MADASCHI
[2011] WADC 89
•10 JUNE 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MADASCHI [2011] WADC 89
CORAM: DERRICK DCJ
HEARD: 23 MAY 2011
DELIVERED : 10 JUNE 2011
FILE NO/S: APP 64 of 2010
MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
and
IN THE MATTER of an Appeal by
BETWEEN: ANDREW MADASCHI
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram :H L PORTER
File No :CI 1081 of 2009
Catchwords:
Criminal injuries compensation - Proved offence Decision by Assessor not to award compensation for injury to the appellant's teeth - Insufficient evidence to prove that injury to appellant's teeth was a consequence of the offence - Turns on own facts
Legislation:
Criminal Code (WA)
Criminal Injuries Compensation Act 2003 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: Ms D Chesworth
Amicus Curiae : Mr D M Anderson on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant: Perth City Legal
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
A v D (1994) 11 WAR 481
B v W (1989) 6 SR (WA) 79
Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143
Crumby v Kuru (1995) 13 SR (WA) 331
Dos Santos v Dos Santos [2000] WADC 256
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Gullelo v Halloran [2008] WADC 145
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
M v J and J v J, (Unreported, WASC, Library No 920598, 19 November 1992)
Madaschi [2010] WACIC 29
Nguyen v Assessor of Criminal Injuries Compensation [2000] WADC 221
R v Forsythe [1972] 2 NSWLR 951
Re; Tilbury [2010] WADC 46
RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)
S v Neumann (1995) 14 WAR 452
Seal v McKinnon (Unreported, WADC, Library No 4961, 21 June 1996)
DERRICK DCJ:
Introduction
On 7 May 2007 the first respondent and the second respondent (the respondents) were convicted on their pleas of guilty of assaulting the appellant and causing him bodily harm contrary to s 317 of the Criminal Code (WA) (the offence). The offence was committed on 10 June 2006.
On 8 June 2009 the appellant made an application pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (the Act) for an award of compensation for injuries and loss suffered by him as a consequence of the commission of the offence (the application).
On 5 August 2010 the Assessor of Criminal Injuries Compensation (the Assessor) awarded the appellant compensation in the amount of $10,744.05. The compensation award was made pursuant to s 30 of the Act.
On 25 August 2010 the Assessor, at the request of the appellant, issued written reasons for her decision: Madaschi [2010] WACIC 29.
On 26 August 2010 the appellant filed a notice of appeal (the notice) against the decision of the Assessor pursuant to s 55(1) of the Act. The grounds of appeal relate to the decision of the Assessor not to award compensation for injuries allegedly suffered by the appellant to his teeth as a consequence of the offence.
On 6 December 2010 each of the respondents was served with a copy of the notice. Neither of the respondents filed a memorandum of appearance or appeared at the hearing of the appeal.
The facts of the offence
The statement of material facts read to the court on the conviction of the respondents for the offence was in the following terms:
The [appellant] who is an 18 year old male, 178 cm in height and of slim build was a guest at this party. The [appellant] has left the confines of the house where this party was occurring in search of a companion as they were about to depart to go home. The [appellant] walked past the group where [the respondents] were standing as he looked for his companion. As he walked past a second time members of this group made comments directed at the [appellant]. At this stage [t]he [second respondent] SU kicked the [appellant] once. The [appellant] punched the [second respondent] SU back. Others from the group then joined in. The [first respondent] ASHWOOD struck the [appellant] to the left side of his face with a clenched fist and the [second respondent] SU struck the [appellant] to the right side of the face with a clenched fist twice and kicked him in the chest. The [appellant] collapsed to the ground. Two others joined in. [T]he [second respondent] SU kicked him once to the side. The [appellant] was knocked unconscious. Other party-goers then came to the aid of the [appellant] and forced [the respondents] away.
The respondents were each fined $2,000 for the offence.
