Re Butler
[2020] WADC 22
•21 FEBRUARY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE BUTLER [2020] WADC 22
CORAM: WALLACE DCJ
HEARD: 29 JANUARY 2020
DELIVERED : 21 FEBRUARY 2020
FILE NO/S: APP 72 of 2019
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: KENDRIE LESLEY BUTLER
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: K HAFFORD
File Number : CIC 3455 of 2017
Catchwords:
Criminal injuries compensation - Appeal from assessor's decision - Refusal of compensation - Application of s 38 of the Criminal Injuries Compensation Act 2003 (WA) - Withdrawal of complaint to police - Whether there was a failure to do any act or thing - Whether failure reasonable in the circumstances - Assessment of compensation
Legislation:
Criminal Code Act Compilation Act 1913 (WA)
Criminal Injuries Compensation Act 2003 (WA)
Result:
Appeal successful
Representation:
Counsel:
| Appellant | : | Ms L D Coci |
| Amicus Curiae | : | Ms E Negus on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Clayton Utz |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
AJC v Lewis (2003) 35 SR (WA) 94
Asjes v Assessor of Criminal Injuries Compensation (Unreported; WADC, Library No 4169, 3 September 1994)
B v W (1989) 6 SR (WA) 79
BAS v The Estate of NAS [2000] WASCA 270
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Briginshaw v Briginshaw (1938) 60 CLR 336
Butler [2019] WACIC 22
CKM [2008] WADC 79
De Florenca v Hayden [2007] WADC 54
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
GPW [2005] WADC 48
Hatfield v Undersecretary for Law (Unreported WASC, Library No 4012; 15 December 1980)
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hinchcliffe v Hinchcliffe [2010] WADC 78
Liyanage v The State of Western Australia [2017] WASCA 112
Lloyd v Small (1996) 16 SR (WA) 111
M v J and J v J (Unreported, WASC, Library No 920598; 19 November 1992)
Martin v Martin [2015] WADC 138
Michael v Panetta (1994) 10 SR (WA) 323
MJN v MAJS (2003) 35 SR (WA) 219
Nominal Defendant v Owens (1978) 22 ALR 128
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Purkess v Crittenden (1965) 114 CLR 164
R v Forsythe [1972] 2 NSWLR 951
Re ATS [2017] WADC 92
Re CME [2018] WADC 69
Re Collard [2018] WADC 1
Re Iaria [2018] WADC 22
Re Sullivan [2017] WADC 17
Re Willington [2005] WADC 30
S v Neumann (1995) 14 WAR 452
TAW v NJS [2011] WADC 187
The State of Western Australia v Carlino [No 2] [2014] WASC 404
Wall v Chief Executive Officer [2000] WADC 320
WALLACE DCJ:
Introduction
This is an appeal against the decision of the Criminal Injuries Assessor (Assessor) made on 29 August 2019 whereby the learned Assessor refused to make an award of compensation under the Criminal Injuries Compensation Act 2003 (WA) (CIC Act) in favour of Ms Butler, the appellant, for injuries she sustained as a result of an alleged criminal offence committed by her ex‑partner, NC, on 19 December 2014.
The alleged offence involved NC, without provocation and without warning, striking the appellant's face inflicting a cut to her top lip and then punching the appellant several times in her left eye causing her to fall to the ground where he continued punching her to the left cheek whilst pinning her to the ground.
NC, when interviewed by police, denied that he had punched the appellant but admitted that he had physically removed her from his premises and may have inadvertently struck her to the face whilst doing so.
Although the appellant initially reported the incident to police, she subsequently withdrew her complaint and NC was never charged or prosecuted in respect of the alleged offence.
The appellant claims numerous physical injuries arising from the alleged offence, including a fractured orbital floor of the left eye socket requiring the insertion of a titanium plate and involving three reconstructive surgeries during 2014 and 2015, damage to her nasal passage, nerve damage to her face, scars and disfigurement of her face and also psychological harm.
