Re Burleigh
[2025] WADC 11
•17 MARCH 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE BURLEIGH [2025] WADC 11
CORAM: CORMANN DCJ
HEARD: 4 FEBRUARY 2025
DELIVERED : 17 MARCH 2025
FILE NO/S: APP 58 of 2024
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: DOUGLAS DWAYNE BURLEIGH
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: K L HAFFORD
File Number : CIC 118/2024
Catchwords:
Criminal injuries compensation - Appeal of decision to refuse to award compensation - No award if applicant did not assist investigators - Compensation allowed - No further deduction for pre‑existing injury or medical condition
Legislation:
Criminal Injuries Compensation Act 2003 (WA), s 30, s 38, s 41
Result:
Appeal allowed
Representation:
Counsel:
| Appellant | : | Mr V G Kurup |
| Amicus Curiae | : | Ms T Wilker appeared on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | CLP Legal Pty Ltd |
| Amicus Curiae | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Atieh [2020] WADC 5
Briginshaw v Briginshaw (1938) 60 CLR 336
Johnston v Watts [2024] WADC 62
M v J and J v J (Unreported; WASC, Library No 920598, 19 November 1992)
Martin v Martin [2015] WADC 138
Re Anderson [2022] WADC 97
Re CJR [2023] WADC 111
Re Collard [2018] WADC 1
Re Esmayili [2014] WADC 38
Re Iaria [2018] WADC 22
Re Jackamarra [2014] WADC 9
Re Richards [2022] WADC 100
Re TLJ [2016] WADC 74
Re Warrek [2019] WADC 50
S v Neumann (1995) 14 WAR 452
SW v BB [2010] WADC 86
Underwood v Underwood [2018] WADC 13
CORMANN DCJ:
Introduction and background
This is an appeal from a decision of a criminal injuries compensation assessor made on 8 August 2024, to refuse a claim for compensation brought pursuant to s 17 of the Criminal Injuries Compensation Act 2003 (WA) (Act).
On 12 January 2024, the appellant lodged his claim for compensation for injury and loss alleged to arise from an assault on 14 April 2023 (Claim). At the time of the alleged assault, the appellant was serving a custodial sentence at Albany Regional Prison for aggravated burglary, due for release in October 2023. The Claim was lodged under s 17 of the Act because no person was ever charged with the alleged assault.
By letter of 16 February 2024, the assessor informed the appellant that:
(a)the available material indicated that the appellant had not done any act or thing which he ought reasonably to have done to assist in the identification, apprehension, or prosecution of the person(s) who committed the offence, and
(b)she had accordingly, reached a preliminary view that she must refuse the application pursuant to s 38 of the Act.
By letter of 19 February 2024, representatives for the appellant made submissions in reply to assessor's preliminary view. Then, by letter of 8 August 2024, the assessor wrote to the appellant's representatives indicating that she had considered the submissions provided but remained of the view expressed in the letter of 16 February 2024, and that for the reasons outlined in that letter, she had determined she must refuse the Claim.
Time for appealing
The appeal is brought under s 55(1) of the Act. Section 55(3) requires an appeal to be commenced within 21 days after the date of the decision and in this case, that period expired on 29 August 2024. The appeal notice was filed on 30 August 2024.
At the hearing, I granted leave to the appellant, pursuant to s 55(4), to appeal out of time. Being a delay of only one day, I considered it was just to do so in the circumstances, and in consideration of the relevant principles governing the exercise of the court's discretion as set out in Underwood v Underwood.[1]
[1] Underwood v Underwood [2018] WADC 13 [26] - [27] (Underwood).
Nature of the appeal
An appeal under s 55 of the Act is to be by way of a hearing de novo and the appellant need not demonstrate error on the part of the assessor. Section 56(1) of the Act provides that the court must decide the claim afresh, without being fettered by the assessor's decision, and that it may receive further evidence and information. The entirety of the evidence admitted must be reconsidered independently of the decision of the assessor.
Section 56(2)(a) of the Act provides that on an appeal this court may exercise any power of an assessor under the Act, other than a power under s 19(1)(b), s 24(1) or s 25.
Section 56(2)(b) of the Act provides that this court may confirm, vary, or reverse the assessor's decision, either in whole or in part.
The evidence on appeal
Section 56(1) of the Act permits me to receive further evidence and information not before the assessor. The discretion to admit further evidence on an appeal ought to be exercised without undue restriction particularly given the beneficial purpose of the Act.[2]
[2] Re CJR [2023] WADC 111 [7].