Material submitted in support of the application
In support of the application the appellant submitted to the Assessor materials which included the following:
1.Records from the file of Sir Charles Gairdner Hospital (the Hospital), including notes prepared in relation to the appellant's attendance at the Hospital's emergency department at 12.40 am on 11 June 2006. The notes record that the appellant had facial bruising and tenderness, bruising to the area of his left eye and a subconjunctival haemorrhage of the left eye;
2.An undated medical report prepared by Dr Carl Slusarczyk, general practitioner, which reveals that Dr Slusarczyk saw the appellant on 14 June 2006 and noted facial tenderness and swelling and bruising under the eyes, more so on the left, as well as a subconjunctival haemorrhage of the left eye;
3.A report prepared by Dr Paul Roche of SKG Radiology dated 15 June 2006 which indicates that on that date the appellant underwent a CT scan which revealed that he had a minimally displaced fracture of the left infraorbital margin extending into the inferior floor of the left orbit, and fractures of the maxillary sinus with minimal displacement;
4.A report from Ms Melanie Honnor, clinical psychologist, dated 25 August 2005 in which Ms Honnor expresses the opinion that although the appellant did not meet the full criteria for a diagnosis of post traumatic stress disorder he was, as a result of the commission of the offence, exhibiting significant symptoms of the disorder and some secondary avoidance;
5.The police prosecution brief in relation to the offence including the appellant's statement to the police dated 18 June 2006;
6.An undated letter or victim impact statement written by the appellant addressed to 'To whom it may concern', submitted to the Assessor in June 2009, in which the appellant describes the emotional impact of the offence on him;
7.An undated letter written by a woman who was in a relationship with the appellant addressed to 'To whom it may concern', submitted to the Assessor in June 2009, in which she describes the changes in the appellant's personality and emotional wellbeing since the offence;
8.An undated letter written by the appellant's parents addressed to 'To whom it may concern', submitted to the Assessor in June 2009, in which they describe the changes in the appellant's personality since the commission of the offence; and
9.Three reports provided by Dr Joseph Muscara of Aim Dental Group (Aim), two dated 29 May 2008 and the third dated 7 July 2010.
The above referred to medical notes and reports, save for the reports provided by Dr Muscara, do not contain any reference to the appellant reporting damage to his teeth or suffering from damage to his teeth. The Hospital's emergency department notes contain an entry that the appellant had 'no jaw tenderness' and that he was able to 'hold [a] lollipop stick with clenched teeth against resistance'. None of the other above referred to documents contain any reference to the appellant having reported or suffered damage to his teeth as a result of the offence.
Both of Dr Muscara's reports dated 29 May 2008 were addressed to 'To whom it may concern'. In the more detailed of the two reports bearing this date (the first report), Dr Muscara 'certified' that the appellant attended his surgery on the date of the report, that is, almost two years after the commission of the offence 'for a dental appointment having sustained a blow to his face resulting in chips' to teeth numbers 11, 27, 38 and 14. He stated that the 'treatment required will be composite resin'. He stated that 'we do not foresee any untoward consequences, however any blow to teeth could lead to a nonvital tooth and this may not occur for many years, but nevertheless must be considered in any claim'. He stated that the appellant had been a patient of his since 1997 and had attended Aim regularly for examination on a sixmonthly basis. He stated that the appellant's teeth had always been in good condition and that he therefore believed the chips to the appellant's teeth to be 'a direct result of the blow he sustained'.
In the second of his reports dated 29 May 2008 (the second report) Dr Muscara simply repeated verbatim some of the statements made in the first report. He did not in the second report make any statements that do not appear in the first report.
On 24 June 2009 the Assessor sent a letter to the appellant's solicitors bearing that date. In her letter the Assessor noted that Dr Muscara's 28 May 2008 examination of the appellant was 'two years after the date of the incident for which he is claiming'. The Assessor requested the appellant's solicitors to provide her with a report from any dentist that the appellant had seen since 10 June 2006 'detailing the date/s of the consultation, the diagnosis, the treatment provided and the prognosis'. The Assessor also asked the appellant's solicitors for a report 'from the dentist at Aim who treated [the appellant] on 29 May 2008 giving his opinion on the dental hygiene and age of the chips seen in 29 May 2008 consultation'.
By March 2010 the Assessor had not received from the appellant's solicitors the requested additional dental reports. Accordingly, the Assessor sent a further letter to the appellant's solicitors dated 24 March 2010. In her letter the Assessor noted that Dr Muscara's 28 May 2008 examination of the appellant was 'two years after the event', that the notes on the Hospital's file contained no reference to any dental damage and that although Dr Muscara had stated that he had seen the appellant for regular six-monthly appointments since 1997 he had made 'no observation whether chips were noticed to the teeth prior to May 2008'. The Assessor asked the appellant's solicitors to confirm whether compensation was sought for the cost of future dental treatment and requested the appellant's solicitors, if such compensation was being sought, to provide a detailed report from Dr Muscara 'documenting observations he made of the [appellant] at his first six‑monthly review after the incident, presumably prior to the end of December 2006'.
