Re AK
[2016] WADC 156
•4 NOVEMBER 2016
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
| ||
| CORAM | : SCHOOMBEE DCJ | ||
| HEARD |
| ||
| DELIVERED |
| ||
| FILE NO/S |
| ||
| MATTER |
|
Act 2003
AND
IN THE MATTER of an Appeal by
| BETWEEN | : AK |
Appellant
| FILE NO/S | : | APP 12 of 2014 |
| BETWEEN | : | AK as Next Friend for DK Appellant |
| FILE NO/S | : | APP 13 of 2014 |
| BETWEEN | : | AK as Next Friend for IK Appellant |
| FILE NO/S | : | APP 14 of 2014 |
| BETWEEN | : | AK as Next Friend for CK Appellant |
| ON APPEAL FROM: |
| Jurisdiction | : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA | ||
| Coram |
| ||
| Citation |
| ||
| Catchwords: |
Criminal injuries compensation - Appeal from assessor's quantification of compensation for injury - Mental and nervous shock - Late notice of appeal - Further evidence allowed on appeal - Whether pre-existing medical condition to be dealt with under s 41 - Subsequent events - Aggravation of mental and nervous shock
Legislation:
Criminal Injuries Compensation Act 2003 s 41
Result:
Appeals allowed
Representation:
APP 11 of 2014
Counsel:
| Appellant | : | Mr J Singh |
| Amicus Curiae | : | Ms J O'Meara appeared on behalf of the Chief Executive |
Officer of the Department of the Attorney General
Solicitors:
| Appellant | : | Kott Gunning Lawyers |
| Amicus Curiae | : | State Solicitor for Western Australia |
[2016] WADC 156
APP 12 of 2014
Counsel:
| Appellant | : | Mr J Singh |
Solicitors:
| Appellant | : | Kott Gunning Lawyers |
APP 13 of 2014
Counsel:
| Appellant | : | Mr J Singh |
Solicitors:
| Appellant | : | Kott Gunning Lawyers |
APP 14 of 2014
Counsel:
| Appellant | : | Mr J Singh |
Solicitors:
| Appellant | : | Kott Gunning Lawyers |
Case(s) referred to in judgment(s):
A v D (1994) 11 WAR 481
AJ [2015] WACIC 15
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239
CLR 27
Astley v Austrust Limited (1999) 197 CLR 1
Attorney General for Western Australia v Her Honour Judge Schoombee [2012]
WASCA 29
Attorney-General v HRH Prince Ernest Augustus of Hanover [1957] AC 436
Australian Postal Commission v Melbourne City Council [2005] VSCA 295;
(2005) 14 VR 678; 143 LGERA 218
[2016] WADC 156
Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 45
ALJR 280
B v S (Unreported, WASC, Library No 950223, 10 May 1995)
B v W (1989) 6 SR (WA) 79
Baker v The Assessor of Criminal Injuries Compensation (1998) 20 SR (WA)
377
Banovich v Radovanovic [1981] WAR 291
Besch v Assessor of Criminal Injuries Compensation [2000] WADC 241
Blezard v Chief Executive Officer of the Ministry of Justice [2000] WADC 41
Bodney v The Assessor of Criminal Injuries Compensation (2000) 24 SR (WA)
299
Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691
Brandis v Assessor of Criminal Injuries Compensation [2001] WADC 178
Cahill v Smith [2015] WADC 148
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
Church v Church [2001] WADC 144
CKM [2008] WADC 79
Cole v P & O Ports Ltd [2002] WASCA 157
Curnow v Garnant [2012] WADC 72
Curran v Champion [2012] WADC 9
DKD v RT [2006] WADC 182
Dunne [2014] WADC 131
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Gabriel v Kyanga [2011] WADC 218
Gardner v Van Pham (Unreported, WADC, Library No D980139, 25 May 1998)
Garton v McCormack (2002) 30 SR (WA) 307
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012,
15 December 1980)
Hayward v Hart [2012] WADC 151 Hogben v Darcy [2009] WADC 63 Hughes v Winter [1955] SASR 238 Jansen v Assessor for Criminal Injuries (Unreported, WADC, Library
No D970069, 7 March 1997)
JY [2013] WADC 187
King v King (Unreported, WADC, Library No 5134, 14 February 1996)
King v King [2006] WADC 22
Kinsbury v Assessor of Criminal Injuries Compensation (Unreported, WADC,
Library No D990183, 25 June 1999)
KLH v Dennison (Unreported, WASC, Library No 5172, 6 December 1983)
Kosick v The Assessor of Criminal Injuries Compensation [2006] WADC 144
Krukiewicz v Hayes [2004] WADC 242
Leggett v Argyle Diamonds Pty Ltd [2000] WASCA 182
[2016] WADC 156
Lewington v The Assessor for Criminal Injuries Compensation [2005] WADC 200
LMC v RJO [2002] WADC 147
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
McCreery [2016] WADC 6
McDavitt v McDavitt [No 2] [2013] WADC 198
MDC v BLR [2015] WADC 107
MEM v CLF (2003) 32 SR (WA) 34
MJN v MAJS (2003) 75 SR (WA) 219
Overland Sydney Pty Ltd v Piatti (1992) Aust Tort Rep 81-191
P v C [2005] WADC 107
Parsons v McWilliam [2002] WADC 62
Phillips v Larsen [2000] WADC 266
Platz v Osborne (1943) 68 CLR 133
Prior v Sherwood (1906) 3 CLR 1054
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Purkess v Crittenden (1965) 114 CLR 164
R v Fraser [1975] 2 NSWLR 521
Re Alcan Australia Limited; Ex Parte Federation of Industrial, Manufacturing
and Engineering Employees (1994) 181 CLR 96
Re Faengsungnoen [2012] WADC 59
Re Karra (1984) 2 SR (WA) 97
Re Krispyn [2011] WADC 161
Reed v Reed [2002] WADC 11
Reed v The Assessor of Criminal Injuries Compensation (Unreported, WADC,
Library No D970170, 5 June 1997
RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)
Rosmini v Chrysler Australia Ltd (1973) 6 SASR 212
Rossiter v The Assessor for Criminal Injuries Compensation (Unreported,
WADC, Library No D980249, 2 September 1998)
Russell v Ciesielski (Unreported, WASCA, Library No 980222 , 1 May 1998)
S v Neumann (1995) 14 WAR 452
Salvation Army (Vic) Property Trust v Shire of Fern Tree Gully (1952) 85 CLR
159
Shepherd v Shepherd [2010] WADC 30
Sideris v Censori [1983] WAR 17
Smithies v The Assessor of Criminal Injuries Compensation (Unreported,
WADC, Library No D990180, 22 June 1999)
State Government Insurance Commission v Oakley (1990) Aust Torts Reports
81-003
[2016] WADC 156
SW v BB [2010] WADC 86
TAW v NJS [2011] WADC 187
Te v Minister for Immigration and Ethnic Affairs (1999) 88 FCR 264
The Chief Executive Officer of the Department of the Attorney General v A by
his next friend B [2006] WADC 139
Thorpe [2007] WADC 179
Vaatuitui v Hall [2005] WADC 240
VAF v DWR [2003] WADC 153
Watts v Rake (1960) 108 CLR 158
Wenn v Richardson (1999) 22 SR (WA) 325
Wilson v McDonald (2009) 253 ALR 650
Wilson v Peisley (1975) 50 ALJR 207
Winbank v Avis (Unreported, WADC, Library No D980094, 17 April 1998)
WJR v Chief Assessor of Criminal Injuries Compensation [2001] WADC 261
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
X v Y (Unreported, WASC, Library No 960517, 13 September 1996)
Zadeh [2015] WADC 136
[2016] WADC 156
SCHOOMBEE DCJ
SCHOOMBEE DCJ: This matter concerns four appeals under the Criminal Injuries Compensation Act 2003 (the Act) against a decision by the Assessor of Criminal Injuries Compensation. The appeals are brought by Ms AK on behalf of herself and on behalf of three of her five children. DK and IK are twins who are currently aged 13 and CK is 12 years old.
