LS v SL
[2023] WADC 8
•9 FEBRUARY 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: LS -v- SL [2023] WADC 8
CORAM: SWEENEY DCJ
HEARD: 15 JUNE 2022
DELIVERED : 9 FEBRUARY 2023
FILE NO/S: APP 59 of 2021
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: LS
Appellant
AND
SL
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: C F HOLYOAK-ROBERTS
File Number : CIC 3064/2017
Catchwords:
Criminal injuries compensation - Criminal Injuries Compensation Act 2003 (WA) - Victim committing an offence when injured - Victim disentitled to compensation - Related offences - Provocation - Unwilled act
Legislation:
Criminal Code (WA), s 23A, s 27, s 245, s 246
Criminal Injuries Compensation Act 2003 (WA), s 33, s 39, s 41, s 56
Result:
Appeal allowed
Compensation award made
Representation:
Counsel:
| Appellant | : | Mr N F Morrissey |
| Respondent | : | In person |
| Amicus Curiae | : | Ms H M COWIE appeared on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Patrick J Cannon Coburn & Associates |
| Respondent | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Bennett v The State of Western Australia [2012] WASCA 70
Briginshaw v Briginshaw (1938) 60 CLR 336
DR v CD [2018] WADC 148
Evans v The State of Western Australia [2011] WASCA 182
Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441
Hinchcliffe v Hinchcliffe [2010] WADC 78
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Mickelberg v Director of Perth Mint [1986] WAR 365
Puterangi [2017] WADC 168
R v Cook, Hartigan and McCart [1995] 2 Qd R 77; (1994) 74 A Crim R 1
Re Tilbury [2010] WADC 46
S v Neumann (1995) 14 WAR 452
Stingel v The Queen (1990) 171 CLR 312
Stocker v Loeper [2001] WASC 176
SW v BB [2010] WADC 86
The Queen v Falconer [1990] HCA 49; (1990) 171 CLR 30
Town of Mosman Park v Tait [2005] WASCA 124
X v McAllister [2021] WASCA 3
SWEENEY DCJ:
Introduction
This is an appeal from a refusal by the Chief Assessor for criminal injuries compensation (the assessor) to award compensation to the appellant pursuant to the Criminal Injuries Compensation Act 2003 (WA) (the Act) in respect of injuries arising out of two offences committed against him within a matter of minutes on 2 March 2014, when he was 14 years old.
The offender (the respondent), also a juvenile, pleaded guilty to assault occasioning bodily harm and causing grievous bodily harm and was sentenced on 8 August 2014 in the Children's Court by the learned President. There is some confusion in the description of the respondent: in these proceedings he is described as SL whereas, in the prosecution file, his name has been initialised as CBL. The respondent has played no role in the compensation proceedings before the assessor or this court. It is readily apparent from all of the materials that there is no confusion as to which incident of offending is under consideration. I will refer to him as the respondent or, where necessary, SL, by whom I mean the offender who was sentenced by the Children's Court on 8 August 2014 in PE 789 of 2014.
For reasons which appear below, I allow the appeal, and make an award of compensation to the appellant in the sum of $75,000, being the maximum that can be awarded.
Nature of appeal to this court
Pursuant to s 56 of the Act, this court must decide the application for compensation afresh on the evidence and information that was before the assessor, but subject to granting leave to adduce further evidence, which should be given unless it would be unjust to do so: Re Tilbury [2010] WADC 46 [3]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9]. This court may confirm, vary or reverse the assessor's decision or any part of it. The court is not 'fettered' by the assessor's decision, and it is not necessary for the appellant to establish error in the assessor's decision. It is apparent that, in hearing the matter afresh, I may substitute my findings of fact for those of the assessor.
Given that the assessor made no assessment of compensation at all, and that I have adopted a quite different approach to the resolution of the factual issue which the assessor regarded as disentitling the appellant to compensation, it is not necessary to weigh in on the question of the differing lines of authority in this court concerning what regard may be had to the assessor's reasons. I will refer to those reasons only by way of background to explain my reasoning.
The offences occurred on 2 March 2014 and the application for compensation was filed on 11 September 2017. The time limit for filing an application is three years from the date of the offences: s 9(1). The application was filed six months and nine days out of time. There is power to extend that time if the court 'thinks it is just to do so and may do so on any conditions that he or she thinks it is just to impose': s 9(2).
I have had the benefit of supplementary submissions on this issue filed by the amicus curiae representing the Chief Executive Officer of the Department of Justice. I grant leave to bring the application out of time for the following reasons: the appellant was 14 years old at the time of the offences and must still have been a child at the time the three year limit expired, he received a serious brain trauma which continues to affect him, and those effects impact on his ability to make decisions and to be motivated, the appellant is a disadvantaged person in any event, the delay is not insignificant, but nor is it egregious, the respondent has played no role in the matter including this appeal, there is no prejudice occasioned by the delay and the appeal has merit.
The refusal of compensation was formally announced by the assessor on 4 August 2021 and the appeal was filed within time.
Reasons for refusal of application by Criminal Injuries Assessor
By way of background, in a letter dated 10 September 2019 to the appellant's legal representative, the assessor expressed her preliminary view that
… in engaging in a fight and challenging the offender to a fight on both occasions amounted to disorderly conduct, an offence, and therefore I ought to refuse your client's application', pursuant to s 39 of the Act… If you can satisfy me I ought not to refuse your client's application under section 39, then it is my alternative view to refuse your client's application under section 41 as your client's conduct in inciting the fight with the offender on both occasions has caused your client's injury. Your client had two opportunities to walk away and took neither of them causing the offender to act and injure your client.
In a subsequent letter dated 18 January 2021 to the appellant's legal representative, the assessor wrote:
…having viewed the mobile phone footage I am satisfied your client appears to have intervened in an argument between his friend and the offender in relation to the first time he was punched. It was during that intervention, whilst he was arguing with the offender for a very short period of time, that without warning the offender punched your client to the face causing him to fall to the ground unconscious.
The mobile phone footage does not cover the second incident other than its aftermath showing your client on the ground unconscious attempting to be pulled up by friends. As such I am to rely on the information obtained in the police documents to which I referred previously in my letter of 10 September 2019 and remain of the view as stated therein, that your client was engaging in disorderly conduct when the offender punched him causing him to fall to the ground a second time. I do not accept that your client was semiconscious and did not know what he was doing in pursing (sic: pursuing) the offender after the first punch, nor that he lacked the mental capacity to understand the nature of his conduct when he was punched for a second time. Your client, having been punched the first time by the offender, ought not to have pursued the offender for the second time. In doing so he has engaged in disorderly conduct and I remain of the view I ought to refuse his application.
It is apparent from those reasons that the assessor had primary regard to the witness statements on the prosecution brief, with her preliminary impression being modified by the mobile phone footage of the first incident which was later obtained from the Police. No reference was made to the transcript of the sentencing proceedings.
It is implied, at least, that the assessor resiled from her initial conclusion that the appellant had been committing an offence at the time he was the victim of the assault occasioning bodily harm, although no award of compensation was made to him on that limited factual basis. It is plain, though, that her conclusion that the appellant was committing an offence at the time he was the victim of an offence of grievous bodily harm remained unchanged.
