Majok v Koryiom
[2017] WADC 157
•14 DECEMBER 2017
MAJOK -v- KORYIOM [2017] WADC 157
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 157 | |
| Case No: | APP:100/2016 | 8 SEPTEMBER 2017 | |
| Coram: | DAVIS DCJ | 14/12/17 | |
| PERTH | |||
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Compensation award increased | ||
| PDF Version |
| Parties: | PETER GATIETE MAJOK PETER JONGLIEI KORYIOM |
Catchwords: | Criminal injuries compensation Appeal from award on ground of inadequacy Further evidence admitted Mental and nervous shock Psychiatric injury Causation issues Future treatment Turns on own facts |
Legislation: | Criminal Injuries Compensation Act 2003 |
Case References: | A v D (1994) 11 WAR 481 B v W (1989) 6 SR(WA) 79 DNA v Britten (1995) 14 SR(WA) 325 Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666 JY [2013] WADC 187 McDavitt v McDavitt [No 2] [2013] WADC 198 MJN v MAJS (2003) 35 SR (WA) 219 Re Dunne [2014] WADC 131 Re PK (by her next friend the Public Trustee) [2014] WADC 139 Re Tilbury [2010] WADC 46 S v Neumann (1995) 14 WAR 452 Zadeh [2015] WADC 136 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
PETER JONGLIEI KORYIOM
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : H L PORTER
Citation : MAJOK [2016] WACIC 13
File No : CI 000121 of 2016
Catchwords:
Criminal injuries compensation - Appeal from award on ground of inadequacy - Further evidence admitted - Mental and nervous shock - Psychiatric injury - Causation issues - Future treatment - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003
Result:
Appeal allowed
Compensation award increased
Representation:
Counsel:
Appellant : Mr A A Nolan
Respondent : No appearance
Amicus Curiae : Ms S Smith appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Trewin Norman & Co
Respondent : No appearance
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
DNA v Britten (1995) 14 SR(WA) 325
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
JY [2013] WADC 187
McDavitt v McDavitt [No 2] [2013] WADC 198
MJN v MAJS (2003) 35 SR (WA) 219
Re Bianchi [2012] WADC 147
Re Dunne [2014] WADC 131
Re PK (by her next friend the Public Trustee) [2014] WADC 139
Re Tilbury [2010] WADC 46
S v Neumann (1995) 14 WAR 452
Zadeh [2015] WADC 136
1 DAVIS DCJ: The appellant, Mr Majok, who is now 27 years old, was seriously assaulted by the respondent on 13 April 2013. For this assault the respondent was convicted after trial, on 6 May 2014, of the offence of doing grievous bodily harm (the offence).
2 On 23 June 2014 the respondent was sentenced for the offence to a term of imprisonment of 6 years, backdated to 13 April 2013 with eligibility for parole. The findings of fact by the sentencing judge included that while Mr Majok and the respondent were at a friend's house, Mr Majok was physically assaulted by the respondent and then taken into the back garden area of the house adjoining the carport. Then, as the sentencing judge described it 'for no reason that can be discerned' the respondent used an accelerant spray of some kind and set Mr Majok alight. His clothing caught fire, he lost consciousness, but he came to a little time later and felt that he was burning. Mr Majok suffered serious burns to his body, in particular his left forearm, hand and right chest, which required skin grafts, and he has been left with permanent scars.
3 Mr Majok made an application for criminal injuries compensation pursuant to the Criminal Injuries Compensation Act 2003 (the Act) in respect of his injuries and consequent losses. On 18 November 2016 the Chief Assessor of Criminal Injuries Compensation (the assessor) awarded Mr Majok criminal injuries compensation in the sum of $23,100. That sum included $1,100 for report fees. The assessor published written reasons for her decision.
4 On 1 December 2016 Mr Majok filed a notice of appeal against the decision of the assessor on the ground that the award of compensation made to him was 'so manifestly inadequate as to constitute an error of law'.
5 For the reasons which follow I consider that the award of damages to Mr Majok was manifestly inadequate. I have allowed the appeal and assessed Mr Majok's damages as the maximum allowable under the Act of $75,000.
Legal principles on this appeal
6 Pursuant to s 56(1) of the Act this appeal is a re-hearing of the matter de novo. The court has a general discretion to receive and admit further evidence, which should be admitted unless it would be unjust to do so: s 56(1); Re Tilbury [2010] WADC 46 [3].
