M-A G
[2019] WADC 174
•20 DECEMBER 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: M-A G [2019] WADC 174
CORAM: GLANCY DCJ
HEARD: 13 NOVEMBER 2019
DELIVERED : 20 DECEMBER 2019
FILE NO/S: APP 103 of 2017
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: M-A G
Appellant
ON APPEAL FROM:
For File No: APP 103 of 2017
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: R GUTHRIE
File Number : CI2016-001344
Catchwords:
Criminal injuries compensation - Appeal on the ground of inadequacy of compensation - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003 (WA)
Result:
Compensation assessed at $9,347.25
Representation:
Counsel:
| Appellant | : | Mr D Krishnan |
| Amicus Curiae | : | Ms E L Negus appeared on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Eighth Avenue Legal |
| Amicus Curiae | : | State Solicitor's Office |
Case(s) referred to in decision(s):
A v D (1994) 11 WAR 481
B v W (1989) 6 SR (WA) 79
Bedetti v Chief Executive Officer [2003] WADC 37
Boughey v The Queen [1986] HCA 29, (1986) 161 CLR 10
DR v CD [2018] WADC 148
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Green v Lee (1996) 17 SR (WA) 93
Guello v Halloran [2008] WADC 145
Guy v Hampson [2019] WADC 19
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
Hogben v Darcy [2009] WADC 63
M v J (Unreported, WASC, Library No 920598, 19 November 1992
MBP v LKP [2018] WADC 65
MES v KG (1995) 12 SR (WA) 330
Michael v Panetta (1994) 10 SR (WA) 323
Re ATS [2017] WADC 92
Re ATS [2019] WADC 76
Re Carter (1984) 4 SR (WA) 219
Re Hojetzki [2009] WADC 77
S v Neumann (1995) 14 WAR 452
TAW v NJS [2011] WADC 187
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
GLANCY DCJ:
Introduction
The appellant has appealed the award of $9,800 in criminal injuries compensation which was awarded to him by the Assessor of Criminal Injuries Compensation (Assessor) on 12 October 2017. The award of criminal injuries compensation was made pursuant to s 30 of the Criminal Injuries Compensation Act 2003 (WA) (CIC Act). No reasons in support of that award have been provided. I have assumed that none were requested by the appellant.
The award was made in respect of injuries and loss which the appellant suffered as a result of an alleged offence upon him by an unknown assailant at the Claisebrook train station on 20 June 2013 (the incident). The alleged assailant has not been identified.
The notice of appeal was filed on 2 November 2017. The appeal is brought on the basis that the compensation awarded was not proportionate to the mental and physical harm the appellant experienced and continues to experience. That is, it does not adequately compensate him for the pain, suffering, mental harm and losses which he has suffered as a result of the incident.
The appellant was required by s 55 of the CIC Act to file the notice of appeal within 21 days of the Assessor's decision. The appeal has been filed within time.
The hearing of this matter took place before me on 13 November 2019. The appellant was represented. The Chief Executive Officer of the Department of the Attorney General (CEO) who appeared as amicus curiae was represented by the State Solicitor. I have been greatly assisted by the amicus' detailed written submissions. The amicus, through Ms Negus, also provided great assistance to the court by reason of her thorough oral submissions.
For the reasons which follow, I have assessed the amount of compensation which is to be paid to the appellant in the sum of $9,347.25.
The nature of this appeal
This appeal is a hearing de novo. I may confirm, vary or reverse the Assessor's decision either in whole or in part: s 56 CIC Act.
It has sometimes been said that while the application is to be determined without being fettered by the Assessor's decision, it is nevertheless appropriate to have regard to the assessment made by the Assessor who is a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63 [13] (Goetze DCJ); Guello v Halloran [2008] WADC 145 [5] (Staude DCJ). I respectfully agree with the views of Davis DCJ in Re ATS [2019] WADC 76 [18], Bowden DCJ in Guy v Hampson [2019] WADC 19 [14] and Quail DCJ in DR v CD [2018] WADC 148 [13] - [16] that on an appeal it is not appropriate to have regard to the assessment made by the Assessor.
A hearing de novo requires the court to consider the application for criminal injuries compensation afresh. Therefore, all issues relating to the claim must be reconsidered.
In deciding the appeal the court is not bound by the rules of evidence or procedure and may inform itself in any manner it thinks fit: s 18(2) CIC Act. The court may determine the claim on the basis of the evidence which was before the Assessor or may receive further evidence and information: s 56(1) CIC Act. The discretion to admit further evidence should be exercised without undue restriction and further evidence admitted unless there is a reason why it would be unjust to do so: MBP v LKP [2018] WADC 65 [7] (Davis DCJ).
The appellant filed an affidavit dated 8 October 2019 in support of his appeal. An oral application that the court admit as evidence in the appeal the appellant's affidavit of 8 October 2019 was made by the appellant. I received the affidavit in this appeal.