2 The notice of appeal in respect of each appeal states that the assessor
incorrectly determined the quantum of the compensation allowed for the injury of each appellant as she failed to adequately assess the physical and psychological injuries suffered by Ms AK and the psychological injury suffered by each of the children. At the hearing of the appeal counsel indicated that Ms AK's appeal was not only in respect of the compensation awarded for the injury, but also in respect of the costs allowed for future medical treatment.
3 The assessor made a compensation award of $15,000 in respect of
the physical and psychological injuries suffered by Ms AK together with $4,500 for future medical treatment in the form of psychological counselling. The assessor also allowed the fee for the psychologist's report in the amount of $1,144, which brought the total compensation award in respect of Ms AK to the sum of $20,644. DK was awarded the sum of $4,500, IK $3,750 and CK $3,500 in respect of the mental and nervous shock suffered by each of them. Each child applicant was also awarded the costs of the psychologist's report in the amount of $586.
4 The compensation awards were made in respect of injuries resulting
from an offence committed by the then de facto partner of Ms AK, Mr DSK. Mr DSK was convicted, after a plea of guilty, of aggravated assault occasioning bodily harm. The assault was aggravated by reason of the parties being in a domestic relationship and also because three of the couple's five children were present during part of the incident. Mr DSK was sentenced to 18 months imprisonment.
Delay in bringing the applications for compensation
5 In the reasons for her decision which are reported in AJ [2015] WACIC 15 [2], the assessor stated that each of the applications had been made 'nearly a year' out of time. Pursuant to s 9(1) of the Act a compensation application must be made within three years after the date on which the offence was committed. However under s 9(2) the assessor may allow a compensation application which was made after the three-year period if he or she thinks it is just to do so.
[2016] WADC 156
SCHOOMBEE DCJ
Each application for compensation was made on 11 April 2013, while the offence had occurred on 30 August 2009. The applications were therefore seven and a half months out of time. The only information provided to me to explain the reason for the delay is that the assessor stated in her reasons that Ms AK was unaware of the availability of criminal injuries compensation and was only advised of this by her solicitor in September 2012. Counsel for Ms AK submitted that after the assault the primary concern of Ms AK was the children's welfare and not compensation. The assessor allowed the compensation applications to be made out of time, as she decided that it was just in the circumstances to accept them.
7 Although I need to decide the application for an extension of time
afresh, I do not intend to deviate from the assessor's decision in this
regard.
The background facts
8 The circumstances of the assault were set out as follows in a
statement of material facts which the police had compiled and on the basis
of which Mr DSK presumably pleaded guilty:th
On Sunday the 30 of August 2009 the accused and victim were at their home address. An argument developed between the victim and the accused, over the victim cooking breakfast.
The accused begun [sic] to get aggressive and started punching the fridge.
The victim finished making breakfast for [the children]. [The children] finished there [sic] breakfast and the victim and left the room and went into the lounge.
The victim was sitting watching television with [the children] when the accused has approached her. He was holding one of [the children's] tops in his hand.
The accused has punched his hand into the victims [sic] face and used his finger nails to scratch the victim under her right eye.
The victim left the lounge room and went to clean her eye with the accused following her and he then grabbed her swinging her around to redirect back to the lounge.
The victim returned to the lounge room, followed by the accused.
The victim told [the children] to go to their room which they did.
[2016] WADC 156
SCHOOMBEE DCJ
The victim sat on the floor and started to tidy up and as she was doing this the accused has picked up a wooden bed slat, raised it above his shoulders and swung it at the victim.
The victim has put her left arm up in an attempt to block the slat, which struck her heavily on the left hand causing the victim immediate pain and discomfort.
The victim got up off the floor and sat on the lounge room chair. The accused has walked to the side of victim and again struck her with the wooden slat to her shoulders causing the victim more pain.
The accused has struck the victim another 2 – 3 times with the slat to the
left forearm as she attempted to protect herself.
The accused has left the room, so the victim has sat on the floor whilst still in immense pain and started to have a cigarette.
The victim was sitting on the floor when the accused has reappeared and begun kicking the victim, who has rolled on to her back and put her arms and legs up trying to protect herself from the attack.
The accused has kicked and punched the victim approximately 20 times, as the victim has attempted to get away from the assault the accused has grabbed the victim by the throat squeezing until [the children] begun to cry.
The assault then stopped and the accused took the victim and [the children] to the shops.
The accused got out and went into one of the shops. The victim has drove
[sic] off leaving the accused at the shops.
…
9 The written statement provided to the police by Ms AK on
1 September 2009 (the day after the incident) contains a bit more detail and is also slightly different to the statement of material facts in that it places the children in the room where the assault took place, at least for some of the time. The statement of material facts records that Ms AK told the children to go to their room after Mr DSK had scratched her under the eye. The hitting with the bed slat, kicking and punching therefore appears to have taken place in the absence of the children.
10 However, according to the written statement provided by Ms AK to
the police on 1 September 2009 the children were still in the lounge room after Mr DSK had pulled her back into the room. Mr DSK started accusing her of sleeping with two other men. He picked up the wooden
[2016] WADC 156
SCHOOMBEE DCJ
bed slat and struck Ms AK while she tried to block the blows with her left arm. Ms AK said in her statement that all five children were still in the room and sitting close to her. It was only after this and some argument that Mr DSK told the children to leave the room and they did.
