KMM v SG

[2023] WADC 136

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   KMM -v- SG [2023] WADC 136

CORAM:   FLYNN DCJ

HEARD:   3 OCTOBER 2023

DELIVERED          :   17 NOVEMBER 2023

FILE NO/S:   APP 41 of 2022

MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003

BETWEEN:   KMM

First Appellant

AEG

Second Appellant

AND

SG

Respondent

ON APPEAL FROM:

Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Coram:   R GUTHRIE

File Number            :   CIC 3228 of 2018

Catchwords:

Criminal injuries compensation - Extension of time to appeal - Proved offences against partner and child - Alleged offences against partner and child - Alleged offence of failing to protect a child from harm - Mental and nervous shock - Assessment of compensation - Loss of earning capacity - Turns on own facts

Legislation:

Children and Community Services Act 2004 (WA), s 28
Criminal Injuries Compensation Act 2003 (WA), s 101

Result:

Awards varied

Representation:

Counsel:

First Appellant	:	Mr T M Lettenmaier
Second Appellant	:	Mr T M Lettenmaier
Respondent	:	Not applicable
Amicus Curiae	:	Ms J J E Perera appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

First Appellant	:	Tom & Co Legal
Second Appellant	:	Tom & Co Legal
Respondent	:	Havilah Legal (Excused from attendance on the hearing of the appeal)
Amicus Curiae	:	State Solicitor for Western Australia

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

ATB v LA [2021] WADC 64

Bothma v Hildebrand [2019] WADC 92

Campbell v The King [2023] NSWCCA 258

DCN v RJS [2004] WADC 63

ELK v CFB [2009] WADC 90

Fagan v The Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666

Girardi v Chief Assessor of Criminal Injuries Compensation [2005] WADC 194

Hansen v Bolton [2017] WADC 25

Harris v Sycamore [2022] WADC 4

Insight Vacations Pty Ltd v Young [2010] NSWCA 137

Lyle v Soc [2009] WASCA 3

Madigan v XYZ [2022] WADC 123

Martin v Martin [2015] WADC 138

R v Chan-Fook [1994] 1 WLR 689

Re AB [2023] WADC 28

Re Anderson [2022] WADC 97

Re Harvey [2023] WADC 83

Re Hojetzki [2009] WADC 77

Re Homewood [2012] WADC 88

Re RJA [2022] WADC 106

S v Neumann (1995) 14 WAR 452

Scatchard v The Queen (1987) 27 A Crim R 136

Sunderland v Curnack [2002] WASC 158

TAW v NJS [2011] WADC 187

Teubner v Humble [1963] HCA 11; (1963) CLR 491

Ward v Davey [2023] WADC 78

FLYNN DCJ:

Introduction

1. SG and KMM married in 2003.  They separated in November 2015.  They have three children: AEG, born in 2004, TBG born in 2006 and ANG born in 2010. 

2. On five occasions between 1 January 2014 and 10 November 2015, when AEG was aged 10, SG unlawfully assaulted her (AEG Proven Assault Offences).  On 4 December 2015, SG committed offences of breach of protective bail conditions and breach of a violence restraining order; the victim of each offence was KMM (KMM Proven Breach Offences). 

3. On 7 December 2016, SG was convicted in the Magistrates Court, on his pleas of guilty, of the AEG Proven Assault Offences and of the KMM Proven Breach Offences.[1]  He was sentenced to a community based order for a period of six months. 

   [1] Assessor's Papers (AP), 272 - 279; AP, 194 - 201.

4. On 18 November 2021, following an application by KMM under the Criminal Injuries Compensation Act 2003 (WA) (CIC Act), an assessor made a compensation award to KMM of $21,715 (KMM's Compensation Award) in respect of both the KMM Proven Breach Offences and alleged offences identified in the award as 'incidents between 2014 and 2017 at various locations'.[2]  In reasons for the award, the assessor identified the alleged offences as 'offences concerning the children' and quotes a police incident report in which KMM told the police of SG striking the children daily.[3] 

   [2] AP, 1, 142.  Unless indicated otherwise, any reference to a statutory provision in these reasons is a reference to the CIC Act.

   [3] AP, 142 - 143.

5. KMM also made an application for compensation on behalf of AEG.[4]  On 18 November 2021 an assessor made a compensation award to AEG of $26,915 (AEG's Compensation Award) in respect of both the AEG Proven Assault Offences and alleged offences identified in the award as 'incidents which occurred between 1 January 2014 and 31 December 2015 at Ellenbrook'.[5]  In reasons for the award, the assessor identified the alleged offences as 'other abuse during the period 2014 to December 2015'.[6] 

   [4] AP, 245 - 250.  KMM's application for compensation and AEG's application for compensation will be referred to, together, as 'the CIC Applications'.

   [5] AP, 243.  Reasons at AP, 142.  Together, KMM's Compensation Award and AEG's Compensation Award will be referred to as 'the Compensation Awards'.

   [6] AP, 144.

6. KMM filed an appeal in this court as to the amount of KMM's Compensation Award (KMM's Appeal) and, as the next friend of AEG, as to the amount of AEG's Compensation Award (AEG's Appeal).[7]  The appeal notice states grounds of appeal including that the awards are manifestly inadequate[8] and reflect insufficient weight being given to the effect of family violence,[9] including on the ability of KMM and AEG 'to work and (their) future earning capacity due to psychological trauma.'[10] 

   [7] See Appeal Notice in APP 41 of 2022.  AEG turned 18 in 2022.  She is no longer a 'person under disability' per Rules of The Supreme Court 1971 (WA) O 70.1. On 3 October 2023, upon counsel for KMM advising that he also holds instructions to appear for AEG, an order was made that KMM cease to be the 'next friend' of AEG.

   [8] Appeal Notice, Ground 1.

   [9] Appeal Notice, Grounds 2, 3, 4.

   [10] Appeal Notice, Ground 5.

7. The appeals were filed on 5 July 2022, nearly seven months after the expiration of the time prescribed by s 55(3) of the CIC Act for commencing an appeal in this court.[11]  Unless this court determines that 'it is just to' allow an appeal to be commenced out of time, the appeal must be dismissed: s 55(4) CIC Act.[12] 

   [11] The time for making an appeal expires 21 days after the date of the making of a compensation award: s 55(3) CIC Act.  In this case, the awards were made on 18 November 2021 and the time for making an appeal expired on 9 December 2021.

   [12] Section 55(4).

8. If the extension of time issue is resolved in favour of KMM and AEG, this court must decide the CIC Applications afresh without being fettered by the assessor's decision.[13]  On an appeal this court 'may confirm, vary or reverse the assessor's decision, either in whole or part'.[14] 

   [13] Section 56(1).

   [14] Section 56(2)(b).

9. The balance of these reasons is organised under the following headings:

   1.Extension of time to appeal issue;

   2.Summary of law: Determination of a compensation application on appeal;

   3.Proven offences;

   4.Alleged offences;

   5.Injuries to KMM as a consequence of proven and alleged offences;

   6.Assessment of compensation for KMM's injury and loss;

   7.Injuries to AEG as a consequence of proven and alleged offences; and

   8.Assessment of compensation for AEG's injury and loss.