The learned Assessor made a finding of fact, having duly considered all of the information which had been made available to her, that the appellant did not do all that she could have reasonably done to assist the police to comprehensively investigate the alleged offence and ultimately to make a decision whether to prosecute. The Assessor held that because of this finding of fact she was prevented, due to the operation of s 38 of the CIC Act, from making a compensation award in favour of the appellant.
In the court's opinion, for the reasons which follow, the appeal must be allowed and a compensation award made in favour of the appellant.
The nature of the appeal
The appeal to this court is made pursuant to s 55(1) of the CIC Act and is a hearing de novo in that the appellant's application is being determined 'afresh' without being fettered by the decision at first instance; s 56 of the CIC Act. The court must therefore consider the evidence and material which was considered by the Assessor but also has a general discretion to receive and admit further evidence and information which was not made available to the Assessor: s 56(1) of the CIC Act.
The court has the power to confirm, vary, or reverse the Assessor's decision either in whole or in part and make any order that an assessor could make under the CIC Act: s 56(2) of the CIC Act.
In addition to the information that was before the Assessor, the appellant seeks to rely on the following:
(a)a letter from Clayton Utz to Criminal Injuries Compensation (incorrectly dated 18 April 2018 but emailed on 18 April 2019) enclosing further medical evidence in support of the appellant's application;
(b)a letter from Clayton Utz to Criminal Injuries Compensation dated 15 August 2018;
(c)the appellant's affidavit affirmed 13 January 2020 and filed on 14 January 2020 with the court;
(d)a screenshot of an email the appellant sent to herself on 20 December 2014 capturing a text message which she believes was sent by WC, NC's daughter, after the alleged offence; and
(e)the affidavit of Ms Jessica Morath, the appellant's solicitor, affirmed 13 January 2020 and filed with the court on 14 January 2020 annexing various documents including a psychologist's report written by Ms Diane Rickman dated 12 August 2019.
The court exercised its discretion to receive and admit into evidence the additional material given its clear relevance to the issues to be determined and also being satisfied that it would not be unjust to do so.[1]
[1] Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 - 30 (Malcolm CJ).
At the commencement of the appeal hearing the court also granted the appellant leave to amend her application for compensation pursuant to s 19(1)(a) and s 57(2)(a) of the CIC Act. The amendments sought by the appellant were to include par 31 (report expenses) and par 32 (future treatment expenses), being:
(a)$1,500 for the psychologist's report of Ms Rickman; and
(b)$9,500 for the appellant's future treatment costs.
The court was assisted by both counsel for the appellant and counsel for amicus curiae through their written submissions dated 24 January 2020 and by their oral submissions on the day of the hearing.
The court did not receive oral evidence from the appellant, which is not an unusual position given the nature of the jurisdiction and the requirement for compensation applications to be dealt with expeditiously and relatively informally having regard to the requirements of justice and to the provisions of the CIC Act: s 18(1) of the CIC Act.
Application for criminal injuries compensation
By application dated 18 December 2017 the appellant applied for criminal injuries compensation (Application). The Application was made within the requisite three year period after the date on which the alleged offence was committed: s 9(1)(a) of the CIC Act.
The Application was made pursuant to s 17(1) of the CIC Act on the basis that no person had been charged with the alleged offence.
The appellant claimed compensation for her injuries and also for loss of past and future earning capacity. As already mentioned, the court also gave leave for the appellant to claim report expenses and future treatment expenses.
Together with the Application the appellant lodged a signed statement dated 24 April 2018 and an unsigned statement dated 17 May 2019. In addition, this court had the benefit of an affidavit affirmed by the appellant on 13 January 2020. Read together those three documents set out a comprehensive description of the alleged offence, the injuries sustained, the actions taken by the appellant both at the time and subsequently, and also the appellant's current circumstances. That information is relayed in summation form below.