7 Mr Majok sought to adduce further evidence, which I admitted. The evidence was an affidavit from Mr Majok sworn 25 August 2017 and an affidavit of Alexis Stella Kapoulitsas sworn 28 August 2017, which annexed two medical reports from the consultant psychiatrist, Dr Frederick Ng, dated 27 February 2017 and 30 June 2017. Mr Majok also appeared in court and gave some evidence and showed me his scarring. He was cross-examined by counsel for the amicus curiae in respect to his claim for loss of earning capacity.
8 The principles upon which compensation for a criminal injury pursuant to the Act is assessed are well established. The maximum compensation that may be awarded is $75,000: s 31(1). This figure is the jurisdictional limit and does not create a scale: S v Neumann (1995) 14 WAR 452, 463.
9 The correct approach to adopt in fixing the appropriate amount of compensation is to apply the ordinary tortious principles for assessment of damages, subject to the jurisdictional limit imposed by the Act: S v Neumann (462).
10 Compensation is payable for injury, which is defined to include bodily harm and mental and nervous shock. The phrase 'mental or nervous shock' has been construed as including any malfunction of the victim which can be seen to be a consequence of the impact of events constituting the offence, or associated with the commission of the offence, as those events impact on the mind or the nervous system. Mental and nervous shock includes distress, horror, disgust and other similar adverse mental reactions but does not encompass mere fright, humiliation or anguish. Something of a more enduring character which may in both the legal sense and common parlance be described as an injury is required: S v Neumann (461); Re Dunne [2014] WADC 131 [25].
11 Compensation is also payable for loss as defined by s 6. Loss of earnings and loss of earning capacity are both compensable: s 6(2)(c); A v D (1994) 11 WAR 481, 489, 495 - 496.
12 The applicant for criminal injuries compensation must establish, on the balance of probabilities, causation of the injury by the commission of the offence and causation of the loss for which compensation is sought. The offence does not have to be the sole cause of any injury or loss but it needs to have materially contributed to that injury or loss: Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666; S v Neumann (463 - 464).
13 However, where a non-compensable condition has contributed to the loss, or at least has or has had a propensity to do so, the person seeking compensation may not be entitled to compensation for the full extent of the injury or loss: MJN v MAJS (2003) 35 SR (WA) 219 [51] - [57]; McDavitt v McDavitt [No 2] [2013] WADC 198 [22] - [54].
14 The amount of compensation is not to be fixed as punishment of the offender or as an expression of sympathy for the applicant: B v W (1989) 6 SR (WA) 79, 89; DNA v Britten (1995) 14 SR (WA) 325.
The injuries and loss claimed in this appeal
15 The claimed inadequacy in the award to Mr Majok related to three areas:
(a) the physical injuries suffered by Mr Majok, in particular the scarring to his hands, left forearm and chest;
(b) the mental or nervous shock he suffered as a consequence of the offence; and
(c) the failure of the assessor to allow any award for past loss of earnings or future loss of earning capacity.
16 There are also further report expenses claimed in relation to the reports from Dr Ng of $1,430. Including the previous report expenses claimed, the total for past expenses is $2,530.
17 In this appeal Mr Majok also sought the cost of future medical treatment, based on the new evidence from Dr Ng.
Mr Majok's physical injuries
18 There is no doubt that the physical injuries to Mr Majok were severe. He was transported to hospital by ambulance and seen in the emergency section of Swan District Hospital on the afternoon of 13 April 2013 by Dr Catherine Liu. Mr Majok had burns to over 10% of the total surface area of his body. Dr Liu noted that Mr Majok had suffered full thickness burns to his left hand, ears and fingers. (A full thickness burn is a burn through all layers of the skin to the fatty tissue below). He also suffered a laceration to the forehead and the left ear and bruises to his lips.
19 Mr Majok had to be resuscitated, and given IV fluids and morphine for the pain. He was then transferred by ambulance to Royal Perth Hospital (RPH). On his arrival Mr Majok was reviewed by ear, nose and throat surgeons in the Emergency Department who found singed nasal hair, an oedematous (swollen) nasopharynx, larynx and false cord with soot present. Mr Majok had to be intubated as the swelling posed a threat to the patency of his airway. He spent two days in ICU (intensive care) until successfully extubated and then he was transferred to the Burns Unit.