In response to the Assessor's letter dated 24 March 2010, the appellant's solicitors provided to the Assessor a copy of Dr Muscara's report dated 7 July 2010 (the third report). The third report was addressed to the appellant's solicitors. In the third report Dr Muscara confirmed that he had examined the appellant in May 2008 and had 'noted chips on four teeth (11, 12, 16 and 47) which [the appellant] told us he received from an [assault] on the 10th June 2006'. He stated that 'no chips were noted prior to 2008 and the areas of fracture to the teeth I believe indicate trauma probably from the [assault]'. He expressed the opinion that given the way the teeth were chipped it is likely that the chips occurred 'due to a blow with the teeth coming together suddenly'. He stated that having reviewed the appellant again in 2010 he did not expect any untoward changes to occur to the chipped teeth. He said that 'in regards to compensation, I suspect that the restorations to these teeth will need to be replaced 5 times within the patient's lifetime at a cost of approximately $3000 $4000 allowing for inflation'.
As is apparent from my above references to the contents of the first report and the third report, there is a discrepancy between the reports as to the numbers of the four teeth which Dr Muscara observed to be chipped. The numbers of three of the teeth identified in the first report are different to the numbers of three of the teeth identified in the third report. The only tooth that is referred to in both reports is tooth number 11.
The discrepancy between the first report and the third report as to the tooth numbers was not drawn to my attention in the written submissions filed on behalf of the appellant or in the written submissions filed on behalf of the Chief Executive Officer of the Department of the Attorney General (the CEO). Nor was the discrepancy identified by counsel during the hearing of the appeal. I presume that the reason for this is that neither the appellant's counsel nor counsel for the CEO noticed the discrepancy prior to the hearing of the appeal.
The Assessor's decision
On the basis of the information available the Assessor, given that the chips to the appellant's teeth had not been reported or observed in routine dental consultations over a period of almost two years since the date of the offence, was not satisfied that the chips had been suffered as a consequence of the offence: Madaschi [9]. The Assessor therefore did not include in the compensation award compensation for the cost of restoration to the appellant's teeth: Madaschi [9].
The Assessor summarised her reasoning in arriving at the compensation award in the following terms (Madaschi [14]):
Taking into account all of the information to which I have referred, I was satisfied that the applicant had suffered physical injuries from which he had suffered some pain and discomfort but had made a complete recovery in a relatively short time. I was also satisfied that he had suffered some symptoms of mild depression and other psychological reactions not sufficient to support a diagnosis of post‑traumatic stress disorder. I took note also that to an extent the applicant's condition had been contributed to by non‑compensable aspects of the aftermath of the situation, in particular the negotiations with the police with respect to the facts of the incident, the allegations of the offenders that he had in fact assaulted them first, and the sense that the penalty imposed following the conviction of the offenders was inadequate and failed to recognise the seriousness of the incident and the injury he might have suffered. I was required to discount the compensation for the psychological injury I was satisfied the applicant sustained, to take account of the contribution I was satisfied these matters had made to his condition. I determined that the appropriate compensation for the applicant's injury was the sum of $8,000. I was satisfied that he had incurred expenses in obtaining reports in the total of $1,754.05. As set out above, I make provision for the future treatment expenses up to the sum of $1,025, making a total compensation award in the sum of $10,774.05.
The grounds of appeal
The appellant's grounds of appeal against the Assessor's decision are in terms to the following effect:
1.The Assessor did not take into consideration the injuries the appellant sustained to his teeth as a result of the offence;
2.The Assessor did not award compensation for the injuries the appellant sustained to his teeth as a result of the offence;
3.The Assessor did not award compensation for the future cost of dental treatment that the appellant will require as a result of the offence; and
4.The Assessor's failure to take into consideration the injuries to the appellant's teeth and the costs the appellant will incur for dental treatment resulted in an inadequate compensation award.
In short, the appellant appeals against the decision of the Assessor on the ground that the Assessor erred in failing to award compensation for damage to the appellant's teeth and the cost of repairing the damage.
