Re Anderson
[2022] WADC 97
•15 NOVEMBER 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE ANDERSON [2022] WADC 97
CORAM: COMMISSIONER COLLINS
HEARD: 9 MAY 2022; WRITTEN SUBMISSIONS FILED 22 & 26 APRIL AND 12 & 13 MAY 2022
DELIVERED : 15 NOVEMBER 2022
FILE NO/S: APP 73 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: TRENT KEITH ANDERSON
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: K L HALFORD
File Number : CIC 1339/2020
Catchwords:
Criminal injuries compensation - Appeal - Alleged offence - No person charged - Whether the award of compensation should be reduced on account of the victim's behaviour - Conduct of appellant - Assessment of compensation - Turns on own facts
Legislation:
Criminal Code Act Compilation Act 1913 (WA), s 297, s 317
Criminal Injuries Compensation Act 2003 (WA), s 3, s 6, s 17, s 38, s 39, s 41, s 48, s 55, s 56
District Court Act 1969 (WA)
Result:
Appeal allowed
Compensation awarded
Representation:
Counsel:
| Appellant | : | Ms R A Hinchliffe |
| Amicus Curiae | : | Ms G L Gilbert on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Soul Legal |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Atieh [2020] WADC 5
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Blackwell v Warren [2018] WADC 127
Briginshaw v Briginshaw (1938) 60 CLR 336
CME [2018] WADC 69
Dimitrovska v The State of Western Australia [2015] WASCA 162
E M v C L [2021] WADC 127
EB v Ramljak [2021] WADC 134
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Fairhead v Quartermaine [2010] WADC 1; (2010) 69 SR (WA) 73
Goodwyn v Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Gullelo v Halloran [2008] WADC 145
Guy v Hampson [2019] WADC 19
Hayman v Cartwright [2018] WASCA 116; (2018) 53 WAR 137
Hill v Clarke [2015] WADC 93
Hinchcliffe v Hinchcliffe [2010] WADC 78
Houghton v The Queen (2004) 28 WAR 399
Kaporonovski v The Queen (1973) 133 CLR 209
Kuczynski v The Queen (1989) 2 WAR 316
Lewington v The Assessor for Criminal Injuries Compensation [2005] WADC 200
Lloyd v Small (1996) 16 SR (WA) 111
Martin v Martin [2015] WADC 138
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66
Nominal Defendant v Owens (1978) 22 ALR 128
Osborne v Landpower Developments Pty Ltd (in Liq) [2003] WASCA 117
P v C [2005] WADC 107
Prideaux v Chief Executive Officer [2000] WADC 143; (2000) 24 SR (WA) 240
Re ATS [2017] WADC 92
Re Butler [2020] WADC 22
Re Collard [2018] WADC 1
Re Iaria [2018] WADC 22
Re Jackamarra [2014] WADC 9
Re Preston [2014] WADC 16
Re Robinson [2017] WADC 18
Re Sullivan [2017] WADC 17
Re Swinford [2021] WADC 82
Re TLJ [2016] WADC 74
Re VPAN [2011] WADC 40
Robertson v Hopwood [2018] WADC 66
Savic v Duric [2021] WADC 53
Sweetman v Lilley [2021] WADC 74
Underwood v Underwood [2018] WADC 13
WHW v Commissioner of Police [2014] WASCA 153 (S)
Table of Contents
A. Introduction
B. Mr Anderson's Compensation Application
C. The appeal to the District Court
Grounds of appeal
General principles
D. Issues for determination
E. Was Mr Anderson a victim of an alleged offence?
General principles
Mr Anderson's written and oral submissions about the alleged offence
An alleged offence
Assault occasioning bodily harm
Grievous bodily harm
F. The circumstances of the alleged offence
Mr Anderson
Peter Gvozdich
Medical records
Police records
G. Disposition
Mr Anderson suffered grievous bodily harm
Mr Anderson suffered his injuries as a result of the application of force
Was the application of force against Mr Anderson lawful?
H. Did Mr Anderson fail to do an act or thing that he ought reasonably to have done?
General principles
Did Mr Anderson fail to do any 'act or thing'?
First Alleged Failure
Second Alleged Failure
Disposition
I. Was Mr Anderson engaged in criminal conduct at the relevant time?
Background
General principles
Clear and cogent evidence is required
J. Has Mr Anderson suffered an injury or loss as a consequence of the commission of an alleged offence?
Overview
Injury
Physical injuries
Psychological harm
Is PTSD an injury for the purposes of the Compensation Act?
Loss
Economic loss
Past medical expenses
Future medical treatment
Medical reports
K. What is the appropriate amount of compensation?
General principles
General damages
Future medical treatment
L. Mr Anderson's behaviour - should any award of compensation be reduced?
M. Costs
N. Conclusion
O. Further evidence
COMMISSIONER COLLINS:
A. Introduction
On 27 August 2017, the appellant (Mr Anderson) was allegedly assaulted leaving a house in Swan View, Western Australia. Since the alleged assault, Mr Anderson has maintained that he does not know the identity of the person or persons who allegedly assaulted him.
On 27 August 2020, Mr Anderson applied for criminal injuries compensation under the Criminal Injuries Compensation Act 2003 (WA) (Compensation Act) in respect of injuries he sustained from the alleged assault (Compensation Application). Mr Anderson made his claim under s 17(2) of the Compensation Act, which concerns alleged offence(s) for which no person has been charged.
On 24 September 2021, an assessor of criminal injuries compensation (Assessor) refused Mr Anderson's Compensation Application (Assessor's Decision).
By appeal notice dated 14 October 2021 (Appeal Notice), Mr Anderson commenced an appeal from the Assessor's Decision.
The hearing of the appeal took place on 9 May 2022. Mr Anderson was represented by counsel. The Chief Executive Officer of the Department of Justice (CEO) appeared as amicus curiae and was represented by counsel for the State Solicitor.
In support of the appeal, Mr Anderson filed an affidavit sworn 5 May 2022 (Anderson Affidavit). Mr Anderson also filed outlines of submissions on 6 and 13 May 2022 (Anderson Submissions and Further Anderson Submissions respectively). The CEO filed outlines of submissions on 22 April and 13 May 2022 (CEO Submissions and Further CEO Submissions respectively).
For the reasons that follow, I would allow Mr Anderson's appeal. I consider that Mr Anderson is entitled to an award of compensation of $64,400 in total, of which $14,400 relates to future treatment expenses. Payment of the $14,400 for treatment expenses is subject to the satisfaction of s 48 of the Compensation Act.
B. Mr Anderson's Compensation Application
The Assessor's Papers contained the following relevant documents in support of Mr Anderson's Compensation Application:
(a)the Compensation Application of 27 August 2020: Assessor's Papers, pages 3 - 25;
(b)a medical report by Royal Perth Hospital – Bentley Group (Dr Alexandra Welborn (Dr Welborn)), dated 20 April 2020 (Dr Welborn's Report): Assessor's Papers, pages 96 - 99;
(c)statements of Mr Anderson dated 30 November 2018, 19 September and 8 October 2019: Assessor's Papers, pages 9 ‑13, 14 - 15 and 1343;
(d) Mr Anderson's medical records: Assessor's Papers, pages 64 ‑ 95 and 100 - 1237;
(e) a medical report by Dr Sivasankaran Balaratnasingam (Dr Bala), a consultant psychiatrist, dated 4 October 2020: Assessor's Papers, pages 31 and 51 - 63;
(f)the WA Police Information Report for Criminal Injuries Compensation dated 29 January 2018: Assessor's Papers, pages 16 - 18; and
(g) the WA Police Incident Report for incident occurring 27 August 2017: Assessor's Papers, pages 1238 - 1257.
By orders made on 15 February 2022, Mr Anderson was directed to file and serve a book of documents in addition to those provided to the Assessor, on which he intended to rely at the appeal hearing. Although Mr Anderson filed an affidavit, Mr Anderson did not file a book of documents.
In the Compensation Application, Mr Anderson claimed compensation for injury and for loss, being general damages ($50,000), loss of earning capacity ($15,000), and future medical treatment expenses ($20,000), which totalled $85,000. However, Mr Anderson offered to settle his claim for $75,000: Assessor's Papers, pages 3 - 25. Mr Anderson claimed compensation on the basis of alleged offence(s) for which no person had been charged: s 17(2) of the Compensation Act.
The background facts are summarised in the WA Police Incident Report as follows:
When reported: 27 August 2017
…
Police were contacted by SJOG Midland staff who stated a male person (Victim) had just presented with serious injuries. Victim was conveyed to hospital in a private vehicle by a friend (Peter Gvozdich) who stated he located him in a park.
Injuries - open lacerations to face and neck, fractured and dislocated left ankle, open fracture to left elbow and fractured jaw.
Doctor believes injuries are consistent with victim being hit by vehicle or an assault.
Victim was subsequently placed into an induced coma.
Actions taken:
•PFA located in park area between Talbot Road and Chartwell Road, Swan View. Parts of Talbot Road, blocked off from traffic to preserve possible scene.
•Major Crash in attendance due to information from hospital that injuries consistent with being hit by a vehicle.
•Forensic Field Operations also in attendance at request of Crime Car due to concerns this may be an assault. Concerns of this due to location of blood pool not consistent with allowing a vehicle to hit victim and no signs of vehicle marks.
•Briefing conducted between all units and incident scene assessed together.
•CCTV cameras observed facing towards scene location - occupants approached and footage reviewed.
•Footage shows two persons dragging a third person, kicking him and walking away. One of these persons appears to have a baseball bat or similar.
•No vehicle sighted in park or any person observed being hit by car. Matter to be treated as an assault.
•Major Crash relieved from scene after assisting with door knocks and Midland Detectives take carriage of investigation.
•Forensic Field Operations process scene.
•CCTV seized from neighbouring house.
•Victim's clothing seized from SJOG Midland Hospital and convey to CSU.
•Witness statement obtained from witness that located victim, however witness does not know what happened victim, only located him. Further associates/witnesses to be interviewed once further information obtained.
•Update from hospital is victim is in an induced coma and in a 'serious but stable condition', currently unable to be interviewed.
•Forensics consider for victim but critical decision made not to conduct examination due to contamination from hospital due to seriousness of injuries and time passed since being admitted.
•Police Media Section liaised with and media release to be conducted calling for witnesses.
Mr Anderson's Compensation Application included the following written statements he made on 30 November 2018. As to the circumstances of the alleged assault, Mr Anderson stated as follows:
I Trent Keith Anderson was at a house on Churchill Drive, Swan View where these two people, I don't know, were running someone down verbally and wanted to find him and hurt him. I put my verbal opinion in about this isn't your house and the person you're running down is a friend so pull up. They became aggressive and said get out the front door for a fight. The owner of the house said everyone leave. So I went out the front expecting to have to deal with these two people. They did not come out the front and so thought I would get going and walked to a nearby alleyway on the way home. It was dark and all I remember was falling to the ground. I went to get back up but fell straight back down not understanding why I had fallen. I can't remember anything else. I then awoke out of a coma a week later.
I accept Mr Anderson's evidence as to the circumstances of the alleged assault.
As to the impact of the alleged assault, which I also accept, Mr Anderson stated as follows:
1.My life before the assault I was on Centrelink looking for work but was very fit and healthy and my body not injured and sore and limited.
2.I had my ankle broken from behind apparently with a bat which I received 3 plates and 3 screws placed in my ankle. I had my left arm broken. I have 2 rods in it and can't fully straighten it. I had my jaw broken and eye socket. I have 11 plates and 8 screws in my head. I remember being dragged. They say I was dragged for 40 m which I had a bald spot the size of my palm on the back of my head and two big scars the size of a hand, 1 on the left shoulder blade and 1 the right shoulder blade from where I was dragged to hide my body. I was found taken to Midland Hospital and awoke in RPH.
3.I couldn't walk for a while and by trying to I had screw become loose. I got septicaemia at one stage and my ankle kept oozing to have to have an operation around May/June 2018 to remove the plates and screws. I spent a week in hospital. I had a major infection in my leg and at one stage they thought I might lose my leg.
