Re AB - [2023] WADC 28

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE AB [2023] WADC 28
CORAM:   STAUDE DCJ
HEARD:   25 NOVEMBER & 21 DECEMBER 2022
DELIVERED          :   17 MARCH 2023
FILE NO/S:   APP 91 of 2021
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: AB
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   MS C HOLYOAK-ROBERTS
File Number            :   CIC 562 of 2018

Catchwords:

Appeal - Criminal injuries compensation - Claim for compensation for alleged offences, including two specific sexual assaults and other non-specific sexual abuse

Legislation:

Children and Community Services Act 2004 (WA)
Criminal Injuries Compensation Act 2003 (WA)
Evidence Act 1906 (WA)

Result:

Appeal allowed
Compensation awarded

Representation:

Counsel:

Appellant	:	Mr N F Morrissey
Amicus Curiae	:	Ms L J Italiano appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	CLP Legal Pty Ltd
Amicus Curiae	:	State Solicitor for Western Australia

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

Bothma v Hildebrand [2019] WADC 92
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
'I' [2022] WACIC 10
Martin v Martin [2015] WADC 138
Re ATS [2017] WADC 92
Re Jackamarra [2014] WADC 9
S v Neumann (1995) 14 WAR 452
VMH by her next friend The Public Trustee v JAB [2014] WADC 47

STAUDE DCJ:

Introduction

This is an appeal pursuant to s 55 and s 56(1) of the Criminal Injuries Compensation Act 2003 (WA) from a decision of the chief assessor refusing an application for compensation for harm suffered as the result of a number of incidents of sexual assault allegedly committed against the appellant AB by her former partner, W. W was not a party to the appeal. The court heard from counsel for the chief executive officer of the Department of Justice as amicus curiae.

Claim for compensation

On 7 July 2017, AB made an application for criminal injuries compensation for alleged offences described as:
(a)emotional/verbal and physical/sexual abuse by [W] between 1999 and 2015;
(b)sexual assault by [W] on 28 August 2015; and
(c)sexual assault by [W] on 7 October 2015.
Section 17 permits compensation to be awarded to a person who suffers injury as the consequence of the commission of an alleged offence. Section 3 defines an alleged offence to be a crime, misdemeanour or simple offence of which no person has been convicted.
Section 17(4)(a) provides that an award of compensation must not be made under that section unless the assessor is satisfied that, relevantly, the claimed injury and any claimed loss has occurred as a consequence of the commission of the alleged offence.
An alleged offence must be proved on the balance of probabilities. The strength of the evidence required to establish a fact on the balance of probabilities may vary according to the nature of what is sought to be proved. As Schoombee DCJ pointed out in Re Jackamarra,[1] it is a serious matter to make findings that a person has committed an offence, particularly where they have not been given the opportunity to refute the allegations. The seriousness of an allegation and the gravity of the consequences flowing from a particular finding are considerations that impact upon the evidence required to satisfy the civil standard of proof: Briginshaw v Briginshaw.[2]
[1] Re Jackamarra [2014] WADC 9 [75].
[2] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
Though I acknowledge the observations to the contrary effect expressed in Re ATS,[3] there are other decisions of this court that have held that the Briginshaw principle should be observed.[4] In my respectful view it should, at least as matter of practice. Although I am not bound by the rules of evidence (by virtue of s 18), as offences are alleged that have not been proved, I consider the evidence of AB should be scrutinised with care and caution and I should be persuaded of its truthfulness before acting upon it.
[3] Re ATS [2017] WADC 92 [31].
[4] VMHby her next friend The Public Trustee v JAB [2014] WADC 47 [46]; Re Jackamarra [73] - [74].

Nature of appeal

Pursuant to s 56(1), I heard the application afresh, without regard to the original decision or the reasons for it, making my own independent assessment of the evidence and information before the chief assessor and further evidence and information that I received at the appeal, being sworn viva voce evidence of AB on 21 December 2022 (heard pursuant to s 62A(2)) and a number of documents relating to the criminal injuries compensation claim of J who claimed compensation as a secondary victim of the offences alleged by AB and as a primary victim of other abuse by W.

