Re Ates - [2022] WADC 108

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE ATES [2022] WADC 108
CORAM:   WHITBY DCJ
HEARD:   14 OCTOBER 2022
DELIVERED          :   8 DECEMBER 2022
FILE NO/S:   APP 60 of 2021
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   ADAM EMRAH ATES
Appellant
AND
GLEN ALWIN WHITBY
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   C F HOLYOAK-ROBERTS
File Number            :   CIC 2385 of 2018

Catchwords:

Criminal injuries compensation - Appeal - Psychological injuries - Intervening event - Causation - Commission of offences materially contributed to psychological injuries

Legislation:

Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal allowed

Representation:

Counsel:

Appellant	:	Mr J N Trigg
Respondent	:	No appearance
Amicus Curiae	:	Ms H M Cowie

Solicitors:

Appellant	:	Stephen Browne Lawyers (South Perth)
Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor's Office

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

ATB v LA [2021] WADC 64
B v B [2004] WASC 6
B v S (Unreported, WASC, Library No 950223, 10 May 1995)
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Gullelo v Halloran [2008] WADC 145
Hinchcliffe v Hinchcliffe [2010] WADC 78
Lyle v Soc [2009] WASCA 3
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Martin v Martin [2015] WADC 138
Nagel v Tahere [2020] WADC 110
Re Farmer [2015] WADC 91
Re Tilbury [2010] WADC 46
S v Neumann (1995) 14 WAR 452
T v Curnuck [2004] WASC 139
Underwood v Underwood [2018] WADC 13

WHITBY DCJ:

In October 2015, Adam Emrah Ates was the victim of an aggravated burglary, robbery and common assault. The offences were committed by Glen Alwin Whitby.
On 11 September 2018, Mr Ates applied for compensation pursuant to the provisions of the Criminal Injuries Compensation Act 2003 (WA) (the Act) for physical and psychological injuries he alleges he suffered as a result of the offences.
On 16 May 2019, Mr Ates resubmitted his application as the original application was incomplete.
On 9 August 2021, the Chief Assessor of Criminal Injuries Compensation (Assessor) ordered Mr Ates compensation in the amount of $5,050 comprising the following amounts:
(a)$5,000 for injuries; and
(b)$50 for travel expenses.
Mr Ates appeals that award.

The appeal to the District Court

This appeal is made pursuant to s 55 of the Act. In hearing this appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the assessor's decision': s 56(1) of the Act. An appeal under the Act is, therefore, a hearing de novo.[1]
[1] Gullelo v Halloran [2008] WADC 145 [5].
The court may determine the appeal '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 Act.
The court should admit further evidence unless there is some reason why it would be unjust to do so.[2]
[2] Re Tilbury [2010] WADC 46 [3]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9].
It is open to the court to 'confirm, vary or reverse the assessor's decision, either in whole or in part': s 56(2)(b) of the Act.
Mr Ates relied upon the material before the Assessor (Assessor's Papers) and sought to rely upon the following additional material:
(a)his affidavit sworn 29 September 2022 (Affidavit);
(b)report of Dr Frederick Ng dated 9 August 2022;
(c)report of Dr Ken Withers dated 19 September 2022;
(d)tax invoice and receipt issued of Dr Bolland dated 5 and 11 October 2018 in the sum of $1,079.54 for prepayment of her costs for her report dated 25 October 2018 obtained in respect of the injury suffered in the incident (not originally claimed in the application);
(e)tax invoice and receipt of Dr Ng issued on 17 and 19 August 2022 in respect of his costs of $1,903 for his report of 9 August 2022 obtained in respect of the injury suffered for this appeal; and
(f)tax invoice of Dr Ken Withers issued on 19 September 2022 in respect of his costs of $275 for his report of that date obtained in respect of the injury suffered for this appeal.
I grant leave, pursuant to s 56(1) of the Act, for Mr Ates to rely upon the additional material, being satisfied that it was not unjust to do so.

