Nagel v Tahere - [2020] WADC 110

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   NAGEL -v- TAHERE [2020] WADC 110
CORAM:   GETHING DCJ
HEARD:   3 JUNE 2020
DELIVERED          :   13 AUGUST 2020
FILE NO/S:   APP 91 of 2019
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   KARL NICHOLAS NAGEL
Appellant
AND
JUSTIN ROSS TAHERE
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R GUTHRIE
File Number            :   CIC 3434 of 2017

Catchwords:

Criminal injuries compensation - Appeal - Extent to which an offender may rely on evidence going beyond the facts found in sentencing - Whether victim was committing a separate offence when the offence was committed - Whether the award of compensation should be reduced on account of the victim's behaviour

Legislation:

Criminal Injuries Compensation Act 2003 (WA), s 39, s 41, s 45

Result:

Appeal allowed and compensation re‑assessed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	In person
Amicus Curiae	:	Ms K Dias appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Not applicable
Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

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

A L D v N C D [2012] WADC 45
B v B [2004] WASC 6
B v W (1989) 6 SR (WA) 79
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Bennett v The State of Western Australia [2012] WASCA 70
Bodney v Assessor of Criminal Injuries Compensation [2000] WADC 214
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Bothma v Hildebrand [2019] WADC 92
Cahill v Smith [2015] WADC 148
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
G & N v R [2006] WADC 208; (2006) 48 SR (WA) 301
Gullelo v Halloran [2008] WADC 145
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hinchcliffe v Hinchcliffe [2010] WADC 78
Houlahan v Pitchen [2009] WASCA 104
Lyle v Soc [2009] WASCA 3
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
McDavitt v McDavitt [No 2] [2013] WADC 198
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Re CME [2018] WADC 69
Re Richardson [2009] WADC 93
Re Tilbury [2010] WADC 46
Re Utting [2011] WADC 10
RJE v Bandy (Unreported, WASC, Library No 1365; 31 May 1974)
Robertson v Baker [2014] WADC 14
Robinson [2017] WADC 18
S v Neumann (1995) 14 WAR 452
T v Curnuck [2004] WASC 139
TAW v NJS [2011] WADC 187
Taylor v Paindelli [2016] WADC 160
Townend v McAlindon [2017] WADC 63
Underwood v Underwood [2018] WADC 13
Winiarczyk v Tsirigotis [2011] WASCA 97

GETHING DCJ:

Overview

On 7 December 2017 Karl Nagel (the Appellant) was convicted of the offence of unlawful assault against Justin Tahere (the Respondent) as a consequence of an incident which occurred at Fremantle on 21 April 2017 (Assault). He was fined $700.[1]
[1] Matter Book (MB) 63; Magistrates Court transcript (MC ts) 6, 7 December 2017.
By application received on 18 December 2017 the Respondent applied for compensation pursuant to Criminal Injuries Compensation Act 2003 (CICA) s 12(1) (Application) in relation to the Assault.
On 7 November 2019 an assessor of Criminal Injuries Compensation (Assessor) determined the Application. The Assessor assessed compensation in the amount of $7,500, but pursuant to CICA s 45(1)(b) ordered that only $5,000 may be the subject of proceedings under pt 6 of the Act (Decision). No party requested the Assessor to provide written reasons pursuant to CICA s 27, and none were prepared.
The Appellant has appealed the Decision to the District Court. The central issue for determination is the extent to which, if any, the amount of compensation awarded to the Respondent should be reduced on account of the Respondent's behaviour.
For the reasons which follow, having considered the evidence afresh, I consider that the Respondent is entitled to compensation in the amount of $5,000.