Alleged offences

AB, now aged 46 years, was in a de facto spousal relationship with W from 1999, when she was aged 23 years, until late 2015. In the course of the relationship, she says she was subjected to sexual and other abuse on numerous occasions. This abuse included multiple acts of sexual penetration without consent in the form of penile - anal penetration. After the last two occasions on which this occurred, being on 28 August 2015 and 7 October 2015, AB separated from W and made a complaint to the police.
The complaint was made by telephone to the Sexual Assault Squad on 5 November 2015. On that occasion AB was referred to the Sexual Assault Resource Centre (SARC) and was given information about how she might apply for a family violence restraining order.
On 16 November 2015, however, AB informed the police that she did not wish to proceed with her complaint of sexual assault. At the request of the police, on 16 November 2015, she made what was described as a withdrawal statement. She did not recant her complaint, but simply confirmed that she did not wish to make a formal statement about W. The last occasion AB saw W was in March 2016.
On 26 July 2016 AB contacted the police and asked if an investigation into her earlier complaint could be reopened. An investigation followed in which AB made a statement dated 28 October 2016. In that statement she said she tried to leave W 11 months after the relationship commenced and on numerous subsequent occasions. When she did so he would self‑harm and tell her he would kill himself. She said he would abuse her verbally.
AB and W had no children together, but AB was the primary carer of a child, J, from when he was three weeks old and thought of him as a son.
AB said she and W would have sex regularly. She did not object to vaginal intercourse, but W would insist also on anal sex. She did not like it and would say no. It hurt her. She said, 'He did not care that I said please stop it, and he didn't care that I cried'.
AB stated that on 27 or 28 August 2015 they had consensual vaginal sex. The next night he wanted anal sex. They were in her bedroom on the floor. J and a male relative of W were in the house. She objected. W said he could do it because they had been together for 14 years. When he penetrated her anus he was kneeling behind her. He had his arm around her neck in a choke hold. She said it hurt. He told her she liked it. She said she did not. She said she did not tell anyone of that incident until 1 October 2015 when she went to an advocacy centre and told someone there what had happened. She was referred to a doctor. She had tests done that she said were 'all clear'.
On 7 October 2015 AB said she was at home with W. He wanted to have anal sex. She said she did not want to. He proceeded to penetrate her anus with his penis. She said she did not want him to do it, but he did it anyway. He told her he had a right to her body and to do what he wants.
She did not tell anyone about that incident. She told her family about the way W treated her, but not that he had sexually assaulted her. She reported the matter to the police in November 2015, but decided not to go through with her complaint as she had a lot going on in her life at that time. (The police running sheet notes that on 12 November 2015 AB told an officer that she 'wants to leave it to concentrate more on taking care of her son'.)
In the course of the investigation that occurred at that time, which included the obtaining of medical records from two medical practices and other information from the Daydawn Advocacy Centre, no witnesses were identified. There was no relevant forensic evidence to corroborate the complaint and the contemporaneous medical records that were obtained with respect to AB did not disclose any specific complaints of sexual assault. W was contacted by the police. He denied any wrongdoing, but admitted there had been occasions of anal penetration that had been initiated by AB.
The police made a decision not to charge W with any offence. According to the incident report, there was insufficient independent corroborative evidence to support AB's allegations. There is a note on the incident report: 'Victim unhappy with the outcome but understands through the inquiries made there is nothing to corroborate the account that she has provided'. (It is a legal fact that corroboration is not required in order to prove an offence of sexual assault.)

