Re Branch - [2024] WADC 41

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE BRANCH [2024] WADC 41
CORAM:   RITTER DCJ
HEARD:   21 MARCH 2024
DELIVERED          :   5 JUNE 2024
FILE NO/S:   APP 26 of 2023
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: TODD RONALD BRANCH
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R GUTHRIE
File Number            :   CIC 373/2023

Catchwords:

Criminal injuries compensation - Appeal - Mental and nervous shock - Loss of future earning capacity

Legislation:

Criminal Code (WA)
Criminal Injuries (Compensation) Act 1970 (WA)
Criminal Injuries Compensation Act 2003 (WA)
Spent Convictions Act 1988 (WA)

Result:

Appeal allowed

Representation:

Counsel:

Appellant	:	Mr J N Trigg
Amicus Curiae	:	Mr T P Boyle appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Stephen Browne Lawyers (South Perth)
Amicus Curiae	:	State Solicitor for Western Australia

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

A v D (1994) 11 WAR 481
August v Lynch [2019] WADC 78
BAS v The Estate of NAS (dec) [2000] WASCA 270
Blackwell v Warren [2018] WADC 127
Bothma v Hildebrand [2019] WADC 92
Brocx v Mounsey [2010] WASCA 196
Caldwell v Caldwell [1996] NSWCA 88
Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96
Dimitrovska v The State of Western Australia [2015] WASCA 162; (2015) 253 A Crim R 407
Director of Public Prosecutions (Vic) v Sokaluk [2013] VSCA 48
EB v Ramljak [2021] WADC 134
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Kittelty v Davies [2011] WADC 1
Klimoski v Water Authority of Western Australia (1989) 5 SR (WA) 148
M v J (Unreported, WASC, Library No 920598, 19 November 1992)
Madigan v XYZ [2022] WADC 123
Martin v Martin [2015] WADC 138
MDC v BLR [2015] WADC 107
Nepi v Northern Territory [1997] NTSC 153
R v Bassi [2021] QCA 250; (2021) 9 QR 522
R v Forde (1986) 19 A Crim R 1
R v Kucma (2005) 11 VR 472
R v Nguyen [2015] QCA 205
R v Runjanjic (1991) 56 SASR 114
R v SCZ [2018] QCA 81
R v Whitbread (1995) 78 A Crim R 452
Re Ates [2022] WADC 108
Re Collard [2018] WADC 1
Re Goodwin [2020] WADC 128
Re Harvey [2023] WADC 83
Re Hojetzki [2009] WADC 77
S v Neumann (1995) 14 WAR 452
State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Sweetman v Lilley [2021] WADC 74
Swinford [2021] WADC 82
Tristram-Howard v Morris Corporation (Aust) Pty Ltd [2023] WADC 60
Trudgett v Commonwealth of Australia [2006] NSWSC 575
Underwood v Underwood [2018] WADC 13
Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485

RITTER DCJ:

The appeal

The appellant seeks, by way of an appeal, an increase in the amount of compensation of $16,462.99 which he was awarded by the Chief Assessor (the Assessor) of Criminal Injuries Compensation for a claim made under the Criminal Injuries Compensation Act 2003 (WA) (the Act).

The issues

The appellant's counsel identified four issues which the court was to determine, being whether:
(a)The court should exercise its discretion under s 55(4) of the Act to grant the appellant leave to appeal out of time.
(b)The court should exercise its discretion under s 56(1) of the Act to allow into evidence the affidavit of Ms Bebbington dated 6 March 2024, a tax invoice from 360 Medico‑Legal dated 16 November 2022, a tax invoice from Lions Health Psychology dated 15 November 2024, the Australian Psychological Society schedule of fees and Medicare rebate information.
(c)The appellant suffered an injury and loss as a consequence of the commission of a proved offence pursuant to s 12 of the Act.
(d)If entitled to compensation under the Act, an assessment of the quantum of the compensation to be awarded.

The conduct of the appeal

Underpinning the identification of these issues was the submission that the court in deciding the appeal is to conduct a hearing de novo. This submission is supported by authority,[1] and is clearly correct from the terms of s 55 and s 56(1) of the Act. Section 56(1) of the Act provides:
On an appeal under section 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information.
[1] Underwood v Underwood [2018] WADC 13 [19]; see also Re Collard [2018] WADC 1 [30].
As I indicated to counsel for the appellant at the commencement of the hearing, my preliminary view was that identified issues (a) and (b) were not insurmountable obstacles to overcome.

Extension of time evidence and conclusion

The affidavit of Ms Bebbington which, as I have noted, was placed in issue (b) by the appellant's counsel, is really an affidavit that supports the application for an extension of time in issue (a). Ms Bebbington is a senior paralegal employed by Stephen Browne Lawyers, the appellant's current solicitors. The affidavit of Ms Bebbington makes it apparent, for the reasons there explained, that the delay in lodging the appeal notice with the District Court was due to her administrative error. The administrative error was corrected as soon as she became aware of it.
In my opinion unfairness can be visited upon the putative appellant where an application is not filed within time due to an error by their solicitors that is not attributable to the putative appellant.
As I informed counsel at the hearing, my preliminary view, which has now solidified into a concluded view, is that if the appeal otherwise has merit, then the fact that the application has been filed out of time should not, in the circumstances, be prohibitive to the court hearing the appeal.

Receipt of additional evidence

With respect to issue (b), s 56(1) of the Act specifically provides for the receipt of further evidence and information, which was not before the Assessor, being received by the court, on an appeal. Neither in this subsection, nor other sections of the Act, is not set out any particular precondition for the court receiving 'further evidence and information'. There is no requirement, for example, to demonstrate that the evidence or information could only be received if it is 'new' or 'fresh' evidence or information. This is consistent with the appeal being a determination afresh, not fettered by the Assessor's decision.
In my opinion therefore it is appropriate for the court to receive as additional evidence and information the documents referred to in (b) above, and then place such weight on documents as is appropriate in all the circumstances of the case.