Issues for determination by this court
There is no issue that the appellant did genuinely suffer the injuries complained of and the medical evidence satisfies me that he did. Causation is likewise uncontroversial; there is no doubt that the respondent caused the injuries suffered by the appellant. It is likely the injuries were caused or predominantly caused in the second incident, but the first incident cannot be ruled out as having caused some brain injury, the severity of which was increased by the second incident.
The key issue is both a factual and legal issue: am I satisfied on the balance of probabilities that the injury was suffered at a time when the appellant was himself committing an offence? If the answer to that question is 'yes', he is disentitled to an award of compensation: s 39. If he was not committing an offence at the time of the assault occasioning bodily harm, but was at the time of the grievous bodily harm, an issue will arise as to what compensation might be ordered.
If he was not committing an offence at either time, consideration must be given to whether, pursuant to s 41, compensation should still be refused, or reduced, on account of any behaviour or attitude on his part which contributed to his injury. And finally, if he is entitled to an award of compensation, a question arises as to the applicable maximum allowable, and then the quantum of the appropriate award.
I turn firstly to the question of whether the appellant was committing an offence when he was injured.
Section 39 of the Criminal Injuries Compensation Act
Section 39(1) of the Act provides:
39.No award if victim was engaged in criminal conduct
(1)If an assessor is satisfied -
(a) that a person was injured as a consequence of the commission of an offence; and
(b) that the injury was suffered when the person was committing a separate offence,
the assessor must not make a compensation award in favour of the person.
The Court of Appeal in Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 determined that the natural and ordinary meaning of the word 'when' in s 39(1)(b) is 'at the time that', and that the section does not require a causal connection between the injuries suffered by the appellant and any separate offence being committed by him, but simply a temporal one: [31] - [33]. Martin CJ (with whom Newnes and Murphy JJA agreed) said [32]:
The evident purpose of s 39 is to preclude the payment of compensation to a person who suffers injury as a consequence of the commission of an offence when that person is themselves engaged in criminal conduct. That evident purpose would be defeated if too narrow or precise a view is taken of the temporal connection between the offence giving rise to the injury for which compensation is claimed, and the offence committed by the claimant. Take the obvious example of a claimant seeking compensation for injury suffered during an assault which was the retaliatory response to an assault which the claimant initiated but the retaliation went beyond self-defence. It would very often be the case that the offence in the form of the initial assault committed by the claimant would have been completed before the retaliatory response occurs, with the result that if the matter is approached by reference to precise instance in time, it could not be said that the two offences were committed 'at the same time'. Another obvious example is the case of the claimant who suffers injury as a result of an offence committed while fleeing from the scene of a crime which he or she committed, but which was complete at the time injury was suffered. It is clear from the language used in s 39 of the Act, and from the secondary materials referred to by the District Court judge, that it was intended that compensation would not be available in either of these examples.
And then later Martin CJ commented [42]:
Put another way, it is clear from the Act as a whole that it reflects the legislative intention to provide compensation to victims of crime in some but not all circumstances. There are a number of provisions of the Act which limit the circumstances in which compensation is available … In light of these (and other) provisions of the Act, it would be wrong to approach the construction of the Act on the basis that it reflects a legislative intention that every victim of crime should receive compensation under the Act.
'Offence' is defined in the Act to mean an alleged offence or a proved offence, and an 'alleged offence' is defined to mean a crime, misdemeanour or simple offence of which no person has been convicted. It is not necessary that the appellant have been convicted of any separate offence before s 39 operates to disentitle him to compensation.
I consider, however, that the reference to an 'offence' within the context of s 39 is a reference to an offence rendering the person applying for compensation liable to punishment and that, therefore, the provisions of the Criminal Code (WA) (the Code) relating to criminal responsibility and defences and excuses are applicable. Martin CJ in Attorney General for Western Australia v Her Honour Judge Schoombee, impliedly accepted that proposition [56]:
SW also asserts that it should be concluded that she did not commit the offence of using amphetamine after she was sexually assaulted, because she was only doing so under duress, in the sense that her purpose was to distract BB from further sexual offending. However, whether or not that proposition can be made good is a question of fact for the Assessor or a District Court Judge, not for this court.
Section 3 of the Act defines 'satisfied' to mean satisfied on the balance of probabilities. Given that what is contemplated is proof of a criminal offence by the appellant, and given that such a finding against a victim disentitles him to compensation for serious injuries, I consider that the comments of Dixon CJ in the case of Briginshaw v Briginshaw (1938) 60 CLR 336, 361 - 363 are apt. Satisfaction should not be produced by 'inexact proofs, indefinite testimony or indirect inferences' and, even though this is a civil matter, weight ought still to be given to the presumption of innocence.
Appellant's ground of appeal and argument
The appellant appeals on the basis that the assessor wrongly held that he was committing a separate offence at the time he was injured.
As to the first incident which gave rise to the offence of assault occasioning bodily harm against him, it is the appellant's position that he was not committing an offence at the time and was struck without warning. As to the second incident which occurred shortly after the first, it is accepted that the appellant approached the offender and shaped up to him, however the appellant submits that, at the time he approached the offender in relation to the second incident, the appellant was in such a state of mental impairment as to be able to avail himself of the defence of insanity (s 27 of the Code) and/or that his actions constituted an unwilled act (s 23A of the Code), such that he should not be held criminally responsible for his actions.
At the invitation of the court during submissions, counsel also placed reliance upon s 245 and s 246 of the Code relating to provocation.
Evidence which can be considered
The Department of Justice Criminal Injuries Compensation file has been placed before the court. It contains the original application form, a statement from the appellant's mother, a letter from the appellant and another document that counsel referred to as his victim impact statement, the Police incident report, the statement of material facts, a Royal Perth Hospital discharge letter for the appellant, reports from Dr Bala dated 30 October 2017 and 29 August 2017, the running sheet and various witness statements, and correspondence between the assessor and her office and the appellant's lawyer.
Also before the court is the two-volume file from the Office of the Director of Public Prosecutions (ODPP), which the court was informed was produced to the assessor, consistent with the notice to produce and movement record at the front of the file. The ODPP file contains the transcript of the sentencing proceedings of the offender on 1 and 8 August 2014, as well as the prosecution brief and correspondence, with some redactions.
The appellant sought leave to put additional evidence before this court by way of a further report from Dr Bala dated 1 June 2022 as well as a Royal Perth Hospital discharge letter for the appellant. The further report (unlike the first two) addresses issues of unsoundness of mind and involuntariness. I understand part of the discharge letter was before the assessor, but not the full document.
There is no injustice in this court having regard to the further report from Dr Bala and the full discharge letter from the hospital. No opposition was raised at the hearing to the tender of the documents and justice requires the documents be put before the court, and so leave was given during the hearing for the additional materials to be placed before the court.
