Re Bianchi
[2012] WADC 147
•18 OCTOBER 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE BIANCHI [2012] WADC 147
CORAM: SCHOOMBEE DCJ
HEARD: 20 AUGUST 2012
DELIVERED : 18 OCTOBER 2012
FILE NO/S: APP 31 of 2012
MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: DAVIDE BIANCHI
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram :L V DEMPSEY
File No :CI 1645 of 2011
Catchwords:
Criminal injuries compensation - Appeal from Assessor's quantification of compensation for injury - Late notice of appeal - Further evidence allowed on appeal - Further claim for future medical expenses
Legislation:
Criminal Injuries Compensation Act 2003
Result:
Appeal allowed
Representation:
Counsel:
Appellant: In person
Amicus Curiae : Mr J D Berson appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant: Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
B v W (1989) 6 SR (WA) 79
Hogben v Darcy [2009] WADC 63
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Plenty v Argus [1975] WAR 155
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
SCHOOMBEE DCJ: This is an appeal under the Criminal Injuries Compensation Act 2003 (the Act) against the decision by the Assessor of Criminal Injuries Compensation pursuant to which she awarded Mr Bianchi a total sum of $7,700 in compensation. Mr Bianchi alleges that the award was inadequate because the assessor did not take into account a medical report submitted by Mr Bianchi shortly after the assessor had made her award.
The assessor allowed the following compensation:
Injuries$7,500
Past loss of earnings $1,000
$8,500
Less:
Restitution received $ 800
Total amount of award$7,700
Background facts
Mr Bianchi was punched to the right side of his face while walking home from a nightclub together with a friend. Mr Bianchi said in his statement to the police that he and his friend were waiting on the edge of the road to cross over and his next recollection was waking up in the ambulance. Mr Bianchi's friend, Mr Jeremy MacDonald, told the police that he was walking slightly in front of Mr Bianchi and suddenly noticed that somebody had fallen to the ground behind him. He said he saw three girls and a male person standing over Mr Bianchi. The male person tried to pick a fight with Mr MacDonald. Mr MacDonald subsequently identified this male person to the police.
The assault took place on 25 June 2009 when Mr Bianchi was aged 41.
The respondent to the application for criminal injuries compensation, Mr Dyllon Hansen, was convicted in the Magistrates Court of common assault and received a fine of $800. The fine was paid to Mr Bianchi and constitutes the amount of restitution that was deducted from the total amount of compensation awarded by the assessor.
The assessor made an order that only $200 of the compensation award could be recovered by the State from Mr Hansen.
Injuries suffered
Upon admission to hospital Mr Bianchi was diagnosed with a slightly comminuted fracture of the right inferior orbital margin and floor, a slightly comminuted fracture of the right infero‑lateral antral wall and a largely undisplaced fracture of the right zygomatic arch. Mr Bianchi was given pain killers and told to attend for a follow-up appointment a few days later.
On 30 June 2009 Mr Bianchi was advised that he needed surgery (the insertion of titanium screws in the zygomatic arch) in order to ensure that his face would not look asymmetrical after the fractures healed. Mr Bianchi was told that there was a window of seven to 21 days during which this surgery had to occur. Mr Bianchi declined to proceed with the surgery. Mr Bianchi told the assessor in his statement that he was concerned about an operation and that the use of titanium did not appeal to him. He decided to make his own inquiries regarding the need for surgery. Mr Bianchi conceded in his statement to the assessor that the hospital doctor had advised him that the consequences of not having an operation would mean a permanent displacement of the right zygomatic arch.
Mr Bianchi reported to the assessor that he had suffered from headaches after the assault and numbing of the right side of his face. The right zygomatic arch was significantly displaced and clearly noticeable.
Additional evidence on appeal
On the hearing of the appeal Mr Bianchi made an oral application for two medical reports to be submitted. Pursuant to s 56(1) of the Act an appeal against an assessor's decision is to be decided afresh by the court of appeal and the court may receive further evidence and information. The application to submit the additional medical reports was granted.
The first report is from Dr Grainger, neurologist, dated 24 April 2012. Dr Grainger found that on examination of the right side of the face the lower lid was slightly lower than the left side, but there was no problem with tears. The inferior orbital margin on the right was slightly reduced resulting in some flattening of the upper cheek.
