McCREERY
[2016] WADC 6
•29 JANUARY 2016
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: McCREERY [2016] WADC 6
CORAM: KEEN DCJ
HEARD: 21 DECEMBER 2015
DELIVERED : 29 JANUARY 2016
FILE NO/S: APP 30 of 2012
MATTER :IN THE MATTER OF Part 7 of the Criminal Injuries Compensation Act 2003
IN THE MATTER OF an application by
BETWEEN: WILLIAM HENRY McCREERY
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram :R GUTHRIE
Citation :CI 1762 of 2011 AND CI 1763 of 2011
Catchwords:
Criminal injuries compensation - Two assaults - Assessment of compensation - Turns on own facts
Legislation:
Nil
Result:
Compensation ordered in favour of appellant in total sum of $45,757.80
Representation:
Counsel:
Appellant: Mr R D McCabe
Amicus Curiae : Mr W A Fitt appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant: Slater & Gordon
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Garten v McCormack [2002] WADC 111
Gullelo v Halloran [2008] WADC 145
Hogben v Darcy [2009] WADC 63
McDavitt v McDavitt [No 2] [2013] WADC 198
Re Tilbury [2010] WADC 46
RJE v Bandy (Unreported, WASC, Library No 5489, 31 May 1974)
State Government Insurance Commission v Oakley (1990) Aust Tort Rep 81‑003
SW v BB [2010] WADC 86
KEEN DCJ: By application dated 23 November 2010 Mr McCreery applied for criminal injuries compensation in respect of an assault committed on him on 27 January 2008. By separate application dated 15 November 2011 he applied for compensation in respect of a further assault committed on him on 1 July 2010.
Mr McCreery migrated from Ireland to Australia in 2007. In about August 2007 he commenced employment with Veolia Transport Perth Pty Ltd trading as Southern Coast Transit as a bus driver.
The two offences, the subject of the two applications for compensation, arise out of assaults committed upon him during the course of his employment.
The facts in relation to the first assault on 27 January 2008 are that, whilst operating his bus, two passengers were drinking alcohol in the rear of the bus and became abusive. Mr McCreery requested them to get off the bus. They called him a 'white rapist'. He threatened to call the police.
One of the passengers picked up a plastic bin from the front of the bus and struck Mr McCreery to the right side of the head. The other one then struck him about the head with a 2-litre plastic Coke bottle.
He managed to eject the passengers from the bus; one of them threatened him by saying 'We'll stab him, we'll stab him'.
The second incident occurred on 1 July 2010, again whilst Mr McCreery was driving his bus. He refused to allow the offender onto the bus following which she became abusive and spat at Mr McCreery with the saliva striking the left side of his face, his shirt and collar.
Despite attempts by the police to identify the two passengers in the first incident they were not so identified and no proceedings were brought. Accordingly, the claim in respect of that matter is one that is made under s 17 Criminal Injuries Compensation Act 2003 (the Act).
In respect of the second incident the saliva of the offender was submitted for DNA sampling and the offender was identified as a Ms Mabel Rose Kearing. She was charged with assaulting a public officer and on 8 October 2010 was convicted of that offence in the Mandurah Magistrates Court. That claim is brought pursuant to s 18 of the Act.
The injuries said to have been sustained
According to his application for compensation, in the first incident Mr McCreery sustained physical injuries which I will come to when dealing with the medical evidence but essentially comprised soft tissue injuries to the head and neck and small abrasions to the cheek and tenderness.
The injuries sustained in the second incident are said to be entirely mental or nervous shock. I use that expression as it is consistent with the definition of 'injury' in s 3 of the Act.
The award
The learned assessor, Mr Guthrie, made an award in respect of both applications on 24 April 2012.
He awarded Mr McCreery a total sum of $10,371 for compensation for his injuries and losses. He ordered that that sum should be apportioned as to $3,000 in respect of the second incident and $7,371 in respect of the first incident.
On 31 May 2012 he delivered his reasons for decision. It is apparent from those reasons that the sum awarded is made up as to $7,000 in respect of the injuries sustained in the first incident and $3,000 in respect of the second incident and $371 being for medical reports.
The appeal
It is well established that an appeal under the Act is a hearing de novo: Gullelo v Halloran [2008] WADC 145. The court may confirm, vary or reverse the assessor's decision either in whole or in part pursuant to s 56(2)(b) of the Act.
The court has a discretion to receive and admit further evidence under s 56(1) of the Act unless it would be unjust to do so: Re Tilbury [2010] WADC 46.
Even though the appeal is a hearing de novo it is appropriate to have regard to the assessment made by the assessor being a specialist tribunal in the field: Hogben v Darcy [2009] WADC 63, 13.
Section 17 and s 18
It is quite clear from the assessor's reasons that he was satisfied pursuant to s 17(4) that the claimed injury and loss occurred as a consequence of the commission of the alleged first offence notwithstanding that no person has been charged.
I am also satisfied that the offence alleged occurred. The offence was reported by Mr McCreery to the police the following day and that complaint was supported by independent evidence of a passenger on the bus.
I am also satisfied as to the occurrence of the second incident, the offender having been charged and convicted in respect of that offence as is evident from the certified copy of the prosecution notice which has been provided to me.
The reasons of the assessor
What is apparent from the assessor's reasons is that, despite the medical evidence before him, in respect of the psychological or psychiatric injuries said to have been sustained by Mr McCreery, he was satisfied that his symptoms arising from these offences had sufficiently abated such that any ongoing symptoms that he suffered were related to prior significant long-term trauma, details of which I will come to. He found that any symptoms of post‑traumatic stress disorder (PTSD) and/or anxiety and depression were not attributable to the first or second offences.
That being the case the assessor made the award he did. That award did not contain any component for loss of earning capacity. The assessor was of the view that Mr McCreery was entitled to make claims for those losses under the Workers' Compensation and Injury Management Act 1981 because they were compensable injuries for the purposes of that Act.
The learned assessor also had regard to the background of Mr McCreery in Northern Ireland and in particular a history of violence and stress from involvement in paramilitary organisations whereby he was intimidated and threatened, an alleged assassination of his father, his fears for his own safety and his family in Ireland, physical abuse by his father and imprisonment for offences of assault, armed robbery and burglary.