I have therefore determined the appeal on the basis of the materials which were before the Assessor and the appellant's affidavit of 8 October 2019.
Whether a compensation order can be made
In circumstances such as the present case, where no person has been convicted of an offence against the appellant, before an award of compensation can be made the court must be satisfied that:
1.The appellant was the victim of an alleged offence: s 17 CIC Act; and
2.The appellant did all that he ought reasonably to have done to assist in the identification, apprehension and prosecution of the alleged offender: s 38 CIC Act.
'Satisfied' means 'satisfied on the balance of probabilities': s 3 CIC Act.
Was the appellant the victim of an offence?
It is apparent from the fact that an award of criminal injuries compensation was made that the Assessor was satisfied that the appellant was the victim of an offence. The amicus appropriately, in light of the evidence, took the view that this was not an issue in the appeal. Nevertheless, as the appeal proceeds as a hearing de novo it is an issue about which I must be satisfied.
Where no conviction has been entered the applicant for compensation bears the onus of proving the offence: Re Carter (1984) 4 SR (WA) 219 (Hammond J) and MES v KG (1995) 12 SR (WA) 330, 331 -332 (Commissioner Clyne); Re ATS [2017] WADC 92 [28] (Herron DCJ). That includes establishing to the requisite standard that the alleged offender had no defence to the allegation that he or she committed the offence: Green v Lee (1996) 17 SR (WA) 93, 97 (Wisbey DCJ) and Re ATS [2019] WADC 76 [28] (Davis DCJ).
What is necessary to establish a matter on the balance of probabilities will vary according to the nature of what is sought to be established. In cases where criminal conduct is alleged, clear and cogent evidence will be required: Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297 – 298 (Glass JA).
I am satisfied that the evidence before the court establishes that in the late evening on 20 June 2013, the appellant was the victim of an assault at the Claisebrook train station. While there are some minor differences in accounts given over time, the accounts given to the police by the appellant have been, largely, consistent. The appellant says that while boarding the train at the Claisebrook station on the way to work he was, essentially, pulled backwards by his right arm by a male person who was unknown to him. The appellant says that he and the unknown man struggled as he tried to remain on the train. He says he was then punched to the face. He says that this incident caused his face to bleed and resulted in an injury to his shoulder. He continued to his place of work, Crown, where he obtained first aid.
The CCTV footage obtained from the Public Transport Authority is generally consistent with the appellant's explanation of the facts.
The appellant spoke to police at his place of work early in the morning on 21 June 2013. The police notes record that the appellant said that he was punched in the upper arm/torso area while he was trying to get off the train at Claisebrook. The notes record that the appellant declined to make a formal statement at that time.
The appellant gave a formal statement to police on 16 August 2013. That statement says that immediately following the incident the appellant's face was 'sore and cut and there was blood everywhere'. The Western Australian Police Force (WAPOL) incident report itself says that the appellant received 'minor cuts and abrasions/bruising/soreness'.
On the basis of the materials before the court I am satisfied on the balance of probabilities that the appellant was the victim of a criminal offence. The specific offence may have been an assault (s 313 Criminal Code), or an assault occasioning bodily harm (s 317 Criminal Code). The precise offence committed does not matter for the purposes of resolving this appeal.
Did the appellant assist authorities?
The CIC Act prohibits an assessor from awarding compensation to a victim in circumstances where the assessor forms the opinion that the victim did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence: s 38 CIC Act.
From the fact that an award of compensation was made to the appellant it can be taken that the Assessor did not form that opinion. That notwithstanding, as the appeal is a hearing de novo this too is a matter which I am required to consider.
There are two parts to that issue. First, did the appellant fail to do an act to assist in the identification, apprehension or prosecution of the offender? Second, if so, was that failure reasonable in the circumstances having regard to the circumstances of the applicant?
It is not in dispute that:
1.In the early hours of the morning of 21 June 2013 following the incident the appellant spoke to police at his workplace and gave an account of the incident and the assailant but stated that he did not wish to make a complaint: Incident Report 210613 0020 8255 page 1; Running Sheet Incident Report 210613 0020 8255 page 2. No formal complaint was made at that time.
2.On 31 July 2013 the appellant phoned the Western Australian Police and stated that he wanted to proceed with a complaint because his injuries had worsened: Running Sheet Incident Report 210613 0020 8255 page 1.
3.On 16 August 2013 the appellant provided a statement to the police: Running Sheet Incident Report 210613 0020 8255 page 1.
4.The complaint was withdrawn after a withdrawal statement was made. The records before the court do not identify whether the withdrawal was initiated by the appellant or why the matter was withdrawn but the police records note 'file write-off - vague POI'.
The first possible failure to assist as required arises as a result of the withdrawal of the complaint. As there is no evidence to determine whether the withdrawal of the complaint was initiated by the appellant, I cannot be satisfied that this amounted to a failure by him to assist as required.
The second possible failure to relevantly assist arises from the appellant's failure to make a formal complaint between 20 June 2013 and 31 July 2013.