20 Case notes from the RPH Burns Unit record that on examination following his admission on 13 April 2013 Mr Majok was found to have suffered multiple full thickness and deep partial thickness burns. The burns recorded in the RPH notes are burns to his left forehead, the left angle of mandible (jaw), his left back, right chest, left forearm, left hand, and the left fourth and fifth fingers. He also had a laceration to his left ear and right eyebrow.
21 The following day he underwent dermabrasion and split thickness skin grafts to his left arm, chest and right flank. He remained in hospital after surgery for eight days, during which he had regular wound reviews and dressing changes as well as physiotherapy and occupational therapy. From my review of the RPH inpatient records it appears he was discharged on 24 April 2013.
22 Following his discharge he was seen as an outpatient in the RPH Burns Clinic on a regular basis between 6 May and 26 July 2013.
23 There is no doubt that the burns must have been painful for Mr Majok for many months. Dr Liu in her evidence at trial noted that on arrival by ambulance he was in obvious distress with pain. The treatment for his burns and the need to undergo surgery would have led to further pain. The RPH Burns Clinic outpatient reviews make regular recordings of pain suffered by Mr Majok.
24 Mr Majok described his injuries in some detail during the evidence he gave at the trial of the criminal charge against the respondent. He also showed me all of the scarring during his evidence before me in this appeal. With the following exception, his evidence in this appeal and the scarring he showed me are consistent with the medical records.
25 The exception relates to Mr Majok's evidence at the appeal hearing that he also suffered burns to each of his heels, and he showed me slightly different coloured pigmentation on his heels. However, there is no recorded injury to his heels in any of the medical records, and it is not something Mr Majok has mentioned before in his previous evidence or in his claim for criminal injuries compensation. Accordingly, I am not able to accept his evidence about this.
26 The scarring on Mr Majok's left forearm (which is around and below the area of his elbow, both inside and outside), his left hand and the right side of his chest are all visible. The scarring on his left arm is particularly noticeable. The skin is quite a different pink colour from the natural colour of his skin. I am satisfied that all of this scarring is the result of the burns Mr Majok received in the incident the subject of this appeal.
27 In a statement dated 19 January 2016 provided to the assessor, Mr Majok stated that he experienced pain every day. He felt pain when walking and when working. His body felt like it was paralysing. He had become sexually impotent, had lost his sense of smell and had a reduced sense of taste.
28 In his affidavit filed in this appeal, Mr Majok described how he continues to suffer from pain and restricted movement as a result of his burns and scarring. He finds it difficult to walk, sit for long periods or toilet himself. He finds it also difficult to shower and he must use handmade soap, as normal soap aggravates his skin. The burns have made his fingers and nails extremely sensitive. He feels as though his skin is burning and constantly feels a burning sensation over his body.
29 In relation to Mr Majok's description of restricted movement, pain when walking and sensitivity, it is important to note that the medical evidence is that Mr Majok's wounds have all healed, and he has made a full physical recovery. A report dated 16 October 2014 from Dr Sarit Kanungo of the Mirrabooka Medical Centre recorded that Mr Majok had attended the practice on 23 October 2013 and complained of feeling weakness in his legs and having difficulty standing for long periods. After addressing the treatment Mr Majok had received, Dr Kanungo stated that Mr Majok had received extensive burns but his wounds had all healed, and he had normal limb movement. Subjectively there were multiple complaints, but objectively no clinical findings. However, Dr Kanungo also recorded that Mr Majok had suffered from depressive symptoms (post-traumatic stress) for which he had been treated with antidepressants. In answer to a question from Mr Majok's solicitors as to 'the likely development of our client's condition into the foreseeable future', Dr Kanungo answered that Mr Majok had 'likely development of PTSD and anxiety into the foreseeable future'.
30 Thus Mr Majok's recent complaints of physical symptoms appear to have arisen from psychological rather than physical causes.
Psychological and psychiatric injuries
31 There is no doubt that this incident and its aftermath have been traumatic and distressing for Mr Majok. This is, however, complicated by the fact that Mr Majok had previously suffered some psychological or mental health issues.
32 Mr Majok was reviewed by a psychologist and a psychiatrist while he was an inpatient at RPH on 19 April 2013. The psychologist recorded that Mr Majok was a 23 year old Sudanese refugee. He had a history of being assaulted by the respondent a number of times in the past, a previous head injury in 2012 and a brief psychotic episode associated with that head injury. He was referred for a review by a psychiatrist.