Other evidence and information

In a handwritten statement that was lodged in support of the application for compensation by J, AB described aspects of her relationship with W, including being forced to have sex in a way she did not want in circumstances where W held her so tight that she could not move or breathe. She did not detail any particular instance and did not specifically refer to anal penetration, although it is reasonable in a context of her evidence as a whole to interpret her references to unwanted sex in this way. In that statement she described being stuck in the relationship.
She also stated that in about 2001 she went to Armadale Hospital to be checked for bleeding in the anal region. She said she was too embarrassed to say that she was being sexually assaulted by W and instead said that she wanted to be checked for bowel cancer. She underwent a colonoscopy.
In a handwritten statement lodged in support of his application J said:
When I went in he was on her aggressively. She wanted him to stop but he wouldn't listen. When he saw me walk in he swore at me and started yelling. So I walked off and went about my business. When it was all over I spoke to my mother to see what happened, she told me what he did and I couldn't help it but to be disgusted in him.
When she gave evidence before me, AB verified her statements. She said that within a couple of weeks of the commencement of her relationship with W he started to become possessive and controlling. She said that she really wanted to leave him at that time, but he would not let her go. She said they would have vaginal sex, then he would want to have anal sex. She would tell him to stop, but he would keep going and she would have to wait until he had finished. This started early in the relationship. She said that she separated from W a couple of times, but only for short periods. He had stayed away completely since she had last broken up with him which was because she 'got sick of him having the sex he wanted, not what I wanted'. She said that W told her 'No‑one is going to believe you because we live in a relationship and what we do is between us'.
On the occasion of the incident on 28 August 2015 she was embarrassed, knowing that her son was in the next room. She said she was 'just getting sick of it'. She did not want him to do it anymore and wanted him to leave.
She said that on 1 October 2015 she went to the Daydawn Advocacy Centre where it took her a while to say what had been going on. At that time she was trying to get accommodation.
She said that the incident on 7 October 2015 started with vaginal sex. He had then wanted the other. She did not want it. After that incident she reported the matters to the police and was referred to SARC. She said she told the persons she saw there the truth.
At the time of giving evidence, AB was living in her own place with her parents, her son and her nephew. She felt safe at home. When she went out, she always had someone with her. She was frightened of meeting W. She said it was hard for her to trust or be with another. At night she would stay at home with the windows and doors locked and the lights on. She did not like travelling on public transport.
She was not receiving any medical treatment. She was a full‑time carer for her parents. She said that she did not leave the house unless she had to pay bills, or get medications for her parents, or someone needed something.
She engaged in some counselling in 2017 but did not want any more because she did not want to talk about it again. She said talking about it brought it all back.
No questions were asked of AB by counsel for the amicus. When questioned by me, AB said that W had done sexual acts that she objected to over a long period of time. When asked whether there was anything different about the occasions in 2015, she said:
I just got sick of it cos he was saying he's not going to do it and he ended up doing it again and - even though he never hit me around, he might have pushed me a couple of times and I fell to the ground. But he - it was the threats, the shouts, the swearing on the street.
COURT: Do I understand your evidence to be this, that the two occasions that had been identified in late 2015 where you performed these acts on you, they were similar to what had happened before but this time you'd simply had enough? - - - Yeah, I had enough cos that's all he said and he can do them things and no-one was not going to believe me. … And I told him if this is love and this is life, I don't want it and I wished I was dead.