The appellant was in an on/off relationship with NC from around August 2013 until early November 2014.
The appellant experienced a number of prior incidents of violence at the hands of NC during the period of March – April 2014.[2] The appellant recounts one occasion of NC smacking her in the face with his open palm before punching the fridge. Although the appellant attended the hospital following the incident, she reported to hospital staff that she had been hit in the head by a basketball.
[2] Appellant's affidavit of 13 January 2020, pars 34 - 37.
On other occasions NC hurled objects at the appellant causing her bruising and also on one occasion unexpectedly head‑butted the appellant.
The appellant also stated that NC disclosed to her violence he had inflicted on partners in past relationships.[3]
[3] Appellant's affidavit, pars 21 ‑ 25.
On the evening in question, 19 December 2014, the appellant visited the caravan where NC was residing for the purpose of discussing with him his belongings which remained at the appellant's home.[4]
[4] Appellant's statement dated 24 April 2018, page 1.
Upon reaching the caravan the appellant called out NC's name. When he did not answer she returned to her vehicle and wrote him a note with the intention of leaving the note at the caravan. The appellant approached the caravan with the note and pulled back a sheet which was covering the opening of the doorway, when she saw NC standing in the opening.[5]
[5] Appellant's statement dated 24 April 2018, page 1.
NC looked enraged which caused the appellant to step backwards away from him. The appellant informed NC that she wished to talk to him but that they could talk another time. NC then lunged towards the appellant and punched her once on her mouth splitting her lip and breaking her tooth and cutting the inside of her mouth. She stumbled backwards holding her mouth in shock whilst NC punched her again, this time more forcefully in her left eye. The impact of the second punch sent the appellant flying backwards and she landed on her back approximately two metres away in a garden bed.[6]
[6] Appellant's statement dated 24 April 2018, page 1.
NC was then immediately on top of the appellant and punched her a third time in her face saying the words 'you know I'm not gonna stop, don't you?'[7]
[7] Appellant's statement dated 24 April 2018, page 1.
The appellant describes her fear in this moment as follows:[8]
It was at that point that I felt he was going to keep punching me until I was dead. I don't remember it hurting at all. I just remember being so scared, so terrified. It was a fear so intense I have never felt it before. I was petrified. He punched me again and I begged him to stop. I don't know how many times he punched me in total but I pleaded with him over and over 'please don't do this to Caitlin, please don't do this to Caitlin'. (Caitlin is my daughter). [NC] eventually stopped and said 'go'!
[8] The appellant's signed statement of 24 April 2018.
Immediately following the alleged assault the appellant was shaking and crying and drove to her brother's home which was close by to where the incident took place. Her brother called the police and reported the alleged offence. The appellant was then transported to the Rockingham Kwinana District Hospital (the Hospital).[9]
[9] Appellant's statement dated 24 April 2018, page 1.
The appellant spoke to the police at the Hospital later that same evening. Whilst in attendance the police took a number of photographs of the appellant's injuries.[10] The appellant did not provide a formal statement to the police due to her general state of shock and also because she was uncertain whether to press charges because she was fearful of NC.[11]
[10] Matter Book, Pages 94 - 97.
[11] Appellant's statement dated 24 April 2018, page 1.
During the appellant's hospital admission it was identified by medical staff that the appellant had a fracture in her left orbital floor, fracture in the medial wall of her left maxillary sinus, opacification in her left maxillar sinus due to the presence of blood and also soft tissue swelling in the left side of her face.[12]
[12] Matter Book, page 10.
The police telephoned the appellant the following day, 20 December 2014, but the appellant informed them that she was still unsure whether she wished to make a complaint and that she was on very strong painkillers and was exhausted.[13]
[13] Matter Book, page 92; police incident report dated 20 December 2014.
