Mangisi v Boehm

[2021] WADC 76

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   MANGISI -v- BOEHM [2021] WADC 76

CORAM:   STAUDE DCJ

HEARD:   26 JULY 2021

DELIVERED          :   6 AUGUST 2021

FILE NO/S:   APP 68 of 2020

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

BETWEEN:   SIONE MANGISI

Appellant

AND

JACOB BOEHM

Respondent

ON APPEAL FROM:

Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Coram:   R CAPARARO

File Number            :   CRC 61 OF 2020

Catchwords:

Criminal injuries compensation - De novo assessment of compensation award - Assault occasioning bodily harm - Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal allowed.
Compensation awarded.

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	No appearance
Amicus Curiae	:	Mr C D Tan appeared on behalf of the Chief Executive Officer of the Attorney General

Solicitors:

Appellant	:	Not applicable
Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor's Office

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

August v Lynch [2019] WADC 78

Bothma v Hildebrand [2019] WADC 92

Guy v Hampson [2019] WADC 19

Nurovic v Nurovic [2019] WADC 28

Re Collard [2018] WADC 1

Sweetman v Lilley [2021] WADC 74

Underwood v Underwood [2018] WADC 13

Woodward v Davies [2021] WADC 73

STAUDE DCJ:

Introduction

1. On 26 January 2019 the respondent was the victim of an assault occasioning bodily harm.  The appellant admitted the offence and was convicted on 20 June 2019.  On 9 September 2020 the respondent was awarded $28,164 for injury and loss pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA) (the Act). The award was made up of $25,000 for non‑pecuniary loss, $888 for expert reports, $2,198.30 for treatment expenses and $77.70 for travelling expenses. No reasons for decision were given.

2. The appellant was notified of the decision by letter from the assessor dated 9 September 2020.  The notice of appeal was lodged on 8 October 2020, some eight days after the expiration of the 21 day appeal period.  The appellant seeks an order for extension of time.  In his affidavit sworn 8 October 2020 the appellant stated:

   As I needed to seek legal advice and due to Covid, appointments were limited to phone and was not able to get legal aid until 6/10/2020.

3. The relevant considerations are the length of and reasons for the delay, the prospects of the appellant succeeding and the extent of any prejudice of the respondent.

4. The appellant lodged his appeal in person and is self‑represented.  The delay is only eight days.  I accept for present purposes that the appellant did have difficulty obtaining timely legal advice.  The respondent has been served with the appeal (service certificate dated 16 April 2021) and has therefore been put on notice of the appeal and the application for extension of time.  There is no evidence of any prejudice to the respondent.  The application for an extension of time will turn on the merits of the appeal.

5. The assessor's letter indicated that the State had a right to recover all or part of the amount awarded from the appellant.  In a letter to the court dated 21 January 2021 the appellant expressed concern that the award was excessive and that he was not able to afford to pay the award if the State sought to recover it from him.  Again, during the hearing of the appeal the appellant said he could not afford to pay the award.  I explained that the appeal was not concerned with his ability to reimburse the compensation awarded to the respondent and that it would proceed as a fresh hearing of the application for compensation as provided by s 55.

6. The appellant does not have to demonstrate error.  The court on an appeal is required to independently review the evidence and information before the assessor without regard to the decision appealed from: Guy v Hampson [2019] WADC 19, [14], Sweetman v Lilley [2021] WADC 74, [9].

Evidence and information

1. Section 56(1) provides:

   On an appeal under section 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information.

2. The evidence and information before the assessor is contained in the matter book that I have read.

3. In his police statement dated 26 January 2019 the respondent stated that he arrived at the Niche Bar in Leederville at about 11.30 pm on Friday, 25 January 2019 with four male friends.  They had previously been together at a soccer club where they watched a game.  The respondent said that he had consumed about 10 standard drinks (beer and gin and tonic).  At the Niche Bar he consumed about four gin and tonic drinks.  He rated his intoxication level at 6 out of 10.