The assessor also took into account other major stresses which he noted to be those associated with Mr McCreery's sudden departure from Perth, including travel arrangements and relocation in Ireland, shortly after the second incident and stresses associated with financial issues and lack of employment and 'reactivation of the stresses relating to his association with the Irish paramilitary'.
The appeal
Mr McCreery appeals and the grounds of appeal are:
1.The award of $10,371 is manifestly inadequate and below the bounds of sound discretionary judgment for the following reasons;
2.The assessor did not give sufficient weight to the severity of the psychological injury and/or residual disabilities and the effects those injuries and/or residual disabilities are having and will continue to have upon the appellant;
3.The assessor did not make any award for past and future loss of earnings;
4.The assessor did not make any award for future medical expenses;
5.The assessor did not make any award for travel expenses;
6.The assessor erred in finding that the appellant's current and ongoing symptoms and restrictions were not attributable to the first and second offences.
New evidence
In this matter I have the benefit of further evidence. In particular I have a witness statement from Mr McCreery dated 28 March 2013 and a further witness statement dated 26 November 2015.
In addition I have received a medical report from Dr Jennifer Doherty, consultant psychiatrist, following assessment by her of Mr McCreery on 20 March 2013 and an addendum dated 8 July 2013.
I have also received a psychiatric report from consultant psychiatrist Professor Benjamin Hugh Green dated 21 February 2014.
As I have noted, the court has a discretion to receive and admit further evidence under s 56 of the Act unless it would be unjust to do so. I have had the benefit of submissions from counsel for the chief executive officer as amicus curiae in which no issue was taken as to the admission of this further evidence.
It seems to me that this further evidence does throw some considerable more light on the nature of the application and expands the inquiry into the psychiatric/psychological injuries. Given the approach taken by the learned assessor, it seems to me that it would be unjust not to allow this new evidence to be admitted and I accept the new evidence.
The evidence generally
The first incident
Mr McCreery has prepared a number of statements concerning both incidents and the effects of them.
In relation to this first incident he says, in one statement, that coming to Australia was 'a new beginning'. He said that it came as a shock when he was assaulted and called names by two Aboriginal people who threatened to stab him. He said at that time returning to Northern Ireland never entered his head and he carried on with his life.
In a later statement dated 28 March 2013, which was not before the assessor, after dealing with his background and coming to Australia, he speaks of his work as a bus driver.
He set out the circumstances of the first incident, broadly similar to those which I have already described. However for the sake of completeness he says:
42.The larger of the females have walked to the front of the bus. She picked up a plastic bin which was located on the floor at the front of the bus. She struck me several times to the right side of the head with the bin.
43.The smaller female began hitting me with the Coke bottle. This was also on the right side of my head. Both females were also punching me in the head area.
44.I managed to get them off the bus and shut the doors. The smaller of the females' backpack got stuck in the doors as I shut them.
45.I opened the doors and I grabbed her backpack and threw it over the bus shelter to get them away. As I did this the larger female was saying: 'We'll stab him, we'll stab him'.
46.I did not see a knife but felt scared from what I heard. I quickly got on the bus and began to drive westerly on Dixon Road towards Rockingham.
After completing his shift he said that he went to Rockingham hospital where he received medical treatment in the way of pain relief.
He went on to say:
51.The assault came as a shock but after this event returning to Northern Ireland never entered my head.
…
53.Following the assault I made a claim for worker's compensation and I was reimbursed medical expenses in the amount of $1,623.20 following that event.
54.I did take some time off work as a result of the physical, emotional injuries I sustained following the assault and a final medical certificate was issued on 23 March 2008. I was otherwise able to return to work.
In an impact statement from Mr McCreery's wife Tracey McCreery, she says that this assault left him 'battered and bruised. But we decided to carry on with our wonderful life'.
Mr McCreery made a claim for worker's compensation in respect of this matter. The claim is dated 30 January 2008. In that claim he said that he was assaulted with a plastic bottle, plastic bin, backpack and punches. He described his injuries as 'soft tissue injury r.s. neck, head, face and neck.'
Liability was accepted by his worker's compensation insurer on 14 February 2008.
The papers before me include a medical certificate from what appears to be the Rockingham District Hospital certifying him as unfit for work for one week from 28 January 2008 to 4 February 2008 for neck injury.
A further certificate is provided by Dr Moyle and dated 29 January 2008. That describes the injury as having 'been beaten about the head, neck stiff, numbness on head and right side of face, beat on head with bin, punched on head, hit with 2 litre bottle of alcohol'. The medical assessment was soft tissue injury to the right side of the head and neck. He was provided with anti‑inflammatories and analgesia and certified as unfit for work for seven days.
A further certificate dated 5 February 2008 noted, by way of progress, that he 'remains sore and tender to the right cheek and neck – stiff neck with lack of movement'. He was certified as unfit for seven days from 5 February 2008.
A further progress certificate dated 12 February 2008 noted that he was improving for restricted duties as 'outlined'. He was certified as fit for restricted duties.
By a certificate dated 19 February 2008 it was noted that 'there was not much improvement – probable worsening due to bracing on bus whilst moving'. He was placed on Naprosyn and work restrictions avoiding working in a moving bus.
In a certificate dated 26 February 2008 it was noted that he was 'improving but remained unable to have full range of movement – still aching back of neck'. He was again placed on restricted duties to avoid straining neck muscles and not to drive but suitable for bus buddying.
A certificate of 6 March 2008 noted 'marked improvement in neck stiffening - still mild residual soreness'. He was fit for work on restricted hours. He was able to drive but not more than five hours driving per shift.
In a certificate dated 13 March 2008 it was noted that he was more or less fully recovered. There was a further notation that he 'still gets a bit of soreness after driving'. He was noted as fit to return to pre-injury duties.
The final medical certificate is dated 27 March 2008 which noted no further neck problems and that he had fully recovered.
As I have noted, Mr McCreery returned to Ireland and this occurred on or about 2 August 2010. By this time he had sustained the second incident and reports on his condition from Ireland speak about his condition as then seen.