Factual background

According to the statement of material facts, at about 10.00 am on Friday 21 April 2017 the Appellant and a juvenile associate attended the home address of the Respondent at a specified address on High Street, Fremantle. The Appellant and the juvenile knocked on the Respondent's front door and requested that the Respondent hand over to them some medication belonging to the father of the juvenile. The Appellant declined their request and asked them to leave and advised that he would call Police if they remained. The juvenile attempted to push her way into the unit and was pushed back by the Respondent. As this was occurring the Appellant punched the Respondent with a clenched fist one time to the lower lip causing it to split and bleed, being the Assault. The Respondent then closed the front door and called Police. Police attended a short time later and located the Appellant and the juvenile out the front of the unit in the car park area. Police arrested the Appellant and conveyed him to the Cockburn Police Station where he participated in an electronic record of interview. The Appellant was charged with the offence and released on bail.[2]
[2] MB 93, MB 100.
From the bail papers, it is apparent that the Appellant was initially charged with an assault occasioning bodily harm.[3] The matter was listed for trial on 7 December 2017. However, prior to the trial there was some negotiations, the net result of which was that the prosecution amended the charge to a common assault to which the Appellant pleaded guilty.[4]
[3] MB 98.
[4] MC ts 2, 7 December 2017.
At the hearing before me on 3 June 2020 there was a level of uncertainty as to the precise facts on which the Appellant was sentenced. To resolve this uncertainty, I arranged for a transcript to be prepared of the hearing on 7 December 2017. Once received, and as foreshadowed at the hearing on 3 June 2020, my staff provided a copy to the parties, each of whom were given a short period of time to provide written submissions. Only the solicitors for the Chief Executive Officer of the Department of Justice (CEO) provided submissions.
The transcript of the hearing on 17 December 2017 reveals that the facts on which the Appellant was sentenced were as follows:[5]
So it was about 10 am on 21 April this year. The accused and a juvenile associate attended the home address of the victim in Fremantle. They were there because they were trying to get some medication and other stuff that belonged to the father of the juvenile. The victim didn't wish to provide these items to the accused. And he has asked them to leave. He has come outside. He has got into a scuffle with the female juvenile. And the accused has then punched the victim with a clenched fist to the lower lip.
[5] MC ts 3, 7 December 2017.

Application for compensation

In the Application, the Respondent annexed a statement dated 15 December 2017 in which he outlines the injuries which he suffered. As a result of the Assault he suffered a laceration to his lower lip. As at 15 December 2017, he was still experiencing headaches and neck pain. He also complained of psychological injuries. He described feeling anxious in crowded places, always looking over his back expecting an attack, feeling irritable and frustrated and suffering from panic attacks and paranoia. He had to move to Queensland for five months after the attack. He says that his symptoms impacted his ability to maintain employment as a glazier.[6]
[6] MB 11 - MB 13.
In the materials before the court there are photographs of the Respondent's face showing his injury.[7]
[7] MB 84 - MB 85.
The Respondent included a number of medical reports with the Application. The first is a copy of his general practitioner records.[8] This refers to an assault on 21 March 2017 (Earlier Assault), but not in specific terms to the assault on 21 April 2017.
[8] MB 49 - MB 51.
The Earlier Assault arose in the context of a loan made by the Respondent to a friend of his, Rodney Burt. Mr Burt stopped making the agreed repayments, and the Respondent had tried to contact Mr Burt on occasions to ask him why the payments were stopped. On the day in question, he received a message from Mr Burt's daughter telling him to come to Mr Burt's address in Beaconsfield. As he approached Mr Burt's address, and while still in his car, he was hit in the face by a male friend of Mr Burt's daughter. He drove a short distance, then got out of the car. The male and another male then hit the Respondent. His next memory is waking up in Fiona Stanley Hospital.[9]
[9] MB 36.
The second is a referral dated 15 May 2017 from his general practitioner to Ferns House for counselling for post-traumatic stress. This is pursuant to a GP mental health care plan.[10] However, this appears to be related to the Earlier Assault.[11]
[10] MB 52 - MB 53.
[11] MB 47 - MB 48.
The third is a report dated 6 December 2017 from Dr Lawrence Blumberg, a psychiatrist. This report was prepared in connection with both the Assault and the Earlier Assault. When assessed on 1 December 2017, the Respondent reported to Dr Blumberg having disturbed sleep due to pain in his neck, shoulders and back. He described an escalation in anxiety symptoms since the assaults, along with a fear to being assaulted again, as well as experiencing occasional panic attacks in vulnerable situations.[12] Dr Blumberg diagnosed the Respondent as having an Adjustment Disorder:[13]
Mr Tahere has developed emotional and behavioural symptoms in response to these two assault incidents. He described symptoms of being irritable, hypervigilant, on edge, angry and frustrated. He also described periods of low moods and heightened anxiety. His predominant presenting symptoms at today's review were irritability and anxiety symptomatology. These symptoms have been clinically significant as evidenced by marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and the cultural factors that might influence symptoms, severity and presentation, and have impacted on his occupational, social and general areas of functioning. In my opinion, Mr Tahere's symptoms do not meet the criteria for a Major Depressive Disorder, Post-Traumatic Stress Disorder or an exacerbation of a pre‑existing mental disorder.
[12] MB 34 - MB 46.
[13] MB 26.
Dr Blumberg opined that the Respondent's condition was causally related to both the Assault and the Earlier Assault. However, he was able to opine that the Assault (that is the incident on 21 April 2017) 'exacerbated his anxiety symptomatology and avoidance behaviour'. He assigned only a 10% contribution from Assault, with the remaining 90% attributable to the Earlier Assault.[14]
[14] MB 43 - MB 44.
Dr Blumberg concluded that the Respondent's symptoms could be addressed by psychological intervention, recommending six to eight sessions. He was fit for work, did not suffer any permanent psychiatric disability and had an optimistic prognosis.[15]
[15] MB 44 - MB 45.
The Chief Assessor (though a case manager) wrote to the Appellant by letter dated 28 December 2018 advising him of the Application and inviting him to provide a written submission setting out anything he wished the assessor to take into account.
In response, the Appellant wrote a letter dated 16 January 2019 to the Chief Assessor. In it he says that at the time of the incident he was acting in defence of a younger female, who was being threatened by the Respondent, who was being aggressive. The Appellant says that he hit the Respondent once to free the female and then retreated to wait for police to arrive.[16]
[16] MB 16.