4.I am scared of being out night. I hate being alone and don't like going out. I get bad anxiety and don't trust anyone. I'm very paranoid now. I hate alleyways. I just like being with my partner at home where I feel safe but am still anxious if I'm to be returned on I dunno know why I hate it. I feel so scared now and embarrassed.
I had 5 screws removed from my head as that was done in a day visit to RPH. I get headaches and it hurts even to sleep a lot on my left side. My face and jaw feels so awkward and uncomfortable, the same with my arm. I hate the way I am now. Please help me.
In his affidavit, Mr Anderson deposed that he was assaulted by people unknown to him: Anderson Affidavit, par 3. He further deposed that his recollection of the night of the assault was limited to the statement above at [12]: he stated further that 'I had never seen the people that attacked me before and I do not know them'.
As to Mr Anderson's injuries and his dealings with police, Mr Anderson provided evidence of these matters by affidavit (Anderson Affidavit), which I accept, as follows:
4.I was severely injured by the assault and was in a coma for about seven days afterward and then in ICU.
5.I remember that the police did visit me when I was in the hospital and I think this was very soon after I woke up from the coma.
a.I remember the police coming and asking me questions that I couldn't answer.
b.The police then asked the same question, which I still couldn't answer.
c.The police then tried to ask me the same question a third time which made me very agitated so they left the room.
6. I did not feel safe in the hospital. I did not know who had attacked me and I believed that they may come back to finish the job. I wasn't thinking straight when I work up from my coma. I was in a lot of pain and my jaw was closed with elastic bands.
7.The police only came to see me one time, and that was the time when I was still in hospital after I came out to the coma. I remember them coming into my room and I was extremely upset.
8I could not remember who had assaulted me so I couldn't tell the police anything. I was extremely scared to even be in the hospital.
9.The police did not contact me at all after that initial visit in the hospital.
10.About a month after I came out of the coma I started to remember very minor details about the assault like the suburb that I was in. I also suffered from nightmares that related to being assaulted in all different types of scenarios. The nightmares did not jog my memory at all about details of the people that assaulted me.
11.I didn't contact the police as I did not have any information that could help them.
12.I understand that the police did talk to my Mum and my Dad to try to get information about the assault. Both of my parents kept asking me what did I do to get assaulted so badly but I didn't know, couldn't tell them and that I knew I had not done anything.
13.The information that my father and mother gave the police did not come from me. My Dad and Mum made assumptions about me that were simply not true. Apparently my Dad told the police that I was not providing them with information because I was protecting associates, which was not true. I did not provide the police with information because I had no information to provide them.
At the hearing of the appeal, it was not controversial that Mr Anderson had suffered serious injuries prior to being found and driven to hospital on 27 August 2017.
By letter dated 2 July 2021, the Assessor wrote to the solicitors for Mr Anderson and set out some of her concerns with Mr Anderson's Compensation Application: Assessor's Papers, pages 46 - 48. Relevantly, the Assessor's 2 July 2021 letter noted that she intended to amend Mr Anderson's application to correct the date of the incident, reflecting the fact that Mr Anderson was injured on 27 August 2017 and not 2 September 2017 as contained in his application.
The Assessor's letter informed Mr Anderson that she had reached a 'preliminary review' that she would refuse his application for compensation under s 38 of the Compensation Act. This was because Mr Anderson had not provided a statement to the police, or otherwise assisted them with their investigations. By failing to do so, Mr Anderson had not done an act or thing, which he ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence.
The Assessor's letter also noted that the Compensation Application had been brought pursuant to s 17 of the Compensation Act, which required Mr Anderson to provide 'clear and cogent proof' of the criminal conduct alleged. The letter stated that Mr Anderson had not provided 'clear and cogent proof of the circumstances of the incident so as to persuade [the Assessor] that an alleged offence [had] occurred.' Given the above matters, the Assessor informed Mr Anderson that she had reached a 'preliminary determination to refuse' the Compensation Application.
The Assessor concluded her letter by inviting Mr Anderson to provide any further submissions or evidence in response.
By letter dated 15 September 2021, Mr Anderson's solicitors provided the Assessor with further information about Mr Anderson's claim for compensation under the Compensation Act. That information responded to the Assessor's concerns with s 17 and s 38 of the Compensation Act.
By letter dated 24 September 2021, the Assessor refused the Compensation Application: Assessor's Papers, page 2. Having refused the Compensation Application, the Assessor did not assess Mr Anderson's claim for damages. The Assessor's letter stated, relevantly, that:
I refer to my correspondence dated 2 July 2021 which set out a preliminary refusal of your client's application and gave you the opportunity to make submission in reply prior to 2 August 2021. I refer to your correspondence dated 15 September 2021 and have considered your further submissions.
I am not satisfied the circumstances of the incident on 2 September 2017 comprise an alleged offence which gives rise to an entitlement to compensation. The circumstances of the incident are unclear and I do not consider I have clear and cogent proof of the alleged criminal conduct. Further, with respect to section 38 of the Criminal Injuries Compensation Act 2003 (the Act) your client made no contact with police between 4 September 2017 and 21 February 2019, when he did so only for the purposes of this claim. He failed to provide police with information about the circumstances of the incident he included with this application and frustrated their ability to properly investigate the alleged offence.
For the reasons set out in my correspondence of 2 July 2021 and herein I now refuse your client's application for compensation.
C. The appeal to the District Court
Grounds of appeal
In his Appeal Notice, Mr Anderson relied on two grounds of appeal, namely:
1.The Assessor failed to give any or any sufficient weight to the medical report of Dr Bala as to Mr Anderson's psychological injuries.
2.The Assessor failed to give any or any sufficient weight to the injuries sustained by Mr Anderson and [the] effect of those injuries.
General principles
The long title to the Compensation Act is an Act 'to provide for the payment of compensation to victims of offences in some circumstances, and for related matters'. It may be inferred that that is the public policy behind the Compensation Act: Hinchcliffe v Hinchcliffe [2010] WADC 78 [60] (Stevenson DCJ) (Hinchcliffe).
Mr Anderson's appeal is made pursuant to s 55 of the Compensation Act, which involves an appeal to the District Court.
In hearing this appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information': s 56(1) of the Compensation Act.
The appeal is a hearing de novo: Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude) (Gullelo); Underwood v Underwood [2018] WADC 13 [19] (Gething DCJ) (Underwood). Mr Anderson does not have to demonstrate an error on the part of the Assessor in order to succeed: Gullelo [5]; Underwood [19].
It is open to this court to 'confirm, vary or reverse the assessor's decision, either in whole or in part': s 56(2)(b) of the Compensation Act.
In this court, there are some decisions that differ in their conclusions as to whether it is appropriate to have regard to the assessor's reasons. Gullelo [5], Blackwell v Warren [2018] WADC 127 [5] (Troy DCJ), Re Robinson [2017] WADC 18 [9] (Troy DCJ) and Underwood [19] are authority for the view that regard should be had to the reasons. In contrast, more recent authorities tend to suggest that the appeal should be determined without regard to the assessor's reasons: see Re Swinford [2021] WADC 82 [17] (Russell DCJ) (Swinford), Sweetman v Lilley [2021] WADC 74 [9] (Troy DCJ) (Sweetman), EB v Ramljak [2021] WADC 134 [18] (Whitby DCJ) and Guy v Hampson [2019] WADC 19 [14] (Bowden DCJ).
Section s 56(1) of the Compensation Act makes plain that the court is to decide applications that come before it 'afresh, without being fettered by the assessor's decision'.
The key part of the text in s 56(1) is that this court is not 'fettered' by the assessor's 'decision'. That does not mean that it is impermissible to have regard to an assessor's decision or reasons for decision. Practically speaking, it is necessary to consider an assessor's decision for the purposes of s 55(1) of the Compensation Act, to ascertain whether the assessor made or refused to make a compensation award or the amount of the compensation award. Further, this court 'may receive further evidence and information': s 56(1) of the Compensation Act. To determine whether to receive 'further evidence', it is necessary to understand the evidence that was before the assessor, which is likely to be set out in the assessor's reasons for decision. Similarly, it is necessary to review the assessor's reasons for decision to understand an applicant's grounds of appeal. In summary, I am satisfied that it is permissible to have regard to an assessor's reasons, which can be undertaken without being fettered by the assessor's decision.
In determining a compensation application, neither the assessor nor the court are bound by rules of practice as to evidence or procedure but may inform themselves in any manner they think fit: s 18 of the Compensation Act.
D. Issues for determination
Broadly speaking there are two issues for determination. The first concerns whether the court should make a compensation award in respect of an alleged offence. The resolution of this issue turns on whether the court is satisfied that Mr Anderson was the victim of an alleged offence, and if so, whether there is a statutory bar to making a compensation award.
The second issue concerns the quantum of any compensation award in favour of Mr Anderson, should it be found that he was the victim of an offence and should it be found that there is nothing in the Compensation Act preventing an award from being made. Determination of this issue turns on whether Mr Anderson's injury and any claimed loss occurred as a result of the alleged offence.
These issues are addressed below.
E. Was Mr Anderson a victim of an alleged offence?
General principles
Section 17 is concerned with the commission of an alleged offence but no person is charged with the alleged offence.
Section 17 provides, relevantly:
17.Alleged offence: no person charged
(1)This section applies if an alleged offence is committed but no person is charged with the alleged offence.
(2) A person who suffers injury as a consequence of the commission of the alleged offence may apply for compensation for that injury and any loss also suffered.
…
(4)An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied -
(a)if the application is made under subsection (2) - that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the alleged offence[.]
…
(5) If an assessor is satisfied that the person who committed the act or made the omission that constitutes the alleged offence was, at the time of the act or omission, not criminally responsible for it, the alleged offence is to be taken not to have been committed for the purposes of subsection (4) unless the person was not criminally responsible for it by reason of The Criminal Code section 27 or the Criminal Investigation (Covert Powers) Act 2012 section 27, 31 or 34.
Section 17 contains a number of terms which are defined under the Compensation Act. An 'offence' is defined under the Compensation Act to mean an 'alleged offence' or a 'proved offence'. An 'alleged offence' is defined to mean 'a crime, misdemeanour or simpler offence of which no person has been convicted'. A 'proved offence' is defined to mean 'a crime, misdemeanour or simple offence of which a person has been convicted'. 'Satisfied' is defined to mean 'satisfied on the balance of probabilities': s 3 of the Compensation Act.
Putting these terms together, Mr Anderson must satisfy the court on the balance of probabilities that a specific act was committed against him which would qualify as a crime, misdemeanour or simple offence if the perpetrator had been convicted of it: Re Jackamarra [2014] WADC 9 [13] (Schoombee DCJ).
The court must be satisfied that Mr Anderson's 'claimed injury' and 'any claimed loss' occurred and did so as a consequence of the 'alleged offence': s 17(4)(a) of the Compensation Act; Atieh [2020] WADC 5 [2] (Vernon DCJ). 'Injury' is defined to mean 'bodily harm, mental and nervous shock, or pregnancy': s 3 of the Compensation Act.
Mr Anderson must also satisfy the court that he has negatived the existence of any defences reasonably open: Re Robinson [22] (Troy DCJ). The CEO observed likewise in written submissions: CEO Submissions, pars 62 - 63.
Mr Anderson is required to prove his claim for compensation on the balance of probabilities. It must be more probable than not that the alleged offending occurred: Re TLJ [2016] WADC 74 [51] (Goetze DCJ).
The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is being sought to prove. This is particularly so in the context of alleged criminal conduct: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 449 - 450; [1992] HCA 66 (Mason CJ, Brennan, Deane and Gaudron JJ).
In Briginshaw v Briginshaw (1938) 60 CLR 336, 362 Dixon J stated that the seriousness of the allegation, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding were considerations which impacted upon the question whether an issue had been proven to the reasonable satisfaction of the court: see also Re Jackamarra [74].
