KBR v ADM - [2018] WADC 120

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KBR -v- ADM [2018] WADC 120
CORAM:   GILLAN DCJ
HEARD:   6 AUGUST 2018
DELIVERED          :   28 SEPTEMBER 2018
FILE NO/S:   APP 79 of 2017
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   KBR
Appellant
AND
ADM
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION
Coram:   H L PORTER
File Number             :   CI 953 of 2015

Catchwords:

Proved offence - Separate offence - Contribution - Sexual penetration of a child aged between 13 and 16 years - Common assault - Post-traumatic stress disorder - Sexually transmitted disease

Legislation:

Criminal Injuries Compensation Act 2003, s 3, s, 12, s, 19, s 39

Result:

Appeal allowed
Compensation increased

Representation:

Counsel:

Appellant	:	Dr C Edwards
Respondent	:	No appearance
Amicus Curiae	:	Ms E Negus appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Delta Legal
Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

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

A v D (1994) 11 WAR 481
Asjes v Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 4169, 3 September 1994)
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
B v W (1989) 6 SR (WA) 79
Clayton v Aust (1993) 9 WAR 364
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Gullelo v Halloran [2008] WADC 145
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
JLW v DRH [2004] WADC 214
JMD v GJH [2012] WADC 124
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
MW v CW [2001] WADC 234
R v Forsythe (1972) 2 NSWLR 951
Re McHenry [2014] WADC 92
Re RT [2006] WADC 185
RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
S v Neumann (1995) 14 WAR 452
TAW v NJS [2011] WADC 187
VMH (by her next friend the Public Trustee) v JAB [2014] WADC 47

GILLAN DCJ:

By an application made out of time dated 25 August 2015 the appellant sought compensation for injuries and losses she had suffered. The application to the criminal injuries compensation assessor (the assessor), made pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (the Act), relied upon:
1.The conviction of the respondent on 30 October 2012 in the District Court in Perth that on 12 February 2010 at Orelia, the respondent sexually penetrated the appellant, a child then aged between 13 and 16 years (the proved offence); and
2.An alleged but unproved common assault by the respondent on her between 1 July and 31 August 2011 at Hamilton Hill (the unproved offence).
Jurisdiction to make a compensation order in respect to the unproved offence was open to the assessor and is open to this court, because the respondent was charged with common assault and when the charge came on for hearing the prosecutor offered no evidence in the Magistrates Court. The charge was dismissed for want of prosecution.
By a compensation award dated 2 August 2017 the assessor awarded the appellant the sum of $23,705 compensation (the award) for the injuries and losses the assessor was satisfied the appellant had suffered.
An interim payment of the costs of obtaining an expert psychiatric report had been made in August and December 2016 in the sum of $1,540 and the balance of the award was broken down as to:
1.$21,000 of which $20,000 was apportioned to the proved offence and $1,000 for the unproved common assault; and
2.For future treatment expenses, the further maximum sum of $1,165 on those expenses being incurred.
There were no written reasons for the award.[1]
[1] A letter dated 2 August 2017 from the assessor to the appellant’s solicitor accompanied the award of compensation but that letter was not a substantive set of reasons and only addressed whether the assessor was satisfied that the appellant had contracted STDs as a consequence of the offence.
The appellant appeals to this court to increase the award on the basis that the assessor had:
1.Failed to give sufficient weight to the psychiatric evidence submitted by the appellant;
2.Erred by speculating as to the cause of the appellant's physical injuries; and
3.Erred in failing to disclose the evidentiary basis for the finding that the respondent did not cause physical injury to the appellant.
The appellant seeks to be paid the maximum award of compensation which her counsel submitted was $75,000.
The respondent did not appear or oppose the appeal. I did have the benefit of submissions by the amicus curiae. The amicus curiae submitted that because the proved offence and the unproved offence were at a different time and were unrelated, the maximum award of compensation was $75,000 for each offence.
The amicus curiae also submitted, and I accept it is the case, that given the matter was before me as a hearing de novo that I should consider afresh:
1.Whether the court should permit the application to be brought out of time;
2.Whether an award should be made; and
3.If I considered that an award should be made, what was the appropriate quantum? With respect to this last question, there are two distinct matters which the amicus curiae drew to the court's attention and they were:
(a)the extent to which the appellant's claimed injuries were caused by the offences; and
(b)what would be an appropriate amount to be apportioned for the payment of future medical treatment expenses in relation to the appellant's claimed injuries.
The amicus curiae also raised a matter that does not appear to have been live before the assessor. That is: did the fact that the appellant had smoked marijuana with the respondent prior to the sexual assault mean she was engaged in a separate offence, enlivening the operation of s 39 of the Act, so that no award of compensation could be made?

