MBP v LKP
[2018] WADC 65
•25 MAY 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MBP -v- LKP [2018] WADC 65
CORAM: DAVIS DCJ
HEARD: 9 APRIL 2018
DELIVERED : 25 MAY 2018
FILE NO/S: APP 84 of 2017
MATTER: IN THE MATTER of Part VII of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: MBP
Appellant
AND
LKP
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: H L PORTER
File Number : CI 000152 of 2016
Catchwords:
Criminal injuries compensation appeal - Adequacy of award - Loss of earnings and earning capacity - Extension of time to bring compensation application appeal - Extension of time to bring appeal - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2013
Result:
Extension of time to appeal granted
Appeal allowed
Compensation award increased
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
| Amicus Curiae | : | Ms R K Davey appeared on behalf of the Chief Executive Officer of the Department of the Attorney General |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
A v D (1994) 11 WAR 481
ATS v WLS [2005] WADC 223
B v W (1989) 6 SR (WA) 79
Bedetti v Chief Executive Officer [2003] WADC 37
DNA v Britten (1995) 14 SR (WA) 325
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Gleeson v Lee (1996) 18 SR (WA) 353
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hutchings v Lachlan [2012] WADC 89
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
LRE v AFK [2005] WADC 162
M v J (Unreported, WASC, Library No 920598, 19 November 1992)
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
McNeil v Burton [2015] WADC 90
Medlin v State Government Insurance Commission (1995) 182 CLR 1
MJN v MAJS (2003) 35 SR (WA) 219
MW v CW [2001] WADC 234
RBF v OSD-S (2004) 36 SR (WA) 61
Re Bianchi [2012] WADC 147
Re Dunne [2014] WADC 131
Re JY [2013] WADC 187
Re McHenry [2014] WADC 92
S v Neumann (1995) 14 WAR 452
Simonsen v Legge [2010] WASCA 238
SW v BB [2010] WADC 86
Underwood v Underwood [2018] WADC 13
Zadeh [2015] WADC 136
JUDGE DAVIS:
The appellant has appealed an award of criminal injuries compensation under the Criminal Injuries Compensation Act 2003 (WA) (the Act) made by the Chief Assessor (the assessor) on 8 February 2017. The award was made in respect of injuries and loss the appellant suffered as a result of an aggravated robbery committed against her by the respondent on 25 August 2006. The respondent was convicted and sentenced on 12 January 2007.
The appellant made no claim for criminal injuries compensation until 2015. On 8 February 2017 the assessor awarded the appellant compensation in the sum of $19,500.
On 12 September 2017 the appellant filed a Notice of Appeal against the decision of the assessor and sought an increase in the award of compensation on the ground that the assessor had failed to take into account her financial loss.
The appellant was required by s 55 of the Act to file her appeal within 21 days of the assessor's decision. Because of the delay in filing her appeal, she has also applied for an extension of time within which to appeal.
For the following reasons I allow the application for the extension of time to appeal, allow the appeal and increase the award of compensation to the appellant.
The nature of this appeal
This appeal is a hearing de novo. I may confirm, vary or reverse the assessor's decision either in whole or in part: s 56 of the Act.
I am not bound by rules or practice as to evidence or procedure by may inform myself in any manner I think fit: s 18(2) of the Act. I can determine the claim solely on the evidence and information that was in the possession of the assessor or I may receive further evidence and information: s 56(1) of the Act. It is now well-established that the discretion to admit further evidence on an appeal under the Act ought to be exercised without undue restriction, and further evidence should be admitted unless there is some reason why it would be unjust to do so.
The appellant filed an affidavit on 12 September 2017 in support of her application for an extension of time within which to appeal. At the hearing of this appeal, at the suggestion of counsel for the amicus curiae, the appellant also gave oral evidence in relation to her claim for financial loss to clarify certain aspects of it. I have proceeded on the basis of the evidence I heard from the appellant, together with all the documents which were before the assessor. I have also reviewed the statement of material facts for the offence.
The facts of the offence and the appellant's application
Before considering both the application for an extension of time within which to appeal and the appeal, it is important that I set out the details of the offence and what was claimed by the appellant in her original application for compensation.
The following is a reproduction of the statement of material facts (with some identifying details omitted). The appellant is described as the complainant. The respondent was the female and is described as the offender.
At about 11:30 pm on Friday, 25 August 2006 the complainant drove her vehicle into Northbridge … and parked on [the street] approximately 100 m east of [a nightclub]. The complainant was intending to go to the nightclub …
When the complainant parked her vehicle she noticed a male and female couple standing on the footpath. The female gestured towards the complainant with her fingers as if she wanted a cigarette. The female and male walked over to the driver's side window and the complainant gave them a cigarette each and they walked away.
As the complainant was about to get out of her car the offender walked up to the car and punched the complainant in the face through the open window. The complainant went to give the offender her cigarettes and the offender punched her to the face several more times and said 'give me your money you fucking white bitch'.
The offender opened the driver's door, punched the complainant in the head and reached across and grabbed at the complainant's purse out of her handbag. The offender tried to push the complainant into the front passenger seat, but the complainant struggled against her and both the offender and complainant fell to the ground in the middle of [the street]. The complainant tried to get up to get away, however the offender grabbed her by the hair and punched her for five times to the face. The complainant managed to get free and ran towards [the nightclub]. The offender chased the complainant but persons outside [the nightclub] stopped the offender from getting to the complainant. The offender left the area when people outside the nightclub gave assistance to the complainant.