A report dated 14 January 2011 from South Eastern Health and Social Care Trust notes a
constant reflection and preoccupation with events in Australia (had emigrated but following two assaults impulsive decision to return home – regretful of this but unsure if returning would be the right idea).
In a report dated 7 June 2011 from Bryson Street Surgery in Belfast Dr Paul Campbell noted the history that whilst in Australia Mr McCreery was attacked on two separate occasions while working as a bus driver. On one occasion he was physically attacked and the second he was spat on in the face. Dr Campbell said 'I am not aware of the exact details of each assault'.
Dr Jennifer Doherty in her report following assessment on 20 March 2013 describes the assault, being the first incident, in broadly similar terms to that described by Mr McCreery and set out above.
She notes that initially Mr McCreery told her that he felt nothing although began to develop pain around his neck and shoulder area which got worse. He attended the A & E department in Rockingham two to three hours post‑incident. X-rays showed soft tissue damage to his neck, shoulder and head. There had been no loss of consciousness or vomiting. The pain lasted six to seven weeks and he was off work during that time. There was also a nick on his head where he was hit by the bin but did not require stitches.
She notes that after the attack
he states that he felt very shocked, he was very wary of what could have happened and was 'terrified of Aborigines'. He was constantly paranoid about picking up Aboriginals and he knows his mannerisms towards them changed.
She goes on to say:
After the attack he denied any change in his appetite though his sleep did deteriorate, he was constantly on edge and constantly going over the incident and questioning whether he could have done anything different. He denied being verbally aggressive towards them in any way. He was more on edge when he saw Aboriginal people. He states he had nightmares about the attack and could repeatedly see the attack played in front of him. He then went back to driving a bus 12 weeks following the attack.
Professor Green in his report dated 21 February 2014, by way of history, sets out what Mr McCreery had told Dr Doherty in relation to this attack. However, he also noted the witness statements and impact statements which had been provided and to which I have made reference.
Later in the report he sets out the history as given to him by Mr McCreery independently. Again it is broadly similar to that already described. However he notes that he felt shocked following this and got back to the station and reported the incident to the traffic controller. After light duties he went back to full duties and:
He told me that he had decided after that time not to be so bothered about what happened on his bus and not to approach Aboriginal people. He told me that he had been wary of picking up Aboriginals on his bus after that but had avoided any confrontations with them. He did not describe any other psychiatric symptomatology post-incident.
The second incident
There are more statements dealing with this second incident but it is difficult to place them chronologically. That being the case I will deal with them by taking an undated statement first from Mr McCreery.
In that statement Mr McCreery deals with his move to Australia and his work and also issues concerning an attempted abduction of his son Luke. This statement appears to have been made after his return to Ireland but does not touch upon this incident specifically.
In a statement dated 3 December 2012 he said he returned to Northern Ireland after the second incident. He felt low, dirty and worthless. He said he could not turn to his work colleagues or bosses.
Having returned to Ireland he saw a doctor in October. He could not face anything or go anywhere or talk to anyone. He speaks of being sent to a psychiatrist and being diagnosed with obsessive compulsive disorder (OCD) and anxiety and depression. After five months he was discharged having been told there was nothing more that could be done for him.
In that statement he said he cannot face leaving the house, cannot sleep and is constantly cleaning the house and showers at least four times a day and night. He gets fits of depression and being very agitated. He describes suffering from PTSD and bulimia.
In his statement of 28 March 2013 he again describes the events of this incident.
He said that on 1 July 2010 he was driving his bus and stopped on Sutton Street. A young girl wanted to get on the bus but he refused her because of her
previous known disruptive behaviour and that she looked as though she was sniffing glue. I had known that she had sniffed glue previously on the bus.
He said that she became abusive and spat on him with the spittle contacting him on the left side of his face, shirt, collar and lapel.
He said that he was frightened as to what diseases might have been in that spit and felt stressed.
He said that he made a claim for worker's compensation on or about 5 July 2010 and a return to work programme was arranged but he did not feel fit to do the work.
He said he felt low after the incident, dirty and worthless. He made the decision to return to Northern Ireland.
He hoped that the move to Ireland would result in the saga being put behind him.
He felt depressed after moving to Ireland. He said that he was sent to a psychiatrist, Dr Roger Graham, and was diagnosed with OCD, anxiety and depression. He takes a drug Mirtazapine daily.
He says he cannot sleep and is constantly cleaning the house and showers four times a day. He feels agitated all the time and has 'constant ruminations about the two assaults and I am unable to hold my food down and suffer from bulimia'.
He says he has not been able to work since.
On 5 July 2010 he made a claim for worker's compensation in which he describes the assault as 'was spat on the face and left side of neck'.
It appears that he attended a counsellor on 5 July 2010 where he described ongoing anxiety resulting from the event and his symptoms were described as including general anxiety, sleep problems, physically ill (vomiting), unwilling to socialise or leave the home. It is noted that he did not want to continue counselling although it was recommended.
A return to work programme was devised for four hours a day working but no driving duties.
A subsequent programme noted no driving with passengers and supervised driving.
By a note dated 16 July 2010 Mr McCreery notified that he wished to drop his claim for worker's compensation.
A statutory declaration sworn by him on 12 March 2014 notes that he decided to return to Northern Ireland and resigned in July 2010 from his work. He said he withdrew his worker's compensation claim because he had been advised to do so in order to be paid out leave entitlements. He felt pressured to do so.
Mr McCreery's doctor at the time was Dr Pavic who provided a first medical certificate for worker's compensation in which the details provided to him were that Mr McCreery suffered anxiety having been spat on the face.
Under the heading of 'Medical Assessment' the doctor has noted:
Clinical findings/diagnosis (include possible complications, effect of prior injury or medical condition):
No history of mental illness in past. Reported spitting on face at work and felt increasing feelings of anxiety over the next 24 – 48 hours with increasing feelings (of) numbness, helplessness and hopelessness and not feeling driving a bus as the thoughts kept recurring over the weekend. Diagnosis of acute anxiety disorder requiring restrictions from driving and psychological support and review at the end of the week.
He was certified as fit for work on restricted duties.