Dr Grainger identified residual evidence of significant trauma to the right V1 and V2 trigeminal nerve division which resulted in numbness of the right lip and cheek. Dr Grainger noted double vision on extreme gaze to the left which had resulted from damage to the right fourth ocular nerve. Dr Grainger came to the conclusion that the double vision did not appear to be a functional problem as it only occurred near the extreme of gaze.
Mr Bianchi also filed a report by Dr Cooper, plastic surgeon, dated 15 August 2012. Dr Cooper stated that the soft tissue depression on the right cheek was evident and that there was some numbness in the distribution of V1 and V2. Dr Cooper identified double vision on left gaze and a widened right palpable aperture. Dr Cooper came to the conclusion that the numbness and double vision were unlikely to settle, given the lapse of time from the date of the assault. Dr Cooper expressed the opinion that the soft tissue depression could be corrected with injection of soft tissue fillers, but these were not of a permanent nature. Dr Cooper advised that no surgical intervention was possible at this stage.
At the hearing of the appeal Mr Bianchi gave additional evidence explaining that the slight drop in the right cheek was particularly noticeable early in the morning and again in the evenings. He said the slight dropping of the cheek affected the shape of his eye and made his wrinkles under his eye more visible. Mr Bianchi explained that the numbness of his lips particularly affected his enjoyment of kissing and eating certain foods, like apples. It also led to him inadvertently biting his lips.
Mr Bianchi said that he had been off work for approximately four to six weeks after the assault, as he had suffered from headaches for about a month.
Appeal out of time
Pursuant to s 55(3) of the Act an appeal must be commenced within 21 days after the date of the assessor's decision. The assessor's award was handed down on 17 April 2012. The notice of appeal should therefore have been filed at the latest on 8 May 2012. Mr Bianchi only submitted it to the District Court on 25 May 2012, which means that it was 17 days out of time.
Mr Bianchi has not filed an affidavit explaining the delay, but it is apparent from the email communications between Mr Bianchi and the assessor that Mr Bianchi did not realise that the assessor was about to hand down an award and was intending to submit Dr Grainger's report to the assessor for her consideration. Mr Bianchi alleges in the email correspondence that his sister notified the Department of the Attorney General on 15 March 2011 that a medical report was about to be filed, but the assessor replied that there was no record of such a telephone conversation.
Subsequent to the award having been delivered Mr Bianchi tried to persuade the assessor to re‑open her consideration of the matter and take into account Dr Grainger's report, but the assessor advised that it was not possible for her to do so and that Mr Bianchi had to take the matter on appeal to the District Court. The award made on 17 April 2012 notified Mr Bianchi that he had to lodge an appeal within 21 days of the date of the award. However, in the subsequent correspondence dealing with the re-opening of the decision-making process there was no further reference to the requirement that an appeal had to be lodged within 21 days.
I accept that Mr Bianchi indicated immediately after receipt of the award that he was not satisfied with it and wanted the report from Dr Grainger taken into account. The delay of 17 days is not of great consequence and there does not appear to be any prejudice in the delay to Mr Hansen, who did not partake in the appeal. The prospects of Mr Bianchi succeeding in this appeal in light of the additional medical evidence are good.
The purpose of the Act is to fairly compensate parties who have suffered injury or loss as the result of a proven offence and its purpose is therefore beneficial. In light of all these factors it is just to allow the appeal to be commenced after the 21 days and I do so.
The law applicable to the assessment of criminal injuries compensation
Pursuant to s 12 of the Act a victim who suffers injury as a consequence of the commission of a proven offence may apply for compensation for the injury and any loss suffered. 'Injury' is defined in s 3 of the Act as 'bodily harm, mental and nervous shock, or pregnancy'.
In determining the appropriate amount of compensation the correct approach is to apply the ordinary tortious principles for assessment of damages subject to the jurisdictional limit imposed by the Act: M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992). In assessing the amount of compensation the court should have regard solely to the injury suffered by the applicant in consequence of the commission of the offence. The amount of compensation is not to be fixed as punishment of the offender or as an expression of sympathy for the victim: B v W (1989) 6 SR (WA) 79, 89.