Did the appellant suffer injury

Issue (c) is whether the appellant suffered any injury and loss as a consequence of the commission of the proved offence pursuant to s 12 of the Act.
The word 'injury' is defined in s 3 of the Act to mean 'bodily harm, mental and nervous shock or pregnancy'.
A proved offence is defined in s 3 of the Act to mean a 'crime, misdemeanour or simple offence of which a person has been convicted'. Here there is a proved offence committed by the respondent against the appellant on 23 January 2021.
The respondent was charged and convicted of common assault under s 313 of the Criminal Code (WA). Although immaterial to the appeal, I record that the sentence the respondent received is not known to the appellant because of the terms of the Spent Convictions Act 1988 (WA).[2]
[2] Outline of Submissions dated 7 March 2024, par 22.
The appellant's version of events is set out in his statement to the police dated 25 January 2021.[3] In the statement, relevantly, the appellant says:[4]
[3] Outline of Submissions dated 7 March 2024, par 23.
[4] Outline of Submissions dated 7 March 2024, par 23.
I finished my cigarette and I started to walk towards my room.
Brent followed me and he said 'you are a weak old man'.
He pushed me from behind on the left side into the metal staircase situated near the bike racks outside my room.
I hit my head immediately stated to bleed. I feel to the floor.
Whilst I was lying on the floor, Brent pushed a motorbike that was parked next to the staircase on top of me.
I immediately felt pain on my right hand and arm.
I tried to stand up but Brent pushed me on the ground for the second time.
He said 'you want to have a go. Lets have a go'.
I said 'I am not interested'.
I stood up again and I started to walk towards my room.
He followed me and he put his arm around my neck from behind.
I am unsure if it was his right or left arm.
The incident lasted for approximately 20 seconds.
During that time, I could not breath.
Whilst he had his arm around my neck he said, 'do you want to die old man? I will kill you'.
He then removed his arm around my neck and he pushed me on the floor for the third time.
He said 'look at you old man, you are bleeding'.
Brent left and I then stood up and went and back to my room.
When I entered the room, I realized that I was bleeding from my arms, my hands and my head.
Based upon the statement the appellant suffered an injury from a proved offence in that:
1.The respondent pushed the appellant who hit his head which started to bleed and he fell to the floor.
2.Whilst lying on the floor the respondent pushed a motorbike upon him and he felt pain to his right hand and arm.
3.The respondent put his arm around the neck from behind, during which time the appellant could not breathe.
4.The respondent then pushed him to the floor again.
5.When he then entered his room the appellant was bleeding from his arms, hands and head.

Mental or nervous shock

From the submissions of counsel for the appellant he also seeks compensation for the injury of 'mental or nervous shock'. In this regard, the ground of appeal in the notice of appeal simply provides that the Assessor's award of compensation in respect of the appellant's injuries and other compensable loss is inadequate. This ground of appeal is bereft of particulars, although that is understandable given this, as I have said, is a de novo hearing in which the decision of the court is not fettered by that of the Assessor.
As correctly identified in the appellant's submissions, the onus is on the appellant to establish on the balance of probabilities a causal relationship between the commission of the offence and the injury, in order to obtain compensation.[5]
[5] S v Neumann (1995) 14 WAR 452, 463 - 464; Sweetman v Lilley [2021] WADC 74 [11].
There are limits upon the circumstances in which an assessor, and thus this court, can make a compensation award for mental and nervous shock. This is set out in s 35(2) of the Act as follows:
An assessor must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence, or for any loss in respect of such shock, unless the assessor is satisfied -
(a)that the victim also suffered bodily harm or became pregnant as a consequence of the commission of the offence; or
(b)that the victim was the person against whom, or against whose property, the offence was committed; or
(c)that a person other than the victim died or suffered injury as a consequence of the offence and the victim was personally present when or immediately after the offence was committed; or
(d)that immediately before the offence was committed the victim was the parent or step‑parent of a person who died as a consequence of the commission of the offence; or
(e)that immediately before the offence was committed the victim -
(i)was a close relative of a person who suffered injury or died as a consequence of the commission of the offence; and
(ii)was living with that person.
From the preamble of s 35(2), to obtain a compensation award for mental and nervous shock, the victim of an offence must also establish one of the five circumstances then set out. The appellant's claim in the present case is that he is a 'victim as a consequence of the commission of an offence'. In my opinion, this is plainly correct. Additionally, from what I have stated above there is evidence before the court, which I accept, that the 'victim also suffered bodily harm'. Accordingly, an assessor and thus the court had and has jurisdiction to make a compensation award for mental and nervous shock.
As submitted on behalf of the Chief Executive Officer of the Department of Justice, by the State Solicitor for Western Australia as amicus curiae:[6]
It is well accepted that the phrase mental or nervous shock comprehends any malfunction of the person which can be seen to be a consequence of the impact of the events constituting the offence or offences, or associated with the commission of the offences, as those events impacted on the mind or nervous system. It must be more than a mere emotional reaction, being something of a more enduring character which may, in both the legal sense and in the common parlance, be described as an injury. The term includes distress, horror, disgust and other similar adverse mental reactions but excludes mere fright, mere humiliation or anguish.
[6] The court is indebted to the submissions received in writing and orally by Mr Boyle as counsel for the amicus curiae. Submissions from an amicus curiae are particularly important when a respondent to the appeal does not appear, as in this appeal, and therefore there is no contradictor before the court.
This submission is made by reference to S v Neumann,[7] M v J[8] and Martin v Martin,[9] and is accepted.
[7] S v Neumann (461).
[8] M v J (Unreported, WASC, Library No 920598, 19 November 1992) 10 - 11 (Scott J).
[9] Martin v Martin [2015] WADC 138 [85].

