Re ATS
[2019] WADC 76
•31 MAY 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE ATS [2019] WADC 76
CORAM: DAVIS DCJ
HEARD: 18 JANUARY 2019
DELIVERED : 31 MAY 2019
FILE NO/S: APP 75 of 2016
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: ATS
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: R GUTHRIE
File Number : CI 0014 of 2016
Catchwords:
Criminal injuries compensation - Appeal from award on ground of inadequacy - Further evidence admitted - The nature of a hearing de novo and whether all issues must be reconsidered - Alleged offence - Whether there was an offence committed - Delay before complaint to police - Assessment of compensation - Ankle injury - Nervous shock psychological symptoms - Causation issues - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003 (WA), s 17, s 38
Result:
Appeal allowed to the extent of allowing the costs of reports, otherwise no increase in award of compensation
Representation:
Counsel:
| Appellant | : | In person |
| Amicus Curiae | : | Mr J F Bennett on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
A v D (1994) 11 WAR 481
Beer v Duracraft Pty Ltd [2004] WASCA 192
CME [2018] WADC 69
Collard v The State of Western Australia [2016] WASCA 135
DR v CD [2018] WADC 148
Dunne [2014] WADC 131
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Green v Lee (1996) 17 SR (WA) 93
Guy v Hampson [2019] WADC 19
Hansen v Bolton [2017] WADC 25; (2017) 91 SR (WA) 137
Hill v Clarke [2015] WADC 93
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
Hutchings v Lachlan [2012] WADC 89
JY [2013] WADC 187
Lloyd v Small (1996) 16 SR (WA) 111
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
McDavitt v McDavitt [2013] WADC 22
MES v KG (1995) 12 SR (WA) 330
MJN v MAJS (2003) 35 SR (WA) 219
Moncrieff v Bishop [2007] WADC 198
National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The 'Ikarian Reefer') [1993] 2 Lloyd's Rep 68; [1993] FSR 563
R v Falconer (1990) 171 CLR 30
Raux v The State of Western Australia [2012] WASCA 1
Re ATS [2017] WADC 92
Re Bangmoro [2019] WACIC 12
Re Carter (1984) 4 SR (WA) 219
Re Collard [2018] WADC 1
Re Iaria [2018] WADC 22
Re Piggott [2017] WADC 150
Re Tilbury [2010] WADC 46
Re Warrek [2019] WADC 50
Re Zadeh [2015] WADC 136
S v Neumann (1995) 14 WAR 452
The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
VMH by her next friend The Public Trustee v JAB [2014] WADC 47
DAVIS DCJ:
In 2015 the appellant, who was then 42 years old, lodged an application for criminal injuries compensation pursuant to the Criminal Injuries Compensation Act 2003 (the Act) claiming compensation as a consequence of an incident which occurred on 4 February 2012.
The appellant claimed compensation for an injury to her right ankle and consequent psychological injury, future medical treatment expenses and report expenses in the sum of $1,580.
On 15 September 2016 an assessor of criminal injuries compensation, Mr R Guthrie, made a compensation award in the appellant's favour in the sum of $26,000, consisting of $18,000 for injuries and $8,000 for future treatment expenses (subject to s 48 of the Act).
The solicitors then acting for the appellant requested written reasons for decision. These were provided in a letter dated 28 October 2016. The assessor acknowledged in this letter that he had omitted to include the report expenses as claimed, and offered to amend the award to add the sum of $1,580.
In the meantime, however, the appellant had appealed from the assessor's decision on the grounds that the award was inadequate.
The background facts and findings of the assessor
As set out in the assessor's letter dated 28 October 2016, on the night of 4 February 2012 the appellant was at a hotel in Northbridge with two friends. She was standing at the inside stage near the right‑hand side close to the DJ desk when at approximately 11.00 pm she was pushed roughly and with significant force by another female patron. The appellant lost her balance and fell to her right side, twisting her right ankle. She was caught by a male bystander who broke her fall, but unfortunately the woman who had pushed the appellant fell heavily on top of her.
The following morning the appellant woke up in pain, with a swollen ankle and not able to walk. While she attended for medical treatment, there was no formally recorded or documented report by the appellant to the police until 12 June 2012. No person was apprehended or charged in relation to the incident.
Pursuant to s 17 of the Act the assessor had to be satisfied that an offence was committed and that the appellant had suffered injury as a consequence. The assessor was so satisfied on the information before him. He specifically considered whether the incident might have been regarded as an accident, having regard to s 23 of the Criminal Code. He concluded, accepting the appellant's description of how the push occurred, that the physical contact was a willed act and therefore s 23 did not apply. The assessor also considered whether the appellant had impliedly consented to the physical contact, given the nature of the venue. He took the view that while the appellant may have consented to some light body contact on a casual basis, she had not consented to a forceful push. Accordingly he found that an offence had occurred.
In terms of the physical injuries suffered by the appellant, she attended the emergency department of Swan District Hospital on 16 February 2012 when an X-ray was taken. This showed no fractures. Her ankle was swollen with tenderness and restriction of movement. The records from Swan District Hospital dated 16 February 2012 provided a diagnosis of a sprain/strain to the lower limb ankle.
The assessor noted that the appellant was fitted with a 'moon boot' at the hospital which she wore for approximately three months. Unfortunately this interfered with her gait. She attended physiotherapy at the hospital until September 2012. The assessor had before him reports indicating that the applicant had ongoing instability in her ankle as a consequence of the right ankle strain. These were reports from Dr John Salmon dated 8 May 2012, and Dr Soo Tee Lim dated 24 November 2014 and 15 May 2014.
As to the appellant's claim for psychological injury, taking into account all of the medical evidence the assessor concluded that while the appellant had suffered a significant ankle strain, he was not satisfied that the injury had given rise to any psychological injury.
The medical evidence concerning the claim for psychological injury included the following (the assessor having read the files where the appellant had made claims arising from previous incidents):
(a)A report from Mr Christopher Semmens, a psychologist, dated 1 July 2012 written following an incident on 2 November 2010 where the appellant suffered injuries as a consequence of being bitten. Mr Semmens diagnosed the appellant as having complex traumatic stress but in his report of 1 July 2012, made no mention of the incident the subject of the current claim. An award for compensation in the appellant's favour had been made in respect of this matter.
(b)A report of Mr Semmens following an incident on 5 February 2011 when the appellant alleged she had been indecently assaulted and strangled. Again Mr Semmens diagnosed complex traumatic stress. An award for compensation in the appellant's favour had also been made in respect of this matter.
(c)A number of psychological reports supporting a claim made by the appellant for criminal injuries compensation following allegations of indecent assault which occurred in 2011 and attributing psychological injuries experienced by the appellant to the alleged indecent assault.
(d)A report dated 11 June 2015 from Mr Semmens addressing the psychological consequences of the injury to her ankle in the incident of 4 February 2012.
The assessor noted that the psychologist Mr Semmens did not mention the incident of 4 February 2012 until his report of 11 June 2015, and in that report Mr Semmens had observed that the appellant was in the grip of severe depression in the months before the incident.
The grounds of appeal
The appellant argued in the hearing of the appeal before me, that the award of compensation made to her was inadequate in three respects:
(a)the award for the physical injury to her ankle was inadequate;
(b)no allowance had been made for any psychological component; and
(c)no allowance was made for the costs of doctor's reports, or the allowance which was made was inadequate, with additional costs now sought.