Police patrolling the area located the offender a short time later at a service station … She was conveyed to the Perth City Detectives office where she refused to participate in the video record of interview and the present charge was preferred.
Explanation: Nil offered.
As a result of the incident the complainant received a cut lip, a bump and bruising to her forehead, bruising to her chin and right cheek, soreness to her jaw and some of her hair was pulled out.
When the appellant came to make her application for criminal injuries compensation, she claimed mental and nervous shock from the offence, including pain and suffering, loss of enjoyment of life and loss of income. She stated, in a document entitled 'Q.28 Impact of injury' that the trauma of the incident has had severe long-term and hidden effects upon her life. Her ability to work and earn income had been affected. Once a confident and happy person, she had suffered mental anxiety and depression since the time of the incident. She had been unable to secure full-time employment for some years due to lack of confidence and the loss of the positive outlook she had before the incident. She also described how fear of being threatened had been a problem and affected her socially, and she had withdrawn from social situations.
The appellant claimed, both before the assessor and in this appeal, that had she not been the victim of such a traumatic experience, she would have been employed as a receptionist and graduated as a student of a Bachelor of Laws, she having enrolled and then withdrawn from a university course for that degree.
In support of the application for compensation the appellant provided copies of medical records from her general practitioner (GP). These recorded that the appellant attended her GP on 23 November 2006 suffering from panic attacks, chest palpitations, and sweatiness, poor sleep ('intermittent – wakes afraid needs light on - uses relaxation tapes to fall asleep') with occasional nightmares. It was noted she was also socially withdrawn and although she was driving, she would not go out at night. In terms of her employment the notes recorded that she had been working part-time as a receptionist at a health club but had to stop because she was a bit 'edgy' and found it hard to go there. The notes also recorded that she is now registered for Centrelink and had been seeing a psychologist at Centrelink. She had no past history of panic anxiety or depression. She was commenced on medication (Luvox). There is also a note of 'Document Sent', being a Centrelink Sick Certificate.
The appellant was seen again by her GP on 21 December 2006 for follow-up. The entry on the GP records include that with Luvox the appellant 'felt normal relaxed in mind able to cope less anxious' and that her nightmares were less frequent, she was less teary and had no panic attacks. She was given a Centrelink form for three months and a further prescription for Luvox.
There is a record of the appellant being seen by her GP on 9 March 2007. Although the primary reason for attending was not related to the offence, there is a note as follows:
2.Luvox – too tired
off food, sleeps at 0430 wakes up at 1000 – mind active/anxious
some panic attacks
lacking motivation
feels fragile/sensitive
feels take things personally when doesn't need to
did have a job offer but afraid
driving but not at night
not going out much
didn't go to centre care
feels worse off Luvox but too sleepy
planned switch to Zoloft
Script Written – Zoloft …
There are records from the GP of the appellant seeking medical treatment for ailments unrelated to the offending on 7 and 20 December 2017.
The appellant's next appointment was on 11 January 2008 where she reported symptoms of difficulty concentrating and completing tasks, being impulsive and hyperactive, and 'was wondering about ADHD' (attention deficit hyperactivity disorder).
Finally there is a record of a consultation eight years later, on 22 January 2016. It is best to set out in full what is recorded in the GP's notes:
History
former patient [place specified]
records transfer
former receptionist, not working at present
enrolled for Uni a few times then withdrew
needs documentation to substantiate a compensation claim
August 25 2006
I have a copy of consult notes 23/11 detailing initial consult and also follow up consult
further events 2008 not assault related – flare of sx, declined further counselling
never saw psychiatrist about ADHD
says events of 2006 still haunt her
occ nightmares, still sleeps with light on, still doesn't go out at night, not driving due to low income not due to incident, probably still wouldn't drive at night even if did have a car
panic attacks occasionally – eg recent episode aboriginal person cornered her and asked her for money – very shaken/flashbacks
no medication at present
did see counsellors
The appellant also produced a report from a job network provider, dated 22 January 2015 (the JSCI Report), which listed the appellant's medical conditions as anxiety and depression, and a number of factors which might affect her ability to work. These factors were listed as domestic violence, family grief/trauma, relationship breakdown, risk of homelessness, self-esteem/motivation/presentation issues, severe stress, sleep problems/insomnia. Other listed factors were that the appellant had been involved in the aggravated robbery, had also been in domestic violence and her living conditions were highly stressful as well.
On 7 September 2016 the assessor wrote to the appellant referring to the fact that many years had elapsed since the date of the incident and the interview with the job network provider in January 2015. The information submitted from the appellant's GP indicated symptoms reported between the date of the incident and 2008, although the notes of the last consultation on 11 January 2008 indicated the possibility of a diagnosis of ADHD and made no reference to the incident. The assessor also noted it appeared other issues may be contributing to the appellant's condition and preventing her from going to work. The assessor wrote:
I am not satisfied on the basis of the information presently available of any ongoing injury suffered by you as a consequence of the incident. It would be of assistance to have details of any medical, psychological, or other counselling or treatment you have had between January 2008 and January 2015 relating to the impact of the incident on 25 August 2006.
With respect your claim for loss of earning, kindly supply copies of your tax returns and assessments for the years 2003 to 2006, to assist me to determine your pre-incident average net earning capacity.