Nature of the appeal and the law applicable to this matter

An appeal under the Act is a hearing de novo: Gullelo v Halloran [2008] WADC 145, 5.
On the hearing the court may confirm, vary or reverse the assessor's decision in whole or in part: s 56(2)(b) of the Act. The court is required to consider again whether to permit the application out of time: Hinchcliffe v Hinchcliffe [2010] WADC 78, 24; Re McHenry [2014] WADC 92 [12].
As the hearing is de novo, the application therefore falls to be determined without fetter by the assessor's decision. Nevertheless it is appropriate to have regard to the assessment made by the learned assessor as a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63 [13].
In considering whether an extension of time should be granted it needs to be kept in mind that the time limit set out in the Act is a substantive provision of the Act and not merely a procedural time limit imposed by the rules of court. Accordingly, the time limit ought not be treated with the same indulgence that might be given to merely procedural rules. The appellant must make out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time: Clayton v Aust (1993) 9 WAR 364, 366; Re RT [2006] WADC 185, 31 ‑ 32; Re McHenry [17].
The fact that a refusal of the application to extend time would result in the appellant never being able to litigate a claim is not, by itself, enough to warrant an extension of time. The fact that an appellant for compensation was unaware of his or her right to make a claim for compensation is not, by itself, a sufficient basis upon which to grant an extension of time: Re McHenry [39].
A non‑exhaustive list of factors that might be relevant to the exercise of the court's discretion under s 9(2) of the Act include:
(a)the history and background to the proposed application;
(b)the length of the delay;
(c)the reasons for the delay;
(d)the nature of the proposed application;
(e)the consequences for the parties of the grant or refusal of an extension in time, including the extent of any prejudice to the respondent;
(f)the prospects of the compensation application succeeding; and
(g)whether injustice will be suffered if an extension of time is refused.
The maximum compensation available for this application is $75,000 for each offence: s 31(1), s 32, s 33 or s 34 of the Act.
Section 39 of the Act operates so that if a person is injured as the consequence of the commission of an offence, but the injury was suffered when the person themselves was committing a separate offence, a compensation award cannot be made in favour of the person in respect to that injury.
There is no requirement in s 39 of the Act that the disentitling offence be causally connected to the offence that causes the appellant's injuries. All that is required is that there is a sufficient temporal connection. Whether there is a sufficient temporal connection is a question of fact and degree: Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29.
Where there is a clear hiatus between relevant events constituting the offences, s 39 will not apply to preclude the making of a compensation order: Schoombee; Hogben v Darcy.
With respect to the assessment of compensation, the general principles (limited to those relevant on this appeal), are that:
1.The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463;
2.In fixing the appropriate amount of compensation it is correct to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of injury and loss in the Act and subject also to the jurisdictional limit imposed by the Act: M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992) (Scott J); RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974) (Burt J).
3.In assessing the amount of compensation the award relates solely to the injuries by the appellant as a consequence of the commission of the offence. The award is not a punishment of the offender or an expression of sympathy for any victim: B v W (1989) 6 SR (WA) 79, 89; R v Forsythe (1972) 2 NSWLR 951, 953.
4.Other awards of compensation or damages for personal injuries are of limited utility in assessing an appropriate amount: Asjes v Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 4169, 3 September 1994) (Commissioner Nisbet); TAW v NJS [2011] WADC 187.
5.Bodily harm and mental and nervous shock are within the definitions of injury attracting compensation: s 12(1), s 12(3) of the Act.
6.There can be a compensable claim for mental and nervous shock where the events in question comprehensively impact on the mind or nervous system. There must be more than a mere emotional reaction and there must be something of an injuring character such that it can be described, in both the legal and common parlance, as an injury. The term includes distress, horror, disgust and other similar adverse mental reactions but excludes mere fright, humiliation or anguish: Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) (Burt CJ); S v Neumann (469); M v J and J v J.
There are specific heads of loss defined in s 6(2) of the Act to include:
(a)... expenses actually incurred by or on behalf of the victim –
(1)arise directly from; or
(2)that arise in obtaining any report from a health professional or a counsellor in relation to, the injuries suffered by the victim; or
(b)expenses that are likely to be recently incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injuries suffered by the victim; or
(c)loss of earnings suffered by the victim as a direct consequence of the injuries suffered by the victim; or
(d)any loss arising from any damage caused as a direct consequence of the commission of the offence and to any personal item that was being worn by the victim when he or she suffered injury. ...
Loss of earnings in s 6(2)(a) of the Act encompasses a loss of earning capacity as a result of the injuries suffered by the victim in addition to past loss of earnings: A v D (1994) 11 WAR 481 487, 495. Where there is a loss of earning capacity proven the damages assessed are essentially a matter of judgment and often cannot be proven by precise figures. Where the evidence precludes mathematical assessment the court has to make the best estimate it can, but that estimate is still an assessment of probable future earning capacity: A v D (489, 495 ‑ 496); MW v CW [2001] WADC 234; JLW v DRH [2004] WADC 214.
It is not necessary for the offences which are the subject of the application to be the sole cause of any injury: Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, 673; S v Neumann.