Evidence of Dr Borg

The amicus also submits, and it is accepted by the appellant, that in order to make an appropriate award of the compensation, on the basis of mental and nervous shock, 'sufficient evidence' ought to be before the court. The amicus submitted that supporting medical evidence from an appropriately qualified medical practitioner is generally required to prove that an injury exists and was caused by the offence.[10]
[10] Cited in support of this proposition was Re Hojetzki [2009] WADC 77 [48].
The appellant submitted that, generally a psychiatrist, not a clinical psychologist, should provide a diagnosis of mental disorder.[11] The amicus submitted that having regard to s 18 of the Act, if a psychologist (rather than a psychiatrist) provides an opinion on a medical matter such as the diagnosis of a mental disorder, the relevant question when assessing the evidence of a psychologist is not whether the opinion of a psychologist about a medical matter is admissible, but whether any weight should be attached to it.
[11] The appellant cited Re Hojetski [48]; Sweetman v Lilley [14].
Despite the principle espoused on behalf of the appellant, the appellant relies on the opinion of Dr Krystle Borg who is a clinical and forensic psychologist. Dr Borg provided a report upon the appellant dated 6 December 2022. This followed an examination of the appellant. The appellant relied upon the opinions of Dr Borg that:
(a)The appellant meets the criteria for a major depressive disorder, being a generalised anxiety disorder, post-traumatic stress disorder (PTSD) and alcohol use disorder (in early remission).
(b)Her conclusions largely rested upon the self‑report from the appellant and the veracity of the self‑report. However, Dr Borg said the self-report aligned with psychometric results obtained and the appellant's account of the events was 'tangible and his disclosures pertaining to his prior mental health complaints, including his problematic alcohol use, suggests some level of transparency during the assessment'.
The appellant also relies upon the opinion of Dr Borg when asked about the relationship between the mental health conditions of the appellant and the assault by the respondent, as follows:[12]
As such, while Mr Branch had pre-existing mental health and trauma symptoms, the incident appears to be directly attributable to some of his symptoms (arousal and avoidance) and the intensification of his previously held symptoms (cognitive and mood alterations and intrusive thoughts) as a result of his retraumatisation. Of note, his subsequent exposure to trauma has likely further intensified his symptom's, particularly his fear for his safety and his hypervigilance.
[12] Outline of Submissions dated 7 March 2024, par 34.
In the submissions of the amicus it is said that the appellant's psychological symptoms before Dr Borg were complicated by his trauma history, prior experiences of assault, subsequent experiences of trauma and prior mental health concerns. Additionally, the amicus submits that Dr Borg observed indications of a previous diagnosis of PTSD and alcohol use disorder although Dr Borg said there was limited information available to support those diagnoses. Dr Borg also referred to the self‑report of the appellant that he has a history of depression, anxiety and worrying which pre‑dated the assault.
However, Dr Borg also said it is evident the appellant's mental health has deteriorated following the commission of the offence upon him and that the offence:
appears to be directly attributable to some of his symptoms (arousal and avoidance) and the intensification of his previously held symptoms (cognitive and mood alterations and intrusive thoughts) as a result of his retraumatisation.
Additionally, Dr Borg concluded that although the appellant's prior psychological difficulties were likely to have increased his vulnerability to develop PTSD and experience re‑traumatisation, he had developed new symptoms subsequent to the offence, suggesting that the offence is responsible for his new trauma‑based symptoms and aggravated his prior psychological symptoms.
In addition to the offence, which is in issue in the present appeal, the appellant reported to Dr Borg that he was stabbed in the arm approximately two months prior to her assessment and was also stabbed in the neck subsequent to the commission of the offence. In her report, Dr Borg said that the appellant's subsequent exposure to trauma has likely further intensified his fear for his safety and his hypervigilance.
Dr Borg formed the opinion however that the appellant required psychological intervention to address the trauma symptoms of the offence and treatment for alcohol use disorder. Dr Borg said the treatment should include two to four initial treatment sessions, four to ten eye movement desensitisation and reprocessing sessions (EMDR) and an additional 10 cognitive behavioural therapy sessions on a weekly basis followed by five fortnightly sessions and three-monthly sessions thereafter.
Dr Borg estimated the total cost of that treatment to be $9,744, with additional treatment for alcohol use disorder costing between $410 and $520.

Evidence from Dr Borg as a psychologist

In his submissions the appellant does not elaborate upon the point made on his behalf that a psychiatrist not a clinical psychologist should provide a diagnosis of a mental disorder.
With respect, in my opinion, that observation is an oversimplification of the modern law of evidence.
BAS v The Estate of NAS (dec)[13] involved an application for compensation under the Criminal Injuries (Compensation) Act 1970 (WA). The Court of Appeal allowed an appeal against the dismissal of the application by a judge of the District Court. One of the grounds of appeal was that the judge had not taken into account all of the evidence in making his decision. The evidence had included a report from Mr Cohen, a clinical psychologist. Mr Cohen's report set out the symptoms which the appellant had described to him and concluded that they disclosed PTSD and clinical depression.[14] The court said Mr Cohen reported the appellant had completed the Beck Depression Inventory and the Impact of Events Scale. These tests indicated a woman who was clinically depressed[15] and who was severely affected on a day‑to‑day basis by sexual assault.
[13] BAS v The Estate of NAS (dec) [2000] WASCA 270, cited by the amicus curiae.
[14] BAS v The Estate of NAS (dec) [20].
[15] BAS v The Estate of NAS (dec) [21].