33 The report from the psychiatrist, Dr Lumley, dated 19 April 2013 stated as follows:
This young man is not suffering from an immediately treatable psychiatric illness, but is frightened by his recent experiences to the point of thinking of moving to the Eastern States to get away from his persecutor. There may also be an element of PTSD [post-traumatic stress disorder] related to his remote experiences. He may benefit from psychologist intervention and also wants to see a social worker in order to discuss alternative places to stay as his current one is known to his alleged attacker.
34 Inpatient case notes made by Dr Lumley on 19 April 2013 recorded that Mr Majok was upset and concerned about his burns, stating that he was going to look 'ugly'.
35 Mr Majok was subsequently reviewed by a clinical psychologist, Dr David Millchap, in the RPH Burns Clinic on 23 April 2013. The inpatient case notes recorded that Mr Majok had a history of significant trauma, including being separated from his mother during flight from military conflict and being taken to an orphanage in Kenya with other displaced children. He was then re-united with his Aunty who was in the UN refugee system and he came with her to Australia in 2007. He had subsequently discovered that his mother and sister were alive and living in Sudan safely away from conflict. After travelling to Africa in 2012 he lost his job of 5 years as a kitchen hand and then his Aunty had left the country to travel overseas, leaving him homeless. He had moved in with friends in her absence. Since 2012 he had been the subject of assaults and victimisation by two individuals. He had been drinking excessively and had experienced psychotic symptoms as a result of alcohol withdrawal in December 2012.
36 In terms of the offence the subject of this appeal Dr Millchap recorded that Mr Majok understandably felt vulnerable to further assault, was in fear of his life and believed the burns injuries to have been an attempt to kill him.
37 There is no evidence of Mr Majok exhibiting symptoms of psychosis during his time at RPH, and inpatient case notes made by Dr Lumley on 19 April 2013 specifically recorded that Mr Majok had no overt symptoms of psychosis and no delusional beliefs.
38 Mr Majok was reviewed by Dr Millchap in the RPH Burns Clinic on 10 May 2013 who recorded in outpatient notes, among other things, that:
(a) Mr Majok described some difficulties with sleep (his sleep was variable), low mood, low activity, ongoing concerns regarding vulnerability to further assault, and said that he had stopped drinking;
(b) Dr Millchap had the impression of ongoing mood disturbance;
(c) Mr Majok remained troubled by the physical assaults on him and their consequences.
39 Mr Majok was seen by Dr Millchap on his final visit to the RPH Burns Clinic as an outpatient on 16 July 2013. Dr Millchap recorded in the outpatient case notes that Mr Majok appeared to be calm and relaxed and that he had not been using alcohol since the assault. He reported his mood was generally good with good sleep, and acknowledged his mood had improved significantly since abstaining from alcohol.
40 Soon after completion of his treatment at the RPH Burns Clinic, however, Mr Majok was seen several times by practitioners at the Midland Community Mental Health Service.
41 He was first seen by a psychiatrist at the Midland Community Mental Health Service on 12 August 2013. Mr Majok's complaints were that he had problems passing urine since his burns injuries. He believed both his legs and muscles were not working and thought that his skin had also changed. He described how he stayed awake at night and no longer went out due to the discolouration of his skin. He described how he cried when alone because of the way his skin had turned to a different colour. He denied he was suicidal. He repeated what he had told the psychologist at the RPH Burns Clinic, that he had not had a drink (of alcohol) since the attack in April. The psychiatrist recorded that there was a possible psychotic elaboration of Mr Majok's physical symptoms with an associated mild moderate depression. He was prescribed medication.
42 Mr Majok was seen again by the same psychiatrist on 10 September 2013. At this appointment Mr Majok stated he was now passing urine normally but he still felt his legs were paralysing. He spent his time by himself and had limited interests and decreased or reduced motivation. He also suffered from poor sleep. The psychiatrist recorded a diagnosis possible emerging paranoid schizophrenia with negative symptoms.
43 On 11 November 2013 Mr Majok was reviewed by another practitioner at the Midland Community Mental Health Service. That practitioner recorded that Mr Majok was suffering some nightmares about the traumatic burning and an entry was made '? PTSD which prevents him from initiating and maintaining sleep'. The diagnosis was recorded as most likely depression with mood congruent psychotic features and then the following note was made 'DDX – schizophrenia – PTSD'. The plan was a trial of Mirtazapine 15 mg.