Circumstances of the offence

The appellant was born on 13 May 1995. In February 2010, at the time of the proved offence, the appellant was 14 years of age.
The appellant had left her mother's home and moved to live with a friend's family in Bull Creek. She was not attending school at the time.
On the afternoon of Friday 12 February 2010 the appellant, together with her friend, went by train from Bull Creek to Wellard where they first met with another girl. That girl got a phone call and told the appellant and her friend that they were all invited to the house of a man that she knew and with whom she had used to live. There was also talk of one of the girls wanting to meet her boyfriend later in the afternoon, at about 5.00 pm.
The three of them then went on the train to Rockingham and then caught a bus to a bus stop in Orelia.
The respondent and his puppy met them at the bus stop. The three girls went with the respondent to his house arriving at about 12 or 1 o'clock in the afternoon. They first went into the lounge room together and the appellant started playing with the puppy.
The respondent and the other two girls went into the kitchen and prepared alcoholic drinks. They then came back into the lounge room and started drinking. About 45 minutes later one of the other girls suggested that they all play a drinking game, which they did.
The appellant was, to use her own words, a 'beginner to drink'. Once the drinking game began, she had a number of alcoholic drinks and quickly became very intoxicated.
Two of the other people there were smoking marijuana from a bucket bong.
The other two girls left to go and see the boyfriend of one of them, leaving the appellant who was, at that stage, intoxicated. The appellant remained at the house on the couch playing with the respondent's puppy. It is not clear what time that was but because of the earlier discussions, I find it is likely it was before 5.00 pm.
The respondent went about sweeping the floor, cleaning the lounge room and the kitchen before walking back into the lounge room and asking the appellant if she would like some cannabis. The appellant said 'yes' and had two cones of marijuana over a short period of a few minutes.
As a consequence of smoking the cannabis on top of her alcohol consumption, the appellant became unwell and ran towards the toilet vomiting. She vomited on the floor on the way to the toilet and got some vomit on her top. She entered the toilet, closed the door, locked it and sat on the floor. Her evidence was that at this time it was still 'a bit sunny outside'.
The appellant vomited in the toilet and then started falling asleep on the toilet floor.
Sometime later the respondent knocked on the door and said, 'You've been in the toilet for an hour. What are you, you doing?' and the appellant responded with words to the effect that she was defecating.
The respondent left and the appellant sat on the toilet and started vomiting on the floor.
Sometime later the respondent came again to the door and said, 'You've been in there for almost two hours now'.
The appellant's evidence was that she was not conscious during part of the time that she was in the toilet and she only knew the amount of time she had been in there because of what the respondent had said to her.
After he had called her the second time, the appellant came out of the toilet and tried to clean up the floor. By this time night had fallen and it was quite dark outside. The respondent helped her to take her soiled shirt off and moved her towards the shower in the adjacent laundry.