The Court of Appeal said the report of Mr Cohen had not been objected to at the hearing and Mr Cohen was not required to attend for cross‑examination.[16] The court also said Mr Cohen's evidence generally should be treated as expert opinion supporting the appellant's claim that she had suffered serious sexual abuse over a long period. The court said it was an opinion formed not just upon what the appellant told Mr Cohen but upon the results of the clinical tests he conducted. The court emphasised there was no challenge to the validity of the tests. It was not suggested the tests were unreliable or inappropriate or they lacked acceptance in the field. The Court of Appeal said Mr Cohen's conclusions were not contradicted by other evidence. The Court of Appeal said the judge was not entitled to ignore Mr Cohen's evidence as his Honour had appeared to have done. The court concluded that on the face of it 'Mr Cohen's opinion was important evidence probative of the appellant's case and it therefore demanded consideration in the adjudication of her application'.[17]
[16] BAS v The Estate of NAS (dec) [30].
[17] BAS v The Estate of NAS (dec) [42].
The decision is therefore authority for the proposition that the evidence of a psychologist can and sometimes must be taken into account as important evidence, in the assessment of a criminal injuries compensation claim.
A decision which is consistent with this proposition is R v Bassi.[18] Bassi was an appeal against sentencing where counsel at first instance had sought to tender a report by a psychologist. The sentencing judge refused the tender on the basis that the psychologist could not diagnose Attention Deficit Hyperactivity Disorder and depression. The Court of Appeal considered in some detail the issue of the acceptance by a court of opinions expressed by a psychologist as opposed to a psychiatrist. The court made the following points:[19]
[18] R v Bassi [2021] QCA 250; (2021) 9 QR 522 (Bassi).
[19] Bassi [55] - [66].
(a)The admissibility of expert opinion evidence about a person's mental state was controversial until 1965, when it was decided that medical evidence could be led to show that a witness had a mental illness affecting the reliability of the evidence given by that witness.
(b)In an English case, in 1981, it was decided that the evidence of a psychologist, who had 'no medical qualifications' was not medical evidence, and was not admissible.
(c)This kind of a priori determination about the admissibility of evidence of psychologists as experts has been followed in Australia in decisions such as Klimoski v Water Authority of Western Australia[20] and R v Kucma.[21]
(d)However, evidence of a diagnosis by a psychologist has also been admitted in numerous cases, including in Queensland. The court cited: Trudgett v Commonwealth of Australia,[22] (PTSD); R v SCZ,[23] (PTSD and major depressive disorder); R v Nguyen,[24] (untreated major depressive disorder); R v Runjanjic,[25] (battered woman syndrome); R v Forde,[26] (neurotic personality); Caldwell v Caldwell,[27] (PTSD); and Director of Public Prosecutions (Vic) v Sokaluk,[28] (autism spectrum disorder).

(e)The question of whether evidence of a psychologist's diagnosis is admissible as expert evidence has to be decided on a case‑by‑case basis and, in general, it will not be open for a judge to conclude that evidence of that kind is inadmissible just because it is to be given by a psychologist rather than by a psychiatrist.
(f)The admissibility of the evidence will depend entirely upon the result of the application of the established principles for the determination of the admissibility of expert evidence and the admissibility of such evidence is a question of fact.
(g)In support of this contention, the court cited Nepi v Northern Territory[29] and R v Whitbread.[30] In Whitbread, Hampel J after referring to several reference works which demonstrated an overlap between the fields of study of psychologists and psychiatrists, said:[31]
It is, I think, common knowledge and experience that some psychologists have a greater knowledge and qualifications in the science which is concerned with the mental states and processes of the mind than some psychiatrists. Once the question of medical treatment of mental illness is put to one side there is no reason why a psychologist may not be just as qualified or better qualified than a psychiatrist to express opinions about mental states and processes. ...
[20] Klimoski v Water Authority of Western Australia (1989) 5 SR (WA) 148.
[21] R v Kucma (2005) 11 VR 472.
[22] Trudgett v Commonwealth of Australia [2006] NSWSC 575 (Bell J).
[23] R v SCZ [2018] QCA 81 (Morrison & Philippides JJA; Davis J).
[24] R v Nguyen [2015] QCA 205 (Fraser & Gotterson JJA; Dalton J).
[25] R v Runjanjic (1991) 56 SASR 114 (King CJ, Legoe & Bollen JJ).
[26] R v Forde (1986) 19 A Crim R 1.
[27] Caldwell v Caldwell [1996] NSWCA 88.
[28] Director of Public Prosecutions (Vic) v Sokaluk [2013] VSCA 48.
[29] Nepi v Northern Territory [1997] NTSC 153.
[30] R v Whitbread (1995) 78 A Crim R 452.
[31] R v Whitbread (460) - (461).

The issue of the admissibility of evidence from psychologists was also discussed in a presentation on 15 November 2022 to a Legalwise Criminal CLE by Judge Smith, a Judge Administrator of the District Court of Queensland. His Honour referred to a reservation by one judge, about the ability of psychologists as distinct from psychiatrists, to diagnose mental health conditions. However, Judge Smith said that 'the issue was put to bed' in R v Bassi.[32] Judge Smith also referred to other decisions of the Court of Appeal in Queensland[33] which had admitted psychologists' reports, which said that a person had symptoms consistent with PTSD and a major depressive disorder.[34]
[32] Bassi [39].
[33] Bassi [43] - [44].
[34] R v SCZ; R v Nguyen.
There is also the publication of the speaking notes of Justice Burns of the Supreme Court of Queensland from a presentation to a Criminal Law Continuing Professional Development Seminar on 24 April 2022. The presentation, by his Honour entitled 'The Use of Psychiatric and Psychological Evidence on Sentence'. The speaking notes said:[35]
10.A view has sometimes been expressed that psychologists are not qualified to express a diagnostic opinion about an offender's mental state because that requires the expression of a medical opinion: see, e.g., R v MacKenney (1981) 76 Cr App R 271, 274‑275; Klimoski v Water Authority of Western Australia (1989) 5 SR (WA) 148; R v Kucma (2005) 11 VR 472, [26]. On the other hand, there are numerous case where diagnostic evidence from psychologists has been received: see, eg (e.g., R v Nguyen [2015] QCA 205; R v SCZ [2018] QCA 81). There is however no longer any room for debate because the Court of Appeal recently affirmed that the admissibility of such evidence will depend entirely on an application of the established principles for the determination of the admissibility of expert evidence: R v Bassi [2021] QCA 250, [61]. Those principles are well-known: Clark v Ryan (1960) 103 CLR 486, 491; Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705, [85]. As such, the 'question whether evidence of a psychologist's diagnosis is admissible as expert evidence has to be decided on a case-by-case basis and, in general, it will not be open for a judge to conclude that evidence of that kind is inadmissible just because it is to be given by a psychologist rather than by a psychiatrist': R v Bassi [2021] QCA 250, [61].
11.Of course, to be admissible, there must be an opinion expressed within the witness' specialised field of knowledge. A psychologist who churns out what in reality is not much more than a statement of the offender's antecedents expresses no admissible opinion at all.
12.In the same vein, where the relevant expert opinion is based on, or substantially on, the offender's own account without any supporting evidence, caution may be required: R v Peisley (1990) 54 A Crim R 42, 52; R v Qutami (2001) 127 A Crim R 369, [58]‑[59]; R v Palu (2002) 134 A Crim R 174, [40]-[42]. As a general proposition, the weight given to such opinions could be significantly eroded unless supported by clinical testing or other evidence independent of the offender. …
[35] Burns J, 'The Use of Psychiatric and Psychological Evidence on Sentence' (Criminal Law Continuing Professional Development Seminar, 24 April 2022), pars 10 - 12.
In my opinion consistently with the decision of the Court of Appeal in BAS v The Estate of NAS (dec), the issue of the admissibility of evidence by a psychologist in a criminal injuries compensation appeal and the weight to be given to the evidence should be dealt with in line with the general principles outlined in Bassi and as discussed in the papers just referred to.[36]
[36] And see also the reasons of Egan DCJ in Re Harvey [2023] WADC 83 [186].
Accordingly, assessment of the admissibility, and more relevantly, the weight to be given to the opinions of Dr Borg is dependent upon a qualitative analysis of her qualifications and experience and the basis upon which she made her diagnoses.