The appellant spoke to police at his workplace shortly after the incident. He indicated he wanted to make a formal statement on 31 July 2013 and then did so on 16 August 2013. When the appellant spoke to police on 21 June 2013 he identified himself to the police and provided them with an account of the incident, telling them where it was said to have occurred and providing a description of the unknown assailant. The police were able to obtain the CCTV footage of the incident from the Public Transport Authority. It is not said that any evidence was lost to police in the time taken by the appellant to make a formal complaint.
In light of the fact that the appellant did give a full account of the incident in the early hours of 21 June 2013, thereby enabling the police to obtain the CCTV footage, I do not consider that the delay between 20 June 2013 and 31 July 2013 and then 16 August 2013 could be said to be a failure to do any act or thing which he ought reasonably to have done to assist in the identification, apprehension or prosecution of the assailant such that the appellant should be disentitled to compensation.
In light of the findings above, I am able to assess the criminal injuries compensation which is to be paid to the appellant.
General principles relevant to the assessment of compensation
Before assessing compensation, it is necessary to set out some of the general principles relevant to the assessment of which apply in this case.
The maximum amount of compensation that may be awarded is $75,000: s 31 CIC Act. This is a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463 (Murray J).
Punishment of the offender or sympathy for a victim play no part in the fixing of an award of criminal injuries compensation: B v W (1989) 6 SR (WA) 79, 89 (Williams J).
Compensation is payable for injury and loss in consequence of the commission of an offence. No compensation award is to be made unless the assessor, or the court in the case of an appeal, is satisfied that the claimed injury and any claimed loss has occurred and did so 'as a consequence of the commission of a proved offence or an alleged offence': s 12 - s 17 CIC Act.
The onus is on the applicant to establish on the balance of probabilities that the claimed injury or loss occurred as a consequence of the offence or alleged offence: Re Carter (1984) 4 SR (WA) 219 (Hammond J). That is, the appellant must establish, on the balance of probabilities, a causal relationship between the commission of the offence and the injury and loss for which compensation is sought: s 3 CIC Act.
It is not necessary that the injuries for which compensation may be awarded are solely caused by criminal offences: Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, 673 (Mason & Wilson JJ with Murphy J agreeing); S v Neumann (1995) 14 WAR 452 463 - 464 (Murray J).
Whilst it is permissible to look at awards of criminal injuries compensation made in other appeals, there is limited utility in doing so because the circumstances of each case are unique: Michael v Panetta (1994) 10 SR (WA) 323, 323 – 324 (Jackson DCJ); TAW v NJS [2011] WADC 187 [24] (Bowden DCJ).
CIC Act s 3 defines 'injury' to include bodily harm and 'mental and nervous shock'. The expression 'mental and nervous shock' encompasses any malfunction of the victim which can be seen to be a consequence of the impact of the events constituting the offence, or associated with the commission of the offence, as they impact on the mind or the nervous system: Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) (Burt CJ). Mental and nervous shock includes distress, horror, disgust and other similar adverse mental reactions but does not encompass mere fright, humiliation or anguish: M v J (Unreported, WASC, Library No 920598, 19 November 1992 (Scott J). What is required is something of a more enduring character which can be described as an injury: S v Neumann (1995) 14 WAR 452, 461 (Murray J).
'Loss' includes loss of earning which are a direct consequence of the injury: CIC Act s 6(2)(c). An injury which results in a loss of earning capacity, either past or future, is compensable: A v D (1994) 11 WAR 481, 489 (Pidgeon, Nicholson & Ipp JJ).
Supporting medical evidence from an appropriately qualified medical practitioner is generally required to prove that an injury exists and was caused by the offence. The court will not generally rely on conclusions made by unqualified persons on the basis of medical records without such supporting evidence: Re Hojetzki [2009] WADC 77 [48] (Sleight DCJ).
In fixing the amount of compensation the correct approach is to apply the ordinary tortious principles for the assessment of damages, subject to the jurisdictional limit imposed by the CIC Act: S v Neumann (1995) 14 WAR 452, 463 (Murray J).
The ordinary tortious principles include that a person who is injured is obliged to obtain reasonable medical treatment. Failure to obtain reasonable medical treatment or to take reasonable medical advice as to treatment can be taken into account when determining the award of compensation to be made: Bedetti v Chief Executive Officer [2003] WADC 37 [11] (LA Jackson DCJ).
CIC Act s 48 provides that if a compensation award made in favour of a victim includes an amount in respect of expenses of the kind referred to in s 6(2)(b), the amount is not to be paid unless:
(a)the Chief Assessor is given evidence for the purposes of paragraph (b) by or on behalf of the victim; and
(b)an assessor is satisfied that the expenses have been reasonably incurred by or on behalf of the victim for treatment that the victim required as a direct consequence of the injury suffered by the victim in consequence of the commission of the offence to which the award relates; and
(c)the Chief Assessor is given a request for payment of the amount in accordance with subsection (2).