10. Deciding the CIC Applications afresh is done 'solely on the evidence before the assessor and any further evidence received in the appeals'.[15]  I adopt the following terms to refer to particular documents: 

    [15] Section 56(1).

Term

Referring to:

Assessors Papers or AP

The evidence before the assessor (as supplied to the court by the chief assessor).

Appeal Book or AB

The evidence received in the appeal, filed 27 September 2023.

KMM Affidavit

Affidavit of KMM made 4 July 2022 'to support application for an extension of time within which to appeal' with attachments A ‑ H.

Skesteris 2017 Report

The report of psychologist Barbara Skesteris dated 10 April 2017, prepared at the request for KMM for use in violence restraining order proceedings against SG.  See Appeal Papers, 261 ‑ 264.

Skesteris 2020 Report

The report of psychologist Barbara Skesteris dated 28 November 2020, prepared at the request of KMM for Family Court proceedings and addressing 'any psychotherapy undertaken by KMM in relation to parenting of her children'.  See Appeal Book, 49 ‑ 51.

Skesteris 2021 Report

The report of psychologist Barbara Skesteris dated 15 June 2021, prepared at the request of KMM for the CIC Applications before the assessor.  See Appeal Book, 146 ‑ 155.

Rhys-Maitland 2018 Report; Rhys‑Maitland 2021 Report

The reports of psychiatrist Dr Rhys-Maitland respectively dated 13 April 2018, prepared at the request of KMM for Family Court proceedings (see Appeal Book, 267 ‑ 268) and 3 July 2021 for the CIC Applications before the assessor.  See Appeal Book, 271.  

Wu 2022 Report

Report of psychiatrist Dr Raymond Wu dated 4 April 2022, prepared for the purpose of an assessment of KMM for Attention Deficit Hyperactivity Disorder (ADHD).  See KMM 2022 Affidavit, Attachment D.

Kerimofski 2022 Report.

Report of psychologist Katherine Kerimofski dated 7 April 2022, prepared at the request of psychiatrist Dr Rebecca Rhys-Maitland to inform an assessment of AEG for (Autism Spectrum Disorder (ASD) and ADHD.  See Appeal Book, 52.

AmWS
AmWS(S)

AppWS

AmWS: Amicus written submissions filed 1 November 2022.

AMWS (S): Amicus supplementary written submissions filed 29 September 2023.

AppWS: Appellants written submissions filed 27 September 2023.

1. Extension of time to appeal issue

1. The factors to be considered when deciding whether to grant an extension of time in which to commence this appeal are not controversial.  I gratefully adopt the following passage from the recent decision of Lemonis DCJ (as he then was) in Ward v Davey:[16]

   [16] Ward v Davey [2023] WADC 78 [45] ‑ [47].

   45In Simonsen v Legge, the Court of Appeal noted that the four major factors to be considered in deciding whether to grant an extension to commence an appeal in that court were as follows, although they are not necessarily exhaustive in each case:

   1.The length of the delay. 

   2.The reasons for the delay. 

   3.The prospects of the appellant succeeding in the appeal.

   4.The extent of any prejudice to the respondent.

   46An additional factor is whether the delay is intentional or the result of a bona fide mistake and whether the delay is that of the appellant in person or of their lawyer.

   47As Gething DCJ noted in Underwood v Underwood, the factors outlined in Simonsen have application to an appeal from a decision of a criminal injuries compensation assessor, so that is, to an appeal of the type that is before me.

   (citations omitted)

2. The circumstances of the delay in commencing this appeal detailed in the KMM Affidavit reveal that the only factor to be weighed against KMM and AEG is the length of the delay.  On any view, a 7‑month delay (9 December 2021 - 5 July 2022) is lengthy compared to the prescribed period of 21 days. 

3. I respectfully agree with the observation of Herron DCJ in Hansen v Bolton:[17]

   There are strong policy reasons for imposing limitation periods and ensuring they are complied with.  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.  As such, it ought not be treated with the indulgence appropriate to merely procedural rules.  The burden on [the applicant] is thus no triviality and the applicant must make a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time.

   [17] Hansen v Bolton [2017] WADC 25 [12].

4. I have concluded that, by reference to a combination of factors, KMM and AEG have each discharged the onus of making a substantial case for exercise of the statutory discretion to extend time.[18] 

   [18] The evidence is set out in the KMM Affidavit.

5. First, a not insignificant portion of the time that elapsed between 18 November 2021 and 5 July 2021 was spent by KMM diligently pursuing the prosecution of this appeal by placing her confidence in her solicitors. 

6. Between 18 November 2021 and 16 December 2021, KMM unsuccessfully attempted to persuade her solicitor (not her solicitors on the appeal) to advise her on the filing of an appeal notice.  The CIC Applications were lodged on 6 November 2018.  On 18 November 2021, the same day that KMM's Compensation Award and AEG's Compensation Award were made, KMM sent an email to a firm of solicitors that were advising her on family law matters.  The subject heading was, 'Victim of Crime Compensation'.  KMM asks for an opinion on whether to appeal and for assistance with the appeal.  KMM received no reply and on 1 December 2021 sent a further email noting that the '21 days for appeal is creeping up fast'.  KMM received no reply and on 15 December 2021 sent a further email repeating her request for advice on an appeal.  On 16 December 2021, 7 days after the appeal period expired, KMM received a reply: 'I have had a look and I am really not confident that we could help this one … If you can obtain an extension of time, perhaps you might look at a solicitor who specialises in the area?' 

7. On 31 March 2022, KMM gave instructions to new solicitors to give her advice on her prospects of an appeal.  On the same day, a request for written reasons of the assessor was made.  Those reasons were forthcoming on 4 May 2022.  It would have been preferable for the notice of appeal to have been filed within a reasonable time of 4 May 2022 and before 7 July 2022.  However, this relatively short delay ought not, in the circumstances, be attributed to KMM. 

8. Secondly, the reasons offered by KMM for the delay (between 16 December 2021 and 31 March 2022) include the demands upon her time arising from caring for three children who were each receiving frequent and regular medical treatment.  In the first part of 2022, KMM also prepared an application to the National Disability Insurance Scheme (NDIS) for one of those children and was required to submit to a 'plan review' for another child who was already part of the scheme.  The Wu 2022 Report confirms that on 4 April 2022, KMM was diagnosed with ADHD and medication was suggested.  The symptoms, presumably evident for some time before 4 April 2022, are noted to include: poor attentional ability, poor mental focus, disorganisation, procrastination and being easily overwhelmed. 

9. Thirdly, I would characterise the prospects of success of an appeal as to the quantum of compensation as 'reasonable' in this case, where injury is alleged to have been caused by proved offences and each victim had been receiving psychological or psychiatric treatment since the commission of the offences. 

10. Fourthly, there is prejudice to SG insofar as the status quo involves the certainty of a barring order made in relation to the compensation awards.  I propose to maintain the barring order (see below).  It follows that SG is only prejudiced to the extent that any change to the quantum or basis of the compensation awards increases the likelihood of the chief assessor making an application to remove the barring order.

11. Weighing the above factors, I consider that KMM has a strong case for exercise of the discretion to extend the time for commencing this appeal and I will order accordingly.