Sentencing of the respondent and Judge's findings
The starting point for determining the key issue is the transcript of the sentencing of the respondent. In Western Australia, evidence of a conviction is admissible as prima facie evidence of the facts giving rise to the conviction in subsequent civil proceedings between the person convicted and another party: Bennett v The State of Western Australia [2012] WASCA 70, [64] (Martin CJ), citing Mickelberg v Director of Perth Mint [1986] WAR 365. Where issues arise as to the identification of the precise facts evidenced by the conviction (beyond those necessarily underpinning the conviction) the record of the trial and the facts found by the trial judge or, in the case of a plea of guilty, the facts admitted for sentence and any facts found by the sentencing judge establish the facts of the conviction: Bennett v The State of Western Australia [67].
At the sentencing of the respondent before then President Reynolds, the prosecutor presented the statement of material facts (the names of the various children have been initialised in the passage reproduced below, LS being the appellant) as follows:
Your Honour, the victim in this case - LS, 15 years of age, slim build - the offender, 17 years of age, medium build. Between 6.00 and 6.30 on the morning of Sunday, 2 March 2014, the offender was at the carpark behind JCS Motorcycles on the Great Eastern Highway in Burswood. The offender was present in a group that consisted of approximately 13 children aged between 11 and 17 years of age, both male and female.
The group was loitering in the area, arranging fights with each other. The victim and the offender approached each other, and the victim was speaking to someone else. The offender walked up to the victim about half a metre away. The victim looked at the offender, and without warning the offender struck the victim with a closed right fist to the left side of his jaw. The victim fell to the ground unconscious. The victim had no time to defend himself and was caught unexpectedly.
And I would pause and say to your Honour that that is - those facts are consistent completely with what the State says can be observed in the footage, which is that the victim is not being aggressive or confrontational towards the offender at any stage, and there appears to be no warning for the throwing of the punch. The victim was assisted by friends and eventually came to. Now, what happened then was that there's a separating of the group.
However, the victim subsequently again approached - the victim subsequently approached the offender, where they stood in fighting stances and began to exchange punches. One of the punches thrown by the offender connected with the victim, knocking the victim to the ground. The victim's head hit the kerb, resulting in him losing consciousness. Paramedics were called and the victim was taken to Royal Perth Hospital, where he had to be resuscitated on the way.
As a result of the offence he was placed into an induced coma. He sustained bleeding to the brain and swelling. He sustained a laceration to the top right of his skull. The victim was for a time described as being in a stable but critical condition. I should advise the court that although there is no victim impact statement, the State has attempted to establish whether or not there is any continuation of injury or whether matters are resolved.
I understand that the - bear with me a moment. There is no - the victim was hospitalised for three months in total. He still takes medication. The complainant's mother has advised Victim Support Services about problems with the victim's memory and concentration span, and there is significant change in personality. But that's as far as I can take the ongoing medical condition. The victim was spoken to directly on 24 July but there is no intention to present a victim impact statement. Your Honour, those are the facts.
Amongst the matters put by way of mitigation, defence counsel firstly informed the court that he understood that it was accepted by the prosecution that there had been a prior incident where the appellant 'may have acted in an unfortunate manner'. That was a reference to mention in the witness statements of an alleged assault by a few boys, including the appellant, upon a stranger, an adult, several hours prior to the incident in which the appellant was injured. The nominated victim had not wished to make any complaint. The State prosecutor immediately stated that that allegation was not accepted, and that defence counsel had been informed of that in writing. Whatever may or may not have occurred, it could not have been mitigatory.
Defence counsel then submitted that the respondent had come upon his young cousin, MA and that, although they are related, there was some issue between them and the respondent and MA had agreed to go and have it out, 'a dust up'.
Defence counsel submitted that the appellant had gone along too and the respondent, who was very inebriated, thought about the whole situation, considered MA to be significantly smaller than him, and thought that it would be fairer if the fight occurred between MA and another delegate of the respondent. Defence counsel suggested that this was 'a scenario of a fight club occurring in Burswood at 6 o'clock in the morning' and suggested that the young males were trying to impress the young females who were present.
Defence counsel suggested that the court should regard the statement from the witness DLSH as being relevantly reliable in relation to how the two young men first came to confront each other. That was a difficult proposition to make good, however, when DLSH had described the appellant as having walked up to the respondent as he and his cousin were walking away, a description at odds with the mobile phone footage and not accepted by the prosecution. Defence counsel described it as
a situation where they're eyeballing each other, and one can make their own assessment of their relative stature. It's a single blow. It's a single application of force. It has significant, immediate and obvious consequences. And as indicated by the witnesses, they were recorded without reviewing the vision, I would have thought, that the young man was knocked out for a short period of time. Three minutes is the estimate.
Defence counsel then turned to the second incident, the subject of the charge of grievous bodily harm. Defence counsel submitted:
The subsequent incident - which was in very short order - seems to have arisen after the complainant has regained to some extent - one has to say this - but regained his senses. And my client is moving away, and it's in a less - if this location could have been appropriate in any relevant sense. But it's certainly a less appropriate situation.
It's certainly unstructured, and it's a situation where - as you will have seen from the statements - that LS has sought out my client. My client has been consistent in that regard to me about the whole situation. And it is perhaps there that your Honour can give due weight to the witness statements in assessing who was the aggressive party in that incident. We say that my client was not the aggressor in the same way that he was in the first incident.
It is to be completely contrasted, as a consequence of that, as to the relative responsibilities. The complainant was told by my client, 'I've already knocked you down. Give it away.' In the report the word is a bit more basic. I won't repeat it; it's not appropriate. But it is a situation where I have told my client that if he was well aware - as he accepts - that he had knocked the complainant out, that he could well have been concussed. Most likely was.
And that his position and situation meant that he was clearly not necessarily behaving in an appropriate manner, possibly as a result of what had occurred earlier. …
… It is a situation where the complainant has taken a swing at my client, and regrettably in a manner that would have to be seen as excessive, in all of the circumstances. My client has responded in a like manner. Has hit LS. Whether he has knocked him to the ground with force or whether LS has tripped over the kerbing that he struck his head on is a matter of speculation.
But I have explained to my client that he simply should have tried to back away and gone into a defensive posture. And just to have shown some greater discipline about his behaviour. It is excessive self‑defence that has led to my client considering his position carefully in relation to the whole matter. And, as I say, whatever else arose about the uncertainty about how the incident came to pass, his response to that second altercation is to be contrasted to what occurred earlier, where he walked off and left the complainant in the hands of those who are better associated with him.
No doubt not wanting to cause distress when LS came to and saw the person who had just hit him to the ground present. And, as I say, in the next occasion he immediately ascertained that there was significant consequences. He prevailed upon his cousin to call for the emergency services. He attended to him personally with clothing - be it a shirt or a jumper. And, as I say, my understanding is that there was an immediate sobriety on his part that he realised that this is just got completely out of hand.
The prosecution, in response, did not accept the tenure of those submissions, commenting on the 'subtle attempt to sully the good name of the complainant' and suggesting that the intent of the submission was 'to suggest that LS is the author of his misfortune'. The prosecutor summed up the submission as:
An absolute nonsense, and it's inappropriate, and it's not something the State is prepared to accept. The fact of the matter is that the video footage shows quite clearly this offender was the aggressor. He's the one that walks up to the complainant and, without giving the complainant any opportunity whatsoever to protect himself, punches him and knocks him out. It's not a fight club. It's not a fair fight. It's not fisticuffs between two people who want to engage in some pugilistic activity.