As the appeal is a re‑hearing, the court of appeal is not bound by the determination of the assessor. However, because the assessor is a specialist tribunal, it is appropriate to take into account the assessor's reasons for making the particular award: Hogben v Darcy [2009] WADC 63 [13]
Re‑assessment of compensation for injury
In light of the additional evidence before this court the compensation to be awarded to Mr Bianchi for his injuries should be re‑assessed.
The reports by Dr Grainger and Dr Cooper indicate that there is a medical explanation for the soft tissue depression on the right cheek, the permanent numbness experienced by Mr Bianchi on his lips, right cheek and right forehead and the double vision occurring on extreme left gaze. The medical reports indicate that the soft tissue depression of the right upper cheek, the numbness and the double vision will be permanent.
The additional medical evidence shows that Mr Bianchi will have to cope with a permanent loss of sensation on his right face and a slight disfigurement of his face by reason of the soft tissue depression of the right upper cheek. I must say that, having observed Mr Bianchi in the witness box, I could see no difference between the left and right side of his face from a distance of approximately two metres. Dr Grainger also described the soft tissue depression of the cheek as a minimally cosmetic change. However, I accept that Mr Bianchi is very conscious of the slight flattening of his cheek, that it may be worse at certain times of the day and more evident from a closer distance.
Future medical expenses
The notice of appeal did not specifically ask for an amount to be awarded for future medical expenses. However, Dr Cooper explained in his report that the soft tissue depression could be corrected with injections of soft tissue fillers, although they were not of a permanent nature. During the appeal hearing Mr Bianchi indicated that he would like to receive compensation for future medical expenses in that regard. I allowed Mr Bianchi to obtain additional reports from Dr Grainger and Dr Cooper to advise whether the soft tissue depression would have occurred even if Mr Bianchi had undergone the operation recommended by the hospital doctors, how many injections per year were required, how effective they were likely to be in solving the soft tissue depression and what the costs of such therapy would be.
Dr Grainger provided an additional report in which he said that the ongoing numbness and double vision would not have been prevented by the recommended surgery. He was not able to say the same with regard to the soft tissue depression. He expressed the view that a surgical opinion would have to be obtained to advise whether the soft tissue depression would have occurred despite the operation.
Dr Cooper was of the view in his additional report, dated 23 August 2012, that the soft tissue depression may have occurred even if Mr Bianchi had undergone the recommended surgery. He advised that each soft tissue injection would cost approximately $1300, would be quite effective but would be required twice a year on a permanent basis.
The consideration of Mr Bianchi's entitlement to future medical expenses has squarely raised the issue whether he acted unreasonably when he declined to have the surgery to fix the zygomatic arch in place and whether the soft tissue depression on his right cheek would not have occurred if Mr Bianchi had opted for the surgery.
Criminal injuries compensation is assessed on the same principles as a claim for damages for personal injury. The law applicable to personal injury claims provides that where an injured person fails to mitigate his damage by undergoing medical treatment, it is for the defendant to show that a reasonable person in the position of the plaintiff would have attempted to mitigate his damages and what the chances of success would have been in this regard: Plenty v Argus [1975] WAR 155, 159 – 160. If it is shown that the plaintiff unreasonably failed to undergo medical treatment, the damages have to be assessed on the basis of the current actual condition of the plaintiff, discounted by the chance that it would have been improved by the medical treatment: Plenty v Argus (159).
Section 41 of the Act is also relevant in this regard. This provides that in deciding whether or not to make a compensation award, or the amount of the award, a court must have regard to any behaviour, condition, attitude or disposition of the victim that contributed, directly or indirectly, to the victim's injury, and may, if the court thinks it just to do so, refuse to make a compensation award or reduce the amount of it.
Mr Bianchi told the assessor in his statement that he was advised by the doctor at the hospital that the consequences of not being operated on would mean that there would be a permanent displacement of the right arch. The hospital in‑patient notes contain an entry recording that the patient did not want surgery despite being advised of the chance of his face looking asymmetrical.
Mr Bianchi's behaviour in refusing to have the surgery contributed indirectly to the ongoing soft tissue depression on his cheek. He was warned by the hospital doctor that there was a risk of him looking asymmetrical if he did not have the recommended surgery.
Dr Cooper, who is a plastic surgeon, said in his additional report that the soft tissue depression may have occurred despite the recommended surgery. However, he did not explain why that may have been the case and how that sits with the advice of the hospital doctor that Mr Bianchi would run the risk of looking asymmetrical if he did not have the surgery. A court is not bound to accept the opinion of an expert if the reasoning process for arriving at the opinion is not properly set out: Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370, 390.