AB was assessed by Dr Ng in January 2018 for the purposes of her claim. AB verified the history that she gave to Dr Ng.
What AB told Dr Ng is relevant information. She told Dr Ng of sexual abuse that occurred when she was young. She could not recall how many times it had occurred. She said that she 'blocked it out'. AB told Dr Ng that she tried to end the relationship with W on many occasions over a long period of time. He would threaten to hurt himself and in fact did engage in self‑harm. He would then blame her for the self‑harm and try to use guilt to stop her from ending the relationship. That is consistent with her other statements.
AB also told Dr Ng that W had done bad things to her and did not treat her right. She reported being subjected to verbal abuse in public that embarrassed her and reduced her self‑confidence. She said she repeatedly returned to the relationship. She said that W had anal sex with her forcibly. She was too embarrassed to discuss it.
She said she was pushed on many occasions by W who would throw things around the house. She described him playing mind games with her. She recalled telephoning the police to complain on a few occasions, but on many occasions she did not report him. Dr Ng commented that AB 'provided a compelling history of being verbally/emotionally and physically/sexually abused in the course of her relationship with [W]'.
On 12 September 2019 Dr Ng assessed AB's son, J. J gave a history of verbal abuse and rough handling by W. He also reported seeing W abuse AB, but admitted his memory of some of the occurrences was unclear and vague. J recalled that W would call AB various derogatory names and swear and shout at her. He did not see AB being physically assaulted by W, but said that he had seen W sexually abuse AB. On one occasion he recalls seeing him on top of AB. He said he 'put his thing in her bum'. AB was crying. He recalled feeling very helpless.
The SARC records indicate that AB presented on 13 October 2015 reporting that her partner always wanted anal sex to which she did not consent. The notes state 'She says that he forces her to do this and that she now wants this to stop. The last time was two months ago'.
The notes of Dr Anita Krishna Dass of a consultation on 26 October 2015 indicate that AB complained that her partner had sexually assaulted her and that she had been referred to SARC. The record of a consultation the next day, 27 October 2015, also notes a history of sexual, physical and verbal abuse by W over 16 years. On 27 July 2016 Dr Dass noted AB's report of having been sexually assaulted over the previous 17 years and having made a police report that she had withdrawn.
AB was referred by Dr Dass to Dr Steve Baily, psychiatrist. Dr Baily reported on 4 April 2016 that he had seen AB for depression 'with significant life stresses related to her ex‑abusive partner, problems son having with school, conflictual family relationships and until recently caring for a 7‑year‑old niece'.
The notes of Ms Gretta Little, clinical psychologist, to whom AB was referred by her general practitioner in 2017, indicate that AB reported being sodomised by her partner against her will.
The SARC records contain notes of an assessment on 5 November 2015:
Recent breakdown of 16-year relationship that has been physically and sexually violent throughout. Repeated anal sex over 15 years that was never consensual, the last being three weeks ago. [AB] unclear about what she is wanting however verbalised that her hope was that SARC would put on record the alleged sexual and physical violence with a view to sharing this information if needed - ? interested in criminal injuries compensation. Unsure re: police however as does not want to face [W] in court situation.
There is also a record of AB reporting a history of sexual abuse on 14 February 2016 to Fremantle Hospital Mental Health Services.
General practitioner Dr Raji Krishnan reported to AB's solicitors that he had seen her since 2013. She did not disclose sexual abuse until late 2014. Dr Krishnan was told of AB's partner demanding sexual practices to which she did not consent. Dr Krishnan observed that AB had 'endured considerable physical, emotional and sexual abuse in [sic] the hands of her ex‑partner. She had continued to live with him for many years without seeking any help'.
A patient assessment for the purposes of a GP mental health care plan (completed 27 July 2016) noted a history of 'domestic violence and mainly sexual assault by her partner the last 17 y. Had approached SARC this year - feels that they are not supportive. Had made police report but to no avail'.