The progress medical certificate was dated 13 July in which it was noted:
Mood improving, however, becomes more agitated by talking about the issue, is keen to try to get 'back on the horse' but suggest graded approach with work trial if requested on the Friday with supervision. Prognosis is good and suggest cancel interview with People Max in the interim unless failure with current RTW.
He was declared fit for restricted work duties from 13 July to 3 August 2010.
After his return to Ireland he was provided with a number of medical certificates. The first is dated 16 January 2013 and declared him totally unfit for work from 3 October 2012 to 3 January 2013. That certificate was given following an examination on 16 January 2013.
Subsequent certificates declared him unfit from 3 January 2013 to 2 October 2013.
Dr Clements of the Bryson Street Surgery who signed those certificates prepared a declaration on 22 October 2013 noting the finding of recurring anxiety and depression and Mr McCreery receiving ongoing medication and was declared totally unfit for 13 weeks from 3 October 2013 to 3 January 2014.
A final certificate on the papers is dated 8 January 2014 from Dr Clements declaring him unfit until 3 April 2014 with findings of recurring anxiety/depression.
A report from Dr Campbell of Bryson Street Surgery, to which I have already referred, noted these two assaults that he sustained and noted:
Prior to this Henry felt relaxed and comfortable in Australia but these attacks seem to cause flashbacks, agitation and insomnia, similar symptoms to those he experienced in Northern Ireland prior to him leaving.
It was noted that the assaults seemed to have had a significant adverse effect upon his mental health. He suffers anxiety and was attending psychiatry and psychology but progress had so far been slow.
Dr Campbell said:
He is currently receiving incapacity benefit as he feels he is unable to work due to his stresses and anxiety.
He was unable to say whether he would be left with a residual disability as a result of the first and/or second assault.
I have already referred to the report of 14 January 2011 from South Eastern Health and Social Care Trust. That report is signed by a person whose signature is indecipherable and does not indicate the qualification of the author. However it is addressed to Dr Campbell and in his report of 7 June 2011 Dr Campbell does say 'Please see attached psychiatry report'. I infer that this is the report to which he refers and I therefore infer that it is a psychiatric report presumably prepared by some qualified person.
Dr Campbell had referred to Mr McCreery's previous experiences in Northern Ireland prior to him leaving for Australia. Reference is made to that in the report of 14 January 2011. Before coming to that the author notes that Mr McCreery was regretful of his decision to return to Ireland. In that report it is noted that he admits to increased security, hypervigilance and increased sense of self. It is noted:
Previous heavy involvement with local paramilitary organisations – father allegedly assassinated and fears for own safety. Difficulty discussing events previous to emigration as keen for this to remain in past – detail sparse with requests for previous CPN (Delorys Bell) to be asked regarding this (2001) following incident of domestic violence referred to CMHT by GP regarding PTSD (anxiety/depression/addictions) events surrounding father – allegedly abusive physically to William – and family alleged involvement in local paramilitary organisations.
The report goes on to note a history of 'TLNWL'. Counsel was unable to assist with the meaning of that acronym but agreed that it could possibly mean 'thoughts of life not worth living'. The report goes on to refer to
suicidal ideation and action – own medication – unsure of dates (2005/6) but denies any current citing family and personality as strong protective factors. Previous medication misused (2002/07) – would store up medication during week to take at weekends recreationally (diazepam/temazepam) and substance misuse (cannabis and alcohol 30+ units daily of cider/spirits). Describes current abstinence from substance misuse since 2007.
The report itself describes current sleep pattern as poor with sleeplessness or up to three hours sleep per night. Erratic dietary behaviour is also described, increasing since the return from Australia. There had been a substantial loss of weight.
In the report there is a reference to
describes intense trust issues which he attributes to upbringing – poor relationship with parents and alleged involvement with local paramilitaries. Father allegedly assassinated during paramilitary feud and lost a lot of friends following this. Focus is now on own family. Found it easy to make friends in Australia due to lack of baggage. Upon return this baggage has returned and has become socially withdrawn.
The report also notes a history of assaults, armed robbery and burglary and periods of imprisonment.
The report attaches an action plan which is difficult to read but appears to refer to some referral for his anxiety management and possibly his eating disorder. A marginal note is to the effect 'Refused group therapy'.
Dr Doherty in her report notes the history as given to her by Mr McCreery in relation to this second incident. Again it is broadly similar to that given by Mr McCreery save that he apparently told Dr Doherty that the spittle not only went on his face but into his mouth.
She notes that according to Mr McCreery he has 'not been right since' and has become bulimic and lost 10 stone in 2 1/2 years. Apparently he states he can see the spit and he can taste the glue and he is constantly scrubbing himself. She describes the obsessive compulsive symptoms of cleaning around the house.
Dr Doherty describes the past psychiatric history in relation to these two incidents. This includes, according to Mr McCreery, seeing a clinical psychologist for a six-month period from March to October 2011 and attendances upon his general practitioner.
It is said that he describes symptoms of PTSD, OCD, bulimia, depression and anxiety.
According to the report Mr McCreery had also said he attended a community psychiatric nurse prior to going to Australia when he was consuming a lot of alcohol and was suicidal.
Dr Doherty carried out a mental state assessment of Mr McCreery. She notes that he wanted to return to Australia. He constantly thinks about the two attacks and is constantly cleaning himself. He vomits continually. His affect was quite dull. His appetite decreased. His sleep on and off. He has decreased concentration and interest. Life is worth living with no suicidal ideation and there are no perceptual problems.
Dr Doherty formed the view that he was suffering from PTSD following those two attacks. She noted that he was already a relatively vulnerable man with a history of physical abuse, seeing his father's dead body lying in the street covered with a blanket and a sense of abandonment that his mother left him once she got the insurance money and moved to England.
Dr Doherty notes that Mr McCreery did not have any signs or symptoms of depression or PTSD prior to this incident (being the incident in Australia) from the history that he related. He was functioning well in Australia and loved his life there and enjoyed a good standard of living.
She notes that as a result of all of his problems he has no quality of life and cannot leave the house and cannot function in any way similar to prior to the attacks.
Her opinion was that Mr McCreery had suffered a number of psychiatric sequelae and had been significantly affected by the two attacks and his level of functioning had completely deteriorated with a number of psychiatric symptoms.