The appellant underwent surgery at Fremantle Hospital on 22 December 2014 to repair the fractured orbital floor of her left eye socket and due to nasal passage damage. The appellant required the insertion of a titanium plate to replace the left orbital floor of her eye socket. Following this initial surgery the appellant's left eye stopped functioning properly, thus necessitating further reconstructive surgery to replace the titanium implant on 24 December 2014.[14]
[14] Matter Book, page 18 and Appellant's statement dated 24 April 2018, page 2.
The appellant recounts that despite the second reconstructive surgery, she still did not have proper functioning in her left eye. She was therefore unable to drive a motor vehicle and needed assistance to undertake most tasks because of her impaired vision. The appellant estimated that it took approximately four months before her single vision returned to her and even then, the vision in her left eye was restricted to straight ahead and to the right. She remains with double vision in her left peripheral vision.[15]
[15] Appellant's statement dated 24 April 2018, page 2.
In the midst of undergoing the surgeries to her left eye socket, the appellant received a text message which she believed was sent by WC, NC's daughter, which stated 'I will get you'.[16]
[16] Appellant's affidavit of 13 January 2020, par 7 and Annexure KLB.
The appellant also visited NC's cousin, PC, and his girlfriend, with whom she was close friends, shortly following the alleged assault. The appellant recalls that during this visit PC said words to her to the effect that '[NC] will destroy you if you take out a VRO or go to the police about the assault. You know a VRO won't stop him coming anyway'. The appellant agreed with PC, that a VRO would not protect her from NC and would in fact likely provoke further violence from him.[17]
[17] Appellant's affidavit of 13 January 2020, par 8.
Nevertheless, on 24 December 2014 the appellant informed the police that she did wish to provide a statement and proceed with her complaint against NC.[18] An appointment was made for 27 December 2014 for the appellant to meet with police and provide her statement. However, the police incident report noted that when they attended 'Kendrie was still distressed about the assault, became tearful and stated she was not ready to provide a statement'.[19]
[18] Matter Book, page 91; Police Incident Report dated 24 December 2014.
[19] Matter Book, page 91; Police Incident Report dated 27 December 2014.
On 29 December 2014 the police called the appellant and noted that the appellant 'was not able to attend Rockingham Police Station to provide a statement, she admitted she is putting it off, but does wish to proceed'.[20]
[20] Matter Book, page 91; Police Incident Report dated 29 December 2014.
Unfortunately, later on 29 December 2014, an intervening event occurred and the appellant was the victim of a second alleged assault committed by a different offender. This incident involved another ex‑partner of the appellant who allegedly verbally abused and intimidated her and head-butted the appellant on the side of her head.[21]
[21] Matter Book, page 72; Police Incident Report dated 29 December 2014.
The appellant was admitted to Fremantle Hospital following the second alleged assault with the medical findings being that the appellant did not sustain a brain injury, that there was a presence of post-traumatic fluid within the left maxillary sinus but that no further damage had been sustained to the previous injuries suffered by the appellant.[22]
[22] Matter Book, page 13; Fremantle Hospital Patient Results dated 30 December 2014.
On 31 December 2014 Ms Wilson from the Rockingham Family & Domestic Violence Response Team contacted the appellant to offer support. Ms Wilson then sent an email to police which records:[23]
Kendrie was open to discuss her DV history with both partners that she has recently been in a relationship with.
Kendrie was offered assistance with seeking alternative accommodation but she declined this and would prefer to stay in her own home.
CRS discussed VRO and safety planning at length but Kendrie is not sure if she is wanting to apply for a VRO at this stage or make a statement about previous DVIR 191214213014287. Emergency contact numbers were provided and consent was gained for a Safe at Home follow up call.
[23] Matter Book, page 72; Police Incident Report dated 31 December 2014.
On 13 January 2015 the police called the appellant again but noted that she was still unsure whether she wished to proceed and provide a statement. The appellant informed the police that she had made an appointment with a counsellor and would decide what to do following advice from the counsellor.[24]
[24] Matter Book, page 69; Police Incident Report dated 13 January 2015.