The Decision

As I have already noted, in the Decision, the Assessor assessed compensation in the amount of $7,500, but pursuant to CICA s 45(1)(b) ordered that only $5,000 may be the subject of proceedings under pt 6 of the Act. CICA s 45(1)(b) permits an assessor to limit the amount that may be recovered. Specifically:
45.Order about reimbursement order may be made
(1)When or after making a compensation award in respect of an application made under section 12, an assessor who thinks it is just to do so may make -
(a)an order barring proceedings under Part 6 in respect of the award; or
(b)an order that only a part of the award (specified in the order) may be the subject of proceedings under Part 6.
(2)At any time, on an application by the CEO, an assessor may cancel an order made under subsection (1).
CICA pt 6 sets out the regime by which the CEO may recover amounts paid by way of compensation from an offender. That regime commences with the CEO giving an offender a written notice requesting payment pursuant to CICA s 49. Whether or not this notice is given, the CEO may apply to the Chief Assessor for a compensation order against the offender, subject to any order made pursuant to CICA s 45(1).[17] There is then a process by which the Chief Assessor convenes a hearing to determine whether a compensation reimbursement order should be made.[18] In considering whether to make a compensation reimbursement order, there are a number of matters which the assessor must have regard to:[19]
[17] CICA s 50.
[18] CICA s 51, s 52.
[19] CICA s 52(2).
(2) In deciding whether to make a compensation reimbursement order and the amount to be paid under the order an assessor must have regard to the following -
(a) the extent to which the offender is responsible for the Respondent's injury or death;
(b) whether the behaviour of the Respondent at the time of the offence in any way precipitated or provoked the offence;
(c) whether any behaviour, condition, attitude, or disposition of the Respondent contributed, directly or indirectly, to the Respondent's injury or death;
(d) the offender's means to satisfy any such order having regard to -
(i)the offender's income, assets and liabilities; and
(ii)the offender's current and prospective employment;
(e)the extent to which the offender is likely to be able to satisfy any such order within a reasonable time.
The CEO has not issued a notice to the Respondent pursuant to CICA s 49. Nor has the CEO applied for a compensation reimbursement order against the Respondent pursuant to CICA s 50.