In the context of an offence for which no one has been charged under s 17 of the Compensation Act, Herron DCJ explained in Re ATS [2017] WADC 92 [29] and [114], that the court should feel an 'actual persuasion' that an offence has occurred. That conclusion however, should not be reached without the exercise of caution:
Onus of proof
29 When in a civil proceeding a question arises whether a crime has been committed, the standard of proof is on the balance of probabilities but, having regard to the principles explained in Briginshaw v Briginshaw (1938) 60 CLR 336, weight is given to the presumption of innocence and exactness of proof is required. I adopt my reasoning in Quine v Keerasawat [2014] WADC 150; (2014) 87 SR (WA) 17 [63] - [70]. I concluded [70]:
In summary, the defendant must prove on the balance of probabilities the plaintiff committed an offence of unlawful use of a motor vehicle contrary to s 371A of the Criminal Code and that the plaintiff and the defendant were together engaged in a joint illegal enterprise. In deciding whether a crime has been committed I should feel an actual persuasion of its occurrence and such a conclusion should not be reached without the exercise of caution and unless the evidence survives careful scrutiny and appears precise and not loose and inexact: Briginshaw v Briginshaw (361 ‑ 363, 368) (Dixon J). I should not draw an inference adverse to the plaintiff unless I accept that the circumstances give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability, the plaintiff committed a criminal offence.
In order to discharge the burden of proof, Mr Anderson must show that there are more than conflicting inferences of equal probability so that the choice between them is a mere matter of conjecture: Martin v Martin [2015] WADC 138 [30], Derrick DCJ citing Nominal Defendant v Owens (1978) 22 ALR 128, 132; Lloyd v Small (1996) 16 SR (WA) 111, 113 - 114.
It is a serious matter to make findings that an alleged offender has committed an act in the nature of an offence, particularly where they are not given an opportunity to refute those allegations: Re Jackamarra [75].
Mr Anderson's written and oral submissions about the alleged offence
The written submissions filed on behalf Mr Anderson did not canvass in any detail whether an offence had occurred.
At the hearing of the appeal, in an exchange with the bench Mr Anderson's counsel was asked whether she had to prove that there was an offence, and that there was no defence to that offence. In response, Mr Anderson's counsel submitted that (ts 18):
HINCHLIFFE, MS: Well, apart from the fact that [Mr Anderson] suffered injuries and he was taken to the hospital and put in a coma for seven days, I don't understand how you can say an offence didn't occur. He didn't do it to himself.
A little later, Mr Anderson's counsel submitted that Mr Anderson's injuries were 'extensive' and that they would amount to 'grievous bodily harm in the event that someone was apprehended' for 'the assault' (ts 19).
Mr Anderson's counsel did not address the court further on the defence point.
There was no direct evidence as to how Mr Anderson came by his injuries: CEO's Submissions, pars 31, 42. At the hearing of the appeal, this was not controversial.
In substance, Mr Anderson's counsel submitted that Mr Anderson had been assaulted, however, because he had 'no idea of what happened' he was not in a position to tell the court the circumstances of the offending (ts 18 - ts 21). This also meant that Mr Anderson was not in a position to expressly negate any defences that might be available to the alleged perpetrator(s), such as provocation or self-defence (ts 20).
An alleged offence
As set out above, Mr Anderson must satisfy the court, on the balance of probabilities, that an alleged offence occurred. The court must also be satisfied that there were no defences reasonably open to the alleged perpetrator(s).
Whether Mr Anderson was the victim of an alleged offence involves determination of the following two matters:
(a)whether Mr Anderson's injuries were inflicted by another; and
(b)the circumstances in which Mr Anderson's injuries were inflicted.
During the hearing of the appeal, it was accepted that Mr Anderson had suffered serious injuries prior to being found and driven to hospital on 27 August 2017. Having regard to the seriousness of Mr Anderson's injuries, and the medical evidence about those injuries, to which I refer below, Mr Anderson's injuries are consistent with sustaining assault occasioning bodily harm (AOBH) and grievous bodily harm (GBH). General principles relevant to these offences are set out below.
Assault occasioning bodily harm
Section 317(1) of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) provides that:
317.Assault causing bodily harm
(1) Any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime, and is liable -
….
The term 'assault' is defined in s 222 of the Criminal Code and relevantly provides that:
222.Term used: assault
A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.
…
An assault by actual application of force does not involve an element of intention (as distinct from assault by attempted or threatened application of force): Hayman v Cartwright [2018] WASCA 116 [81]; (2018) 53 WAR 137 (Buss P, Mazza and Beech JJA).
An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law: s 223 of the Criminal Code.
An assault is not unlawful if an excuse or defence applies. For example:
(a)by reason of provocation, a person is not criminally responsible for an assault committed upon a person who provokes the assault: s 246 of the Criminal Code. That section prescribes what circumstances constitute provocation; and
(b)by reason of self-defence, an assault will not be unlawful if the person who assaulted the other person did so in self-defence: s 248 of the Criminal Code. That is, if the person believed that an act was necessary to defend themselves from an unlawful harmful act by the person assaulted and their response was reasonable in the circumstances as they believed them to be and they had reasonable grounds for those beliefs. In effect, their response was proportionate to the alleged unlawful harmful act.
The term 'bodily harm' is defined to mean 'any bodily injury which interferes with health or comfort': s 1(1) of the Criminal Code.
Grievous bodily harm
Section 297 of the Criminal Code provides, relevantly, that:
297.Grievous bodily harm
(1) Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 10 years.
…
The term 'grievous bodily harm' is defined to mean 'any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health': s 1(1) of the Criminal Code.
'Unlawful' in the context of s 297 has been held to mean 'prohibited by law' or 'contrary to law and not excused': Houghton v The Queen (2004) 28 WAR 399 [121] (Steytler and Wheeler JJ); see also Kuczynski v The Queen (1989) 2 WAR 316, 321. In effect, the doing of grievous bodily harm by one person to another will be unlawful if it is not authorised, justified or excused by law, for example, by reason of self-defence. An applicant must negate the justification or excuse of self-defence.
Unlike self-defence, provocation is not a defence to a charge of unlawfully doing grievous bodily harm: Re Preston [2014] WADC 16 [30] (Eaton DCJ), citing Kaporonovski v The Queen (1973) 133 CLR 209.
F. The circumstances of the alleged offence
Mr Anderson
The materials before the Assessor did not include any direct evidence as to how Mr Anderson came by his injuries, save that he sustained them some time prior to being found by his friend, Mr Peter Gvozdich on 27 August 2017, who transported him to hospital: Assessor's Papers, pages 69 and 1348 (witness statement of Peter Dusko Gvozdich dated 27 August 2017).
Mr Anderson's recollection of the alleged assault is limited, as recorded in his Compensation Application at [12] above. By way of summary, Mr Anderson alleges that on the night of 26 August 2017, he was at a house on Churchill Drive, Swan View. At some stage, he got into an argument with two people in the house. The owner of the house asked them all to leave. Mr Anderson left the house expecting to meet the two people outside for a fight. However, the two people did not leave via the front door. Consequently, he began walking home via a nearby alleyway. He remembers falling to the ground, and trying to get up, but falling down again. Mr Anderson alleges that he does not remember anything else about the assault. His next recollection is awakening from a coma in hospital a week later.
Mr Anderson provided the police with a statement dated 8 October 2019: Assessor's Papers, page 1343. In that statement, he states relevantly as follows:
My name is Trent Anderson DOB 14.2.87. I am writing this letter in regard to my assault that left me in a coma around September of 2017.
I vaguely remember being asked if I wanted to speak to police when I awoke from my coma. I was still trying to understand what had happened to me as I had no idea who, what, where and why I woke up in hospital. I was that scared for my safety and was worried that something would happen to me in hospital when everyone left.
How could I tell the police anything if I didn't even know what happened to me. All I can remember was getting upset and crying and said I don't want to speak to them. It was the most horrific, scariest time in my life trying to understand what happen.
To this day I still don't know why this really happened. I am sorry if you think I didn't want to cooperate. I was in so much shock.
In his affidavit, Mr Anderson states that he recalled that the police visited him (on 4 September 2017) after he awoke from a coma. He recalls that the police asked him some questions about the alleged assault. However, he could not remember who assaulted him and so he was not in a position to tell the police anything about the assault: Anderson Affidavit, pars 5 - 8.
I observe that Mr Anderson's Affidavit evidence - about not remembering who assaulted him - contrasts with his statements of 30 November 2018 and 8 October 2019, where he effectively states that he does not know what happened to him. The distinction may be a distinction without a difference. In effect, Mr Anderson's position is that he does not know who assaulted him on the night of 27 August 2017.
Mr Anderson's counsel submitted at the appeal hearing that although Mr Anderson was a person 'who [was] not unknown to police' and had been 'in and out of prison', the police 'chose' not to interview him again following the interview with him on 4 September 2017 (ts 5).
Peter Gvozdich
Peter Dusko Gvozdich provided a statement to the police dated 27 August 2017 (Gvozdich statement): Assessor's Papers, pages 1344 ‑ 1349. I accept his evidence, though with some reservations.
In his statement, Mr Gvozdich stated that on the night in question, he was at home with his partner, Anne Carr, where they reside at Swan View. Also with him at the time, which was about 6.00 pm, was Ms Carr's daughter, Jessica, a friend by the name of Michael Lever and Mr Anderson: Assessor's Papers, page 1344.
Somewhere between 6.00 pm and 7.00 pm, Mr Anderson left the house on foot. Mr Gvozdich stated that he did not know where Mr Anderson was going and Mr Gvozdich did not see Mr Anderson again that evening: Assessor's Papers, page 1345.
At around 9.45 pm, Mr Gvozdich and Mr Lever left Mr Gvozdich's home, on foot, to visit a friend. The walk takes about 15 to 20 minutes. Mr Gvozdich stated that he stayed at his friend's house for about 2.5 to 3 hours. Thereafter, he walked home: Assessor's Papers, pages 1345 - 1346.
Mr Gvozdich stated that on his way home, he and Mr Lever found Mr Anderson. Mr Gvozdich stated that as he got close to Mr Anderson, he heard a male talking to himself and he recognised the voice as that of Mr Anderson. He found him 'leaning on the telephone pole at the start of Churchill Park facing onto Talbot Street': Assessor's Papers, pages 1345 - 1346.
As may be apparent, Mr Gvozdich's evidence is to the effect that he and Mr Lever found Mr Anderson between approximately 12.30 am and 1.30 am on 27 August 2017. Mr Gvozdich's evidence is not easily reconciled with the police evidence referred to below, in particular, the CCTV footage, and the hospital report of when Mr Anderson was admitted to St John of God Hospital, Midland.
Mr Gvozdich stated that as he got close to Mr Anderson, he could see that his face was 'extremely swollen, about twice its normal-size'. He said he could 'see lots of blood on his face and noticed he had a dislocated ankle and shoulder on his left side': Assessor's Papers, page 1347.
Mr Gvozdich stated that he kept trying to talk to Mr Anderson to keep him awake and conscious. He stated that he asked him what had happened and who had beaten him up. But Mr Anderson would not say. Mr Gvozdich stated that Ms Carr came down to where Mr Anderson was located and reversed the car to where Mr Anderson was leaning against the pole: Assessor's Papers, pages 1347 ‑ 1348. Although Mr Gvozdich does not say that Ms Carr drove to where Mr Anderson was located, that seems to be the import of his evidence.
Mr Gvozdich stated that he and Ms Carr drove Mr Anderson to St John of God Hospital, Midland: Assessor's Papers, page 1348. Mr Gvozdich stated that on arrival at the hospital, he handed Mr Anderson over to the hospital staff before heading home. Further, he stated that he does not know how Mr Anderson was injured and 'he did not see anything': Assessor's Papers, page 1349.
Medical records
Mr Anderson presented to St John of God Hospital, Midland and then Royal Perth Hospital with significant injuries.
Medical records from St John of God Hospital, Midland, record that Mr Anderson presented to the hospital on 27 August 2017, at 2.30 am, where he was placed into an induced coma and transferred to Royal Perth Hospital: Assessor's Papers, pages 69, 75 and 96; see also the Compensation Application, page 22.
Included in the Assessor's Papers, was a report prepared by Dr Welborn. Dr Welborn commenced her report by stating that 'I have never met nor examined this patient and the information in this report is based on my reading of case file notes which bear this patient's name': Assessor's Papers, page 96.
According to Dr Welborn's Report, Mr Anderson's injuries included the following:
(a) complicated facial fractures into the carotid canal on the left;
(b) a left facial laceration;
(c)mandibular fractures;
(d)bilateral conjunctival haematomas;
(e)left open fracture dislocation of the ankle; and
(f) left arm fractures.
