Re Biar
[2015] WADC 111
•23 SEPTEMBER 2015
RE BIAR [2015] WADC 111
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 111 | |
| Case No: | APP:6/2015 | 9 SEPTEMBER 2015 | |
| Coram: | FENBURY DCJ | 23/09/15 | |
| PERTH | |||
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed - award increased | ||
| PDF Version |
| Parties: | JOHN LONY BIAR |
Catchwords: | Criminal injuries compensation Appeal Quantum of award Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
AND
IN THE MATTER of an Appeal by
- Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : R GUTHRIE
File No : CI 000422 of 2014
Catchwords:
Criminal injuries compensation - Appeal - Quantum of award - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed - award increased
Representation:
Counsel:
Appellant : In person
Amicus Curiae : Ms C Chapman 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):
1 FENBURY DCJ: This is an appeal against an assessment of compensation made by the assessor of criminal injuries on 7 January 2015. The compensation was awarded pursuant to an application made by the appellant under s 16 of the Act in respect of injuries and losses suffered by him as a result of an assault. Two people were charged in relation to that assault however the charges were dismissed for want of prosecution.
2 As is again set out in the helpful submissions filed on behalf of the chief executive officer as amicus curiae, I note that an appeal under the Criminal Injuries Compensation Act 2003 is a hearing de novo and that the court may confirm, vary or reverse the assessor's decision in whole or in part.
3 I particularly note that notwithstanding the application is to be determined 'without being fettered by the assessor's decision', it is nonetheless appropriate to have regard to the assessment made by the assessor as a specialist tribunal in the field of criminal injuries compensation.
4 Finally I note that the court has a general discretion to receive and admit further evidence and such evidence should be admitted unless there is some reason why is would be unjust to do so.
5 I also note that the maximum compensation available is $75,000 and that the standard of proof is the civil standard but that in order for the appellant to discharge that burden he must show that there are more than conflicting inferences of equal degrees of probability such that the choice between them is a mere matter of conjecture.
6 As to general principles for the assessment I note that the maximum is merely a jurisdictional limit and is not reserved for the worst cases. I also note that the correct approach in fixing the appropriate amount is to apply the ordinary tortious principles for assessment of damages subject to the limitations imposed by the definitions in the Act.
7 In assessing the amount of compensation which should be awarded I bear in mind that the court must have regard solely to the injury suffered by Mr Biar in consequence of the commission of the offences and I am to put aside any expression or feeling of sympathy that I might have for him.
8 On the issue of causation I note that the injury and loss claimed must have occurred as a consequence of an offence but that it is not necessary for the offence to be the sole cause of the injury. If it be the case that non-compensable events had a propensity to cause the injury or loss alleged and did contribute to them the award should be reduced to take account of that chance. But if it is not possible to disentangle the consequences of non-compensable events from the consequences of compensable events the appellant is entitled to compensation for the full injury and loss suffered if he establishes that the compensable offences did contribute materially to his injury or loss.
9 Finally I note that compensation is payable where a person has suffered 'injury' in consequence of the commission of an alleged offence and that bodily harm and mental and nervous shock are included in the definition of injury. Of course it is important to bear in mind that to make an award of compensation there must be sufficient evidence before the court.
10 The description of what occurred that resulted in the appellant's claim is to be found in the police incident report which describes as follows:
In this incident the victim and friend (witness) have driven to the car park at the front of the IGA store Balga to visit a friend living across the road. Both have started to walk across the car park to the friend's house. Three Aboriginal Poi's [Persons of interest] (one male and two females), have approached the victim and his friend and began to abuse them. During the abuse one threw a can of 'Bullets Bourbon' at the victim hitting him in the face.
The victim and his friend have run to get away. The victim has run to his friend's unit. The male Poi has chased him to this location where he has then smashed a bottle of 'Jack Daniels' over the victim's left side of his face. The victim has grabbed the male Poi in order to stop further attack. Both have fallen to the ground and begun to wrestle. Either [one Poi or another] has grabbed the victim and began to hit him with a rock in the back area. The victim has then had his shirt pulled over his head. The Poi's have run off towards the Princess Tavern Bottle Shop.