It is the act of a coward. It is an aggressive act by somebody who decides to knock someone out, and give them no warning whatsoever. Now, my friend wants to ignore all of that when we deal with the second punch. …
He hadn't sought to distance himself from anything. He punched somebody, knocked them out, and callously walked away. That's what he had done. If that's seeking to distance yourself, I need to reappraise my understanding of the English language. He knocked somebody out and left them on the ground for other people to look after …
What happened the second time is an exact - is really the same thing. He knocked him out again. And when he knocked him out again there is some assertion from him that he warned him that that's what he was going to do. So when he punched him the second time he knew what he could do, and he did it. Behaved in a violent manner. The complainant - yes, he approached the offender. Should he have done? Probably not. But why did he approach him? Because he had just been knocked out by the offender.
Let's not divorce the one from the other. This is not the complainant walking up to the offender for no reason at all. 'Just walked up to me and started being aggressive to me.' No. He has walked up to him because he has just been laid out by the bloke. He's not happy about it. I'm (sic) misguided. I think the people in this courtroom would see the conduct of the complainant as misguided. But let's not forget what its genesis was.
And the offender, instead of turning and walking away decides to fight him. I won't describe what happened as a fight. Describe that as a cowardly attack. And he punches him again. …
… It's often said in assaults that the potential consequences are a matter of luck, not judgement. And here is the example of that. Where somebody suffers exceptionally serious consequences. Where they're placed into a coma. Where they have swelling on the brain. These were life threatening injuries. LS is lucky he's alive. He could be dead because this offender decided he was going to be the big man. That he was going to punch him in the face.
'I've shown you once. I will show you again. Yes. I'm in charge here. I'm the big one. I'm the fighter. I will just lay you out again the same as I did before.' That's what happened. Not excessive self‑defence. It's thuggery, pure and simple …
The sentencing was concluded on 8 August 2014. As part of his sentencing comments, the learned President stated:
Now, as to the factual circumstances, (SL), there are the two incidents, but I think there is a connection between the two. I don't think it can be properly said there's a single incident with the bodily harm, and that's just separate and discrete, and then subsequently we have another separate and discrete incident, which involves the grievous bodily harm. Now, there has been some surveillance footage of the first incident, the actual incident itself, the punch, but there hasn't been surveillance footage of the actual incident the subject of the unlawful grievous bodily harm but there's footage of what has been happening around the time. In relation to that assault occasioning bodily harm, it's clear from what has been said, and from what I've seen, that you've walked up to LS, the victim, and without warning you've given him a fist to the jaw, and that was completely unexpected by him.
He hadn't been aggressive towards you, or been up in your face at all; you just walked up and, essentially, king hit him. And as a result of that blow, which was obviously forceful, he was knocked out and he was lying on the ground and people went to his assistance. You didn't. He eventually came to, and then a relatively short time after that he has approached you. There has been an exchange of punches between the two of you, but at that stage, it can't be said that what was then happening was in no way related to what had happened initially.
He obviously came over to you because you had knocked him out, and he was not happy about that, and one can understand that. And the point to be said about it is that when he came over to you, it would have been pretty clear to you that he wasn't in very good condition; he couldn't have been, he had just been knocked out only a short time before, and you knew that. You did it. And indeed, you said something to him along the lines that, 'Well, you know, I've already knocked you down once,' and then you punched him again, and then he went down.
Now, whether it's that punch or whether it's as a result of his head hitting the kerb or the ground, it doesn't matter in the overall scheme of things, he sustained bleeding to the brain, swelling, laceration to the head, which required him to be hospitalised and receive medical attention. And that sort of injury did require medical attention and urgent medical attention. It was a life threatening injury. He was hospitalised for three months, I'm told, and it is accepted.
He has been discharged, but he still takes medication, and I'm told by the prosecutor that the information they have, from his mum, I think, is that his memory and concentration have been impaired. So there has been a serious impact to LS as a consequence of the unlawful grievous bodily harm. So those two incidents, and particularly the second, need to be looked at in the context of the overall interaction between the two of you, which included that first cowardly punch by you when he was totally vulnerable, arms down, talking, and he didn't expect it.
So they're both very serious offences of their kind.
His Honour then detailed the various matters which he took into account in mitigation. Consistent with the learned President's comments quoted above, no mention was made of any mitigation being afforded on the basis that the appellant had been the aggressor in the second incident. The learned President concluded:
When I put everything together, (SL), what I've concluded is that whilst there are a number that I've referred to of very significant, powerful, mitigating factors which, considered overall, are even more powerful in mitigating, the circumstances of these offences and particularly the grievous bodily harm offence and the need for general deterrence are such that they overwhelm all those favourable considerations to the extent that only immediate detention is appropriate …
I have decided that the appropriate sentence for the assault occasioning bodily harm is 1 year's immediate detention and for the grievous bodily harm, 2 years 6 months' immediate detention.
Now, I've already spoken about the connection between these two matters. Whilst they're two charges, the second, really, is connected to the first and, given that, I've decided that both terms should be served concurrently.
I consider then that the facts for the purpose of this judgment are those constituted by the record of the court, consisting of those facts put for sentencing purposes which were accepted by the respondent and the findings made by the sentencing judge. The learned President found that the appellant did not cause or provoke the first assault upon him. The learned President accepted that, having been knocked unconscious and then having regained consciousness, the appellant then approached the respondent, faced him and the two began exchanging punches, that the appellant was understandably unhappy about the previous blow by which he had been knocked unconscious, and that he was also not in very good condition and that the respondent was aware of that. The learned President gave no apparent mitigatory value to the submissions that the appellant was in effect the aggressor on the second occasion, finding that one could not divorce the second incident from the first. The learned President made no finding in favour of the respondent that he had warned the appellant before the second blow. Either his Honour did not accept that fact or considered it to be of no mitigatory value worth mentioning, and therefore not requiring a finding either way, consistent with the prosecutor's stance.
They being the facts as revealed by the record of the court and the findings of the learned sentencing judge, I consider it wrong in principle to reach any finding of fact which contradicts those facts as found: as to the principles of the incontrovertibility of the conviction and the facts underpinning it as revealed by the record of the court, see Bennett.
It is also wrong in principle to have regard to the Police statement of material facts, or any outline of facts in a Police incident report, if those facts are not the same as those presented to the court by the prosecution at sentencing. If witness statements in the prosecution brief contain versions of the facts which differ from the facts presented to the court at sentencing - which will not uncommonly happen, with varying versions and potential negotiations between the parties - then the facts presented to the court and made the subject of findings by the sentencing judge represent the facts of the matter, not the witness statements or what may be inferred from them. If additional facts need to be decided for the purpose of the compensation application, then it is appropriate and not improper to make such findings as may be necessary to decide the issues at hand, provided any additional findings do not contradict or undermine the facts found at sentencing, which fall within the principle of res judicata.