District Court Appeal

By Appeal Notice filed 27 November 2019, the Appellant appealed the Decision to the District Court (Appeal). The appeal was commenced within 21 days after the date of the Decision, as required by CICA s 55(3). The sole ground of appeal identified was that the Respondent had provoked the offences, with references to CICA s 52(b), s 52(c) and s 52(d).
On 30 January 2020, the CEO filed a memorandum of appearance to appear as amicus curiae.
On 26 May 2020 the Respondent filed a Notice of Respondent's Intention in which he stated that he intended to take part in the Appeal. In it, he said that he would argue in the Appeal that the Decision should be upheld on the grounds relied on by the Assessor and on the additional ground that the Respondent was charged with assault.
In hearing this appeal, the court 'must decide the application to which the Decision relates afresh, without being fettered by the Assessor's decision'.[20] The appeal is a hearing de novo.[21] I am to treat the Application as if it came before the court for the first time, save that the Appellant has the right as well as the obligation to open the appeal.[22] The Appellant does not have to demonstrate an error on the part of the Assessor in order to succeed.[23]
[20] CICA s 56(1).
[21] Underwood v Underwood [2018] WADC 13 [19] (Gething DCJ); Robinson [2017] WADC 18 [7] (Troy DCJ); Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude).
[22] Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcom CJ).
[23] Underwood [19]; Gullelo [5].
The court must determine the appeal 'solely on the evidence and information that was in the possession of the Assessor or may receive further evidence and information'.[24] On 11 February 2020, the Appellant filed an affidavit containing additional evidence which he requested the District Court to consider in the Appeal (Additional Evidence). I address the issue of whether the Additional Evidence should be received below.
[24] CICA s 56(1).
It is open to the court to confirm, vary or reverse the Assessor's Decision, either in whole or in part.[25] As the Appeal is a fresh hearing, it is necessary for me to determine all matters relating to the Application. So it is open to the court to increase or decrease the award of compensation even if no cross-appeal is filed.[26]
[25] CICA s 56(2)(b).
[26] Re CME [2018] WADC 69 [11] (Bowden DCJ).
As noted, the Appellant referred to CICA s 52(2)(b), s 52(2)(c) and s 52(2)(d) in the grounds of appeal. As set out above ([21]), these paragraphs allow the amount to be recovered from the Appellant to be reduced. However, they do not impact on the amount paid to the Respondent.
An order pursuant to CICA s 45(1)(b) is not a decision 'to make or refuse to make a compensation award … [or] as to the amount of a compensation award'.[27] So it is not open to the beneficiary of such a barring order (in this case the Appellant) to appeal solely based on the order made pursuant to CICA s 45(1).[28] The amount received by the claimant for compensation (in this case the Respondent) is not affected by the order pursuant to CICA s 45(1), so there is no justification for the claimant to have a right to appeal from this aspect of the decision to award compensation. For completeness sake, I add that should a compensation reimbursement order be made pursuant to CICA s 52, there is a separate right of appeal.[29] No such order has been made yet against the Appellant. However, once there is an appeal the powers given to the appellate court include the power to 'make any order that an assessor could make under' the CICA. This would include an order pursuant to CICA s 45(1). This is a common sense outcome. If an award of compensation is varied in the appeal the appropriateness of an order pursuant to CICA s 45(1) must be reconsidered.[30]
[27] CICA s 55(1).
[28] Taylor v Paindelli [2016] WADC 160 [2] (McCann DCJ).
[29] CICA s 55(2).
[30] See for example Bothma v Hildebrand [2019] WADC 92 [62] (Gething DCJ).
In the hearing before me, the Appellant accepted that he is essentially contending that the Respondent is not entitled to any compensation due to the Respondent's role in the Assault. I have determined the Appeal on that basis.
Self-defence[31] and provocation[32] are both defences to the offence of unlawful assault pursuant to Criminal Code s 313 which the Appellant pleaded guilty to and was convicted of. The Appellant's plea includes an acceptance that these defences do not apply.[33] So there is no basis for the Appellant to contend that the Respondent is not entitled to compensation pursuant to CICA s 12(1) on the basis that there is no proven offence.
[31] Criminal Code s 248.
[32] Criminal Code s 246.
[33] Bennett v The State of Western Australia [2012] WASCA 70 [110] (Buss JA); Underwood [53], [58].
In this context, five issues arise for determination:
•Should the Additional Evidence be received?
•What quantum of compensation is the Respondent entitled to?
•Is the Respondent disentitled to compensation on the ground that he was committing an offence when the Assault occurred?
•Should the quantum of compensation be reduced on account of the Respondent's conduct?
•What final orders are appropriate?

Should the court receive the Additional Evidence?