11 Ms AK said in her statement that after Mr DSK had hit her again
with the wooden slat on her back and shoulder blade she tried to calm him down by talking about their five beautiful boys and called the boys back into the lounge room. Ms AK told the police that Mr DSK hit her again with the wooden slat on her left forearm two or three times. She begged him not to hurt her and Mr DSK then told the boys to go outside. Ms AK stated that she was further assaulted by Mr DSK who punched and kicked her and also squeezed her throat. She said she was of the impression that the children were outside when this happened because she then saw them enter the room. Upon the children returning Mr DSK held his hands to his ears and told the children to block their ears. Ms AK walked into the kitchen where Mr DSK assaulted her further by choking her. He told the children to go back to the lounge room.
Ms AK described to the police that the assault was ongoing and took place between approximately 9.00 am and 2.00 pm.
13 Ms AK also told the police that after she had driven off in the car
leaving Mr DSK at the shops, she had gone to her aunt's house together with her children and had told her cousins what had happened. One of her cousins drove her to the Armadale Police Station, but it was closed.
14 When they arrived back at the cousin's house Mr DSK was outside
and approached the car. The cousin locked the car doors and started to drive away, but Mr DSK jumped onto the bonnet and tried to open the door. He then made his way to the roof of the car until he slipped off it near the rear door on the driver's side. They had driven a considerable distance with Mr DSK on the roof and on approaching an intersection crashed into another car. After the accident, everyone got out of the car. Mr DSK caught up with them and Ms AK ran over to a third vehicle which had stopped and asked the male driver to let her in. The driver complied, she got into the front passenger seat and the driver locked the doors. Mr DSK then approached the vehicle and told her to get out. Ms AK refused.
[2016] WADC 156
SCHOOMBEE DCJ
15 This prompted Mr DSK to take the children and return to the family
home. An ambulance arrived and conveyed Ms AK to hospital where she stayed overnight. She did not know what had happened to her children until she returned to the family home after Mr DSK's arrest.
In a victim impact statement provided by Ms AK on 11 April 2013 she added further information regarding the assault. She said that when they were in the kitchen Mr DSK had dragged her across the floor by her arm. He took an AV cord, wrapped it around her neck and dragged her around by the cord. He kept saying 'you need to be taught a lesson' and 'you don't listen'. He also took a vacuum cleaner pipe and hit her with it all over her body. He further picked up two knives and sharpened them.
17 Ms AK said in her victim impact statement that at that stage Mr DSK
had sent the boys to their rooms and said 'I don't want you to hear mummy screaming'. Ms AK reported in her victim impact statement that she had kept asking Mr DSK not to do this to their children and that they needed lunch. By that time it was already 2.00 pm and the children had not eaten because the assault had gone on since they had woken up.
18 It is difficult to know why Ms AK did not provide the information
regarding the use of an AV cord, a vacuum cleaner pipe and the sharpening of the knives in the statement to the police. She may not have wanted to cause more trouble than necessary for her partner. Another possibility is that she may have added this further detail at a later stage as embellishment. However, it is more likely that the additional matters were not embellishment and did occur, because in a report prepared by Ms Stephanie Morrigan, clinical psychologist, on 17 May 2013 in respect of DK she stated that DK remembered his father getting a knife and that he was scared he would hurt his mother.
19 I am therefore prepared to accept the extended version of events as
stated by Ms AK in her statement to the police and in the victim impact statement. I accept that Mr DSK had a knife at some stage and that Ms AK feared for her life, because Mr DSK said things such as 'It's your last day, it's going to be your last day'.
20 In the victim impact statement prepared by Ms AK on behalf of her
three children, dated 20 June 2013, she recounted that after the incident all three boys said, 'Mum, dad nearly killed you' and reported that DK was still 'blurting out stuff' about what happened that day.
[2016] WADC 156
SCHOOMBEE DCJ
21 I also accept that the three children observed more of the ongoing
assault than appears from the statement of material facts and particularly, that they heard some of what Mr DSK said to their mother. It is not clear why the statement of material facts differs so much from Ms AK's statement to the police, but I accept what Ms AK told the police in her statement the next day and in her victim impact statement because this accords with DK having a memory of seeing his father with a knife.
22 Ms AK described in her victim impact statement how she was
affected by this assault. She said she had to give her two youngest children to her sister to look after following the assault because she was 'not in a good place'. She said that they were all living in fear and kept going to Albany to visit relatives to get away from the house in Armadale. In early 2013 Ms AK moved to Albany together with DK, IK and CK leaving her two youngest children with her sister in Perth.
23 Ms AK further stated in her victim impact statement that she still
lived in fear and that the boys could see the fear in her. She reported that when she came home she always first checked the house even though she knew that Mr DSK was in custody. She said she remained paranoid.
24 As regards the victim impact statement provided on behalf of the
three children Ms AK reported that the older three were constantly asking when the younger two could live with them again. She explained that she could not manage with five children without having a home of her own. It seems that she was living with relatives in Albany at that time.
25 The victim impact statement also recorded that DK did not sleep on
his own and routinely asked his brother IK to sleep with him at night. It noted that there had been substantial disruption to the lives of the children because they had to move away from their Armadale home and stay with friends in Albany.
Physical and mental injuries suffered by the appellants
26 A report by Dr Chris Hill, a consultant at Armadale Health Services,
dated 9 March 2012, stated that Ms AK was brought to the emergency department by ambulance at 17.42 on 30 August 2009. She reported that she had been in a motor vehicle accident and had been assaulted earlier in the day by her partner, being struck multiple times with a bed slat. The report noted the following physical injuries on Ms AK:
1.
an abrasion to the forehead of 5 cm in diameter reported to be the result of the car accident;
[2016] WADC 156
SCHOOMBEE DCJ
2. an abrasion to the medial aspect of the left knee of 5 cm in diameter also said to have occurred during the car accident;
3. linear bruises over the left scapula, left upper arm and left forearm;
4. swelling over the volar aspect of the left wrist and hand;
5. numerous linear bruises on the proximal and middle third of the lateral thigh and over the anterolateral distal third of the thigh on the left; and
6. a dark bruise of 3 x 2 cm over the lateral breast.