11 According to the appellant, Mr Biar, he was the victim of an unprovoked racially motivated attack by three indigenous offenders during which he was punched, kicked, manhandled and struck over the head with a bottle.
12 On examination at the emergency department of Royal Perth Hospital on the evening of 9 December 2012 he was noted to have suffered a 3 cm laceration over the left brow and a small laceration on the infraorbital area. He had pain and mild swelling in the right wrist and over the scaphoid area. He was able to flex his wrist passively.
13 The left eyebrow laceration was stitched and he was discharged. There was no complaint recorded of other injury.
14 However in the statement taken from Mr Biar by police that night, 9 December, he complained of 'an abrasion to my right elbow from where I fell over'. He appears to have been referring to when he and the male attacker he had grabbed both fell to the floor.
15 In his statement Mr Biar also alleged one of the females 'started to hit with a rock in my back'.
16 Mr Biar made a claim for criminal injuries compensation and on 29 January 2014 he compiled a statement of the events of 9 December 2012 signed and dated 28 January 2014 and in that statement Mr Biar's account contained a lot more detail. As to the critical moment he described it as follows:
… I heard a male voice saying, 'You are fucking too ugly.' I turned and try to have a look, and suddenly a full can of alcohol was thrown on my face. Just seconds after being hit it was hurting and swelling so I put my hand on there to try and alleviate the pain, and suddenly again I had an even bigger hits on my head [sic] and face with a bottle of wine and I fell on the ground.
On the ground the male and one female set on me and gave some more hits before they started to run from the scene.
…I was bloodied and could [not] even see well, and I was taken to the police station as the police thought there were symptoms of concussion. After a few hours at the police station I was only advice [sic] to rush to Royal Perth Hospital, but with advice that they would be found and charged. I underwent some treatment there, after which I was advice [sic] to seek further treatment after leaving the hospital.
At the hospital a lot of injuries were not obvious and it was after three days of the attack that everything including dizziness started to appear, and I had to stop work as I could not be efficient enough.
17 Under the heading 'Statement of injury and impact, and medical' being part of the same statement Mr Biar said:
Due to the assault some damage was inflicted to the head by an object that was used in the attack. More injuries were also added when the attackers went on and punch [sic] me while I was on the ground. Hit to the head with objects, punches that followed while on the ground, and fall to the ground resulted in open or closed head injuries.
Some of these injuries were open and were dealt with on the same day by the doctor at Royal Perth Hospital. However, the damage to the ligament in joints and pain in the head, which resulted in dizziness were not obvious, and later appeared as close head injuries.
These close injuries appeared a few days after the incident and caused dizziness, which affects employment and quality of life.
…
Medical
My medical conditions, especially in joints, improved as a result of the intensive treatment I underwent in Kenya. However, there was/is still dizziness. This happens mostly when the temperatures are high, and this has been affecting me since I came back to Australia.
18 Put shortly, Mr Biar maintains that the injuries he suffered in the assault were more serious and extensive than those about which he complained when he attended at hospital on the night in question.
19 Mr Biar gave evidence from the witness box and was cross-examined by amicus curiae. He was a self-represented, pleasant, intelligent and articulate young African man who gave his evidence well. He was a believable witness and I have no doubt he told the truth as best he could. His account of having aches and pains in other parts of his body that developed a few days after the incident is not implausible and I think is a fairly common tale. As to the gravity of those symptoms however, I have some doubts. I do not feel Mr Biar was deliberately misleading but he was seeking compensation and there is, I think, a natural tendency to maximise matters when a person is set on that course. Embellishment is perhaps a little harsh but mild exaggeration might be a fairer description.
20 Unsurprisingly, Mr Biar was requested to provide some medical evidence in support of his claims and prior to the assessor making his award on 7 January 2015, efforts to obtain this material were not very successful.