Findings as to alleged offences

Although this appeal is not a criminal proceeding, given that it involves allegations of family violence, it is useful to note that the Evidence Act1906 (WA) now contains provisions that require a trial judge in criminal proceedings to direct a jury, on the application of counsel, with respect to family violence. Such a direction may contain the following matters set out in s 39F:
(i)people may react differently to family violence and there is no typical, proper or normal response to family violence;
(ii)it is not uncommon for a person who has been subjected to family violence to stay with an abusive partner after the onset of family violence, or to leave and then return to the partner;
(iii)it is not uncommon for a person who has been subjected to family violence not to report family violence to police or seek assistance to stop family violence;
(iv)decisions made by a person subjected to family violence about how to address, respond to or avoid family violence may be influenced by a variety of factors;
(v)it is not uncommon for a decision to leave an abusive partner, or to seek assistance, to increase apprehension about, or the actual risk of, harm;
Section 39F(2) is also apposite.
I am comfortably satisfied that offences of aggravated sexual penetration without consent were committed by W against AB on or about 28 August 2015 and on 7 October 2015. I find that such acts of sexual penetration without consent had previously been committed by W throughout the course of the relationship and that by August 2015 AB had had enough. Her initial complaint to the police is consistent with the offences having occurred as alleged. The withdrawal of the complaint is consistent with the nature of the relationship with W and the circumstances that AB found herself in at that time. I find that her attendance at SARC in 2015 is consistent with her complaints of the offences. I find also that AB was humiliated by the offending and too embarrassed to report it in any more detail than she did to the police, SARC personnel, and her medical practitioners. AB was stuck in an abusive relationship from which it was difficult to escape before she did.