Section 6(2)(b) CIC Act refers to expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment which the victim is likely to need as a direct consequence of the injury suffered by the victim.
The effect of those sections is that if an award is to be made for future medical expenses the court must be satisfied of two matters. First, that the expense is likely to be reasonably incurred by the appellant. Second, that the need for the treatment is a direct consequence of the injury suffered by the victim.
The meaning of the word 'likely' as a degree of probabilities will vary according to the statutory context in which the word appears. Where the word is used in the context of criminal law it has been said that it should not be construed to mean 'more likely than not' or to assume a degree of mathematical probability not conveyed as a matter of ordinary language or the statutory context. It is said to convey a notion of substantial, real and not remote chance, regardless of whether it is more or less than 50%: Boughey v The Queen [1986] HCA 29, (1986) 161 CLR 10 (Gibbs CJ).
Where an award is to be made for future medical treatment the award ought to specify the amount because, as set out above, the CIC Act s 48 conditions the payment of compensation for future treatment.
What injuries did the appellant suffer as a result of the offence
The appellant contends that he suffered the following injuries as a consequence of the offence:
1.scarring to his face;
2.anxiety and depression;
3.damage to his right shoulder;
4.memory loss.
Facial scarring
The appellant's notice of appeal states, among other things:
The Appellant experienced physical harm due to a laceration on his face as a result of the incident and considers undertaking cosmetic surgery in the near future. However the current compensation would not satisfy to cover such cosmetic surgery.
The appellant's submissions repeat those assertions at par 25 ‑ par 27.
Of course, what is contained in the notice of appeal and the submissions is not evidence and the appellant bears the onus of satisfying the court that the appellant suffered the injury asserted.
There is some evidence before the court as to the extent of the appellant's facial injury.
First, the WAPOL incident report, made contemporaneously with the incident notes:
Comp recd minor cuts and abrasions/bruising/soreness as a result of the incident.
Accepting that the incident report is referring in part to injuries to the appellant's face, it is clear that they were not thought to be significant because they are described as 'minor'.
Second, there is the appellant's evidence set out in par 5 and par 6 of his affidavit of 8 October 2019 about the facial injury. I have set those paragraphs out in full:
5.The male person then punched me on the right side of my face just before the door closed. My shoulder and face was very painful and the punch to my face caused a laceration, in which I was covered in my own blood.
6.The offence caused a cut and bleeding to my face and injuries to my right shoulder.
Third, the appellant's application for criminal injuries compensation dated 17 June 2016 refers to the appellant's injuries consequent upon the assault as follows:
Mr Abrha-Gebeyhu suffered damage to his left shoulder and laceration to the right side of his face. He works at Crown Perth as a kitchen hand and due to the injuries sustained he suffered a loss of income.
The appellant makes no reference to a scar in his affidavit. There is no medical evidence that the appellant has been left with any scar as a result of the offence.
There is no evidence before the court that the appellant ever sought or received medical treatment in connection with the laceration beyond obtaining first aid at work on the day of the offence being committed.
There is no medical report to indicate that cosmetic surgery may be required or even desirable to address any lasting consequences of the laceration.
The criminal injuries compensation application form dated 17 June 2016 indicates that there were no future treatment expenses claimed at the time the application was made to the Assessor.
On the evidence before me I am satisfied that the appellant suffered a laceration to his right cheek which required no more by way of medical treatment than the provision of first aid when the appellant arrived at work on 20 June 2013. I am satisfied that the injury to his right cheek would have caused him pain and suffering for a short period of time.
It should be noted that while the submissions filed by the appellant on 12 November 2019 assert that he is contemplating having cosmetic surgery to his face because the scarring is an ongoing reminder of the offence and contributes to his ongoing trauma, the appellant's affidavit does not make any reference to the existence of a scar on his face, to him considering undertaking cosmetic surgery in the future or to any ongoing trauma caused by a facial injury arising from the offence. The appellant's counsel said from the bar table that he had been instructed that the appellant had suffered those injuries and was contemplating cosmetic surgery. If that were the case, there should have been evidence to that effect at the very least, in the appellant's own affidavit.
There is also no evidence from any medical practitioner to the effect that such surgery would be recommended in the circumstances or as to the estimated cost of any cosmetic surgery which may be in the appellant's contemplation.
I am not, however, satisfied to the requisite standard that the appellant suffered a facial injury which has resulted in scarring to his right cheek.
Even if I were satisfied that there was scarring to the appellant's face as a result of the offence, given the lack of evidence from an appropriately qualified medical professional, I could not be satisfied that it is likely that the appellant will require the cosmetic surgery to which his notice of appeal refers.
Finally, even if I could be satisfied that there was scarring and that the appellant would likely require the cosmetic surgery, I would be unable to make an award of compensation for that future medical expense because the appellant has led no evidence as to the likely cost of the cosmetic surgery.