Issues

The following issues arise for determination in the appeal:
(a)Is Mr Ates entitled to an award of compensation?
(b)If yes, what award of compensation is appropriate?
In considering each of these issues, the overriding consideration is one of causation - that is, what injuries did Mr Ates suffer as a consequence of the commission of the offences?
The reason causation is at the heart of this appeal is because Mr Ates was injured in a car accident in September 2016. Mr Ates made a claim for compensation from the Insurance Commission of Western Australia in relation to the car accident (ICWA claim). In support of the ICWA claim, Mr Ates relied upon expert evidence to establish that he suffered psychological trauma as a result of the car accident.
Therefore, I need to consider whether Mr Ates' psychological injuries are as a consequence of the commission of the offences or as a consequence of the car accident (or as a consequence of both).

Is Mr Ates entitled to an award of compensation?

Mr Ates applies for compensation pursuant to s 12 of the Act. Section 12(1) of the Act provides:
(1)A person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered.
The term 'proved offence' is defined in s 3 of the Act as:
[A] crime, a misdemeanour or simple offence of which a person has been convicted[.]
The offences committed by Mr Whitby are 'proved offences' for the purposes of the Act.
Compensation is payable where a person has suffered 'injury' in consequence of the commission of a proved offence: s 12(1) and s 17(2) of the Act. 'Injury' is defined in s 3 of the Act to include bodily harm and mental and nervous shock.
The phrase 'mental and nervous shock' includes distress, horror, disgust and other similar adverse mental reactions but excludes fright, humiliation or anguish. In order to constitute mental and nervous shock, the injury must be more than a mere emotional reaction, it must have an enduring quality which impacts on the mental state or the nervous system of the person injured.[3]
[3] M v Jand J v J (Unreported, WASC, Library No 920598, 19 November 1992); B v S (Unreported, WASC, Library No 950223, 10 May 1995); S v Neumann (1995) 14 WAR 452 (461); Martin v Martin [2015] WADC 138 [85].
Section 6 of the Act defines 'loss' to include:
…
(a)expenses actually and reasonably incurred by or on behalf of the victim -
(i)that arise directly from; or
(ii)that arise in obtaining any report from a health professional or a counsellor in relation to,
the injury suffered by the victim; or
(b)expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim; or
(c)loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim; …
A compensation award cannot be made unless I am satisfied that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence: s 12(3) of the Act. Section 3 of the Act defines 'satisfied' to mean 'satisfied on the balance of probabilities'.
The term 'as a consequence of' requires a causal relationship or connection between the injury and the commission of an offence.[4] A sufficient causal connection will be established if, as a matter of ordinary common sense and experience, the offences are regarded as having 'materially contributed' to the injuries.[5]
[4] Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673; T v Curnuck [2004] WASC 139 [27]; B v B [2004] WASC 6 [14].
[5] Bonnington Castings Ltd v Wardlaw [1956] AC 613, 620; March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515; Lyle v Soc [2009] WASCA 3 [40]; Underwood v Underwood [2018] WADC 13 [87] (Underwood).
In Nagel v Tahere,[6] Gething DCJ said:
It is sufficient that, as a matter of ordinary common sense and experience, the assault should be regarded as having 'materially contributed' to the harm, in the sense that the contribution was not negligible.
[6] Nagel v Tahere [2020] WADC 110 [43].