At the hearing, the parties tendered a book of documents being composed of the assessor's papers (Exhibit 1).
The appellant applied to tender an additional book, filed 20 January 2025, containing materials that were not before the assessor. I granted leave to adduce the evidence in the additional book (Exhibit 2) because I was not aware of any reason why it would be unjust to do so, and it seemed to me that those documents were relevant to the matters to be decided on appeal and should form part of my consideration.
The assessor's decision
By letter dated 8 August 2024,[3] the assessor wrote to the appellant's solicitors refusing the Claim, because she had formed the view that the appellant had:
(a)failed to advise prison staff of what had occurred and thereby prevented an internal investigation with potential prosecution;
(b)failed to provide a statement to police, or otherwise assist with the investigation; and
(c)had not done an act or thing which he ought reasonably to have, to assist in the identification, apprehension, or prosecution of the person(s) who had committed the offence.
[3] Exhibit 1, page 2.
Section 38 - No award if applicant did not assist investigators
Section 38 of the Act provides that an assessor must not make a compensation award in favour of a victim if the assessor is of the opinion that the victim did not do any act or thing which he ought reasonably to have, to assist in the identification, apprehension, or prosecution of the person who committed the offence.
Section 38 gives rise to two enquiries:
(a)first, whether the appellant failed to do any act or thing to assist in the identification, apprehension, or prosecution of the relevant offender(s); and
(b)second, whether, if there was such a failure, that failure was reasonable in the circumstances.[4]
[4] Re Iaria [2018] WADC 22 [10] (Davis DCJ) (Re Iaria); Re Collard [2018] WADC 1 [23] (Goetze DCJ).
In a statement signed by the appellant dated 7 September 2023, he made no mention of reporting an assault to prison staff nor of identifying an alleged offender/s at any stage. However, he did state that there were 'guards present' and 'watching'; that officers 'intercepted'; that they took him back to his cell and that they 'locked the Offenders down'.[5]
[5] Exhibit 1, page 9.
In the statement, the appellant also said that:
27… hospital staff asked if I wanted police involved and I said yes. I requested police so I could report the incident. I wanted him charged for breaking my jaw.
28I was constantly under guard and cuffed to the hospital bed.
29I have no idea why the police never came even though I requested them.
In a subsequent statutory declaration dated 17 January 2025,[6] the appellant then stated that:
3After the incident, I spoke with two (2) prison officers and told them who the Offenders were …
4After that, my jaw became so swollen I could barely talk.
5I also wanted officers and medics to focus on my jaw first, so when they did ask who the Offenders were, I told them I wanted them to look at my jaw first before talking properly. Because again, I could barely speak.
6After my surgery, I was spoken to again by prison officers to make an official complaint. I gave [them the] name and mentioned that there were two (2) others.
7The officer speaking with me then confirmed that they were already locked up for the assault.
8I wanted to charge the Offenders through the police, and I requested to the police (sic.) officers to report to WA Police. It was my understanding that the incident was reported to police.
9The police did not come to see me in prison to conduct an interview.
[6] Exhibit 2, page 5.
A Western Australia Police (WAPOL) Incident Report dated 14 April 2023[7] states, among other things, that:
… The victim is a sentenced prisoner at Albany Regional Prison.
He was in the CD area of Unit 2 when he was assaulted by an unknown person, the victim has no recollection of what has occurred.
The victim reported being assaulted to a prison staff member who arranged for medical attention.
The victim was taken to Albany hospital and is being transferred to Perth for further test (sic) for a possible broken jaw.
There were no witnesses to the assault, no person has been nominated as a suspect and there is no (sic.) CCTV cameras in the area.
[7] Exhibit 1, pages 12 - 14.
The WAPOL Incident Report also contains the following entries:
DATE
TIME
TYPE
TITLE
14-APR-2023
14:41
Info/Referral
BURLEIGH … Has been taken to hospital
[Incident Report] details obtained from prison officer. Victim currently in hospital and not spoken to.
17-APR-2023
15:17
Enquiry
Action No: 1. Victim Contact
Not required. DOJ investigation.
17-APR-2023
15:18
Enquiry
Action No: 2. Supervisor Review
Matter not proceeded with by WA Police. As per MOU, matter to be investigated by DOJ. Minor offence.
17-APR-2023
15:18
Enquiry
Action No: 3. Arrest Attempt
Not required – DOJ investigating.
Albany Regional Prison document 'Incident Report Minutes', unsigned and noted as received on 14 April 2023[8] states, among other things:
[8] Exhibit 1, page 15.