In addition to the above, Dr Welborn's Report included the following: Assessor's Papers, page 96:
On examination on arrival the patient was intubated and his cervical spine was immobilised with sandbags. His breathing was assisted, his pulse was 90 and BP 160. There were bilateral subconjunctival haematomas. There was a sutured facial laceration extending the line of the mouth to the left side of his face, there was a right sided CVC in place, there was no bony deformity on the scalp, his face was swollen, there was a cast on both lower legs. There were abrasions over his back.
Dr Welborn's Report recorded that initial radiology conducted by Royal Perth Hospital revealed that Mr Anderson had sustained fractures in his left forearm (including elbow) and left ankle. Mr Anderson underwent a CT scan. The scan revealed multiple facial bone injuries including right orbit walls, bilateral lower lobe patchy airspace infiltrates with a degree of aspiration pneumonitis or lung contusion: Assessor's Papers, pages 96 ‑ 97.
Dr Welborn's Report records that Mr Anderson was transferred to the intensive care unit (ICU), where he underwent several operations to treat his facial fractures, and the fractures to his left forearm and left ankle. This included the extraction of eight teeth, as they were 'unrestorable': Assessor's Papers, page 97.
Mr Anderson was brought out of his coma on 1 September 2017: Mr Anderson's Submissions, par 13.
Mr Anderson was discharged from the hospital on 7 September 2017, after a 12-day admission: Assessor's Papers, page 97.
The Assessor's Papers included photographs of Mr Anderson's injuries: Assessor's Papers, pages 1351 - 1363.
Dr Welborn's Report also records that Mr Anderson underwent several other operations following his injuries. In this regard, Mr Anderson was admitted to Royal Perth Hospital in May 2018 with an infected left leg, which required an operation to remove the 'metal work'. Later that month, he had 'plates and screws from the maxilla' removed, as well as teeth and parts thereof: Assessor's Papers, pages 97 - 98.
Dr Welborn also records that Mr Anderson had an extensive period of Outpatient Clinic follow up over several years: Assessor's Papers, page 98.
At the end of Dr Welborn's Report, Dr Welborn expressed the following opinion: Assessor's Papers, page 98:
The circumstances under which this patient experienced the multiple traumatic injuries are unknown as he was allegedly found by associates in a compromised state. However, it is clear that the patient has sustained multiple different applications of blunt force and the fact that he had abrasions over his back may indicate that he had forceful contact with a gravel surface. The fractured left lower forearm may be a result of defence type injury sustained when trying to ward off an assailant. There was some speculation he may have been struck by a car or assaulted by others, however, without further corroboration, it is impossible to say on consideration of his injuries.
Mr Anderson's description of his injuries, to which I have referred at [14] and [16] above, is consistent with the medical records and other materials before the court, including Mr Gvozdich's statement. I accept the facts recorded in the medical records and am satisfied that Mr Anderson sustained the injuries described. I am also satisfied that they were caused by the incident on 27 August 2017.
Mr Anderson saw Dr Bala for a medico-legal assessment for one hour on 30 September 2020 via a video link. In his report, Dr Bala states that he had access to and had read various records, including medical records, Mr Anderson's various statements to the police, his criminal injuries compensation claim form as well as police incident report dated 27 August 2017. In his opinion, Dr Bala states that Mr Anderson developed a post-traumatic stress disorder (PTSD) following the assault on 27 August 2017: Assessor's Papers, pages 51 ‑ 63. I accept Dr Bala's evidence.
Mr Anderson did not lead evidence from a medical professional about any functional impairment or residual disability that resulted from his injuries.
Police records
The Assessor's Papers included the following documents. I accept the facts recorded in these documents.
The Police Running Sheet for 27 August 2017 records as follows: Assessor's Papers, page 1257:
CCTV reviewed and shows at 1:40 am two males are dragging a person by the legs. Males dump the person and kick him, 1 male seen with baseball bat, two males walk away.
Majority assault not captured on camera.
Based on the above information, the Police record in the Running Sheet that the incident is believed to be an assault, not a vehicle hitting the victim: Assessor's Papers, page 1257.
The Midland Detectives Crime file dated 21 January 2018 records the alleged offence as grievous bodily harm (s 297 of the Criminal Code): Assessor's Papers, pages 1258 - 1263. Further, the file included statements describing the camera footage (CCTV) of the incident. One of the statements records '[r]eview of CCTV shows two male persons assaulted the victim in the park' being the park running between Talbot Road and Chartwell Way, Swan View: Assessor's Papers, page 1271. The details continue: 'Victim unable to provide details or statement at this stage of the investigation due to condition'. From this, it may be seen that the police have assumed that the victim was Mr Anderson.
The Midland Detectives Crime file included CCTV photographs/screenshots of the alleged assault. They were grainy, black and white, and not particularly clear. However, several of the photographs show a person with a long black item in their right hand. The item has the shape of a baseball bat or something similar. The police statements describe this as 'something long black in right hand (bat?)' and 'black bat?': Assessor's Papers, pages 1271 - 1272.
Along with the photographs, was a timeline and written summary describing the camera footage: Assessor's Papers, pages 1272 ‑ 1273. The summary appears to have been made in relation to three different camera angles. The earliest the CCTV footage commences recording movement is at 01:39:35 and the latest footage ceases at 2:09:35, though the footage obtained is for the period 1.15 am to 3.30 am.
Relevantly, the police stated as follows in relation to camera 1:
01:42Two men dragging victim towards Talbot Road
Suspect 1(S1) closest to camera is holding something in right hand pulling the victim (V) (Mr Anderson) along with left hand on V's leg
Suspect 2(S2) further from camera, left hand pulling leg of victim. Something long black in right hand (bat?)
S2 is wearing dark pants, t-shirt with large motif on front and dark hair - there is a possibility he has facial hair but that isn't clear
S1 is wearing possibly a coloured light long sleeved shirt over light pants and dark shoes. Has something in right hand (possibly a phone or light)
01:42:52S1 and S2 have started to walk off, V left behind (can't see exact location from this view due to shrub) S1 and S2 both simultaneously turn back around and walked back to the V.
S2 kicks V - big swing up kick
S1 starts pulling V again towards Talbot Road
01:43Both S1 and S2 to walking off again (back up towards Chartwell Way)
V is just visible between tree and pillar
S1 and S2 returned to V
01:43:20V legs picked up again and pull down offscreen
01:44S1 walking back up, light (phone) in right hand
S2 behind him with black bat?
01:54:09IN THIS PORTION OF VIDEO I HAVE BEEN UNABLE TO DISTINGUISH BETWEEN S1 AND ANOTHER MALE. THEREFORE ALTHOUGH IT IS APPARENT S1 IS PRESENT IT IS UNKNOWN IF HE IS THE PERSON TO BE NOMINATED MALE1 OR MALE2. S2 IS CLEAR AND WILL REMAIN NOMINATED AS S2.
Male 1 (M1) walks down towards Talbot Road
01:54:16S2 walks down - nil weapon visible - motif visible on rear of shirt
Male 2 (M2) is walking next to S2. M2 appears to possibly be smoking, but possibly only a light. Is holding something that emits light in each hand
01:54:49Male 3 (M3) walks down - dark shoes, darkish pants/jeans, lighter shirt
Male 4(M4) is behind M3 - has a cap on, some kind of patterned jacket, has a light and has shoes on.
01:55:13M4 walks back up towards Chartwell Way at pace with light
01:55:23Three males walk back up - either M1 or M2 remain behind - unknown which at this stage.
END
Written statements were made about another camera angle (camera 3), relevantly, as follows: '01:39:35 - See movement, second male arrives with light, see a male stomp'; '01:42 - V being dragged'.
The Assessor's Papers did not include CCTV footage of Mr Gvozdich and Mr Lever finding Mr Anderson and putting him into a car with the assistance of Ms Carr.
The police statements do not record the Victim (Mr Anderson) striking or attacking his assailants.
It is not easy to reconcile Mr Gvozdich's evidence with the recorded CCTV footage and the timing of that footage. On Mr Gvozdich's evidence, Mr Lever and Mr Gvozdich located Mr Anderson at about 1.30 am at the latest. In contrast, the CCTV footage appears to record an assault that continued to at least 1.44 am, and possibly to around 2.00 am or later. If the CCTV footage timeline is accepted as correct, Mr Anderson was found injured around 2.00 am, loaded into a vehicle, and taken to St John of God Hospital, Midland by 2.30 am. Although that timeline seems possible, it seems to me more probable that either Mr Gvozdich was mistaken as to the precise time when he came upon Mr Anderson, or the CCTV time clock was incorrect, or perhaps, both. While unclear, nothing material turns on resolution of this factual matter.
Neither Ms Carr nor Mr Lever provided police with a statement: Assessor's Papers, pages 1246 and 1260.
The Police Running Sheet records that on 4 September 2017, the police attended Royal Perth Hospital to speak with Mr Anderson about the alleged assault: Assessor's Papers, page 1250:
Victim initially seemed unable to converse so he was informed that we would return to speak with him in a few days. The victim then informed us that he wasn't interested in police help at all and not to come back. The victim was vehement in his unwillingness to engage with police, becoming aggravated and telling us to leave his room.
Victim was advised that should he change his mind his parents can get in contact with police.
Further, the same Police Running Sheet records that the police spoke to Mr Anderson's father, Terry Anderson at length, on the same day, outside of the trauma ward. The report records, relevantly, that Mr Anderson's father told the police that Mr Anderson was 'coming off the drugs and having withdrawals' and that he would not engage with the police due to the 'code amongst his fellow criminal associates': Assessor's Paper's, page 1250.
The Midland Detectives crime file included records to the effect that Mr Anderson may have been assaulted by a suspected member of the 'Club Derro OMCG' [which I understand to be a reference to the Club Deroes motorcycle gang]: Assessor's Papers, pages 1261 and 1323. However, that information appeared to come from an anonymous source and was based on rumour. The Midland Detectives crime file also included records to the effect that Mr Anderson may have, together with another person, owed a large drug debt to persons unknown. However, on speaking to the other person, the police were informed that he did not share a drug debt with Mr Anderson: Assessor's Papers, pages 28 and 1261.
I observe here that the above information found at page 1261 of the Assessor's Papers, was within the Midland Detectives crime file, under the heading 'Intelligence'. In an exchange with the CEO's counsel during the appeal hearing, counsel explained that the information was provided to the police by members of the community and by police officers. The information included 'rumour' without 'anything that corroborates them'. In those circumstances, counsel accepted that it was a question for the court as to the weight that should be given to that evidence (ts 37).
The Police Running Sheet for 11 October 2017 recorded the alleged offence as grievous bodily harm (s 297 of the Criminal Code): Assessor's Papers, page 1246.
The Police Running Sheet records that on 21 February 2019, Mr Anderson and his father, Terry Anderson, attended the Midland Detectives Office for the purposes of making a statement in relation to the alleged assault. The Police Running Sheet records that Mr Anderson was going to try and seek criminal compensation and that he had been informed that his application might be affected by whether he had co‑operated with the police: Assessor's Papers, page 1245.
G. Disposition
Mr Anderson suffered grievous bodily harm
On the evidence before the court, I am satisfied and feel an actual persuasion, on the balance of probabilities, that on the night in question, Mr Anderson suffered grievous bodily harm. My reasons for reaching that conclusion are as follows.
Mr Gvozdich found Mr Anderson with serious injuries; his statement to the police was that he talked to Mr Anderson to try and keep him awake and conscious. From this, it may be inferred that Mr Anderson was at the relevant time, largely, if not completely, incapacitated.
Mr Anderson presented to St John of God Hospital, Midland and Royal Perth Hospital with serious injuries to his face (including his eye socket, jaw and teeth), left arm and left ankle (amongst others). As set out above, the term 'grievous bodily harm' is defined to mean 'any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health'. Having regard to Mr Anderson's injuries, the steps taken to treat Mr Anderson's injuries, and the amount of post-operative care involved in treating Mr Anderson's injuries, I am satisfied that his injuries would have, in the absence of medical and/or dental intervention and treatment, resulted in permanent injury to his health.