The nature of the appeal and the admission of further evidence
As provided in s 56 of the Act, this appeal is a hearing de novo, which means I must determine the appeal afresh, without being fettered by the assessor's decision. I may confirm, vary or reverse the assessor's decision in whole or in part.
The Amicus Curiae submitted that, as this is a hearing afresh, before I can consider the issue of quantum, I must first be satisfied that I can make an award of compensation at all. In the circumstances of the case this required me to consider:
(a)whether the appellant has proved that an offence occurred; and
(b)whether s 38 of the Act applies to preclude an award of compensation because of the delay in the appellant reporting the matter to police.
After reviewing the authorities about the nature of an appeal hearing de novo, I accept the Amicus' submissions that I am required to consider these matters. This is because in appeals involving a hearing de novo, all the issues must be retried. The party succeeding below enjoys no advantage, and must, if he can, win the case a second time: Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297 ‑ 298 (Glass JA).
It has often been said it is appropriate to have regard to the assessment made by the learned assessor as a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63. I agree with the views of Bowden DCJ most recently expressed in Guy v Hampson [2019] WADC 19 [14][1] and Quail DCJ in DR v CD [2018] WADC 148 [13] – [16] that on an appeal such as this it is not appropriate to have regard to the assessment made by the assessor.
[1] And see also Re Piggott [2017] WADC 150 [10]; CME [2018] WADC 69 [10].
Accordingly, I have concluded that a hearing de novo of a criminal injuries compensation appeal requires this court to consider the application for criminal injuries compensation afresh, without regard to the assessor's decision, and that all issues relating to the appellant's claim for criminal injuries compensation must be reconsidered, and not just the issue of the adequacy of the award. That is consistent with the nature of a hearing de novo as described in Turnbull v New South Wales Medical Board.
While s 56(1) of the Act provides that an appeal is to be determined 'solely on the evidence and information that was in the possession of the assessor', it also provides the court with the power 'to receive further evidence and information' in the court's discretion.
It is now well established that the discretion to admit further evidence on an appeal under s 56(1) of the Act should be exercised without undue restriction: Re Tilbury [2010] WADC 46 [3]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9].
The appellant sought to adduce further evidence in this appeal and I received that further evidence, as follows:
1.an affidavit sworn by the appellant on 20 May 2018 and the annexures to that affidavit, which annexures included a number of medical reports; and
2.a further report from Mr Semmens dated 17 January 2019.
I should observe that some of the annexures to the appellant's affidavit sworn 20 May 2018 were, in fact, before the assessor. I did, however, receive the affidavit in its entirety.
I will therefore proceed to determine this appeal on the information which was before the assessor, which consists of the original file of the assessor, together with some further material from previous criminal injuries compensation applications made by the appellant, which the assessor's office provided by letter dated 8 August 2018 at the request of the Amicus. As can be seen from the assessor's letter of 28 October 2016, the assessor took into account some of the medical reports and additional material from those previous criminal injuries compensation applications. I will also take into account the materials in the appellant's affidavit of 20 May 2018 and the additional report of Mr Semmens dated 17 January 2019.
With this information I will consider three issues:
1.The first issue – whether an offence occurred.
2.The second issue – whether s38 of the Act applies to preclude an award of compensation.
3.The third issue - whether the award of compensation was inadequate.
FIRST ISSUE – WHETHER AN OFFENCE OCCURRED
General principles on assessing whether an alleged offence occurred
As no person has been charged with any offence in relation to the alleged assault on the appellant on 4 February 2012, s 17 of the Act applies. An assessor, and this court on appeal, must not make a compensation award unless satisfied that the claimed injury has occurred and also any claimed loss was a 'consequence of the commission of' the alleged offence.
Section 3 of the Act provides that 'satisfied' means 'satisfied on the balance of probabilities'.
The applicant who claims compensation under the Act where no conviction has been entered bears the burden of proving the offence: Re Carter (1984) 4 SR (WA) 219 and MES v KG (1995) 12 SR (WA) 330, 331 ‑ 332; Hill v Clarke [2015] WADC 93 [13]; Re ATS [2017] WADC 92 [28]. That includes establishing on the balance of probabilities that the alleged offender had no defence to the allegation that he or she committed the offence: Green v Lee (1996) 17 SR (WA) 93, 97; Re Piggott [144].
The strength of what is necessary to establish a matter on the balance of probabilities may vary according to the nature of what is sought. Where criminal conduct is alleged, clear and cogent evidence will be required: Hutchings v Lachlan [2012] WADC 89; McDavitt v McDavitt [2013] WADC 22 [30]; Hill v Clarke [14].
In order for an applicant to succeed in a claim for criminal injuries compensation based on alleged offence, the circumstances must give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability, that the alleged offender committed a criminal offence: Lloyd v Small (1996) 16 SR (WA) 111, 113 ‑ 114; Hutchings v Lachlan [35]; Re ATS [29] and [115].
The evidence must be scrutinised with care and caution in determining whether the alleged offending occurred, but also having regard to the remedial purpose of the Act which provides a right to compensation: Re ATS [30] and [114].
It should also be remembered that proceedings in an application for criminal injuries compensation are not adversarial and neither the assessor nor the court on an appeal hearing is bound by rules of practice or evidence: Re ATS [31], [104].
The evidence on whether an offence occurred.
When the appellant reported the matter to police on 12 June 2012, the police Incident Report recorded the following:
The Victim was standing at the inside stage area of the Elephant and Wheelbarrow.
The Victim was in company of 2 friends who were present with her.
The Victim was standing facing the band on stage when she received a heavy push on her left hand side causing her to fall to her right twisting her right ankle.
The female POI who pushed the victim also fell on top of her.
Both females were helped to their feet by a male by stander.
The POI attempted to talk to the Victim but appeared to be intoxicated.
The POI left with no further incident.
The Victim attended Swan District Hospital emergency department the next day to seek treatment for her right ankle.
The Victim stated she was unsure if it was a deliberate push that caused her to fall to the ground.
The appellant also provided a written and signed statement to the police describing how, while she was standing facing the band on stage, she received a 'solid push' in her left shoulder area. The impact of the push caused the appellant to lose her balance and fall to her right side toward the ground, twisting her right ankle. Just before she hit the ground a male standing nearby caught her and broke her fall. The female who had pushed her also fell on top of her. The male assisted both the appellant and the female to her feet.
The appellant gave a description of the female, how she was of a heavy build, and appeared to be intoxicated. The female was talking to the appellant but she did not understand what the female was saying. The female then walked off and the appellant did not see her again that night. The appellant did not know the female who had pushed her over and had not seen her before.
The next morning that the appellant woke to severe pain in her right ankle.
Whether an offence occurred
As the Amicus has pointed out, there is very little evidence, apart from the appellant's own account or accounts over time, of what occurred during the incident of 4 February 2012.
The Amicus has provided submissions dealing with the credibility of the appellant, addressing some differences in the description of this incident given by the appellant to the police and from time to time to medical practitioners, as recorded in their notes or reports.
I place little weight on the Amicus' submissions about this. There is often no exact correlation between the facts relied on by a claimant or plaintiff and the histories recorded and relied upon by medical practitioners: Beer v DuracraftPty Ltd [2004] WASCA 192 [80]. In my view, the accounts given by the appellant to the various medical practitioners in this case are largely consistent with her account to the police.