The assessor sent a further letter to the appellant dated 12 December 2016 following up the further information. In response the appellant sent a letter dated 4 January 2017, updated in an email of 6 January 2017. In this correspondence the appellant provided no further medical reports, or tax returns. The appellant explained that she had never received a proper diagnosis and treatment for what happened to her that night, however, submitted that this did not mean that the impact had not been severe. She explained she still slept with the light on, was overly cautious at times when others would have no fear and sometimes had terrible nightmares of being pursued and killed. She was now mentally stronger and had recently returned to full-time university studies and successfully completed units in Semester 2, 2016.
Subsequently on 7 February 2017 the assessor made her award and notified the appellant of that award. No written reasons for making the award were given, nor were they sought.
The application for leave to appeal (extension of time)
Not only did the appellant bring her appeal from the assessor's decision out of time, but her original criminal injuries compensation application was also brought out of time. The last date for filing an application for criminal injuries compensation was 25 August 2009, but the appellant did not apply for compensation until 27 March 2015, nearly 5 1/2 years out of time and nearly 8 1/2 years after the offence.
As this is a hearing de novo, any appeal from a decision relating to an application which has been brought out of time necessarily requires the court on appeal to consider again whether the out of time application should be permitted: Re McHenry [2014] WADC 92 [12]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [24].
In considering whether to grant an extension of time in which to make a criminal injuries compensation application, the overriding consideration pursuant to s 9(2) of the Act is whether it is just to do so: Re McHenry [27].
Other relevant factors, as applied in Re McHenry, are:
(a)The history of and background to the proposed application/length of the delay.
(b)The reasons for the delay. A delay in bringing an application may be explained by the nature of the injury suffered by the applicant, particularly where the injury is one of mental and nervous shock: Re McHenry [35] ‑ [39].
(c)The nature of the proposed application. Here it is relevant that the purpose of the Act is 'to provide for the payment to victims of offences in some circumstances, and for related matters'. The fact that the Act is remedial in character and should be construed beneficially is a factor which supports a conclusion that in order to do what is just, the discretion to grant an extension of time should be exercised in favour of an applicant: Re McHenry [41] ‑ [42];
(d)The prospects of the compensation application succeeding.
As to the length of the delay and the reasons for the delay, the onus is on the applicant to explain the reasons for the delay in making an application within three years after the commission of the offence. The burden on the applicant is no triviality and she must make a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time: Re McHenry [15] ‑ [17].
In her application the appellant prepared a document entitled 'Request for an Extension of Time (Reasons for Delay)' in which explained the reasons for the delay in bringing her application for compensation.
One of the reasons given was that she was unaware that she could claim compensation from being a victim of crime until she discovered a website and admitted she was indeed a victim of crime and perhaps she was entitled to compensation. The fact that an applicant for compensation is unaware of his or her right to make a claim for compensation is not, by itself, a sufficient basis upon which to grant an extension of time within which to apply: Re McHenry [39].
However, the appellant also explained that she had experienced long‑term unemployment, and had been asked questions by the job network provider about possible barriers or incidents that could be a cause of this. In the course of discussions with the job network provider, the appellant realised that the time of her last permanent employment had been just before the offence and that it was her mental symptoms, mainly panic attacks, severe anxiety and fear of threat, which had affected her ability to work in a full-time capacity or in permanent employment.
The appellant also explained that she was in fear of the respondent and was afraid that the respondent would somehow retaliate and harm her. As she stated in the 'Request for an Extension of Time (Reasons for Delay)' document, it was a terrifying incident in which the appellant was violently and repeatedly punched, kicked and dragged to the middle of the road. The appellant described how she had suppressed this 'terrible violent assault' for some years and had now realised it had prevented her from gaining full-time employment because of 'mental scars from the incident'.
The reasons for the delay are very much bound up with the appellant's claim for mental and nervous shock and consequent financial loss. If I am satisfied about the nature of the trauma and injury suffered by the appellant, for which she claims compensation, and the prospects of success of her application, these will be important factors in determining whether it is just to extend time for the making of the application. Accordingly the merits of this case will really be the determinative factor in deciding whether it is just to grant an extension of time to bring her application.
It is, however, a relevant factor that the assessor considered the appellant's claim to have sufficient merit to justify an award.
I turn now to the delay in bringing the appeal from the assessor's decision. The principles applicable to an application for an extension of time within which to bring an appeal under the Act are the same as those applicable generally to an application for an extension of time to appeal from any judgment: see Gleeson v Lee (1996) 18 SR (WA) 353, 354 ‑ 355; SW v BB [2010] WADC 86; Re Dunne [2014] WADC 131 [18]; Underwood v Underwood [2018] WADC 13 [28]. Those general principles are set out in Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459 and, more recently, Simonsen v Legge [2010] WASCA 238 [8].
The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. The discretion to extend time should be exercised in favour of an applicant if strict compliance with the time limit would not lead to any injustice, having regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties if the extension of time was granted or refused.
There are generally at least four major factors to be considered although they are not necessarily exhaustive in each case:
(a)the length of the delay;
(b)the reasons for the delay;
(c)the prospects of the applicant succeeding in the appeal; and
(d)the extent of any prejudice to the respondent.
As to the length of the delay, this appeal should have been filed by 1 March 2017. The appellant filed her appeal more than six months after that time.
As to the reasons for the delay, in her affidavit in support of her application for leave to appeal out of time filed 12 September 2017, the appellant stated her appeal was late as she had had time to reflect and 'acquire the courage to appeal', something she did not have at the time of receiving the decision. The appellant also explained that her reasons for bringing the appeal late are really the same as those she gave to the assessor for her late application for criminal injuries compensation, including her fear of the respondent.