According to the Oxford Dictionary 'negligible' is defined as:
able to be neglected or disregarded; unworthy of notice or regard; so small or insignificant as to be ignorable.
Mr Whitby was convicted after trial for the offences of aggravated burglary and robbery and was sentenced by Gething DCJ on 9 February 2017. Mr Whitby was sentenced on the following basis:
(a)at around 5.00 am on 25 October 2015, Mr Ates was at home with his partner, Alice Peng. Mr Ates had gotten up to use the bathroom. At around this time, Mr Whitby entered the house and went into the bedroom where Ms Peng was sleeping;
(b)Mr Whitby grabbed Mr Ates' mobile phone and wallet and ran from the bedroom. This woke Ms Peng causing her to scream;
(c)Mr Ates ran out of the house, seeing Mr Whitby near a red sedan outside. Mr Ates came within 1 - 2 metres of Mr Whitby and asked for his phone back. Mr Whitby refused and hit Mr Ates three to four times, a couple of times with the palm of his hand and once on his chest with a closed fist.[7]
[7] Assessor's Papers, 54 - 55.
Mr Whitby was convicted in the Magistrates Court on his plea of guilty of common assault contrary to s 313(1)(b) of the Criminal Code and was sentenced on 10 March 2017. Mr Whitby was sentenced on the basis that the common assault offence was 'part and parcel' of the aggravated burglary and robbery offences.[8]

What injuries did Mr Ates suffer as a consequence of the commission of the offences?

Physical injuries

[8] Assessor's Papers, 47.

Mr Ates went to see his general practitioner on 25 October 2015, 13 November 2015 and 19 November 2015 complaining of chest pain as a result of the offences. He had a chest X‑ray on 14 November 2015. His GP describes his injuries as soft tissue injuries and bruising. He was treated with Panadol.[9]
[9] Assessor's Papers, 149 - 150.
I am satisfied, on the balance of probabilities, that Mr Ates suffered physical injuries, in the form of soft tissue injuries and bruising, as a result of being pushed and punched in the chest by Mr Whitby during the commission of the offences.