12. A factor peculiar to AEG is that she was aged 13 when KMM filed the CIC Application on her behalf in 2018, turned 17 in 2021 and did not turn 18 until after the appeal was filed in 2022.  There is some evidence that, understandably given her age, AEG was not engaged with the compensation application made on her behalf.  Psychologist Leanne Newland was asked by KMM to report on AEG for the purposes of the CIC Applications.  Writing in June 2021, Ms Newland reported[19] that AEG 'had expressed a preference to access compensation in future when she is older'.  If KMM has a strong case for an extension of time, AEG has a compelling case.  The order for an extension of time will also apply to AEG's Appeal. 

    [19] AP, 106.

1. Summary of Law: Determination of a compensation application on       appeal

1. On an appeal, the court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision (s 56(1)).  It is permissible, without being fettered by the assessor's decision, to have regard to the assessor's reasons for discrete purposes, eg to understand an applicant's grounds of appeal.[20]

   [20] Re Anderson [2022] WADC 97 [30] ‑ [32] (Commissioner Collins).

2. On a compensation application by a person who suffers injury as a consequence of the commission of an offence (ie a victim), the court may award such compensation that the court is satisfied is just for the injury and for any loss also suffered (s 30(1)).  The court must be satisfied, on the balance of probabilities,[21] of: the commission of an offence; injury to the victim as a consequence of the offence; and compensable injury and loss to the victim.  The court is not bound by the rules of evidence when determining the application (s 18(2)). 

   [21] Section 3.

3. 'Injury' means 'bodily harm, mental and nervous shock or pregnancy' (s 3). 

4. 'Bodily harm' is not defined in the CIC Act.  However, where used in other statutes and not defined, the phrase has been taken to mean 'any hurt or injury calculated to interfere with the health or comfort of the victim; it need not be permanent, but must be more than merely transient or trifling'.[22]  Two points may be observed about this definition.  First, an 'injury' necessarily involves damage to a part of the body; the temporary sensation of pain may or may not be the result of an injury.[23]  Secondly, the damage may be to the parts of the body responsible for mental health (eg the nervous system or the brain).[24] 

   [22] Campbell v The King [2023] NSWCCA 258 [51].

   [23] Scatchard v The Queen (1987) 27 A Crim R 136.

   [24] R v Chan-Fook [1994] 1 WLR 689, 695.

5. 'Mental and nervous shock' is not defined in the CIC Act.  As to the meaning of 'mental and nervous shock', I adopt the following passage from Ward v Davey[16]:[25]

   … The phrase is one of a composite character borrowed from the law of tort to refer to mental or emotional harm as opposed to physical injury or bodily harm. … In assessing whether there is mental or nervous shock, it is necessary to draw a distinction between a mere emotional reaction and something of a more enduring character which may in both the legal sense and in common parlance, be described as an injury.

   [25] See also S v Neumann (1995) 14 WAR 452 (461); Martin v Martin [2015] WADC 138 [85].

6. The quoted passage reveals the necessity for an injury 'in the legal sense' to sustain a claim for compensation for mental and nervous shock.  The injury will usually be inferred from expert evidence of the presence of a recognised psychiatric condition.[26]  However, there is no reason, in principle, why an injury to the parts of the body responsible for mental health may not be inferred from any relevant evidence.[27]  There are cases where a finding of 'mental and nervous shock' was based upon the drawing of an inference of an injury from evidence of enduring emotional harm suffered by a victim: 'a grave emotional effect of traumatic origin';[28] '(adverse) effect on all areas of (the victim's) life';[29] 'many of the behaviours identified in trauma victims';[30] and 'the evidence of (the victim) of suffering a depressed psychological state'.[31] 

   [26] Re Hojetzki [2009] WADC 77 [48].

   [27] DCN v RJS [2004] WADC 63 [30] ‑ [32] (HH Jackson DCJ); Girardi v Chief Assessor of Criminal Injuries Compensation [2005] WADC 194 [36] (Schoombee DCJ).

   [28] Fagan v The Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 669 (Mason & Wilson JJ) holding 'a grave emotional effect of traumatic origin' was capable of being 'mental or nervous shock'.

   [29] Sunderland v Curnack [2002] WASC 158, [11] - [13].

   [30] DCN v RJS [34].

   [31] Re Hojetzki [47].

1. Compensation for 'mental and nervous shock' must not be awarded, unless the court is satisfied of one of the alternative criterion set out in s 35(2): that the victim also suffered bodily harm as a result of the commission of the offence (s 35(2)(a)); the victim was the person against whom the offence was committed (s 35(2)(b)); that immediately before the offence was committed, the victim was a close relative of a person who suffered injury as a consequence of the commission of an offence and was living with that person (s 35(2)(e)). 

2. The compensation application must be by a person who has 'suffered injury as a consequence of a proved offence' (s 12(1)) or an alleged offence (s 17(2)).  A proved offence is an offence of which a person has been convicted (s 3).  An alleged offence is an offence that was committed but no person is charged (s 17(1)).  In Re Harvey,[32] Egan DCJ identifies a number of principles relevant to assessing the evidence of an alleged offence.  The applicant bears the onus of proving, on the balance of probabilities, the commission of the offence, including proving that the offender's conduct was not authorised, justified or excused by law.  The evidence must do more than give rise to conflicting inferences of equal probability.  Clear and cogent evidence will be required to discharge the onus with respect to proof of criminal conduct.  The court must feel an actual persuasion that the offence occurred. 

   [32] Re Harvey [2023] WADC 83 at [103] ‑ [115].

3. The court must not make a compensation award unless satisfied that the claimed injury and any claimed loss was a consequence of the commission of the proved offence (s 12(3)(a)) or the alleged offence (s 17(4)(a)).  The injury or loss will be a consequence of the commission of the offence if, as a matter of ordinary common sense and experience, the offence materially contributed to the injury or loss, in the sense that the contribution was not negligible.[33]  The fact that other unconnected events may also have contributed to the injury or loss will not sever the chain of causation if the offence was a cause, even if not the sole cause.[34]  Where there was a fair chance that the injury or loss would, in any event, have resulted from a pre‑existing condition, the court must evaluate that chance and may discount compensation accordingly.[35]^, [36] 

   [33] Lyle v Soc [2009] WASCA 3 [40]; Martin v Martin [85] (Derrick DCJ); ATB v LA [2021] WADC 64 [11] (Lemonis DCJ).

   [34] Fagan v The Crimes Compensation Tribunal (673).

   [35] ELK v CFB [2009] WADC 90 [19]; Re Homewood [53] ‑ [54]; Re AB [2023] WADC 28 [75]; Luntz H and Harder S, Assessment of Damages for Personal Injury and Death (5^th ed, 2021) 2.5.2.

   [36] Re Homewood [2012] WADC 88 [54]: 'There is an evidentiary burden on the defendant to adduce evidence that the plaintiff's condition was wholly or partly the result of some pre-existing condition. Where it is not possible to disentangle the effects of the wrongful act on the plaintiff and the future effects of the pre-existing condition, the plaintiff is entitled, to all the loss and damage flowing from his current and likely future condition or capacity' (citations omitted).

4. In deciding whether to make a compensation award or the amount of a compensation award, the court may have regard to any factors or circumstances that the court thinks are relevant (s 29). 