4. At about 1.00 am that night the respondent and one of his friends left the bar in order to meet with his girlfriend.  He left through the front entrance.  He had taken a few steps when he looked up and saw a person punch him in the face.  He remembered falling back.  He then remembered waking up and seeing his friend trying to help him.  He was conveyed by ambulance to Sir Charles Gairdner Hospital.  He had suffered:

   A swollen lip, grazes to the left elbow, a large gash to the back of my head and a chipped front tooth.

5. He also said that he had a swollen and sore nose and a bad headache.  He said he had never met or spoken to the person who assaulted him.  The assault was unprovoked.  There was no evidence before the assessor that suggested any behaviour, condition, attitude or disposition of the respondent that contributed to his injuries for the purposes of s 41 of the Act.

6. In his victim impact statement dated 21 February 2019 the respondent described the effects of the assault as follows:

   Physical damages:

   As a result of the incident I sustained the following injuries:

   -A chipped tooth for which I have received dental treatment to repair.

   -External cuts and significant swelling to my lips and surrounding areas which took five days to heal and subside.  I was unable to eat solid food until the swelling had subsided.

   -Internal cuts in my mouth which took seven days to heal.  I was unable to brush my teeth until the internal cuts had healed.

   -Significant swelling of the nose, which took five days to subside.

   -A graze to my elbows which has not yet fully healed and has left noticeable scars.

   -A laceration to the back of my head where it hit the cement which took 10 days to heal.

   - In addition to the above I experienced headaches, nausea, dizziness and fatigue for several weeks following the accident and continued to experience these symptoms intermittently.

   Mental damages

   As a result of the incident I have experienced the following:

   -Severe fear and anxiety in my everyday life.  I have [found] myself afraid of things that I would not have previously considered frightening.  This has forced me to change certain aspects of my daily routine.

   -I have broken down in tears before going to work as the thought of being in an environment other than my home was too confronting.

   -I have developed an enormous loss of confidence in myself and the lack of trust in strangers.  As a result I have not been able to catch the bus to work as being in that environment brings on the fear that something beyond my control may happen to me.  I have not been able to go back to the gym.  A place which used to be a source of peace has now become another hostile environment which holds no interest to me.

   -I regularly find myself unable to sleep at night, as I question my self-worth and am left alone with my thoughts.  When I close my eyes to try to go to sleep I experience flashbacks to the moment just before I was assaulted.  I wake up constantly throughout the night in a panic and extremely unsettled.

   -I struggle to be alone with my thoughts and often seek mindless tasks to keep myself occupied.  Any time I have a moment to myself I find myself thinking about the incident and reliving the horror of what happened.  I often have anxiety attacks because of these thoughts.

   -I find that I have developed a fear for which I cannot directly control and environments where large and loud crowds are present.

   -To try and cope with these issues I have begun seeing a psychologist as I am worried that the fears that I have developed as a result of this incident will remain in my life forever.

   Impact on career

   The incident had the following effect on my work:

   -One week off work directly after the incident.

   -Multiple hours off work across subsequent weeks to attend medical appointments.  Due to the nature of my job, I was under increased pressure to meet client deadlines due to a shortened timeframe caused by my time off work.

   -I am currently completing post graduate study working towards my certificate of chartered accounting.  I am due to sit an exam on 25 February.  I have had to prepare for this exam whilst dealing with those physical and mental damages detailed above.

7. The statement can be seen to have been made within four weeks of the date of the assault.  There is an addendum which reads:

   Updates since verdict:

   I encountered additional stress resulting from multiple court appearances as the case was adjourned two times.  I saw Sione in person on all occasions, adding to the stress of the overall process.  I continued to see my psychologist during this time.

8. The police took multiple photographs of the respondent in hospital that show a very swollen upper lip, a laceration inside the upper lip and a chipped right incisor.  There is also a photograph of a laceration to the respondent's scalp under the hairline.

9. The Sir Charles Gairdner Hospital emergency medicine summary states that the respondent presented to the Emergency Department on 26 January 2019 at 1.51 am.  The history was recorded as follows:

   Injury - ? Assault punched to face while intoxicated with alcohol - hit occipital region on concrete - loc 1 minute.  Full recall of events.  No seizure activity reported.  Sustained laceration to head, swollen top lip and graze to left arm. GCS 15 regular pulse BAL 0.144 C spine precautions. Nil complaints of neck pain.