On any application for an extension of time within which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. In my view, having regard to the nature and history of the proceedings, the delay in bringing the appeal, and the reasons given by the appellant for the delay, the merits of this case will really be the determinative factor in deciding whether an extension of time to appeal should be granted.
This is because, on the issue of prejudice, the respondent has been served and chose not to appear at the hearing of this appeal. There has been nothing filed, and there is nothing else on the information before me, to indicate that the respondent would suffer any prejudice if an extension of time were granted.
General principles relevant to the assessment of compensation
Before I address the merits of the appellant's claim, it is necessary to set out some of the general principles relevant to the assessment of compensation which I must apply in this case.
Compensation is payable for injury or loss in consequence of the commission of an offence. An assessor, and this court on appeal, must not make a compensation award unless satisfied that the claimed injury and any claimed loss has occurred and did so 'as a consequence of the commission of a proved offence': s 12(3). By s 3 of the Act, 'satisfied' means 'satisfied on the balance of probabilities'.
Section 3 of the Act defines 'injury' to include bodily harm and 'mental and nervous shock'. The phrase 'mental and nervous shock' includes 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: Hatfield v Under Secretaryfor Law (Unreported, WASC, Library No 4012, 15 December 1980) 5. Mental and nervous shock includes distress, horror, disgust and other similar adverse mental reactions but does not encompass mere fright, humiliation or anguish: M v J (Unreported, WASC, Library No 920598, 19 November 1992). 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 (1995) 14 WAR 452, 461; Re Dunne [25].
Loss is defined to include loss of earnings as a 'direct consequence' of the injury suffered by the victim: s 6(2)(c) of the Act. The Act speaks in terms of lost earnings as opposed to lost earning capacity, however loss of earnings does include loss of earning capacity, both past and future. Thus an injury that results in a loss of or a reduction in a person's ability to earn income will be compensable: A v D (1994) 11 WAR 481, 489.
The correct approach when fixing the appropriate amount of compensation for an applicant's injury and loss is to apply the ordinary tortious principles for assessment of damages, subject to the jurisdictional limit imposed by the Act. That limit is presently $75,000, but this is not reserved for the worst cases and does not create a scale: S v Neumann (462, 463).
The ordinary tortious principles include that a person who is injured is obliged to obtain reasonable medical treatment. An applicant for criminal injuries compensation is obliged to obtain reasonable medical treatment in respect of any injury caused by a proved offence. Where the applicant does not obtain reasonable medical treatment, or fails to take reasonable medical advice as to treatment, this can be taken into account when determining the award of compensation to be made: Bedetti v Chief Executive Officer [2003] WADC 37 [11]; RBF v OSD-S (2004) 36 SR (WA) 61 [59]; McNeil v Burton [2015] WADC 90 [124]; see also Re Bianchi [2012] WADC 147 [31] - [32], [36] - [37].
In order for an applicant to be entitled to compensation 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).
When assessing an applicant's past loss of earning capacity, any unemployment or Centrelink payments received must be taken into account, and compensation should be awarded only for the difference between those payments and what the applicant may otherwise have earned if not for his or her injuries: Zadeh [2015] WADC 136 [62] ‑ [63] (Sleight CJDC); Hutchings v Lachlan [2012] WADC 89 [97].
In determining damages for loss of earning capacity, it is necessary to have regard to the established facts of the past and the probabilities of the future, to determine the damage that flows from the loss of that capacity: Medlin v State Government Insurance Commission (1995) 182 CLR 1, 19. If the applicant is unemployed or not yet employed at the date of the hearing, an assessment must be made of what type of employment the applicant is likely to have been engaged in but for the injury, and what the likelihood was of the applicant actually finding and holding down such employment: LRE v AFK [2005] WADC 162 [72].
The evaluation of a future or hypothetical situation, or a loss of a chance, requires the court to assess the degree of probability of the future or hypothetical event. The assessment is based on the evaluation of possibilities and, to some extent, speculation. Unless the chances so low as to be speculative, or so high as to be practically certain, the court will take that chance into account in assessing damages: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; LRE v AFK [72].
In criminal injuries compensation, loss of earning capacity often cannot be proved by precise figures. If no useful figures are available to make a calculation then it is a matter of judgment. The absence of useful figures does not mean the applicant has failed to prove his or her case: A v D (489, 495 ‑ 496). If circumstances may not permit a precise mathematical calculation of economic loss, a global award for economic loss may be appropriate: MW v CW [2001] WADC 234; ATS v WLS [2005] WADC 223 [71] ‑ [73].
However, where a non‑compensable condition (whether pre‑existing or subsequent) 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]; Zadeh [34]; Re JY [2013] WADC 187 [13].
The amount of compensation is not to be fixed as punishment of the offender or as an expression of sympathy for the victim: B v W (1989) 6 SR (WA) 79, 89; DNA v Britten (1995) 14 SR (WA) 325.
Evidence relevant to the assessment of compensation
The following is a summary of the evidence in this appeal, taken from the documents which were before the assessor and the evidence the appellant gave in this appeal.
The appellant, who is now aged 44, has a work history which could only be described as patchy. She completed year 12 and after leaving school she worked as a sales assistant for about two years. She married at the age of 21 and had two children born in 1985 and 1988. She did not work or study while her children were young.