27 The injuries were treated with oral analgesia, cleaning and a tetanus
immunisation. Ms AK was discharged after approximately 15 hours and
provided with temporary accommodation arranged by a social worker.28 The physical injuries suffered by Ms AK during the assault must
have been painful and ongoing for some time, but were not that serious or long lasting. However, she suffered a substantial psychiatric injury. Ms Morrigan, clinical psychologist, diagnosed Ms AK on 17 May 2013 with post-traumatic stress disorder (PTSD) directly related to the assault on 30 August 2009. She reported that Ms AK also had clinically elevated levels of anxiety and hyperarousal, suffered from flashbacks and nightmares, symptoms of depression and defensive avoidance in the form of trying to block thoughts of the trauma. Her responses revealed a degree of dissociation in the form of cognitive disengagement and derealisation.
29 Although Ms Morrigan referred in her report to Ms AK having
described a 'pattern of domestic violence' in the relationship, she also reported that the assault on that day was experienced as different in both intention and intensity. Ms AK told the psychologist that she had feared for her life and for the safety of her children during the assault and during the following four days when they were in her partner's care.
30 Ms Morrigan's report refers to the disruption of Ms AK's life in terms
of security, housing, parenting and routine. It noted that she had been separated from her two younger children and there was uncertainty for the future. Ms Morrigan came to the conclusion that Ms AK's capacity for enjoyment was significantly reduced and she continued to be fearful for the future. Her psychological, social and occupational function was impaired by her PTSD arising from the domestic violence. Ms AK reported difficulty sleeping because of nightmares of the attack and her
[2016] WADC 156
SCHOOMBEE DCJ
always listening for noises. She suffered heightened irritability and felt overwhelmed by the demands of life. She was constantly worried for her children and fretted over her inability to provide a sense of security for them. The children were aware that she is was frightened.
31 The three child appellants did not suffer any physical injury.
However, each of them suffered a psychiatric injury. In the report prepared by Ms Morrigan in respect of DK on 17 May 2013 she came to the conclusion that he was suffering from ongoing anxiety and trauma arising from Mr DSK's domestic violence, and in particular the assault of 2009, as well as the 'continued charged environment' where his mother suffered from PTSD and continued to fear for her own safety.
32 DK was born on 1 November 2002. At the time of Ms Morrigan's
report DK was aged 10. He was 6, almost 7, years old when the offence
occurred.33 Ms Morrigan reported that DK told her that he was still scared at
night and had nightmares. He remembered that his father had picked up a knife and he was frightened that his father would hurt his mother. He had also been worried when he stayed with his father and grandmother for four days after the incident not knowing whether his mother was hurt. He continued to be scared that his mother might be hurt again.
34 Ms Morrigan also referred to the impact on DK of matters following
the assault incident, particularly the move to Albany, having to change schools and the placement of his two younger siblings with an aunt in Perth. However, she was of the view that the ongoing anxiety suffered by DK arose from the domestic violence, particularly the assault of 2009, and the fact that his mother continued to suffer from PTSD and ongoing fear.
35 Ms Morrigan noted that DK had suffered from unrelated problems as
a young child. He was diagnosed with Guillain-Barre syndrome at about 3 years old which caused him to lose muscle tone and stop walking. He was unwell for about six months and continued to have a slight limp. DK also suffered from developmental delay and low confidence.
36 On 23 January 2015 when DK was aged 12, he was charged in the
Albany Magistrates Court with three charges of aggravated burglary and commit offence in dwelling and two charges of criminal damage of property. A report prepared by Community and Youth Justice, dated 10 February 2015, stated that he had been in company with other boys and had no explanation for his actions other than that he did not really think about them. The report noted that DK seemed to have limited
[2016] WADC 156
SCHOOMBEE DCJ
understanding of the offences and the possible consequences, but
apologised for his actions and acknowledged that what he did was wrong.37 The report writer referred to information obtained from Ms Pamela
Watts of the Family Violence Prevention Legal Service at Southern Aboriginal Corporation in Albany to the effect that DK and the other children had been 'extremely traumatised' by the domestic violence and that this had affected their development, ability to focus, education, literacy skills and sleep patterns. Ms Watts had reported that DK only had limited understanding of basic conversation and struggled with poor literacy and cognitive skills.
38 The report from Community and Youth Justice also noted
information obtained from DK's previous teacher at primary school who indicated that his academic level was extremely low. Although DK was attending year 6 at the time of the report, his teacher rated his ability as being at year 1 level. She said she had not been aware of any learning difficulties or medical issues and had attributed his limited academic skills to poor school attendance which was in the range of only 62%.
39 The report writer further stated that Ms AK had told her that DK, IK
and CK had all been diagnosed with attention deficit hyperactivity syndrome but that this had remained untreated. Ms AK told the writer of the report that she struggled with managing DK's behaviour.
40 It seems that after DK came into contact with Community and Youth
Justice he was referred to Great Southern Mental Health Service. A report by Mr Rick England, a senior mental health professional, dated 8 April 2015 and addressed to the Department of Housing, was obtained by counsel for the appellants. This report indicated that DK was diagnosed with PTSD, oppositional defiance disorder, mixed disorder of scholastic skills and problems related to alleged physical abuse as a child. Mr England noted that the events in the early life of DK had impacted greatly on his development and had affected his sense of right and wrong and capacity to manage his behaviour in a pro-social manner. He had major problems with impulse control and emotional regulation. This was further complicated by significant learning issues.
41 Mr England reported that Ms AK had made significant efforts in the
past to seek support for her children and herself but that little had happened with regard to external supports until shortly prior to his report when steps were taken to seek a psychiatric review, paediatric review, counselling and school-based intervention for DK.
[2016] WADC 156
SCHOOMBEE DCJ
42 The report from Community and Youth Justice and Mr England's
report were not available to the assessor. They were additional documents subpoenaed by counsel for the appellants from the relevant departments for purposes of this appeal. Pursuant to s 56(1) of the Act a court may receive further evidence and information for purposes of the appeal and I have accepted these further reports.
43 At the hearing of the appeal counsel for the appellants advised me
that he had tried to obtain updated forensic medical reports from a psychologist in respect of each of the appellants, but did not find a private practice provider who was prepared to do so free of charge. Counsel himself was appearing pro bono for the appellants. I allowed counsel for the appellants to see whether updated medical reports could be obtained from Great Southern Mental Health Service in respect of each of the appellants. Unfortunately that did not prove possible.
44 Nevertheless, it is apparent from the earlier reports regarding DK
that he has been diagnosed with psychiatric illnesses, namely PTSD and anxiety which conditions have led to problems with sleeping, nightmares and a general anxiety that his mother might be hurt again.
