Kent v Ellement
[2014] WADC 149
•24 OCTOBER 2014
KENT -v- ELLEMENT [2014] WADC 149
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 149 | |
| Case No: | APP:99/2013 | 11 AUGUST 2014 | |
| Coram: | FENBURY DCJ | 24/10/14 | |
| PERTH | |||
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Order for compensation in favour of the appellant in the sum of $57,758.90 | ||
| PDF Version |
| Parties: | PAMELA HELEN KENT PAUL JAMES ELLEMENT |
Catchwords: | Criminal Injuries Compensation Assessment Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
PAUL JAMES ELLEMENT
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : R GUTHRIE
Citation : [2014] WACIC 3
Catchwords:
Criminal Injuries Compensation - Assessment - Turns on own facts
Legislation:
Nil
Result:
Order for compensation in favour of the appellant in the sum of $57,758.90
Representation:
Counsel:
Appellant : Mr R D McCabe
Respondent : No appearance
Amicus Curiae : Mr J Winton appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Maurice Blackburn
Respondent : Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
1 FENBURY DCJ: The appellant, Mrs Kent, injured her left knee when she collapsed on the floor of her garage on 16 October 2010. This event occurred when she discovered her house had been ransacked and burgled whilst she was absent interstate. She had been dealing with a family medical emergency, and had arrived home just after midnight from the airport.
2 Mrs Kent's left knee had been totally replaced with a metal prosthesis in 2008, some two years previously. The knee was twisted in the fall and Mrs Kent alleges that the prosthesis was compromised such that it needed surgical revision.
3 A claim for damages for criminal injuries compensation was brought by Mrs Kent and accepted and assessed at $18,637.98.
4 Mrs Kent complains that this assessment is inadequate and she has lodged an appeal thereby seeking an increase in the compensation award which was made on 6 November 2013.
Background
5 There is a relevant background to the case. Some matters are set out in Mrs Kent's affidavit sworn 26 May 2014. Mrs Kent was 67 years of age at the relevant time. Two months prior to the burglary in early August 2010, she had moved to Perth from New South Wales after having experienced a two week holiday in Western Australia. She had no family or friends in Perth but had recently 'successfully beaten cancer and survived meningitis' and she felt happy and excited about settling in a new place. She had previously worked as a journalist for many years and had retired just before she moved to Perth.
6 Mrs Kent was renting the house where she was residing and in late August 2010 a large quantity of her possessions arrived. She spent a number of days unpacking.
7 In October 2010, at short notice, Mrs Kent needed to return to New South Wales for a family medical crisis.
The burglary
8 As I have mentioned Mrs Kent returned home from New South Wales about midnight on 16 October and as she put it in her affidavit:
17. When I returned home I pressed my garage door remote and it failed to open. I was … .
18. … I was able to open my garage door by pushing it open.
19. When I pushed it open, I first thought that I must have opened the wrong garage because it was completely empty.
20. I then realised it was my garage but that my car and disability scooter was missing.
21. When I realised that my car and scooter had been stolen, I felt shocked and fell to the ground twisting and landing on my left knee.
22. Whilst I was on the ground I noticed that the boxes that I had stacked neatly in my garage before I left for New South Wales had been thrown in the floor [sic].
23. When I reached out for something that I could pull myself up on, I felt a large knife and I became even more frightened, thinking I might die.
9 Mrs Kent eventually was able to pull herself up and enter the home and turn on lights. The house was in a filthy condition. People had been squatting there and using drugs.
10 There was some dispute about the value of the property stolen from Mrs Kent's house but, including the motor vehicle, the total accepted by the sentencing judge was approximately $80,000.
11 Very little of this was ever recovered.
12 Amongst the property stolen was Mrs Kent's motor vehicle, her disability scooter, jewellery and personal possessions, washing machine and her CPAP machine which she used to regulate her breathing when sleeping.
Mrs Kent's reaction
13 Mrs Kent said in her affidavit that she felt pain in her left shoulder, arm and left knee after the fall but she thought she would get over these in time. She spent the weekend resting and made use of an eye pack and Panadeine Forte. Unsurprisingly in my view, Mrs Kent said that she felt very stressed after the burglary. She had some counselling sessions which assisted. In her affidavit she put it as follows:
46. I had suffered depression before the incident which came on after my father passed away in 1987.
47. This had been managed through medication and counselling and I was able to manage a lot better before the burglary.
48. My doctor also gave me an increased dose of Efexor to help with my anxiety. I had been prescribed Efexor prior to the burglary to assist with my lower back pain.