5. The assessment of compensation for injuries involves the application of the ordinary principles for the assessment of damages; there must be fair and reasonable compensation for the injuries received and the disabilities caused, having regard to current general ideas of fairness and moderation.  Compensation may be awarded for pain and suffering, including matters such as grief, anxiety, distress and disappointment.[37]  Compensation may be awarded for loss of amenities of life and loss of enjoyment of life.  This includes loss resulting from the deprivation of the ability to participate in normal activities, to enjoy life to the full and to take full advantage of the opportunities that life otherwise might offer.[38]  The amount must be proportionate to the particular situation of the applicant.[39] 

   [37] Insight Vacations Pty Ltd v Young [2010] NSWCA 137 [125].

   [38] Teubner v Humble [1963] HCA 11; (1963) CLR 491 [506].

   [39] Bothma v Hildebrand [2019] WADC 92 [49] (Gething DCJ).

6. The quantum of compensation awarded in any given case inevitably turns on the peculiar facts of the case.  Nevertheless, it is not wrong to consider decided cases for the purpose of guidance in determining compensation in an instant case.[40] 

   [40] TAW v NJS [2011] WADC 187 [24] (Bowden DCJ); Madigan v XYZ [2022] WADC 123 [96] (Lemonis DCJ).

7. Compensation may be awarded for 'loss' as defined in s 6(2) of the CIC Act:[41] (a) expenses incurred by the victim that arise directly from the injury suffered by the victim; (b) expenses that are likely to be incurred by the victim for treatment as a direct consequence of the injury; (c) loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim;[42] or (d) any loss from damage caused as a direct consequence of the offence to a personal item that was worn by the victim at the time of the injury. 

   [41] In ATB v LA [15], Lemonis DCJ observes: 'At first blush, it is unclear whether the introduction of a qualifying word such as direct in s 6(2) results in there being a higher threshold to establish compensation for loss from injury within the meaning of s 6(2), compared to the requisite threshold to establish compensation for injury from the commission of an offence within the meaning of s 12.  In any event, even if it does result in a higher threshold, I consider that threshold would only reach the height of the injury being the substantive (or dominant) cause, as opposed to a material cause.  In my view, it would be contrary to the compensatory purpose of the legislation to require that the injury be the sole cause of loss.  That being so, I do not need to resolve whether s 6(2) does impose a higher threshold'.

   [42] Loss of past and future earnings are included in this definition: Neumann (462).

8. The assessment of loss of earning capacity for a young person who has not previously been engaged in any employment involves assessing the extent to which there was a chance that they would in the future have used their capacity to earn (more) money and a global award for economic loss may be appropriate.[43] 

   [43] Assessment of Damages for Personal Injury and Death, 6.1.6; ELK v CFB [24] ‑ [25] (Davis DCJ); Re RJA [2022] WADC 106 [154] ‑ [157] (Commissioner Collins).

9. The maximum amount that may be awarded in favour of one person for a single offence or for two or more offences that are related to one another, whether or not committed by two or more persons acting in concert, is $75,000 (s 31 ‑ s 33).  Offences are related if the court is satisfied that the offences 'were committed at approximately the same time' or 'they are related for any other reason' (s 33(1)).  The maximum amount in favour of one person who suffers injury as a consequence of two or more offences that are not related offences, must not in aggregate exceed $150,000 (s 34).  The maximum amount payable under the CIC Act is merely a jurisdictional limit, and is not reserved for the worst cases: S v Neumann (452), (463). 

10. Any behaviour, condition, attitude or disposition of a victim that contributed, directly or indirectly, to the victim's injury must be considered by the court and may, if just to do so, result in a reduction of compensation or a refusal to make an award (s 41). 

11. Part 6 of the CIC Act provides for a regime by which, on the application of the Chief Executive Officer (CEO), the chief assessor may make an order that an offender pay an amount payable under a compensation award (compensation reimbursement order) and the application is determined by criteria found in s 52(2).  The application for a compensation reimbursement order cannot be made in respect of an award (or part of an award) where the assessor, on thinking it just to do so, has made an order barring proceedings under pt 6 (s 45(1)) (a barring order).  The jurisdiction, on appeal, of this court with respect to barring orders was reviewed in Harris v Sycamore.[44]  For present purposes, it is sufficient to observe that on an appeal as to the amount of a compensation award (s 55(1)), this court may make any order that the assessor could make (s 55(2)(c)), including the making of a barring order: Harris v Sycamore [226].

    [44] Harris v Sycamore [2022] WADC 4 [212] ‑ [230] (Troy DCJ).

1. Proven Offences

AEG Proven Assault Offences

1. SG was convicted of the AEG Proven Assault Offences.  As a consequence of those convictions and the contents of the relevant prosecution notice,[45] I am satisfied that, on five occasions between 1 January 2014 and 10 November 2015, SG committed the offence of common assault in circumstances of aggravation, a simple offence found in s 313(1)(a) Criminal Code (WA).

   [45] AP, 272ff.

2. The inference may be drawn from the original statement of material facts being amended for the purposes of the sentencing hearing, that the amended statement of material facts were admitted by SG during that hearing.[46]  In the result, I am satisfied of the following facts:

   1.SG used a tea-towel to attempt, twice, to 'whip' the back of AEG's leg.  AEG cried.  AEG was left with a red mark on the rear of her leg.

   2.SG pushed AEG out of the front door of the house after she declined his request to accompany him to the shops.

   3.SG used a thong to attempt to strike the backside of AEG.  However, after AEG moved her arm, the thong made contact with her arm, leaving a red mark and causing pain.

   4.SG, moving towards AEG, prodded her in the head while yelling, 'what's this for?'  SG's conduct caused her to fall backwards, making contact with kitchen chairs.

   5.SG tapped a leather belt on the buttocks of AEG and her two siblings while demanding that they identify who was responsible for breaking an item.

   [46] Pages 40 - 43 of the AP, entitled 'Statement of Material Facts' must be read subject to the similar but not identical document, 'Exhibit 1 Statement of Material Facts', admitted during the hearing of the appeals, and said by counsel for the appellants to be the true (and amended version) of the same document in the AP.

3. AEG was aged between 9 and 11 at the time of each offence.  Each offence occurred inside the suburban home in which SG and KMM lived with their three children. 

4. A contemporaneous file note of a senior child protection worker's conversation with KMM on 2 November 2005 is evidence that KMM was present for each offence.[47] 

   [47] AB, 2.

5. The 'interview summary' dated 10 November 2015 of Senior Constable Alison Walker's interview of AEG on 9 November 2015, is evidence that as a result of SG's offending, AEG and her mother (KMM) were fearful of SG.[48] 

KMM Proven Breach Offences

[48] AB, 3 - 4.

1. On 11 November 2015, an interim violence restraining order (IVRO) nominating KMM, AEG, TBG and ANG as protected persons, was served on SG.[49]  The order had been made on the application of KMM.  The terms of the order included that SG must not communicate with the protected persons, approach within 50 m of the protected persons or enter, remain upon or loiter near their home.[50] 

   [49] AP, 53 - 54; AP, 177 (Incident Report).

   [50] Incident Report.

2. On 20 November 2015, SG entered a bail undertaking in relation to the proceedings that ultimately resulted in convictions of the AEG Proven Assault Offences.  The conditions of that bail undertaking included that he not approach within 50 m of KMM, AEG, TBG or ANG and he not approach within 50 m of KMM's home. 