The Amicus has also drawn my attention to other incidents involving the appellant and other criminal injuries compensation applications which have been made by the appellant and dismissed, including one of her claims which was the subject of the decision in Re ATS. But each case is different and Re ATS was decided on its own facts.
After considering all of the evidence and information before me in this case, including the medical evidence, I am satisfied that it is more likely than not that the incident of 4 February 2012 occurred. I am also satisfied on the balance of probabilities that there was a push as the appellant described.
The next issue is whether that push would constitute an assault occasioning bodily harm within the meaning of s 317 of the Criminal Code.
An assault is defined by s 222 of the Criminal Code as follows:
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.
In my view, subject to the issue of consent, the push by the unidentified female falls within that definition.
Section 1(1) of the Criminal Code defines bodily harm as meaning 'any bodily injury which interferes with health or comfort'. The appellant's ankle injury falls within that definition.
For the appellant to establish on the balance of probabilities that she was injured as a consequence of the commission of the offence of assault occasioning bodily harm, she must prove that the assault took place without her consent. On the issue of consent, there is no suggestion of express consent by the appellant. In terms of implied consent, as a matter of common sense and experience, a person attending a busy hotel or nightclub would expect some inadvertent contact, such as touching or pushing, from other people nearby, jostling in the crowd, dancing or trying to get closer to the stage. But that is very different from the 'solid' push as described by the appellant. I am thus satisfied that the push occurred without her consent.
The appellant must also negate, on the balance of probabilities, the existence of defences reasonably open to the unidentified female. There are two defences which must be negated in this case. The first is the defence of unwilled act pursuant to s 23A of the Criminal Code and the second is the defence of accident pursuant to s 23B of the Criminal Code.
On both of these issues, if the unidentified female pushed the appellant deliberately, then no issue of unwilled act or accident could arise: Re Warrek [2019] WADC 50 [17] (Troy DCJ). However, there is some doubt as to whether the push was a deliberate one, particularly given the evidence that the unidentified female was intoxicated. The appellant must therefore negate both defences.
On the issue of unwilled act, the effect of s 23A of the Criminal Code is that the unidentified female would not be criminally responsible if her act of pushing the appellant occurred independently of the exercise of her will. There is an evidential presumption, borne from ordinary and universal experience that an act done by a person who is conscious is a willed act: R v Falconer (1990) 171 CLR 30, 40. In the absence of any evidence displacing the presumption, and given the force of the push as described by the appellant, I am satisfied on the balance of probabilities that the unidentified female's push was a willed act.
Turning now to the issue of accident, the effect of s 23B of the Criminal Code is that the unidentified female would not be criminally responsible for an event which occurs by accident. The 'event' in this case is the appellant's ankle injury: Raux v The State of Western Australia [2012] WASCA 1. Applying the law set out in Raux v The State of Western Australia the appellant can prove that her ankle injury did not occur by accident if she proves either or both of the following:
1.subjectively, the unidentified female intended or foresaw the appellant's ankle injury as a possible outcome of her conduct; or
2.objectively, the ankle injury would reasonably have been foreseen by an ordinary person, in the unidentified female's position, as a possible outcome of her conduct.
The ordinary person is a sober person (that is, not intoxicated or affected by alcohol, drugs or other substances): Collard v The State of Western Australia [2016] WASCA 135 [128].
I am satisfied that an ordinary and sober person in the unidentified female's position would have reasonably foreseen that if the appellant was given a solid push to one shoulder, causing her to fall, a possible outcome was a twisted or sprained ankle.
Accordingly, I am satisfied that the appellant was injured in the incident of 4 February 2012 as a consequence of the commission of an alleged offence pursuant to s 17 of the Act.
Second issue - s 38 of the Act
Section 38 provides, relevantly, that an assessor must not make a compensation award in favour of an applicant if the assessor is of the opinion that the applicant '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'.
The section requires a factual determination as to whether there was a failure by the applicant to do any act or thing and if so, whether that failure was reasonable in the circumstances: Re Collard [2018] WADC 1 [22] ‑ [23]; Re Iaria [2018] WADC 22 [8] ‑ [10].
As the first recorded report to the police by the appellant is four months after the alleged offence, on 12 June 2012, it might be said that there was a failure to make an earlier report to the police.
However, there is evidence in the police running sheet which accompanies the Incident Report that the appellant had, in fact, contacted the police at an earlier stage. According to an entry on the running sheet, one police officer asked why the incident was not reported at an earlier date, to which the appellant stated she had attempted three times 'but no one cared'.
The notes made by another officer who spoke to the appellant on 18 June 2012 also record that the appellant stated that she had attended police stations on previous occasions to report the matter since approximately one week after the incident, and it was only on the last occasion that the police took any action.
Accordingly I am not able to conclude that there was a failure to report the matter to the police and thus a failure to assist in the identification, apprehension and prosecution of the offender. In the circumstances, s 38 of the Act does not operate to preclude the appellant from claiming compensation.
THIRD ISSUE – QUANTUM
General principles relevant to the assessment of compensation
Compensation is payable for injury or loss in consequence of the commission of an offence, whether proven or alleged.
An 'injury' includes bodily harm and mental and nervous shock: s 3. The phrase 'mental or nervous shock' has been construed as including any malfunction of the victim which can be seen to be a consequence of the impact of events constituting the offence, or associated with the commission of the offence, as those events impact on the mind or the nervous system. Psychiatric and psychological sequelae have long been recognised as falling within the definition of 'mental or nervous shock': S v Neumann (1995) 14 WAR 452, 461; Dunne [2014] WADC 131 [25].
The Act provides for a maximum compensation that may be awarded. This is a jurisdictional limit and it does not create a scale: S v Neumann (463). In this case the maximum compensation payable under the Act is $75,000.
Ordinary tortious principles are to be applied in the assessment of compensation, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act and subject also to the statutory limit: S v Neumann (462); VMH by her next friend The Public Trustee v JAB [2014] WADC 47 [43].
The applicant for compensation must prove the necessary causal relationship between the offence and the claimed injury and loss, on the balance of probabilities: S v Neumann (463 - 464), A v D (1994) 11 WAR 481, 489. Whether such causal relationship exists between the claimed injury and loss and the proved or alleged offence is a question of fact.
It is not necessary to prove that the offence is the sole cause of the injury or loss: Fagan v The Crimes Compensation Tribunal(1982) 150 CLR 666. However, where a non‑compensable condition (whether pre‑existing or subsequent) has contributed to the loss, or at least has or has had a propensity to do so, the applicant may not be entitled to compensation for the full extent of the injury or loss: MJN v MAJS (2003) 35 SR (WA) 219 [51] ‑ [57]; JY [2013] WADC 187 [13] (Sleight CJDC); ReZadeh [2015] WADC 136 [34] (Sleight CJDC).
As set out by Herron DCJ in Hansen v Bolton [2017] WADC 25; (2017) 91 SR (WA) 137 [85] - [86]:
(a)compensation will not be awarded if the injury or loss would have occurred in any event due to a pre-existing condition;
(b)where it cannot be positively stated that the injury or loss would have occurred in any event but it remains a probability then the award of compensation must be reduced to take into account that probability; and
(c)where it is not possible to disentangle the consequences of a pre‑existing condition and the consequence of the offence, the claimant is entitled to compensation for the full injury and loss if the claimant can establish that the compensable offence did contribute materially to the claimant's injury or loss.