Psychological Injuries

Mr Ates describes his psychological symptoms resulting from the commission of the offences in his victim impact statement[10] and in his Affidavit[11] as follows:
(a)hypervigilant about personal safety;
(b)anxiety worse at night time;
(c)compulsive about checking doors and windows were locked;
(d)difficulty falling asleep for a number of months;
(e)nightmares every night for 2 months after the incident;
(f)negative effect on ability to be physically intimate with his partner;
(g)phobia dealing with anyone of Aboriginal descent; and
(h)continued sleep disturbance and nightmares after two months but less frequent.
[10] Assessor's Papers, 36.
[11] Book of Documents dated 10 October 2022, pages 3 - 7.
Mr Ates attended his GP clinic on 19 November 2015 at which time the doctor recorded that Mr Ates 'has PTSD following home invasion and assault'.
Mr Ates is a qualified psychologist and self‑treated his psychological symptoms after the commission of the offences and prior to the car accident in September 2016. He did so by using muscle relaxation techniques and self‑reassurance before going to sleep.[12]
[12] Ates' Affidavit [9].
However, after the car accident, Mr Ates says that his anxiety worsened and that the coping strategies he had adopted after the offences were no longer helping.[13]
[13] Assessor's Papers, 41 - 42.
In December 2016, Mr Ates started having psychological counselling sessions with Dr Lisa Taylor. In a letter dated 13 September 2017 and her report dated 18 February 2017,[14] Dr Taylor said:
(a)Mr Ates felt that his safety had been compromised after the offences, but he had been adequately functioning prior to the car accident;
(b)      Mr Ates met the criteria for post-traumatic stress disorder (PTSD) associated with 'the direct experience of a motor vehicle accident';
(c)      Mr Ates struggles with night-time anxiety, which seems associated to the 2015 house intrusion;
(d)      Mr Ates reported feeling anxious, and stated that he experienced daily night‑time waking and compulsive checking behaviour to ensure that all doors and windows were locked after the offences; and
(e)      Mr Ates night‑time fear and anxiety seems to have been maintained by the court case associated with the home burglary and robbery offences.
[14] Assessor's Papers, 115.
Consultant psychiatrist Aleksandar Janca, in his report dated 30 January 2018 (prepared at the request of ICWA in relation to the ICWA claim)[15] states:
(a)Mr Ates denied having any psychological or psychiatric problems or treatments in the past, however, noted that Mr Ates had referred to the offences which he said 'unsettled him a lot and resulted in his subsequent fear of Aboriginal people, including his inability to see them as patients in his clinical practice';
(b)there was no evidence to suggest that Mr Ates was suffering from a long-lasting pre-existing anxiety and/or depressive condition which predated the car accident, and that the offences appeared to be 'unrelated to his current psychiatric symptoms and condition'; and
(c)Mr Ates was suffering from PTSD which was 'fairly, genuinely and significantly attributable to the motor vehicle crash'.
[15] Assessor's papers, 136.
Clinical psychologist Dr Meredith Bolland, in her report dated 1 February 2018 (also prepared for the ICWA Claim),[16] says that Mr Ates 'reported that he had been functioning adequately prior to his car accident' and that she was of the view that many of Mr Ates' PTSD symptoms were directly linked to the car accident.
[16] Assessor's Papers, 121.
Dr Taylor, in a second report dated 13 September 2017, stated that Mr Ates:
(a)continued to struggle with night-time anxiety associated to the 2015 house intrusion;
(b)reported feeling anxious, ruminating about past assaults since the house intrusion;
(c)experienced daily night-time waking and compulsive checking behaviour to ensure all doors and windows are locked in an attempt to increase his safety at home; and
(d)described the court appearance as 'very unsettling' as he had to speak about the incident directly in front of the intruder.
Consultant psychiatrist Dr Frederick Ng, in his report dated 29 May 2018 (prepared for the ICA claim),[17] outlines that Mr Ates contacted him two days after the assessment interview and said that he had forgotten to tell him about the offences and states that Mr Ates:
(a)reported experiencing sleeping difficulties and nightmares for about two months following the offences;
(b)was no longer seeing Aboriginal clients as part of his work; and
(c)now avoided going to places where there was a significant probability of Aboriginal people being present.
[17] Assessor's Papers, 183 - 198.
Dr Ng's opinion was of that Mr Ates' psychiatric symptoms arising after the car accident were qualitatively very different to the symptoms that arose after the offences and that, while the offences did not precipitate the psychiatric difficulties following the car accident, they would have predisposed Mr Ates to those psychiatric difficulties.
Dr Bolland, in her further report dated 10 August 2018 (prepared for the ICWA claim),[18] stated that, prior to car accident, Mr Ates said he had good psychological functioning. Dr Bolland's opinion was that Mr Ates' symptoms of PTSD were 'strongly related to the [car accident]'.
[18] Assessor's Papers, 126 - 129.
Dr Bolland, in her further report dated 25 October 2018,[19] acknowledges that, as neither she nor Dr Taylor had seen Mr Ates before the car accident and therefore, it was difficult to assess the discreet impact of the offences on Mr Ates' psychological mental health and the degree to which his current symptoms of PTSD were due to the commission of the offences. However, Dr Bolland was of the view that Mr Ates had 'developed a number of symptoms of a trauma response that are unequivocally due to the home invasion, avoid[ing] reminders of the home invasion as they evoke intense fear, anxiety and distress', as well as 'reactions such as heart palpitations or panic'.
[19] Assessor's Papers, 130 - 135.
Dr Ng, in his further report dated 9 August 2022,[20] is of the opinion that:
(a)the offences caused Mr Ates to develop 'post-traumatic stress disorder (DSM 5), at its worst to a moderate extent';
(b)Mr Ates' PTSD was more likely than not already present at the date of the car accident;
(c)the car accident exacerbated the post trauma anxiety symptoms that Mr Ates was already experiencing as a result of the offences;
(d)the car accident also caused specific post trauma anxiety symptoms;
(e)the manifestation of post traumatic anxiety symptoms referable to the offences include, but are not limited to, the avoidance of Aboriginal people, which extends to Mr Ates' clinical psychology practice;
(f)Mr Ates was experiencing residual anxiety symptoms, partly as a consequence of the offences and partly as a consequence of the car accident; and
(g)Forty five percent of Mr Ates' current psychiatric needs arise from the commission of the offences and 55% of from the car accident.
[20] Book of Documents, pages 8 - 21.
Dr Bolland and Dr Ng have prepared their later reports having specific regard to the impact that the commission of the offences has had on Mr Ates' psychological health. I do not find these reports to be inconsistent with their earlier reports prepared for the ICWA claim. It is clear from their later reports that Mr Ates was suffering from PTSD and anxiety after the commission of the offences and prior to the car accident, and that his psychological injuries were exacerbated by the car accident.
Therefore, I accept, on the basis of the opinion expressed in Dr Ng's report dated 9 August 2022, together with the opinion of Dr Bolland expressed in her report dated 25 October 2018, that the commission of the offences materially contributed to Mr Ates' psychological injuries, being mental and nervous shock suffered by Mr Ates in the form of PTSD, and anxiety.