What the mobile phone footage shows
Given that the learned President referred to the mobile phone footage, which clearly informed his findings and the statement of material facts presented by the prosecution, I have viewed it again (it was first played during submissions) and taken it into account so as to better inform the findings made, and any findings still to be made.
The first and longest of the three pieces of footage appears to have been filmed accidentally, given the camera angles. It shows a number of juveniles of various ages milling around, the respondent's cousin MA with his top off and approaching the respondent, who then moved very close to him, put his forehead right against MA's forehead and stayed there in that intimidating stance, while the two had words. Meanwhile, some girls standing near the phone can be heard wondering aloud why the boys were fighting.
The appellant then approached the respondent and MA and intervened, which had the effect that the respondent moved a bit away from the respondent, but stayed close and stayed focused on MA and the appellant. The appellant's actions were not aggressive or sudden. The appellant can be seen saying something to MA softly and then looking at the respondent, who approached him quickly and punched him out cold, then left immediately.
As a result of the blow to the head, the appellant dropped like a felled tree, with no protective movement to soften his fall, and hit the ground hard. It is apparent that he was unconscious before he hit the ground and then for a time afterwards. Defence counsel had described that time during the sentencing proceedings to be about three minutes. Others then pulled the appellant, prematurely it seemed to me, to a seated position.
The second piece of footage is shorter, and lacks the lead-up events of MA approaching the respondent, but captures the essential part of the first incident, including the blow, from a different angle.
The third piece of footage shows only the aftermath of the second incident, with the appellant unconscious on the ground and bleeding from the head. There is no footage of the second incident from an earlier point.
In written submissions filed by the amicus curiae, the observation is made that one piece of footage was produced with an assigned name '20140302_062211' and the piece of footage showing the aftermath of the second incident, with the appellant on the ground unconscious, was produced with the assigned name '20140302_062804', suggesting that the format of those names was capturing the date of the incident, 2 March 2014, followed by the date and time stamp of the relevant footage. Given that the standard of proof in these proceedings is the balance of probabilities, I accept that interpretation of those assigned names, and it is also likely that the mobile phones that produced the footage were connected to standard Western time and had not been set by the user to an inaccurate clock time. I infer the clock time refers to when the footage commences. The submissions do not nominate which of the two pieces covering the first incident has the assigned name. One piece of footage commences at an earlier stage in the first incident than the other.
That provides then a maximum timeframe between the beginning of the first incident and the end of the second incident, once the photographer decided to film the already unconscious appellant, of less than six minutes, and the time taken between the appellant having regained consciousness and then having approached the respondent was obviously rather less, a matter of only a few minutes. That timeframe was less again if the assigned name referred to the earliest and longest piece of footage. On any basis, the timeframe between the appellant regaining consciousness and approaching the respondent was brief.
Principles of law in relation to provocation
At the hearing of this matter (and with no opposition from the amicus curiae) the court invited the appellant to rely upon s 246 of the Code, which provides:
A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely to cause death or grievous bodily harm.
Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.
Section 245 relevantly provides:
The term provocation used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person… To deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.
The law in this State is that the provocation must be of such a nature that it 'could or might' (not 'would') have caused an ordinary person to lose self-control: Evans v The State of Western Australia [2011] WASCA 182 [127] (McLure P, with whom Mazza J agreed). McLure P found that the word 'likely' in s 245 means a real and not a remote possibility, and that therefore there is no material difference between s 245 and the common law.
Provocation then requires, amongst other things, for a person to be met with a wrongful act or insult of such a nature that it could or might have caused an ordinary person to lose self-control and to in fact have been deprived by that provocation of the power of self-control. There is no requirement for the response from the person provoked to have immediately followed the provocative act. However, there must be a sudden and temporary loss of self-control, such that a lengthy period of brooding, before retaliation, would defeat the defence: Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441 [68] and the cases cited therein. In determining whether a person was in fact deprived of the power of self‑control, the fact-finder takes account of the person's relevant personal circumstances and characteristics, including his age, to judge the gravity of the provocation, because it may be his personal circumstances that provide context to the wrongful act or insult. The content and extent of the provocation is assessed from the viewpoint of the person provoked: Hart v The Queen [49], citing Stingel v The Queen (1990) 171 CLR 312, 324 - 332.
In assessing whether the provocation was of such a nature that it could or might have caused an ordinary person to lose self-control, however, the fact-finder disregards any personal characteristics of the person apart from his age, where that might be relevant. As explained by McLure P in Evansv The State of Western Australia [135]:
… the ordinary person is projected into the shoes of the accused except for characteristics (or conditions such as intoxication) that reduce self‑control unless the characteristic is itself the subject of the provocative conduct, in which event, the gravity of the provocation increases but the power of self-control remains that of the ordinary person.
Conclusion in relation to provocation
Consistent with the findings of the learned sentencing judge, I find the first assault upon the appellant was unprovoked and unexpected, and was a forceful blow which knocked him unconscious. Although the learned sentencing judge did not make a clear finding about whether the appellant was provoked into pursuing and shaping up to the respondent - which led to the second blow - he came very close, in commenting that the appellant was understandably unhappy, that he was not in very good shape after the first blow and that the second incident could not be divorced from the first. In addition, there was no apparent mitigatory value given to the appellant having shaped up to the respondent.
The comment by the prosecutor at sentencing, to the effect that the appellant probably should not have approached the respondent but did so because he had just been knocked out by him, did not constitute some concession made by the prosecution at sentencing which is factually inconsistent with the proposition that the appellant was provoked.
In the absence of a clear finding at sentencing, it is necessary for this court to make a finding about whether the appellant was committing an offence in approaching the respondent before the second incident.
The appellant did not provide a witness statement in the prosecution - and was noted in the medical materials to have suffered amnesia as to the event. Inferences can be drawn, however, from the footage. When the appellant regained consciousness, he had every reason to feel extremely angry and aggrieved at the unexpected and unprovoked punch which had knocked him out. The precise period between his regaining consciousness and his catching up to the respondent and shaping up to him is unknown, but appears to have been a very short time, a matter of just a few minutes. Although he followed the respondent, the two locations of the first and second incidents were very close (as shown in an annotated aerial photo), such that those witnesses who did not cross Great Eastern Highway and instead went to the nearby delicatessen still heard the second incident and could see the appellant on the ground.
The inference is readily available from the appellant's subsequent actions that he was so angry that he lost control, particularly given that he can be seen in the footage to have been physically compromised by the first blow and period of unconsciousness and cannot have felt in any fit state to pursue the respondent or fight him, yet he pursued him. I find that the short period of time between the appellant having regained consciousness from the first assault, and the second assault, was such that there had not been time for his anger to cool. I further find that the force used or at least attempted by the appellant was not disproportionate to the force used against him in the first incident which provoked him - it was less than he had suffered at the hands of his assailant.
In assessing the capabilities of the ordinary man, in this case the ordinary 14-year-old, the court does not take into account any mental condition or vulnerability or personality traits particular to the person provoked which might tend to reduce his power of self-control.
