords: Criminal injuries compensation award - Alleged offences - Further evidence presented on appeal - Physical and mental injuries - Preexisting mental condition - Postoffence diagnosis of cancer
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Legislation: Criminal Injuries Compensation Act 2003 s 17, s 33, s 41 Result: Appeal allowed
Representation: Counsel:
Appellant : In person
Amicus Curiae : Ms C Brandstater appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
BAS v The Estate of NAS [2000] WASCA 270
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Crumby v Kuru (1995) 13 SR(WA) 331
DNA v Britten (1995) 14 SR (WA) 325
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Gallo v Dawson (1990) 93 ALR 479
Jones v Macy [2000] WADC 101
MJN v MAJS (2003) 35 SR (WA) 219
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
R v Forsythe (1972) 2 NSWLR 951
S v Neumann (1995) 14 WAR 452
Smith v Leech Brain & Co Ltd [1962] 2 QB 405
SW v BB [2010] WADC 86
Wilson v Peisley (1975) 50 ALJR 207
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Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485
Zumeris v Testa [1972] VR 839
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1 SLEIGHT DCJ: This is an appeal under the Criminal Injuries Compensation Act 2003 (the Act). In this decision relevant persons will be described by initials so as to protect their identity.
2 On 2 April 2011, Ms Y, the appellant, was viciously attacked in her own home by Mr A with a carving fork, in what could be described as an attempted murder. Mr A was the ex-partner of Ms Y and at the time Ms Y had obtained a restraining order against him. The attack occurred in the presence of Ms Y's 15-year-old son who bravely tried to intervene and save his mother. Mr A ceased his attack and left after stabbing Ms Y approximately 13 times. Mr A committed suicide the next day. Ms Y made an application for criminal injuries compensation and the chief assessor made a compensation award dated 16 May 2013 awarding Ms Y $18,500. 3 The written notice of appeal against the compensation award made by the chief assessor listed the following grounds: 4 It became clear on the hearing of the appeal the sole ground of appeal was that the award was inadequate. 5 Pursuant to s 56 of the Act the District Court must decide the application on appeal afresh on the evidence and information that was in the possession of the assessor but may receive further evidence and information. The District Court is not fettered by the assessor's decision. However, it is appropriate to take into account the assessor's reasons in making judgments regarding the making and the amount of the award (see Crumby v Kuru (1995) 13 SR(WA) 331, 333 (French J). Regrettably, in this matter no written reasons for the award were requested and therefore I do not have the benefit of the chief assessor's reasons.
Extension of time to appeal 6 An appeal against an order of an assessor under the Act must be commenced within 21 days after the date of the order. If it is just to do so, the court may grant leave to commence an appeal after the expiry of that period: s 55(3) and s 55(4) of the Act. In this case the last day for commencing the appeal was 6 June 2013 and a Notice of Appeal was filed (Page 5)
on 7 June 2013. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson (1990) 93 ALR 479. Given the fact that the appeal was lodged only a day late and taking into account the fact that Ms Y was unrepresented, I am satisfied that it would be just to allow the appeal to be commenced after the 21-day appeal period. Further evidence produced on appeal 7 On the hearing of the appeal I allowed Ms Y to produce further evidence. This consisted of the following; (a) An affidavit of Ms Y dated 15 October 2013 that had annexed to it a victim impact statement, letters from Dr Kay Johnston and Dr Neil Beck and a number of medical accounts; (b) A notice of amended assessment from the Australian Taxation Office for the year ending 30 June 2012; (c) Letters from Dr Anthony Mander dated 21 June 2011 and 6 August 2012; (d) A report from the Frankland Centre concerning Mr A dated 5 March 2008; and (e) Oral evidence from Ms Y.