The appellant's injury and other medical conditions
The appellant's claim is complicated by a number of pre-existing and subsequent incidents and medical conditions. It is necessary to set out what these are, which I will do in chronological order, based on the information in all of the medical reports both before the assessor and in this appeal.
The appellant was sexually abused as a child over a number of years. Subsequently as an adult, in February 2008, she began seeing the psychologist Mr Christopher Semmens, who treated her for traumatic stress. She was undergoing psychotherapy directed at assisting her to process and resolve traumatic stress.[2]
[2] Reports of Mr Semmens dated 1 May 2012 and 1 July 2012.
In 1994 in Victoria, the appellant was a rear seat passenger in a car involved in a motor vehicle accident. As a result of the car accident she suffered serious spinal injuries, particularly of the cervical spine (neck), head injuries and right shoulder pain. She has been unable to work since and has been on a disability pension.[3] Following this accident, the costs of medical treatment and expenses, including psychiatric and psychological care, were met by the Transport Accident Commission (TAC) of Geelong, Victoria.[4]
[3] Report dated 15 May 2014 from Dr Soo Tee Lim, orthopaedic surgeon, par 1(a).
[4] Report of consultant psychiatrist, Dr Stephen Proud dated 3 April 2017; report of Dr John B Salmon dated 29 May 2012, page 2; report of Dr Chin-wern Chan dated 14 March 2015.
In 2002 the appellant had right hip arthroscopic surgery for a labral tear (right hip).[5]
[5] Report dated 15 May 2014 from Dr Soo Tee Lim, orthopaedic surgeon.
In November 2010, the appellant was bitten on the left upper arm by another person. This left her with some scarring and a small subcutaneous lump, likely to be healed scar tissue which is benign in nature.[6] According to a report dated 1 July 2012 from the psychologist Mr Semmens, this incident set back the traumatic stress therapy in which she had been engaged.
[6] Report dated 20 October 2011 from Dr Jack Yap, Royal Perth Hospital Immunology Registrar.
On 5 February 2011 while at a bar located at the casino, the appellant was physically assaulted by a man who grabbed her by the left breast and pushed her hard, placing the back of his forearm to her throat and applying pressure to it. According to a report dated 1 May 2012 from Mr Semmens this incident adversely affected the appellant in a way 'significant enough to set back the traumatic stress therapy' in which she had been engaged.
The appellant claimed that between February and August 2011 she had been sexually assaulted by a treating health practitioner, a podiatrist. According to a report from Mr Semmens dated 20 October 2014 this 'adversely affected' the appellant in a way significant enough to cause her 'nervous shock' and to set back the traumatic stress therapy in which she had been engaged.
The ankle injury the subject of this appeal was suffered on the night of 4 February 2012. On examination at the Emergency Department of Swan District Hospital on 16 February 2012, the appellant's right ankle was found swollen and tender. There was no abnormality detected on X‑ray. The diagnosis was an ankle strain or sprain. The appellant was sent home on analgesia and support and advised to attend her GP if she experienced any further pain or swelling.[7]
[7] Report of Junior Medical Officer, Emergency Department, Swan Health Services, dated 16 February 2012.
On 14 February 2012 the appellant provided a witness statement to the police in relation to her complaint against the podiatrist. In that statement she outlined her situation, her previous injuries and medical conditions as follows:
1.I am a 38-year-old on a disability pension. I live in [suburb specified] on my own.
2.I was the victim of a serious car crash in Victoria on 6 May 1994, where I was a back seat passenger of a P plate driver.
3.From the car accident, I suffered serious neck and head injuries and have been unable to work.
4.I suffer from complex post-traumatic syndrome, neck injury, chronic pain, depression, joint and jaw dislocation.
5.I also suffer fibromyalgia, a muscle condition caused by knots.
6.I have sleep disorder and bladder incontinence.
7.I take medication for all my conditions and regularly see Doctors for treatment and counselling.
8.My medication includes Lyrica 150 mg which I take four times daily for pain.
9.I take Endone 5 mg twice daily for pain as well.
10.I take Symbalta 120 mg once a day for depression.
11.I have morphine patches 40 mg which lasted seven days and this treats me for chronic pain.
12.I was seeing a psychiatrist once a week since May 2011.
13.I see my clinical psychologist, Chris Semmens once or twice a week for about three years now.
14.I also see a pain specialist once a fortnight since October 2011 …
There was no mention in that statement of any ankle injury or pain.
On 3 April 2012 the consultant psychiatrist Dr Stephen Proud wrote a report to the appellant's GP advising that the appellant had chronic treatment resistant depression, chronic pain and PTSD from childhood and more recent trauma. The stressors which Dr Proud listed as being 'the significant recent stressors' included recent jaw surgery, an outstanding legal case of allegedly forging a medical document, a civil case for unfair expenses against a mechanic, and a claim against a worker for an alleged sexual assault that is being investigated (which I infer is the appellant's claim against the podiatrist). Dr Proud also noted that the appellant had been in chronic pain since her motor vehicle accident.[8]
[8] Report from Dr Stephen Prout, consultant psychiatrist, dated 3 April 2012.
Subsequently, in relation to the appellant's claim against the podiatrist, her GP wrote a report in which she agreed with the diagnosis made by Dr Stephen Proud i.e. post-traumatic stress disorder, depression, anxiety and fatigue and chronic pain syndrome. The appellant's GP specifically stated that these diagnoses were pre‑existing to the alleged incident.[9]
[9] Report from Dr Toni Law dated 12 August 2012, par (d).
On two occasions on 18 April 2012 and 9 May 2012 the appellant was seen by the Podiatry Department of the Swan Kalamunda Health Service for a review of her orthotics which had been made in August 2011. The outpatient notes record that the appellant complained of an unstable right ankle, that she had had 'previous ankle trauma' and that she was rolling her ankle regularly. She was put on a trial of a 'walker' that day in the hope of increasing ankle stability and decreasing her pain.
In her affidavit sworn 20 May 2018 the appellant has referred to a fall she suffered on 8 May 2012, which she attributes as being a 'complication' of her ankle injury of 4 February 2012.[10] However there is no medical evidence of a fall on this date.
[10] Affidavit of the appellant sworn 20 May 2018 pars 7 and 8.
What the medical records do show is that on that day, 8 May 2012, the appellant was reviewed by the pain specialist Dr John B Salmon in relation to her insurance claim with the TAC.[11] In a report of the same date, Dr Salmon reported that the appellant's condition 'is substantially unchanged' and remains 'highly disabled and inactive by widespread pain and seems to suffer an endless round of additional incidents aggravating her condition'. He noted that she had injured her thumb. He also noted that she had injured her right leg after falling over and has been in a splint for some time although she had not suffered any bony injury. There is no mention of when that fall and right leg injury was. This may well be a reference to the ankle injury of 4 February 2012.
[11] Dr Salmon's report of 8 May 2012 refers to the TAC as the insurer, and a claim number.
Dr Salmon went on to report that her neurogenic pain symptoms had increased. She had been receiving specialist physiotherapy treatment for headaches and neck pain and botox treatment for facial pain but had not had much sustained benefit from either of these treatments. Dr Salmon recommended she participate in an intensive group CBT Pain program.