In respect of the counselling the appellant received during this period of time she stated:[25]
I have been the victim of two violent assaults by two ex-partners within 10 days. I had suffered injuries and required extensive medical treatment and was living in genuine fear of repercussions from [NC] and [WC] if I provided a statement to the police. I was so distressed and mentally vulnerable that I sought the assistance of a counsellor to help me. I attended one session but felt like the counselling made things worse as I cried the entire session.
[25] Appellant's affidavit of 13 January 2020, par 16.
In mid-January 2015 the police were still attempting to contact the appellant to obtain her statement. The appellant remained uncertain as to whether she wished to proceed.[26]
[26] Matter Book, page 69; Police Incident Report dated 17 January 2015.
On 18 January 2015 the police contacted the Victim Support Unit seeking that further support be offered to the appellant:[27]
Good afternoon Emily.
I was advised to contact yourself in relation to a DV assault.
The issue relates to the victim providing a statement. She is reluctant to provide one due to repercussions from the POI and his family.
I gave advice, re VRO's but she stated this would not prevent them.
If possible could you contact her and see if you can give her any further advice and assistance.
Any help appreciated.
Thanks, John
[27] Matter Book, page 69; Police Incident Report dated 18 January 2015.
On 25 January 2015 the police attended the appellant's home at which time she informed them that she did not wish to proceed with a complaint or provide a statement in relation to the alleged assault.[28] The appellant therefore signed a withdrawal of complaint form.
[28] Matter Book, page 68; Police Incident Report dated 25 January 2015.
The withdrawal of complaint stated:[29]
I no longer wish to proceed with this matter, nor do I want any further Police action to be taken in respect of this matter.
Offence: assault occasioning bodily harm
My reason being: nil given
My decision to withdraw this complaint was made of my own free will.
[29] Matter Book, page 93; Withdrawal of Complaint form dated 25 January 2015.
The appellant stated that she was informed by police that the charge did not have a time limitation period and that she could contact the police again in the future if she wished to pursue the charge against NC.[30]
[30] Appellant's affidavit of 13 January 2020, par 17.
Following the withdrawal of the complaint, the police continued to proceed with the investigation and on 3 February 2015 conducted an interview with NC. The summary of the interview noted:[31]
[NC] confirmed he was at his home address and the victim attended to speak with him. He stated she would not leave and attempted to enter his property. He stated he pushed her back to prevent her from entering, using his forearms, but in no way punched the victim as alleged. This caused the victim to fall over, she then left the scene. He stated he was unaware of how or when the injury occurred.
Nil admissions made in relation to assaulting the victim.
[31] Matter Book, page 89; Police Incident Report dated 3 February 2015.
Following the interview with NC the investigation was closed as the police formed the view that there was insufficient evidence on which to proceed. This view was reached on the basis that NC had not made any admissions, the absence of a formal statement from the appellant, the absence of any prior incidents between the appellant and NC having been previously reported to police and the absence of any corroborating evidence from independent witnesses. The appellant was advised of this decision on 3 February 2015.[32]
[32] Matter Book, page 89; Police Incident Report dated 3 February 2015.
In late 2015 the appellant was still suffering ongoing symptoms due to the injury sustained to her left eye, in particular the fatty tissue around her left eye was deteriorating and her eyeball was sinking into her face. Therefore in November 2015 the appellant underwent a third reconstructive surgery to her left eye. The titanium plate was taken out and another one was put in, to mould to the shape of her face. This improved the way the appellant's eye and face looked and improved her peripheral vision.[33]
[33] Appellant's statement dated 24 April 2018, page 2.
Then on 18 July 2018, being three and a half years following the alleged offence, the appellant contacted the police requesting that her case be re‑opened. The police records note:[34]
TPC from Kendrie BUTLER – she has heard that [NC] is now in Hakea Prison for assaulting his present partner and would like to have her case against him re‑opened. BUTLER is also applying for Victims of Crime compensation.