3. I have noted that SG has been convicted of the KMM Proven Breach Offences. As a consequence of those convictions and the contents of the relevant prosecution notice, I am satisfied that, on 4 December 2015, SG committed the offence of breach protective bail conditions (a simple offence in s 51(2a) Bail Act 1982 (WA)) and breach of violence restraining order (a simple offence in s 61(1) Restraining Orders Act 1997 (WA)).

4. The prosecution notice does not contain particulars of the charge.  In the absence of a transcript of the sentencing hearing, confirming SG's admission of the statement of material facts found in the AP, I give limited weight to the statement of material facts in the Assessor's Papers.[51] 

   [51] AP, 45.

5. However, on the basis of KMM's signed witness statement of 4 December 2015,[52] and SG's account as recorded in a police incident report,[53] I am satisfied of the following: that at 1.00 am on 4 December 2015, in breach of the IVRO and the bail undertaking, SG attended the backyard and back glass sliding door of KMM's home; SG spoke to KMM through a security door; AEG, TBG and ANG were sleeping inside; SG asked KMM not to continue the restraining order proceedings; SG told KMM that he had been 'watching the house and doing drive bys';[54] SG told KMM that he had been sitting on the side of the house for three hours; SG remained at the security door for two to three hours, engaging in conversation, sometimes emotional, with KMM including attempting to persuade her to let him inside the house; that SG left after KMM raised her voice; during the offending, KMM sent a text to her mother who attended at 2.15 am;[55] KMM stated to police that the incident 'made her feel extremely scared and fearful' on her own behalf and on behalf of the children.[56] 

   [52] AP, 8 - 17.

   [53] AP, 62.

   [54] AP, 13.

   [55] AP, 33 (Signed statement of KMM's mother).

   [56] AP, 16.

1. Alleged offences

1. The file note of a senior child protection worker's conversation with KMM on 2 November 2015, records KMM attributing the following conduct of SG towards 'the children' during unspecified periods at unspecified locations:[57] 'he disciplines them 24/7'; 'the children were screamed at, berated and physically hurt for even the smallest of things, such as accidentally spilling a glass of water'; he 'hits them every day' with his 'hand, belt or shoe' and 'squeezes their arms so it brings them to tears'; the children were called 'fucking idiots, arseholes and pricks'.  KMM offered, as an example, that on 1 November 2015 when TBG was refusing to eat her dinner, SG screamed at her, 'I'll shove it down your throat'.[58]  KMM noted that TBG (aged 9) had previously been diagnosed with ASD. 

   [57] AB, 2.

   [58] AP, 305.

2. For three reasons, I am satisfied as to the truthfulness, accuracy and reliability of KMM's description of SG's conduct as it relates to TBG. 

3. First, KMM's account is cogent, detailed and plausible as to recent events and is offered in response to an investigation by a government officer. 

4. Secondly, TBG's own account of SG's conduct, recorded as quotations in the report of psychologist Barbara Skesteris dated 10 April 2017 is detailed and consistent with KMM's account.[59]  Ms Skesteris records TBG as stating that SG: 'pulled her hair and ear'; 'smacked me with his hand'; 'he always screams and smacks'.[60] 

   [59] AP, 304.

   [60] AP, 305.

5. Thirdly, KMM's account of SG's conduct in relation to TBG is sufficiently similar to the admitted facts of the AEG Proven Assault Offences, for the latter to be evidence of a tendency of SG to strike his young children in response to trivial incidents.[61] 

   [61] Evidence Act 1906 (WA) s 31A.

6. The offence of failing to protect a child from harm is found in s 101 of the Children and Community Services Act 2004 (WA) (CCS Act).[62]  I am satisfied, in relation to the victim TBG, that the three elements of this offence are proven (the TBG (Alleged) Child Harm Offence).

   [62] CCS Act, s 101 Failing to protect child from harm (1) A person who has the care or control of a child and who engages in conduct - (a) knowing that the conduct may result in the child suffering harm as a result of any one or more of the following - (i) physical abuse; or (ii) sexual abuse; or (iii) emotional abuse as defined in section 28(1); or [(iv) deleted] (v) neglect as defined in section 28(1); or (b) reckless as to whether the conduct may have that result, is guilty of a crime, and is liable to imprisonment for 10 years. (1A) It is a defence to a charge … (2). In subsection (1) - engage in conduct means - (a) to do an act; or (b) to omit to do an act; harm has the meaning given to that term in section 28(1).

7. First, the accused must have had the care or control of a child.  KMM's account is of SG, TBG's parent, living with TBG and exercising control of TBG at all relevant times. 

8. Secondly, the accused must do an act that may have resulted in the child suffering harm (ie a detrimental effect of significant nature on the child's wellbeing by one act or a series of acts) as a result of either physical abuse or emotional abuse.  KMM's account is of SG's physical abuse of TBG by striking her and of emotional abuse of TBG by swearing.  Given TBG's age (9 years or under), the frequency of abuse (daily) and her pre‑existing mentally fragile state (ie ASD), there was a likelihood of a significant detriment on TBG's wellbeing from SG's abuse. 

9. Thirdly, the accused must know or be reckless as to whether his act may result in the child suffering harm.  I note that the report of psychologist Barbara Skesteris dated 10 April 2017 confirms TBG's specialist medical treatment commencing September 2011 resulted in a diagnosis of ASD.[63]  I infer from the fact of multiple visits by TBG to specialist doctors when she was aged 5 and older that SG was aware of the ASD diagnosis at the time of his physical and emotional abuse of her when she was aged 9 years.  I am satisfied that given TBG's vulnerability from her diagnosis of ASD, SG knew or was reckless to the fact that his physical and emotional abuse may harm her. 

   [63] The same information appears in the reports of psychologist Barbara Skesteris dated 28 November 2020 (for Family Law proceedings (AB, 50) and dated 15 June 2021 for the compensation applications (AP, 146).

10. I am not satisfied, having regard to the quality of the evidence before me, as to the commission of any other offence by SG.  In the following paragraphs, I have considered the evidence with respect to four groups of offences. 

11. The evidence of SG committing the offence of failing to protect a child from harm (s 101 CCS Act) where the putative complainants are AEG and ANG is the same as the evidence where the victim is TBG except for the third element ie SG knowing or reckless as to his acts resulting in harm.  Unlike TBG, there is no evidence from which I could infer that, before November 2015, SG had knowledge of AEG or ANG having a peculiar vulnerability to harm arising from a diagnosed medical condition.  I am not satisfied as to the 'knowledge or reckless element' of the offence with respect to AEG and ANG. 

12. Secondly, relevant to the offences of common assault (s 313 Criminal Code) and persistent family violence (s 300 Criminal Code) where the putative complainant is ANG, I have noted the hearsay evidence of KMM's account of SG applying force to his children (above) and that the facts of the AEG Proven Assault Offences as evidence of the tendency of SG to strike his children in response to trivial incidents. ANG's own account of SG's conduct, recorded as quotations in the Skesteris 2017 Report is consistent with KMM's account insofar as he states 'daddy hit me with a belt'. Notwithstanding ANG being under the age of 6 at the time of being hit, I consider there to be an equal probability that the offence was not committed given the absence of detail of the circumstances of the use of force by SG as would enable an assessment of the lawfulness of the use of force by reason of s 257 Criminal Code (discipline of children, use of force for). 