In an addendum to her report, Dr Doherty noted that Mr McCreery finds thoughts of the attacks very intrusive and has a feeling of detachment and estrangement from others none of which was present before the trauma.
She was of the view that Mr McCreery's present medical condition was contributed by the attacks he was subjected to and affected him to a profound degree. She noted that prior to the attacks he was leading a normal life in Australia with no evidence of mental illness. In the past he appears to have been suffering from low mood and anxiety symptoms secondary to his father's death and more likely have periods of emotional instability and was consuming a lot of alcohol. However she notes that these symptoms appeared to have gone when he was leading a normal life in Australia prior to the two attacks.
Her prognosis was guarded. She described Mr McCreery as very disabled and he needed to be aggressively treated with psychotropic medication and probably needed long-term trauma work which could take up to two years. She thought the costs could be in the region of 5,000 pounds.
Professor Green on the other hand noted that he took particular care to request Mr McCreery to describe all of his mental health symptoms which included binge eating behaviour, altered body image, lowered self‑esteem, lowered mood, poor concentration, feelings of guilt, obsessive cleaning behaviours, a fear of leaving the house, avoidance of driving and frequent showering with few interests.
Professor Green also noted the past psychiatric history. Not only was there the issues concerning his father and the paramilitary, but also it appears that Mr McCreery had suffered an industrial accident in 2000 and 2001. Following this he had been off work for several years and described anxiety, lowered mood and everything got on top of him and he received treatment and was diagnosed with PTSD at the time and retrospectively.
Professor Green noted that Mr McCreery stated, as part of his medical history, having been stabbed at the age of 20 by a cousin. He feared for his life at the time.
Professor Green carried out a mental state examination and came to a different diagnosis to that of Dr Doherty. Having noted that Mr McCreery had suffered these two incidents he noted that he did not describe a fear for his life. He did not believe that what Mr McCreery was describing were significant features of PTSD despite numerous opportunities to do so throughout the interview. Having set out the various behaviours and the matters to which I have referred, Professor Green came to the view that he did have obsessive compulsive behaviours and features of lowered mood.
Professor Green was of the opinion that he probably had a chronic and significant past psychiatric history of PTSD with associated alcohol dependence and these were problematic immediately prior to leaving for Australia. However he conditioned that opinion by noting that he required to sight the past psychiatric records and any GP records. I was informed they were not available.
He also described Mr McCreery as an extremely vulnerable individual prior to taking up employment in Australia by virtue of this history of physical abuse, industrial accident and being stabbed and witnessing the aftermath of his father's murder.
As I have noted, he did not agree with Dr Doherty's diagnosis of PTSD. He did not believe the incidents qualify for the criteria of necessary trauma prior to PTSD. Mr McCreery had not described, according to Professor Green, significant features of PTSD including nightmares, flashbacks or significant avoidance behaviours or hyper‑startle reactions. I pause to note that in relation to the significant avoidance behaviours there is reference in Professor Green's report to him avoiding leaving the house and avoiding driving because of meeting other people and confrontations on the road.
Professor Green took the view that Mr McCreery did not meet the criteria for PTSD following these two incidents but he has had some form of psychiatric reaction which probably represents a decompensation as part of a recurrent chronic psychiatric history.
In terms of causation Professor Green believed the two incidents in question were unpleasant occurrences that happened against a background of great vulnerability.
Professor Green also said:
I note additional life events whilst in Australia which are not documented by Dr Doherty including the leaving of his two sons for Northern Ireland and the abduction of his youngest son. It is unlikely that these three events did not weigh in Mr McCreery's decision to leave Australia.
Professor Green also thought the prognosis was guarded but this was because of his significant past psychiatric history and family history. Nevertheless on the balance of probabilities he felt that he would improve with appropriate treatment over the next 12 months. However, he did note that it may be difficult for him to return to driving buses.
To complete the medical evidence there are additional reports before me.
A Rosie Mullan, a community mental health nurse, in Ireland gave a report of 12 April 2011 noting that Mr McCreery presented with high anxiety symptoms, possible social phobia and low mood. She noted:
Unfortunately he does not do any of the work we agreed to help him, therefore there is no change in his presentation.
She also noted that he laughed at the suggestion of an eating disorder and did not wish to have any help and denied any thoughts or plans of self-harm.
At that time she noted that he was planning to return to Australia before Christmas 'where life is much better'.
She referred him for psychology input/assessment.
Dr Roger Graham, a clinical psychologist at the South Eastern Health and Social Care Trust, provided reports.
In his report of 15 August 2011 he noted that Mr McCreery felt compelled to return to Northern Ireland after the two assaults but feels that that was an impulsive, poorly considered decision about which he was regretful and fiercely self-critical.
Dr Graham offered sessions by way of management of him.
In a report of 5 October 2011 he noted that Mr McCreery had attended clinical psychology for intervention and that he and his wife had resolved to return to Australia in the summer of 2012.
He noted that he continues to experience anxiety and distress whilst thinking about the attacks which prompted his return and it is clear he endures a sensitivity to these memories that is unpleasant and ongoing. However:
He reports a willingness to live with these feelings, difficult as they are, in order to pursue a more rewarding and valuable life elsewhere. I can see no role for psychological therapy per se at this stage and I am discharging Henry from our service.
In his statements and those from his wife and son reference is made to the attempted abduction of Mr McCreery's son Luke. It appears that they got over this incident which occurred in about December 2008.
With regard to the incident in July 2010 when Mr McCreery was spat upon she said that after that he could not take any more and decided to go back to Northern Ireland. She said that all he did was wash himself and he lost all confidence in himself. She said that 'since returning to Ireland he doesn't go out, he is on medication and he can [sic] work'. There is financial hardship. In another letter she describes their life as having been turned upside down. Mr McCreery is on sickness benefit.
Mr McCreery's son Luke also notes that after the second incident Mr McCreery changed a lot.
Submissions for the appellant
Counsel for Mr McCreery argued, in written submissions and orally, that as a result of the first assault the appellant sustained some physical injuries but also suffered from nightmares and disturbed sleep but did not make any claim for psychiatric injury. He was able to persevere and return to full duties.