I accept Dr Bala's opinion detailed in his additional report dated 1 June 2022 that the appellant was at least concussed as a result of that first assault. Having observed the footage in which the appellant regained consciousness after the first assault, Dr Bala assessed the level of his concussion at that point as 'significantly impairing his volitional and cognitive capacities in continuing the fight'. The witness DLSH said the appellant could barely keep his balance, and the footage shows how affected he was. Dr Bala also commented in his supplementary report, detailed below, that the severe brain injury suffered by the appellant may have commenced in the first fall - when he dropped like a felled tree onto hard ground - and been worsened by the second.
It is not entirely clear to me on the state of the case law whether the physical injury of concussion suffered in the first incident - which was not particular to the appellant and would have been suffered by any ordinary 14-year-old following that assault - can be taken into account in assessing the self-control of the ordinary 14‑year-old, or is restricted as to its use for the purpose of assessing the extent of the provocation only.
It seems to me that to include the physical injury to the brain in the profile of the ordinary 14-year-old is a different thing to taking account of the mental condition or vulnerability or personality traits particular to this appellant. The passage quoted earlier from Evans [135] does not quite answer that question for me, because the concussion was not the 'subject' of the provocation - as, for example, a racial slur or some comment about appearance might be the subject of the provocation - but rather the physical result of it. I do not need to resolve that as, taking a conversative view of the case law and accepting that the concussion is not to be taken into account and that I am considering the self-control of an ordinary 14-year-old who is not concussed, I consider that an ordinary 14-year-old could have been provoked by that first punch and consequent lack of consciousness to such an extent that he would lose control and instinctively seek to retaliate. Further, I find that the appellant was provoked and acted in the heat of the moment to pursue his assailant and shape up to him and start fighting, being so outraged by the earlier punch that he did not even take into account his own likely vulnerability.
Accordingly, the appellant was not criminally responsible for any assault constituted by his approach to the respondent in the second incident, shaping up to him and/or throwing any punch.
The learned assessor put some weight on the contention that the respondent attempted to talk the appellant out of shaping up to him in the second incident and so I will address that before I leave this issue. That was not the subject of a finding by the learned President at sentencing and accordingly I have reviewed the witness statements.
Given the complete disparity between what was objectively captured on the mobile phone footage of the first incident and the witnesses' varying descriptions of it, it is difficult to place much weight on anything that the witnesses said. In any event, most of the witnesses claimed to have been away from the action at the time of the second incident (even where others placed them at the scene) and/or looking in the wrong direction at the operative moment. Only one witness, KAD (who had given an inaccurate description of the first incident), described having heard the respondent telling the appellant that he did not want to fight him before the second blow. KAD said she heard the respondent say 'I don't want to fight you. I've already knocked you out, let's leave it at that', but the appellant kept arguing with him and they started fighting, and the next thing she recalled seeing was the appellant falling to the ground. The only other witness who gave a description of the second incident was DLSH, whose description of the second incident and how the appellant and respondent came to be together differed markedly from KAD's description. DLSH made no mention of the respondent trying to talk the appellant out of fighting, although she was close enough to the action to see the appellant start bleeding from the head when he hit the ground. The court does not have access to any interview given by the respondent.
The prosecution at sentencing did not concede that the respondent had tried to talk the appellant out of fighting in the second incident but, in any event, saw no mitigation in a factual scenario in which the respondent knew full well that he had the ability to knock the appellant out again, told him that he would, and then did. The learned sentencing judge made no finding that it did or did not occur, and it was not mentioned as a mitigatory feature.
On the basis that the appellant may have been warned by the respondent that he would be knocked out again, my conclusion is unaltered. Firstly, the appellant was provoked to act as he did and lost control, as evidenced by his attempting to fight the respondent when he was clearly in no fit state to do so. Secondly, the appellant was concussed. Any warning he may have received was highly unlikely to have had any influence on him.
Before leaving this topic, I turn to the written submissions filed by the amicus curiae to the effect that the offences of taking part in an unlawful assembly contrary to s 63 of the Code, fighting in public contrary to s 71 of the Code and disorderly conduct contrary to s 74A of the Code ought be considered.
I do not consider that the facts of the matter raise a potential offence on the part of the appellant of taking part in an unlawful assembly. Section 62(1) defines the concept of an unlawful assembly as follows:
When 3 or more persons, with intent to carry out some common purpose, assemble in such a manner, or, being assembled, conducted themselves in such a manner as to cause persons in the neighbourhood to fear, on reasonable grounds, that the persons so assembled will tumultuously disturb the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons tumultuously to disturb the peace, they are an unlawful assembly.
Significantly, s 62(4) provides that
when an unlawful assembly has begun to act in so tumultuous a manner as to disturb the peace, the assembly is called a riot, and the persons assembled are said to be riotously assembled.
In considering the concept of unlawful assembly contrary to s 61 of the Criminal Code (QLD), as it then was, the learned authors of LexisNexis, Carter's Criminal Law of Queensland, vol 1 (62/2001) [61.15] stated:
It is a question of degree whether any assembly of people can properly be said to be acting tumultuously. See JW Dwyer v Metropolitan Police District Receiver [1967] 2 QB 970; [1967] 2 All ER 1051, where Lyell J said that the words tumult, tumultuous or tumultuously are applied to an assembly of persons 'the impression is that the assembly should be of considerable size; that it should be an assembly in which the person is taking part are indulging in agitated movement; and excited, emotionally aroused assembly; and generally, though not necessarily, accompanied by noise.
In considering the concept of 'riot' the authors referred to the decision of the Queensland Court of Appeal in R v Cook, Hartigan and McCart [1995] 2 Qd R 77; (1994) 74 A Crim R 1 [84] in which Pincus and McPherson JJA said:
… if the tumultuous behaviour which makes the assembly a riot consists in the assembly moving in a threatening way, the accused must in our view be so moving, to support a verdict of guilty.
At the sentencing of the respondent, the material facts presented to the court included the statement:
The offender was present in a group that consisted of approximately 13 children aged between 11 and 17 years of age, both male and female. The group was loitering in the area, arranging fights with each other.
The facts as presented to the court indicated a group of children loitering, arranging fights. There was no detail of how many children were arranging fights, or actually fighting, it being unnecessary to the sentencing exercise. The mobile phone footage indicates that one (and therefore logically two) had probably been fighting prior to the footage commencing, one of them being MA, and then there is the first incident captured on film involving the respondent punching the appellant. Audio on one of the pieces of footage indicates that one or two of the girls watching were baffled and not happy about the fighting. Most of the group can be seen to be just standing around. The group was concerned with itself, not disturbing the peace generally, or moving as a mob against others, and there was no 'tumult' involved. The offence of unlawful assembly is simply not apt to capture the events of that morning.
The offence of fighting in public is obviously more apt to the circumstances. Section 71 provides:
a person who in, or in view of, a public place takes part in a fight with another person in circumstances that are likely to cause fear to any person is guilty of a crime …
I am not satisfied, however, that the appellant committed this offence. While 'the group' was loitering and arranging fights, there is no evidence that he took part in a fight at that location where MA was fighting, or was responsible for counselling or procuring another to fight, or aided or abetted another to fight. The mobile phone footage is inconsistent with the appellant engaging in a fight and certainly does not constitute evidence of him engaging in a fight, or aiding or counselling another to fight. The unexpected punch that knocked him out and sent him to the ground was not a 'fight' engaged in by the appellant.