49. In 2011 I was still suffering from pain in my left shoulder, and my doctor referred me Phillip Finch.
50. When I saw Dr Finch, he told me that the reason I was feeling sore in my left shoulder and upper left arm is because of damage he noted in my neck.
51. Dr Finch treated me with nerve blocks and pain killer prescriptions. The treatment I received settled my symptoms and in May 2013 I had a sudden onset of pain in my neck and was admitted to Armadale Hospital.
52. Following my fall in October 2010 I continued to suffer problems in my left knee.
53. I had a successful knee replacement in 2008 which had really improved my left knee.
54. After I fell, my left knee seemed to 'give way' when it was under strain. It was not doing this prior to the fall.
55. After my left knee would 'give way' it was followed with a lot of pain and swelling which would last a while before I would then be able to walk for my left knee to only 'give way' again.
56. I did have a scooter before it was stolen and damaged. I used the scooter primarily for use of walking a number of dogs at the local animal shelter where I volunteered. I otherwise did not require the scooter to get around, and I was quite mobile given my age and other health conditions.
57. I complained about my symptoms in my left knee to my doctor.
…
60. Dr Khan eventually performed a revision of my left knee replacement in November 2013 at Sir Charles Gairdner Hospital.
61. I am still recovering from that operation.
62. Physiotherapy and rehabilitation has stopped.
63. I am still using a walking stick, which I wasn't using before the fall.
64. I am constantly restricted in daily outings. Using stairs and stepping up and down high kerbing causes me pain.
65. In 2012 I was still suffering from symptoms of stress and anxiety. I was then referred for further counselling.
14 Mrs Kent then dealt with emotional and mental effects following the injury as follows:
68. I have suffered and managed the effects of depression since my father passed away in 1987.
69. I have had some difficulties in my personal and family life, including:
69.1 Personal health difficulties, including back pain, cancer, meningitis, reflux, sleep apnoea, knee replacement for my left knee.
69.2 Family issues including my father's death and my daughter having been in an abusive relationship in the past.
70. Despite my situation, prior to my injuries, I had been full of hope and eagerness to see out my retirement in Western Australia and to travel and see other parts of Australia.
71. After the burglary and my injuries, I was for some time so filled with fear I could not leave my home. I am still afraid when I leave my house.
Mrs Kent's case
15 Mrs Kent's primary complaint in these proceedings is that the award made by the learned assessor for her injuries and loss was inadequate because he found her need for a revision of her knee replacement was not due to the fall on 16 October 2010, the date she discovered the burglary. Mrs Kent also argues that the learned assessor erred in discounting the award for mental and nervous shock due to her pre-existing mental health.
16 Mrs Kent did not complain immediately following the burglary of symptoms in her knee. She obviously had a variety of other concerns including the profound emotional and mental affect that the burglary had upon her. However, there is mention of issues relating to her knee in medical notes made some 7 1/2 months after the burglary, being a reference in the consultation notes of Dr Dovida Hicky on Wednesday, 30 May 2011 (page 53 of the appellant's book) to the effect:
Will need total knee replacement. Has to be done publically as no longer covered privately. (multiple typographical errors) … require victim impact statement, especially re: the knee. Says this has all stemmed from a fall at the time of the burglary.
17 There is further mention in notes of Dr Hicky on 16 March 2012 where there are more detailed complaints recorded and referral to Professor Khan is mentioned (appellant's book page 49). Although these notes were made about 15 months after the burglary, they are consistent with Mrs Kent's case and particularly the earlier complaint. The time lapse does not seem to me to prevent a relevant connection being made. In effect she says the effects of her fall on her knee were masked by other issues. I do not see any reason to reject this.
18 The report of Professor Riaz J K Khan, orthopaedic surgeon in the Department of Orthopaedic Surgery at Sir Charles Gardiner Hospital, dated 27 May 2014 and reproduced at page 12 of the appellant's book, was not a document that was made available to the learned assessor. The only document that was available was a perfunctory three line report dated 10 September 2013 reproduced at page 25.