Anxiety and depression
The appellant's notice of appeal contends that the award of compensation is not proportionate to the mental and physical harm suffered by the appellant and which the appellant continues to suffer.
There is some evidence before the court that is said to establish that the appellant has suffered ongoing mental health issues as a consequence of the commission of the offence.
The 'statement of the impact of injury in support of a criminal compensations claim' which is signed by the appellant and which forms part of the application form submitted to the Assessor states in part:
In addition to the income I have lost, I have been suffering from severe stress, depression and anxiety. The incident has had adverse effects on me as I am in constant fear of a similar incident occurring. I fear leaving my home and travelling to work.
The appellant's affidavit deals with the psychological harm from which he is said to have suffered in the following paragraphs, which I have repeated in full:
8.In addition to the income I have lost, I have been suffering from severe stress, depression and anxiety. The incident has had adverse effects on me as I am in a constant state of fear of a similar incident occurring. I fear leaving my home and traveling to work.
…
10. The assault has impacted and continues to adversely impact me causing a loss of enjoyment of life to myself and family. The emotional and psychological trauma that the assault has caused greatly affects my everyday life.
11.The assault has made me afraid to leave the home and I avoid public transport to the best of my ability. Even when I am home, I fear that a similar incident will reoccur which worries me greatly as I must protect my family.
…
13.I have been suffering from mental injuries in addition to physical injuries as a result of the assault. I have attempted to seek psychological counselling and was unfortunately, unable to afford the treatment. I visited my doctor who provided a referral for a mental health plan. When I called the mental health practitioner I had realised that I was unable to afford the treatment.
Annexure A to the appellant's affidavit is a referral from his general practitioner, Dr Pillay, to a Professor Fernandez dated 29 October 2018. While it is not clear what kind of treatment is sought to be provided by Professor Fernandez or what kind of medical specialist Dr Fernandez is, it can be reasonably inferred from that letter of referral that Dr Pillay has referred the appellant to Professor Fernandez for up to six sessions of some form of counselling pursuant to a mental health care plan. That inference is supported by reference in the letter of referral to the possibility that the appellant has post‑traumatic stress disorder which is indicated by the notation:
Past medical history
ptsd??lived in a refugee camp
depression/anxiety
It is noteworthy that Dr Pillay makes no actual diagnosis of depression, anxiety or post-traumatic stress disorder and also that he makes no reference in the referral to the possibility of mental health issues arising from the commission of an offence in 2013. Rather, the only reasonable inference open from the notation above must be that he considered that the possible post-traumatic stress disorder might have arisen as a result of the appellant having lived in a refugee camp for some period of time.
The final page of the 'Patient Assessment - Mental Health 2717', which forms part of annexure A to the appellant's affidavit, refers on the first page under the heading 'provisional diagnosis of mental health disorder' to 'anxiety and depression'. Oddly, under the heading 'medication' in the referral letter the word 'nil' appears and yet the final page of the affidavit appears to be a prescription for desvenlafaxine prescribed by Dr Pillay on 29 October 2018. Desvenlafaxine is a selective serotonin and norepinephrine reuptake inhibitor and is used for treating depression.
The material before the court indicates that on 29 October 2018, Dr Pillay formed the view that some assistance with the appellant's mental health was warranted, that he had made a provisional assessment that the appellant was then suffering from anxiety and depression and that post-traumatic stress disorder resulting from having been a refugee may have contributed to the state of the appellant's mental health.
While the commission of the offence need not be the sole cause of the appellant's injury, in order to be compensable it must be a contributing cause. The medical report does not link the appellant's mental ill-health in 2018 with the incident of 20 June 2013, some five years earlier.
I readily accept that being the victim of what seems to have been an unprovoked assault would have caused the appellant to suffer some emotional distress and may have caused him to be apprehensive about travelling by public transport. However, on the materials before the court I am not satisfied to the requisite standard that the appellant suffered from the claimed injury 'anxiety and depression' as a result of the offence or even partly as a result of the offence.
Again, it is to be noted that although the appellant's submissions dated 12 November 2019 set out in great detail the psychological distress which is said to be suffered by the appellant, much of what is said in those submissions was not before the Assessor and is not drawn from the appellant's affidavit.
It was submitted that while the appellant previously formed the view that paying to attend appointments with Professor Fernandez would not have been the best use of his family's limited financial resources at the time, an award of compensation which would allow him to obtain help for his mental ill-health should now be made. Even if I had been satisfied that the appellant suffered the claimed injury because of, or partly because of the commission of the offence, I could not make an assessment of the cost of medical treatment required to treat it, as there is no evidence before the court as to the amount of treatment required or the anticipated cost of such treatment.
Shoulder injury
As I have already set out, the appellant's account of the incident involved his shoulder being wrenched. His reasons for later deciding to make a formal complaint are recorded by police as being the result of his injuries worsening.