The court has the power to receive the Additional Evidence.[34] There is no requirement for a party to file an application pursuant to District Court Rules 2005 (WA) r 51 as the power to receive the evidence is in CICA s 56(1).[35]
[34] CICA s 56(1).
[35] Underwood [36]; Cahill v Smith [2015] WADC 148 [8] (Wager DCJ).

As the appeal is a fresh hearing, further evidence should be admitted unless there is some reason why it would be unjust to do so, especially given the beneficial purpose of the CICA and the informal nature of a hearing before an assessor.[36]
[36] Underwood [37]; TAW v NJS [2011] WADC 187 [17] (Bowden DCJ); Hinchcliffe v Hinchcliffe [2010] WADC 78 [9] (Stevenson DCJ); Re Tilbury [2010] WADC 46 [3] (Martino DCJ); Taylor v Paindelli [7].
There are four parts to the Additional Evidence.
The first is a letter from one Tammy O'Neil dated 7 December 2019. In it, Ms O'Neil sets out that she had been approached by the Respondent and offered money to provide a statement favourable to the Respondent. However, the statement is not in relation to the Assault. The letter has no relevance to the matters the subject of this Appeal. I decline to receive this letter in the Appeal.
The second is a letter from Ms O'Neil dated 2 February 2020. In it Ms O'Neil tells me that it would be a conflict of interest if a lawyer named James represented the Respondent. The Respondent is not represented in the Appeal. This letter has no relevance to the Appeal. I decline to receive this letter in the Appeal.
The third is a letter dated 24 December 2019 from a Dr Roger Paterson who appears to be the Appellant's psychiatrist. In it Dr Paterson tells me that the Appellant suffers from ADHD, that he has been treating the Appellant for this condition for several years and that it impairs his focus, efficiency and impulse control. He opines that the Appellant's condition may well have been a factor in the court proceedings 'which are coming up shortly'. Dr Paterson also tells me that the Appellant is on medication and seems to be taking it consistently, which should help control his ADHD symptoms. However, the Appellant's medical condition is not a material consideration for assessing the award of compensation payable to the Respondent. I decline to receive the letter from Dr Paterson.
The fourth is an undated letter from the Appellant. In it he describes the Assault from his perspective. He says that after he knocked on the door of the Respondent's house without answer, he went next door to see if the neighbour knew whether the Respondent was at home. While there, he heard the teenage girl he was with cry for help. He saw her being held by the neck by the Respondent with a spear gun. He went to help her get away. It was in this context that he punched the Respondent. He ends the letter by saying that he was acting in self‑defence.
The issue then arises as to the extent to which, if any, an offender may adduce evidence going beyond the facts on which he was convicted. I addressed this issue in detail in Underwood,[37] coming to the following conclusions:[38]
First, in a CICA appeal, the offender cannot re-litigate the facts which led to the proved offence; it is not a backdoor means by which to appeal the conviction.
Second, a plea of guilty to a criminal charge necessarily involves an admission by the offender of material facts comprising the elements of the offence. Proof of the fact of the conviction may also constitute evidence of those material facts.
Third, a plea of guilty necessarily means that all relevant defences have been conceded as not applying. This would preclude the offender from adducing evidence in criminal injuries compensation assessment, including for the purposes of CICA s 41, to the effect that he or she had a defence to the proved offence.
Fourth, a claimant for criminal injuries compensation cannot re‑litigate the facts which led to the proved offence. This is for two reasons. The first is that the basis of the claimant's right to claim criminal injuries compensation is 'the commission of a proved offence': CICA s 12(1). The evidence of a 'proved offence' must reflect the second and third principles. The second reason is that if the claimant was able to re-litigate the facts which led to the proved offence by introducing further evidence, procedural fairness would dictate that the offender would be entitled to introduce contradictory evidence. This would lead to the re-litigation of the facts which led to the proved offence.
Fifth, where there is an issue as to the precise identification of the facts evidenced by the conviction following a plea of guilty, the 'only reliable guide to that issue' will 'usually be' the facts admitted for the purposes of sentence… This will ordinarily be able to be discerned from the transcript of the sentencing hearing.
Sixth, a plea of guilty does not constitute an admission of all of the facts stated in the State's witness statements, or otherwise contained in the brief. On the other hand, nor does a plea of guilty constitute a rejection of the facts stated in the State's witness statements, or otherwise contained in the brief, that do not comprise the essential facts necessary to constitute the elements of the offence. These other facts or circumstances are not incontrovertible.
Seventh, both a claimant and an offender may introduce evidence and other material in relation to the facts and circumstances not falling within the second and third principles. The CICA contains procedures to enable an assessor to resolve a factual conflict, including the power to conduct a hearing: CICA s 24.
[37] Underwood [43] - [63].
[38] Underwood [56] - [62]. Bothma v Hildebrand [35] (Gething DCJ).
Applying these principles to the present Appeal, the appeal is to be determined on the basis that the facts on which the Appellant was sentenced were admitted (which I have set out at [9]) and cannot be re‑litigated in this appeal.[39] However, it is open to the Appellant (and the Respondent) to introduce more contextual information which is not inconsistent with the material facts comprising the elements of the offence, including that that all relevant defences have been conceded as not applying. With this caveat, I receive the Appellant's undated letter, and consider it in this Appeal.
[39] Bothma [37].