However, it is said that Mr McCreery's psychiatric condition rapidly deteriorated after the second offence. It was as a result of his distressed state that he made the snap decision to return to Northern Ireland.
It is argued that Mr McCreery now suffers a number of debilitating symptoms, as set out in the medical reports.
Counsel observed the provisions of the Act to the effect that an assessor must not make a compensation award unless satisfied that the claimed injury and any claimed loss that has occurred was a 'consequence of the commission of' an offence. There must be a causal relationship between the injuries and the loss and the offence committed but the offence need only be a contributing cause and need not be the sole cause. The ordinary principles for assessment of damages for personal injury apply.
Counsel then went on to make submissions in relation to the effect of pre‑existing conditions. He noted that the court must attempt to distinguish between direct 'impact damage' that flows from the offence itself and indirect damage that flows from such things as the reaction of the victim's friends and family, court proceedings or public attention: RJE v Bandy (Unreported, WASC, Library No 5489, 31 May 1974); Garten v McCormack [2002] WADC 111. In relation to that I add, for consideration, the question of Mr McCreery making a snap decision to leave Australia to return to Northern Ireland and the consequences of that.
Counsel also made submissions as to the effect of s 41 of the Act which requires the learned assessor to have regard to the behaviour, condition, attitude or disposition of the victim that contributed to the victim's injury noting the conflicting authority as to whether that section extends to pre-existing injuries: McDavitt v McDavitt [No 2] [2013] WADC 198; SW v BB [2010] WADC 86. Counsel argued that s 41 does not require the assessor to specifically consider pre‑existing conditions. I will come to the arguments advanced in relation to this later in these reasons.
Counsel also submitted that if the injuries sustained in the two assaults are separate events causing injury, that is to say separate from any condition suffered by Mr McCreery prior to the incidents, the correct approach would be that advanced in State Government Insurance Commission v Oakley (1990) Aust Tort Rep 81-003, 65 – 777, to the effect that:
Where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of the aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence.
Counsel argued that the evidence establishes:
(a)that Mr McCreery's pre-existing condition immediately prior to the assaults was in remission or asymptomatic;
(b)the first offence significantly increased his vulnerability to a significant deterioration in his psychiatric condition which came to pass as a result of the second incident;
(c)the two offences have 'added effect' and resulted in the appellant developing a further recurrence, exacerbation and aggravation of post-traumatic stress, anxiety and depression, as well as causing a new condition, obsessive compulsive disorder;
(d)the symptoms from those conditions persist as a consequence of the assaults and those assaults continue to contribute to the injury to a significant degree; and
(e)the symptoms are severely debilitating to the extent that Mr McCreery's capacity to perform activities of daily living and ability to work have been extremely impaired.
As a result it is argued there should be no deduction for any pre‑existing vulnerability because Mr McCreery had successfully overcome his difficulties before the assaults and there has been the emergence of new symptoms not experienced before the assaults.
On that basis it is said that Mr McCreery is entitled to a substantial award to reflect what would be damages at common law representing general damage, loss of earning capacity, future medical expenses and disbursements totalling in all in excess of the jurisdictional limit for each offence of $75,000.
Finally, it is acknowledged that monies received by way of compensation in respect of claims made by Mr McCreery against his employer in the sum of $20,623.20 should be taken into account and deducted from any compensation awarded. It is argued that the total sum then awarded should be apportioned equally between the two incidents.
Submissions by the amicus curiae
In this case the court was provided with the benefit of full and detailed submissions on the law relating to matters of this kind. Those submissions do not argue the case for or against the appeal and properly so given the position of the amicus.
However in closing submissions counsel did note that the materials supplied did not demonstrate any complaint of any mental disability or injury as a result of the first offence.
Counsel did pose the question as to whether or not Mr McCreery's leaving to return to Northern Ireland distressed him and whether or not the assaults caused him to make that move or was it something independent.
Issues arising
The issues that arise for determination would appear to come down to the following:
(a)did Mr McCreery suffer any psychiatric or psychological injury as a result of the first incident; or
(b)did that incident make him more vulnerable to psychiatric injury in the future;
(c)did Mr McCreery suffer a psychiatric or psychological injury as a result of the second incident;
(d)did Mr McCreery suffer psychiatric or psychological problems or dysfunction whilst in Northern Ireland and before coming to Australia; and
(e)if so, had those abated by the time of his first and/or second assault in Australia;
(f)has Mr McCreery continued to suffer such psychological or psychiatric disability since returning to Ireland; and
(g)if so, is that caused by either the first and/or second incident;
(h)if so, has Mr McCreery suffered a loss of earning capacity and the extent thereof;
(i)does the effect of any pre-existing psychological or psychiatric disability affect the level of compensation to be awarded;
(j)what is the correct measure of compensation for each of the incidents;
(k)how should the compensation received of $21,623.20 be apportioned and taken into account in respect of each of the incidents; and
(l)what is the resultant appropriate compensation in respect of each incident.
Findings
I am not satisfied that Mr McCreery suffered any psychiatric or psychological injury as a result of the first incident. There is no contemporaneous evidence to suggest that he did. He did suffer some physical injury, albeit minor, and it may be that the incident was distressing to him.
The only evidence linking the later psychiatric or psychological injury to this incident is that which emanates from Ireland after his return to that country and is principally that of Dr Doherty and, to some extent, Professor Green, both coming some five or more years after the event and relying on the history as recounted by Mr McCreery.
I do not suggest that Mr McCreery has deliberately embellished the effects of this incident but it must be seen in the context of there being a second incident and the effect that that may have had upon him.
There is nothing in the reports or other material at the time to suggest anything other than a physical injury and Mr McCreery was able to return to work after a matter of weeks. Not one of the medical certificates or reports of that time suggest any psychiatric or psychological injury or change to his psychiatric or psychological state.
I will return later to Mr McCreery's life and issues prior to arriving in Australia, but for now it seems to me – for reasons I explore later – that there is no evidence to suggest that he had not made a complete and lasting recovery from those matters and had established a settled life in Australia. If those issues had left him as somehow still vulnerable as at the date of the first incident there is nothing to demonstrate this and the reverse appears to be the case. He continued to work without apparent problems until the second incident some two and a half years later.