The appellant undressed on her own and got into the shower. She sat on the floor of the shower looking at the tiles for some time lapsing in and out of consciousness but was unable to say how long she was in the shower for.
After a period of time spent cleaning up the vomit in the toilet, the respondent came back into the laundry whereupon the appellant got out of the shower and put a towel over herself to hide her nakedness.
The appellant was still feeling unwell, so the respondent helped her to his room where she lay on the bed wrapped in the towel. The respondent again left to continue cleaning up the vomit.
The appellant was still intoxicated and described herself at the trial as lying on the bed and feeling 'paralysed'.
At some point in time the respondent came back to the room and lay next to the appellant on the bed, stroking her hair. He then inserted his fingers into her vagina and, after doing that, he took his fingers out and inserted his penis into her vagina.
The appellant started to cry and when she could finally speak, she told him to get away from her. A phone rang elsewhere in the house and the respondent got up and left the room to answer his phone.
The respondent brought his phone back into the room and gave it to appellant and again left the room while she spoke to her friend. He came back into the room with her clothes, but not her underwear, which he threw at her.
Sometime later, the appellant's two friends, along with some other young people, arrived back at the house and the appellant felt safe enough to leave the bedroom. A short time after she left the room and the house, the appellant made a disclosure to one of those people that she thought the respondent had raped her. The appellant did not enter the house again.
In July and August the following year, 2011, the appellant was living with her uncle in Coolbellup. On a day unknown she had to travel to the Kwinana Hub Shopping Centre with respect to an employment prospect.
The appellant was getting on a bus near Coolbellup to go to the Kwinana Hub, when the respondent got off the bus. The respondent did not say anything to her at that stage, he just looked at her and the appellant got onto the bus.
When the appellant got off the bus, however, she realised that the respondent was walking some 10 or 15 m behind her. The appellant attended her appointment which went for 20 to 30 minutes and while she was in that appointment she noticed that the respondent was at the dry cleaner's nearby.
After the appointment the appellant walked back to the bus stop and caught the bus to the Hamilton Hill Memorial bus stop.
The appellant got off the bus in Hamilton Hill and was crossing the road to get to another bus stop when she heard the sound of someone running up behind her. That person, who was the respondent, hit her from behind on her head. She fell to the ground.
She knew it was the respondent because she looked up to see him running away. He ran back to a white ute parked behind the bus and got into the front passenger seat. The appellant did not see who was driving the ute. The ute was then driven away.

After the encounter with the respondent in Hamilton Hill the appellant then felt strong enough to report both the sexual assault and the common assault to the police.

Should an extension of time be granted?