As to the second incident, it can be said that the appellant was engaging or attempting to engage in a fight with the respondent but, as I have found that he was provoked and was therefore not criminally responsible for any assault which would constitute the fighting in public, he is likewise not guilty of an offence of fighting in public. It is unnecessary to decide whether the fight, such as it was, took place in circumstances in which it was likely to cause fear.
Turning finally to the suggested offence of disorderly conduct, s 74A(2) provides that a person who behaves in a disorderly manner in a public place or in the sight or hearing of any person who is in a public place is guilty of an offence. Section 74A(1) defines 'behave in a disorderly manner' to include:
(a)to use insulting, offensive or threatening language; and
(b)to behave in an insulting, offensive or threatening manner.
I am not satisfied that the appellant committed this offence. While others in the group were fighting and therefore behaving in a threatening manner, and there may well have been offensive or threatening language thrown around, there is no evidence that the appellant was threatening in the first incident. The footage suggests that MA had been fighting before the footage commenced but, at the start of the footage, MA was kneeling down on the ground before he then approached the respondent and discussed the fact that the respondent was drunk. MA appeared to be suggesting that a fight should take place on another occasion. In response, the respondent leaned into him with his forehead against MA's forehead in an intimidating manner. The appellant then approached the two which had the effect of separating them, talking to MA briefly, before the appellant was knocked out by the blow from the respondent and rendered unconscious.
As to the second incident, it can be said that the appellant was engaging or attempting to engage in threatening behaviour by assaulting or attempting to assault or threatening to assault the respondent but, as I have found that he was provoked and is therefore not criminally responsible for that conduct, he is likewise not guilty of any disorderly conduct constituted by the assault.
I am not satisfied that the injuries that the appellant suffered as a consequence of the offences of assault occasioning bodily harm and grievous bodily harm committed against him by the respondent were suffered when the appellant was committing a separate offence such as to bar him from receiving a compensation award pursuant to s 39.
In the circumstances it is unnecessary for me to make a finding as to whether, at the time the appellant received his injuries, his mind was unsound such that he was not criminally responsible for his actions or he acted involuntarily. He was not criminally responsible because he was provoked, and his actions were excused. Nevertheless, as this formed a considerable part of the appellant's argument, I will deal with it now.
Unsoundness of mind, automatism and unwilled act
Dr Siva Bala, psychiatrist, who had provided two reports concerning the appellant's brain injury, was additionally asked to review the video footage from the mobile phone and to express his opinion about the impact upon the appellant of the first assault and fall. It is apparent that Dr Bala had had access to the assessor's file and the witness statements contained therein, as he quoted from the statement of the witness DLSH where she described the appellant wanting to fight the respondent even though he could 'barely keep his balance', and then both of them shaping up to each other to fight.
In his report of 1 June 2022, Dr Bala commented:
The video shows Mr Smith walking around before the first instance of being hit. After falling, his right leg twitches. He is on his back and seems to have difficulty moving. He moves his head slowly and is limp when picked up (IMG_1735.mov). He seems to stagger somewhat after being assisted to his feet (20140302_062211.mp4). Subsequently, he was admitted to Royal Perth Hospital from 18 March 2014 to 30 May 2014 with a significant brain injury and weakness of the right side. He needed physiotherapy, speech and occupational therapy to regain his motor functions in terms of walking, talking and using his hands. He had a dense amnesia and could not recall any events in relation to this when I interviewed him in 2017.
You asked me to comment on the effect of the first assault and fall. In my opinion, at the very least, he was concussed. The twitching of the right leg, the floppy body, quiet staring and the lack of coordination as well as the lengthy period he was on the ground is supportive of this, if not the subsequent brain injury. His capacity to consider alternatives, inhibit his actions, consider alternatives and coordinate his actions properly was impaired at the very least by the concussion. He was struck and fell again, and in hospital, he was diagnosed with a severe brain injury. This may have commenced after the first fall and worsened after the second fall from the assault. The severe deceleration from the fall and hitting the head would have concussed him at least temporarily, significantly impairing his volitional and cognitive capacities in continuing the fight. The bystanders could see that Mr Smith was in no position to continue fighting, but Mr Smith was on autopilot and due to the concussion, could not stop doing what he was doing.
That is the extent of the material which is before the court for the purposes of assessing the claim for compensation. There are no school reports to give any indication of the appellant's academic abilities pre‑incident (in order to judge what 'average' really meant), no indications from the school as to the appellant's sporting abilities at the age of 14, no supporting information from any physical education teacher or coach, or football scout as to the appellant's perceived potential at the age of 14 to eventually earn a living playing football, no evidence about the ability to judge talent at the age of 14 and predict a successful future, no evidence about the career path of a young talented footballer and how and when a professional club might become involved with the young player and when that might convert into earnings, no evidence about the likely retirement age of professional footballers and the various risks, physical and psychological that might cause early retirement and no evidence about average earnings or the range of earnings that a professional footballer might expect to earn and how that might vary depending upon the level at which he played.
Notwithstanding the lack of information and the challenges of making predictions about the likely future of a 14-year-old child, this court must do what it can with the information to hand.
The mobile phone footage shows that, at the age of 14, the appellant looked strong and fit. I am prepared to accept on the strength of the appellant's letter that, at the age of 14, he was talented at football and that scouts were keeping an eye on him. It is well-known that aboriginal youths with that sporting potential can be identified and supported to help them meet their potential and to navigate the world of professional sports.
I am prepared to accept, on the limited information, that there was a real prospect that the appellant might have been able to earn a living as a professional footballer although, in the absence of any further information, it would be too speculative to draw conclusions as to what level of success he might have achieved, which makes it difficult to assess on the balance of probabilities the extent to which his capacity to earn has been diminished.
There were many possibilities, however, that might have seen the potential of the promising 14-year-old unfulfilled. In the absence of any further evidence, I cannot assume that a 14-year-old boy with talent and potential was necessarily going to develop into a young man with the same level of potential that had been perceived when he was 14, given that a talented youngster may not perform as well when he gets older for numerous reasons, including (and not in any particular order) injury affecting his prospects, finding himself in a bigger pool of talented players where he is less competitive, finding that he lacks the discipline necessary to be truly competitive at a professional level, missing home and not coping in a competitive environment and personal circumstances and challenges which may interfere with his ability to compete at a professional level. There was the chance that he may have self-sabotaged his career prospects before they arose - the events that saw him injured in the early morning followed his clearly having been up and about all night with a group of children who seem to have been drifting aimlessly about and there is, as mentioned earlier, evidence to the effect that the group he was with, including him, had earlier been involved in an assault upon a stranger. That was risky behaviour. No boarding school would have given permission to a 14‑year-old student to stay away all night with no adult supervision. There is no information as to how that occurred. It may have been a one-off scenario and atypical of his usual behaviour but, equally, it may have been a reflection of a social group he had fallen in with, with some associated risk.