Having made that finding it is difficult to find that the first incident made him more vulnerable to psychological injury in the future.
One can well imagine that when the second incident occurred Mr McCreery might well have thought, 'Not again' but that is not to say that he was rendered more vulnerable to psychiatric or psychological injury by the first incident. There is simply nothing to show such a vulnerability per se.
However that is not to say that the psychiatric and/or psychological effects of the second incident may have been worsened by the fact of the occurrence of the first incident. In other words it did not render him vulnerable in the sense of making him more likely to suffer a psychiatric or psychological injury but to render such injury of greater effect.
Both Dr Doherty and Professor Green opined that Mr McCreery was vulnerable by reason of his background – Dr Doherty said, 'relatively vulnerable' and Professor Green 'extremely vulnerable'. However both of them link that vulnerability to the two incidents without separating them out so as to identify the extent, if any, that he was left with vulnerability or increased vulnerability from the first incident. As I have noted, and have found, I am not satisfied that there was any psychiatric or psychological injury arising from the first incident and on that basis cannot find it left him more vulnerable to psychiatric or psychological injury thereafter.
I am satisfied and do find that Mr McCreery did suffer a psychiatric or psychological injury as a result of the second incident.
The incident, whilst lacking any real physical impact, was nasty, disgusting and shocking. It was a gross invasion of Mr McCreery's person for the offender to have spat in his face. Coupled with that there would no doubt have been the fear of transmission of fluid borne disease.
It is clear from the workers' compensation documents that Mr McCreery had to be managed with a view to him being able to return to work. It involved reduced hours, supervision while driving, possible alternative duties. By 5 July 2010 Dr Pavic was certifying him as suffering increased feelings of anxiety, numbness, helplessness and hopelessness. He diagnosed acute anxiety disorder requiring restrictions from driving and psychological support.
In a certificate dated 13 July 2010, Dr Pavic noted Mr McCreery's mood was improving and the prognosis was good. He could return to work on restricted hours but no driving with passengers.
As it transpired that prognosis was not given time to be proven insofar as his ability to get back to his duties was concerned because Mr McCreery packed up and returned to Ireland on or about 2 August 2010.
On his return to Ireland he was provided with further medical certificates declaring him to be unfit for work. However these did not give a commencement date until 3 October 2012. In those certificates the injury is described as post‑traumatic stress disorder, anxiety and depression. However he did attend the Bryson Street surgery in Belfast on 29 October 2010 and attended for psychiatric services.
Dr Campbell, in a report of 7 June 2011, noted the prognosis was slow and said it was difficult to say if he would be left with any residual disability as a result of the first and/or second assault.
Mr McCreery's psychiatric assessment was on 15 January 2011 and revealed a 'constant reflection and pre-occupation with events in Australia'. Whilst that report details the history and symptoms, it does not identify a diagnosis save for a reference in the Action Plan to anxiety management, low mood and sleep, and possible eating disorders.
Dr Doherty noted symptoms of post‑traumatic stress disorder, obsessive compulsive disorder, bulimia, depression and anxiety. Her opinion was that he suffered post‑traumatic stress disorder following the two attacks in Australia. She noted no signs or symptoms of depression or post‑traumatic stress disorder 'prior to this incident from the history he told me'. However she did not identify which incident she was referring to. In her subsequent report she opined that his current medical condition was contributed to 'by the attacks' but without identifying any facts relied upon to establish the opinion as to the plurality.
I am content to find that what she describes is referrable to the second incident – there is contemporaneous evidence to support it – but not to the first incident for the reasons I have already expressed.
I accept her evidence as to the causation of these symptoms rather than that of Professor Green who appeared to rely upon a concatenation of events which I have set out previously in these reasons.
Professor Green also conditioned his opinion as to the part that Mr McCreery's prior history had to play by saying he required to see past psychiatric records and GP records. That does not appear to have happened.
It is clear from all of the information provided that Mr McCreery had a very chequered life with distressing experiences and an insecure background. Professor Green describes him probably having chronic and significant past psychiatric history of post‑traumatic stress disorder and associated alcohol dependence prior to leaving for Australia.
Both psychiatrists appear to have the same view of these events as having made him vulnerable to some degree. However, I find that with his move to Australia, Mr McCreery was able to put these matters behind him. I accept his evidence that life was good and the family was happy. Even when his son was the subject of an attempted abduction in December 2008, it seems that the family were able to work through the issues that arose from that without any adverse sequelae.
There is simply no evidence to suggest that Mr McCreery was suffering any psychiatric or psychological problems arising from his earlier life in Northern Ireland whilst he was in Australia. Whatever the effects of those incidents in Northern Ireland were, on his own evidence, they had abated by the time of the first incident. If there was some residual vulnerability there is no evidence to show that problems had resurfaced after the first incident or indeed after the attempted abduction of his son.
I am also satisfied that there were no such issues up to the time of the second incident. Mr McCreery may have been more wary in his occupation after the first incident but there is nothing to suggest that his life and mental well‑being was not stable up to the time of the second incident.
Given those findings I cannot find that Mr McCreery's past history in Northern Ireland has had a major part to play in his current condition. I accept that it had rendered him more vulnerable to psychiatric or psychological injury in the future but I am unable to find, on the evidence, that it was causative of his current symptoms. He had a weakness and the second incident has thus taken its toll.
I accept the categorisation of this as submitted by counsel for Mr McCreery that the approach to be taken is as set out in SGIC v Oakley.
I now return to the issues arising from s 41 of the Act which provides:
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor —
(a)must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim’s injury or death; and
(b)may, if he or she thinks it is just to do so —
(i)refuse to make a compensation award because of that contribution; or
(ii)reduce the amount that the assessor would otherwise have awarded.
In McDavitt at [15] – 54], Davis DCJ sets out in detail the general principles relevant to the assessment of compensation in these matters. I need not repeat all of what is said there but as part of the discussion relating to distinguishing between the degree of injury caused by the commission of the compensable event and the degree of injury caused by a non‑compensable event, her Honour considered the meaning and effect of s 41 of the Act. In some considerable detail, her Honour explored the competing authorities as to how to take into account and assess the contribution of pre‑existing and subsequent injuries or medical conditions in the application for criminal injuries – one line to the effect that they must be taken into account in accordance with s 41 of the Act and, the other applying common law principles.