In support of the criminal injuries compensation application, the appellant made a statement by which she confirmed that she was the victim of a sexual assault by the respondent and that as a result of that she suffered, and continued to suffer, extreme mental and emotional distress, fear and psychological trauma. Her distress was exacerbated by the common assault.
In support of her request for an extension of time, the submissions by her counsel were to the effect that:
1.The offence occurred while the appellant was a legal infant and the time since the appellant turned 18 was within the three year limitation period;
2.The offender was convicted in relation to the proved offence and this removed any evidentiary difficulties associated with the passage of time;
3.The nature and extent of the appellant's injuries had not, until more recently, been fully determined. The appellant's injuries were primarily psychological and psychiatric in nature and the extent of them was not able to be properly determined prior to the obtaining of expert medical opinion;
4.The seriousness of the offending inflicted upon the appellant and the need to ensure that child victims of sexual abuse are not excluded from compensation, required greater leniency on the part of the assessor; and
5.Finally, the appellant was a person of limited means and required significant time to explore alternative means of funding a necessary psychiatric report prior to making any application.
In support of her appeal, the appellant swore an affidavit on 20 December 2017 in which the appellant gave evidence that after May 2010 she was receiving treatment for anxiety and depression from her general practitioner and by February 2012 her depression and anxiety had become so bad that she is unable to leave the house even for medical appointments. This evidence is supported by a referral to the Rockingham Kwinana Mental Health Service by the appellant's general practitioner dated 6 February 2012: Annexure 'KBR-9'.
As at February 2012 the appellant was 16 years of age. The referral notes record that the appellant was suffering from severe anxiety. The appellant was then a suicide risk, and had tried to cut her wrists and legs, her anxiety levels were preventing her from doing anything including ordinary activities of daily living and she was missing her appointments.
In October 2012, the respondent was convicted at trial of the proved offence. The appellant gave evidence at trial. She was then 17 years of age.
After trial, the appellant maintained contact with the Rockingham Kwinana Mental Health Service. In February 2014, when she was 18 years of age, notes of her attendance on the service: Annexure 'KBR‑10', record that the appellant was still significantly depressed, she had quit her job due to anxiety and was drinking too much. She is recorded to have had a suicidal intent after the sexual assault, but, while she was not then suicidal or self-harming the appellant remained unable to attend to all of her activities of daily living.
There was no opposition to any extension of time before the assessor or in this court.
While I note that the evidence filed on behalf of the appellant is less than fulsome as to when and how the appellant became aware of her right to claim criminal injuries compensation, in all of the circumstances, I consider her youth at the time of the proved offence along with the nature of the appellant's injuries to her mental health which I will outline below and which caused a significant withdrawal from society, provide a sufficient reason why the court should exercise its discretion to extend time.

Is s 39 a bar to any recovery?

Section 6(2) of the Misuse of Drugs Act 1981 (WA) (MDA) provides that a person who uses a prohibited drug commits a simple offence.
From the appellant's sworn evidence, at trial the respondent offered her cannabis while she was in the lounge room of the respondent's home to which she said 'Yes' and had two cones. I am therefore satisfied that the appellant's conduct constituted an offence against s 6(2) of the MDA.
In this case, however, the consumption of the cannabis preceded the sexual assault by a significant period. As far as can be ascertained from the appellant's evidence outlined above, she arrived at the respondent's house at 12.00 noon or 1.00 pm, the drinking game ensued, the other girls left the house when it was still daylight but probably prior to 5.00 pm.
The appellant then smoked the marijuana after which there was a period of two hours while she was in the toilet. It was quite dark when the appellant emerged from the toilet, she then spent a period of time in the shower and a further period lying on the bed incapacitated before the assault occurred.
In the circumstances where there was more than two hours between the commission of the offence of smoking the marijuana and the sexual assault during which time there was no further consumption of marijuana and during which the appellant, a child, was significantly incapacitated, I find that there was a clear hiatus between the relevant events constituting the offences.
In my view, s 39 does not apply to preclude the making of a compensation award.

Whether a compensation order should be made and what an appropriate amount of compensation would be