In 1995 she completed a Certificate III in Health and Fitness and began working causally as a group fitness instructor. In 1998 she obtained a licence to work as a croupier and obtained casual work operating gaming tables.
She also enrolled at university and by the year 2000 she had completed 12 units in a Bachelor of Business Course. She did not complete that course. Her evidence was that there were no health reasons why she did not complete it.
The appellant gave evidence that after the year 2000 she obtained employment as a receptionist on a full‑time basis, however the longest time she held a position with the one employer was six months.
The offence then occurred in August 2006. I accept that the offence would have been traumatic for the appellant. Given the statement of material facts, I accept what the appellant has said, both to the assessor and in this appeal, about the trauma of the incident at the time, and its immediate effect on her, both physical and mental.
In the document headed 'Q.28 Impact of injury' the appellant handwrote a 'PS', referring to photos taken at Joondalup Police Station as evidence of her facial bruising and noted also that her jaw pain was so severe, X‑rays were taken. There is no evidence of a fracture to the appellant's jaw. The statement of material facts refer to injuries of bruising and soreness of the jaw.
The physical injuries soon resolved, however, the mental injuries did not. I believe the appellant when she says, both in her evidence and in documents filed with the assessor, that she did not suffer any mental health issues before the offence.
At the time of the offence the appellant was working part-time as a receptionist for a health club – a matter also confirmed in the GP's records of 23 November 2006. Her evidence was that part of her duties involved locking up at night, something she found she was unable to do after the offence because of her fear of being alone at night. Driving her car at night became an issue for her, something which had never been an issue before the offence. She did not stay in that receptionist position much longer after the offence.
Unfortunately, I have no evidence as to exactly when the appellant finished in that employment, other than that she had stopped working by the time she saw her GP on 23 November 2006. It is clear from the GP's records (details of which I have set out in [13] ‑ [18] above) that the appellant had registered for Centrelink before her appointment on 23 November 2006, with her GP providing a Centrelink Sick Certificate after the appointments of 23 November 2006 and 21 December 2006.
The appellant gave evidence, and this is also confirmed in the GP's records (in particular the entry of 23 November 2006) that she underwent psychological counselling which was arranged through Centrecare. Many years after the incident when the assessor sought details of that counselling, the appellant was unable to obtain documentary evidence about this.
The appellant's evidence was that she underwent this counselling over a couple of months in 2007 or 2008, primarily to cope with her panic attacks, although she suffered from those only 'spasmodically', from time to time. She found that the counselling did help 'but it was only like sort of temporary' because she found that something might trigger the same sort of emotions and anxieties, particularly if she was put in a position that was similar to what happened that night (of the offence).
It appears from the GP's notes of a follow up appointment on 21 December 2006 that the Luvox the appellant had been prescribed did assist her. It is recorded in those notes that with this medication she felt normal, relaxed in mind, able to cope, was less anxious, with less frequent nightmares, she was less teary and had no panic attacks.
The appellant gave evidence, however, that while her GP had prescribed medication for her, and she took it for a while, she stopped taking it because it made her feel sleepy and she 'didn't really like it'. I note that this is consistent with what she reported to her GP on her review on 9 March 2007, where it was recorded 'feels worse off luvox but too sleepy', but the notes go on to record that there was a plan to switch to Zoloft and a script was written for that medication.
On the evidence of the GP's records, there was no follow up script for Zoloft, and the last time the appellant saw her GP was on 11 January 2008.
In relation to the entry in the GP records on 11 January 2008 'wondering about ADHD', consistent with her response to the assessor of 4 January 2017, the appellant's evidence was that she had suggested this to her GP because she was trying to work out what was affecting her and the things 'that were happening'. Those things, she explained in her evidence, were 'stress, anxiety, associated with going out in the evenings, not going out in the evening'. She described these things as a change in her behaviour and her personality. She described how she became fearful if she saw a couple of people walking on the other side of the road. She became overly cautious. She would not drive with her window down in her car and would ensure it was wound up when she stopped at intersections.
I note that these symptoms as described in her evidence are inconsistent with the appellant's reported symptoms as recorded in the GP's notes for the appointment of 11 January 2008, which were difficulty concentrating and completing tasks.
In mid‑2008, however, the appellant believed herself to be sufficiently recovered to re-enrol at university, this time to study law. Obtaining a credit for some of the law units she had completed as part of her earlier business course, in the second semester of 2008 she enrolled in a Bachelor of Laws course. There is documentary evidence of this which the appellant provided to the assessor.
As the appellant explained both to the assessor and in her evidence in this appeal, she found that she was unable to continue with this study. The reason she gave in her evidence was her inability to drive at night, and some of her lectures were at night. Confronted with a situation of driving alone at night, her evidence was that she was unable to continue with her studies. I should also record here that in her submissions in relation to her financial loss, the appellant stressed that it was her fear of going out at night, because the crime happened at night and some of her classes were at night and she was 'struggling going out at night', which led her to her to withdraw from the course.
The appellant believed that she withdrew from the law course, but the documentary evidence establishes that the university had no record of the appellant requesting to withdraw and as a result, fail grades were recorded against all four units for which she had been enrolled.
After this attempt at study, the appellant tried to obtain work as a receptionist or in office administration, without success. The appellant went back to receive Centrelink (Newstart) payments, although from the documentary evidence provided there were some periods she did not receive benefits. Unfortunately the appellant has not produced her income tax returns as requested by the assessor. In her evidence in this appeal, she stated that during this time (after 2008) she lived with her daughter for a while and was helping her with her baby, 'I think', for a while, and she also used to look after her father.