45 It is difficult to say to what extent DK's poor academic performance
was caused by his PTSD and anxiety or was due to his developmental problems, ADHD and inability of his mother to provide meaningful guidance because she struggled with her own mental health. It is also not clear to what extent DK's oppositional defiance disorder and involvement in the burglaries can be traced back to the violent assault on his mother which he witnessed. The report from Community and Youth Justice stated that DK's limited literacy level and difficulty understanding basic concepts and conversation, together with his traumatic childhood of witnessing domestic violence, might have left him vulnerable to older influences exploiting his naivety.
DK's twin brother IK seems to have made the best recovery from the effects of witnessing the assault. In her report, dated 17 May 2015 Ms Morrigan came to the conclusion that IK had suffered anxiety and trauma arising from his father's domestic violence, but that this had in a large part settled for him. She noted that IK had a clear recall of the day of the assault on his mother in 2009 and particularly the car accident. He said that he was frightened at the time but was no longer scared. He reported that he had been scared while walking to the house with his father after the incident but was not hurt by his father. Nevertheless, he was worried about his mother who had been taken to hospital. At the time
[2016] WADC 156
SCHOOMBEE DCJ
of the report IK told Ms Morrigan that he was no longer scared at night
but that his brother DK was scared and would not sleep alone.47 CK was born on 19 December 2003 and thus 5 years old at the time
of the offence. Ms Morrigan came to the conclusion in her report, dated 17 May 2013, that Mr DSK's domestic violence had a considerable impact on the development of CK and that the assault that he witnessed was extremely frightening for him and also involved considerable loss on many levels for him. CK was the only child who still expressed a wish to visit his father in custody, but the family has had no contact with Mr DSK since the assault in 2009. CK had ambivalent feelings about his father because he also indicated to Ms Morrigan that he was scared of his father.
48 Ms Morrigan noted that CK had a history of attentional disturbance
and learning difficulties. A school psychology service report, dated 18 September 2013, stated that CK had experienced family stresses including family violence and that since first attending school there had been indicators of trauma such as CK hiding under desks and not being able to regulate emotions and physically lashing out. These behaviours seemed to have improved when CK was in year 4, although he still over-reacted if things did not go his way. The school psychologist noted that CK was exhibiting symptoms of anxiety and depression, such as irritability, worrying a lot, being tired, having low levels of energy and being sad. The report writer stated that there was some evidence that 'previous trauma' was impacting on CK's health, well-being and his learning. On the other hand the writer noted that CK suffered from delayed development, and possibly language delays which might also have had an impact on his behaviour at school and at home.
49 The report obtained from Mr England of Great Southern Mental
Health Service on 8 April 2015 recorded that CK had been diagnosed with PTSD, mixed disorder of conduct and emotions (unspecified), mixed disorder of scholastic skills and problems related to alleged physical abuse. He commented in the report that the events of their early life impacted on all the children in the family and affected their sense of right and wrong and capacity to manage their behaviours in a pro-social manner. The report noted that CK had major problems with impulse control and emotional regulation.
50 Medical notes from the emergency department of Albany Hospital
were obtained in relation to CK. They indicated that he was initially assessed on 9 March 2015 as a result of significant behaviour problems and poor attachment to caregivers. His mother reported that he had tried
[2016] WADC 156
SCHOOMBEE DCJ
to choke his brother and injure his leg. He had also threatened his mother. Further entries in the hospital notes show that CK's mother reported self-harm, depression and suicidal ideation by her son.
51 On 22 March 2015 CK was again brought to the emergency
department at Albany Hospital by police after he had threatened to hit the family with a shovel. His mother reported no precipitating events and said CK became unmanageable on a regular basis. CK was given a tranquilliser and settled after 10 minutes. He then cuddled up to his mother, but refused to speak to the nursing staff.
52 The assessor did not have the opportunity to view the report from
Mr England nor the notes from the emergency department of the Albany Hospital, but I have allowed these reports to be submitted as further evidence on the appeal.
53 Ms Morrigan, the clinical psychologist, noted in May 2013 that CK's
attention span was variable and that his mother had reported that he had been diagnosed with ADHD in early life. His mother told her that CK was clumsy, could not sit still, often broke things and was messy. He had trouble sleeping at night and a tendency to boss his older brothers. His mother reported that CK had been diagnosed with learning difficulties.
54 Learning difficulties were also reported in the school psychology
report, dated 18 September 2013. A Universal Non-verbal Intelligence Test revealed that CK's capabilities with regard to the memory and symbolic quotient were very delayed and that his reasoning and non-symbolic quotient produced a low average score. Overall CK's non-verbal intelligence was rated as delayed. The report stated that this delayed development readily explained why he found it harder to learn new things, especially language-based tasks.
55 The school psychologist noted that earlier concerns at school and at
home about CK's behaviour in disobeying rules could be related to this delayed development. The report indicated that CK's verbal development had not been assessed and any delays in verbal development would further increase his difficulty in managing instructions and social situations.
56 The report recorded that scores from a teacher's checklist and a
parent's checklist indicated that CK had problems with inattention, hyperactivity, impulsivity, executive function, aggression and peer relations. There was a 99% probability that he suffered from ADHD.
[2016] WADC 156
SCHOOMBEE DCJ
57 The report from Ms Morrigan and the school psychology report
indicate that CK's earlier misbehaviour at school and ongoing difficulty with following rules at home were likely to be at least partly caused by his delayed development and ADHD. His delayed development and learning difficulties may also have had some role to play in his poor peer relations and aggression shown to others, including his family, because they may have caused a lack of self-esteem and inability to manage emotions. It is more difficult to say to what extent CK's suicidal ideation reported in the emergency department notes was caused by his PTSD stemming from witnessing the assault or his learning difficulties and behavioural problems.
58 Mr England's report from the Great Southern Mental Health Service
is dated 8 April 2015 and indicates that as at that date, almost six years after the assault, DK and CK still suffered from PTSD. This condition is likely to have been caused by the children witnessing the assault and perhaps, to some extent aggravated by them being exposed to their mother's ongoing fear. Ms Morrigan came to the conclusion that DK's anxiety arose from the domestic violence that he had observed, particularly the offence in 2009, and from the fact that his mother suffered from PTSD and ongoing fear.
59 In addition to the PTSD and anxiety DK has been diagnosed with
oppositional defiance disorder and mixed disorder of scholastic skills. Similarly, CK has been diagnosed with mixed disorder of conduct and emotions (unspecified) and mixed disorder of scholastic skills. It is difficult to know to what extent DK's and CK's additional disorders were caused by the children witnessing the assault on their mother.
60 It is unlikely that DK and CK's learning difficulties and ADHD made
any contribution to their PTSD and anxiety. However, their limited literacy level and difficulty understanding basic concepts is likely to have made some contribution to their lack of impulse control and emotional regulation and thus to the additional disorders. On the other hand, the report writer from Community and Youth Justice expressed the view that DK's witnessing of the domestic violence was likely to have left him vulnerable to the influence of older anti-social peers and may have led to him getting involved in criminal activities.