The evidence does not permit any specific findings as to particular offences of sexual penetration without consent having been committed on occasions between 1999 and November 2015, but I can and do find that the particular offences that have been proved were not isolated. They were the last occasions upon which she was offended against in this way. She can be seen to have been the victim of a pattern of sexual abuse over a long period of time within a domestic relationship that was dysfunctional and harmful.
The expression 'emotional/verbal and physical/sexual abuse' used in the application comes from the report of Dr Frederick Ng, psychiatrist, dated 30 January 2018. While I accept that AB did suffer such abuse, I am not able to be satisfied on the evidence that any offences other than the sexual assaults I have detailed were committed, at least not to the extent that would permit compensation.

Entitlement to compensation

On the basis of the evidence and information before me I find that the appellant has suffered injury as a consequence of the commission of two specific offences of aggravated sexual penetration without consent of which no person has been charged. I find also that the AB is the victim of similar offences that were committed against her over the period 1999 ‑ 2015.
Section 9(1) requires that an application, if it relates to more than one offence, must be made within three years after the last of them was committed. The application is within time having been made on 7 July 2017, the last offence having been committed on 7 October 2015.
Accordingly, I find that the appellant is entitled to compensation for harm pursuant to s 17, subject to any statutory bar. Compensation is to be assessed according to common law principles subject to the limits prescribed in s 31 and s 34. Section 31 provides that the maximum compensation that can be awarded in respect of a single offence is $75,000. Section 33 provides that an award for a person who suffers injury as a consequence of two or more offences committed by one person that are not related offences must not exceed twice the maximum amount that can be awarded for a single offence.
Section 39 provides that an assessor must not make a compensation award if satisfied that a person was injured as a consequence of the commission of an offence and that the injury was suffered when the person was committing a separate offence. Section 39 was raised for the court's consideration by counsel for the amicus on the basis of findings made in the reasons for decision of the assessor who awarded compensation to J. J made an application for compensation as a secondary victim of the two offences committed against AB on 28 August 2015 and 7 October 2015 and as a primary victim of physical and emotional abuse by W between 2012 and 2015.
The assessor, Ms K Hafford, made a compensation award in respect of that offending on 25 June 2021 without giving reasons. The award states that in respect of the offending alleged by J the assessor was 'satisfied as to the relevant matters as required by s 17(4)(a)'. Implicit in the award were findings that AB was the primary victim of two offences of aggravated sexual penetration without consent, conclusions completely at odds with the decision of the chief assessor dismissing AB's application.
On 31 August 2022 Registrar Kubacz ordered that a notice be issued to the chief assessor to produce various documents from the file of J's application, including the award. Without being asked to provide written reasons pursuant to s 27, but no doubt aware of the notice to produce, Ms Hafford published reasons on 3 October 2022 ('I' [2022] WACIC 10).
Contrary to the terms of J's award, the assessor found that in fact she was not satisfied that the two specific offences of aggravated sexual penetration without consent against AB, of which J claimed to be a secondary victim, were committed, but that by exposing J to the incidents in which those offences were said to have been committed, both W and AB committed an offence against s 101 of the Children and Community Services Act 2004 (CCS Act).
Section 101 of the CCS Act makes it an offence for a person who has the care and control of a child and who engages in conduct knowing that the conduct may result in the child suffering harm as a result of physical, sexual, or emotional abuse or neglect, or reckless as to whether the conduct may have that result. Section 28(1) of the CCS Act defines emotional abuse to include psychological abuse and being exposed to family violence.
The assessor found that AB had responsibility for the care, welfare and development of J pursuant to a Family Court of Western Australia order dated 20 October 2003, and also that W had care and control of J by reason of his relationship with AB and his role in J's life. At [28] the assessor found that both AB and W committed an alleged offence contrary to s 101 of the CCS Act by the following acts or omissions:
(a)Physical abuse:
(i)various assaults by [W] including lifting him off the ground, punching him to the face, pushing him, punching him to the back and hitting him with a belt;
(b)Sexual abuse:
(i)exposure to [W's] sexual activities with [AB] including witnessing the incident on 28 August 2015. I note the applicant having witnessed [sic] his mother and [AB] [sic] engaging in anal intercourse, in circumstances where he recalled his mother crying and [W's] hands being around her throat would have been distressing, irrespective of whether this was a consensual or non‑consensual sexual act. I also note being told by [AB] about the alleged incident on 7 October 2015 would have been distressing for the applicant;
(c)Emotional abuse:
(i)exposure to domestic violence by [W's] relationships with [AB], including abusive language, demeaning language, pushing [AB] and strangling her during the incident on 28 August 2015;
(ii)exposure to emotional harm as a result of [W's] reported self‑harming behaviours;
(iii)exposure to emotional harm as a result of [W's] abusive and derogatory language towards the applicant;
(d)neglect, comprising:
(i)exposure to [W's] drug taking activities.
The assessor went on at [31]:
As is apparent from the above, whilst I did not accept the alleged sexual offences which allegedly occurred on 28 August 2015 and 5 [sic] October 2015 comprised an offence under the Criminal Code I was prepared to accept those incidents comprised behaviour by [W] which caused the applicant to suffer harm as defined in s 28(1) of the CCS Act.
...
Finally, I considered [AB] and [W] to be co-offenders with respect to the alleged offence under the CCS Act. Whilst the actions of [W] were the primary cause of the harm to the applicant, and the applicant described a positive and caring relationship with [AB] her actions (particularly in advising the applicant who was a child about the incident on 7 October 2015) and omissions in relation to failing to remove the applicant from the harmful conduct of [W] contributed to the injuries he sustained.
Curiously, the assessor stated at [21] that she was not satisfied that an incident of sexual penetration occurred on 7 October 2015 at all, yet at [31] she found that AB contributed to J's injuries by telling him about the incident and that in doing so she committed an offence against s 101. As to the incident on 28 August 2015 the assessor was not satisfied on the evidence before her that there was a lack of consent in respect of the sexual penetration by W, yet she found that AB had sexually abused J by exposing him to W anally penetrating her while his hands were around her neck and she was crying, thereby committing an offence against s 101.
Having made these findings, that with due respect can only be described as extraordinary, the assessor stated at [23]:
I considered I did not need to seek additional evidence despite my finding the incidents on 28 August 2015 and 7 October 2015 did not comprise offences of aggravated sexual penetration without consent because I found the circumstances of the incidents on 28 August 2015 and on 7 October 2015 could comprise an alternate offence ...
What has happened here is that the assessor, having made an award to J as a secondary victim of two serious sexual assault against his mother, has seen fit, of her own volition, without reference to J who was represented, to abnegate the findings on which that award was based. I infer the only reason for doing so was to conform to the chief assessor's decision disallowing AB's application.
The assessor has then come to a conclusion that by exposing J to the very incidents of alleged offending for which his application (in part) was made, AB committed an offence against s 101 of the CCS Act. The assessor's decision and the process by which it was reached is, to say the least, gravely disquieting.
There is no evidence that AB committed a s 101 offence against J. Both were victims of family violence offences by W. There is no basis for a finding that AB should be denied compensation for the offences against her by W on the grounds that she was committing a separate offence when the injury to her was suffered.