13. Thirdly, relevant to the offence of indecent dealing of a child under 13 (s 320 Criminal Code), there is evidence of AEG stating that SG 'touched her on her bottom and this had been going on for a little while before SG was removed from the home' in November 2015.  The evidence of AEG's statement is in the February 2016 notes of a police officer quoting the statement of a psychologist that summarises statements attributed to KMM.[64]  The hearsay quality of this evidence, also lacking context and detail, is an inadequate foundation for me to be satisfied of this offence.  The fact that a child protection worker from the Department for Child Protection and Family Support subsequently investigated the allegation and wrote 'that there are reasonable grounds to conclude that it is likely that AEG has been harmed'[65] does not, absent identification of the cause of the harm, add anything to the weight of evidence of this alleged offending. 

    [64] AP, 70.

    [65] KMM Affidavit, Attachment A.

1. Fourthly, relevant to the offence of threats (s 33B Criminal Code), KMM has stated that SG made a verbal threat to her ('end up 6 feet under').[66]  Relevant to offences involving violence (eg Criminal Code s 298 strangulation; s 300 persistent family violence; s 313 assault) and danger (Criminal Code s 304 act causing danger), KMM has stated that SG had been violent to her ('he flashed knives and he tried to strangle me').[67]  KMM's statements were made in November 2015, in the context of an investigation into the AEG Proven Assault Offences.  However, the statements are in the notes of a police officer.  Those notes report the statement of a Department of Communities officer quoting KMM.[68]  'Hearsay upon hearsay statements' are an inadequate foundation for me to be satisfied of an offence.  The weight attributable to statements of KMM in the period 2016 ‑ 2022, attributing violence by SG to herself or to the children is tempered by the fact that those statements were made in the context of KMM opposing the grant of bail of SG,[69] prosecuting family law proceedings and prosecuting an application for a violence restraining order.[70] 

   [66] AP, 57; AB, 6 - 7.

   [67] AP, 57; AB, 6 - 7.

   [68] AP, 57; AB, 6 - 7.

   [69] AP, 51.

   [70] AP, 27; AP, 36.

2. For completeness, I note that on the hearing of the appeal, counsel for KMM and AEG stated that no reliance, as an 'alleged offence, charge not determined', was placed on offences the subject of charges dismissed for want of prosecution being allegations of breach of restraining order on 30 December 2015 (MI 161/2016) and 31 December 2015 (MI 162/2016).[71] 

   [71] ts 10.

1. Injuries to KMM as a consequence of proven and alleged     offences

1. KMM does not allege any injury other than mental and nervous shock.  She must establish that she has suffered mental and nervous shock and that this injury was a consequence of SG's commission of one or more of: KMM Proven Breach Offences; AEG Proven Assault Offences; and TBG (Alleged) Child Harm Offence.  The KMM Proven Breach Offences, AEG Proven Assault Offences and the TBG (Alleged) Child Harm Offence will together be referred to as 'the SG Offences'. 

2. As a result of s 35(2) KMM must also establish, insofar as she relies upon:

   1.The KMM Proven Breach Offences, that she was the (primary) victim of that offence: s 35(2)(b).  Indisputably, KMM was the victim of the KMM Proven Breach Offences.

   2.The AEG Proven Assault Offences and the TBG (Alleged) Child Harm Offence, that KMM was a (secondary) victim of those offences as a result of two criteria being satisfied: s 35(2)(c), s 35(2)(e).  First, KMM must have been present or living with the children at the time of the offences.  I infer from the terms of the restraining order made on 10 November 2015 that at all relevant times before that date, KMM, SG and their three children lived together.[72]  Secondly, AEG and TBG must have suffered an injury (ie bodily harm or mental and nervous shock): s 35(2)(c), s 35(2)(e).  I conclude below that AEG suffered an injury in the form of mental and nervous shock as a consequence of the AEG Proven Assault Offences.  I am also satisfied, on the basis of comments in the Skesteris 2017 Report, that TBG suffered an injury in the form of mental and nervous shock as a consequence of the TBG (Alleged) Child Harm Offence.  I refer to the author's observation that TBG's treating doctor had referred her to the author for treatment in January 2017 'for PTSD in relation to alleged physical abuse by' SG.[73] 

   [72] AP, 53 - 54.

   [73] AP, 305.

3. There is no expert opinion evidence of KMM being diagnosed, by reference to criteria such as those found in the Diagnostic and Statistical Manual of Mental Disorders, with a mental disorder that is related to the SG Offences.[74]  The Wu 2022 Report makes a diagnosis of KMM of ADHD.  However, the author does not make a causal connection between the SG Offences and the ADHD.  Notwithstanding the absence of evidence of a (causally related) diagnosis of a mental disorder, I am satisfied that KMM has suffered an injury that is 'nervous and mental shock' and that her injury was a consequence of the SG Offences.  In reaching those conclusions, I have placed weight upon the evidence of Ms Skesteris as to observations and treatment of KMM over long periods and for regular intervals after the commission of the SG Offences. 

   [74] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013).

4. In the Skesteris 2020 Report, the author writes of having seen KMM on seven occasions in 2020 for anxiety and, when treating her children, on a large number of occasions since November 2015.  Treatment of KMM is identified as including 'personal therapy for her own anxiety and trauma response'.[75]  In the Skesteris 2021 Report, it is noted that KMM was seen in January 2016 by the author and is described as presenting with 'symptoms consistent with PTSD'.  However, KMM was said to prefer to focus at that time on the author treating the children.  KMM was treated after 2018 with 'personal psychotherapy for her own trauma symptoms'.  There is evidence of regular attendances by KMM upon the psychologist in 2019 (13 occasions), 2020 (10 occasions) and 2021 (7 occasions before 5 May 2021).[76]  KMM is described as continuing 'to suffer anxiety and distressing flashbacks to her history with SG'.  The author recommends ongoing psychotherapy. 

   [75] AB, 50.

   [76] AP, 153 - 154.

5. I draw the conclusion from the contents of the reports of Ms Skesteris that the SG Offences caused trauma and anxiety to KMM and that, unlike a mere emotional reaction, the trauma and anxiety was enduring and debilitating.  I also draw the conclusion from the reports of Ms Skesteris that the SG Offences materially contributed to KMM's trauma and anxiety.  Of particular relevance is the Skesteris 2020 Report on 'events surrounding KMM's separation from SG' in November 2015 and mention of treatment of KMM's 'own anxiety and trauma responses'.  Support for both conclusions is also to be found in KMM's own statements in which she makes reference to the consequences of conduct that, in context, includes the SG Offences.  Writing on an unknown date (in early 2017), KMM states: 'I suffer terrible anxiety and panic attacks … I have been told I have PTSD … My sleep is non‑existent'.[77]  KMM notes having 'received urgent trauma therapy through Uniting Care West' between 8 March 2017 and 8 January 2019 (55 occasions).[78]  Writing to the assessor in August 2021, KMM states that she 'missed many, many hours of work and find it verging on impossible to maintain employment whilst maintaining the mental health and well‑being of myself'.[79] 

   [77] AP, 32 ie 17 months after separation in November 2015.