The appellant claims two distinct heads of injury with respect to the proved offence. First, the appellant claims that she contracted chlamydia and genital warts (the sexually transmitted diseases (STDs)) as a consequence of the commission of the proved offences against her. It would appear from a letter dated 2 August 2017 from the assessor to the appellant's solicitor that she rejected that the STDs were caused by the proved offence.
Second, the appellant claimed she has suffered mental and nervous shock including immediate trauma and humiliation, post-traumatic stress disorder (PTSD), severe depression and anxiety and damage to her personal relationships. In her application to the assessor and in the hearing before me, the appellant's counsel described her injuries as 'primarily psychological and psychiatric in nature'. The appellant's counsel relies on the evidence of the appellant's engagement with psychiatric services referred to above and the comprehensive report of Dr Chapman with respect to this injury.
It would appear from the award that while the assessor had accepted that the appellant has suffered mental and nervous shock including PTSD, depression and anxiety, she did not make any provision for ongoing treatment as recommended by Dr Chapman in his report.
Turning first to the contraction of the STDs, there was relevant medical evidence before the assessor and the court to the effect that the appellant had a confirmed diagnosis of genital warts (by physical examination) and a positive result for chlamydia as at 29 May 2010, some three months after the respondent committed the proved offences against her on 12 February 2010.
There is no independent evidence to suggest that the appellant had suffered from either of those STDs prior to the commission of the proved offences and her sworn evidence was that she had not ever had any such diseases prior to being diagnosed with the STDs and that she did not have sexual intercourse with anyone after the sexual assault and the diagnosis of the STDs.
There was, however, before the assessor, a document[2] which stated that on the hospital pathology database there were results from an external source dated 15 March 2010 showing screening for STDs which were negative. No copy of the hospital pathology database showing that entry was produced to the assessor or to the court.
[2] A letter dated 22 December 2011 from Dr E Patterson an Emergency Medicine Consultant to WAPOL.
The material before the assessor and the court included:
1.An emergency department record of the appellant's presentation at Rockingham General Hospital on 29 May 2010 complaining of symptoms consistent with STDs and during which the appellant attributed her symptoms to the assault in February 2010. The appellant is recorded as saying that while she had previously had other sexual partners she usually used a condom;
2.Medical reports from Dr Elizabeth Patterson of Rockingham General Hospital dated 30 November 2011 and 22 December 2011 relating to the presentation on 29 May 2010. In those reports, Dr Patterson confirms the appellant was diagnosed with both genital warts and chlamydia. Not unsurprisingly, Dr Patterson stated she was unable to say whether the genital warts were caused by the sexual assault;
3.A report by Dr Hodgson of Kwinana Medical Centre dated 5 January 2012, which recounted that she saw and examined the appellant on 31 May 2010. Dr Hodgson confirmed that the appellant was then suffering from genital warts. Dr Hodgson also tested the appellant for chlamydia and other sexually transmitted diseases. Dr Hodgson recorded that the appellant attributed her genital warts to the proved offence. Dr Hodgson treated the appellant for genital warts and chlamydia and a follow‑up test in June 2010 found the chlamydia had resolved. While the chlamydia infection was consistent with sexual intercourse Dr Hodgson could not say if it was caused by the proved offence;
4.The report of Dr Hodgson also recounted that on about 31 March 2009 the appellant was seen by another doctor at the practice and then had no sign of genital warts. A urine test was negative for chlamydia and gonorrhoea;
5.Western Diagnostic Pathology test results for STD tests performed on samples collected on 3 April 2009, 31 May 2010 and 16 July 2010. The 3 April 2009 test results do not record when the test was ordered but the test was negative for chlamydia and gonorrhoea. The May and June 2010 results related to the period after the proved offence and to the diagnosis and resolution after treatment of chlamydia; and
6.The respondent's medical history. Nothing in that medical history indicated the respondent had ever suffered from genital warts or chlamydia, which are reportable diseases, but neither was there any confirmation that the respondent had been tested for those STDs.
The respondent, in his record of interview with the police on 21 December 2011, denied he had either of the STDs, and said he had regular blood tests.
Further material, filed with my leave by the appellant, satisfied me that chlamydia infections have an incubation period of between one and three weeks, 50% of patients spontaneously clear their infection within one year, estimates of the duration of untreated infection vary substantially and that an infection acquired 3.5 months before diagnosis would not be unusual: Annexures 'CE-2' and 'CE-5' to the Affidavit of Craig Edwards sworn 23 August 2018.