On the information before me there is a very good chance that no soft tissue depression would have occurred if the zygomatic arch had been placed back into position. Mr Bianchi stated the reasons for not wishing to proceed with the operation as being a concern about being operated on and that the use of titanium did not appeal to him. These are not reasonable explanations for his lack of mitigating his loss. During his evidence at the hearing of the appeal Mr Bianchi said that he was concerned about the risk of an infection occurring during the operation and that the doctors who advised him at the hospital were very junior. However, he also told the doctors that he would obtain his own advice.
There is no evidence before me that there were any unusual risks associated with the operation and Mr Bianchi had the opportunity of obtaining advice from his own medical practitioner and having the operation performed by a specialist of his choice. Mr Bianchi made his own decision when he decided not to proceed with the operation and will now have to live with the consequences of a slight soft tissue depression on his cheek. Fortunately, the cosmetic change is indeed minimal.
Accordingly, it is not appropriate to allow any future medical expenses in respect of injections to alleviate the soft tissue depression.
Contributing behaviour of the victim
Counsel for the chief executive officer also relied on s 41 of the Act for the proposition that Mr Bianchi's behaviour on the night contributed to his injury. Counsel for the chief executive officer referred to the statement of police constable Colman who said when he approached Mr Hansen and told him that a complaint had been made against him, Mr Hansen responded that two males had walked past him and his friends and had started 'mouthing off' to the girls in his group. He said an argument then took place. According to a summary prepared by the police of the recorded interview with Mr Hansen, Mr Hansen told the police that there was an argument and verbal abuse between the two males and the females in Mr Hansen's company. Mr Hansen denied at that time that he had punched anyone. Mr Hansen was on a suspended sentence at the time of the assault and had prior convictions for assault.
As indicated earlier, Mr Bianchi gave evidence that he did nothing to provoke the assault on him. On the basis of the evidence before me, it is not appropriate to make any reduction from the award on the basis of the factors listed in s 41 of the Act.
Compensation award
Mr Bianchi did not challenge the award of $1,000 made by the assessor for loss of past earnings. Mr Bianchi submitted that he had to make additional payments to an employee at his nursery business as he was in pain and not able to work there as much as usual during the three weeks after the assault. Mr Bianchi presented to the assessor an extract from his business accounts showing that one of his employees had been paid a sum of $951.50.
Mr Bianchi submitted that the assessor's award of $7500 in respect of his injuries was inadequate. He relied on the reports by Dr Grainger and Dr Cooper, which had not been placed before the assessor. The reports explain in better detail that Mr Bianchi will suffer permanently from numbness of the lips and right cheek and that this can be medically explained on the basis that damage occurred to the right V1 and V2 trigeminal nerve division. Dr Grainger also confirmed that Mr Bianchi will permanently suffer double vision on extreme gaze to the left and that this resulted from damage to the right forth ocular nerve.
Dr Grainger explained that the numbness of the face and the problem with double vision would have occurred even if Mr Bianchi had the recommended surgery.
As I have said earlier, I am not satisfied that the soft tissue depression would have occurred if Mr Bianchi had followed the advice by the hospital doctor and had undergone immediate surgery. Mr Bianchi is therefore not entitled to any compensation in respect of the soft tissue depression.
However, I accept that the numbness of the lips and cheeks causes Mr Bianchi considerable inconvenience because he has difficulty eating some foods, inadvertently bites his lips and has lost the enjoyment of kissing. He also has to suffer the irritation of double vision if he looks sharp to the left. Mr Bianchi should also be compensated for the headaches that he had to endure for a while after the assault.
Taking all these matters into account I would award Mr Bianchi the amount of $10,000 in respect of the injury suffered.
Mr Bianchi is also entitled to the costs of the medical reports that he obtained. He provided invoices in relation to one report by Dr Grainger in the amount of $220 and one report by Dr Cooper in the amount of $216. Accordingly I allow the sum of $436 in respect of medical reports.
I make the following compensation award:
For the injuries $10,000
For loss of past earnings $ 1,000
Future medical expenses $ nil
Costs of medical reports $ 436
Sub-total$11,436
Minus restitution received $ 800
Total$10,636
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