What award of compensation is appropriate?

The maximum amount of compensation which may be awarded for injury and loss is $75,000: s 31(1) of the Act.
The maximum compensation payable under the Act is a jurisdictional limit and is not an amount which is reserved for the worst cases.[21] Where the application is made in respect of more than one offence, but those offences are related to one another, the amount awarded cannot exceed the jurisdictional limit for a single offence: s 33 of the Act.
[21] Underwood [112].
Offences will be related to one another if they were committed at approximately the same time, whether by one person or multiple persons acting in concert: s 33(1)(a) of the Act.
The offences were all committed by Mr Whitby at approximately the same time and therefore, the maximum amount of compensation that Mr Ates may be awarded is $75,000.
In fixing the appropriate amount of compensation, I must apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act and the jurisdictional limit imposed by the Act.[22]
[22] Underwood [112] - [113].

In assessing the amount of compensation to be awarded, it is the injuries that were suffered by Mr Ates as a consequence of the commission of the offences to which I must have regard, not to the seriousness of the offences. I must not fix the amount of compensation in order to punish Mr Whitby or to display sympathy for Mr Ates.[23]
[23] Underwood [115].
'Loss' includes expenses that Mr Ates has actually and reasonably incurred that arise directly from or in obtaining a report from a health professional in relation to the injuries that Mr Ates suffered or expenses that are likely to be reasonably incurred by Mr Ates for treatment that he is likely to need as a result of his injuries: s 6(2)(a) of the Act.
Loss of earnings and loss of earning capacity are also compensable: s 6(2)(c) of the Act.

Non-pecuniary loss

In relation to Mr Ates' physical injuries, I find that Mr Ates suffered soft tissue injuries and bruising as a consequence of the commission of the offences.
In relation to Mr Ates' psychological injuries, I find that the commission of the offences materially contributed to Mr Ates' psychological injuries in the form of PTSD and anxiety. I accept that Mr Ates' psychological injuries, as set out in his victim impact statement and his Affidavit, have caused him loss of enjoyment of life.
The court therefore awards Mr Ates, in respect of his physical and psychological injuries which he suffered as a consequence of the commission of the offences, resulting in pain and suffering, loss of enjoyment of life and loss of amenities, an award of compensation in the sum of $20,000.

Pecuniary loss

Loss of earning capacity

Mr Ates says that, as a result of the commission of the offences, he was no longer able to treat indigenous patients. Mr Ates did not maintain records which identified his clients as indigenous and non‑indigenous. He was not therefore, able to provide documentary evidence to support his loss of earning capacity claim. Mr Ates estimates that approximately 5% of his clients were indigenous prior to the commission of the offences.
Dr Ng, in his report dated 9 August 2022, expressed the opinion that, although Mr Ates avoided seeing Aboriginal people as clients, he is able to work full‑time as a clinical psychologist.[24]
[24] Book of Documents, page 20.
Mr Ates submits that a global award for loss of earning capacity is appropriate.
While I accept that I may award a global sum for loss of earning capacity where the amount of any loss is speculative and imprecise, I am not satisfied, on the basis of the evidence before me that Mr Ates has suffered any loss of earning capacity. Accepting that Mr Ates may not have been able to see indigenous clients after the commission of the offences, there is no evidence to establish that he could not see other clients instead. In all of the circumstances, I award no amount for loss of earning capacity.