Mr Anderson suffered his injuries as a result of the application of force
On the evidence before the court, I am satisfied that Mr Anderson suffered his injuries on the night in question as a result of the application of force by another or others. In the absence of direct evidence, I have reached that conclusion having regard to Mr Gvozdich's statement to the police, CCTV footage and inferences available by reference to the medical and police evidence together with the circumstances of Mr Anderson's presentation to St John of God Hospital, Midland. A brief summary of my reasons for reaching that conclusion are set out below.
First, as set out above, there is no direct evidence as to how Mr Anderson suffered his injuries, save that they occurred early in the morning of 27 August 2017. On being found, Mr Anderson was immediately taken to St John of God Hospital, Midland and placed in an induced coma from which he did not awake for several days. Ultimately, Mr Anderson's injuries required him to stay in hospital for about 12 days.
Secondly, although the circumstances in which Mr Anderson was injured were not known to Dr Welborn, it was her opinion that it was 'clear' that Mr Anderson had 'sustained multiple different applications of blunt force'. The injury to Mr Anderson's left forearm was consistent with defensive type injuries that could be sustained trying to ward off an assailant. However, without further information, Dr Welborn was not able to say whether Mr Anderson's injuries were caused by being struck by a motor vehicle or assaulted by others.
Thirdly, having regard to Dr Welborn's opinion, and the number and extent of Mr Anderson's injuries, I infer that they were not injuries sustained as the result of Mr Anderson tripping, stumbling or falling over and perhaps striking his head on some hard surface, such as a roadside curb.
Fourthly, CCTV footage obtained by the police and their review of the footage indicate that Mr Anderson was seen being dragged by the legs by two or more males and kicked. A male was seen carrying a bat‑like object. Although not as clear as the above, the records tend to suggest that Mr Anderson was 'stomped on'. At the conclusion of the attack on Mr Anderson, the assailants are seen walking away. The camera footage is about half an hour in length.
While the footage is not sufficiently clear to identify the faces of his assailants, the Police Running Sheets record that the police were investigating the alleged offence(s) as grievous bodily harm.
Fifthly, the CCTV footage and some of the injuries that Mr Anderson sustained are consistent with the use of a baseball bat or similar object.
Sixthly, there is some evidence that suggests that Mr Anderson may have been assaulted by a suspected member of the Club Deroes motorcycle gang. Similarly, there is some conflicting evidence that Mr Anderson may have been assaulted over a drug debt.
In summary, although it is not possible to determine who inflicted Mr Anderson's injuries, or the precise circumstances in which they were inflicted, I am satisfied that Mr Anderson suffered his injuries, which were serious, as a result of the application of force to him by another or others. It seems to me the most likely scenario, being more probable than not, is that Mr Anderson received severe blows to the face and jaw by way of punches or kicks and / or by way of a baseball bat or similar object. Similarly, the fractures to Mr Anderson's left arm and left ankle were likely made by a baseball bat or similar object or from 'stomping'. It is more probable than not that the CCTV footage recorded Mr Anderson sustaining some of his injuries.
Was the application of force against Mr Anderson lawful?
Having regard to the circumstances of the case, and in particular, Mr Anderson's injuries, I am satisfied that the assailant(s) who applied the relevant force to Mr Anderson might well have been charged with unlawfully doing grievous bodily harm to him. In that case, it is incumbent upon Mr Anderson to negative self-defence as a factor which might render lawful the doing of grievous bodily harm to him: see CEO Submissions, par 63.
There is no evidence before the court to suggest that the harmful acts done to Mr Anderson were authorised, justified or excused by law.
Section 248 of the Criminal Code deals with self-defence. That section provides that a harmful act done by a person is lawful if the act is done in self-defence. Under s 248(4), a person's harmful act is done in self‑defence if:
(a)the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
In Goodwyn v Western Australia [2013] WASCA 141; (2013) 45 WAR 328 (Goodwyn), the court comprising Martin CJ, Buss and Mazza JJA considered the proper construction of s 248(4) of the Criminal Code.
Buss JA stated, relevantly, that:
95 So, it is apparent that s 248(4) enumerates four elements. First, the accused (subjectively) believes the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a)). Secondly, the accused's harmful act is a reasonable (objective) response by the accused in the circumstances as the accused (subjectively) believes them to be (s 248(4)(b)). Thirdly, there are reasonable (objective) grounds for the accused's (subjective) belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a) read with s 248(4)(c)). Fourthly, there are reasonable (objective) grounds for the accused's (subjective) belief as to the circumstances (s 248(4)(b) read with s 248(4)(c)).
Martin CJ and Mazza JA each gave separate reasons which were not materially inconsistent with that of Buss JA: see relevantly, Goodwyn, [2] - [3] and [170] - [174].
Martin CJ stated, relevantly, at [3] that:
[i]n the way in which s 248(4) has been structured, it is impossible to segregate the existence of objectively reasonable grounds for a subjective belief that the act of the accused was a necessary response to the apprehended threat from the existence of objectively reasonable grounds for the apprehended threat. Put another way, the way that the section has been structured, it is logically impossible to conceive of a circumstance in which a subjective belief that the act of the accused was a necessary response to an apprehended threat could be based on objectively reasonable grounds unless there were objectively reasonable grounds for the apprehension of a threat which justified the response of the accused.
Whether the acts were necessary to defend the person(s) involves consideration on an objective basis of the relationship between the harmful act giving rise to the need for the person(s) to defend themselves and the act of self-defence in response. In effect, the court is required to consider the proportionality of the harmful act said to be done in self-defence: Goodwyn, [122] and [161], Buss and Mazza JJA respectively. That is because the section sanctions a harmful act that is a reasonable response in self-defence. It follows that an unreasonable response is likely to be unlawful: Re Preston, [33].
In the present matter, there is no evidence before the court as to the assailant(s)' subjective beliefs about whether their acts were necessary to defend themselves or another person from a harmful act or acts. Their subjective beliefs are not known.
As to whether the assailant(s)' harmful acts were an objectively reasonable response in the circumstances, I am satisfied on the balance of probabilities that they were not a reasonable response. Further, I am satisfied that the assailant(s) did not have reasonable grounds for believing that their harmful acts against Mr Anderson were necessary to defend themselves or another person from a harmful act by Mr Anderson.
The circumstances of Mr Anderson's injuries as recorded at [99] ‑ [116] above, the severity of those injuries, and the fact that his assailants were seen walking away after the attack lead me to conclude that the grievous bodily harm was unlawful. The harmful acts done to Mr Anderson by the unidentified assailants were out of proportion to, and not a reasonable response to, any harmful act that Mr Anderson may have done or threatened to do to them.
In the circumstances, the doing of grievous bodily harm to Mr Anderson was unlawful, there being no circumstance before the court to render the grievous bodily harm lawful. I am satisfied to the requisite standard that Mr Anderson suffered an injury as a consequence of the commission of an alleged offence.
H. Did Mr Anderson fail to do an act or thing that he ought reasonably to have done?
General principles
Section 38 of the Compensation Act provides:
38.No award if applicant did not assist investigators
An assessor must not make a compensation award in favour of a victim, or a close relative of a deceased victim, if the assessor is of the opinion that the victim or close relative did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence.
In Hinchcliffe, Stevenson DCJ explained at [58] - [60] the purpose of s 38 in the following relevant terms:
58 … The primary mischief aimed at is to ensure that the law enforcement authorities are not prevented by reason of any knowledge or information in the possession of the victim (or close relative) from investigating the factual circumstances of an alleged offence. This includes any matter relevant to the identification, apprehension or prosecution of the person who may have committed the offence.
59 In my opinion the question of whether s 38 should operate as a guillotine on a claim for an award by the victim of an offence must be assessed carefully and with a great deal of scrutiny. The remedial object and purpose of the legislation must be borne in mind.
…
60 The public policy behind the Act is to "provide for the payment of compensation to victims of offences in some circumstances, and for related matters" (the long title). Other factors relevant to the proper construction of s 38 include an accused person's right to silence and the competing public interest policy of ensuring that the perpetrators of criminal acts are identified, prosecuted and sentenced for their crimes. In this sense it must be understood that crimes of personal violence are also crimes against the whole community. This is self-evident from the "ripple effect" of the consequences and ramifications from the act of violence which emanate in decreasing magnitude from the victim to the whole community.
Section 38 gives rise to two inquiries. First, whether the applicant failed to do any act or thing to assist in the identification, apprehension or prosecution of the relevant offender(s). Secondly, if there was such a failure, whether that failure was reasonable in the circumstances: Re Iaria [2018] WADC 22 [10] (Davis DCJ) (Re Iaria); Re Collard [2018] WADC 1 [22] (Goetze DCJ).
In Prideaux v Chief Executive Officer [2000] WADC 143; (2000) 24 SR (WA) 240 (Prideaux), Blaxell DCJ stated at [15] that:
As a matter of construction, I do not consider that this provision requires that an applicant's lack of action be judged by reference to what a hypothetical reasonable person would have done. The section focuses on the applicant and what "he" ought reasonably to have done. Accordingly, although the ultimate test is what was objectively reasonable in all of the circumstances, that test is to be applied by reference to what could reasonably be expected of the particular applicant.
Put another way, the focus of s 38 is on the applicant and what he ought reasonably to have done in the relevant circumstances, and not on what a hypothetical reasonable applicant would have done.
This court has previously held that a complainant's failure to make a 'formal complaint' and provide a statement can constitute a failure under s 38 of the Compensation Act: Re Sullivan [2017] WADC 17 [128] (Eaton DCJ). Likewise, in Re Collard, Goetze DCJ identified several authorities where s 38 had been held to operate to preclude a person from claiming compensation. However, there are also several authorities where the failure to do an act or thing had been held to be reasonable and therefore, s 38 did not bar recovery of compensation: Re Collard, [28] - [29]. Davis DCJ in Re Iaria undertook a similar task at [12] - [17] concluding at [18] that:
… in each case where it has been held that there has been a failure on the part of the applicant, but that s 38 (or its equivalent) did not preclude an award of compensation, there existed one or both of the following factors:
(a) A legitimate fear by the applicant of reprisal by the alleged offender, especially where the threat of harm to the applicant was real and immediate. A general fear of an offender is not, on its own, sufficient to justify a failure to report an offence to the police: Sullivan [130]; Re Collard [26].
(b)Something in the applicant's personal circumstances which demonstrated that the applicant's failure to report or provide assistance to the police was reasonable.
In CME [2018] WADC 69, Bowden DCJ referred to Davis DCJ's conclusion above with evident approval, but also noted that her Honour's observations were not:
… in my view, to be taken as deciding that only applicants whose cases fall into one or both of those categories will have their conduct deemed reasonable. Each case must be considered on its own merits. The category of cases whereby s 38 will not preclude an award of compensation are not closed or fixed. Each case must be considered on its merits.
Did Mr Anderson fail to do any 'act or thing'?
As set out above, the Assessor refused the Compensation Application, in part, on the basis of s 38 of the Compensation Act, relevantly stating that that Mr Anderson had:
… made no contact with police between 4 September 2017 and 21 February 2019, when he did so only for the purposes of this claim. He failed to provide police with information about the circumstances of the incident he included with this application and frustrated their ability to properly investigate the alleged offence.
In its written submissions at par 79, the CEO submitted that Mr Anderson may not have complied with s 38 on two occasions, namely:
(a) on 4 September 2017 when Mr Anderson refused to speak with police about the incident, declining to make a 'formal complaint' and asking police to leave and not return (First Alleged Failure); and
(b) between 4 September 2017 and 21 February 2019 when Mr Anderson did not make a 'formal complaint' to police or provide a statement (Second Alleged Failure).
First Alleged Failure
As to the First Alleged Failure, it is helpful to review the context in which the police interviewed Mr Anderson at Royal Perth Hospital on 4 September 2017. The relevant factual background is set out above under Parts B and F. A brief summary is below.
First, Mr Anderson was in Royal Perth Hospital and had recently awoken from a coma of several days' duration. He had serious injuries to his head and body.
Secondly, Mr Anderson's evidence was that at the time of the police visit, his jaw was 'closed with elastic bands', he was in a lot of pain, he was not thinking straight, and he was scared to be in hospital. He maintained that he did not know who had attacked him.