On 29 May 2012 the appellant attended Dr Salmon again expecting some injection treatment for head and arm pain. In his report of the same date, Dr Salmon discussed the appellant's ankle injury, noting that she had been wearing a lower leg protective boot (a 'moon boot') for 12 weeks for her original injury with uncertain benefit. It was interfering with her gait and mobility so he urged her to discard it. Dr Salmon discussed her other ailments and again recommended the appellant participate in an intensive CBT pain program.
In July 2012 the appellant was seen by the Department of Podiatry at Royal Perth Hospital (RPH) with chronic pain in her hips, ankle and feet.[12] Her main complaints were right ankle pain and long term ankle instability. The notes from the Department of Podiatry record that the appellant was issued with an offloading walker on 18 April 2012 and had recently returned to normal footwear (sport shoes). New orthotics were arranged for her, however, the chief podiatrist at RPH, Ms Cara Westphal reported that these were unlikely to resolve all of the appellant's foot and ankle complaints, because there were other factors contributing to her current problems including recent weight gain and her previous spinal and hip injuries.[13]
[12] Swan Kalamunda Health Service Outpatient notes dated 18 April 2012, 9 May 2012; External referral form from Royal Perth Hospital Podiatry Department dated 29 March 2012; RPH Podiatry Department Outpatient Case Notes dated 9 July 2012; Report dated 9 July 2012 from the chief podiatrist, Department of Podiatry at Royal Perth Hospital.
[13] Report dated 9 July 2012 from the chief podiatrist, Department of Podiatry at Royal Perth Hospital.
In November 2012, after suffering from low back pain with leg weakness, the appellant underwent an MRI of the lumbosacral spine. She was found to have mild disc degeneration with small central disc protrusion.[14]
[14] Report dated 15 May 2014 from Dr Soo Tee Lim, orthopaedic surgeon, par 1(e).
In December 2012 Dr Cesar Sofocado referred the appellant for physiotherapy at the Swan District Hospital, as a result of the problems she was having with her right ankle and leg. In a referral letter dated 18 December 2012 Dr Sofocado indicated that the appellant had been wearing a moon boot and undergoing physiotherapy for four months, but this had not helped.
Dr Soo Tee Lim, orthopaedic surgeon, first saw the appellant in relation to her ankle injury in May 2013, with subsequent follow up.[15]
[15] Report dated 15 May 2014 from Dr Soo Tee Lim, orthopaedic surgeon, pars 3 and 5.
The appellant reported to Dr Lim that she had a fall in late 2013 when her leg gave way and as a consequence she suffered a fractured eye socket.[16] The appellant also reported to Dr Lim that she had another fall in February 2014 in which she had sustained a fracture of her left patella, for which she was seen and treated at Fremantle Hospital as well as QE11 with a knee brace.[17] She reported constant pain in her right ankle with her ankle regularly rolling over, without warning.
[16] Report dated 15 May 2014 from Dr Soo Tee Lim, par 1(f); this fall and fractured eye socket is also mentioned in the report of Dr Christopher Semmens dated 11 June 2015.
[17] Report dated 15 May 2014 from Dr Soo Tee Lim, orthopaedic surgeon, par 1(g).
In his report dated 15 May 2014 Dr Lim found that clinically the appellant had lateral instability in her right ankle. He diagnosed a torn lateral ligament complex which had resulted in right ankle instability. He recommended that the appellant have surgery to stabilise her right ankle, involving the reconstruction of her lateral ligament complex. The estimated cost of that surgery was $7,945. Dr Lim noted also that the appellant had lost a significant amount of weight and had been diligent and motivated with her diet and exercise.[18]
[18] Report dated 15 May 2014 from Dr Soo Tee Lim, orthopaedic surgeon, par 6.
In July 2014 the appellant suffered a massive saddle pulmonary embolism. In a report from Dr James Liang of Sir Charles Gairdner Hospital (SCGH) dated 4 May 2016, he described this as a 'significant disease' which was at the time life-threatening. She was, however, able to be stabilised and since then she has been on blood thinners to prevent further blood clot.[19]
[19] The report of Dr James Liang dated 4 May 2016 is annexed to the affidavit of the appellant sworn 20 May 2018.
The appellant continued to be seen by pain specialists for the injuries she suffered in the 1994 motor vehicle accident. One of those was Dr Chin-wern Chan who saw the appellant in the public health system. The appellant, however, requested another referral to a private pain specialist. On 14 March 2015 Dr Chan wrote a letter of referral to Dr Philip Finch setting out a summary of the appellant's medical conditions. It is necessary to set this out in full:
Summary
1.multiple pain sites following motor vehicle accident.
1.1lumbosacral and cervical spine pain, temporomandibular joint pain, headaches and right shoulder pain.
1.2Initially managed at Melbourne pain clinic and also by Dr John Salmon.
1.3Imaging demonstrates degenerative changes in cervical and lumbosacral spine, cervical CT myelogram demonstrating focal kyphosis at C4–5 with broad disc bulge and modest facet joint degeneration at C5–6 with no neural compromise.
1.4Bone scan: low grade facet joint arthropathy at C4–5 and C5–6, low-grade activity atlantoaxial articulation C1–2 bilaterally.
1.5Previously managed by the late Dr ML Popovic (was planned for a cervical disc replacement procedure).
1.6Facet joint lumbar epidural injection, with negligible benefit, C5–6 epidural injection effective for two weeks.
1.7Current medications: Lyrica 150 mg B.D., dexamphetamine 10 mg a day.
1.8Reviewed by several spinal surgeons (most recently Mr Arel Bala) in Perth, who do not recommend spinal surgery.
2.Psychosocial issues: multiple post-traumatic stress disorder, multiple sexual assaults, query borderline personality disorder, major depression, socially isolated, passive coping mechanisms – seen by Dr Winston Chiu (psychiatrist)….
3.Functional status: unemployed.
4.Has attended physiotherapy but declines pain management program at Sir Charles Gairdner Hospital.
5.Other medical history: obstructive sleep apnoea, recent weight reduction to 100 kg, fibromyalgia.
6.Reviewed by Mr Jeffries and Mr Peter Campbell: no orthopaedic surgery indicated.
7.Stable on Palexia 50 mg twice a day.
8.Recent pulmonary embolism, and placed on anticoagulant of medication at Sir Charles Gairdner Hospital.
9.Care transferred to SCGH pain medicine, as TAC declining to pay private consulting fees.
The first mention of any psychological or psychiatric difficulty as a result of the ankle injury was in the report of Mr Semmens dated 11 June 2015. He set out some of the appellant's history including the pulmonary embolism suffered in July 2014, noting that the risk involved in her undergoing reconstructive surgery (which I assume is a reference to the ankle surgery recommended by Dr Lim) 'is elevated as she is now required to be medicated with blood thinners'. In relation to the psychological consequences to the incident of 4 February 2012, Mr Semmens stated:
This assault is the fourth from which [the appellant] has suffered in the course of just five years. As it happens [the appellant] had been in the grip of severe depression in the months prior to this assault. She had essentially been isolating herself socially, not really wanting to leave the house at all. I, as her treating clinical psychologist, had urged her to push herself to get out of the house and involve herself socially and to engage in some enjoyable activities.
As a result of this urging she went to the hotel at which the assault occurred to see her favourite band. This is essentially the first occasion on which she had ventured out socially for a number of months.
… This injury exacerbated her ongoing chronic pain condition and thwarted our efforts to lift her psychotherapeutically from her depression. [The appellant] is very anxious about her forthcoming surgery, concerned about the complicating influence of her chronic pain condition on her prospects of achieving an optimal recovery.