Her Honour considered the meaning of the words 'condition' and 'disposition' in the section, and came to the view ([49]) that the assessor must have regard to the medical condition or disposition which has contributed to the victim's injury.
With respect I adopt what her Honour has said and the approach taken by her with the constraints that she opines at [53] where she said:
In considering whether it is just either to refuse to make an award or reduce the amount of the award pursuant to s 41(b), some guidance should be taken from common law principles. For example, it would not be just to refuse or reduce an award of compensation if the offence has caused a previously asymptomatic pre-existing medical condition to become symptomatic, or aggravated the symptoms suffered by a victim from a pre‑existing condition. On the other hand, the assessor may exercise the discretion in s 41(b) if he or she is satisfied, as a matter of fact, that not all of the symptoms suffered by a victim are as a result of the criminal conduct of the respondent to a criminal injuries compensation claim. Even if it is not possible to 'disentangle' the symptoms of a non‑compensable condition from the injury suffered by a victim as a result of the offence, if the non-compensable condition has contributed to the injury, or had a propensity to do so, the applicant is not necessarily entitled to full compensation.
In the present case I have found that if Mr McCreery's past is such that he has suffered psychiatric or psychological problems and he was vulnerable, he was asymptomatic at the time of the second incident. It is not a case of aggravating a pre‑existing symptom. In my view this is a new injury superimposed upon a weakness that he had.
I am not satisfied that Mr McCreery's current symptoms are a manifestation of his pre‑emigration psychiatric or psychological state and therefore is not a condition or disposition that contributed directly or indirectly to his injury. In those circumstances it is not appropriate to refuse to make or reduce the amount of compensation and under the section.
If I am wrong in that assessment and that the condition or disposition does contribute, albeit indirectly to Mr McCreery's injury, in my view it would not be just to deny or reduce compensation.
Mr McCreery, had, as I have already found, put the past behind him and had a successful and happy life in Australia since arriving in 2007 and before the occurrence of the second incident in July 2010. There is no evidence of any continuing psychiatric or psychological problems in the interim. That being the case the second incident should be seen to be the effective cause of his current problems and his past of such little consequence that to invoke s 41 would be inappropriate.
It appears that Mr McCreery has not worked since the second incident. He made a snap decision to return to Ireland – a decision that he now regrets. Had he not done so, it is reasonable to assume that he would have been entitled to workers' compensation benefits in respect of the second incident.
I have no evidence before me as to the state of the labour market in Northern Ireland since his return. Further, I have no evidence of rehabilitation available to him in Northern Ireland to assist him back into the workforce such as might have been available to him in Western Australia.
In the circumstances I am not satisfied that such loss of earnings as Mr McCreery has suffered is as a direct consequence of the commission of the offence in the second incident (s 6(2)(c) of the Act). This is particularly so having regard to the requirements to take account of insurance payments under s 42 of the Act.
I now turn to the measure of compensation for each incident.
As to the first incident, the assessor's award was, in my view, within the bounds of sound discretionary judgment. The injury was a minor physical injury and Mr McCreery returned to work at full capacity after a few weeks. There was no loss of pay.
Subject to what follows later I would not interfere with that assessment.
As to the second incident, the assessor did not have the benefit of the further material now supplied to me.
It is clear that Mr McCreery did suffer a significant psychiatric or psychological sequelae to the incident when he was spat upon and it has had ongoing effects upon him. This must be seen against the background of him having established a happy contented life in Australia but also against the background of making the decision, which he accepts to be wrong, of returning to Northern Ireland.
Taking all factors into account I am of the view that an appropriate award in respect of his injury would be $35,000.
A claim for loss of earning capacity is made in a global sum of $50,000 to cover both incidents. It is fair to say that that sum is selected because, on the assessment made by counsel for Mr McCreery of general damages, such an award for loss of earning capacity would be academic given the jurisdictional limit of $75,000 in respect of each claim.
I have made no allowance for economic loss in respect of the first incident. In my view, having regard to the matters I have referred to, and notwithstanding Mr McCreery's decision to return to Northern Ireland, it is appropriate to make an award for economic loss in respect of the second incident given the vagaries of any insurance claim for workers' compensation benefits. I note, in particular, the paucity of evidence of the effect of his condition and ability to work prior to seeing Dr Doherty.
I would award a global sum of $25,000 in this respect.
I make no allowance for future medical expenses for similar reasons.
I now come to the apportionment of the sum received by Mr McCreery by way of settlement of his claims in the sum of $21,623.20, again a matter not before the assessor.
Mr McCreery had issued a writ in this court against his employer for damages arising out of both incidents.
That claim and all workers' compensation claims were settled by the composite sum although $1,623.20 thereof was referrable to the medical expenses on the first incident.
Any apportionment by me would be arbitrary as the Deed of Release does not seek to apportion the amount paid. The sum of $1,623.20 is referrable to the first incident and I will apportion the remaining $20,000 in the ratio that the award I make for each incident bears to the total award ($67,000 – being $7,000 for the first incident and $60,000 for the second incident).
Accordingly, the apportion would be:
First incident: $20,000 x $7,000/$67,000 =
$ 2,089.55
Plus
$ 1,623.20
$ 3,712.75
Second incident $20,0000 x $60,000/$67,000 =
$17,910.45
Total
$21,623.20
Accordingly, the awards will be:
First incident
$ 7,371.00
Less apportioned settlement sum
$ 3,712.75
Net award
$ 3,668.25
Second incident: Compensation for injury
$35,000.00
Compensation for loss of earning capacity
$25,000.00
$60,000.00
Less apportioned settlement sum
$17,910.45
Adjusted award
$42,089.55
Conclusion
I would dismiss the appeal as it relates to the incident on 27 January 2008 and reduce the award to $3,668.25.
I would allow the appeal as to the incident on 1 July 2010 and award the sum of $42,089.55.
I award the total sum of $45,757.80 by way of compensation.
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