The appellant's evidence is that he was unable to work for a period of three months following the incident. On 5 August 2013 in preparation for the appellant's return to work, Dr Pillay indicated to the appellant's employer that although he was able to return to work, he was unfit to return to normal duties and that for a period of four - six months he was to avoid lifting more than 5 kg over head, and to avoid over head work.
The medical certificate provided by Dr Pillay on 26 September 2013 certified the appellant as fit for work as from 26 September 2013. Presumably, that meant fit for work, subject to the limitations identified by Dr Pillay on 5 August 2013.
In his affidavit the appellant says of his shoulder injury:
6.The offence caused a cut and bleeding to my face and injuries to my right shoulder.
7.I was unable to attend work for 3 months due to the injuries sustained to my right shoulder and lost 1 month's pay, as sick leave entitlements covered only 2 months of pay.
…
9.I am unable to use the full functions of my right arm as I used to. I have had to make significant changes to my way of life and how I conduct myself at work.
The affidavit does not set out any detail of the changes which have been made to the way in which the appellant conducts his life or his work.
The medical evidence before the Assessor included a report dated 29 July 2013 from Orla Lyons, an ED consultant at Royal Perth Hospital. That report notes that the appellant was referred to the emergency department by Dr Sivapalan and that he presented with pain in his right upper limb-shoulder. The report notes that:
The patient was assaulted three weeks ago and he sustained an injury to his shoulder.
It notes 'painful to lift'. The report says that the diagnosis was:
Injury + sprain/strain + upper limb + shoulder + rotator.
The report says:
Examination of his R shoulder reveals evidence of a rotator cuff tendonitis reduced adduction to 90 degrees implying involvement of his deltoid group and reduced internal rotation with nain [sic].
It goes on to say that the shoulder had been x-rayed but that a soft tissue shoulder ultrasound would provide better confirmation for diagnostic purposes. Dr Lyons reported that regular nonsteroidal anti‑inflammatories and referral to a physiotherapist offers the best outcome for the patient. It also notes that the patient has been advised that regular exercise will improve the long term outcome. The report notes that a medical certificate was provided at the patient's request.
There is no evidence before the court that the appellant ever undertook any exercise or received any physiotherapy in connection with the injury. No compensation for the cost incurred in receiving any such treatment have been sought.
There is no medical report that supports the appellant's evidence that the pain in his right shoulder is ongoing. There is nothing in the materials before the court to suggest that the appellant has sought or received any treatment for the shoulder strain/sprain since 5 August 2013.
There is no evidence from the appellant's employer that since he was certified fit for work he has been unable to perform his former duties as a result of restrictions caused by pain in his shoulder.
There is no evidence, by way of evidence from the appellant or from his employer that the appellant was required to be absent from work for any period after 26 September 2013 owing to his shoulder injury.
Paragraph 1(d) of the appellant's submissions dated 29 May 2018 asserts that the appellant has to 'constantly protect his shoulder out of fear that he may suffer a further dislocation'. There is no evidence before the court that the appellant's shoulder was dislocated in the course of the offence. There is also no evidence before the court that the appellant constantly protects his shoulder out of fear of dislocation. His affidavit does not contain any statement to that effect.
On the basis of the evidence before the court I am unable to be satisfied that the appellant suffers from any ongoing injury to his right shoulder resulting from the incident. I am also unable to be satisfied that the appellant is working only because he is fearful of losing his job should he take sick leave as was the submission made by the appellant's counsel during the hearing of the appeal. The appellant made no statement to that effect in his affidavit.
On the evidence before the court I am satisfied that the appellant suffered a rotator cuff injury to his shoulder in the nature of the sprain or strain as a result of the offence.
Memory loss
The appellant's notice of appeal says that the appellant has suffered memory issues since the incident and easily forgets important information.
In the statement made by the appellant in support of his criminal compensation claim dated 16 June 2016 the appellant says in the final paragraph:
The offence has caused damage to my right shoulder and I have been suffering memory loss since the incident.
In par 9 of his affidavit of 8 October 2019 the appellant says:
Since the offence I have also experienced memory loss.
Apart from those statements from the appellant that he suffers from memory loss, there was no evidence before the Assessor and there is no evidence before the court from any family member, employer, co‑worker or friend to support the appellant's evidence that he suffers from memory loss. Further, there is no medical report to indicate that the appellant has seen a doctor in relation to claimed memory loss or that he has been diagnosed with or treated for any memory loss.
In the absence of any supporting material and in light of my view as to other claims made by the appellant about the extent of his injuries, I am not satisfied to the requisite standard that the appellant is suffering from memory loss or that, if he is, it is an injury which is suffered as a consequence of the commission of the offence.
Injuries for which compensation is payable under the CIC Act
In light of what I have said above I will assess the appellant's claim on the basis that I am satisfied on the balance of probabilities that the appellant suffered the following injuries as a result of the offence:
1.a laceration to his right cheek which caused his cheek to bleed at the time of the offence, which required first aid to be administered at work on the day of the offence but has required no further medical treatment; and
2.an injury to his rotator cuff of his right shoulder in the nature of a sprain or strain which caused him to be totally unfit for work until 26 September 2013 and then to be able to return to work subject to the restriction that he not lift items of greater than 5 kg above his head for a period of a further six months.