Each of the assaults that have occurred for [the appellant] over the past five years have resulted in setbacks to the ongoing therapy that we have been undertaking to reduce the interfering effects of the traumatic stress from earlier in her life – in particular the [sexual abuse] and the motor vehicle accident. Furthermore there has been a cumulative effect of all of these traumas that further complicates the therapeutic progress that we are setting out to achieve. [The appellant]'s chronic pain condition and her traumatic stress have been exacerbated with each of these assaults.
In June 2015 the appellant was diagnosed with breast cancer. She underwent surgery to remove a lump from her breast. In a report dated 8 April 2016 to the appellant's GP from the specialist breast endocrine and general surgeon, Mr Richard Martin, he described the lump as a 1.2 mm low-grade DCIS.[20]
[20] Mr Richard Martin's report of 8 April 2016 is annexed to the appellant's affidavit sworn 20 May 2018.
In September 2015 the appellant was seen by another clinical psychologist, Dr Brendon Dellar, an Adjunct Associate Professor of Clinical Psychology at Curtin University. A clinical psychologist, Dr Dellar has a PhD and his PhD research concerned the assessment of post-traumatic stress disorder (PTSD) by examining atypical visual symptoms. In a report dated 5 October 2015 Dr Dellar diagnosed the appellant as having chronic and complex PTSD, the origins of which related to her childhood sexual abuse, and which had been exacerbated by the reported sexual abuse by her podiatrist (referred to as the AP). Dr Dellar concluded:[21]
[The appellant] presents with Post-Traumatic Stress Disorder, Major Depressive Episodes and background of personality disordered thinking and behaviour. The diagnosis of Paranoid Personality Disorder appeared warranted in this case, as it describes some observed hostility as well as victimisation. The PTSD is complex due to the fact that it occurred in late childhood and then re-triggered by recent events. It is likely that the childhood sexual abuse has been linked to some of the personality characteristics described in the section 11.1.1. It is logical to link her abuse in childhood with the development of paranoid suspicion … The recent events with the AP would likely have triggered some of these pre-existing vigilance toward others with perceived malicious intentions towards her.
This case is complex due to a pre-existing PTSD, chronic pain and social isolation. There are also numerous psychosocial issues including financial stress and disability pension which significantly limits [the appellant's] ability to integrate with mainstream society in a manner that would be afforded to those participating in the workforce. Her medical condition is further complicated by the recent diagnosis of cervical and breast cancer increasing her level of distress and challenging her coping.
[21] Dr Brendon Dellar, Clinical psychologist, report dated 5 October 2015, Conclusion and Clinical impressions, par 12.
I pause here to note that the appellant had been referred to Dr Dellar by Mr Semmens. The report from Dr Deller is very detailed and includes details of both the appellant's medical history and previous trauma history. There is no mention in either of these sections of Dr Dellar's report of the incident of 4 February 2012 or any trauma suffered as a result of the ankle injury.
In mid‑2016 the appellant was bitten on the leg by a dog. The left leg initially started to swell.[22]
[22] Sir Charles Gairdner Hospital Department of Emergency Medicine Discharge Summary printed 5/08/16, annexed to the appellant's affidavit sworn 20 May 2018.
On 5 August 2016 the appellant presented to SCGH Emergency Department after she had felt dizzy and collapsed. She reported feeling chest pain like a pressure and a severe headache. The principal diagnosis was syncope, most likely vasovagal or orthostatic hypotension. Her discharge plan was to obtain a referral to a private syncope specialist for further follow-up and drink plenty of water.[23]
[23] Letter dated 1 May 2017 from the GP Dr Atish Chudasama to Kishore Sieunarine, annexed to the appellant's affidavit sworn 20 May 2018.
On 10 August 2016 the appellant was reviewed by the orthopaedic surgeon, Dr Lim, who provided a report dated 15 August 2016 to the appellant's GP. Dr Lim indicated that the appellant had reported to him that since his last consultation with her in April 2014, she had suffered several falls due to her right ankle and required a walking aid for support. However, Dr Lim stated that he did not personally examine her. He was retiring, and had requested an up to date MRI of her right ankle and referral to another colleague for review.
There is no further or more recent report which deals specifically with the appellant's right ankle.
In the meantime, the appellant's left leg, which had been bitten by the dog, continued to swell up to her thigh. The appellant was referred to a vascular surgeon to assess the swelling. In the letter of referral dated 1 May 2017, the GP listed the appellant's current problems as:[24]
[24] Letter dated 1 May 2017 from Dr Atish Chudasama.
arthritis
breast CA (R)
chronic back pain deep venous thrombosis …
depression disorder; post-traumatic stress – since 2008
fibromyalgia
myofascial pain
neck, hip, jaw surgery
nerve damage to bladder – incontinence
pulmonary embolism 2014
scalenectomy for right arm impingement – 1996
temporomandibular joint dysfunction
The appellant underwent an ultrasound of the left leg in December 2016 and April 2017 and no left leg deep vein thrombosis was found.[25] On 14 April 2017 Mr Semmens wrote a further report (which I discuss in more detail later in these reasons) in which he stated:
In more recent times, her left leg has blown up in size to be significantly larger than her right leg. This condition is yet to be diagnosed. It is a significant source of emotional consternation for [the appellant].
[25] Letter dated 1 May 2017 from Dr Atish Chudasama.
The appellant's breast endocrine and general surgeon Mr Martin wrote a letter dated 26 July 2017 'To Whom it May Concern' advising that the appellant had been suffering from a number of health issues over the last 12 months which had precluded surgery. Mr Martin described some of these issues as 'potentially life threatening', although he did not specify what those life threatening injuries were. Mr Martin advised that any surgery had to be delayed while those issues were being sorted.[26]
[26] Letter 'To Whom it May Concern' from Mr Richard Martin dated 26 July 2017, annexed to the appellant's affidavit sworn 20 May 2018.
On 5 January 2018 the appellant wrote to this court by email requesting an adjournment of an upcoming hearing because of the fact that she had another hearing at the court in Midland. In that email the appellant advised that the Midland hearing concerned a VRO Variation and related to a 'violent assault/s' she suffered on 3 December 2017. Police were involved, she was still being stalked by the offender, she was still under medical care and she stated that 'This has been a most traumatic time for me'.
By that email and in support of her request for an adjournment, the appellant also provided a medical report dated 10 January 2018 from Dr Wing Cheong, Consultant psychiatrist. Dr Cheong stated that the appellant had been attending to see him since 29 October 2014 and that:
She suffers from PostTraumatic Stress Disorder, with complicated clinical presentation.
She reports that she was physically assaulted on 3 December 2017, resulting in laceration of her skull – the incident is now under police investigation.
With the assault her symptoms of PTSD have escalated, with increased distress, fluctuating concentration and attention and impaired stress tolerance.
There is a further report from Mr Martin dated 2 March 2018.[27] This reported that an ultrasound on 16 January 2018 had found new nodules in the appellant's breasts, which had not been seen on a previous scan on 4 July 2017. Mr Martin reported, however, that a repeat ultrasound showed both breasts appear to be more cystic and appear to be resolving.
[27] Mr Richard Martin's report of 2 March 2018 is annexed to the appellant's affidavit sworn 20 May 2018.