What quantum of compensation is the Respondent entitled to?

'An assessor must not make a compensation award in respect of a compensation application made under this section 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'.[40] 'Satisfied' means 'satisfied on the balance of probabilities'.[41] Injury relevantly means 'bodily harm [and] mental and nervous shock'.[42] The words 'as a consequence of' require a causal relationship or connection.[43] Whether that causal relationship exists is 'essentially a question of fact, to be resolved as a matter of common sense'.[44] It is sufficient that, as a matter of ordinary common sense and experience, the assault should be regarded as having 'materially contributed' to the harm, in the sense that the contribution was not negligible.[45]
[40] CICA s 12(3).
[41] CICA s 3.
[42] CICA s 3.
[43] Underwood [87]; Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673 (Mason & Wilson JJ); Townend v McAlindon [2017] WADC 63 [36] (Sleight CJDC); T v Curnuck [2004] WASC 139 [27] (Barker J); B v B [2004] WASC 6 [14] (Barker J).
[44] Underwood [87]; Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 - 413 (Mason CJ, Deane & Toohey JJ); Fagan (673); Townend [35]; A L D v N C D [2012] WADC 45 [47] (Commissioner Gething).
[45] Underwood [87]; Bonnington Castings Ltd v Wardlaw [1956] AC 613, 620 (Lord Reid); March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515 (Mason CJ), 522 (Deane J); Lyle v Soc [2009] WASCA 3 [40] (Steytler P); ALD [47].
The injuries claimed by the Respondent to have be incurred as a consequence of the Assault are two-fold: physical injury (cut lip) and psychological.
The cut lip was bodily harm suffered as a direct consequence of the Assault.
Dr Blumberg's report is to the effect that the Respondent suffered an Adjustment Disorder, but that his symptoms do not meet the criteria for a Major Depressive Disorder, Post-Traumatic Stress Disorder or an exacerbation of a pre-existing mental disorder. The issue is complicated by the fact that it was in part caused by the Earlier Assault.
The next issue which arises is whether an Adjustment Disorder is an injury for the purposes of the CICA. The phrase 'mental and nervous shock' in CICA s 3 contemplates the impact of the offence on the mind or nervous system.[46] It refers to 'mental or emotional harm as opposed to physical injury or bodily harm'.[47] It must be of an enduring character so as to amount to an injury, as opposed to a mere emotional reaction.[48] For example, mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress and disgust are seen as compensable.[49]
[46] Bothma [42]; Underwood [83]; Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) 5 (Burt J).
[47] Bothma [42]; Underwood [83]; S v Neumann (1995) 14 WAR 452, 461 (Murray J).
[48] Bothma [42]; Underwood [83]; Townend [46].
[49] Bothma [42]; Underwood [83].
I am satisfied on the balance of probabilities that the Adjustment Disorder suffered by the Respondent, as described in Dr Blumberg's report, falls within the definition of 'mental and nervous shock' in CICA s 3, and thus the definition of 'injury' in the CICA.
The next issue is the significance of the Earlier Assault which Dr Blumberg considers was 90% responsible for the Respondent's Adjustment Disorder. However, the 'fact that other unconnected events may also have had some relationship to the occurrence is not material if the criminal act was a cause, even if not the sole cause'.[50] If it is possible to do so on the evidence, the assessor is required to attempt to distinguish between the degree of the injury caused by the commission of the compensable offence (or offences) and the degree of the injury caused by the non-compensable offence (or offences).[51] Here it is possible based on Dr Blumberg's opinion. I find that the Respondent's Adjustment Disorder is only 10% based on the Assault.
[50] Fagan (673); Underwood [88]; Townend [35].
[51] Underwood [89]; Davitt v McDavitt [No 2] [2013] WADC 198 [23] (Davis DCJ).
As to quantum, the general power of an assessor is contained in CICA s 30. It provides that 'on application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered'.[52]