61 Counsel for the appellants submitted that the compensation awarded
to Ms AK was inadequate as it did not take into account the severity of the physical and psychological injuries to her. Counsel argued that the assault by Mr DSK made a material contribution to the PTSD and anxiety that
[2016] WADC 156
SCHOOMBEE DCJ
Ms AK had suffered and that it was not possible to determine to what extent these conditions had also been caused by earlier domestic violence perpetrated by Mr DSK against Ms AK. Counsel submitted that Ms AK should also have been compensated for her ongoing fear of a further assault by Mr DSK.
62 Counsel for the appellants further submitted that DK, CK and IK
should receive compensation for all of their mental health conditions and 'residual disabilities'. Counsel argued that it was not clear whether the children had suffered from ADHD prior to the assault and it was in any event not possible to determine which of the symptoms and current problems experienced by them were caused by a mental and nervous shock which arose from witnessing the assault, and which were caused by any pre-existing ADHD.
The law applicable to the assessment of criminal injuries compensation
63 As the appeal is by way of a rehearing, this court is not bound by the
determination of the assessor. However, because the assessor is a specialist tribunal, it is appropriate to take into account the assessor's reasons for making the particular award: Hogben v Darcy [2009] WADC 63 [13].
64 Pursuant to s 12 of the Act a victim who suffers injury as a
consequence of the commission of a proved offence may apply for compensation for the injury and any loss suffered. 'Injury' is defined in s 3 of the Act as 'bodily harm, mental and nervous shock, or pregnancy.'
65 The phrase 'mental and nervous shock' has been construed as
including any malfunction of the victim which can be seen to be a consequence of the impact of events constituting the offence, or associated with the commission of the offence, as those events impact on the mind or nervous system: Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) 5 (Burt CJ). Mental and nervous shock includes distress, horror, disgust and other similar adverse mental reactions, but excludes mere fright, humiliation or anguish: M v J and J v J (Unreported, WASC, Library No 920598,
19 November 1992) 10 – 11. What is contemplated by the Act is not a
mere emotional reaction but something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury: S v Neumann (1995) 14 WAR 452, 461.
[2016] WADC 156
SCHOOMBEE DCJ
66 There is no doubt that the PTSD and anxiety diagnosed for Ms AK
and DK and CK's PTSD each qualifies as 'mental and nervous shock'. These are recognised psychiatric illnesses of a more enduring character than a short lived emotional reaction. IK has not been diagnosed with PTSD but with anxiety which had largely settled in May 2013. Nevertheless, he did suffer a psychiatric condition for some time which qualifies as mental and nervous shock.
67 Compensation under the Act is not only available for a victim who
suffered injury as the result of an offence committed on him or her. Section 35(2) of the Act also allows compensation for a victim who was personally present when or immediately after an offence was committed against another person who died or suffered injury as a result of the offence or for a victim who immediately before the commission of the offence was a close relative of and lived with the person who suffered the injury or died as a consequence of the offence.
68 Section 30 of the Act provides that once a compensation application
in respect of injury suffered by a victim as a consequence of the commission of an offence is made, an assessor may award such compensation that the assessor 'is satisfied is just' for the injury and for any loss also suffered. Pursuant to s 31(1) of the Act the maximum amount that may be awarded in favour of one person for a single offence is limited to $75,000.
69 It is well established by case law interpreting s 30 and its
predecessors that in determining the amount of compensation that is 'just', the ordinary principles of tort law for assessment of damages should be applied subject to the jurisdictional limit imposed by the Act: M v J and J v J (12) and A v D (1994) 11 WAR 481, 487.
70 In assessing the amount of compensation the court should have
regard solely to the injury suffered by the applicant in consequence of the commission of the offence. The amount of compensation is not to be fixed as punishment of the offender or as an expression of sympathy for the victim: B v W (1989) 6 SR (WA) 79, 89.
71 The burden is on the applicant for compensation to establish, on the
balance of probabilities, a causal relationship between the commission of the proved offence and the injury or loss for which compensation is
sought: S v Neumann (463 – 464). It is not necessary for an applicant to
establish that the proved offence was the sole cause of the injury or loss. It is sufficient if the proved offence materially contributed to any injury or
[2016] WADC 156
SCHOOMBEE DCJ
loss: Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666,
673 and S v Neumann (463 - 464).72 In Watts v Rake (1960) 108 CLR 158, 160 (Dixon CJ) read together with Purkess v Crittenden (1965) 114 CLR 164, 168 (Barwick CJ, Kitto and Taylor JJ) the High Court held in the context of tort law that where it was not possible to disentangle the plaintiff's incapacity or disabilities resulting from an injury caused by a wrongful act of the defendant and the incapacity or disabilities resulting from a pre-existing condition, the plaintiff was entitled to be compensated for all the loss and damage flowing from his incapacity or disability suffered at the time of assessment of compensation. The plaintiff carried the overall legal burden to prove his injury and resultant incapacity or disability, but once the plaintiff had adduced evidence that the defendant's negligence had made a material contribution to his incapacity or disability, he was entitled to full damages for the incapacity or disability.
73 The defendant then had an evidentiary burden to produce evidence in
relation to the pre-existing condition, its likely future effects and whether these would have been likely to have resulted in the same incapacity or disability. No reference was made in Watts v Rake or Purkess v Crittenden to a reduction in the amount of damages to reflect the chance of the pre-existing condition having caused the same disability or incapacity in the future.
However, in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 642 - 643, 645, Deane, Gaudron and McHugh JJ held that where there was a chance that the incapacity or disability resulting from an injury caused by the defendant's wrongful act would have occurred in any event by reason of a pre-existing condition, the damages awarded to the plaintiff for that incapacity or disability were to be reduced by a percentage to take account of the chance that the pre-existing condition would have resulted in due course in the same incapacity or disability. As explained by the High Court a loss of chance is taken into account in respect of events that would have or might have occurred, but cannot now occur. In other words, the correct question to be asked is: what is the chance that the pre-existing condition would have resulted in the same incapacity or disability, if the wrongful act had not occurred?
75 This approach was followed in Wilson v Peisley (1975) 50 ALJR 207, 209 (Barwick CJ), 211 - 212 (McTiernan J and Stephen J) and Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485, 496 - 500 (Dawson, Toohey, Gaudron and Gummow JJ).