Findings as to injury

Injury is defined to mean 'bodily harm and mental and nervous shock'.
In this case I find that AB suffered injury in the form of bodily harm and mental and nervous shock. I have detailed her documented complaints to various medical and other health practitioners. I accept that her reports were truthful.
I have referred to the report of Dr Ng. Dr Ng noted a family history of depression. AB told him that she had been treated with antidepressant medication for many years and had previously seen a psychologist but was not receiving any psychotherapy. Dr Ng made a systematic inquiry as to any other psychiatric symptoms. AB's responses are detailed in the report.
Dr Ng conducted a mental status examination. AB's affect was generally depressed to a mild extent but normal in range and reactivity. There was no evidence of bizarre or dramatic behaviour and AB's presentation was consistent. There was no evidence of agitation, aggression or disinhibition.
Her history of abuse was compelling. Dr Ng accepted that AB had experienced symptoms of depression and anxiety that had caused significant distress and contributed to impairments in general, social, and education/occupational functioning. He diagnosed a generalised anxiety disorder to a moderate extent and currently partially treated and a persistent depressive disorder to a moderate extent and currently partially treated.
He found that AB had suffered mental and nervous shock as a consequence of many years of 'verbal/emotional, and physical/sexual abuse'. As to the extent to which AB's condition could be attributed to the alleged offending, Dr Ng commented:
Based on the history elicited and the available documentation, I form the opinion that:
- Approximately 80 to 90% of her current psychiatric difficulties were most significantly contributed to by her relationship with [W] and the alleged verbal/emotional and physical/sexual abuse.
- Approximately 10 to 20% of her current psychiatric difficulties were most significantly contributed to by difficulties other than those with [W], eg. sexual abuse in her childhood, and the family psychiatric history of her mother and father both having suffered from some type of depression.
In Dr Ng's opinion AB required ongoing antidepressant medication into the foreseeable future and psychotherapy at least once every three to four weeks for at least the next one to two years if not longer. Her capacity to engage in general, social, and recreation activities, as well as education and employment and home duties, were at least moderately impaired and would remain so for at least the next one to two years. The same opinion was expressed with respect to AB's relationships with family, friends and members of the community, and her personal wellbeing, self‑esteem and confidence. Dr Ng expected improvement with psychiatric treatment over a period of 12 to 36 months.
Dr Ng's report was made over five years ago. I do not have any recent medical or psychiatric evidence. As mentioned, AB said in her evidence that she had not had counselling since 2017 and did not intend to have any in the future. On the evidence therefore I find that the condition described by Dr Ng in his January 2018 report is likely to have improved as he predicted. I have not been told otherwise.
AB's claim is for non‑pecuniary loss and reimbursement of expenses. There is no component of economic loss as such.
In assessing the injury caused by the offences that I find were committed I take into account that the acts occurred during the course of an unsatisfactory de facto relationship which was marred by W's substance misuse and his verbal and emotional abuse of AB, as well as repeated sexual assaults.
AB suffered harm as a result of the relationship itself as well as the offending. It is not possible to separate the harmful effects of the relationship from the specific offending for which compensation can be awarded. However, I am satisfied that the repeated sexual assaults that I find to have been committed against AB did materially contribute to her diagnosed depression and anxiety which together caused the functional impairments detailed by Dr Ng.
Associated with her psychiatric conditions is AB's loss of self‑esteem and confidence which have contributed to her now leading a reclusive life. In considering the effects of the offending upon AB in terms of diagnosed psychiatric harm, I do not overlook the fact that the incidents themselves were harmful in that they can be seen to have caused physical and mental harm. In this respect I accept the submission made on behalf of the amicus at [34] of the outline of submissions dated 21 November 2022:
It is well accepted that the phrase 'mental or nervous shock' comprehends any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence or offences, or associated with the commission of the offences, as those events impact on the mind or nervous system. It must be more than a mere emotional reaction, being something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury. The term includes distress, horror, disgust and other similar adverse mental reactions but excludes mere fright, humiliation or anguish: S v Neumann (1995) 14 WAR 452, 461 (Murray J); M v J (Unreported, WASC, Library No 920598, 19 November 1992) 10 - 11 (Scott J); Martin v Martin [2015] WADC 138 [85) (Derrick DCJ).
It is also well established that it is not necessary for the alleged offending to be the sole cause of the injury. It is sufficient to show that the offending materially contributed to any injury or loss.[5] I find however that some of the injury for which compensation is claimed was due to other abuse experienced within the relationship that is not compensable and that would have been suffered in any event.
[5] Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, 673; S v Neumann (1995) 14 WAR 452, 463 - 464; Martin v Martin [2015] WADC 138 [83].
The assessment must be 'fair and reasonable compensation for the injuries received by the appellant and the disabilities caused, having regard to current general ideas of fairness and moderation. The amount must be proportionate to the particular situation of the applicant'.[6] While I am informed by other decisions of this court made with respect to compensation for sexual offences, finding useful comparators is otiose.
[6] Bothma v Hildebrand [2019] WADC 92 (Gething DCJ).
I consider a fair and reasonable award to be $120,000.
I also award AB the expenses that have been proved and that are compensable, namely:
•Dr F Ng invoice dated 20 February 2018 (report fee) $1,738.00
•Beeliar Medical Centre invoice dated 13 November 2017 (medical records fee) $88.00
•Helios Psychology invoice dated 8 November 2017 (records fee) $20.00
No other expenses are claimed. There is no reward for future treatment.
The appeal is allowed and AB is awarded compensation in the total amount of $121,846.00.
There is no order for costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DC
Associate to Judge Staude
16 MARCH 2023