…
Comments:
1.
Prisoner Burleigh would not be forthright with who he had a fight with.
2.
Security called to view footage, movement of prisoners seen on D landing but no fight witnessed.
3.
Burleigh taken to the medical centre and later escorted to AHC.
From a review of each of the documents referred to above in [16] – [21], it is not exactly clear what might have happened in the immediate aftermath of the incident and seems to be what the appellant did or did not say to prison officers about it. What seems to be clear however, is that prison officers were aware of an incident and that it was contemporaneously reported by them to WAPOL as an alleged assault.
It is also not clear whether the appellant identified an alleged offender, or offenders, to prison officers, shortly after the alleged assault or at all, or whether he was otherwise 'not forthright' with officers about who might have been involved. However, I consider that any failure by the appellant at that point was reasonable in the circumstances of the appellant. He had just sustained physical injury, at a time when he was incarcerated with the alleged offender/s, and which injury required transfer by Royal Flying Doctor Service (RFDS) from Albany Hospital, ultimately for surgery, at Fiona Stanley Hospital at Perth.
It is reasonable to accept that the appellant was focused on obtaining medical care and attention for the injury sustained. In any event, the appellant's statement suggests that, at least to his understanding, guards were present in the vicinity of the incident and observed what had occurred. The appellant was incarcerated at the time and under state supervision, rather than in the community at large.
There is otherwise no evidence of any further enquiry or investigation by the department, nor any police attendance or investigation, into the alleged assault after that time. It is reasonable, in my view, to accept that the appellant might expect that, having sustained injury while incarcerated and under the care and supervision of the department, by an offender who was also incarcerated and under the care and supervision of the department, guards were aware of the incident and action was taken.
There is no evidence that WAPOL attended the appellant at any time either while he was under admission in hospital or after his return to the prison to make any enquiry or give the appellant an opportunity to either formally identify an alleged offender and/or to give any statement about the incident. I am not prepared to find that an absence of any documented request in the medical records for police attendance supports a conclusion that such request was not made.
It is also apparent that the appellant, an incarcerated prisoner until at or at least 12 October 2023,[9] did not have direct access to WAPOL and relied on prison officers to impart any report of an assault, a report which was, in fact, made.
[9] Exhibit 1, page 8.
The purpose of s 38 of the Act is to ensure that the authorities are not prevented from investigating the factual circumstances of an alleged offence,[10] which in turn is a means to ensure that compensation claims are genuine and that offenders are brought to justice. On the evidence before me, I am not satisfied that the appellant did anything to prevent the authorities from investigating the factual circumstances of the alleged offence of which they were on notice.
[10] Re Iaria [11].
Finally, there is no evidence to suggest that the 'actions' or 'updates' as recorded in the WAPOL Incident Report referred to above in [19] and [20], were because of any refusal or failure by the appellant to take a particular step. In any event, the entries suggest that some investigation was being conducted by the department, but, overall, the evidence does not support any conclusion that a departmental investigation into the alleged assault was impeded by the appellant.
As identified at the hearing by amicus, it may be suggested that after his release, the appellant should have reported the alleged assault to WAPOL himself. Counsel submitted that the appellant would have been aware that the police had not come to see him; that action was not taken any further, and that it was open to him to report the matter to police upon his release.
However, it is apparent that the appellant understood the assault had been reported to WAPOL at the time of the incident, as was fact, and he had been informed that the offenders had been 'locked up' already. In those circumstances, I consider any failure some months after the assault to seek out WAPOL himself (if it can properly be considered a failure for the purposes of s 38), would, in my view, also have been reasonable.
Ultimately, I find as a result that s 38 has no application in this case and it does not operate against a compensation award in favour of the appellant. The application therefore falls to be determined according to the usual statutory provisions and established principles.
The legislative provisions and general principles
Injury by reason of commission of alleged offence
Section 17(2) of the Act provides that a person who suffers injury by reason of the commission of an alleged offence may apply for compensation for the injury and any loss suffered.
Section 3 of the Act defines 'alleged offence' to mean a crime, misdemeanour, or simple offence, of which no person has been convicted. The court must feel an actual persuasion that the offence occurred, and such a conclusion should not be reached without the exercise of caution and unless the evidence survives scrutiny and appears precise and not loose and inexact.[11]
Injury
[11] Briginshaw v Briginshaw (1938) 60 CLR 336, 368 - 369.
Relevantly, s 3 of the Act defines 'injury' to mean bodily harm, mental and nervous shock.