10. The examination findings are as follows:

    Nil confusion. PEARL.  No clinical signs of skull #1cm lac scalp, no active bleeding.  Swollen L upper lip, abrasion.  Abrasion L elbow.  C spine cleared - no midline tenderness, able to rotate bi lat 45 deg.

11. The respondent's wounds were cleaned and his head laceration was glued.  He was discharged at 5.47 am the same day.

12. A report from Dr Judy Westerhout, dentist, dated 7 February 2019 states that the respondent presented that day complaining of sensitivity from a chipped tooth 11.  Examination showed a disto‑incisal coronal fracture with no evidence of pulp exposure or mobility.  An x‑ray showed no periapical pathology or fracture.  There was no swelling on the labial or palatal aspect.  The report was accompanied by an x‑ray and oral photos.  Dr Westerhout went on to state:

    We were able to restore 11 today and I have advised Jacob that 11 will need to be monitored.  Whilst the tooth is vital presently, there is always the possibility of pulpal degeneration and the need for root canal treatment and crown in the future or its replacement with an implant.

13. There is also a report by Mr Paul Beros, clinical psychologist, dated 24 October 2019.  The respondent was referred to him by his general practitioner under a mental health care plan on 12 February 2019.  He presented initially on 20 February 2019.  He was assessed that day and subsequently attended on a further eight occasions with a further appointment scheduled for 8 November 2019.  Mr Beros expressed his findings as follows:

    Mr Boehm presented describing a range of psychological symptoms secondary to the aforementioned attack.  These included:

    Panic attacks, generalised anxiety (i.e. feeling tense, worried and anxious in a variety of settings), sleep disturbance, re‑experiencing phenomenon (i.e. including dreams related to the attack, imagery related to the attack), irritability, a sense of worthlessness, a sense of vulnerability, reduced libido, low mood, tearfulness, avoidance behaviour (i.e. avoiding crowded public areas, avoiding public transport, social events, work situations).

    The above described symptoms are consistent with an acute stress reaction with anxiety and low mood.  He also experiences panic attacks.

    These psychological conditions resulted in significant psychological distress, a reduction in his self-esteem and confidence and a reduction in his social performance and quality of life.

    The duration of Mr Boehm experiencing these symptoms to a level of clinical significance included the period from the incident (25/01/ 2019) until approximately 27/09/2019.  From this point on Mr Boehm's symptoms of anxiety were well managed, his mood and confidence were much improved (ie euthymic) and his behavioural repertoire had resumed to its typical breadth.

14. Mr Beros' therapy included insight - directed therapy, cognitive behavioural therapy and mindfulness-based interventions.  He did not expect that any further treatment would be required, but said that should the respondent experience a relapse he would encourage him to engage with psychological treatment.  He stated:

    Individuals who have experienced panic attacks have an increased risk of further panic attacks in the future as compared to individuals who have never experiences acute anxiety.  In addition, should Mr Boehm be exposed to future violent situations, there is a greater chance of relapse.  I would predict that he will make a full recovery though.

15. The respondent's application for compensation was lodged under cover of a letter dated 10 January 2020.  Further documentation in the form of Medicare and private health insurance statements and invoices for dental treatments were lodged by email on 28 April 2020.  As stated above the award was made on 9 September 2020.  It is apparent from the matter book that no further evidence or information was put before the assessor other than the police investigation file.  As I have noted, the respondent did not file a form 8 indicating an intention to be heard.  No further evidence or information has been put before the court.

Findings

1. In the material before the assessor, I find that the respondent suffered an unprovoked assault that consisted of a single punch to his face in the area of his mouth and caused the injuries described in the Sir Charles Gairdner Hospital report, as well as a chipped tooth.  The only treatment required for the non‑dental injuries was gluing of the scalp laceration.  The dental injury was repaired.  There is no evidence of any risk of other tooth damage having eventuated.  The photos show the dental injury to be in the form of a small lateral chip of the upper right incisor.  That has been depicted in photographs and an x‑ray image.  There is no image on file of the restored tooth.