The information before me suggests that the appellant's plans for future employment had not extended beyond his hopes to play football. He was only 14 when he was injured. Had a future in professional football not eventuated, then it seems reasonable to infer that the appellant had the potential to work in some employment earning at least minimum wage, although employment prospects in his home community are likely to have been limited. Again, there is no information before the court about what employment prospects there might have been at home, or what ambitions the appellant might have had if his future had not been in professional football, and whether or not he would have expected to live at home or relocate to a town or city. I consider it reasonable to infer that, had he not been injured, he would have completed his education at Clontarf and been encouraged as he matured at that school to translate that education into at least some sort of employment. Had he not been injured he is far more likely to have considered living away from the tiny community north of Meekatharra, perhaps instead having lived and worked in Meekatharra itself, or farther afield.
I accept that, following a traumatic brain injury, the appellant now suffers from a major neurocognitive disorder which has significantly compromised his athletic abilities, because he still has difficulties with complex motor skills and his sense of balance has been affected. There is no basis for concluding that will improve. It is apparent that he no longer has the physical ability to play football for enjoyment, let alone at a professional level.
In addition, having suffered a traumatic brain injury, I accept that he should not be exposed to the physical risk of further traumatic brain injury by playing professional or amateur football, which is a strenuous contact sport with an ever-present risk of injury which might exacerbate his existing symptoms.
Further, I accept that his injury very much affected his outlook on life because of physical damage to his brain. I accept Dr Bala's opinion that, as a result of his head injury, it is likely that the appellant now suffers frontal lobe syndrome, marked by apathy and lack of goals and focus in life, and that those features of its existence are not due to depression, but due to frontal lobe damage. Dr Bala assessed the appellant as presenting as unconcerned about his situation and with no plans for his future. His tendency to be quicker to anger, and his comment that he has bad days when he feels no good suggests that there are times when the appellant is concerned about his situation and dwells on what might have been. There is more to being a professional footballer than the physical ability. In addition to having been physically very affected by the injury, the brain injury has also compromised any ability he had to commit to the sort of disciplined regime required to achieve a career in professional sports. It has also compromised his ability to seek employment in some other field and to maintain the discipline and commitment to maintain employment.
While it is true that the appellant has not availed himself of further medical treatment, such as occupational therapy, and he ought to have been neuro-psychologically tested, the reality is that there is no cure for the traumatic brain injury. At the age of only 14, the appellant clearly endured lengthy and challenging physiotherapy, just in order to walk and talk and read again and to attempt to regain his strength. After being discharged from rehabilitation, naturally he returned home to his tiny community in the North where there are obviously limited resources and, to the extent to which the appellant has given up on further medical treatment and is living an indifferent and somewhat aimless life, drinking too much alcohol and smoking cannabis, that appears to me to be a fairly natural result of the combination of serious brain injury coupled with a lack of services. He is now, understandably, living at home with his mother in a small community in which there is limited or no opportunity for him to take advantage of the services that would be available in a large city to at least enrich his level of activities and offer practical support. His situation might be better if he drank a lot less and did not consume cannabis, and that level of drinking and using cannabis also of course compromises his ability to be a professional sportsman or work in any other capacity, but it is unrealistic to divorce his substance abuse from his significant brain injury. His lack of insight into his head injury goes with the territory of being head-injured and it is of course unrealistic to imagine that, if the appellant gave up alcohol and cannabis tomorrow, that he could then pursue a career in professional football.
There is limited information on which I could draw a conclusion that the appellant has retained some work capacity. It is likely that he retains some capacity to do some light physical work, but that work would have to accommodate his occasional loss of balance, which means that he could not operate machinery or work at height. He might be able to work in a support job that requires very basic skills in an office or retail environment and, if he lived in Perth and was able to avail himself of employment support, he might well be able to work in such an environment.
But then there is the added factor that the appellant lives in a tiny community in which he is supported practically by his mother. Without having a report as to what facilities might be available in Yulga Ginna, I am prepared to assume on the basis of its small size and its location that there is limited, or no, work support available by which the appellant's specific limitations might be identified and safely accommodated. That very much reduces the value to be placed on any retained work capacity. I am also prepared to assume that any such work as might be available in such a community is unlikely to produce anything above the most modest income. The very high likelihood is that the appellant will be dependent upon social security payments and continue to be supported in a practical way by his mother or a partner.
The assessment of compensation for pain and suffering takes in the physical pain of the injury, the extensive period of time in hospital, the physical difficulties of the appellant as a result of the brain injury which required a long-term stay and physiotherapy, the complications by way of liver derangement and seizures arising from reactions to medication, and the intensive physical effort involved in the physiotherapy as the appellant had to relearn how to walk and talk and read, at the age of 14, away from home while seriously injured.
In addition, the appellant has clearly not made a complete recovery from his injuries and his speech remains affected, his balance remains compromised, and his resulting apathy and lack of insight occasioned by his injury has made him vulnerable to adopting an aimless lifestyle of alcohol and substance abuse which compounds his physical and cognitive disadvantage.
I consider an appropriate award for the pain and suffering occasioned by the injury itself is $200,000.
As to an assessment of damages in relation to loss of earnings, I consider that to be incapable of calculation by way of any formula. There are many uncertainties about the situation. At the time of the injury, the appellant was nowhere near earning age. I cannot be satisfied on the balance of probabilities that it was likely that he was going to earn his living as a professional footballer, although it was certainly very possible. I am satisfied that it was likely that he would have finished his education at Clontarf and, as he became a senior student there, would have been encouraged to take up some form of employment, whether that was professional football or some other form of employment and, had he not been injured, would have been far more likely upon graduation to consider living in a location that gave him greater opportunities than his tiny hometown community. But even that is an unknown factor and, had a football career not eventuated, there is also a real prospect that he would have simply returned home, reducing his employment prospects considerably.
The appellant rightly concedes that the matter is one of many imponderables, incapable of calculation, and that therefore a global award is the appropriate approach. In the end I have approached the matter intuitively, from necessity and from a conservative viewpoint, given the paucity of information before me and bearing in mind the many unknowns. What is known is that the appellant's capacity to work has been significantly compromised and he may well never work.
Adopting a conservative approach, I assess his damages in relation to loss of earnings at $300,000.
Finally, there is a receipt on file dated 25 August 2017 for a fee of $2,750 for the expert report, including travel expenses for Dr Bala to travel to Meekatharra to interview the appellant. It was appropriate for Dr Bala to personally interview the appellant face-to-face and s 6 of the Act expressly contemplates that loss extends to expenses actually and reasonably incurred in obtaining a report from a health professional in relation to the injury suffered. I consider the expense reasonable and allow that sum as well in my assessment. The sum is encompassed within the jurisdictional, however.
Reference was made to another report and accompanying fee, but that was not substantiated by documentation.
It follows that, on ordinary tortious principles, I assess the appellant's damages for injury and loss of earnings at $502,750. The maximum I can award pursuant to the Act, however, is $75,000. I award compensation in the amount of $75,000.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DD
Associate to Judge Sweeney
3 FEBRUARY 2023
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