19 Professor Khan's 2014 report is worthy of citation because of what is said about Mrs Kent's knee:
She had a left knee replacement implant in 2009 (query 2008?) in New South Wales. She made an uneventful recovery. Following the burglary in October 2010 she fell, twisting her left knee. As a consequence of this, she developed loosening of the tibial component. Once infection was excluded, we revised the total knee replacement in November 2013. She is now 6 months into her revised knee and has the typical symptoms of pain and swelling that go with it. This is gradually improving. I would not expect her symptoms to reach maximum improvement from 12 to 18 months from surgery. …. Pam's main complaints are that of pain and swelling of the left knee today. This is impacting on her quality of life and her ability to look after herself. Specifically:
1.1 She has lost her independence
1.2 She has had to have her furniture and bed modified to make it easier for her to get in and out of a chair and bed
1.3 Steps at the back of her house have had to replaced by a ramp to enable her to access her home
1.4 When out and about she has had to follow the disabled pathways to get into buildings which is distressing for her. She is unable to cope well with stairs.
1.5 She has to rely on help with regards to shopping and cleaning.
1.6 She has been unable to participate in her hobby of landscape photography.
1.7 Significant pain in her knee at night which is now exacerbating her right trochanteric bursitis and arthritic right knee.
1.8 Driving any distance exacerbates her symptoms. Her limit is about 30 kilometres.
…
I believe that Pam's symptoms are entirely attributable to the collapse on the garage floor.
I believe that the knee revision arose directly as a result of this incident.
…
Anybody who has had a knee revision is likely to require a re-revision in 10 years' time. The approximate cost would be $50,000. Mrs Kent will also require ongoing physiotherapy. I recommend once to twice a week for 3 to 6 months.
...
I would expect some improvement in her symptoms over the next 12 months but that does not detract from the fact that the revision procedure was undertaken directly as a result, in my opinion, of the incident.
20 Putting aside the medical evidence in support of Mrs Kent's claim, I think there is some importance to be attached to the chronology and circumstances of this matter. Mrs Kent had a total knee replacement in 2008. There was no evidence on the issue of how long a total knee replacement should last before it needs to be revised. Professor Khan said in his report that a revision of a total knee replacement should last for 10 years.
21 It is uncontroversial that Mrs Kent's total knee replacement was revised by Professor Khan, as he has stated in his report, in November 2013. This was because a loosening of the tibial component of the knee replacement had been caused by the accident.
22 Although there is evidence from Professor Khan that a revision of Mrs Kent's total knee replacement was necessary as a result of her fall on discovering the burglary, and that it was performed in 2013, there is no evidence as to what the procedure entailed.
23 It is common knowledge, I think, that a total knee replacement involves the removal of the knee joint and implantation of a manmade prosthesis. To my mind, an issue with a total knee replacement being 'loose', 'giving way', and the like, such as requires 'revision' is suggestive of either the leg bones, into which the prosthesis is placed – femur, tibia, etc, somehow being compromised and no longer 'holding' the prosthesis, or some failure in the moving parts or joint of the prosthesis itself.
24 I can infer, I think, that either way, whether it is bone failure or prosthesis failure, 'revision' of the total knee replacement involves at least removal of the prosthesis, the effecting of necessary repairs of whatever is required, and replacement of the same or a new prosthesis.
25 The court is entitled to take the view, I think, even in the absence of direct evidence, that the revision of Mrs Kent's total knee replacement was a very significant surgical procedure.
26 Mrs Kent had had pre-incident trouble with her knee, a total replacement, and had a future whereby it would be expected, given her age, that she would have had at least one revision. There was no evidence relating to the life span of a total knee replacement. Professor Khan said that the revision of a total knee replacement might be required to be repeated after 10 years. There was no evidence concerning the lifespan of a total knee replacement as at the time of the first replacement.
27 In spite of that, in my view, the following observations are reasonably made. Mrs Kent had her total knee replacement in about 2008. She was 67 years. Her knee was injured as a result of a criminal offence in 2010 when she was 69. Her total knee replacement was revised in 2013 when she was 72 years of age. Given Mrs Kent's physical abilities as apparent from the materials then I surmise the extent of her activity may well slowly decline as she ages. This would reduce the wear and tear on the knee. I do not think this is a controversial observation.
28 However, it would seem to be to be likely that following her total knee replacement in 2008, given her age of 67, that she was likely to have had to have a revision before the end of her life. She has now had that revision at the age of 72. There is no doubt in my mind that the need for the revision was premature, and she would not have to have had it for several years, at the very least, 10 and probably more, absent the burglary of her house.