The phrase 'mental or nervous' shock has been established to:
(a)comprehend any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence, or associated with the commission of the offence, as those events impact on the mind or nervous system;
(b)include distress, horror, disgust, and other similar adverse mental reactions, but to exclude mere fright, humiliation, or anguish; and
(c)ultimately, be more than a mere emotional reaction, and something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury.[12]
As a consequence of
[12] S v Neumann (1995) 14 WAR 452, 461; M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992), 10 - 11 (Scott J); Martin v Martin [2015] WADC 138 [85].
Section 17(4)(a) of the Act provides that an award should not be made unless the court is satisfied that the injury and any loss claimed has occurred and did so as a consequence of the commission of the alleged offence.[13]
[13] Section 17(4)(a) of the Act; Atieh [2020] WADC 5 [2] (Vernon DCJ).
'As a consequence of' requires a causal relationship or connection. Whether that causal relationship exists is a question of fact, to be resolved as a matter of commonsense. It is sufficient that, as a matter of ordinary commonsense and experience, the offence should be regarded as having materially contributed to the injury.[14]
[14] Re Richards [2022] WADC 100 [55].
Section 18(2) of the Act provides that the court is not bound by the rules of practice as to evidence or procedure and may inform itself in any manner it sees fit.
The appellant must satisfy the court on the balance of probabilities that a specific act was committed against him which would qualify as a crime, misdemeanour, or simple offence if the perpetrator had been convicted of it.[15] The appellant must prove his claim for compensation on the balance of probabilities: it must be more probable than not that the alleged offending occurred.[16]
[15] Re Anderson [2022] WADC 97 [40] (Collins C), citing Re Jackamarra [2014] WADC 9 [13] (Schoombee DCJ).
[16] Re TLJ [2016] WADC 74 [51] (Goetze DCJ).
Finally, the appellant must also satisfy the court that he has negated the existence of any defences reasonably open.[17]
Assessing compensation
[17] Section 17(5) of the Act; Re Warrek [2019] WADC 50 [3] (Troy DCJ).
Section 31(1) of the Act provides that the maximum award of compensation available is $75,000.00.
The court must apply the ordinary tortious principles for assessment of damages when assessing the amount of compensation under the Act, while operating in the jurisdictional limit and within the scope of the definitions of 'injury' and 'loss'.[18]
[18] Re Warrek [29].
When assessing the amount of compensation, I must have regard only to any injury sustained by reason of the commission of the alleged offence. The amount awarded is only a reflection of the injury sustained and not a reflection of sympathy to the appellant or a representation of the alleged offender's culpability.
Was the appellant the victim of an alleged offence?
In his Claim, the appellant described the incident as a physical assault that occurred on 14 April 2023. He states that the alleged offenders looked like they were walking around looking for trouble, and that he was subsequently told that one of them had come 'from behind and took 2 steps in as he threw a hook from behind and smashed me straight in the jaw … two of my teeth were knocked out'.
The incident was reported to WAPOL and recorded as a report received by telephone from Albany Regional Prison at 2.30 pm on 14 April 2023. The document recorded the incident as an assault by an unknown person, with the victim having no recollection of what happened.[19]
[19] Exhibit 1, page 12.
An offence was recorded by WAPOL as 'Assault Occasioning Bodily Harm; Criminal Code; S.317'.
The St John Ambulance 'Patient Care Record' and the relevant medical records also all record that the appellant was allegedly the subject of an assault.[20]
[20] Exhibit 1, pages 69, 72, 73, 79, 99, 103.
Ultimately, the appellant's statement, incident reports and medical reports all refer to the appellant as having been assaulted. Further, the appellant stated that the attack was unprovoked and there is no evidence to the contrary to infer that any of the alleged offenders had a defence. Prison records refer to the appellant being in a fight, but this was 'not able to be confirmed'.
I am satisfied the appellant was the victim of an alleged offence.
Did the appellant sustain injury?
The appellant claims that he sustained both physical and psychological injuries.
Physical injury
According to the Hospital Discharge Summary dated 20 April 2023,[21] CT scanning demonstrated that the appellant sustained mandibular fractures, namely displaced right angle and left parasymphyseal fractures. It took several days for 'theatre space' to become available, and the appellant then underwent surgery by way of an open reduction and fixation procedure. He also underwent extraction of two teeth. The appellant was discharged without complications one day post‑operatively, with good occlusion noted. Post‑operative instructions included a pureed diet for six weeks, antibiotic treatment for one week, and a Chlorhex mouthwash for two weeks, with a review recommended within 1 ‑ 2 weeks of discharge.