[2016] WADC 156
SCHOOMBEE DCJ
76 In Malec v JC Hutton Pty Ltd the High Court held that a percentage reduction should have been made from the damages allowed for pain and suffering, loss of earning capacity and gratuitous services to allow for the chance that the plaintiff's depression resulting from the acute brucellosis caused by his employer's wrongful act would have occurred in any event by reason of the plaintiff's deteriorating degenerative back condition.
77 In Wynn v NSW Insurance Ministerial Corporation the High Court held that a percentage deduction should have be made from the damages allowed for future economic loss on the basis that there was a chance that the plaintiff's pre-existing vulnerable spine (after a fusion) might have caused her to be unable to work in any event irrespective of the accident which caused a serious aggravation of the spinal problems.
78 In Wilson v Peisley the High Court upheld the trial judge's reduction of the amount of damages allowed for loss of future earning capacity and for general damages to reflect the chance that the plaintiff's pre-existing hysterical personality would have resulted in the ordinary course of life in the same psychosomatic illness, even if the car accident which caused the psychosomatic illness had not occurred.
79 In Wynn the High Court explained that a standard deduction of some 15% is usually made in respect of future loss of earning capacity to take into account the vicissitudes or contingencies that might have impacted on the plaintiff's capacity to work in any event, such as sickness, accident, unemployment or industrial disputes. However, where evidence was available, for example, regarding a pre-existing condition, that increased the possibility that the plaintiff would have suffered in due course from the same incapacity as that caused by the defendant's negligent conduct, a more appropriate percentage discount should be made to take into account the chance that the incapacity would have occurred in any event.
In Overland Sydney Pty Ltd v Piatti (1992) Aust Tort Rep 81-191, 61,697 - 61,698, the plaintiff was involved in a car accident and subsequently suffered from depression and a functional disorder which caused her to become a total invalid. Kirby P with whom Priestley JA and Maegher JA agreed, held that a reduction should have been made from the damages awarded for future housekeeping services, medical treatment and general damages to take into account the chance that the plaintiff's vulnerable personality would have resulted, in the ordinary course of life, in 'a similar, even if less severe, breakdown'. This decision indicates that a reduction may be made even if the pre-existing condition would not
[2016] WADC 156
SCHOOMBEE DCJ
have resulted in the exact same symptoms or incapacities, but only in
similar consequences.
In Russell v Ciesielski (Unreported, WASCA, Library No 980222, 1 May 1998) 11 - 12, Ipp J, with whom Kennedy J and Franklin J agreed, held that the plaintiff's pre-existing condition of suffering from cervical migraines together with the nature of her work and the difficulties that she had experienced caring for her young children might have led her to the same state of pain that she suffered in the form of headaches, shoulder and neck pain after a motor vehicle accident. As a result the damages award for past loss of earning capacity was reduced by 30% and the award for future loss of earning capacity by 65%.
82 These High Court cases indicate that there are two principles which
apply to the calculation of damages in the law of tort where the defendant's negligent act and the plaintiff's pre-existing medical condition have both contributed to the resultant disability, symptomatology or incapacity of the plaintiff. Firstly, a plaintiff is entitled to all of the damages where the effect of the contributing causes cannot be disentangled. Secondly, where it has been established that there is a chance that the pre-existing condition would have resulted in the same or similar disability, symptomatology or incapacity even if the defendant's negligent act had not occurred, a percentage needs to be assigned to that chance and the amount of damages to be awarded is to be reduced by that percentage.
83 These two principles have also been applied in criminal injuries
compensation cases where the offence as well as a pre-existing medical condition contributed to the symptoms or disability resulting from the applicant's injury or mental and nervous shock.
84 In Church v Church [2001] WADC 144 [13] – [21] the application
for compensation was based on the Criminal Injuries Compensation Act 1985. Nisbet DCJ referred to Malec v JC Hutton Pty Ltd and Wynn and came to the conclusion that the applicant's pre-existing osteoarthritis was likely to have caused her to require a hip replacement operation in four or five years in any event, irrespective of the offence of assault which caused the osteoarthritis to become symptomatic. In making an allowance for loss of earning capacity, Nisbet DCJ took into account that the plaintiff was likely to have only been symptom-free for four or five years after the offence and would have been obliged to retire after that period irrespective of the offence. Accordingly, Nisbet DCJ took this into account in calculating the appropriate compensation allowed.
[2016] WADC 156
SCHOOMBEE DCJ
85 In Vaatuitui v Hall [2005] WADC 240 [31]-[32], [36] Martino DCJ dealt with an application under the 1985 Act and held that the ordinary tortious principles for assessment of damages, subject to the jurisdictional limit applied. Martino DCJ referred to Malec v JC Hutton Pty Ltd and Wilson v Peisley and took into account the chance that the applicant's significant pre-existing neck injury would have contributed to the injury suffered during the offending.
86 In Hayward v Hart [2012] WADC 151 [16], [50], the applicant had applied for compensation under the Act. Eaton DCJ stated that the correct approach was to apply the ordinary tortious principles for assessment of damages, subject to the jurisdictional limit. His Honour deducted an amount for the appellant's pre-existing depression, but did not indicate how much.
87 In JY [2013] WADC 187, [13], [49], [52] - [54] Sleight DCJ summarised the principles applicable in tort law with regard to pre-existing conditions and came to the conclusion that due to the applicant's pre-existing ADHD and chronic substance abuse there was a reasonable probability that she might have lost her employment in any event in due course. Accordingly, Sleight DCJ took the pre-existing conditions into account in calculating the compensation for the injury as well as for loss of earning capacity.
88 In MDC v BLR [2015] WADC 107 [62] – [67] Braddock DCJ
summarised the principles of tort law applicable to pre-existing conditions, but did not refer to Malec v JC Hutton Pty Ltd. However, Braddock DCJ did consider whether the applicant's unstable childhood and teenage years, including his excessive drinking, would have caused him to be incapacitated from working in any event, irrespective of the assault offence, but came to the conclusion that these factors did not amount to a pre-existing condition which would necessarily have affected him. The traumatic injury suffered during the offence overwhelmed the 'earlier troubles' and was the only real cause of his PTSD. Accordingly, no deduction was made from the compensation allowed.
89 In Cahill v Smith [2015] WADC 148 [19], [33] – [34], [37]
Wager DCJ referred to the principles of tort and made a reduction in the compensation awarded for the chance that the applicant's pre-existing conditions of osteoarthritis, diabetes and depression would have caused him to stop working as a bricklayer 'in a matter of years' in any event, but did not indicate the percentage deducted.
[2016] WADC 156
SCHOOMBEE DCJ
90 The two principles referred to above have further been applied to
criminal injuries compensation where a compensable offence made a contribution to the symptomatology or disability resulting from the injury or mental and nervous shock as well as an earlier non-compensable event, usually another offence which was not the subject of the application.