Assessment of weight of Dr Borg's evidence

I have already said that Dr Borg is a clinical and forensic psychologist. At the end of Dr Borg's report there is a paragraph which reads:
I am a clinical and forensic psychologist registered with the Psychology Board of Australia. I have a doctor of psychology (clinical and forensic psychology) and have experience working in private practice, hospital, corporate and forensic settings providing assessment and therapeutic services. I also have experience providing consultancy and management advice to numerous stakeholders within the Department of Justice on treatment needs and management issues of offenders in their custody. Further I have experience completing forensic psychological reports for legal bodies and testifying in court. A copy of my curriculum vitae can be made upon request.
Despite this invitation there is no copy of Dr Borg's curriculum vitae before the court.
The report of Dr Borg is comprehensive and is 21 pages long. Dr Borg says in her report that she has perused a number of documents, being the WA police incident report and running sheet, the appellant's witness statement to WA police, medical records of Royal Perth Hospital dated 23 January 2021 ‑ 26 November 2021, documents from Homeless Health Care dated between 26 March 2020 and 27 September 2022, documents from Tenacious House dated 1 December 2021 to 10 December 2022, photographs of the appellant's injuries dated 2 September 2022 and the appellant's Department of Fire and Emergency Services certificates dated 29 September 2022.
Dr Borg's report says the appellant was interviewed in person on 5 November 2022 and via telephone on 22 November 2022.
The report then sets out under headings:
(a)a brief description of the incident;
(b)the nature and extent of the psychological injury;
(c)a summary of the appellant's psychiatric and psychological treatment to date;
(d)findings on examination;
(e)presentation;
(f)family, education and employment;
(g)relationship history;
(h)physical and mental health;
(i)substance use;
(j)legal history;
(k)other trauma;
(l)psychometric assessment;
(m)diagnosis;
(n)opinions on whether the appellant's psychological symptoms can be directly or indirectly related to the offence;
(o)opinions on whether the appellant will make a full recovery from the psychological injury suffered and if so when that will take place or possible residual symptoms;
(p)whether the appellant has an ongoing need for medical treatment with respect to psychological injuries, with specification of the same;
(q)whether the ability of the appellant to work has been effected by his injuries at the time of the offence, currently and in the future;
(r)whether the appellant's ability to undertake and enjoy recreational, social and leisure activities has been effected as a result of his psychological injuries and if so how;
(s)whether the appellant's ability to undertake household, self‑care or domestic tasks has been effected as a result of his psychological injuries and if so the extent of these and whether assistance is required; and
(t)whether there are any pre‑existent psychiatric or psychological injuries, condition or predisposing factors contributing to the appellant's conditions and if so what they are and how do they impact upon his current position.
As stated, Dr Borg referred to psychometric testing she performed on the appellant. Dr Borg said the appellant sought clarification when asked questions that he did not understand, including questions within the psychometric testing. The psychometric testing was the Millon Clinical Multiaxial Inventory ‑ IV (MCMI‑IV) and the post‑traumatic checklist for DSM‑5 (PCL‑5). Dr Borg explained that the MCMI‑IV is a standardised, self‑report questionnaire that assesses a wide range of information related to a client's personality, emotional adjustment, and attitude towards test taking. It is composed of 195 items that produce 28 scales related to validity, clinical personality patterns, severe personality pathology, clinical syndromes and severe syndromes. Dr Borg said the appellant's test profile was considered valid.
Dr Borg said the appellant's response style indicated a potential tendency to magnify symptoms and an inclination to complain or have feelings of extreme vulnerability associated with a current episode of acute turmoil. Dr Borg concluded therefore it is possible the scores recorded are exaggerated. Dr Borg said that was kept in mind by her, in interpreting the appellant's results.
Dr Borg also explained that the PCL‑5 is a 20‑item self‑report measure of the 20 DSM‑5 symptoms of PTSD. The PCL‑5 can be used to screen for PTSD, monitor symptom change over time or to aid in the diagnoses of PTSD. Dr Borg said that the appellant's score on the PCL‑5 exceeded the cut‑off required for provisional diagnoses of PTSD.[37]
[37] Elsewhere in Dr Borg's report she states she has relied upon DSM‑5, American Psychological Association, 2022. The full title of DSM‑5 is the Diagnostic and Statistical Manual of Mental Disorders, 5^th edition, published by the American Psychiatric Association. DSM‑5 is a widely accepted text on mental disorders and so weight can be attributed to findings based upon testing and an analysis by reference to DSM‑5.
Whilst Dr Borg's diagnoses of the appellant are, to some extent dependent upon self‑reporting. However this is clearly recognised in the report and taken into account by Dr Borg in making her diagnoses. Further, it is not unexpected that an analysis and diagnoses of the type made by Dr Borg are to some extent dependent on self‑reporting.
Overall, in my opinion, the court is entitled to place weight upon the report of Dr Borg, despite the doctor being a psychologist and not a psychiatrist. This opinion is consistent with the principles I have set out earlier.
In assessing the compensation for the appellant for his injury caused by the offence, I therefore take into account the opinions expressed by Dr Borg with respect to the mental health problems of the appellant attributed to the offence.