21 By letter dated 15 May 2014 the assessor wrote to Mr Biar saying:
In support of your application you provided a copy of a report from Dr Soloman Mwangi dated 27 December 2013. That report indicates that you had treatment with a total cost of $3,000 USD.
I have contacted Dr Mwangi by email requesting that he provides copies of his patient notes and a full itemised account with details of the scale of fees for his services. Dr Mwangi has responded advising that you have already been provided with these details and that I should obtain this information from you.
The purpose of obtaining this information is to assess whether or not it is reasonable to pay these accounts. The information that I have to hand is not sufficiently detailed for me to form a view as to whether or not the costs incurred are reasonable. Please advise whether you have any further information in relation to this account.
22 On 16 July 2014 the assessor wrote to Mr Biar again about the matter because he had not received a response. The assessor then went on some months later to make his assessment.
23 Following the commencement of his appeal against the award Mr Biar wrote to the court by a letter received 25 February 2015 where he states:
Medical expenses: while I was overseas, I became seriously sick due to my injuries. I wrote to the police officer who was dealing with the case at the time. Kris advised me to keep the receipts of my expenses I did. The total amount was $3000.
24 Although not provided to the assessor, Mr Biar has, by affidavit dated 26 June 2015, produced a number of relevant medical and other reports. It needs to be appreciated that in early 2013 Mr Biar left Australia and travelled to Nairobi in Kenya for personal reasons. Whilst there, according to him, he received medical treatment.
25 I shall briefly review the medical evidence provided by Mr Biar, in chronological order. There is no material relating to the period between when the assault was suffered by Mr Biar on 9 December, and his departure for Kenya.
26 The first report from the Zimmerman Medical Centre in Nairobi was dated 27 February 2013 and it stated:
Zimmerman Medical Centre wishes to inform you that on 21/02/2013, Mr John Lony Biar was attended to at our facility. He presented with a history of headache, shoulder, and knee pain. He had allegedly been assaulted by a group of youths in Australia 4 weeks before. He had reportedly been attended to at Royal Perth Hospital, Western Australia, the night he was assaulted.
According to him, he went in with an itchy knee [sic], sore wrist, shoulder, and a bleeding face with several lacerations as he said he was hit several times with bottles of wine by the attackers.
He said that the night he was at sutured on his face, had a shoulder and wrist scan, but as he went home his knee swelled.
John explained that he went to a local clinic as he was advised to do so, to have his sutures removed. Having been to the clinic nearby his residential area, the sutures were removed and he was advised to make another appointment to have his knee examined after he had reported it to doctor there. He, however, said he left for Nairobi a day later and didn't get time to follow up with his knee treatment.
When John reported to us, we looked at his condition and decided to send him to Kenyatta Hospital for shoulder scan, knee scan and head scan.
The shoulder scan disclosed a curved shoulder blade. But the knee scans were inconclusive and we requested a CT scan which disclosed a mild change of patellofemoral joint and a tiny crack on the patella.
The results of the head scan were normal but we still advised him to follow up with treatment in Australia if the headache continues.
John received the following treatment … [There was then a description of various medications and injections.]
27 By a report dated 27 December 2013 from Dr Solomon Mwangi of the Zimmerman Medical Centre in Nairobi the following appears:
This is to confirm that Mr John Lony [sic] has been our patient since 6/2/13 when he was first attended to in our facility after presenting with dizziness.
A history of assault in Australia was made. Medical examination done disclosed a swollen right elbow with severe pain extending to the shoulder. The knee of the right leg was bruised with isolated inflammation on the knee cap. A bruise on the left eyelid and a laceration of the skull was also found.
Mr John [sic] was admitted in this facility from 6/2/2013 for further investigation which included CT scan, x-rays and other haematological investigation so as to accord him proper management. There was no fractures found to the affected parts but substantial inflammation was sustained.