[52] CICA s 30(1).
The correct approach to adopt in assessing the amount of compensation under the CICA is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the CICA, and to the jurisdictional limit of the CICA.[53]
[53] Bothma [40]; Underwood [113]; M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992) (Scott J); RJE v Bandy (Unreported, WASC, Library No 1365; 31 May 1974) 3 (Burt J).
The amount awarded is to be assessed solely on the basis of the injury suffered by the Respondent. The amount is not to be fixed as punishment for the Appellant as offender or as an expression of sympathy for the Respondent as victim.[54]
[54] Underwood [115]; B v W (1989) 6 SR (WA) 79, 89 (Williams DCJ); G & N v R [2006] WADC 208 [8]; (2006) 48 SR (WA) 301 (Goetze DCJ).
The amount of damages for non-economic loss must be fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused, having regard to current general ideas of fairness and moderation.[55] The amount must be proportionate to the situation of the particular plaintiff.[56]
[55] Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ); Houlahan v Pitchen [2009] WASCA 104 [107] (Newnes JA with whom Pullin & Miller JJA agreed); Winiarczyk v Tsirigotis [2011] WASCA 97 [71] (Judgment of the Court).
[56] Houlahan [107]; Winiarczyk [71].
As I have noted, Dr Blumberg concluded that the Respondent's symptoms could be addressed by psychological intervention, recommending six to eight sessions. He was fit for work, did not suffer any permanent psychiatric disability and had an optimistic prognosis.[57]
[57] MB 44 - MB 45.
In my view, an award of $2,500 by way of general damages is fair, reasonable and proportionate compensation for the injuries received by the plaintiff and the disabilities caused, having regard to current general ideas of fairness and moderation.
The Respondent has not been able to afford the treatment suggested by Dr Blumberg.[58] I am satisfied that it is appropriate to make some allowance for future treatment expenses. I am satisfied that these are expenses which 'are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim', within the definition of 'loss' in CICA s 6.
[58] MB 12.
I would also make some allowance for a contribution to the cost of Dr Blumberg's report, though not the entire cost as it also addresses the Earlier Assault.[59]
[59] CICA s 6(2)(a)(ii).
In the hearing before me, the Respondent also said that he had to have work done on his teeth as a consequence of the Assault. However, this was not included in the Application and there is no evidence to support this (for example, an invoice from a dentist). I do not make any allowance for this.
In the hearing, the Respondent also said that he had to pay $1,000 in airfares to fly from Queensland to Perth for the trial in relation to the Assault. There is no evidence to support this claim (for example, air fare receipts). Nor is it apparent to me that a loss of this kind is within the relevant definition in CICA s 6. I do not make any allowance for this.
In my view, an award of $2,500 for future treatment costs and report fees is just. Of this, $2,000 is for future treatment costs, and is thus subject to CICA s 48:
48.Future treatment expenses, payment of
(1)If a compensation award made in favour of a victim who has suffered injury includes an amount in respect of expenses of the kind referred to in section 6(2)(b), the amount is not to be paid unless -
(a)the Chief Assessor is given evidence for the purposes of paragraph (b) by or on behalf of the victim; and
(b)an assessor is satisfied that the expenses have been reasonably incurred by or on behalf of the victim for treatment that the victim required as a direct consequence of the injury suffered by the victim in consequence of the commission of the offence to which the award relates; and
(c)the Chief Assessor is given a request for payment of the amount in accordance with subsection (2).
(2)A request referred to in subsection (1)(c) must be given to the Chief Assessor…within 10 years after the date of the award.
I assess the compensation to which the Respondent is entitled at $5,000.