Past medical and travel expenses

Mr Ates claims the following for past medical and travel expenses:
(a)Dr Bolland appointments on 29 May 2018 and 18 September 2018 - total gap $207; and
(b)187.8 kilometres for travel for treatment at 66 cents per kilometre - total $124.95.
I award Mr Ates a total of $331.95 for past medical and travel expenses.

Future treatment expenses

Mr Ates is claiming the following for future expenses:
(a)10 sessions of trauma specific individual psychotherapy at $118.85 gap per session - total gap of $1,188.50;[25] and
(b)$50 - $100 per month for medications (for anxiety and depression) for 1 - 3 years to augment the psychotherapy - total for midpoint of $75 per month for two years of $discounted by 45% as attributable to offences - $810.
[25] Dr Ng recommends at least a further 12 sessions and Dr Bolland recommends 8 sessions - the midpoint being 10 sessions.
The definition of loss in s 6(2)(b) of the Act includes expenses that are likely to be reasonably incurred by an appellant for future treatment that is required as a direct consequence of the injuries sustained.
I am satisfied that the future treatment expenses claimed will be incurred by Mr Ates as a direct consequence of the psychological injuries Mr Ates sustained as a result of the commission of the offences. I award a total amount of $1,998.50 for future treatment expenses subject to the operation of s 48 of the Act.

Reports and disbursements

Mr Ates is claiming the cost of the following disbursements:
(a)report of Dr Ng dated 17.08.22 - $1,903;
(b)report of Dr Bolland dated 05.10.18 - $1,079.54; and
(c)report of Dr Withers dated 19.09.22 - $275.
I allow the amount of $3,257.54 for the reports pursuant to s 6(2)(a)(i) of the Act.

Should the award be reduced pursuant to s41 of the Act?

The award of compensation should not be reduced pursuant to s 41 of the Act. Even if s 41 of the Act did apply to pre-existing injuries,[26] it was not unreasonable for Mr Ates to self‑treat his psychological injuries after the commission of the offences, given he is a trained clinical psychologist. In so doing, Mr Ates did not contribute directly or indirectly to his injuries.

Did Mr Ates fail to mitigate his loss?

[26] There are conflicting authorities on whether it does: Underwood [126].

Mr Ates is obliged to mitigate his loss by obtaining reasonable medical treatment in respect of the injuries caused by the offences. The failure to do so can be taken into account when an award of compensation is made. The respondent bears the onus of proving, on the balance of probabilities, that Mr Ates acted unreasonably in not seeking psychological treatment for approximately 2.5 years until after the commission of the offences.[27]
[27] Re Farmer [2015] WADC 91 [105].
The question of whether Mr Ates acted unreasonably is determined by reference to a reasonable person in the circumstances as they existed for Mr Ates.[28]
[28] ATB v LA [2021] WADC 64 [20].
Mr Ates self-treated his psychological injuries caused by the commission of the offences. He managed his symptoms using progressive muscle relaxation techniques before he went to bed. I find that it was not unreasonable for Mr Ates to self‑treat his psychological injuries in this manner following the commission of the offences, given he is a trained clinical psychologist. In so doing, Mr Ates did not fail to mitigate his loss.

Conclusion and orders

The court therefore allows the appeal and awards Mr Ates the award of compensation of $25,587.99 comprising:
(a)non-pecuniary loss $20,000;
(b)loss of earning capacity nil;
(c)past medical and travel expenses $331.95;
(d)future treatment expenses $1,998.50; and
(e)report expenses $3,257.54.
The proposed orders are as follows:
1.The appeal is allowed.
2.The sum of $25,587.99 is awarded to the appellant, inclusive of the amount of $1,998.50 which is subject to s 48 of the Criminal Injuries Compensation Act 2003 (WA), as compensation for injuries and losses.

The parties are to confer and provide a minute of consent orders or proposed orders if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CB
Associate to her Honour Judge Whitby
8 DECEMBER 2022