Relevant principles as to method of assessment
(a) General 8 Before dealing with the merits of the appeal some general principles need to be taken into account. The starting point is that compensation is payable where a person has suffered 'injury' in consequence of the commission of an alleged offence (s 17 of the Act). An alleged offence means a crime, misdemeanour or simple offence for which no person has been charged. Pursuant to s 17 the claimant must establish three things: (Page 6)
9 The onus of proof in criminal injuries compensation cases that the alleged offence has occurred and that the claimant has suffered injuries and loss as a consequence of the commission of the alleged offence is on the claimant and is to be the civil standard of on the balance of probabilities: BAS v The Estate of NAS [2000] WASCA 270 [11]. 10 Bodily harm and mental and nervous shock are included in the definition of 'injury' [s 3 of the Act]. The notion of 'mental and nervous shock' is borrowed from the law of torts to refer to mental or emotional harm as opposed to physical injury or bodily harm. It must be more than a mere emotional reaction. Something of a more enduring character is required which may, in both the legal sense and in common parlance, be described as an injury (see S v Neumann (1995) 14 WAR 452, 461 (Murray J)). 11 In assessing the amount of compensation which should be awarded the court must have regard solely to the injury actually suffered by the claimant in consequence of the commission of the offence and not the seriousness of the offence. The amount is not to be fixed as punishment of the offender or expression of sympathy for the injury but as compensation for the injury or loss: DNA v Britten (1995) 14 SR (WA) 325; R v Forsythe (1972) 2 NSWLR 951, 953; Jones v Macy [2000] WADC 101. However this does not mean that the actual facts of the offence are of no consequence. It is from the facts of the offence that one can make judgments about the likelihood of the claimant suffering injury and the extent of those injuries and the extent to which disabilities are likely to persist: DNA v Britten (327). 12 The maximum compensation payable under the Act, which in this case is $75,000, is merely a jurisdictional limit and is not reserved for the worst cases (see S v Neumann (463) (Murray J)). The correct approach to adopt in fixing the appropriate amount of compensation is to apply the ordinary principles for assessment of damages in the law of torts, subject to the limitations imposed by the definition of 'injury' in the Act and subject also to the jurisdictional limit imposed by the Act.
(b) Pre-existing condition 13 Where a complainant has a pre-existing condition a number of principles must be taken into account: (a) The onus is on the claimant to prove that the compensable offence did contribute materially to the claimant's injury and loss. However the offence need not be the sole cause (Page 7)
of the injury or loss: Bonnington Castings Ltd v Wardlaw [1956] AC 613; Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666. (b) Compensation will not be awarded if the injury and loss would have occurred in any event due to a pre-existing condition: Smith v Leech Brain & Co Ltd [1962] 2 QB 405. Where it cannot be positively stated that the event (the injury or loss) would have occurred in any event but it remained a probability then the award of compensation must be reduced to take into account that probability. (c) If it can be proved that the offence has made a pre-existing condition worse by aggravation, or brings on a condition earlier, the assessment of compensation is made on the basis of the worsening or acceleration or both as the case may be: Zumeris v Testa [1972] VR 839. (d) Where it is not possible to disentangle the consequences of a pre-existing condition and the consequences of the offence, the claimant is entitled to compensation for the full injury and loss if the claimant has establish that the compensable offence did contribute materially to the claimants injury or loss: Bonnington Castings Ltd v Wardlaw; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164;MJN v MAJS (2003) 35 SR (WA) 219, 227 (Martino J). (e) In respect of events which have already occurred the court decides on the balance of probabilities whether a specific event has occurred or not and damages are assessed on an all or nothing approach. However, where it is necessary to assess a hypothetical situation such as whether a claimant's pre-existing condition would in any event have prevented the claimant from working in the future, the court must perform an estimate of the likelihood that the hypothetical situation may occur. If there is a fair chance that the hypothetical situation may occur, the court must evaluate that chance and discount the compensation by the percentage that represents that chance: Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485, 499 – 500. These adjustments for probabilities is relevant to general damages and past and (Page 8)
future loss: Wilson v Peisley (1975) 50 ALJR 207, 212 (Stephen J); SW v BB [2010] WADC 86 14 The submissions of the chief executive officer, who appears on the hearing of the appeal asamicus curiae, suggested that the pre-existing condition of Ms Y could also be taken into account under s 41 of the Act which provides that in deciding whether or not to make a compensation award, or the amount of compensation award, an assessor must have regard to any behaviour, condition, attitude or disposition of the victim that contributed, directly or indirectly to the victims injury. However, for reasons given by the her Honour Judge Schoombee in SW v BB, I conclude that s 41 has no application and the compensation is assessed applying the ordinary principles of assessing damages as they apply in the law of tort.