Nature of the appeal and powers on appeal
The appeal is a hearing de novo: the Act, s 56(1); Gullelo v Halloran [2008] WADC 145 [5]. I must decide the appeal 'without being fettered by the Assessor's decision': the Act, s 56(1). Nonetheless, it is appropriate for me to have regard to the assessment made by the Assessor given that the Assessor is a specialist in the field of criminal injuries compensation: Crumby v Kuru (1995) 13 SR (WA) 331, 333; Hogben v Darcy [2009] WADC 63 [13].
I have a general discretion to receive and admit further evidence on the appeal: the Act, s 56(1). I should admit further evidence unless there is some reason why it would be unjust to do so: Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143 [37]; Re; Tilbury [2010] WADC 46 [3]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9].
It is open to me to increase or decrease the compensation award made by the Assessor even though no cross appeal has been filed: Nguyen v Assessor of Criminal Injuries Compensation [2000] WADC 221; Dos Santos v Dos Santos [2000] WADC 256.
In deciding the appeal I may exercise any power of the Assessor under the Act other than a power under s 19(1)(b), s 24(1) or s 25, none of which is relevant in the present context: the Act, s 56(2)(a). I may confirm, vary or reverse the Assessor's decision either in whole or in part: the Act, s 56(2)(b).
Jurisdictional limit
The maximum compensation that may be awarded in favour of a person for a single offence is $75,000: the Act, s 31(1).
The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463.
Assessment of compensation
Injury
The offence is a 'proved offence' as defined by the Act: the Act, s 3. Accordingly, the appellant is entitled to compensation for any injury suffered as a consequence of the commission of the offence and also for any loss suffered: the Act, s 12(1).
'Injury' is relevantly defined in s 3 of the Act to mean 'bodily harm, mental and nervous shock, or pregnancy'. 'Loss' is defined in s 6(2)(b) of the Act to include expenses that are likely to be reasonably incurred by or on behalf of a victim of an offence for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim as a consequence of the offence.
General principles of assessment
The correct approach to adopt in fixing the appropriate amount of compensation is to apply ordinary tortious principles for the assessment of damages subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act, and subject also to the jurisdictional limit imposed by the Act: RJE v Bandy (Unreported, WASC (Burt J); Library No 1365; 31 May 1974, 3; M v J and J v J, (Unreported, WASC (Scott J), Library No 920598, 19 November 1992); A v D (1994) 11 WAR 481, 486 487.
In assessing the amount of compensation I must focus solely upon the injuries suffered by the appellant as a consequence of the commission of the offence. Considerations of punishment of the respondents or sympathy for the appellant are completely irrelevant: R v Forsythe [1972] 2 NSWLR 951, 953; B v W (1989) 6 SR (WA) 79, 89.
Causation
The onus is on the appellant to 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: the Act, s 3 (definition of 'satisfied'); S v Neumann, 463 464.
It is not necessary for the appellant to establish that the offence was the sole cause of the alleged injury or loss. It is sufficient for the appellant to establish that the offence materially contributed to any injury or loss: Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673; S v Neumann, 463 464.
The application to adduce further evidence
In support of the appeal the appellant seeks leave to adduce additional evidence in the form of a further report prepared by Dr Muscara dated 30 March 2011 (the fourth report). The fourth report is addressed to 'To whom it may concern' and is in the following terms:
Re: Andrew Madaschi
1.1.1My apologies, it was 24/07/07 and not May 2008. At this time we noted chips on four teeth being: 11, 21, 16, 47.
1.1.2Andrew told me that he was assaulted in June 2006 and in the process his jaws came together suddenly. He said he noticed he had chipped some teeth but did not come in for a long time after the event due to his busy schedule.
1.1.3You have all the records of when he attended the surgery.
1.1.4Prior to the assault I saw Andrew on the 09/12/2005 and no teeth were chipped.
1.1.5The chips therefore occurred between 09/12/2005 and 24/07/2007 and yes I think these chips could have occurred in the assault.
1.1.6The teeth were chipped in areas of the tooth such as the buccal of the 47 and the incisal edges of the 11 & 12, which indicate the teeth coming together quickly. Not as a result of decay.
1.1.6.1Yes it is reasonable to conclude that a blow to the head could cause the teeth to come together and sustain damage such as minor uncomplicated fractures.