I also note:
1.It was Dr Patterson's opinion that genital warts will interfere with the health and comfort of the appellant and while the infection can recur throughout her life it will not endanger her life;
2.Dr Hodgson's report setting out the prescribed treatment for the appellant's genital warts on 31 May 2010 and for chlamydia on 4 June 2010; and
3.Dr Hodgson's report indicating that the treatment for the chlamydia was successful.
The medical evidence confirming that the appellant had contracted the STDs. Taking into account the appellant's evidence that she had not, prior to February 2010, ever had an STD and had not had sexual intercourse with anyone between the time that she was sexually assaulted by the respondent and May 2010 together with her attribution from May 2010, that the STDs were contracted by the proved offence I find that the appellant did suffer the STDs as a result of the proved offence.
The statement by Dr Patterson that the appellant was tested for STDs on 15 March 2010 and found not to be infected appears to me from the evidence to be incorrect. The appellant was examined in March 2009 and tested in April 2009, the year before the sexual assault, when she did not have an STD which is the likely cause of that error.
Accordingly, I consider that the assessor was in error when she found that the STDs were not caused by the sexual assault. I am prepared to order compensation for the injury of having incurred the STDs as a consequence of the proved offence. Compensation should lie for the appellant having incurred the STDs, the shock and embarrassment of the diagnosis and for the potential of an ongoing recurrence of the genital warts. I will discuss the amount of compensation below.
With respect to the evidence as to the injury involving mental and nervous shock, it is abundantly clear from the documents already referred to by me, the Rockingham Kwinana Mental Health Service client referral information dated 6 February 2012 and the screening notes dated 11 February 2014 together with a report of a Dr Murray Chapman, a clinical psychiatrist at Abbotsford Psychiatry, dated 18 November 2016 that the appellant has suffered a very significant and ongoing mental illness as a consequence of the proved offence.
I am satisfied that while there is some evidence that indicates the appellant may have had a history of mental illness commencing prior to the date of the proved offences, as a consequence of the respondent's offending certain aspects of the appellant's symptoms escalated. In that regard, I take into account Dr Chapman's report and his firm conclusion that the appellant suffered injury in the form of PTSD as a consequence of the proved offence.
The appellant's symptoms are considerable, in particular the proved offence has caused her to drink alcohol heavily, to suffer from PTSD complete with intrusive memories together with physical reactions triggered, inter alia, by going past the respondent's house or even, on occasion, by having a shower. She struggles to go into crowds, including to the shops, has anxiety attacks when at job interviews and when she has found paid employment, has quit after only a month or so because of her anxiety and her self-medication with alcohol.
In addition, the appellant blames herself and her friends for the attack, she feels alienated from others and has difficulty with her most intimate relationships with her romantic partner, feels cut off from others and is persistently unable to experience positive emotions.
The appellant is hypervigilant, has problems in concentration and sleep disturbance.
In total, I am satisfied that the injury to the appellant is longstanding and sustained and that without further treatment she will not make any further progress towards recovery.
In my view, the appellant has suffered serious injury as a result of the proved offence. Those injuries would warrant a larger award of general compensation then allowed by the assessor for both the psychiatric injury and to include an amount for the STDs.
Further, I am satisfied that the appellant suffered additional injury as a consequence of the common assault. She saw the respondent on the bus and was followed by him for some time before being hit on the head from behind. The assault itself did not cause any serious physical injury but has had an additional deleterious effect on her quality of life. The appellant cannot now catch public transport which compounds her social isolation.
In reaching a conclusion as to the amount of any compensation, I have had regard to the fact that the appellant's symptoms have not diminished over time even though it is now some eight years since the assault.
I have reviewed the decisions of the District Court in VMH (by her next friend the Public Trustee) v JAB [2014] WADC 47 and JMD v GJH [2012] WADC 124 which set out the scope of some more recent awards of general damages caused by sexual assault.
In the circumstances, I consider an appropriate award of general compensation for the proved offence with respect to the sexual assault itself, contraction of the STDs, the likelihood of recurrence of the STDs and the injury to the appellant's mental health would be $45,000 ‑ $50,000.