44 Mr Majok was reviewed on 26 November 2013 and reported that his body was feeling better and he reported improved appetite, sleep and weight gain. At this stage he denied suffering nightmares, however, the notes record he was preoccupied by his body image and thoughts of body weakness. He also felt that he was ugly because of the scars on his left upper and right lower limb. He also did not socialise as he felt others would think he was ugly. He spent most of his days at home watching television. It was recorded Mr Majok displayed poor eye contact, and restricted effect. The diagnosis was recorded as follows:
- Depression with mood congruent somatic delusions
- DDX – schizophrenia
- PTSD
45 A somatic delusion, as defined in Mosby's Dictionary of Medicine, Nursing and Health Professions (1st Australian & New Zealand edition, 2006), is defined as 'a false notion or belief concerning body image or body function'.
46 On a case review at the Midland Community Mental Health Service on 28 November 2013 it was recorded that Mr Majok suffered with depression with mood congruent somatic delusions. A differential diagnosis was made of schizophrenia of the paranoid type, but it was noted that currently he was reasonably stable.
47 On 10 April 2014, almost a year following the assault, after Mr Majok attended the Midland Community Health Service, a client management plan was prepared for Mr Majok. In the section of this plan entitled 'issues/problems' it was recorded that Mr Majok had problems associated with depressive symptoms. It also recorded, so far as this attack was concerned, that Mr Majok believed that he was ugly and that other people shunned him because of the scars he sustained when he was attacked and burned.
48 Counsel for Mr Majok has submitted, and I accept, that these records between August 2013 and April 2014 demonstrate that Mr Majok was suffering psychological distress concerning the injuries he suffered, including distress concerning his scars. In his affidavit filed in this appeal, Mr Majok has repeated that felt that he was ugly because of his scars. He also did not socialise as he felt others would think he was ugly. This is obviously an ongoing issue for him.
49 On 2 April 2015 Mr Majok was admitted to Swan District Hospital as a voluntary patient, where he stayed until his discharge on 14 April 2015. The Swan District Hospital Inpatient Discharge Letter recorded that the reason for admission was noted to be 'deteriorating mental state characterised by persecutory delusional beliefs, symptoms of depression and mood congruent somatic delusions in the background of non-compliance with medications and traumatic past history as a refugee and having been burnt by a friend'. The principal diagnosis made was Major Depressive Disorder with mood congruent somatic delusions. Other conditions were PTSD and Frontal Lobe Syndrome from alcohol dependency.
50 The day before his discharge, the notes of 13 April 2015 recorded that Mr Majok still got traumatised when he thought about the assault. The notes recorded:
Impression: - Depression resolving
Mood congruent somatic delusion
PTSD
51 Mr Majok was reviewed at the Swan Community Mental Health Service on 30 April 2015. On this occasion he described how he had experienced flashbacks of when he was burned. He expressed some concerns that the respondent who burned him may want to kill him when he (the respondent) is released from prison. The notes recorded a diagnosis of:
Major depression with psychotic features
PTSD …
- Currently reasonable stable, no acute risk issues
52 In addition to the notes from Midland and Swan Community Mental Health Service, there are medical reports to and from the Mirrabooka Medical Centre, where Mr Majok is a patient.
53 On 30 April 2014 Dr Hitesh Maru, consultant psychiatrist at Swan Community Mental Health Service, wrote a letter to Dr Kanungo of the Mirrabooka Medical Centre, the general practitioner who was taking over the ongoing care and follow-up of Mr Majok. Dr Maru reported that Mr Majok was 'vulnerable to depression and anxiety (PTSD) with his background of having experienced traumatic war situations as a child and then geographic dislocation'. Dr Maru was of the opinion that linguistic and cultural issues and possible isolation may exacerbate his depression. He recorded that Mr Majok had received extensive burns following an assault by a friend and that his depressive features included mood congruent somatic delusions. Dr Maru recorded he had been managing Mr Majok since November 2013 with prescribed medication, but Mr Majok had never adhered to treatment. He had received extensive psycho-education and case management from a clinical psychologist, including regular home visits and attempts to engage him with culturally appropriate organisations, but with little gain.