Compensation for injuries

The Act does not require an assessment of compensation to be awarded to claimant for mental and nervous shock, separately from a global amount for the injuries suffered by a claimant. Accordingly, I will take into account the opinions and diagnoses of Dr Borg as part of a general assessment of the compensation the appellant is entitled to.
There is also evidence before the court of the physical injuries sustained by the appellant. I have already referred to the appellant's statement. Additionally, as summarised by the amicus, the court has before it the appellant's medical records from Royal Perth Hospital as well as an emergency department report of Mr Matthew Depiazzi, medical officer, from the Royal Perth Hospital. These documents report that on 23 January 2022 the appellant sustained:
(a)Small lacerations sustained on limbs post‑event.
(b)Small haematoma to the left temporal region.
(c)Tenderness over the left chest wall.
(d)Pain and swelling in the right hand over the fifth metacarpal.
(e)Small skin tears to the right elbow, left hand and left chin.
(f)Mild abdominal generalised tenderness.
Mr Depiazzi also recorded that an X‑ray was taken of the appellant's right hand which was placed into a cast.
As said by the amicus in their submissions, the court has also been provided with photographs of the appellant's injuries which are consistent with Mr Depiazzi's report.
Additionally, Dr Michael Halliday completed a report following an examination of the appellant on 8 November 2022. He examined an X‑ray which showed a 'comminuted fracture through the neck of the right fifth metacarpal … with evidence of extensive callous formation suggesting it may be an old injury'. Dr Halliday said that it was probable the appellant suffered an aggravation of a previous fracture to the right fifth metacarpal as a result of the offence. Dr Halliday said that it was reasonably likely the appellant would not require any additional treatment for the right fifth metacarpal fracture. Dr Halliday also said no additional investigations or treatment to the injury to his right hand was likely. No evidence is provided of any such investigations or treatment.
I also take into account the victim impact statement of the appellant although there is authority for the proposition that a victim cannot be expected to provide an objective and impartial account of an event and its consequences in a victim impact statement.[38]
[38] Dimitrovska v The State of Western Australia [2015] WASCA 162; (2015) 253 A Crim R 407 [74] (Dimitrovska).
Despite this the appellant says in the victim impact statement that his injuries are:
(a)A broken right hand and arm.
(b)Lacerations and bruises to his legs, arms, neck and head.
(c)Small haematoma to the left temple.
(d)Exacerbation of a pre‑existing C‑spine injury.
(e)Nerve damage in the right hand.
(f)Greatly worsened anxiety and extreme social anxiety.
(g)Severe PTSD.
I have taken the above contents of the victim impact statement into account, but consistently with the reasoning in Dimitrovska mentioned above, for (f) and (g), I only do so to the extent that they are consistent with the evidence of Dr Borg.

Reports, medical expenses and travel

Compensation for loss includes economic loss, past medical expenses and future medical treatment.[39]
[39] See s 6 and s 12 of the Act.
As noted by the amicus, the appellant seeks compensation, in part, for:
(a)Expenses associated with the preparation of medical reports by:
(i)Dr Halliday in the amount of $3,641 to be paid to Shine Lawyers; and
(ii)Dr Borg in the amount of $2,281.99 to be paid to Shine Lawyers.
(b)Expenses for treatment by St John Ambulance in the amount of $503 to be paid to St John Ambulance.
(c)Travel expenses for:
(i)Travelling between Northbridge and Nedlands on 16 November 2022 to see Dr Halliday, being a distance of 18 km.
(ii)Travelling between Northbridge and Karrinyup on 15 November 2022 to see Dr Borg, being a distance of 30 km.
(d)Expenses likely to be incurred for treatment in the form of individual psychological therapy as contained in the opinion of Dr Borg and focussed on the appellant's trauma‑related symptoms in the amount of $9,744.
In my opinion the claims for compensation based upon each of these expenses is compensable and should be compensated under the Act.

With respect to the travel claim the quantification of the compensation can be made by way of reference to the general amount allowed for travel, per kilometre, by the Australian Taxation Office (ATO). In 2022 ‑ 2023 the rate allowed by the ATO was 78 cents per kilometre. Therefore, the travel expenses claimed for a total of 48 km, entitles the appellant to compensation of $37.44.