Was an alleged offence committed? 15 The application for criminal injuries compensation filed by Ms Y was grounded on an alleged offence of attempted murder. 16 Evidence of the alleged offence is contained in written statements from Ms Y and her son C on the day of the alleged offence. A convenient summary is contained in a police incident report which states as follows: The accused [Mr A] attended the house of his ex-partner and victim [Ms Y]. At the time [Ms Y] wasn't home. The accused gained access by climbing through an open rear computer room window and walked into the lounge room area where [Ms Y's] son [C] was seated playing his Xbox. [C] knows that the accused can get violent and also knows that he wasn't supposed to be at the house. As a result [C] had a conversation with the accused for about 20 minutes before the accused stated that he had to leave to catch a bus. The accused left the lounge room area and made it appear to [C] that he had left the house. Approximately 10 minutes later the victim [Ms Y] arrived back home with a friend only known as [M]. Once arriving home, [Ms Y] was confronted by the accused who was still at the house. An altercation took place which caused [M] to leave the house via a rear door whilst the accused continued to argue with the victim. The accused pushed the victim onto the floor of the kitchen and proceeded to yell at her. Whilst on the floor the accused produced a carving fork and began to stab the victim numerous times to her chest and arm areas. (Page 9)
The victim's son [C] made numerous attempts to defend his mother by trying to restrain the accused. On each attempt he was pushed to the ground and also forced back into a glass sliding door. The victim received numerous stab wounds to her chest and arms before the accused was disarmed by [C]. Once disarmed the accused [Mr A] decamped the area and it appears that he took the carving fork with him. Police were contacted and attended the address. Also in attendance was the SJA [St John's Ambulance] due to the injuries sustained by the victim. A search of the surrounding area and house failed to locate the accused [Mr A] and the weapon used. 17 Ms Y in her written statement said that Mr A, just before he started stabbing her, said 'You are going to fucking die cunt'. 18 The police incident report indicates that the police contemplated charging Mr A with the following offences: (a) Burglary contrary to s 401(2) of the Criminal Code; (b) Breach of a Violence Restraining Order, contrary to s 61(1) of the Restraining Orders Act 1997; (c) Wounding contrary to s 301 of the Criminal Code; (d) Acts and omissions causing bodily harm, s 304(1)(a) of the Criminal Code. 19 I am satisfied on the evidence before me that an alleged offence was committed. In fact multiple offences were committed which included the offences listed in the police incident report and also an attempted murder offence. Where multiple offences are committed at the one time the amount of compensation awarded must be treated as one offence (s 33 of the Act).
What injuries were suffered as a consequence of the alleged offence?