54 As I have already noted, the report dated 16 October 2014 from Dr Kanungo recorded that Mr Majok had 'likely development of PTSD and anxiety into the foreseeable future'. Dr Kanungo reported that Mr Majok had been treated with a pain medication and then subsequently antidepressant/anti-anxiety medication. The antidepressant was first prescribed in June 2014 and was increased in September 2014.
55 Dr Tuck Cheng, another doctor at the Mirrabooka Medical Centre, provided a written report dated 12 May 2015. He had seen Mr Majok only recently, and had provided him with mainly supportive treatment including prescribed medication for pain and antidepressant medication (Avanza) for his depression and somatic symptoms. Dr Cheng reported that Mr Majok's depression and pain had improved somewhat, although because Mr Majok was very vague, Dr Cheng noted it was unclear about how compliant Mr Majok had been with his medication.
56 Finally, there are the two reports from the consulting psychiatrist, Dr Frederick Ng.
57 In his first report dated 27 February 2017 Dr Ng said that he found it difficult to make an assessment of Mr Majok since he was a poor historian and vague, and unable to give Dr Ng any clear history. While it was very difficult for Dr Ng to do so, he provided a provisional psychiatric opinion based on the information which had been sent to him (including the medical reports of Dr Kanungo and Dr Cheng) that Mr Majok suffered from anxiety and depression and possibly post-traumatic stress as a consequence of being burnt. Further Dr Ng recorded:
If he did have pre-existing depression with somatic delusions and if he was severely burnt then it is eminently possible any pre-existing depression with somatic delusions would have been at least moderately severely exacerbated.
If he did not have pre-existing depression with somatic delusions and if he was severely burnt then, it is eminently possible that the physical and emotional trauma of the burns incident (for whatever the circumstances of how he was burnt) may have precipitated depression with somatic delusions.
58 Subsequently Dr Ng was provided with documents from Royal Perth Hospital and the Swan/Midland Community Mental Health Services records which I have referred to above. With that added information Dr Ng reported in his second report dated 30 June 2017, the following:
…I form the opinion that he may indeed have been traumatised to the extent of suffering from a post-traumatic stress disorder due to the index incident the basis of this claim.
However as Dr Lumley consultant psychiatrist has also noted, there were prior more 'remote' stressors in his life. I would view these prior stressors as including but not limited to his childhood traumas in his home country and his prior traumas in Australia whilst intoxicated, prior to the index incident.
If he had suffered from pre-existing Post Traumatic Stress Disorder, then it is more likely than not, that the index incident the basis of this claim would have at least moderately exacerbated any Post Traumatic Stress Disorder.
59 In his affidavit filed in this appeal Mr Majok has described how he feels depressed and anxious and finds it difficult to get up in the morning. He has admitted that before the assault he used to feel anxious occasionally, but he has stated that he now feels anxious every single day. As a result of the assault he has lost friends, and he feels he cannot trust anyone who is still in contact with the respondent. Mr Majok feels he cannot relax because he no longer feels safe. He still thinks about the assault and suffers from flashbacks during the day and nightmares at night. He is only able to sleep up to 4 hours at night. He feels angry sometimes, sad half of the time and he feels low most of the time. He is worried he will never feel like himself again and does not think he will ever feel safe or happy again.
60 Mr Majok has confirmed in his affidavit what is recorded in the medical notes, that he no longer drinks alcohol and he does not take drugs.
61 The difficulties which his treating doctors and Dr Ng have had in obtaining a proper history from Mr Majok is, in my view, explained by what else he has deposed to in his affidavit. He finds it difficult to talk about what happened or how he feels to his friends, doctors and lawyers. He does not know how to deal with what happened to him.
62 He has also a provided an explanation in his affidavit as to why he had been non-compliant with his medication. After the assault, the acquaintance he was renting a room from at the time was angry because the respondent was sent to prison. Mr Majok was asked to move out of the house. Since then he has not had any stable accommodation and has been homeless for long periods. At the hearing of the appeal he was still awaiting the allocation of a home from Homeswest. He has deposed that he needs to lay down after taking his medication and that has been difficult while he has been homeless.
Assessment of general damages (non-pecuniary loss)
63 Having regard to the matters I have set out when discussing both the physical and mental injuries of Mr Majok, in my view the assessor's award of compensation for his injuries, namely $22,000, is inadequate for a number of reasons.