Is the Respondent disentitled to compensation on the ground that he was committing an offence when the Assault occurred?

By CICA s 39(1) an applicant is disentitled to compensation if he was engaged in criminal conduct at the time he was injured. Specifically:
39.No award if victim was engaged in criminal conduct
(1)If an assessor is satisfied -
(a)that a person was injured as a consequence of the commission of an offence; and
(b)that the injury was suffered when the person was committing a separate offence,
the assessor must not make a compensation award in favour of the person.
The essence of the Appellant's position is that the Assault occurred in the context that:
(a)the Respondent held the female juvenile associate by the neck and held a spear gun to her;
(b)the Appellant punched the Respondent to help the female juvenile associate get away from the Respondent; and
(c)the Appellant acted in self-defence.
However, this version of events is inconsistent with the material facts comprising the offence as it asserts self-defence, something which the Appellant, by his plea, is taken to have accepted did not apply. The Magistrate expressly confirmed with the Appellant that neither provocation nor self-defence applied. The Appellant accepted that he had done the wrong thing.[60] The defences of self-defence and provocation cannot be re-litigated in this appeal.
[60] MC ts 5, 7 December 2017.
Moreover, even if the Respondent was using some force to stop the Appellant and the female juvenile from entering his house, he was entitled to do so. This is because, as the occupant of this house, he was lawfully entitled to use 'any force or do anything else that the occupant believes, on reasonable grounds, to be necessary … to prevent a home invader from wrongfully entering the dwelling'.[61] So he would not be committing the offence of assault by using some force to prevent the female juvenile from entering his house.
[61] Criminal Code s 244.
I am not satisfied on the balance of probabilities that the Respondent was engaging in a separate offence at the time the Assault was committed.

Should the quantum of compensation payable by the Appellant be reduced on account of the Respondent's conduct?

By CICA s 41 the court may either decline to make an award of compensation, or to reduce it, on account of the behaviour of the victim, in this case the Respondent. Specifically:
41.Behaviour etc. of victim to be considered
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.
Whether or not the respondent's behaviour, condition, attitude, or disposition will preclude or reduce any award of compensation is a matter of fact and degree to be determined in light of the particular circumstances:[62] In Richardson Yeats DCJ stated of CICA s 41:[63]
The use of words 'if he or she thinks it is just to do so', requires the Court to consider all the circumstances and to make a judgment ensuring that justice is done in this case. It is a discretion and must be exercised according to law, taking account of the purpose of the legislation and the requirements of the Act.
[62] Underwood [139]; Re Richardson [2009] WADC 93 [81] (Yeats DCJ); Bodney v Assessor of Criminal Injuries Compensation [2000] WADC 214 [27] - [29] (Groves DCJ).
[63] Re Richardson [81].
After the Appellant pleaded guilty to common assault, he explained to Magistrate Malone that the Respondent had:[64]
… opened the door with a spear gun in his right hand, and he was pushing [the female juvenile associate] with his left hand. So my natural reaction was, 'What the hell?' Like she's a juvenile, and I just ran out there, punched him and then he obviously let go …
This is somewhat inconsistent with the description of a scuffle referred to in the statement of material facts.
[64] MC ts 4.
I am not satisfied on the balance of probabilities that it is just to reduce the award of compensation on account of the behaviour of the Respondent. The actions of the Respondent were not sufficient to justify the Appellant acting either by way of self‑defence or provocation. The punch to the face was an assault which had a real risk of serious injury. Fortunately that did not occur in the present case. A response of that severity was not in any way justified by the actions of the Respondent for the purposes of CICA s 41.

What final orders are appropriate?

There remains the issue of whether the amount able to be recovered by the CEO from the Appellant should be reduced pursuant to CICA s 45. This power is able to be exercised if the assessor 'thinks it is just to do so'.[65] In my view it is just to limit recovery to $3,000, that is, to exclude the future treatment cost component. In this way the Appellant will have some finality as to the amount of his liability.
[65] CICA s 45(1).
The appropriate final orders are that:
1.The Respondent is entitled to an award of compensation in the amount of $5,000, of which $2,000 is subject to CICA s 48.
2.Pursuant to CICA s 45(1)(b) only $3,000 may be the subject of proceedings under CICA pt 6.
3.There be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
Associate
13 AUGUST 2020