(a) Injuries and treatment received 20 After the incident Ms Y was transferred by ambulance to the Fremantle Hospital. According to hospital records she suffered multiple stab wounds to the anterior chest and right upper abdomen with bilateral pneumothoracic, surgical emphysema and lacerations to the left elbow and forearm. There was some suggestion in an x-ray report that Ms Y may have also suffered an injury to the liver but on the hearing of the (Page 10)
appeal Ms Y conceded that this was unlikely as it did not coincide with the area of the stab wounds. 21 On admission to the Fremantle Hospital Ms Y's wounds were sutured and bilateral chest drains were inserted. There were insufficient beds available at the Fremantle Hospital and as a consequence on 3 April 2011 Ms Y was transferred by ambulance to the Royal Perth Hospital where she was admitted to the intensive care unit. She remained in the intensive care unit until 5 April 2011 when she was transferred to the cardiothoracic ward. 22 After several days, Ms Y exhibited paranoia and aggressive behaviour, rejecting that the offender had died and alleging a conspiracy between his family and the police. According to a discharge letter dated 7 April 2011 addressed to Ms Y's doctor, Ms Y was diagnosed at the time as suffering an acute reactive psychosis on a background of the serious assault she had suffered. On the morning of 7 April 2011 Ms Y discharged herself from the cardiothoracic ward following the removal of her chest drains and subsequently refused to return to the ward. Instead she remained outside the hospital consuming alcohol. She was observed by a social worker who recognised her. Ms Y was found to be in a confused state, with significant paranoid delusions relating to the recent assault. She was brought in to the hospital by security staff, sedated and on 8 April 2011 Ms Y was transferred to the Alma Street Centre in Fremantle and admitted to the psychiatric ward as an involuntary patient. She settled on admission, showed no signs of psychosis and was discharged home that day.
(b) Pre-existing condition 23 Relevant to the issue of what mental injury was suffered by Ms Y is the extent her mental condition was the result of a pre-existing condition. 24 Ms Y has lodged in support of her appeal an affidavit dated 15 October 2013 which has annexed to it a letter from Dr Neil Beck to Ms Lonsdale which states: (Page 11)
Dexamphetamine or Ritalin because of the Health Department's counterproductive rules about the treatment of people with Alcohol problems. Her eligibility for Dexamphetamine is now being reviewed by her psychiatrist since she has been free of alcohol for several months. The features of untreated ADHD include Impulsivity, Poor Concentration and Recklessness with money and she has all of these problems.
She remains a deeply troubled soul and requires intensive counselling, which she hasn't had, and long-term medication. I will continue to help her as much as I can but I am not a Counsellor. 25 It appears that Ms Y was referred to Dr Chris Carter (psychiatrist) in November 2007 when he first prescribed dexamphetamine. In March 2011 Ms Y changed her psychiatrist and was referred to Dr Anthony Mander. 26 A referral letter from Dr Neil Beck to Dr Mander, dated 10 March 2011 stated as follows: I would be grateful if you could assess [Ms Y] (DOB 5/8/67). She had a very traumatic childhood and had heavy alcohol problem until few years ago. I managed to get her off the alcohol and she has been quite stable in the past couple of years. I diagnosed her with ADD and referred her to Dr Chris Carter and she was on Dexamphetamines for 2 years. However, there seems to be friction between her and Dr Carter's receptionist and she has requested a referral to another psychiatrist. 27 Dr Chris Carter in a letter to Dr Mander dated 18 March 2011 stated as follows: (Page 12)
28 Dr Mander referred Ms Y for neuropsychological testing. Ms Y was assessed by Ms Mandy Vidovic, a clinical psychologist. In a report dated 20 June 2011 Ms Vidovic concluded as follows: [Ms Y] was seen across two occasions to assess her current level of cognitive functioning, with a view to assessing the diagnosis of ADD. She reported having abstained from her usual medication dosage prior to her assessment. Upon interview she described a number of difficulties she experiences in her cognition and mood, which she feels are significantly ameliorated when she is taking her daily dosages of Dexamphetamine. It was difficult to clearly identify the presence of childhood attentional and learning difficulties, particularly given the context of the home situation and the nature with which [Ms Y] perceived her school environment (example an escape/haven). Complicating the interpretation of some of her concerns is her history of trauma, depression and anxiety, and substance abuse. Nevertheless, there were consistent indications of cognitive impairment on tasks requiring higher level attentional processes, as she experienced difficulty managing multiple trains of thought and selectively attended to different task requirements. Attentional errors were also noted in her monitoring of her output. 