Thirdly, the Police Running Sheet of the 4 September 2022 meeting with Mr Anderson records, relevantly, that the 'Victim initially seemed unable to converse so he was informed that we would return to speak with him in a few days.' That evidence is broadly consistent with Mr Anderson's evidence.
Fourthly, the same Police Running Sheet records relevantly that Mr Anderson's father told the police that Mr Anderson was 'coming off the drugs and having withdrawals.'
Fifthly, in his expert medical report, Dr Bala was asked about the police interviewing Mr Anderson on 4 September 2017 and in particular, whether Mr Anderson's behaviour was reasonable in the circumstances. Dr Bala stated that Mr Anderson would have been 'acutely traumatised' when interviewed by the police on 4 September 2017: Assessor's Papers, page 61. Further, he stated that 'regressed behaviour from acute trauma is not unexpected, and Mr Anderson was feeling unsafe and unable to cooperate with the interview'. Dr Bala also stated that Mr Anderson may have been 'experiencing a confusional state (delirium) from the assault and the medications or post traumatic amnesia, which could explain his behaviour.'
Having regard to the context in which the police sought to interview Mr Anderson on 4 September 2017, I am satisfied that Mr Anderson's actions did not involve a failure by him to do any act or thing which he ought reasonably to have done to assist in the identification, apprehension or prosecution of the offender. He was suffering from serious injuries and had recently come out of a coma. Mr Anderson's condition at the relevant time militates against such a finding.
I observe that the CEO's counsel accepted during the appeal hearing that it was open to the court to find that it may have been reasonable for Mr Anderson not to cooperate with the police on 4 September 2017 (ts 32).
Second Alleged Failure
The Second Alleged Failure concerns the period between 4 September 2017 and 21 February 2019 when Mr Anderson did not make a 'formal complaint' to police or provide police with a statement, which was not controversial at the hearing of the appeal.
Similarly, during the hearing of the appeal, Mr Anderson's counsel submitted that the police did not make any further contact with Anderson post 4 September 2017 (ts 5, ts 10), which the CEO's counsel did not challenge. By contrast, Mr Anderson's counsel maintained in written submissions that Mr Anderson did attend the Midland Police State on a number of occasions 'following engaging assistance': Anderson Submissions, par 17.
In his affidavit, Mr Anderson states that he does not 'remember who had assaulted' him and that because of that, he did not contact the police as he 'did not have any information that could help them': Anderson Affidavit, pars 8, 11.
In response, the CEO referred to the decision of Re Iaria where her Honour, Davis DCJ relevantly stated at [30] that:
It is not for Mr Iaria to form an opinion and make a decision about whether or not anything useful would come to the investigation if he did make a report to the police. Rather, the onus was on him to report the matter to the police, and give the police the information which they required and which was in his possession. It was then up to the police, in the course of their investigations, to make whatever assessments regarding the evidence were necessary: Ransfield [28].
Her Honour ultimately accepted the submission put to her that there was nothing in the text of s 38 or the authorities which required the assessor, or the court on appeal, to determine whether any particular step would have actually resulted in the identification, apprehension or prosecution of the offender.
Disposition
Section 38 calls for an examination of the circumstances and context of the assault on Mr Anderson in order to determine what it is that Mr Anderson ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence against him. In my view, having regard to the circumstances of this case, Mr Anderson's claim should not be refused by reason of s 38 of the Compensation Act. My reasons for reaching that conclusion can be stated shortly.
First, I accept that Mr Anderson's failure to report the assault to the police and make a statement in a timely manner constitutes 'not doing any act or thing' for the purposes of s 38 of the Compensation Act. However, for the reasons that follow, I am satisfied that Mr Anderson's failure was reasonable in the context of the circumstances of the assault.
Secondly, although Mr Anderson did not make a 'formal complaint' to police until about 16 months after the alleged assault, Mr Anderson's position was that he did not know who attacked him.
The CEO did not submit that the court should reject Mr Anderson's evidence. And indeed, there was no medical or other evidence before the court which contradicted Mr Anderson's position. In my view, taking into account Mr Anderson's evidence, his injuries and mental and physical condition following the assault, his delay in making a report to the police for 16 months was reasonable in the circumstances: Re Iaria, [18].
Mr Anderson's circumstances are similar to those that occurred in Prideaux. In that case, Blaxell DCJ allowed an appeal under the Compensation Act in relation to s 24 (which is in the equivalent terms to s 38). The appellant in that case, was assaulted without warning and had no recollection of the assault. He did not report the assault to police for 16 months. The assault occurred in a 'lonely dark area'. There were no 'readily apparent means by which the offender could be found'. Ultimately, his Honour was satisfied that it was reasonable for the particular appellant to not have reported the assault to the police.
One difference between the facts in Prideaux and the present case, is the availability of witnesses (Mr Gvozdich, Mr Lever and Ms Carr) who might have been able to provide the police with more information than they did. Although the police spoke to Mr Gvozdich, Mr Lever and Ms Carr, they were evidently of little assistance to the police investigation. That fact is not something that should be sheeted home to Mr Anderson.
Similarly, in Lewington v The Assessor for Criminal Injuries Compensation [2005] WADC 200, McCann DCJ found that the applicant's failure to identify his attackers or describe his attackers was reasonable in the circumstances. His Honour accepted that the applicant did not know the identity of his attackers and that in the circumstances, it was reasonable for the applicant to refuse to participate in part of the police investigation (being a Crime Stoppers-style media conference): Lewington, [48] - [50], [56] - [59].
Thirdly, Mr Anderson ultimately made a formal complaint to the police, albeit about 16 months after the alleged assault: CEO Submissions, par 82. Mr Anderson submitted that although there was a lack of a formal complaint to the police, the incident was reported to the police and they did conduct an investigation: Further Anderson Submissions, par 6.
In my view, the main issue is whether Mr Anderson should have made a formal complaint sooner or assisted police with their investigations. This was raised with the CEO's counsel during the hearing (ts 33 ‑ ts 35). In written submissions in response, the CEO submitted that it was not possible to determine an exact point in time when Mr Anderson's continued failure to report to police became a failure that was unreasonable in the circumstances: Further CEO Submissions, par 8. In effect, the CEO's position was that Mr Anderson should have contacted police sometime after 4 September 2017 but prior to when he did contact police on 21 February 2019.
In my view, for the same reasons above, Mr Anderson's delay in making a formal complaint is explicable (and not unreasonable). Further, Mr Anderson's conduct should be placed in the context of the medical evidence, which shows that Mr Anderson had significant operations post the assault and post-operative care for several years. In addition to this, Dr Bala diagnosed Mr Anderson with PTSD due to the assault.
The CEO submitted that, in effect Mr Anderson only attended on the police when he did, because he was going to try and obtain criminal injuries compensation: Further CEO Submissions, par 16. In effect, Mr Anderson only contacted police out of self-interest. In my view, that assertion is simply one of the circumstances that I need to consider in evaluating Mr Anderson's conduct.
Fourthly, there is evidence before the court that Mr Anderson had a fear of reprisal by his assailants. In this regard, Mr Anderson's Compensation Application included a statement that when he woke from his coma, he 'freaked out' and said 'I dunno what happened or what's going on and didn't want repercussions of people that might be assumed to have done what had happened …': Assessor's Papers, page 12. In his affidavit, Mr Anderson stated that he did not feel safe in hospital, that he did not know who had attacked him and that he believed that they may 'come back to finish the job': Anderson Affidavit, par 6. He also made similar statements to Dr Bala: Assessor's Papers, pages 54 ‑ 56.
Mr Anderson's evidence is, in my view, in the context of the medical evidence about his injuries, and the police records as to the circumstances of those injuries, sufficient to give rise to a legitimate fear of reprisal by the alleged offender(s), where the threat of harm was real and imminent: Re Iaria, [18].
Considering Mr Anderson's personal circumstances, the circumstances of the assault and Mr Anderson's mental state, I am satisfied that Mr Anderson's claim should not be refused by s 38 of the Compensation Act.
Was Mr Anderson engaged in criminal conduct at the relevant time?
Background
In its written submissions, the CEO referred to s 39 of the Compensation Act as a matter for the court to consider when determining whether Mr Anderson was entitled to compensation.
General principles
Section 39 provides, relevantly:
39.No award if victim was engaged in criminal conduct
(1) If an assessor is satisfied -
(a)that a person was injured as a consequence of the commission of an offence; and
(b)that the injury was suffered when the person was committing a separate offence,
the assessor must not make a compensation award in favour of the person.
….
In Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 (Martin CJ, Newnes and Murphy JJA) the Court of Appeal considered the operation of s 39 of the Compensation Act. Martin CJ observed [32] (with whom Newnes and Murphy JJA agreed):
The evident purpose of s 39 is to preclude the payment of compensation to a person who suffers injury as a consequence of the commission of an offence when that person is themselves engaged in criminal conduct. That evident purpose would be defeated if too narrow or precise a view is taken of the temporal connection between the offence giving rise to the injury for which compensation is claimed, and the offence committed by the claimant.
Staude DCJ summarised the relevant principles in Hill v Clarke [2015] WADC 93 [12] ‑ [15] as follows:
(a)whether s 39 operates to preclude an award of compensation is a matter for the assessor to determine. No causal nexus is required between the injury for which the claim is made and any offence committed by the victim. Section 39 merely requires a temporal connection. Whether there is a sufficient temporal connection is a question of fact and degree;
(b)the civil standard of proof applies to a determination that the injured person was committing a separate offence. Where the question is whether the claimant was committing an offence when injured there is no onus of proof on either party; and
(c)the gravity of the imputation of a criminal offence and the significance of its consequences in this case warrant the application of the principles enunciated in Neat Holdings, following Briginshaw. Where criminal conduct is alleged, clear and cogent evidence is required.
Clear and cogent evidence is required
The Assessor's Papers included some evidence that Mr Anderson may have been injured by a suspected member of the Club Deroes motorcycle gang. Likewise, there was some evidence that Mr Anderson may have been assaulted over a drug debt, although there is also some evidence which contradicted this. However, this evidence was, as the CEO's counsel effectively accepted, of little weight (ts 37).
Counsel for Mr Anderson submitted that there was no evidence before the court that the police had put the above matters to Mr Anderson (ts 5): Further Anderson Submissions, par 1. This was not controversial and I accept it. And even if there was, I observe that Mr Anderson has not been charged with any offence connected with the assault.
In the context of this matter, the evidence before the court is not sufficient to satisfy the court that Mr Anderson was injured while himself engaged in criminal conduct. Clear and cogent evidence is required before this court could make such a finding. Whatever may be Mr Anderson's background and record, it does not follow that on the night that he was assaulted, he was committing a separate offence. Mr Anderson is entitled to the presumption of innocence: Re ATS, [29].
J. Has Mr Anderson suffered an injury or loss as a consequence of the commission of an alleged offence?
Overview
In his Compensation Application, Mr Anderson claimed compensation as follows: general damages in the amount of $50,000; loss of earning capacity in the amount of $15,000, and future medical treatment expenses in the amount of $20,000: Assessor's Papers, pages 3 - 25.
If Mr Anderson can establish that he has suffered an 'injury' as a consequence of an alleged offence, or 'loss' as defined under s 6 of the Compensation Act as a result of an injury occasioned by an alleged offence, he is entitled to seek compensation under s 17(2) of the Compensation Act.
The words 'as a consequence of' require a causal relationship or connection: Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, 673 (Mason and Wilson JJ) (Fagan); Underwood [87]. Whether that causal relationship exists is 'essentially a question of fact, to be resolved as a matter of common sense': Fagan, 673; Underwood, [87]. It is sufficient that, as a matter of ordinary common sense and experience, the alleged offence should be regarded as having 'materially contributed' to the harm, in the sense that the contribution was not negligible: Underwood, [87] and the authorities cited therein.
The burden is on Mr Anderson to establish, on the balance of probabilities, a causal relationship between the commission of the alleged offence and the injury and loss for which compensation is sought: Martin, [82]; Swinford, [29].
Injury
Before the court can make a compensation award, the court must be satisfied that the claimed injury and claimed loss occurred as a consequence of the commission of the alleged offence: s 17(4)(a) of the Compensation Act. As set out above, the Compensation Act defines 'injury' to include relevantly, 'bodily harm' and 'mental and nervous shock'.