[21] Exhibit 1, pages 69 - 71.
At a subsequent review approximately six weeks post‑surgery, the attending practitioner recorded that the appellant was still in the process of recovery and on examination noted: 'limited jaw opening'.[22] Medical records otherwise demonstrate that Celebrex (an anti‑inflammatory) was prescribed on various dates for the appellant, with the last being 19 June 2023.
[22] Exhibit 1, page 48.
During a nursing review on 17 July 2023, it was noted that the appellant needed more 'Ensures' (a nutritional supplement in liquid form) and pain relief because 'his jaw still hurt'. However, it was also recorded that the appellant had been observed by prison officers to have been selling his Ensures and eating a normal diet.[23] A report noting the appellant had been observed to be selling his Ensures and eating all meals without any issues appears to have first been noted on 4 July 2023.[24] His prescription for Ensures was therefore ceased from 17 July 2023.
[23] Exhibit 1, pages 46 - 47.
[24] Exhibit 1, page 47.
The appellant claims that he suffers 'sensitivity of teeth' due to nerve damage. There is no independent or objective record of any nerve damage and no record of such injury having been sustained or experienced. There is otherwise no objective evidence of any ongoing physical injury or residual symptoms, and I do not consider the evidence establishes any physical injury is permanent or ongoing.
Psychological injury
The appellant was reviewed by clinical psychologist Mr Jason Haddad, on 25 October 2024. Mr Haddad produced a report of the same date.[25]
[25] Exhibit 2, pages 6 - 14.
The report notes that the appellant reported a pre‑existing history of depression and that he had been prescribed Escitalopram while incarcerated, that is, prior to and unrelated to the assault. It also noted that the appellant reported having some childhood trauma, and that he had struggled with addictions to methamphetamines and cannabis. The appellant reported also that he thought he may have schizophrenia.
Based on the subjective testing performed, Mr Haddad noted the appellant continued to suffer from 'mild level depressive symptomology', 'severe level anxious symptomology', and symptomology associated with 'post‑traumatic stress disorder'. He concluded that the appellant suffered a generalised anxiety disorder which he opined was triggered and maintained by the assault. Ultimately, Mr Haddad considered the appellant's prognosis to be good, and that if the appellant engaged in the therapeutic services recommended, he could overcome his psychological injuries. I consider that, in light of that prognosis and the recommendations, it is not reasonable to assess psychological injury on a permanent or long‑lasting basis.
I find otherwise that the injuries described above as having been sustained, were suffered, in part, as a consequence of the commission of the alleged offence, and are independently corroborated by the available medical evidence.
What loss arises by reason of the injuries?
The appellant's claim is for non‑pecuniary loss, future medical expenses, and the psychological report expense.[26]
Non-pecuniary loss
[26] Appellant's Submissions filed 22 January 2025, page 9; ts 29.
The appellant contended that he sustained 'severe physical and psychological injuries'.[27]
[27] Appellant's Submissions, page 9.
I do not accept that the evidence before me establishes injury or loss that can be properly categorised as 'severe'.
To the contrary, the objective medical evidence demonstrates that the appellant suffered a broken jaw requiring surgical treatment with good post‑operative recovery in line with anticipated timeframes. There is no objective evidence to support a conclusion that there is any ongoing or residual injury or disability, with there being no further independent reports of pain nor associated prescriptions or documented management required for pain, since July 2023.
As regards psychological injury, and, taking the assessment of Mr Haddad at face value, I accept that the appellant suffers anxiety, which was pre‑existing, but which was 'triggered and continued' by the assault. No diagnosis of post‑traumatic stress disorder was made.
I accept the appellant suffers some ongoing psychological symptomatology which arises, in part, by reason of the assault. I otherwise note that he has a positive prognosis, with the expectation that he can overcome his symptomology if he engages in the recommended therapeutic services. I have therefore assessed the loss sustained by the appellant at the lower end, in the case of both the physical and the psychological injuries.
While it is permissible for the court to look at awards of criminal injuries compensation in other appeals to determine what is reasonable, due regard must be given to the unique circumstances of each case.[28] By way of an example, the appellant's counsel submitted at the hearing that the appellant 'relied on' Re Esmayili,[29] because the physical injury sustained was also a broken jaw requiring surgery.
[28] Johnston v Watts [2024] WADC 62 [78].
[29] Re Esmayili [2014] WADC 38.