29 The application for criminal injuries compensation by Ms Y contained very little evidence by way of up-to-date assessments to substantiate the extent to which Ms Y has suffered mental injuries as a result of the attack on her. 30 The report of Ms Vidovic briefly dealt with the issue as follows: I suspect that there are likely dual processes at play. From her self report, there appears to be some ongoing post-trauma symptoms associated with the recent physical abuse by her now deceased partner, as well as, longstanding psychological and personality traits associated with her early childhood abuse and psychosocial issues. While such factors can compromise cognition, her profile was really quite specific with respect to the area of the impairment and such, together with other features of her self report and apparent response to medication, are supportive of a diagnosis of adult ADD. Given the current situation, it may be worthwhile exploring treatment options for her anxiety and matters related to the recent trauma. While she may benefit from access to ongoing and regular counselling, I am not sure how receptive she would be with respect to this. 31 On 19 July 2011 outpatient notes of the Fremantle Hospital record that the mother of Ms Y telephoned the hospital and reported that Ms Y had gone missing. It recorded that the mother had stated that Ms Y had been 'scatty' and drinking excessively. It also recorded that since the stabbing Ms Y had been hyper vigilant and that she is suspicious there are (Page 13)
prowlers outside the house and requires reassurance. No follow-up entry was recorded in the notes. 32 Ms Y in her oral evidence said that she still has scarring from her stab wounds. No photographs were lodged in support of a claim to scarring. She said the scarring embarrassed her and she tended to wear clothing which covered the scar. 33 Ms Y stated in her evidence that immediately after the attack on 2 April 2011 she was in a state of shock. Whilst in hospital she feared that her son might get attacked by relatives of Mr A. 34 Ms Y stated that after she was discharged from the Alma Street Centre she continued to see Dr Mander. Dr Mander was primarily treating Ms Y for ADD and he stated in a report dated 6 August 2012 as follows: 35 Ms Y in her evidence stated that her mother was interfering and contacting Dr Mander stating that Ms Y was having episodes and was wanting to have Ms Y admitted to Joondalup for psychiatric assessment. Ms Y stated that eventually Dr Mander refused to further see her and ceased to prescribe her dexamphetamine. The practice notes of Dr Mander record that on 5 October 2012 Ms Y's mother telephoned Dr Mander's rooms and described Ms Y as being in a delusional state with disturbed behaviour. As a result of the mother's contact Dr Mander ceased prescribing dexamphetamine. 36 Ms Y in her evidence stated that since the prescriptions for dexamphetamine have ceased she has self-medicated with alcohol and she has been unable to work. 37 In the victim impact statement attached to the affidavit of Ms Y dated 15 October 2013, Ms Y described her trauma arising from the attack in the following terms: My son [C] witnessed my attempted murder by [Mr A] see RO-FR 669/10 which breached this order. I was stabbed in the chest, arms over 13 times (Page 14)
with a roasting fork. This has been a vision that has unfortunately stayed with us as we relive the nightmare daily. We don't laugh, have fun together as we both used to, can't trust people, suffer with the worst anxiety on top of not being able to sing together like we used to. I cannot work as my health has deteriorated since the attack, with my waiting on an operation for a suspected ovarian tumour. No allocated psychiatric medication due to the intervention of my interfering mother and sisters, brother-in-law's etc. 38 An additional complication is that in 2013 Ms Y was diagnosed with cancer. According to a medical account lodged by Ms Y a biopsy and other procedures were undertaken in August 2013. No medical reports were tendered as to the nature of the cancer or as to its prognosis.