In B v S (Unreported, WASC, Library No 950223, 10 May 1995) 4 – 5,
the claimant had been sexually assaulted over a number of years on many occasions, but only certain of the offences could be taken into account because the application had been made under the 1970 Act which only applied to certain of the offences. Murray J came to the conclusion that as long as the compensable offences were causally related to the PTSD suffered by the applicant, it was not material that non-compensable offences had also made a contribution to the psychological injury. Where it was impossible and unrealistic to determine the identifiable impact of the non-compensable offences, the applicant was entitled to compensation for the whole of the injury. In X v Y (Unreported, WASC, Library No 960517, 13 September 1996) Parker J relied on B v S and came to a similar conclusion.
91 In MEM v CLF (2003) 32 SR (WA) 34, [31] and [107] Macknay DCJ held that the applicant was entitled to compensation for the whole of her psychological injury where it was not possible to disentangle to what extent the injury was caused by the compensable offence and to what extent by earlier non-compensable offending. Macknay DCJ relied on B v S and X v Y in this regard.
92 In B v S, X v Y and MEM v CLF the principle that the applicant was entitled to full compensation where the competing causes could not be disentangled was relied upon but no reference was made to the principles in Malec v JC Hutton Pty Ltd.
93 In LMC v RJO [2002] WADC 147 [23], Yeats DCJ applied a percentage deduction to reflect the chance that the applicant would have suffered the same mental health condition resulting from the offending conduct in any event. Yeats DCJ relied on Wynn and concluded that even though the consequences of the mental and nervous shock suffered as a result of the offending conduct could not be disentangled, she should 'apportion' 50% of the applicant's post-traumatic stress disorder to the sexual offence on which the claim for criminal injuries compensation was based and 50% to earlier sexual assaults that were not compensable.
94 In VAF v DWR [2003] WADC 153 [13] - [19], Muller DCJ held, in reliance on LMC v RJO, that 'apportionment of causation' was appropriate
[2016] WADC 156
SCHOOMBEE DCJ
where the injury had arisen partly from the sexual offending relied upon in the application and partly from non-compensable earlier sexual offending. Muller DCJ did not indicate by what percentage the assessed compensation was reduced.
95 In MJN v MAJS (2003) 75 SR (WA) 219 [51] – [57] Martino DCJ
reduced the applicant's compensation awarded under the Act by 50% on the basis that there was a 50% chance that non-compensable offending would have resulted in the same borderline personality disorder that was caused by the compensable offence. Martino DCJ relied on Wilson v Peisley and Malec v JC Hutton Pty Ltd in that regard.
96 In King v King [2006] WADC 22 [75] and [76] Mazza DCJ adopted the principles in Malec v JC Hutton Pty Ltd and MJN v MAJS, but came to the conclusion that no deduction should be made for the non-compensable offences such as earlier threats and the offender putting a knife to the throat of the applicant, because the prolonged, sustained and terrifying assault for which the offender was convicted was the real and substantial cause of the applicant's subsequent mental health condition.
97 In The Chief Executive Officer of the Department of the Attorney General v A by his next friend B [2006] WADC 139 [36], [52] and in Kosick v The Assessor of Criminal Injuries Compensation [2006] WADC 144 [22], [25] Goetze DCJ referred with approval to MJN v MAJS and made a deduction for some non-compensable matters, but not for others.
267 The original application for each of the appellants did not ask for
future medical expenses, such as psychological counselling. The box dealing with future treatment expenses remained unticked. Nevertheless, the assessor made an allowance for future psychological counselling in respect of Ms AK, on the basis of the recommendation made in Ms Morrigan's report.
268 In DKD v RT [2006] WADC 182 [7], [18], [20] Wager DCJ allowed compensation for loss of future earnings and future medical expenses even though the applicant had ticked the 'no' box in relation to both and the assessor had not made any award in that regard. In Thorpe [2007] WADC 179 [45], [46], [53], Keen DCJ also allowed compensation for future loss of income even though the applicant had ticked the 'no' box in that regard.
269 In WJR v Chief Assessor of Criminal Injuries Compensation [2001] WADC 261 [7] Martino DCJ allowed additional compensation for alleged offences (which could have been claimed under s 12 of the 1985 Act) even though the applicant had only relied on s 7 of the 1985 Act and an offence for which the offender had been charged. Martino DCJ noted that the application was not a pleading and the applicant should not be limited to the section of the Act relied upon in the application where the materials in support of the application disclosed the commission of further alleged offences. This decision was followed by Commissioner Stavrianou in P v C [2005] WADC 107 [30].
270 The Act does not specifically state whether an applicant is limited to
the matters claimed in the application form. Section 12 of the Act simply provides that a person who has suffered injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss suffered. Section 19 of the Act deals with the assessor's powers which include amending the application, requesting the applicant to provide the assessor with information in relation to the application, seeking and receiving any information or evidence that the assessor thinks necessary and making any enquiries and investigating any matters that the assessor thinks necessary. Section 56(2)(a) vests the same powers in a judge hearing an appeal.
[2016] WADC 156
SCHOOMBEE DCJ
Pursuant to s 30(1) of the Act the assessor may award 'such compensation that the assessor is satisfied is just' and under s 29(1) may have regard to 'any factors or circumstances that the assessor thinks are relevant'.
272 It therefore seems that an assessor or a judge who is satisfied on the
basis of available information that the applicant has suffered further injury or loss for which a claim could be made and considers that an award of compensation in that respect would be 'just', may allow such an award even though the applicant has not specifically made a claim for a particular aspect of compensation such as future medical expenses or for an alleged offence.
Ms Morrigan has not made a recommendation for future psychological counselling for either of the children. However, she is likely to also not have had access to the additional reports that were filed in this appeal. I assume that both DK and CK are still being treated by Great Southern Mental Health Service for their mental health conditions, but it is highly likely that they would also benefit from some sessions with a private psychologist. It is reasonable to assume that the costs of a session with a private psychologist would be the same whether it be for Ms AK or one of the children.
274 As indicated earlier, any award made for future medical expenses
will only be paid on proof that such services have been utilised. Accordingly, I will allow a further amount of $2,200 for each of DK and CK as future medical expenses in relation to psychological treatment.
Accordingly, the amounts of compensation awarded are as follows:
For Ms AK's injury $25,000 For future medical expenses for Ms AK $ 6,600 For DK's injury $10,000 For DK's future medical expenses $ 2,200 For CK's injury $10,000 For CK's future medical expenses $ 2,200 For IK's injury $ 5,000
9
1
1