However, I do not consider the injury and loss assessed in that case is comparative to the appellant's claim in this case, including because of the finding in Re Esmayili of ongoing physical consequences and, critically, ongoing pain in the jaw from nerve damage.[30] The appellant in the present case, despite a purported claim of nerve damage, has no recorded or objective evidence of any nerve damage nor associated pain, and no objective evidence to support any suggestion of ongoing pain nor physical disability from a physical perspective.
[30] Re Esmayili [35].
Further, in my view, it is clear that the award in Re Esmayili was tailored at a particular level by reason of the extent of psychological injury found, rather than any physical injury. In particular, the learned judge noted that his psychological injuries were 'totally disabling'.[31] That is not comparable to the present case at all.
[31] Re Esmayili [44].
Ultimately, in the present case, I have considered all available evidence, and, noting the post‑operative physical recovery and positive psychological prognosis, for the purposes of the assessment, I allow $10,500.00 in non‑pecuniary loss.
Future medical expenses
The appellant claims future medical expenses in the sum of $2,706.10, based on the recommendations of Mr Haddad.
I allow the amount claimed, being in essence to cover the therapeutic services set out in Mr Haddad's report. The payment of this amount is subject to the regime in s 48 of the Act.
Cost of psychological report
The appellant claims reimbursement of the cost of Mr Haddad's report in the sum of $1,870.00, based on the invoice produced and dated 14 November 2024.[32]
[32] Exhibit 2, page 15.
I allow the amount claimed.
Section 41 - deductions
In determining the amount of an award, s 41 of the Act requires the court to have regard to any behaviour, condition, attitude, or disposition of the applicant which contributed, directly or indirectly, to the injury or loss suffered by him and may reduce the amount which would otherwise be awarded by such a percentage as is thought just.
As regards any pre‑existing injuries or medical conditions of an applicant, there remain two lines of authority in this court as to whether s 41 applies:
(a)the first is that s 41 was not intended to deal with pre‑existing injuries and medical conditions. Rather, it is concerned with the factors which contributed to the offence and not the consequent injury or loss suffered. To the extent that there are pre‑existing injuries and medical conditions, these are dealt with by applying ordinary tortious principles;[33] and
(b)the second line of authority is that pre‑existing injuries and medical conditions which have contributed to, or exacerbated, the applicant's injury must be taken into account in accordance with s 41 of the Act.[34]
[33] Underwood v Underwood [127] (Gething DCJ).
[34] Underwood [128].
In my view, the first line of authority is preferred. I note the review of the legislative history of s 41 by Schoombee DCJ in SW v BB.[35] I also note the learned judge's analysis as to the authorities on causation and the available framework established to deal with a situation arising when injuries might have multiple causes including a pre‑existing history or medical condition. Pursuant to s 30 of the Act, the award of compensation is to be 'such compensation that the assessor is satisfied is just for the injury'. I agree with Gething DCJ's (as he then was) reasoning and analysis in Underwood[36] in that context, where he says: 'it would not be just to award compensation for injuries which were an identifiable exacerbation of a pre-existing injury'. Such concept is squarely in line with the applicable common law doctrines including of ordinary tortious principles in an assessment of damages.
[35] SW v BB [2010] WADC 86 [103].
[36] Underwood [130].
Further, as did the learned judge in Underwood, in properly applying those principles and before considering s 41 of the Act, I assessed an award of compensation which I consider to be just, having already taken account of the appellant's history.
In my view, s 41 of the Act can be considered as operating in a similar way to a reduction in a negligence claim of a claimant's assessed damages by reason of contributory negligence. Section 41 is concerned with factors which contributed to the offence, and that might include the unlawful or negligent conduct of an applicant. It is not concerned with the consequent injury or loss suffered, in the same way that contributory negligence is concerned with the conduct of a plaintiff rather than the injury sustained, which then enlivens an appropriate deduction to the damages already assessed.
In any event, if I am wrong about the proper construction of s 41, the decision to reduce or refuse an award pursuant to this provision is discretionary. While it may be open to the court at this point to look again to the appellant's psychological history and history of trauma and anxiety, in this case, I would not now exercise my discretion to reduce the award. That is because of the principles I already applied in assessing non‑pecuniary loss, and where, in my assessment, I have already accounted for the appellant's historical condition.
Conclusion
For the reasons given, the orders of the court will be to allow the appeal and to set aside the decision of the assessor. Further, compensation is ordered in favour of the appellant in the total sum of $15,076.10, noting that the sum of $2,706.10 within that figure is the subject of the provisions in s 48 of the Act.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
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