The appellant's evidence was that she did not want to appear as a victim and tried to continue with her life, but little things continued to affect her. She was reluctant to go out at night. She left the light on at night. She did not like to be alone, especially at night time and driving her car at night was definitely an issue.
She did not, however, seek any medical treatment for her symptoms, see a psychiatrist or see a counsellor. She did not receive any formal diagnosis or treatment at any time after January 2008, and she has not produced any medical evidence other than the GP records.
In January 2015 she saw the job network provider and the JSCI Report was produced; in March 2015 she applied for criminal injuries compensation, but it was not until 22 January 2016 that the appellant saw her GP again. Details of the consultation as recorded in the GP's records are set out in [18] above. During her evidence in this appeal the appellant was directed to the entry 'further events 2008 not assault related – flare in sx (symptoms), declined further counselling' and was asked to say what further events occurred in 2008. She was unable to say, answering 'No, I don't know'.
In 2016 the appellant enrolled to study again, this time for a double major, a Bachelor of Arts and Bachelor of Business. In her evidence she suggested that she only began studying in 2017, however in her submission to the assessor dated 4 January 2017, she stated that she successfully completed two units in Semester 2, 2016. Whenever it was that she commenced studying, her evidence was that she had successfully completed her first year in 2017, and she is in her second year, although she has deferred her study for a semester.
Her evidence was that she is now no longer suffering symptoms like before. While she is more cautious, she no longer has the fear she used to have, and has no difficulties now with doing things like going out at night. Her symptoms began to improve gradually over time, without medication and without therapy. She said in her evidence that she was better by the end of last year and, in her words, felt 'stronger on the inside'.
As to the other contributing factors which were noted in the JSCI Report and referred to by the assessor when requesting further information from the appellant, the appellant addressed this in her evidence in this appeal. She stated she was divorced in 2002, well before the offence. While the JSCI Report noted domestic violence, the appellant explained that there was no physical violence, however her former husband was emotionally abusive and controlling, and this continued after the divorce whenever he dealt with her about the children. As to the reference to family grief, the appellant explained this related to the unexpected death of her mother in 2004.
The appellant explained that the reference in the JSCI Report to relationship breakdown might be explained by the fact she had been in a relationship which had broken down at the time of the report. As to the note of 'risk of homelessness' and her living conditions being highly stressful as recorded in the JSCI Report, the appellant explained in her evidence that the last five years she had found it difficult managing and renting accommodation on a low income, and had some periods where she did not have a stable home to live in. I note that in her original application when discussing the impact of the injury, in the attachment headed 'Q.28 Impact of injury', she stated that she 'would be homeless if not for a room provided at her daughter's home'. In her later submission to the assessor dated 23 January 2016 the appellant described how 'in 2015 I was homeless for some time' as a reason for the delay in her submission. The appellant now has stable accommodation.
Assessment of damages
The issues before me really turn on how the appellant has suffered mentally as a consequence of the offence, and how long she has suffered.
The appellant has argued that she suffered from post‑traumatic stress disorder (PTSD). The difficulty is that there is no formal diagnosis of PTSD from any medical practitioner and no indication in the medical notes of her GP that she suffered from this disorder at any stage. There was also no mention of PTSD in the JSCI report, prepared after the interview with the appellant in January 2015.
While the appellant now believes, or is of the opinion, that she suffered from PTSD as a result of the offence, there is no medical or other expert evidence to support her opinion. In the absence of supporting medical or expert evidence, I can give little weight to the appellant's opinion. It is somewhat speculative and, at best, the appellant's evidence does no more than show that it was possible she suffered from symptoms of PTSD. The test of balance of probabilities is not satisfied by evidence which fails to do more than establish a possibility: Underwood v Underwood [95]. I am not satisfied that the appellant suffered from PTSD.
While the JSCI Report listed the appellant's medical conditions as anxiety and depression, once again there is no formal diagnosis of depression and anxiety. However, there is some medical support for these conditions in the GP's records. At her attendance three months after the incident, on 23 November 2006, the appellant's GP made a note that the appellant had 'no past history of panic anxiety or depression'. This, coupled with the medication which the GP prescribed, leads me to conclude that the appellant was treated by her GP for anxiety and depression.
Having regard to the GP's records, I am satisfied that as a consequence of the offence, the appellant suffered from anxiety and depression until mid to late 2007. While there is no supporting medical evidence after 9 March 2007, having regard to the symptoms as recorded and that she was prescribed further medication, and the appellant's evidence that with counselling her symptoms improved, I am satisfied that her symptoms would have been likely to continue throughout 2007. The suggestion from the appellant in her evidence that she might have undergone counselling in 2008 was extremely vague and I think it more probable that the counselling she underwent was in 2007. My view is reinforced by the GP's records of 22 January 2016 (as set out in [18] above) that further events in 2008 were not assault related.
These conditions of anxiety and depression and the symptoms from which she suffered clearly fall within the definition of 'mental and nervous shock' under the Act.
To the extent that there may have been other possible causes or contributors to the appellant's mental health issues at the time, given both the description in the JSCI Report and the appellant's explanation of them, 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.
The situation in relation to the appellant's mental health from and after January 2008, and whether she suffered from mental and nervous shock as a consequence of the offence, is not as clear, for the following reasons.