I also accept that the appellant suffered distress as a result of the commission of the offence even though, as I have already said, I am not satisfied that the appellant has suffered a psychological injury or nervous shock.
Assessment of compensation
Past economic loss
The evidence before the court as to the past lost earnings consists of:
(a)The statements made by the appellant at par 7 of his affidavit which is set out in full below:
I was unable to attend work for 3 months due to the injuries sustained to my right shoulder and lost 1 month's pay, as sick leave entitlements covered only 2 months of pay.
(b)The statement in the application made to the Assessor that the appellant's 'lost earnings or earning capacity' amounted to $2,185.75 gross or $1,811.35 net.
(c)The appellant's payslips for the following pay periods which were provided to the Assessor in support of the application which showed gross and net pay for each pay period as set out below:
No. Pay Period Gross Pay Net Pay 1 17/06/2013 - 30/06/2013 $1,709.81 $1,453.81 2 01/07/2013 - 14/07/2013 $1,932.14 $1,600.14 3 15/07/2013 - 28/07/2013 $1,937.45 $1,603.45 4 29/07/2013 - 11/08/2013 $1,288.61 $1,158.61 5 12/08/2013 - 25/08/2013 $206.25 $144.25 6 09/09/2013 - 22/09/2013 $4,432.63 $3,878.63 7 23/09/2013 - 06/10/2013 $156.54 $156.54 8 07/10/2013 - 20/10/2013 $1,997.18 $1,643.18 9 21/10/2013 - 03/11/2013 $1,997.18 $1,643.18 10 04/11/2013 - 17/11/2013 $2,039.99 $1,669.99 11 18/11/2013 - 01/12/2013 $2,018.58 $1,656.58
(d)A table of leave taken by the appellant between 17 June 2013 and 1 December 2013. I note that although there is no evidence as to who prepared the table I have no reason to consider it to be inaccurate.
There is no evidence before the court which would establish any of the following matters:
(a)The number of hours per week which the appellant regularly worked prior to 20 June 2013.
(b)The days of the week on which the appellant regularly worked prior to 20 June 2013.
(c)Whether and if so, to what extent, the appellant regularly worked overtime prior to 20 June 2013.
(d)Whether and if so, to what extent, the appellant regularly worked at times that attracted the payment of penalty rates.
(e)The reason for the payment of $4,432.63 gross for the period 9 September 2013 – 22 September 2013. This was a pay period in which the appellant did not work at all. It is reasonable to infer that this payment includes back pay of sick leave entitlements for the preceding two months. I find that to be the only reasonable assumption given:
i.the appellant’s assertion that he was paid his full sick leave entitlements for two months;
ii.between 12 August - 25 August the appellant was paid only $206.
Taking the payment of $4,432.63 to include back pay of sick leave results in the appellant being paid a total of $5,181.49 sick leave over the eight week period following 20 June 2013. Averaging that over the four pay periods (or eight weeks) during which the appellant was paid sick leave would result in sick leave payments of $1,295.37 net per pay period.
The payslips of 1 July 2013 - 14 July 2013, 15 July 2013 - 28 July 2013 and those which cover 7 October 2013 - 1 December 2013 establish that in those weeks which post-date the incident during which the appellant did not take any sick leave, he was paid an average of $1,636.06 net per fortnight.
From those figures it is established that the difference between the appellant's sick leave payments and the average pay most of which he would have received had he been able to work in the two months he received sick leave following 20 June 2013 amounts to $340.72 net per fortnight or a total of $1,362.88.
I will award the appellant the sum $1,362.88 net as lost earnings for the four pay periods (or eight weeks) he was in receipt of paid of sick leave following 20 June 2013.
The materials before the court indicate that the appellant did not work for 10 weeks after 20 June 2013 rather than the three months for which he claimed not to have worked.
The appellant's general practitioner certified that the appellant was fit to return to work on 26 September 2013 (with the restriction that he not lift weights above 5 kg above his head for five - six months). Although the appellant has deposed that he was unable to work for three months as a result of the incident on 20 June 2013, it is clear from the table which sets out his unauthorised absences that the appellant only had three days of unpaid unauthorised absence before 26 September 2013, being 21 September, 24 September and 25 September 2013.
The remainder of the days when the appellant was absent from work which are noted as 'unauthorised absences' occur after 26 September 2013. They total eight days including 26 September 2018. There is no evidence before the court to indicate that those absences were attributable to illness or injury resulting from the offence on 20 June 2013.
From all of the above, I am unable to be satisfied that the appellant was on unpaid absence from work for one month as a result of the incident. Rather, the evidence establishes that the appellant was on an unpaid absence from work for only three days following 20 June 2013 during the period before he was certified as being fit to return to work.