   [78] AP, 117 by email from KMM on 1 August 2021.

   [79] AP, 119 by email from KMM on 1 August 2021.

6. I am satisfied that the SG Offences materially contributed to KMM suffering injury in the form of trauma and anxiety and that the injury is mental and nervous shock which, in accordance with s 35, is compensable. 

1. Assessment of compensation for KMM's injury and loss

1. The assessor fixed compensation for 'injuries' to KMM at $15,000.  KMM suffered mental and nervous shock from the SG Offences committed in the period before November 2015.  KMM was aged 36 in November 2019.  There is evidence of the enduring effects of the injury until 2022 and, likely, thereafter.  For pain and suffering, including matters such as anxiety and distress and for loss of amenities of life including being deprived of the ability to participate in normal activities, I award compensation in the sum of $20,000. 

2. The assessor fixed compensation for loss from past expenses that arise directly from the injury as: $4,000 for treatment; $500 for reports and $1,000 for travel.  I have noted KMM's attendance upon Ms Skesteris on 30 occasions over 2019 ‑ 2021.[80]  The Appeal Book (not before the assessor) was evidence of KMM's appointments in the period 18 November 2021 ‑ 12 April 2022.[81]  Forty‑three appointments in that period are recorded for, variously, medical practitioners, psychiatrists, psychologists and 'personal training as recommended by psychologist related to PTSD'.  Some of those appointments are for both KMM and AEG.  I fix compensation for loss from past expenses that arise directly from the injury at: $6,000 for treatment, $800 for reports and $1,200 for travel, a total of $8,000. 

   [80] See also the list of 'Doctor's/Specialists' in AP, 308.

   [81] AB, 63 - 67.

3. The assessor fixed $1,215 for expenses likely to be incurred as a direct consequence of the injury ie future treatment.  KMM's treatment in the period 18 November 2021 to 12 April 2022 suggests a likelihood of future treatment.  I fix compensation for treatment that KMM is likely to need as a direct consequence of the injury (and payable in accordance with regime provided for in s 48) in the sum of $2,000. 

4. The assessor made no mention of compensation for loss of earnings as a direct consequence of the injury.  In a statement prepared for the purpose of violence restraining order proceedings sometime after November 2015, KMM refers to an 11 year period in which she 'ran a business' with SG after which she 'went to work for her' father.[82]  I have noted that, in August 2021, KMM stated that she 'missed many, many hours of work and find it verging on impossible to maintain employment whilst maintaining the mental health and well‑being of myself'.[83]  There is no evidence before me that enables any measure of a comparison of KMM's earnings 'before and after' the commission of the SG Offences.  A bare assertion of 'many missed hours of work' is an inadequate foundation upon which to award compensation for loss of past and future earnings. 

   [82] AP, 25.

   [83] AP, 119 by email from KMM on 1 August 2021.

1. Injuries to AEG as a consequence of proven and alleged offences

1. AEG does not allege any injury other than mental and nervous shock.  She must establish that she has suffered mental and nervous shock and that this injury was a consequence of SG's commission of one or more of the SG Offences.  AEG must also prove the requirements found in s 35(2).  AEG was the (primary) victim of the AEG Proven Assault Offences: s 35(2)(b).  For the same reasons that KMM was a (secondary) victim of the TBG (Alleged) Child Harm Offence, AEG is also a (secondary) victim of that offence.  AEG was present or living with TBG at the time of commission of the TBG (Alleged) Child Harm Offence in which TBG suffered an injury: s 35(2)(c), s 35(2)(e).  AEG is also a (secondary) victim of the KMM Proven Breach Offences.  If AEG was not personally present at the time of the offence or immediately thereafter (s 35(2)(c)), she was living with KMM who suffered an injury (described above) (s 35(2)(e)). 

AEG injury and causation issues

1. I am satisfied that AEG has suffered an injury that is 'nervous and mental shock' and that her injury was a consequence of the SG Offences.  In reaching those conclusions, I have placed weight upon the fact that AEG was first treated by a psychologist following a referral in November 2015[84] and there is evidence of AEG having mood fluctuations since 2015.[85]  The timing of AEG's first treatment and symptoms coincides with the commission of the SG Offences.  I have also placed weight on the Rhys-Maitland 2021 Report[86] and the Kerimofski 2022 Report, outlined in the following paragraphs, insofar as each records significant symptoms of AEG in the period 2017 ‑ 2022 and attaches significance to AEG's (self‑reported) history of physical abuse by her father when recording those symptoms. 

   [84] Skesteris Report 2021.

   [85] Rhys-Maitland 2018 Report.  See AP, 268.

   [86] AP, 271.

2. The Rhys-Maitland 2021 Report records Dr Rhys‑Maitland having treated AEG regularly since 2017 and, at the date of writing a report on 3 July 2021, having seen AEG on 34 occasions.[87]  The author anticipates AEG needing regular psychiatric treatment for an indefinite period in the future.  The primary concerns are identified as self‑harm, dysphoria, dissociative symptoms, insomnia, and subjective and perceptual abnormalities.  It is noted that AEG attributed her mental health issues to a background of abuse perpetrated by her father. 

   [87] AP, 271.

3. The Kerimofski 2022 Report records a history that includes: 'physical, sexual and emotional abuse from a young age'; maternal presence of ASD; AEG witnessed 'significant domestic violence'; AEG started dissociating in 2017; 'emotional difficulties' since 2019; completion of a TAFE Certificate III in 2021; not completing a TAFE Certificate IV in 2022; not successfully being employed other than making jewellery; many interests including sport, gaming and reading.  The report includes that AEG's presentation, subject to confirmation by her psychiatrist, is consistent with ASD and ADHD given that she 'presents with deficits in social communication and a pattern of repetitive and restricted behaviour, interests and activities in the context of a significant psychiatric history, including significant family trauma'.[88]  The report also identifies the need for support as a result of impaired functional capacity in the areas of social interaction and learning.[89]  Specifically, it is stated that support will be required to navigate the completion of university studies. 

   [88] AB, 61.

   [89] AB, 62.

4. There is no expert opinion evidence of AEG being diagnosed, by reference to criteria such as those found in the Diagnostic and Statistical Manual of Mental Disorders, with a mental disorder.[90]  The Kerimofski 2022 Report includes findings consistent with ASD and ADHD.[91]  However, for reasons stated, the author defers to AEG's psychiatrist to confirm a diagnosis[92] and any such diagnosis is not in evidence. 

   [90] Diagnostic and Statistical Manual of Mental Disorders.

   [91] AP, 52.

   [92] AP, 52.

5. Nevertheless, I draw the conclusion that the SG Offences caused AEG to suffer significant symptoms that, unlike a mere emotional reaction, were enduring and debilitating.  The nature of AEG's symptoms are recorded in the Rhys-Maitland 2021 Report ('self‑harm, dysphoria, dissociative symptoms, insomnia, subjective and perceptual abnormalities') and the Kerimofski 2022 Report ('presents with deficits in social communication and a pattern of repetitive and restricted behaviour, interests and activities in the context of a significant psychiatric history, including significant family trauma').  Those symptoms are evidence from which I infer the existence of an injury that is mental and nervous shock.  The SG Offences made a material contribution to AEG's injury, having regard to the timing of the commencement of AEG's psychological treatment in February 2016 and to the observation in the Kerimofski 2022 Report of AEG's deficits and restricted behaviours being present in the context of a significant psychiatric history including significant family trauma. 