Loss of earning capacity

The appellant also seeks compensation for a loss of earning capacity. As specified earlier, s 6(2)(c) of the Act defines loss as including a loss of earnings suffered by the victim. In turn there is authority to establish that loss of earnings includes a loss of earning capacity.[40] As submitted by the amicus in assessing loss of earning capacity it is necessary to identity the capacity that has been lost and the economic consequences that are probably going to follow from the loss. This analysis is necessary to determine, as best as one can, the sum that should be paid to an appellant to put them in the same position as they would have been if the injury, caused by the offence, had not been sustained.[41]
[40] A v D (1994) 11 WAR 481, 489; Re Goodwin [2020] WADC 128 [247].
[41] Kittelty v Davies [2011] WADC 1, and Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 [7].
In undertaking this assessment, what a claimant earned in the past can provide useful guidance about what would have been earned if they had not been injured.[42] However in the particular facts and circumstances of a case, evidence of past events may not always provide cogent guidance about what may happen in the future.[43] Sometimes when a loss of earning capacity is proved, the damages to be assessed are essentially a matter of judgement which cannot be proved by precise figures.[44]
[42] Husher v Husher [8]; Kittelty v Davies [229].
[43] Husher v Husher [8]; Kittelty v Davies [229].
[44] A v D (489).
Where there are particular difficulties in assessing a future loss of earning capacity, for example when a person does not have an established working history, the court may award what is known as global, buffer or cushion compensation in which the court attempts to place a value on the future loss of earning capacity.[45]
[45] Luntz H, Assessment of damages for personal injury and death (5^th ed, 2021) [6.3.4] ‑ [6.3.5] (Luntz).
For example in EB v Ramljak[46] Whitby DCJ awarded an amount of $20,000 for loss of earning capacity when the appellant was 16 years old at the time of the offences and not permanently employed. The appellant had not provided any evidence to support loss of earnings or the loss of earning capacity. However her Honour decided that an award for loss of earning capacity should be made, although that necessarily was imprecise and a matter of impression.[47]
[46] EB v Ramljak [2021] WADC 134.
[47] See EB v Ramljak [53] ‑ [56].
In Luntz there is reference to the reasons of Heyden JA in State of New South Wales v Moss[48] where his Honour said that the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum.[49]
[48] State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 [72].
[49] See also Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96 [44] (Chen).
As set out by the amicus, there is very limited evidence before the court in support of a claim for future loss of earning capacity. There is information that the appellant was employed by the fire brigade at one time but was unable to continue to work in that position due to injuries he received following a serious motorcycle accident at least 10 years ago.
The appellant's submission is his scope of employment has been severely limited due to the injuries he sustained during the offence. The appellant instructed his lawyers that he was updating his qualifications with the help of a social worker to apply for a position with the Department of Fire and Emergency Services and was hoping for employment which would be less physically demanding than the previous position with the fire brigade.
It is submitted by the appellant that the court could find the appellant would have re‑entered the workforce at some stage in the future, in particular once his PTSD and substance abuse was more manageable and therefore there is a loss of earning capacity. To support this contention the appellant cites the opinion of Dr Borg that if he engaged and consistently attended treatment to address his trauma he would be likely to develop skills to allow him to effectively moderate his emotions. Additionally, that with effective treatment the appellant's ability to work and maintain employment was likely to be sound.
The amicus cites the reasoning of Braddock DCJ in MDC v BLR[50] as an example of a decision where compensation was awarded by the court despite little employment history. In that appeal, her Honour decided the appellant had pre‑injury depression, problems with alcohol and possibly other substances and was not working at the time the injury from the offence was sustained. In awarding a global award of compensation, in MDC, Braddock DCJ took into account:
(a)The appellant was not working at the time of the offence.
(b)Prior to the offence the appellant had been seeking work.
(c)With treatment the appellant would eventually be able to work in a full capacity but it was impossible to estimate how long that may take.
(d)The appellant was a 20‑year‑old able‑bodied man who but for the offence would have obtained employment of some kind.
(e)The appellant was completely unable to do so from the time of the offence due to physical injuries and subsequently being handicapped by PTSD.
[50] MDC v BLR [2015] WADC 107 (MDC).
In MDC, the appellant was ordered a global sum of $50,000 including $45,000 for non‑pecuniary losses. In deciding upon this amount of compensation, Braddock DCJ said it was primarily as a result of the appellant being 'handicapped by his post‑traumatic stress disorder'.
As in MDC, EB v Ramljak and Chen in the present case, deciding upon the loss of earning capacity is essentially an intuitive finding dependent upon the relevant facts and circumstances, including the opinions of Dr Borg. I reiterate that, relevantly to this issue I have given the opinions of Dr Borg considerable weight. This is for the reasons set out above.
With respect to loss of earning capacity, I note in particular:
(a)The appellant's age, being 53, having been born on 18 September 1970.
(b)His work history including injuries which have caused him to cease employment in the past.
(c)Pre‑existing mental health and psychological difficulties including alcohol use disorder.
(d)The trauma suffered by the appellant in incidents post‑dating the offence which are likely to have been traumatic to the appellant.
(e)The uncertainty of the nature, extent and earning the appellant may make in the future.
(f)The general uncertainties because of the evidence of the tasks of assessing loss of earnings.
I also take into account, in making my assessment, the usual contingencies that have the potential to affect future loss of earnings, being sickness, accident, unemployment and industrial disputes.[51]
[51] Brocx v Mounsey [2010] WASCA 196 [61]; Tristram‑Howard v Morris Corporation (Aust) Pty Ltd [2023] WADC 60 [334]; Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485, 497.
In my opinion based on all of these considerations and given the evidence cited earlier, a global or buffer amount of compensation to be awarded to the appellant for future loss of earnings is $10,000.