29 Mrs Kent's claim, apart from an allowance for the injury, also claims loss in the form of the cost of another revision of her total knee replacement before her life ends.
30 That claim does not seem to me to be unreasonable. The assertion is that given Professor Khan estimates the cost of such a procedure to be $50,000, the accelerated award of a sum, applying the appropriate discount, should be $27,000. Of course Mrs Kent may never need or have a second revision. The sum of $20,000 should be allowed.
31 In my view, Mrs Kent is entitled to compensation for what happened to her knee.
32 The effect of what occurred as a result of the burglary is that the revision was required at least eight years earlier than it would otherwise be expected to be necessary. As a consequence, Mrs Kent has suffered the symptoms outlined at least eight years earlier than she should, and furthermore, considering her age and lifespan, at the end of the day she may have at least one more knee revision than she would otherwise be likely to have required. Thus it is that as a result of the incident, I have no doubt she has a compensable claim for criminal injuries compensation based upon having a revision of her total knee replacement at least eight years before she would have had normally to suffer the procedure.
33 Allowance needs be made for this and in my opinion, an award in the order of $15,000 would be appropriate. An assessment for $15,000 for the fact that she had to have a premature revision of her total knee replacement would be appropriate in all the circumstances.
The assessment for mental and nervous shock
34 Mental and nervous shock is included in the definition of 'injury' in s 3 of the Act.
35 There is no doubt that following her discovery of the fact that she had been burgled, in all of the circumstances of the case, Mrs Kent experienced a very unpleasant shock and reaction. She collapsed on the floor of her garage. Thereafter she, and from relatively early days, she complained of relevant symptoms. In a report dated 18 November 2010, just over four weeks after the incident, Dr Clive Lacey recorded that Mrs Kent was 'now hypervigilant, poor sleep, anxiety symptoms, easily provoked to tears, checking locks repeatedly, losing focus, untrusting of tradesmen who must undertake repairs etc'. Mrs Kent had attended Dr Lacey 'for assistance with management of her depressive and anxiety symptoms'.
36 On 6 December 2010 Dianne Brown, counselling psychologist attached to St John of God Hospital in Fremantle recorded that Mrs Kent
presented with extremely severe level of depressive and anxiety symptoms and severe levels of stress symptoms. She identified chronic grief loss issues including her family of origin. She also has experienced a number of traumatic events including the more recent alleged home burglary.
37 On 24 March 2011 Dianne Brown in a letter to Dr Donna Challinor in Mandurah wrote:
Thank you for your support in enabling Pam to continue to obtain counselling as she works through her presenting psychosocial issues; as they relate to a recent home burglary. Pam initial presentation of extremely severe levels of depressive and anxiety symptoms remained in the same range at her 6th review session however there was a slight reduction within this range in her rating the intensity of her symptoms. Her presenting levels of stress symptoms were severe and these levels reduced to moderate by her 6th review session.
38 In her letter of 15 July 2011 to Dr Challinor, Dianne Brown reports:
Pamela presented with acute symptoms of trauma related to her home being burgled. … Pamela often found it difficult, for one reason or another, to attend regularly … .
During this time I also became aware of Pam's chronic history of problematic issues across her lifespan. I would assess that these insecure attachment and trauma experiences have had a significant effect on her; as observed in her avoidant stress coping style, including her relationships with others. Recent situational stressors related to her family now living in WA are likely to be triggering off Pam's chronic and problematic stress coping behavioural patterns.
I would therefore strongly recommend that Pam be supported in developing and maintaining her self care and relationships from a self responsible approach with longer term counselling support that is easily accessible in her local community … .
39 Dr Christina Chandler, a clinical psychologist (Registrar) at Fremantle Medicare Local wrote a report on 24 August 2012 concerning Mrs Kent, being a letter written to her general practitioner Dr Hickey. Dr Chandler writes:
Pam presented to me with marked symptoms of depression and anxiety. Investigations of her symptoms of anxiety indicate that she is suffering Post Traumatic Stress Disorder in reaction to the burglary of her property. Pam reported the following symptoms indicative of Post Traumatic Stress Disorder:
• Significant difficulty falling asleep.
• Once asleep slight noises wake her.
• Episodes of feeling cut off and disengaged from her environment.