Mr Anderson provided a victim impact statement to the Assessor: Assessor's Papers, pages 9 - 10. When considering the significance of a victim impact statement provided under the Sentencing Act 1995 (WA), Martin CJ in Dimitrovska v The State of Western Australia [2015] WASCA 162 made a number of observations about the intrinsic nature and character of victim impact statements. Relevantly, his Honour stated at [74] that a victim cannot be expected to provide an objective and impartial account of an offence and its consequences in the statement provided to the court (McLure P, with whom Hall J agreed, gave separate reasons as to the significance of victim impact statements, which are not materially inconsistent with Martin CJ's observations above). In my view, Martin CJ's observations are relevant to Mr Anderson's victim impact statement.
Physical injuries
I have referred to Mr Anderson's physical injuries, as recorded in various medical records, at [83] ‑ [98] above. Those injuries were so extensive as to require him to be placed in an induced coma and have several operations immediately following the assault. I have no doubt that he experienced significant pain and suffering as a result of his injuries.
In written submissions, the CEO accepted that Mr Anderson incurred his physical injuries on 27 August 2017 as a result of the accident: CEO's Submissions, par 153.
In her report, Dr Welborn recorded that Mr Anderson's:
[c]are was compromised by features of a pre-existing personality disorder, withdrawal from intravenous drugs and traumatic pulmonary contusion. As a result, he required extensive input by Occupational Therapy, Physiotherapy, Social Work, Consultation-Liaison Psychiatry team and he was discharged on 7 September 2017 after a 12 day admission. See: Assessor's Papers, 97.
In written submissions, the CEO observed that it was not clear whether Dr Welborn was suggesting that Mr Anderson's pre-existing conditions may have contributed to his injuries: CEO's Submissions, par 154. For my part, Dr Welborn's statements appear to be directed to the 'care' that Mr Anderson received while in RPH. Dr Welborn did not explain how or in what way Mr Anderson's 'care' was 'compromised' by features of a pre-existing personality disorder, withdrawal from intravenous drugs and traumatic pulmonary contusion. In the circumstances, there is insufficient evidence to find that Mr Anderson contributed to his injuries.
As to the question of mitigation, the CEO submitted that it was open to the court to conclude the Mr Anderson had properly mitigated his physical injuries. This was on the basis that although Dr Welborn had referred to an extensive period of Outpatient Clinic follow-up, Dr Welborn had not recorded Mr Anderson failing to comply with his treatment: CEO's Submissions, pars 155 - 156. I agree with the CEO's submission and find that Mr Anderson mitigated his physical injuries.
I have also referred to the impact of the assault on Mr Anderson, the operations that Mr Anderson underwent to treat his injuries, and subsequent admissions to Royal Perth Hospital. Mr Anderson also had an extensive period of Outpatient Clinic follow up over several years.
In terms of ongoing pain and suffering, Mr Anderson alleges that he gets headaches and that it hurts to sleep on his left side, and that his face, jaw and left arm feels awkward and uncomfortable. Dr Welborn's Report records that Mr Anderson attended Royal Perth Hospital in January 2020 complaining of 'experiencing pain when sleeping at night, in his jaw': Assessor's Papers, page 98. In an exchange with the bench, Mr Anderson's counsel accepted that there was limited evidence before the court as to Mr Anderson's pain and suffering as a result of his injuries (ts 28, ts 29).
I am satisfied that Mr Anderson sustained the injuries described above and that they occurred as a consequence of the assault on 27 August 2017.
Psychological harm
The next issue that arises is Mr Anderson's claim in relation to suffering PTSD as a result of the assault.
Mr Anderson's Compensation Application informed the Assessor that Mr Anderson was to be assessed by Dr Bala, a consultant psychiatrist. A copy of Dr Bala's report was provided to the Assessor under cover of an email dated 7 October 2020: Assessor's Papers, pages 25, 31 and 51 - 63. Mr Anderson's solicitor's letter of 15 September 2021 stated that Dr Bala had diagnosed Mr Anderson with PTSD following the assault on 27 August 2017, for which he received some treatment, however, he remained symptomatic: Assessor's Papers, pages 26 - 27.
Dr Bala diagnosed Mr Anderson with PTSD as a result of the assault perpetrated on him on 27 August 2017. In his report, Dr Bala stated that his assessment of Mr Anderson was conducted by video link to Albany prison for one hour on 30 September 2020. Dr Bala stated that since Mr Anderson had been in prison, he had been treated with antidepressant medication: Mr Anderson's PTSD was in partial remission, although he was still symptomatic. Further, he stated that Mr Anderson had ongoing treatment needs in terms of trauma focussed psychological therapy: Assessor's Papers, pages 52 ‑ 53.
As to Mr Anderson's mental status, Dr Bala observed that: Assessor's Papers, page 57:
(a)Mr Anderson was a reluctant interviewee. The level of cognitive disorganisation and lack of information became more pronounced as the interview progressed, and details of the offending were discussed. He became particularly fragmented and disjointed after he disclosed the assaults against him;
(b)Mr Anderson seemed genuinely at a loss to remember things and to control his feelings and emotions. There was no thought disorder or delusional beliefs. He denied hallucinations. He was psychologically defended in terms of his vulnerabilities, although his judgment appeared to be intact.
Dr Bala's report included material that Mr Anderson had told him, including the following: Assessor's Papers, pages 55 - 56:
(a)Mr Anderson lived in a state of fear and anxiety for many months after the assault;
(b)Mr Anderson had difficulty sleeping and deliberately stayed awake at night because he was fearful of being assaulted in his home. Small noises would make him jumpy. He did not feel safe and did not like to be alone;
(c)Mr Anderson reported that he often woke up in sweats. He had violent dreams of being 'flogged' where he was 'walking along being attacked';
(d)Mr Anderson reported physical sensations of panic attacks and anxiety. His heart rate was raised;
(e)Mr Anderson reported that he was constantly on edge after the assault. He reported that he did not leave the house for a long time. He avoided crowded places, parks and alleyways. He would become paranoid in public, especially at night; and
(f)Mr Anderson reported that he and his partner had significant relationship difficulties because of his inability to manage his fears and emotions. This ultimately resulted in Mr Anderson assaulting his partner twice, for which he received a prison sentence.
In his affidavit, Mr Anderson referred to the nightmares that he has suffered since leaving hospital: Anderson Affidavit, par 10.
Mr Anderson also reported to Dr Bala that he had used various substances since his teens, including alcohol, cannabis, and methamphetamines: Assessor's Papers, pages 56 - 57. Dr Bala records that after the assault, Mr Anderson 'inject[ed] up to a point each day'.
Although Dr Bala's principal diagnosis of Mr Anderson was PTSD, Dr Bala also diagnosed Mr Anderson with secondary diagnoses as follows: Assessor's Papers, page 58:
(a)severe substance disorder (alcohol, cannabis and amphetamines), in remission in a controlled environment;
(b)antisocial personality disorder (likely); and
(c)various physical injuries from assault.
Dr Bala was asked a number of questions as part of his instructions, which relevantly included the following question: if Mr Anderson had a pre-existing psychological condition, did the incident on 27 August 2017 significantly contribute to an aggravation of the condition? In answer to that question, Dr Bala stated, relevantly, that Mr Anderson developed PTSD, which 'is a new psychological condition resulting from the assault against him on 27 August 2017': Assessor's Papers, pages 59 - 62.
I observe here that the CEO's counsel accepted that it was open to the court, on the basis of Dr Bala's opinion, to find that the alleged assault materially contributed to, if not caused Mr Anderson's PTSD (ts 43).
Dr Bala was asked about Mr Anderson's progress of recovery. Dr Bala stated, relevantly, that Mr Anderson continued to have a 'moderate degree of symptoms in spite of significant time period [having] elapsed since the assault'. Mr Anderson's symptoms were somewhat attenuated, given that he was in a structured and predicable environment (being Albany prison). Dr Bala also stated that he expected slow progress, and that Mr Anderson may never enter full remission of his symptoms.
Dr Bala was asked about Mr Anderson's prognosis. Dr Bala stated, relevantly, that he expected Mr Anderson to have ongoing symptoms for the next 5 to 10 years, depending on whether Mr Anderson engaged in treatment.
There was no challenge to Dr Bala's evidence or opinion.
In the circumstances, I find that:
(a)Mr Anderson suffered PTSD as a result of the commission of an alleged offence;
(b)Mr Anderson's PTSD was in partial remission, although he was still symptomatic;
(c)Mr Anderson is likely to have ongoing symptoms for the next 5 to 10 years, depending on whether he engages in treatment; and
(d)Mr Anderson has ongoing treatment needs in terms of trauma focussed psychological therapy.
Is PTSD an injury for the purposes of the Compensation Act?
An 'injury' under the Compensation Act includes 'mental or nervous shock'. In Underwood, Gething DCJ stated relevantly at [83] that:
This phrase contemplates the impact of the offence on the mind or nervous system. It refers to 'mental or emotional harm as opposed to physical injury or bodily harm'.
(citations omitted)
Similarly, Burrows DCJ in E M v C L [2021] WADC 127 stated at [101] that mental or nervous shock means any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence or associated with the commission of the offence.
Mental or nervous shock is not a mere emotional reaction. In Underwood, Gething DCJ emphasised at [83] that it must be of an enduring character so as to amount to an injury, as opposed to a mere emotional reaction. For example, mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress and disgust are seen as compensable.
Medical evidence from an appropriately qualified medical practitioner will generally be required to prove an injury exists and was caused by the offence. The court will not generally rely on conclusions made by an unqualified person on the basis of medical records without such supporting evidence: Sweetman, [14].
It is well established that PTSD falls within the metes and bounds of 'mental or nervous shock' and is thus an 'injury' for the purposes of the Compensation Act: e.g. Underwood, [84]; Savic v Duric [2021] WADC 53 [46]; Sweetman, [44]; E M v C L, [109].
In the present matter, I am satisfied that Mr Anderson suffered PTSD, as described above, and that Mr Anderson's PTSD falls within the meaning of 'mental and nervous shock' as found in the defined term 'injury' in s 3 of the Compensation Act. I am also satisfied that Mr Anderson's PTSD falls within the criteria contained in s 35(2) of the Compensation Act, which regulates the circumstances in which an award of compensation for mental and nervous shock may be made. Those circumstances include that the claimant was the person against whom the offence was committed: s 35(2)(b). Mr Anderson is entitled to compensation for PTSD.
Loss
If Mr Anderson can establish that he has suffered a 'loss' as defined under s 6 of the Compensation Act as a result of an injury occasioned by an alleged offence, he is entitled to seek compensation under s 17(2) of the Compensation Act.
Loss under s 6 includes relevantly, (1) loss of earnings suffered by Mr Anderson as a direct consequence of the injuries he suffered (economic loss), (2) expenses actually and reasonably incurred by Mr Anderson that arise directly from his injuries (including obtaining any medical report (past medical expenses)) and (3) expenses that are likely to be reasonably incurred by Mr Anderson for treatment that he is likely to need as a direct consequence of the injuries he suffered (future medical treatment).
Where the type of loss contemplated by (3) above is included in a compensation award, s 48 of the Compensation Act provides that the amount is not to be paid 'unless an assessor is satisfied that the expenses have been reasonably incurred by or on behalf of the victim for treatment that the victim required as a direct consequence of the injury suffered by the victim in consequence of the commission of the offence to which the award relates'. In order to satisfy the evidentiary requirement, the victim (Mr Anderson) or someone on his behalf must give the assessor evidence to this effect: s 48(1)(a) of the Compensation Act.
Economic loss
Although Mr Anderson was not employed at the time of the incident, Mr Anderson initially claimed 'loss of earning capacity' in the amount of $15,000 in his application for compensation: Assessor's Papers, pages 24 - 25. However, during the hearing of the appeal, Mr Anderson's counsel did not seek to maintain that claim (ts 21 ‑ ts 23).
Past medical expenses
In his Compensation Application, Mr Anderson stated that all medical treatment to that point in time had been provided by Medicare. Given this, Mr Anderson did not intend to make a claim for past medical treatment as he did not have any out-of-pocket expenses for past treatment: Assessor's Papers, page 25.