6. I am satisfied that the SG Offences materially contributed to AEG suffering an injury that is mental and nervous shock which, in accordance with s 35, is compensable. 

1. Assessment of compensation for AEG's injury and loss

1. The assessor fixed compensation for 'injuries' to AEG at $25,000.  AEG was aged between 9 and 11 at the date of the AEG Proven Assault Offences.  At the date of the appeal hearing she was aged 18.  There is evidence of the enduring effects of the mental and nervous shock upon her from the date of the offending until 2022 and, likely, thereafter.  For pain and suffering, including matters such as anxiety and distress and for loss of amenities of life including been deprived of the ability to participate in normal activities, I award compensation in the sum of $30,000. 

2. The assessor made no assessment for expenses that arise directly from the injury other than $700 for reports.  I note KMM's attendance upon Ms Skesteris on eight occasions in 2016,[93] 20 attendances upon Ms Newland between June 2020 and April 2021[94] and 34 attendances upon Dr Rhys-Maitland commencing 2017[95] with an 'out of pocket estimate' at $247 per attendance.  I have noted that the Appeal Book includes KMM's table of appointments in the period November 2021 to April 2022.[96]  Forty‑two appointments in that period are recorded for, variously, medical practitioners (eg Dr Sweeney), psychiatrists (eg Dr Rhys-Maitland, Dr Trowse), psychologists (eg 7 April 2022) and 'personal training as recommended by psychologist related to PTSD'.  Some of those appointments are for both KMM and AEG.  I fix compensation for loss from expenses that arise directly from the injury at: $10,000 for treatment, $1,000 for reports and $2,000 for travel, a total of $13,000. 

   [93] AP, 155.

   [94] AP, 118.

   [95] AP, 271.

   [96] AB, 63 - 67.

3. The assessor fixed $1,215 for expenses likely to be incurred as a direct consequence of the injury ie future treatment.  The Rhys‑Maitland 2021 Report anticipated bi‑monthly psychiatric visits for the indefinite future.  In the period 18 November 2021 to 12 April 2022, AEG regularly attended upon a psychiatrist.  I consider there to be a high likelihood of future psychiatric treatment.  I fix compensation for treatment that KMM is likely to need as a direct consequence of the injury (and payable in accordance with regime provided for in s 48) in the sum of $7,500. 

4. The assessor made no assessment for past or future loss of earnings as a direct consequence of her injury.  There is no evidence of AEG's progress in education or attempts at employment other than comments in the Kerimofski 2022 Report of AEG: completing primary school; not completing high school; preferring to attempt home schooling; completing a Certificate III at TAFE; not being currently engaged in education; with support, being capable of completion of university work.  There is no basis for an award of compensation for past loss of earnings.  However, I consider that a global award for economic loss is appropriate given the evidence of AEG's economic prospects having been compromised by reason of the SG Offences.  My view is that the best measure of compensation is an award of $30,000, broadly, reflecting the cost of individual academic support of AEG at $100 per hour for two to three hours per week for each teaching week of the academic year for the three to four year period of a typical university course. 

Conclusion

1. The appeal is allowed. 

2. There will be an award of compensation to KMM of the following: (a) $20,000 for her injury; (b) $8,000 for expenses that arose directly from her injury; (c) $2,000 for expenses that are likely to be reasonably incurred by KMM for treatment as a direct consequence of her injury (subject to s 48).  The total compensation award is $30,000. 

3. I consider each of the two KMM Proven Breach Offences to be related offences for the purposes of calculating the maximum compensation under s 33.  Each was committed at exactly the same time and the facts underlying each offence was identical.  KMM is also a (secondary) victim of each of the AEG Proven Assault Offences and the TBG (Alleged) Child Harm Offence.  The compensation award of $30,000 in favour of KMM is less than the jurisdictional limit of $150,000 compensation that may be awarded in favour of KMM as a victim of the SG Offences. 

4. There will be an award of compensation to AEG of the following: (a) $30,000 for her injury; (b) $13,000 for expenses that arose directly from her injury; (c) $7,500 for expenses that are likely to be reasonably incurred by AEG for treatment as a direct consequence of her injury (subject to s 48); (d) $30,000 for loss of earnings suffered by AEG as a direct consequence of her injury.  The total compensation award is $80,500. 

5. I do not consider any of the five AEG Proven Assault Offences to be related offences for the purposes of calculating the maximum compensation under s 33.  None were 'committed at approximately the same time'.  Although each offence is an 'assault', that fact alone does not, in my view, justify the characterisation of them being related for 'another reason'.  In any event, AEG is also a (secondary) victim of the KMM Proven Breach Offences and the TBG (Alleged) Child Harm Offence.  The compensation award of $80,500 is less than the jurisdictional limit of $150,000 that may be awarded in favour of AEG. 

1. The assessor made an order pursuant to s 45(1)(a) barring proceedings under pt 6 in relation to KMM's Compensation Award and AEG's Compensation Award.  The assessor's reasons do not contain reasons for the barring order.  SG was excused from attendance on the appeal after indicating that he did not wish to be heard except if the court proposed to 'interfere with the barring order' of the assessor.[97]  The CEO, in the role of amicus, did not submit that the barring order be disturbed.[98]  I consider it appropriate, for a combination of reasons, not to disturb the barring order of the assessor.  First, SG has not participated in the appeal hearing.  Secondly, these reasons include a finding of SG having committed the TBG (Alleged) Child Harm Offence.  Thirdly, an assessor may, on an application by the CEO, cancel the barring order: s 45(2). 

   [97] Letter Havilah Legal to District Court dated 3 November 2022.

   [98] AmWS [108]  The amicus curiae does not submit that the court ought to disturb the barring orders in this appeal, particularly in the context of the previous relationship between the First Appellant and the Respondent.

2. The orders are as follows:

   1.Excepting for the orders of the assessor made on 18 November 2021 barring proceedings under pt 6 of the CIC Act in respect of awards in favour of KMM and AEG, the appeal is allowed.

   2.The sum of $30,000 is awarded to the appellant KMM, inclusive of the amount of $2,000 which is subject to s 48 of the CIC Act as compensation for injuries and losses.

   3.The sum of $80,500 is awarded to the appellant AEG, inclusive of the amount of $7,500 which is subject to s 48 of the CIC Act, as compensation for injuries and losses. 

   4.The time for commencing the appeal is extended until 7 July 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

SC

Associate to Judge Flynn

5 DECEMBER 2023

CCS Act, s 28 When child in need of protection (1) In this section - emotional abuse includes - (a) psychological abuse; and (b) being exposed to family violence; harm, in relation to a child, means any detrimental effect of a significant nature on the child's wellbeing, whether caused by - (a) a single act, omission or circumstance; or (b) a series or combination of acts, omissions or circumstances; neglect includes failure by a child's parents to provide, arrange, or allow the provision of - (a) adequate care for the child; or (b) effective medical, therapeutic or remedial treatment for the child.