First, there is no medical evidence to suggest that the appellant was suffering from offence related anxiety and depression in 2008. As I have observed, the GP's records of the consultation of 11 January 2008 make no mention of symptoms other than difficulty concentrating and completing tasks, and the GP's records of the consultation of 22 January 2016 specifically state ‘further events 2008 not assault related'. The medical records do not support the appellant's evidence.
Secondly, the evidence from the appellant about the symptoms she says she suffered from after January 2008, as I have set out in [69] above, are very different from and not as severe as those for which she saw her GP between 23 November 2006 and 9 March 2007 (see [13] to [15] above).
Thirdly, even accepting the appellant's evidence as to her symptoms, there is a further matter relevant to my assessment of compensation. Between 2008 and 2016 when the applicant says she continued to suffer from offence related symptoms, she did not seek any medical treatment.
When the appellant did undergo treatment, whether in the form of medication or counselling, she was able to achieve an improvement in her symptoms, as evidenced by the GP notes of 21 December 2006. Her evidence in this appeal was that counselling helped and in 2008 she felt well enough to enrol in a serious course of study.
The appellant was an intelligent woman who, according to her evidence was looking for answers to her symptoms in January 2008. Yet she did not follow up any treatment after January 2008 and only months later, during her first semester of study in 2008, when she began to experience difficulty with attending university at night, she did not seek medical advice or treatment, nor did she seek any counselling.
As I have set out in [72] above, the symptom she said she had when attending university was a fear of going out at night. This was something she complained of when she saw her GP after the offence in 2006, something which she said led her to being unable to continue with her employment as a part-time receptionist after the offence, and something, according to the appellant's evidence, from which she still suffered when she suggested to her GP in January 2008 that she might have ADHD.
In my view, this is a case where, both after the appointment with her GP on 11 January 2008 and again after she had the difficulty at night when at university, the appellant ought to have obtained reasonable medical treatment for her symptoms. Her failure to do so should be taken into account when determining the award of compensation to be made. In my view there is a real possibility that the appellant's residual symptom or symptoms may not have impacted on her to the extent that she has claimed, if she had obtained treatment: RBF v OSD-S; Bedetti.
The case of Bedetti is instructive, because the applicant in that case suffered from PTSD (medically diagnosed, I would add) after an intruder entered her house, threatened her with a knife and bashed her about the face and head. She thought that she would be raped and robbed. The applicant did not obtain psychiatric advice and refused to attend any psychological counselling. She said that she felt it would be a weakness for her to need such treatment and she wanted to cope by herself. It was held that her failure to seek medical treatment for her PTSD 'must and does have a significant effect upon her claim for criminal injuries compensation' and removed her award from near the top of the range to a more modest award: Bedetti [10] and [15].
Similarly in this case, the appellant never saw a psychiatrist about the ADHD she wondered about in January 2008, and failed to seek any medical treatment or counselling for any symptoms which the appellant has now submitted arose from the offence during 2008. While her evidence was that she did not want to appear as a victim and tried to continue with her life, her failure to seek any medical treatment or counselling from and after 2008 reduces the quantum of her claim for compensation.
In all of the circumstances, applying the ordinary tortious principles for assessment of damages, my assessment is that the allowance of $19,500 made by the assessor is an appropriate award of damages for the appellant's pain and suffering and 'mental and nervous shock'.
The claim for financial loss
The next issue I must determine is whether the appellant is entitled to additional compensation for loss of earnings and any loss of earning capacity.
The first period for which the appellant has claimed loss of earnings is the two year period between the date of the offence to August 2008. The amount she has claimed is $110,000 on the basis that she would have been employed full-time as a receptionist earning $55,000 per annum.
Based on my findings in [85] ‑ [87] above I am satisfied on the balance of probabilities that from a short time after the offence until mid to late 2007 the appellant's earning capacity was affected due to the anxiety and depression from which she suffered as a result of the offence.
As I have already observed, I do not know when she ceased working in her part-time position as receptionist for the health club, but it is clear it was somewhere between the date of the offence and the date of her appointment with her GP on 23 November 2006. The GP's records noted that the appellant had been working part-time as a receptionist but had to stop because she was a bit ‘edgy', and that she had registered for Centrelink, with her GP providing a Centrelink Sick Certificate.
Doing the best I can, I will take the date of 15 October 2006, which is mid-way between the date of the offence and when she saw her GP, as the starting point for the period when the appellant's earning capacity was affected.
I am not satisfied that the appellant's symptoms from and after January 2008, as she described them, would have prevented her from doing any type of work as a receptionist or in a similar occupation. The appellant may honestly believe that her earning capacity was affected during this time, but there is no medical evidence to support her claim for loss of earning capacity for this period. There is also the issue that the appellant did not seek treatment for her symptoms. In any event on her own admission, by mid‑2008 she was sufficiently recovered and motivated to enrol again at university in what could only be described as an academically challenging course. As a matter of logic and common sense, she must have been fit for employment as a receptionist.
Accordingly, I will take the period for her loss of earnings from 15 October 2006 through to 31 December 2007, which is a period of 70 weeks.
There is an issue to how I should calculate the appellant's loss of earnings for this period. The only evidence of her earnings before the offence is contained in a letter from a previous employer confirming that she was employed for three months on a full‑time basis from 8 March 2005 to 9 June 2005, with a yearly salary of $32,000 per year. The evidence given by the appellant was that this was a typical salary for a receptionist at that time. That equates to $615 per week gross and $524 per week net (applying the Australian Taxation Office weekly taxation table for the financial year ending 2008, with tax-free threshold, no leave loading).