Future medical treatment
In Mr Anderson's Compensation Application, Mr Anderson claimed $25,000 on a global basis for future medical treatment. On the same page of his application, and without explanation, Mr Anderson claimed $20,000, a reduction of $5,000: Assessor's Papers, page 25. Mr Anderson's written submissions did not elaborate on Mr Anderson's future medical treatment.
During the appeal hearing, it was, ultimately, common ground that Mr Anderson's future treatment needs totalled $14,400 (ts 23 - ts 28). This was on the basis of Dr Bala's report. In this regard, Mr Anderson's claim for future medical treatment involved psychological and antidepressant therapy.
As to psychological therapy, Dr Bala recommended Mr Anderson attend '12 sessions' with a clinical focus on addressing his substance use, coping mechanisms and the traumatic events. Dr Bala stated that if Mr Anderson did not improve, that he may require a further 6 to 12 sessions, 'given the complexity of the presentation'. Dr Bala estimated the cost of each session at $250: Assessor's Papers, page 61. This amount totalled $6,000 (24 sessions at $250).
As to the antidepressant therapy, Dr Bala recommended Mr Anderson attend therapy for at least 24 months, given the 'severity of the assault and subsequent injuries'. Dr Bala's recommendation involved a monthly visit with a psychiatrist for 6 months, followed by 18 months of bi-monthly visits, totalling 15 visits at an estimate of $400 per visit: Assessor's Papers, page 61. This amount also totalled $6,000.
In addition to this, Dr Bala estimated that Mr Anderson would need medications estimated to cost about $50 to $100 per month, depending on the regimen: Assessor's Papers, page 61. This totalled a further $2,400.
In the circumstances, I accept Dr Bala's evidence, to the effect that Mr Anderson has future medical treatment needs involving psychological and antidepressant therapy and related medications as a direct consequence of the injuries he suffered.
Mr Anderson provided some evidence indicating that he needed dental work, as a result of having eight teeth extracted. However, Mr Anderson did not provide any evidence to quantify the cost of that treatment. I am unable to make an award in relation to that claim.
Medical reports
The term 'loss' is defined to include, relevantly, expenses actually and reasonably incurred by or on behalf of the victim that arise in obtaining any report from a health professional or a counsellor in relation to, the injury suffered by the victim: s 6(2)(a)(ii) of the Compensation Act.
In his Compensation Application, Mr Anderson did not include a claim for expenses incurred on account of Dr Bala's report, or for any other health professional. And Mr Anderson did not supply invoices for any health professional for which he has paid their account.
K. What is the appropriate amount of compensation?
General principles
Part 4 of the Compensation Act is concerned with matters governing compensation awards. Section 30(1) of the Compensation Act, which is contained within pt 4, provides:
On a compensation application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered.
The term 'satisfied' means 'on the balance of probabilities': s 3(1) of the Compensation Act.
The maximum amount of compensation that may be awarded for a single offence is $75,000: s 31(1) of the Compensation Act. The maximum in s 31(1) of the Compensation Act is merely a jurisdictional limit and is not reserved for the worst cases: Underwood, [112].
The correct approach to adopt in assessing the amount of compensation under the Compensation Act is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Compensation Act, and to the jurisdictional limit of the Compensation Act: Savic [48] (Gething DCJ) (and the authorities cited there); Underwood, [113]; s 3 and s 6 of the Compensation Act.
In assessing the quantum of compensation which ought to be awarded the court must have regard solely to the injury suffered by the appellant in consequence of the commission of the alleged offence, and not to the seriousness of the offence: ReButler [2020] WADC 22 (Re Butler), [94(c)]; Underwood, [115]. The amount is to be fixed without any consideration or regard or intent to punish the alleged offender or as an expression of sympathy for the victim: ReButler, [94(d)]; Underwood, [115].
General damages
In Savic, Gething DCJ summarised a number of general principles at [51] and [52], with which I agree and gratefully adopt, as follows:
(a)ordinarily general damages are awarded to compensate for pain and suffering and other non-pecuniary loss;
(b)according to ordinary tortious principles, the amount of general damages must be fair and reasonable compensation for the injuries received by the claimant and the disabilities caused, having regard to current general ideas of fairness and moderation; and
(c) in assessing the appropriate amount of compensation, a broad and subjective assessment must be undertaken with consideration of what the community would regard as reasonable compensation.
The CEO submitted that there was limited utility in comparing awards of compensation or damages for personal injuries due to the inability of appeal courts and tribunals to know that they are comparing like with like. The CEO supported that submission by reference to Fairhead v Quartermaine [2010] WADC 1; (2010) 69 SR (WA) 73 [14] (Deane DCJ) (Fairhead).
It seems to me that judicial minds in this court differ as to the utility of comparing awards of compensation or damages for personal injuries in similar cases. See Fairhead on the one hand and on the other hand, the recent decisions of Re Butler, [94(e)] and the cases cited there and Savic, [54], both of which contended that it was permissible to have regard to other awards when considering an application for compensation.
I have had some regard to other appeals involving criminal injuries compensation, including: Harris v Sycamore [2022] WADC 4; Swinford; Sweetman; ATS v Williss [2021] WADC 58 and Re Butler.
I have found that Mr Anderson sustained severe injuries as a consequence of the commission of an assault on 27 August 2017. Given the severity of the Mr Anderson's physical and psychological injuries, the number and seriousness of the operations he endured post the assault, an appropriate award of compensation for pain and suffering and other non-pecuniary loss is $50,000.
Future medical treatment
In the above circumstances, I accept Dr Bala's evidence as to the estimated costs of Mr Anderson's future medical treatment needs involving psychological and antidepressant therapy and related medications. I award Mr Anderson $14,400 for future treatment. Payment of that amount will be subject to the requirements and satisfaction of s 48 of the Compensation Act.
L. Mr Anderson's behaviour - should any award of compensation be reduced?
The CEO submitted in its written submissions that if the court was not satisfied to the requisite standard that an award of compensation was precluded by s 39 of the Compensation Act, it was open to the court to find that Mr Anderson's behaviour (such as insulting his alleged offender or his dealings in illicit drugs) contributed, directly or indirectly, to his injuries and loss. This submission rested on the same evidence.
Section 41 provides, relevantly:
41.Behaviour etc. of victim to be considered
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor -
(a)must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim’s injury or death; and
(b)may, if he or she thinks it is just to do so -
(i)refuse to make a compensation award because of that contribution; or
(ii)reduce the amount that the assessor would otherwise have awarded.
In substance, if the court is satisfied that Mr Anderson's behaviour, condition, attitude or disposition contributed directly or indirectly to his injuries, the court may if it thinks it just do so, either refuse to make a compensation award, or reduce the amount that would otherwise have been awarded.
In Robertson v Hopwood [2018] WADC 66, Gillan DCJ at [22] and [66] observed that s 41(b) was concerned with whether the applicant's conduct contributed to the injuries suffered, not whether the applicant's conduct contributed to the relevant offence.
Mr Anderson's counsel submitted both at the appeal hearing and in written submissions, that there was no evidence before the court that the police had attempted to confirm with Mr Anderson the information provided by the third parties (ts 5): Anderson Submissions, par 21.
On the evidence before the court, I am not able to determine with any degree of certainty whether Mr Anderson's behaviour, condition, attitude or disposition contributed, directly or indirectly to his injuries. Although there is some evidence before the court which might suggest that Mr Anderson had an association of sorts with a well-known motorcycle gang, that evidence is circumstantial, open to other interpretations and far from clear. Further, that evidence has not been tested and Mr Anderson has not been charged with any criminal offence temporally associated with the circumstances of the alleged offence against him on that occasion.
Similarly, Mr Anderson's own admission as a long-standing illicit drug user though relevant to the question at hand, is not determinative.
While the above evidence might be suggestive or consistent with a direct or indirect link between Mr Anderson's behaviour and his injuries, in my view, more is required. Consistency alone involves suspicion and speculation. Further, even if Mr Anderson was an illicit drug user and/or had an association of sorts with a well-known motorcycle gang, it does not necessarily follow that Mr Anderson's illicit drug use or that association contributed directly or indirectly to Mr Anderson's injuries on that occasion.
On balance, I am not satisfied that s 41 of the Compensation Act has any application in the present circumstances. In substance, I am not satisfied that it would be just, on the ground of Mr Anderson's behaviour, to either decline an award of compensation or reduce the amount of compensation that Mr Anderson is otherwise entitled to.
M. Costs
The CEO submitted in written submissions that no costs order should be made against it because the CEO is not an unsuccessful party to an appeal. Further, costs should not be awarded against the CEO because counsel for the CEO performs a role that would not otherwise be performed. The CEO relied on WHW v Commissioner of Police [2014] WASCA 153 (S) [11] ‑ [18] (WHW) (Martin CJ, Buss and Murphy JJA); Re VPAN [2011] WADC 40 [159] (Sweeney DCJ); P v C [2005] WADC 107 [71] ‑ [72] (Commissioner Stavrianou).
In WHW, the court stated at [13] that:
It may be accepted that at least ordinarily, the court would not, having granted leave to the amicus to appear in order to assist the court, make an adverse costs order against the amicus.
Subject to hearing from the parties' counsel, my tentative view is that the amicus curiae (CEO) did not go beyond the proper role of amicus curiae. Similar to WHW at [14], the amicus curiae made submissions that might properly be raised in the absence of a contradictor. The amicus curiae's submissions did not convey partisanship.
Subject to hearing from the parties' counsel, my tentative view is that there should not be any order as to costs. This is consistent with the usual order for costs of this kind: see the recent authority of Swinford at [133] - [134]. Subject to hearing from the parties, I see no reason to depart from the usual order.
N. Conclusion
For these reasons, I allow the appeal and award Mr Anderson $64,400 comprising:
(a)$50,000 - as general damages; and
(b)$14,400 - future treatment expenses (payment of which is subject to compliance and satisfaction of the requirements of s 48 of the Compensation Act).
Subject to hearing from the parties, the appropriate orders are:
(a)the appeal is allowed;
(b)the decision of the Assessor refusing the Compensation Application is set aside; and
(c) the sum of $64,400 is awarded to Mr Anderson, inclusive of the amount of $14,400, which is subject to s 48 of the Compensation Act, as compensation for injuries and losses.
I will hear from the parties as to the final form of the orders and orders that should be made with respect to costs.
O. Further evidence
On 14 November 2022, the court provided the parties with an advanced copy of this judgment. The reserved decision came before me today prior to delivering the judgment and making orders. Mr Anderson sought, in effect, to reopen his case and file further evidence in the appeal.
Mr Anderson's counsel provided the court with an affidavit in the name of Rebecca Amy Hinchliffe dated today's date, which annexed an invoice from Dr Bala in the amount of $2,200, together with an invoice from Legal Aid in the amount of $2,200.
Mr Anderson's counsel informed the court that Mr Anderson was, in effect, seeking leave to re-open his case and file further evidence in the appeal. In effect, Mr Anderson was, by his application, seeking to claim the cost of Dr Bala's report. The application was made orally.
Counsel for the CEO did not oppose the application.
Ordinarily, the court has a discretion whether to allow a party to adduce further evidence, once a party has closed its case; see generally Osborne v Landpower Developments Pty Ltd (in Liq) [2003] WASCA 117 [12] - [14].
I have considered Mr Anderson's application to re-open his case and file further evidence in the appeal.
Under the Compensation Act, as the appeal involves a fresh hearing, further evidence should be admitted unless there is some reason why it would be unjust to do so: s 56(1) of the Compensation Act.
In the present circumstances, I consider that it would be just to allow Mr Anderson to reopen his case and admit the further evidence. In his report, Dr Bala states that he attended on Mr Anderson. Dr Bala's report was before the court during the hearing of the appeal.
Having regard to s 6(2)(a)(ii) of the Compensation Act, I am satisfied that Dr Bala's account involves a report from a health professional in relation to injuries suffered by Mr Anderson. Given this, I am satisfied that orders should be made awarding Mr Anderson compensation of $2,200 on account of Dr Bala's report.
I will hear from the parties as to the final form of orders that should be made today.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LL
Associate
15 NOVEMBER 2022
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