• Flashing memories of the scene she encountered when she returned to her house to discover that it had been burgled.
• When she hears a noise that reminds her of returning to the burgled house (for example the sound of the garage door going up) she experiences tightness in her chest and her bowels will empty.
• When she is reminded of items that have been stolen (for example she might sight a similar item when she is out in public) she reports feeling overwhelmed and unable to cope.
I am concerned regarding the severity of the symptoms with which Pam has presented. The symptoms appear to be substantially impacting on her day to day functioning and her capacity to care for herself. I am of the view that it would be appropriate for her to have a psychiatric assessment at the Alma Street Centre and my suggestion is that her treating GP make a referral for such purposes.
40 On 11 October 2012, Dr Hickey, Mrs Kent's general practitioner, referred her to psychologist Dr John Manners for a medico-legal report. Dr Hickey in notes reported on 23 January 2013 that Mrs Kent had seen Dr Manners on two occasions concerning posttraumatic stress disorder but that his view was that he was unable to assist her. Dr Hickey noted that Mrs Kent remained fearful and upset but that she would accept a referral to Alma Street.
41 Dr Hickey having been asked to provide a report wrote on 20 February 2013 that:
Mrs Kent initially consulted me three weeks following the event and at that time she was very upset and emotional. She also described chest and jaw pain, nausea and tearfulness and poor sleep.
Mrs Kent has on many occasions since the burglary consulted my colleagues or I with complaints of feeling frightened, hypervigilant, poor sleep, tearful, low energy. These symptoms were worsened around the time of the court case relating to the burglary and when she moved back to the Hamilton Hill area from Mandurah.
She has been assessed by 2 psychologist … and they have both advised that she has symptoms suggestive of post traumatic stress disorder.
42 On 25 March 2013 Dr Madalena Jardim da Camara, medical officer with 'Older Adult Mental Health Service' reported a history from Mrs Kent as follows:
She describes feeling sad on most days, as well as tearful. She is anxious most of the time – she thinks about her house being burgled many times and is particularly anxious about it happening again. She is always on edge and loses her temper easily nowadays. Her sleep is particularly an issue. She describes having restless legs when she goes to bed. … and worries about not being able to hear intruders over the noise of the CPAP machine. Her poor sleep results in her being tired most of the day and needing frequent naps.
On examination she was a neatly dressed elderly female. She was co-operative and pleasant. Her mood was low and she was tearful during the consultation. She had no thought disorder. She denied any delusions or hallucinations, but she did mention that she was more suspicious about strangers. She had good insight into her symptoms. ...
There were no acute risks identified.
43 The final piece of evidence in support of Mrs Kent's claim relates to the views of friends, Brendon and Carol Filbey. They report on 27 August 2013 that:
We have seen the effect this burglary has had on Mrs Kent as she is always apprehensive of garage doors open as it seems to bring back the scene she saw when opening her own garage door on her return from Sydney that night to find her home had been invaded. She refuses invitations to go out at night-time and will only visit us during daylight hours, making sure she leaves in plenty of time to get home before dark so she is safely inside with doors all locked securely. …
We have no doubt about the emotional problems through loss of sentimental items and family inherited jewellery, father's war medals that were handed down to grandson have played a large part in Pam's apparent reluctance to trust many people and to enjoy the latter part of her life here in Western Australia.
44 Given the circumstances that Mrs Kent did have pre-existing depression issues, it is unsurprising she has had the reaction to the burglary that she claims. She was obviously very vulnerable psychologically before the event.
45 On the one hand this factor needs to be brought into consideration when trying to assess a reasonable allowance for mental and nervous shock and might require a reduction of the assessment. On the other hand of course she is to be taken 'as she is found'.
46 It does not seem that the post-traumatic stress disorder she allegedly has is severe and likely to be long lasting.
47 In my view an award of $18,000, which was the award reached by the assessor, would be a fair allowance.
48 There is also a claim for loss in the form of medical expenses paid for by Mrs Kent over and above the allowance that she received through medical benefits in the sum of $4,758.90. I would allow this sum.
49 I therefore asses the award as follows:
Compensation for the injury relating to the leg
including pre and post-operative pain and suffering $15,000.00
Loss in the form of future medical expenses
for knee revision $20,000.00
Award for mental and nervous shock $18,000.00
Medical expenses $ 4,758.90
Total $57,758.90
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