Her claim for financial loss in this appeal is based on lost income as a receptionist of $55,000 per annum, and that is the figure used by the appellant in the document headed 'Q.28 Impact of injury'. However, in the statement the appellant provided to the assessor entitled 'Request for an Extension of Time (Reasons for Delay)' the appellant claimed that she would have been gainfully employed as a receptionist with an income of at least $50,000 per annum. In her submissions to the assessor dated 4 January 2007 she stated that her earning capacity prior to the offence was, as a receptionist, a wage 'of approx. 52K per annum'.
I have no independent evidence of the average earnings of a receptionist at the relevant times, and I am not satisfied about the reliability of the appellant's estimate of what a receptionist might have earned. As I can inform myself as I think fit, I have had regard to the Australia Bureau of Statistics (ABS) table for average weekly full‑time earnings for a female (Table 10D. Earnings; All Industries; Females; Full Time; Adult; Ordinary time earnings). That I may refer to ABS weekly earnings is a matter which was discussed at the appeal hearing, is permitted pursuant to s18(2) of the Act which provides I may inform myself in any manner I think fit. ABS weekly earnings have been used in other criminal injuries compensation cases.
As at November 2006 the average weekly earnings of a female for all industries was $928.20 ($48,266 per annum). This increased to $982.80 by November 2007 ($51,106 per annum). I propose to apply an average of those two figures, which is $956 gross per week or $758 net per week.
I will also apply a discount for contingencies, to take into account that there is some doubt as to whether the appellant was likely to achieve this level of earnings, having regard to the appellant's pre‑offence work history and earnings. In a tortious assessment of loss of earning capacity, contingencies can be applied to past earnings, particularly where there is doubt as to whether a person was likely to achieve the earnings which she claims she could achieve: Insurance Commission of Western Australia v Weatherall [2007] WASCA 264 [22].
I will therefore allow $38,261 for past loss of earnings, calculated as follows:
$758 x 70 weeks less 10% contingencies $47,754
Less Centrelink payments received $ 9,493
Total$38,261
I now need to address the appellant's claim for loss of earning capacity from August 2008. In this appeal the appellant has argued that the assessor failed to consider the financial loss she suffered due to not graduating in law and the income that she would have received as a graduate lawyer, which was a minimum of $75,000. The law course was a four year course. She has submitted that from August 2008 until graduation, if she had been working part‑time as a receptionist and studying part-time she would have earned $55,000 per annum (even though $55,000 is a full-time income). The appellant has submitted that after August 2012 she would have graduated and been employed as a lawyer earning a minimum of $75,000 per year.
The appellant's submissions assume that, but for the mental and nervous shock she suffered as a result of the offence, she would have successfully completed the law degree, and also assumes that upon completion of her degree she would have both worked as a lawyer and earned $75,000 per annum. What she is really claiming is a loss of a chance, based on a hypothetical future event, as to which the principles I have set out in [50] above apply.
However, before I evaluate the degree of probability of the future or hypothetical event as claimed by the appellant, I first need to be satisfied that the offence either caused or materially contributed to an inability on the part of the appellant to complete her degree.
On this aspect of causation, there are a number of difficulties with the appellant's claim.
First and foremost, her submissions are based on her argument that she has suffered PTSD as a result of the offence. As I have found, I am not satisfied that she did suffer from PTSD.
Secondly, the link between the appellant's fear of being out at night and the inability to complete her studies, is in my view, extremely tenuous. This is particularly when on her evidence not all of her classes took place at night, and she also admitted in her evidence that for those which took place at night 'I could get, I could get the documents for, for that. Just go online and get them'. So continuing with her studies was not dependent on her going out at night.
Thirdly, on the evidence of the appellant's past treatment by her GP and the results of the counselling she undertook, I am satisfied that the fear of being out at night was readily treatable with medication or counselling, or both. That is something which the appellant did not seek. The matters I have set out in [46] and [92] ‑ [98] are also applicable here and I should take into account the appellant's failure to seek treatment when determining this part of her claim for compensation. To apply what was stated in Bedetti [11], if an applicant for criminal injuries compensation does not obtain reasonable medical treatment:
… then the cause of continuing symptoms will not be the original incident but the failure to treat. It is only for the consequences of the criminal act for which compensation under the Act can be paid.
Finally, I doubt that any of the symptoms the appellant described as existing from and after August 2008 would have affected her ability to study or work, either as a receptionist or in other employment. While she believes that they did, in the absence of supporting medical evidence I am not satisfied that the offence either caused or materially contributed to the appellant's unemployment from or after her attempt to study in the second half of 2008.
For these reasons, it is not necessary for me to assess the loss of the chance as claimed by the appellant. I am not satisfied that the offence either caused or materially contributed to any inability on the part of the appellant to complete her law degree or any loss of earning capacity from or after August 2008.
Conclusion and award
My assessment of the appellant's award of compensation is a total of $57,761, made up of general damages (non-pecuniary loss) of $19,500, and past loss of earning capacity of $38,261.
As I have found that the appellant is entitled to an award for financial loss over and above the assessor's award, it follows that there was merit in the appellant's compensation claim even though she did not completely succeed on all aspects which she argued in this appeal. I will therefore grant the extension of time for the filing of the appeal, allow the appeal increase the award of compensation to $57,761.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DC
ASSOCIATE TO JUDGE DAVIS24 MAY 2018
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