I will therefore make an award of compensation for the three days of absence which I accept are related to the commission of the offence. I will not award any compensation for any days of unauthorised absence which were taken after 26 September 2013.
The evidence establishes that the appellant worked 7.5 hours per day and that he worked a total of 76 hours per fortnight immediately before and after 20 June 2013 when he took no 'unauthorised absences'. Given his average fortnightly pay was $1,636.09 net, that would equate to an hourly rate of $21.53 net. Accordingly, lost earnings for 22.5 hours (being three days x 7.5 hours) at that rate amounts to a total of $484.37 net.
In his oral submissions the appellant's counsel asserted that before 20 June 2013 the appellant had worked overtime and been paid for that work. He submitted that since the appellant had returned to work he was not undertaking any overtime because the pain in his shoulder precluded him from doing so. He submitted that the appellant should receive compensation for the past lost overtime.
In his affidavit of 8 October 2019 the appellant deposed that he had had to make adjustments to the way he conducted himself at work. There is no evidence to him being unable to undertake overtime as a result of ongoing pain in his shoulder. There is no evidence before the court from his employer to indicate that the appellant regularly worked and was paid for overtime prior to the offence. There is no evidence from the appellant's employer to support the assertion that he no longer works overtime or that this is attributable to a shoulder injury.
Given the absence of evidence on that issue I am not satisfied that the appellant has suffered economic loss of that kind. No compensation will be awarded for past lost overtime.
I therefore assess the total award for past lost earnings to be the sum of the $1,362.88 and $484.37 or $1,847.25.
Future economic loss
The appellant's counsel submitted that the appellant will continue to be unable to work overtime into the future because of the injury to his shoulder. There is simply no evidence before the court that the appellant continues to be unable to perform overtime because of the injury to his shoulder. The appellant's counsel submitted that the appellant was unable to obtain information from his employer about this issue.
Given there is no evidence of an inability to work overtime at all, I am unable to make an award of compensation for future lost overtime.
The appellant contends that the compensation awarded by the Assessor does not cover the pain and suffering which he endured by being forced to 'attend work due to financial difficulties'. The notice of appeal says that the appellant continues to work without complaint to his employer although he suffers constant pain in his right shoulder because he fears that the injuries might put him at risk of losing his job.
There is no mention in the appellant's affidavit of him being in continual pain or being unable to work overtime. There is no mention in the affidavit of the appellant continuing to work despite being in pain or working against medical advice.
There is no evidence before the court to indicate that any changes which the appellant has had to make to the way he conducts himself at work will be productive of any future financial loss.
There is no evidence before the court that the appellant will be rendered unable to work, wholly or in part, in the future as a result of the shoulder injury occasioned during the offence. The only medical evidence is, as I have said earlier, that the limitation resulting from the shoulder injury was expected to be resolved within five to six months from the date of the appellant's return to work in 2013.
For the reasons set out above I make no award of compensation for lost future earnings.
Past medical expenses
No claim has been made for past medical treatment incurred in connection with any physical injuries.
Future medical expenses
For the reasons set out above, I have rejected a claim for future medical treatment for the facial injury which it was submitted was caused in the commission of the offence.
For the reasons set out above I have rejected a claim for medical expenses for treatment for the psychological or psychiatric injury from which it is claimed the appellant suffers as a result of the offence.
No claim has been made for future medical treatment connected with the injury to the appellant's right shoulder.
No claim was made for costs associated with future medical treatment connected with the claimed memory loss. In any event I was not satisfied that the appellant suffered memory loss at all or that it was attributable to the incident.
I therefore make no award for future medical expenses.
Non-pecuniary damages
At the hearing of the appeal the appellant's counsel submitted that if I could not make a provisional award of compensation for future medical expenses because there was no evidence of the likely cost of such expenses, I could instead increase the award of general damages in recognition of the fact that the absence of medical evidence was the result of the appellant having insufficient funds to obtain such medical reports.
It would be quite wrong to proceed in that way.
Non-pecuniary loss is an assessment of damage which is not readily measurable in money. Nevertheless damages are awarded because an injured party is entitled to be compensated for the condition which he has been left in with a view to giving him fair compensation for pain, inconvenience and loss of enjoyment sustained. General damages cannot be increased to overcome a deficiency of evidence required to establish an entitlement to damages which are properly to be assessed under another head of damage.
In this case there is evidence before the court of pain and suffering which the appellant experienced as a result of the offence. There is no evidence of any loss of expectation of life, of amenities or of any disfigurement.
I am satisfied that an award of $7,500 is an appropriate amount of non‑pecuniary damages for the injuries from which I am satisfied that the appellant suffered as a result of the incident.
Conclusion
Accordingly, I award the appellant the sum of $9,347.25 in criminal injuries compensation for loss and injuries suffered by him as a result of the commission of the offence on 20 June 2013.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CH
Associate to Judge Glancy19 DECEMBER 2019
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