Evidence of loss of earning capacity 39 Ms Y's background was described in the neuropsychological report of Ms Vidovic in the following terms: [Ms Y] denied any history of early learning difficulties, though commented that her writing skills had initially been poor and mathematics was an area of long-standing weakness. Despite having been bullied, she described school as an 'escape' from her home environment. After completing Year 10 and most of Year 12 she entered the workforce and has mainly been employed in Administrative and Secretarial roles. She indicated she also had a background in occupational health and safety, as well as, having previously studied Japanese, part-time, at university. From her discussion, she appeared to have worked at many different places, and changed positions for various reasons, including bullying and a tendency to become 'easily overloaded and burnt out'. She had recently lost her job and was hoping to hear about another position. She reported that when not medicated, she would suffer a number of cognitive issues including problems with attention and concentration (e.g., not being able to read), reduced comprehension, difficulty managing multiple tasks and being slow to pick up on things. She felt that she was more absentminded, would have mental blanks and experience word finding difficulties. Having to organise things caused her stress and she would have trouble following through tasks to completion. She felt that the Dexamphetamines assisted in keeping her mood stable and she had used alcohol in the past to manage depression. Anxiety was and continues to be an issue, though she said she felt much more settled when using Dexamphetamine. She described symptoms of hyperarousal associated with thoughts of being attacked, following on from some recent trauma. (Page 15)
Medical history included childhood sexual abuse, physical assaults from partners, suicide attempts via medication overdose, whiplash and (?) substance induced seizure. She reported having abstained from abusing alcohol for approximately one year and had been placed on naltrexone. She smoked a packet of cigarettes a day and denied any history of illicit substance abuse. In addition to her naltrexone, she would take 20 mg of Dexamphetamine in the morning and at lunch, having first been placed on this in 2009. Sleep was variable. 40 According to the résumé lodged by Ms Y in support of her claim, despite her long standing trauma and mental health issues she has consistently been employed: 1. 1995 to 1998 - employer Western Mining; 2. June 1999 to April 2004 - employer Myers; 3. May 2004 to March 2006 - employer Midwest Corporation/Sino Steel; 4. June 2006 to August 2006 - employer Electrical Group Training; 5. September 2008 to December 2009 – employer WA Construction Industry Redundancy Fund; 6. 2 January 2010 to February 2011 – employer Department of Transport; 7. February 2011 to June 2011 – employer Worley Parsons. 41 Amongst the papers lodged in support of the application for compensation, is a letter from Worley Parsons dated 23 May 2011 addressed to Ms Y confirming termination of her employment. At the time of the termination of her employment Ms Y was receiving a net fortnightly payment of $1,259.20, plus superannuation. 42 Ms Y's oral evidence on the hearing of the appeal was that she attempted to return to work on 15 April 2011. At the time she felt she was still suffering from shock from the attack on 2 April 2011. She said that she made every effort to return to work despite this. 43 Ms Y stated that after she was dismissed by Worley Parsons she and her son moved to Broome for a period. For the last 12 months they have lived in Perth. Ms Y's evidence was that she has not been employed since 23 May 2011 except for approximately six weeks' employment at the Roebuck Hotel in Broome and two weeks' employment at the White (Page 16)
Sands Tavern in Scarborough. The balance of the time she has been in receipt of Centrelink payments. 44 Lodged in support of Ms Y's application is a long handwritten annexure A written by Ms Y. The content of this document is disjointed and suggestive of someone suffering from a mental illness. In this document Ms Y states that she ceased her employment at the Department of Transport in Fremantle as the department refused to give her a pay increase and so she did not renew her contract. She says she then obtained a position at Worley Parsons where she was to act as a site administrator in Port Hedland. However she says Worley Parsons received a telephone call advising them of Ms Y's history and as result of this she was dismissed.