This report from Mr Martin also referred to a trauma suffered in early January, and the fact that the appellant does have a lot of pain after 'the trauma' having had problems with chronic pain in the past. He also mentioned that the appellant had been really struggling since the assault, has had further problems with PTSD and a restraining order against her attacker.
A similar observation about the assault on the appellant was made by Mr Martin in another 'To Whom it May Concern' letter, which is dated the same day as his report, 2 March 2018. In this letter Mr Martin wrote that the appellant was suffering from a number of health issues and had done for some time, but 'more recently she was assaulted and has taken out a restraining order'. Mr Martin expressed the view that this had 'naturally flared her PTSD' and along with other health issues she was feeling overwhelmed and struggling to cope.[28]
[28] Letter 'To Whom it May Concern' from Mr Richard Martin dated 2 March 2018, annexed to the appellant's affidavit sworn 20 May 2018.
Mr Martin's reference to the trauma suffered 'in early January' may well be wrong. The fact that he has referred to a recent assault, with a restraining order, leads me to believe that this is a reference to the assault on 3 December 2017 referred to by the appellant.
The physical aspects of the claim
The appellant has submitted, in essence, that given the ongoing disability she has suffered since the injury to her ankle, the component of $18,000 from the assessor for the right ankle injury is inadequate. She described how she had ongoing incapacitating ankle pain which she claimed, following Re Bangmoro [2019] WACIC 12, merits an award of $25,000.[29] She also submitted that she keeps rolling her ankle and falling and this may lead to further problems in her ankle, which cannot be alleviated because she is unable to undergo surgery to her ankle.
[29] Affidavit of the appellant sworn 20 May 2018. In Re Bangmoro, however, the applicant for criminal injuries compensation suffered a fractured ankle (not an ankle strain or strained ligaments) which, despite surgery including the insertion of internal screws had left her with mobility problems.
The appellant relied on the reports from Dr Lim dated 15 May 2014 and 24 November 2014. Dr Lim's first report of 15 May 2014 stated that the appellant had torn her lateral ligament complex which had resulted in right ankle stability and that she required surgery to reconstruct her lateral ligament complex and to stabilise her ankle. Without that surgery, post-traumatic arthritis of the ankle joint will develop which can cause permanent incapacitating ankle pain with compromise of function and significant permanent disability.
The appellant told me that due to the recurrence of her breast cancer, she has been unable to undergo surgery to her ankle.[30] The appellant also submitted, based the reports from Mr Martin, that she is unable to have any surgery other than 'life-saving surgery' after she suffered her pulmonary embolism in July 2014 because she is unable to have a general anaesthetic. In her words, under general anaesthetic the risk of pulmonary embolism is high and she has been told to have no surgery unless it is life-threatening.[31]
[30] Appeal hearing ts 37.
[31] ts 38 ‑ 39.
The pulmonary embolism explains why the appellant has not undergone surgery to her right ankle and counters any suggestion that by not undergoing that surgery, she has failed to mitigate her loss.
However, there are a number of pre-existing injuries and medical conditions which have contributed to her ankle problems. As Dr Lim acknowledged in his report of 15 May 2014, the appellant has 'multiple medical problems which do complicate her present right ankle lateral instability and compromise of function'.[32] The report from the chief podiatrist at RPH, Ms Westphal, dated 9 July 2012 also indicated that there are other factors contributing to the appellant's foot and ankle problems, including her previous spinal and hip injuries.
[32] Report dated 15 May 2014 from Dr Soo Tee Lim, orthopaedic surgeon, par 10.
In her affidavit of 20 May 2018 the appellant describes how she is suffering from 'incapacitating ankle pain' and how the medications she is on affects her powers of concentration.[33] However the medical evidence does not support the applicant's claim that these are consequences of the incident of 4 February 2012. Indeed the evidence shows that the appellant has pre-existing chronic pain issues and has been on high levels of medication for a number of years as a result of the injuries she suffered in the 1994 motor vehicle accident. There is no medical evidence that her medications changed or were added to as a result of the ankle injury.
[33] Affidavit of the appellant sworn 20 May 2018 par 4.5.
The mental aspects of the claim ('nervous shock')
The appellant submitted that some allowance should be made for psychological injury arising from the incident.
Here the appellant relied heavily on Mr Semmens' reports, particularly his reports of 11 June 2015, and two reports written after the assessor made the award, one report dated 14 April 2017 (annexed to the appellant's affidavit sworn 20 May 2018) and the more recent report dated 17 January 2019.
Mr Semmens' report of 14 April 2017 was written as a 'follow-up on the ongoing effect that the incident on 4 February 2012 is continuing to have' on the appellant. He noted that the appellant's swollen left leg was a significant source of emotional consternation for her. Mr Semmens then referred to the clinical opinion of Dr Lim that the appellant requires ankle reconstructive surgery, and noted that because of the pulmonary embolism the appellant suffered on 10 July 2014 she had been on blood thinning medication and that 'she cannot have the ankle surgery while being on this medication'. Mr Semmens also noted the appellant's diagnosis of breast cancer with surgical intervention in June 2015. He then stated:
The assault in February 2012 resulting in her ankle injury and significant ensuing disability has had a direct emotional effect on [the appellant]. Her life has been adversely affected in a direct way in many respects including social, emotional, recreational and health compromises.
Having made that statement, however, Mr Semmens went on to state that the appellant had been subjected to 'numerous traumatic life experiences, some of which he had referred to in his report of 11 June 2015. In addition to those referred to in that report were assaults on 18 August 2011 and 18 October 2013. (I note that this court has no details of this assault of 18 October 2013).
In relation to the appellant's emotional state, Mr Semmens went on to report that the appellant had completed a self-report measure, the DASS (Depression Anxiety and Stress Scale) and a PTSD checklist (PCL5), confining her responses to the incident of 4 February 2012. Based on her answers, Mr Semmens expressed the view that the emotional, behavioural and physiological experiences that the appellant had been experiencing were consistent with the diagnostic criteria for PTSD.
In his report of 17 January 2019 Mr Semmens addressed the assessor's observations that he, Mr Semmens, had not mentioned in his previous reports the psychological injury sustained by the appellant in the incident on 4 February 2012. He stated in this latest report, in relation to the assessor's letter of 28 October 2016, that:
In that letter Mr Guthrie, Assessor of Criminal Injury Compensation, states that I had not mentioned in previous reports the psychological injury sustained by [the appellant] in the incident on 4 February 2012.
I did mention in my report of 1 July 2012 that : "[The appellant] has found herself the victim of other traumatising experiences." Included in those "other traumatising experiences" was the one – and more importantly its ongoing ramifications, which were the primary source of the traumatic stress for [the appellant] – on 4 February 2012.
I completed an additional report on the 4 February 2012 incident – and the traumatising effects for [the appellant] of the ramifications of that incident on 14 April 2017.
I reject the claim made by Mr Guthrie that the traumatic effects of the ramifications of the 4 February incident can be subsumed by the, admittedly, significant traumatic effect of the abuse of trust and sexual abuse in the incident of 19 August 2011. This incident requires revisiting by the Assessor – the absence of which would be a travesty of justice. The opinion about the subsuming of trauma is wrong, naïve and irresponsible demonstrating a paucity of understanding of the complex nature of the traumatic response in human beings.
I am unable to place much, if any, weight on the opinions expressed in the reports of Mr Semmens, particularly those of 14 April 2017 and 19 January 2017, for a number of reasons.