1.1.6.2 The area of the tooth fractured are the 47, 16 buccal, 11 & 12 incisor edges.
1.1.6.3 Yes they can appear without trauma someone who bruxes (grinds the teeth) biting down on something hard.
1.1.6.4 Yes the teeth could have infractions due to the trauma and therefore are somewhat weakened and then can fracture at a later date.
In conclusion:
1.I apologise for the [error] in dates therefore the first time we saw Andrew was the July 2007 not May 2008.
2.The types of chips (uncomplicated fractured) sustained by [Andrew's] teeth could have very well occurred due to trauma, sustained by a blow to the head and just as easily by grinding or biting down on something hard.
3.The resulting damage to the teeth which I have already stated is minor and subsequent visits the teeth were asymptomatic and therefore I do not expect any more untoward problems with his teeth.
Given the references in the third report and in paragraphs 1.1.6 and 1.1.6.2 of the fourth report to tooth number 12, I am willing to assume that the reference in paragraph 1.1.1 of the fourth report to tooth number 21 is an error and was intended to be a reference to tooth number 12. This issue was not referred to by counsel in either their written or oral submissions.
Counsel for the CEO did not object to the appellant adducing the fourth report as additional evidence on the appeal. I do not think that there is any reason why it would be unjust to permit the appellant to rely on the fourth report. I therefore grant leave to the appellant to adduce the fourth report as evidence on the appeal.
I accept, in light of the contents of the fourth report, that the first time that Dr Muscara saw the appellant after the offence was 24 July 2007.
The submissions of the parties
Despite the unexplained discrepancy between the first report on the one hand, and the third report and the fourth report on the other, as to which four of the appellant's teeth were observed by Dr Muscara on 24 July 2007 to be chipped, I am willing to accept in deciding the appeal that the appellant did, on presentation to Dr Muscara on 24 July 2007, have four chipped teeth. Whether the four teeth were numbers 11, 14, 27 and 38 or 11, 12, 16 and 47 is in the circumstances not of particular significance.
There is no dispute that the chips to the appellant's teeth constitute an 'injury' within the meaning of the Act.
The appellant submits that the information in the fourth report 'is sufficient to establish on the balance of probabilities that the damage to the appellant's teeth occurred as a consequence of [the offence] and that the appellant is likely to incur future treatment expenses as a direct result of the consequence of the injury'. The appellant, in support of this submission, relies in part on the hearsay statement made by Dr Muscara in the fourth report to the effect that the appellant told him that he was assaulted in June 2006, that in the process his jaws came together suddenly, and that he subsequently noticed the chips in his teeth but 'did not come in for a long time after the event due to his busy schedule'.
The CEO submits that despite the latest report of Dr Muscara the evidence before me is not sufficient to prove on the balance of probabilities that the appellant suffered the chips to his teeth as a consequence of the offence. In this regard the CEO points to the absence of any reference in the medical records created at or around the time of the offence to damage to the appellant's teeth, the time lapse between the commission of the offence and Dr Muscara's noting of the chips to the teeth, and the inability of Dr Muscara to specify the offence as the probable, as opposed to a possible, cause of the chips to the teeth.
The appellant's failure to give evidence
The appellant has not sought to adduce on the appeal any affidavit or oral evidence from himself to the effect that the chips to his teeth were caused by the commission of the offence or that he noticed the chips to his teeth soon after the commission of the offence: cf Seal v McKinnon (Unreported, WADC (Commissioner Greaves), Library No 4961, 21 June 1996). I have not been provided with any explanation for the absence of direct evidence from the appellant.
In deciding the appeal I am not bound by rules or practice as to evidence or procedure: the Act, s 18(2) and s 56(2)(b). I may therefore, if I consider it appropriate, treat any out of court statement made by the appellant to Dr Muscara in relation to the cause of the chips to his teeth as evidence of the truth of the statement's content, that is, as evidence going to prove the link between the stated cause and the injury.
Despite the absence of any explanation for the appellant's failure to himself seek to give evidence on the appeal as to the cause of the chips to his teeth, I am willing to treat any out of court statement made by the appellant to Dr Muscara in relation to the cause of the chips as evidence to be taken into account in deciding if the appellant has proved the alleged causal relationship between the offence and the injury. This is not to say that any significant weight should be placed on the evidence. I will return to this issue in due course.