He was given appropriate management and significantly improved before being discharged on 13/2/2013. The total costs related to treatment were USD3000 (3000 US dollars). He is scheduled for further review in Australia.
28 There is come controversy about the reference to Mr Biar being 'admitted'. He said that he was only there for a 'few hours'. Mr Biar also said that he paid $AUD1,800 and not $3,000.
29 On 19 July 2014 Mr Biar was referred for a right shoulder and right knee radiograph. Findings with respect to the right shoulder and right knee were normal but there was mild patellofemoral change in the joint.
30 Upon attending on 30 July 2014 Mr Biar was referred by Dr Kumar for an ultrasound of his right shoulder following his complaint of persistent pain at that location. Dr Sean Lim, consultant radiologist, reported that there was moderate subacromial bursitis but that Mr Biar's rotator cuff tendons were intact.
31 On 24 September 2014 Mr Biar attended for a CT arthrogram of his right knee performed by Dr Amarash Dayanandan, consultant radiologist who found:
1. Mild undersurface fraying involving the posterior horn of the medial meniscus.
2. Focal full thickness chondral defect involving the central third of the lateral patella facet with associated subchondral cystic change. This most likely accounts for the patient's symptoms but should be correlated clinically.
3. Mild oedema noted within the superficial infrapatellar bursa.
4. Intact cruciates, lateral meniscus, medial and lateral collateral ligamentous supporting structures as well as the medial and lateral compartment articular cartilage.
32 On 16 October 2014 Dr Lim carried out an ultrasound and guided a right subacromial bursal injection.
33 Attached to the medical reports were radiological and scan reports including CT arthrogram of the right knee, right shoulder ultrasound, right shoulder radiograph, right knee radiograph.
34 Whatever one makes of the Kenyan medical reports it certainly supports the assertion made by Mr Biar that he had complained soon after the assaults of a variety of injuries, not mentioned when he attended at the emergency department Royal Perth Hospital on the night in question.
35 There was also attached a radiological report from a Dr Michael Obare which is dated 27 February 2012 (obvious misprint, it should be 2013).
36 Following his return to Australia Mr Biar attended upon his GP, Dr J Thomas, at 119 Kenwick Road in Kenwick. He also apparently saw Dr Latha Kumar at the practice.
37 Apart from these reports there was also a report, undated, from Kenwick Medical Centre prepared by Dr Latha Kumar which was in the following terms:
This is a medical report as requested by Mr Biar for his criminal Injuries Compensation Claim for his solicitor.
My first consultation with him in my rooms was on the 16/07/2014. He presented with complaints of ongoing right shoulder and right knee pain from an alleged assault in 2012.
He reported an alleged assault by a group of unknown people on the 9th of December 2012 when he went to visit a friend in Balga.
He was assessed and managed in Royal Perth Hospital and his previous GP.
Apparently he sustained dislocated shoulder, knee injuries and lacerated face and head. I have no records of his past injuries and treatment.
Since then he has had ongoing right shoulder and right knee symptoms. Xray and ultrasound of the right shoulder, CT Arthrogram of the right knee were requested.
Xray of the right shoulder were unremarkable. Xray of the right knee showed mild OA of the right knee. Ultrasound of the right shoulder showed moderate subacromial bursitis. CT Arthrogram of the Right knee revealed – Full thickness chondral defect, mild fraying posterior horn of the medial meniscus and intact ligaments.
A referral was sent to orthopaedics Royal Perth Hospital to be seen for both joint problems.
He is still awaiting on an appointment at Royal Perth Hospital for further management. In the interim he has had a cortisone injection in his right shoulder and this has considerably improved his functioning though there is still mild restriction of movements because of pain.
He has suffered mental and physical trauma as a consequence of the assault which has led to reduced functioning.
He has been on painkillers as and when required.
He reports no previous health issues or similar symptoms in the past with regards to his right shoulder and right knee.