64 First, Mr Majok was badly injured as a result of the assault on him, with significant burns. He was hospitalised for 11 days, including two days in ICU, underwent surgery and subsequently had to undergo treatment as an outpatient of the RPH Burns Clinic for some three months. Mr Majok would have suffered significant pain from the assault and the consequent treatment for his burns, as evidenced by the pain levels recorded in the RPH inpatient notes and medication records, and the RPH Burns Clinic outpatient records.
65 Secondly, he has suffered significant and permanent scarring, in particular to his left forearm, his left hand and the right side of his chest. While some of the scarring (particularly those areas which cannot readily be seen, such as his chest) might be disregarded by some people, there is no doubt that the scarring worries Mr Majok and it is a constant reminder to him of a significantly painful and traumatic incident. I am satisfied that the scarring has had an adverse impact on Mr Majok's enjoyment of life.
66 The pain and suffering and residual scarring alone are enough for me to conclude that the award of damages of $22,000 is inadequate.
67 There is, of course, a third reason why the award is inadequate and should be increased. I am satisfied that Mr Majok has suffered and still suffers from mental and nervous shock within the meaning of the Act, namely PTSD, depression and anxiety and somatic delusions, as a result of the offence and the injuries he received. I have no doubt that the assault on Mr Majok and the burns he suffered during the offence would have been a very traumatic experience. The pain he suffered during treatment and rehabilitation must have been reminders to him of the offence. Mr Majok's residual scarring is also, as I have found, a constant reminder to him of the offence.
68 When Mr Majok has been compliant with treatment and taken his medication, his symptoms have improved. The report from Dr Cheng also indicated improvement even when Dr Cheng was unsure about how compliant Mr Majok had been with his medication. Even after taking into account that Mr Majok has not consistently complied with treatment, I am satisfied that the effect of the offence on Mr Majok's mental state has been significant and ongoing. Based on the reports of both Dr Kanunga and Dr Cheng, this will continue into the foreseeable future, with further room for improvement if Mr Majok is compliant with his medication.
69 It is probable that Mr Majok had suffered trauma before coming to Australia, and he had suffered from depression and psychosis before this assault. However, based on Dr Ng's second report, and my own review of the other medical evidence, given the nature of the timing of Mr Majok's reported symptoms, I am satisfied that the offence is the primary causal factor for his diagnosed PTSD or depression and anxiety, and the somatic delusions from which he has suffered since the date of the offence. In other words, the offence has directly caused or materially contributed to his symptoms.
70 To the extent that there are other causes of Mr Majok's symptoms, arising from his childhood and other assaults before the one the subject of this offence, I consider this is a situation where, whether pursuant to common law principles or s 41 of the Act, it would not be just to refuse or reduce an award of compensation. This is because the offence has either caused previously asymptomatic pre-existing medical conditions to become symptomatic, or aggravated the symptoms Mr Majok suffered from his pre-existing conditions: McDavitt [53]; Zadeh [2015] WADC 136 [35] (Sleight CJDC); JY [2013] WADC 187 [13].
71 Accordingly, there should be an increase of the award to Mr Majok to reflect both his physical injuries, including the significant scarring, and the PTSD, depression and anxiety and somatic delusions he has suffered as a consequence of the commission of the offence by the respondent.
72 In assessing Mr Majok's compensation I have considered whether I should make a deduction for his non-compliance with treatment. This was a matter raised in the written submissions filed by the amicus curiae. If it is shown that an applicant for criminal injuries compensation unreasonably failed to undergo medical treatment, compensation should be assessed on the basis of the applicant's current medical condition, discounted (either pursuant to common law principles or s 41 of the Act) by the chance it would have improved by medical treatment: Re Bianchi [2012] WADC 147 [31] and [32].
73 As Mr Majok has explained why he has not always taken his medication, I am not satisfied that Mr Majok's failure to do so is unreasonable or that I should make a specific deduction for this. His failure to take his medication will be taken into account in my assessment generally, having regard to the matters I have discussed in [68] above.
74 Applying ordinary tortious principles, my assessment of the appropriate award of damages for Mr Majok's pain and suffering and 'nervous shock' is $60,000.
Loss of earning capacity
75 The next issue I must determine is whether Mr Majok is entitled to compensation for loss of earnings and any loss of earning capacity.