2. The respondent also suffered as a consequence of the assault the psychological effects described in his victim impact statement and by Mr Beros. These were acute in the first few weeks after the incident but largely resolved over a period of eight months.  The symptoms had substantially abated at the time of Mr Beros' report and a full recovery was expected.

3. It would appear from the respondent's statements that he had some time off work directly after the incident and lost time from work attending medical appointments that put him under pressure in terms of meeting clients.  At the date of his initial victim impact statement he was about to sit an exam.  His updated statement does not indicate any further difficulties apart from experiencing stress when he attended at court, the case being adjourned twice.  He did not describe any other ongoing psychological disturbance.

4. In terms of the respondent's employment, a letter from his employer dated 23 September 2019 states that he was employed as a senior associate in an accounting firm.  He took 52.5 hours of personal leave from 29 January 2019 to 1 February 2019, 26 February 2019, 20 June 2019 and 21 June 2019.  There is no evidence that the respondent lost any income as a result of taking this leave.

Assessment

1. The respondent's medical, dental and psychological treatment costs are proved by the documents before the assessor.  Over and above Medicare and HBF benefits his treatment costs came to $2,198.30.  The respondent also incurred report fees of $888 and travel expenses of $77.70. The proof of these expenses has not been questioned.  They should be allowed.

2. The respondent also claimed for the costs of repairs to a Breitling wristwatch.  This is not a claimable item.  It does not fit within the definition of 'personal item' provided by s 6(1) of the Act.

3. Compensation is payable for the injuries suffered in consequence of the assault.  Bodily harm and mental and nervous shock are included in the statutory definition of injury.  Severe emotional reaction is not compensable.  The report of Mr Beros discloses more than a mere emotional reaction.  I am satisfied that the symptoms which the respondent was referred to Mr Beros under a mental health care plan amounted to an acute stress reaction with anxiety, low mood and panic attacks.  I am also satisfied that this condition resolved over a period of eight months also with psychological therapy.

4. The physical injuries (non‑dental) resolved with minimal treatment and there is no evidence of any residual scarring.

5. The dental injury amounted to a small chip to a prominent tooth.  That has been appropriately treated.  There is no evidence of any significant cosmetic defect.  It is reasonable however to find that the restoration, if not now then at some future time, will detract somewhat from the respondent's appearance.  There is unlikely to be any other sequela of that injury.

6. There was no substantial interruption of the respondent's work as an accountant and there is no evidence of any loss of enjoyment of life other than to the extent occasioned by the psychological reaction and the need to attend for dental and psychological treatment.  I accept that the respondent has lost some enjoyment of the leave he took due to his injuries.

7. The assessment of damages for non‑pecuniary loss is a discretionary exercise but it does not occur in a vacuum.  I have reviewed a range of decisions of this court dealing with injuries of the same general category as those of the respondent.  Each case is different.  Other decisions provide limited guidance, but serve to inform the court's assessment.  For example in Woodward v Davies [2021] WADC 73 the court awarded $18,000 for non‑pecuniary loss in a case where the respondent's tooth 11 was fractured in an assault, became infected and had to be extracted. As well, the respondent had ongoing residual symptoms of post‑traumatic stress disorder three years after the incident. Counsel appearing for the amicus curiae referred the court to Underwood v Underwood [2018] WADC 13, Nurovic v Nurovic [2019] WADC 28, August v Lynch [2019] WADC 78, Bothma v Hildebrand [2019] WADC 92 and Re Collard [2018] WADC 1.

8. The court is also informed by its general experience of other cases involving the assessment of damages for injuries of different kinds.  These enable the court to place the respondent's injuries and associated loss within a range relative to those of others.

9. On the evidence, and taking all of these matters into account, I would assess the respondent's non‑pecuniary loss in the sum of $10,000.

10. To this amount I would add the amounts for financial loss being medical and dental expenses, travelling expenses and report fees, totalling $3,164.

Conclusion

1. Accordingly, I award the respondent $13,164.  The orders will be:

   1.The appeal be allowed.

   2.The award made by the Assessor of Criminal Injuries Compensation on 9 September 2020 be set aside.

   3.The respondent be awarded compensation in the sum of $13,164.

   4.There be no order as to costs.

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

RR

Associate to Judge Staude

4 AUGUST 2021