I believe that this report is helpful for his claim. We don't have the records of his past treatment for his injuries. This can be requested from Royal Perth Hospital with Mr Biar's written consent.
38 Mr Biar asserts that prior to the assault on 9 December 2012 he had enjoyed very good health and had no symptoms. In his victim impact statement he puts his case in the following terms:
As a result of the assault I have suffered permanent damage to my kneecap and torn ligaments inside my shoulder; for a while immediately after the assault my shoulder was paralyzed. My kneecap had cracks since the assault and I have had to live with a damaged knee so far.
RPH have written to me and told me that I am scheduled to have knee surgery to see whether that can be rectified. As yet I have no date for the surgery. The full impact of the assault will be with me for some time after that proposed surgery has been done as I will not be ambulatory for some time after the surgery. I will also require rehabilitation and medication after the surgery which will need to be paid for. If I am working at the time that go for surgery I may lose that job/work as I will not be able to work for months after the surgery.
I continue to suffer severe pains to my right shoulder which needs to have continual treatment with steroid injections. The tendon between the joints in my shoulder has suffered severe bruising and the resulting pain has been with me since the assault in 2012.
After the assault I have been scared to go out at night and I have become very distrustful of strangers. I do not go out at night since the assault and I stay at home instead on the weekend and watch television feeling that it is safer to do that. That is not good for a single man either.
39 Mr Biar also details how he feels about the assault and the effect that it has had on his life. He asserts that he is fearful of going out at night and has trust issues with people. He also indicates that he cannot understand why it was he was assaulted.
40 These latter complaints about his post-facto reaction to what occurred seem to me to fall short of compensable nervous shock and in the event there is no supporting evidence from an appropriate expert on that issue.
41 As I have mentioned Mr Biar was an impressive witness. His behaviour post-accident has been broadly consistent, I think, with his assertions that he suffered injury in the assault which produced symptoms some days later. When he attended at Royal Perth Hospital, of course, he had lacerations and had blood on his face that had dripped onto his chest. Given the history of being hit with a bottle it is perfectly understandable that the focus of both Mr Biar and those who attended him was on the issue of head injury. He had no fractures. It is perfectly plausible that little attention was made by him and no complaint by him concerning any other symptoms or symptoms elsewhere. Of course, as I have mentioned, Mr Biar noticed developing symptoms in the days that followed. About four weeks later, of course, he left for Kenya.
42 I am satisfied that the evidence establishes Mr Biar was the victim of an unprovoked racially motivated attack by three indigenous offenders and that during the attack he was punched and kicked, manhandled and struck over the head with a bottle or bottles. He suffered injuries that have had an adverse effect upon his life so far. In my view a fair award for injuries and loss would be the sum of $12,000.
43 So far as other loss Mr Biar was working at the time of the assault at IGA and receiving, according to him, $800 - $900 per week. He said that he was not able to continue work following the assault. He said that he did return to work later in December at Woolworths where he worked for two months.
44 Mr Biar's claims for loss are not significantly substantiated by relevant documentation. There is a difficulty, I think, in accepting what he says about those matters without further evidence but, on the other hand, given my findings concerning the truth of his evidence about his symptoms, it is unsurprising that some economic loss must have been suffered by him.
45 The assessor's award was for $4,000 loss of earnings. I do not feel there is any reason on the basis of the case that was presented to me for varying that particular assessment and consequently I would award loss of earnings $4,000.
46 As for medical treatment, for the costs of medical treatment, particularly in Kenya, there is a difficulty because Mr Biar's evidence was that he paid $1,800 for the various procedures that he underwent in Kenya whereas the report from Zimmerman Medical Centre asserts that the costs were of the order of $US3,000.
47 Doing the best that I can I would make some allowance for medical treatment which of course is, again, unsubstantiated and allow a global figure of $1,000.
48 I would allow $205 for damage to personal items.
Injuries and loss $12,000
Loss of earnings $ 4,000
Expenses $ 1,000
Damage to personal items $ 205
$17,205
0
0
1