76 Mr Majok has limited education. He arrived in Australia when he was 17 years old. His education here was confined to English language studies and he has no other qualification. His last employment was as a manual labourer on a farm, which he left because of the travel and because he wanted to work closer to home. He was vague in his evidence about exactly when he had left the farm and how long he had been unemployed, stating only that he had not worked since 2012. In his affidavit filed in this appeal, Mr Majok states he has been unemployed since the offence and is currently receiving Centrelink.
77 Mr Majok had previously earned as much as $686 net per week in his work at the farm (annexure A to Mr Majok's affidavit). While he was not a permanent employee, that gives an indication of his earning capacity. I have also taken into account the minimum net average weekly wage at the relevant times of the offence and subsequently, as provided to me by Mr Majok's solicitors, with my leave, after the appeal hearing. As at the year ending 30 June 2012 the net weekly wage (based on a 38 hour week) was $647.56, and by the year ending 30 June 2016 it had increased to $713.75 net per work.
78 Even though Mr Majok was not employed at the time of the offence, he should nevertheless be compensated for his loss of earning capacity which has clearly been impaired by the injuries he suffered as a consequence of the offence.
79 The physical injuries alone, in particular those to his left hand, would have prevented him working for a time and thereby cause him to suffer a loss of income. The medical evidence from Dr Kanunga in his report of 16 October 2014 was Mr Majok's work capacity 'should be good without any disability'. However, as at 12 May 2015 Dr Cheng in his report expressed the opinion that Mr Majok was currently unable to work due to his pain and depressive symptoms. I am satisfied that Mr Majok's mental health has affected his ability to work.
80 Mr Majok's situation is complicated by a number of factors. One complication is the fact that he has been homeless, and as a result has not always been compliant with his medication. There are also contingencies which need to be taken into account, including Mr Majok's work history, and the need to assess whether his pre-existing exposure to trauma and mental health issues might have prevented him from working in the future: JY [13](e). Finally, any social security (or Centrelink) payments received must be taken into account, and compensation should be awarded only for the difference between those payments and what Mr Majok might otherwise have earned if not for his injuries: Zadeh [62] - [63].
81 In the circumstances it is not possible to assess Mr Majok's loss precisely. I do not have any details of the Centrelink payments he has received and there are too many imponderables to permit a calculated assessment of his past or future loss. In criminal injuries compensation, the assessment of compensation for loss of earning capacity often cannot be proved by precise figures, and it is a matter of judgment. I am able to award damages on a global basis: A v D (489) and (495 - 496); MJN v MAJS [58].
82 For both past and future loss of earning capacity, allowing for the matters I have mentioned, I have arrived at a global figure of $50,000.
Past and future expenses
83 I allow all the report expenses claimed in the total sum of $2,530.
84 Dr Ng in his second report has stated that, if Mr Majok was co-operative with psychotherapy, he would benefit from at least 16 sessions of individual psychotherapy. If the psychotherapy was provided by a consultant psychiatrist, each session would cost approximately $355.
85 Dr Ng noted, however, that whether Mr Majok is amenable to attending psychotherapy is an issue of contention. Mr Majok himself has stated in his affidavit in this appeal that he finds it difficult to talk about what happened or how he feels to doctors.
86 I can make an allowance for future psychotherapy as set out in Dr Ng's report, but only if the expenses are 'likely to be reasonably incurred' as required by s 6(2)(b) of the Act. While medical reports may recommend treatment and there is often no doubt that the treatment is warranted and necessary, this does not always mean that the applicant for criminal injuries compensation is likely to pursue or incur costs for such treatment: Re PK (by her next friend the Public Trustee) [2014] WADC 139 [65].
87 In light of the evidence on this appeal, in particular Mr Majok's evidence in his affidavit about how he is reluctant to talk about his experiences with doctors, I have concluded that the expenses for future treatment claimed by Mr Majok are not likely to be reasonably incurred because he is unlikely to engage in psychotherapy.
Conclusionand award
88 My assessment of Mr Majok's award of compensation is a total of $112,530, made up of general damages (non-pecuniary loss) of $60,000, past and future loss of earning capacity of $50,000 and medical report fees of $2,530.
89 I will allow the appeal, set aside the award made by the assessor and award $75,000 in compliance with s 31(1) of the Act.
90 I will hear from the parties as to the orders I should make, which should take into account the report fees.
0
11
1