Compensation for injuries

At the hearing I invited counsel to provide, post‑hearing, authorities relevant to assessing the appellant's damages in the present case.
The amicus cited the following decisions: Underwood v Underwood, Bothma v Hildebrand,[52] August v Lynch,[53] Madigan v XYZ,[54] and Blackwell v Warren.[55]
[52] Bothma v Hildebrand [2019] WADC 92.
[53] August v Lynch [2019] WADC 78.
[54] Madigan v XYZ [2022] WADC 123.
[55] Blackwell v Warren[2018] WADC 127.
The appellant cited the following decisions: Re Ates[56] and Swinford.[57]
[56] Re Ates[2022] WADC 108.
[57] Swinford [2021] WADC 82.
I have had regard to each of these decisions and, agree with the amicus, with respect to the decisions cited by him, that whilst they are not analogous to the present case, they provide some information upon the way in which compensation is assessed.
These decisions illustrate that an assessment of compensation for the physical, psychological and psychiatric effects[58] of an offence against a claimant is largely a matter of intuition or impression.
[58] Including mental illness and nervous shock.
Re Ates was an appeal in which the appellant had been the victim of aggravated burglary, robbery and common assault offences. The issues on appeal were whether the appellant was entitled to compensation and if so the quantum. Whitby DCJ decided there was an entitlement to compensation. Her Honour decided the appellant suffered from PTSD and anxiety. Relevantly, with respect to an award of compensation for future loss of earnings, her Honour said:[59]
Mr Ates submits that a global award for loss of earning capacity is appropriate.
While I accept that I may award a global sum for loss of earning capacity where the amount of any loss is speculative and imprecise, I am not satisfied, on the basis of the evidence before me that Mr Ates has suffered any loss of earning capacity. Accepting that Mr Ates may not have been able to see indigenous clients after the commission of the offences,[60] there is no evidence to establish that he could not see other clients instead. In all of the circumstances, I award no amount for loss of earning capacity.
[59] Re Ates [58], [59].
[60] As found by Whitby DCJ, the appellant was a psychologist.
Accordingly, I think her Honour's reasons illustrate the principle that a global award of compensation may be appropriate where the amount of loss is speculative or imprecise.
In Swinford, the appellant filed applications for criminal injuries compensation in relation to two separate assaults. Both were alleged to have occurred whilst Mr Swinford was in the course of his employment with Wilson Security as a transit guard and to have involved another employee of Wilson Security assaulting Mr Swinford.
The issues to be decided on appeal included whether Mr Swinford suffered compensable injury and loss and if so the appropriate compensation. Russell DCJ[61] decided the appellant had suffered injury as a consequence of the commission of the alleged offences. The injuries found to have been suffered were psychological disorders, being an acute adjustment disorder with depressed mood and anxiety and in the past the residual symptoms of major depressive order. Her Honour found that the assaults were not the sole cause of Mr Swinford's injuries 'though they did materially contribute to it'.[62]
[61] Russell DCJ is now a Master of the Supreme Court.
[62] Swinford [95].
Her Honour also decided:[63]
It is not, in my view, possible to disentangle the consequences of that non-compensable event from the consequences of the alleged offences insofar as Mr Swinford's injury itself is concerned. In those circumstances, Mr Swinford is entitled to compensation for the full injury. This is subject to the statutory maximum for multiple unrelated offences as provided in s 34(2) of the CICA. However, even though there were two separate assaults, Mr Swinford cannot be compensated twice for the injuries suffered, being the same psychological injuries as diagnosed …
[63] Swinford [98].
Her Honour made this finding and assessment:[64]
… I find that Mr Swinford has suffered injury in the form of mental and nervous shock as a consequence of the assaults on him … Mr Swinford described the symptoms and effects of his psychological injury … [and these] … include the toll on his career, family, marriage and child, difficulty sleeping, frustration, anxiety, panic and occasional nightmares and flashbacks.[65] ... In my view, the appropriate compensation for the mental and nervous shock Mr Swinford has suffered, his ongoing symptoms and his corresponding loss of enjoyment of life, as described by Dr Laugharne,[66] Mr Ates[67] and Mr Swinford himself, is $35,000.
[64] Swinford [108] - [110].
[65] Her Honour said in a sentence of these paragraphs that has not been reproduced that an award of compensation under the Act could not take account of affects of Mr Swinford's effects on his family.
[66] A psychiatrist.
[67] A psychologist.
Her Honour said that Mr Swinford had claimed a 'global amount of $25,000 in relation to future loss of earnings' but decided the claim was not supported by the evidence.
In my view assistance from the decision in Swinford is relatively limited. The way in which the assessment of the compensation awarded for the injury suffered was not set out in detail; emphasising that the amount awarded is inherently impressionistic. The amount awarded in Swinford does not set any sort of comparable benchmark.
That is the approach that I take to the assessment of the compensation for the injury suffered by the appellant. In my opinion, therefore having regard to the evidence and information outlined earlier as to the nature and extent of the injuries suffered by the appellant and the consequences of the injuries upon him, apart from past and future medical and other compensable expenses and past and future loss of earnings, is $15,000.

Award of compensation

Overall therefore, in my opinion the appropriate award of compensation should be:
(a)$15,000 as compensation for physical injuries and mental and nervous shock.
(b)$10,000 for loss of earning capacity.
(c)$9,744 for future medical treatment.
(d)$6,462.99 for the cost of the reports prepared by Dr Halliday and Dr Borg.
(e)$503 for the expense incurred for St John Ambulance, medical assistance.
(f)Travel expenses of $37.44.
These amounts add up to $41,747.43.
This amount may be awarded in compensation as it is less than the jurisdictional limit for compensation which is $75,000.[68]
[68] Section 33 of the Act; S v Neumann (463); Sweetman v Lilley [10].
This amount is in excess of the amount awarded by the assessor which was $16,965.99 less the amount to be paid to St John Ambulance of $503. Thus the total payable was $16,462.99.
This assessment was according to documents provided by the assessor to the appellant made up of an amount of $10,000 injuries, the same amount as set out above for reports and the $503 to St John Ambulance as a treatment expense.

Orders

As the amount which, in my opinion ought to be awarded to the appellant as compensation, is significantly greater than the amount which had been awarded by the assessor and given the explanation for the late filing of the appeal, referred to earlier, the court exercises its discretion under s 55(4) of the Act to grant the appellant leave to appeal out of time.
Although I will seek submissions from counsel as to the terms of the final orders, they should encompass the following:
1.The appellant be granted an extension of time to file a notice of appeal to 4 July 2023.
2.The appeal is allowed.
3.The assessment of compensation made by the assessor on 25 May 2023 is set aside.
4.In lieu of the amount of compensation awarded by the Assessor, the appellant is awarded compensation in the amount of $41,747.43.
5.The appellant pay the amount of $6,462.99 to Shine Lawyers in repayment of amounts paid by Shine Lawyers for obtaining reports, within 14 days of the appellant's receipt of the compensation awarded.
6.The appellant pay the amount of $503 to St John Ambulance within 14 days of the appellant's receipt of the compensation awarded.
In order to obtain the payment for the expenses for the future treatment of $9,744 that is part of the award of compensation, the appellant will need to comply with s 48 of the Act.

Costs

I make no order as to costs as there is no party who has participated in the proceedings who is an unsuccessful party.[69]
[69] Section 56(2)(d) of the Act.
No costs order should be made against the amicus curiae because the Chief Executive Officer of the Department of Justice is not a party to the appeal, and is not and cannot be an unsuccessful party.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
HM
Associate to Judge Ritter
5 JUNE 2024