Conclusions
(a) Extent of injuries 45 I am satisfied on the evidence presented that Ms Y suffered as result of the alleged offence approximately 13 stab wounds to her upper chest, abdomen and arms causing bilateral pneumothoracic, surgical emphysema and lacerations to the left elbow and forearm. The injuries she received were very serious as evidenced by the nature of the treatment she received at both Fremantle Hospital and Royal Perth Hospital. She made a good recovery from her physical injuries except some minor scarring which causes her embarrassment but she is able to cover this up with clothing. 46 I am also satisfied that Ms Y has suffered mental injuries as result of the alleged offence. This is predictable given the nature of the attack on her. It must have been a very frightening experience and she must have felt that she was about to die. It is likely that anyone faced with such a frightening and life-threatening attack would be traumatised and suffer mental injury. This would be more so for someone who has a history of mental instability as is the case with Ms Y. 47 I conclude the mental injury suffered by Ms Y manifested itself shortly after Ms Y's admission to hospital when she suffered an acute psychosis described earlier in this decision and this led to her being admitted to the Alma Street Centre. It is clear that after her discharge, Ms Y has remained untreated for the mental injuries suffered by her. I am satisfied that this has had a snowballing effect. I accept that she has self-medicated with alcohol and this has led to unstable behaviour which led her mother to complain to both the Fremantle Hospital and Dr Mander. As result of the intervention of Ms Y's mother, Dr Mander ceased prescribing dexamphetamine for Ms Y's diagnosed ADHD and this (Page 17)
has further exacerbated the untreated mental injury. I am satisfied that the alleged offence has materially contributed to Ms Y's current mental state. However in view of Ms Y's history of mental health issues before 2 April 2011 there existed a possibility that she would have lapsed into a similar condition even if the alleged offence had not been committed. When Ms Y was referred to Dr Mander in March 2011 (just one month before the alleged offence) Dr Carter, Ms Y's previous treating psychiatrist, complained that Ms Y was misusing her prescribed dexamphetamine by suppling it to others and had lost her employment in October 2010. 48 I conclude that although there existed a possibility without the alleged offence that Ms Y would have had her dexamphetamine prescription terminated, I believe it is significant that Ms Y had despite her troubled background and history of erratic behaviour, maintained employment over a very lengthy period of time. 49 Unfortunately I do not have evidence before me of an up-to-date psychiatric assessment or a psychological assessment to describe Ms Y's current symptoms since the alleged offence. Nor do I have an expert opinion as to the extent Ms Y's current symptoms are attributable to the alleged offence. This makes the task of assessing the appropriate award very difficult. However, taking into account the likelihood of the pre-existing condition may have progressed and doing the best I can, I conclude that Ms Y should be awarded $20,000 for the equivalent to general damages for the injuries suffered as a consequence of the alleged offence.
(b) Loss of earning capacity (past and future) 50 As mentioned earlier in this decision at the time of the alleged offence Ms Y was in receipt of a salary of $1,259.90 plus superannuation per fortnight which is the equivalent to $32,757.40 plus superannuation per annum. 51 The assessment of the loss of earning capacity is complicated again by Ms Y's pre-existing condition and the problems she was experiencing at the time of the alleged offence as identified by Dr Carter. 52 There was a reasonable probability that due to Ms Y's pre-existing condition she may have lost her employment in any event with Worley Parsons. Again the position is somewhat clouded without an expert psychiatric or psychological report providing assessment of Ms Y's loss of earning capacity as a result of the attack on 2 April 2011 and the prognosis. (Page 18)
53 I also take into account that Ms Y has been diagnosed with cancer. 54 I believe that a person with a normal mental condition might have expected to take at least 12 months off work to recover from an attack such as Ms Y's. In fact I think it is reasonable to conclude that the effect of such an attack may be long-term. However any assessment of entitlement for loss of earning capacity must take into account Ms Y's pre-existing condition and also the further complication of her recently diagnosed cancer. I conclude that Ms Y suffered a loss of earning capacity as a result of the mental injuries suffered by her in consequence of the alleged offence. I conclude that it is appropriate in this case to award a global amount for past and future loss. I consider an appropriate award is $30,000.
Other loss 55 Although Ms Y lodged in support of her claim various medical accounts (which included an account from Ms Mandy Vidovic and also an account for her cancer biopsy and other testing), I conclude that the only account lodged which is related to the alleged offence was an outstanding ambulance account of $389.50.
Summary of award 56 For the reasons set out above, I conclude that the appeal should be allowed and the following amounts awarded: |