In addition I consider that a separate appropriate award of general compensation with respect to the common assault and the effect that it had on her ability to catch public transport and the inconveniences that brings with it is $5,000.
I have also considered the additional heads of loss which is defined under s 6 of the Act.
The appellant has incurred medical expenses in obtaining Dr Chapman's report and that was paid for by the assessment in the sum of $1,540.
Dr Chapman's opinion is that the appellant is likely to be assisted by further ongoing eye movement and desensitisation and reprocessing therapy (EMDR, or other trauma-orientated psychotherapy) which would, for multiple sessions, perhaps twice weekly over a six month period with a monthly psychiatric report, amount to approximately $9,000. I do not know why the assessor did not make any allowance for this treatment but I am prepared to make allowance it as part of the award on the basis that sum will be subject to the provisions of s 48 of the Act.
Quite reasonably, Dr Chapman does not attempt to distinguish between the treatment of the symptoms which arise from the sexual assault and those that arise from the common assault. Notwithstanding that taking public transport may amount to a 'trigger' for the appellant's anxiety and PTSD, those costs cannot reasonably be split between the two incidents and given that the main injury arises out of the proved offence I would attribute the treatment costs to that award of compensation.
Dr Chapman has also indicated that if the appellant did not respond to the intensive treatment proposed she could access residential rehabilitation in a suitable facility for a month costing as much as $15,000. Given that the need for that treatment is uncertain and there are other components of the award to be taken into account, I will not make an order for that sum to be set aside for further treatment.
I now turn my mind to whether there should be any component of the award for loss of earnings.
I have considered the further material filed with my leave:
1.A further affidavit of the appellant sworn 17 August 2018 by which she gave further evidence:
(a)as to why she could not produce any information relating to her academic record before or since the sexual assault;
(b)about steps she had taken to work predominantly in the food industry including briefly starting a chef apprenticeship;
(c)training she had started since the sexual assault; and
(d)her hopes that if her anxiety can be brought under control that she would like to undertake a Certificate IV in nursing. I understand that would suit her for work in the health care industry; and
2.An affidavit of Craig Edwards sworn 23 August 2018 to which was annexed certain life tables, details of a high level chef's role and Australian Bureau of Statistics material relating to weekly earnings as at February 2018 in the jobs of retail trade, accommodation and food services and in health care and social assistance.
I accept, largely as a consequence of the report of Dr Chapman, that there has been a real loss of the appellant's earning capacity since the sexual assault and, unless she responds well to his suggested treatment, that loss will continue.
Where, as here, the assessment of the loss of earning capacity is being made with respect to a young person who had not prior to the offending been engaged in any form of employment, the assessment of the value of the loss of a chance involves the application of the principles in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 642 ‑ 643. I have a wide discretion, precision is impossible and there is an element of guesswork: Rosniak v Government Insurance Office (1997) 41 NSWLR 608, 627 ‑ 628.

There is no material on which I could determine what career path the appellant may have taken but for the sexual assault, but I am satisfied that she would have been able to earn more than her current income of Centrelink benefits of $560 per fortnight – at least something between $422 being the average wage for female workers in the food services industry and $600 per week being the average wage for female workers in retail industry. Those sums would justify something in the order of at least $10,000 - $12,000 per annum for the last 5 – 6 years since the appellant would, in the usual course of events, have left school.
Given that the amount I am prepared to award for medical expenses already incurred and the range of general compensation I do not think it is necessary for me nor am I able to provide any detailed calculation of the value of the loss of earning capacity.
Accordingly, I am of the view that I will uphold the appeal and award the maximum compensation of $75,000 for the proved offence broken down as:
1.$64,460 general compensation apportioned to the proved offence;
2.$1,540 to the interim payment of the psychiatric report; and
3.Subject to the provisions of s 48 of the Act, the further sum of $9,000 for future treatment expenses.
In addition I award the sum of $5,000 for the unproved offence, the common assault.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CDZ
ASSOCIATE TO JUDGE GILLAN
28 SEPTEMBER 2018