First, supporting medical evidence from an appropriately qualified medical practitioner is generally required to prove that an injury exists and was caused by the offence. Generally a psychiatrist, not a clinical psychologist, should provide the diagnosis of a mental disorder, particularly of PTSD. While the opinion of a clinical psychologist is still admissible, the question is one of weight: Re Warrek [30] ‑ [31]; Moncrieff v Bishop [2007] WADC 198 [32] ‑ [36].
In this case, the appellant has been seeing Mr Semmens for psychotherapy. I have no evidence that Mr Semmens has the requisite qualifications or experience to diagnose a mental disorder and so, in the absence of a supporting opinion from a psychiatrist or other medical practitioner or someone with the qualifications and experience of Dr Dellar, I can place little weight on Mr Semmens' diagnosis and opinions as to the incident of 4 February 2012 having resulted in PTSD or otherwise being the primary source of the appellant's stress or emotional and psychological state.
Secondly, the other medical evidence shows that the appellant has had long standing PTSD which has affected her for many years.
Thirdly, the other medical evidence addressing the appellant's psychiatric and psychological history casts considerable doubt on whether the appellant has, in fact, suffered psychological trauma as a result of the incident of 4 February 2012. This incident does not feature in any of the reports from other qualified experts including the consultant psychiatrist Dr Stephen Proud, and Dr Dellar, both of whom wrote their reports after the incident of 4 February 2012.
Fourthly, it is important for any expert be independent, objective and unbiased and never assume the role of an advocate: National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The 'Ikarian Reefer') [1993] 2 Lloyd's Rep 68 at 81–82; [1993] FSR 563, 565: District Court of Western Australia 'Code of Conduct – Expert Witnesses', which forms part of the District Court's Consolidated Practice Direction – Civil Jurisdiction.
I find, based in particular on the final paragraph of the report of 17 January 2019, that Mr Semmens:
(a)has not been independent, objective and unbiased; and
(b)has assumed the role of an advocate.
Fifthly, an expert must state the facts or assumptions upon which the opinion is based, and consider all material facts, without excluding any which could detract from his concluded opinion.
In his report of 14 April 2017 Mr Semmens, after asking the appellant to self-report based on the incident of 4 February 2012 alone, expressed the opinion that the appellant's response to the alleged offence was consistent with the diagnostic criteria for PTSD. He also expressed the view that the incident of 4 February 2012 had adversely affected the appellant's life in many respects. However, Mr Semmens did not address the fact that the appellant had already been diagnosed with PTSD as a result of her childhood sexual abuse and the alleged sexual assault by the podiatrist, and that, before the incident of 4 February 2012, the social, emotional and recreational aspects of the appellant's life and her health had already been compromised by multiple pre-existing incidents and medical conditions.
In his report of 17 January 2019 Mr Semmens failed to state the facts or assumptions upon which his opinion was based, and failed to consider all material facts, without excluding any which could detract from his concluded opinions.
Finally, although an expert may express opinions, an expert is still a witness who gives evidence, however skilled he or she may be. The expert cannot usurp the functions of the judge or jury and the expert's opinion is not a substitute for the judgment of the court: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 [59]. As Owen J stated in The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239 [1048]:
It seems to me that litigants (and their advisers) too often lose sight of the fact that expert evidence is just that – it is evidence. … My role is to scrutinize the evidence thoroughly and ascribe to it such weight as I think it deserves. But in the end it is for me, not the experts, to decide the critical issues in the case.
As acknowledged in both Mr Semmens' report of 14 April 2017 and his earlier report of 11 June 2015, there are a number of other contributing causes to the appellant's emotional and psychological state:
(a)The first set of contributing causes are the other previous traumatic incidents, set out in Mr Semmens' reports.
(b)As noted in his report of 14 April 2017, the second cause is the appellant's swollen left leg.
(c)The third and significant contributing cause is the pulmonary embolism which the appellant suffered in July 2014.
(d)The fourth contributing cause is the appellant's diagnosis of breast cancer in 2015.
(e)Finally there are two further assaults, one on 18 October 2013 (as mentioned in Mr Semmens' report of 14 April 2017) and another more recent assault which occurred on 3 December 2017 which has added to the appellant's trauma.
Having regard to all of the medical evidence and applying the law as I have set out in [65] and [66], I have concluded that:
(a)Before the incident of 4 February 2012, the appellant had long standing PTSD due to a number of past traumas, some of them significant (in particular the previous sexual abuse and the motor vehicle accident). The appellant's mental health had already been significantly affected and the symptoms of social, emotional, recreational and health compromises, as described in Mr Semmens' report of 14 April 2017, had already occurred and continued for many years.
(b)The most that can be said, based on Mr Semmens' report of 11 June 2015, is that the incident of 4 February 2012 led to a setback in the psychotherapy treatment which the appellant had been undergoing since 2008 and, perhaps, a slight exacerbation of her previously diagnosed PTSD symptoms; and
(c)Since the incident of 4 February 2012, there have been numerous other medical conditions and incidents which I am satisfied are further contributing causes to the appellant's mental state which I have set out in [132] above.
While the appellant believes that the incident of 4 February 2012 has caused psychological injury to her, having regard to all of the medical evidence, I am not satisfied that the incident of 4 February 2012 either resulted in PTSD or contributed in any material way to her psychiatric or psychological issues.
Assessment
I have concluded that this is a situation where non‑compensable conditions, both pre‑existing and subsequent, have materially contributed to the appellant's physical and psychological state. Accordingly the appellant is not entitled to compensation for the full extent of the injury in each case.
In my assessment, the existing award of $18,000 by the assessor for the appellant's injuries was generous. Even on the current medical evidence, that award is more than adequate for both the appellant's physical and psychological injuries and no increase in the award is warranted, apart from the allowance for the costs of medical reports, which I address below.
The Amicus has, however, raised an issue concerning the costs of future treatment.
First there is the cost of ankle surgery which was allowed at $8,000 (based on Dr Lim's advice that the cost of reconstructive surgery was $7,945). The Amicus has submitted that I should review that allowance now there is some suggestion that surgery is no longer an option for the appellant, due to complications arising from her pulmonary embolism and ongoing treatment for breast cancer.
I do not propose to disturb that allowance. I cannot discount the fact that in the future the appellant may elect to undertake that surgery, notwithstanding the risks. With the future surgery costs subject to s 48 of the Act, this means that the appellant would not receive payment unless these expenses are actually incurred.
Secondly, in his latest reports Mr Semmens has recommended 20 psychotherapeutic sessions at the rate of $238 per session ($4,760 in all). Because of the conclusions I have reached in relation to the appellant's psychological issues and that the incident of 4 February 2012 has not materially contributed to these, I make no allowance for these costs.
The claim for report and medical costs
The tax invoices for providing medical reports which I have found both on the assessor's file and in the other information provided to me are as follows:
Date of Report
From
Amount
15/05/2014
Dr Soo Tee Lim
$900.00
11/06/2015
Mr Semmens
$517.00
14/04/2017
Mr Semmens
$761.20
$2,178.20
I will allow the cost of these reports.
Conclusion
For these reasons, I will make no increase in the award of compensation to the appellant. I will vary the final amount of the award only to allow costs of the medical reports in the sum of $2,178.20.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DC
Associate to Judge Davis31 MAY 2019
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