Findings as to statement made by the appellant to Dr Muscara
Before I can take into account any out of court statement made by the appellant to Dr Muscara I must make findings, to the extent that I am able to do so, as to the terms of the statement.
In the first report Dr Muscara did not detail what the appellant said to him about the cause of the chips to the teeth. However, it is reasonable to infer from Dr Muscara's statement in the first report that the appellant attended for a dental appointment 'having sustained a blow to his face resulting in chips to the following teeth' that the appellant told Dr Muscara, in substance, that he had suffered the chips as a result of being struck to the head during the commission of the offence.
In the third report Dr Muscara stated that when he examined the appellant in May 2008, which in light of the fourth report was obviously intended to be a reference to 24 July 2007, the appellant 'told us that he had received the chips from an [assault] on 10 June 2006'. Dr Muscara did not state in the third report that the appellant told him that during the commission of the offence his teeth came together suddenly. Rather, Dr Muscara expressed the view that 'it is likely in the way the teeth were chipped that it occurred due to a blow with the teeth coming together suddenly'.
The third report, as I have already mentioned, was addressed to the appellant's solicitors. It was therefore no doubt shown to the appellant.
It is against the above background that Dr Muscara, in the fourth report, stated that the appellant told him that 'he was assaulted in June 2006 and in the process his jaws came together suddenly'. I take Dr Muscara's reference in this context to what the appellant told him to be a reference to what the appellant told him during the appointment on 24 July 2007.
There is no reason to think that if the appellant did tell Dr Muscara at the appointment on 24 July 2007 that a blow to his head inflicted during the commission of the offence caused his jaws to come together suddenly, Dr Muscara would not have included this information in at least the first report if not the third report also. In my view, the absence of any reference in the first report to the precise mechanism by which the teeth were chipped renders it probable that Dr Muscara, no doubt unconsciously, has in the course of preparing the fourth report reinterpreted what the appellant actually said to him on 24 July 2007 in light of his opinion as to the means by which a blow struck to the appellant's head during the commission of the offence could result in the chips to the appellant's teeth. Accordingly, while I am satisfied on the balance of probabilities that the appellant did at the appointment on 24 July 2007 tell Dr Muscara, in substance, that the chips to his teeth were caused by a blow or blows to his head struck during the commission of the offence, I am not on the basis of the material before me similarly satisfied that the appellant told Dr Muscara that in the course of the assault his jaws came together suddenly.
Decision as to causation
The appellant did not report any damage to his teeth at or around the time of the offence. The medical practitioners who examined the appellant at or around the time of the offence did not notice any damage to the appellant's teeth.
The appellant did not attend on Dr Muscara about the chips to his teeth until well over a year after the commission of the offence. There was therefore a considerable period of time during which the appellant could have suffered the damage to his teeth at some point after the commission of the offence.
The appellant's statement to Dr Muscara that the chips were caused during the commission of the offence was obviously not made on oath and has not been subjected to crossexamination. Furthermore, in making the statement the appellant apparently did not specify how long after the offence he noticed the chips to his teeth. In these circumstances it is my view that the out of court statement made by the appellant on 24 July 2007 as to the cause of the chips to his teeth should not be given any significant weight.
Dr Muscara's opinion is that the chips to the appellant's teeth could have been caused by the assault which constituted the offence or could 'just as easily' have been caused by the appellant grinding his teeth or biting down on something hard. Dr Muscara does not consider that one of these possibilities is more likely than the other.
Taking all of the above matters into account, I am not satisfied on the balance of probabilities that the appellant suffered the chips to his teeth as a consequence of the commission of the offence. Accordingly, I do not consider that the appellant should be awarded any compensation for the injury constituted by the chips to his teeth or for any costs of treatment to repair the chips.
The appropriateness of the award
On the basis of the material before me, applying ordinary tortious principles for the assessment of damages and paying due regard to the Assessor's position as a specialist in the field of criminal injuries compensation, I see no reason to reduce or increase the compensation award made by the Assessor in respect of the injuries and loss which she found that the appellant did suffer as a consequence of the offence. In my view the compensation award made by the Assessor was in all the circumstances an appropriate award.
Conclusion
For the reasons stated I dismiss the appeal. I will hear the parties as to the issue of costs.
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