[34] Matter Book, page 89; Police Incident Report dated 18 July 2018.
The appellant felt safe to press charges against NC upon learning that he was incarcerated and therefore was unable to retaliate.[35]
[35] Appellant's affidavit of 13 January 2020, par 40.
On 21 July 2018 a police officer spoke with the appellant and advised her that the case would not be re‑opened.[36]
[36] Matter Book, page 89; Police Incident Report dated 21 July 2018.
In respect of the appellant's current presentation in respect of the physical injuries she sustained, she gives the following account:[37]
Despite my three surgeries, my eye and nasal passage is still affected. I have constant sinus problems and conjunctivitis, and my left eye looks very different to my right as it has a much rounder shape and sits further back in my head than the right one. My peripheral vision is impaired - I still have double vision on my left side and it is increasing. My vision itself is not too bad but it has deteriorated, especially at night. The fatty tissue that holds the eyeball in place is deteriorating from the trauma and as this continues, the eyeball moves, which has continued to change my depth perception and increase the extent of the double vision.
The upper part of the left hand side of my face has nerve damage, which gives me a sensation like pins and needles, or a tingling but numb feeling like the feeling you get when local anaesthetic wears off. My nasal passage was smashed so it is hard to remove the mucus in a normal manner like blowing your nose. I usually have to flush water up my left nostril and then carefully inhale the water deep into my sinus cavity and then after a few minutes I can blow the excess water with the mucus from the damaged sinus cavity. This is painful, gives me mild dizziness and feels like you are drowning as you inhale the water into your sinus and airways. The sinus problem is permanent and has drastically compromised my ability to sing. Before the incident on 19 December 2014 I loved to sing. Now I have lost about four notes on my high register and my voice sounds nasal, like I have a bad cold all the time.
[37] Appellant's statement dated 24 April 2018, page 2.
In relation to the appellant's claim for psychological injuries she stated:[38]
I am very anxious and often experience spasms or convulsions in my right hand and arm. This can last up to four to six hours. Initially the spasms occurred if there was anyone yelling or raising an angry voice me near, whether it was directed at me or not. My little finger starts first and a little intermittent twitch and then my fingers start to spasm, increasing to my hand, then my whole right arm starts convulsing. It is very draining mentally and physically and embarrassing.
Any stressful activity can now bring on the spasms, for example, whenever there is yelling or violence around, but also worrying about everyday things. I stress if I think someone is waiting for me. I have panic attacks if I have an appointment booked in or have to be somewhere at a certain time. I delay and put off everything of importance. There is no way I could hold down a job with my constant anxiety. I am sure that I would always be late for a shift and probably be useless at doing anything because my anxiety soars just at the thought of this. Even as I describe now for this statement what my anxiety is like, my little finger has started to move involuntary and my chest is starting to get these little pangs of pain in it.
I used to be the most routine, organised and structured person and general living was very easy and nice and comfortable.
I was a positive, easy going, caring and trusting person and always with a bright smile in my eyes and now every aspect of my life is dramatic and chaotic.
[38] Appellant's statement dated 24 April 2018, pages 2 - 3.
Further, in relation to the appellant's psychological injury, Ms Rickman identified that:[39]
[39] Ms Rickman's report dated 12 August 2019, pages 3 - 4.
Kendrie does not like to sleep at night; she sleeps all day and has no dreams. She has been told that she cries out in her sleep … Kendrie exhibits the symptoms of post‑traumatic stress disorder (PTSD). …
(a)Directly experiencing traumatic events
Kendrie has experienced life threatening events, physical, emotional and sexual abuse with three different perpetrators.
(b)Intrusive symptoms of the events
Kendrie re-hashes events that have occurred in the past. She disassociates if she becomes too overwhelmed by the situation. Her physical problems, which are permanent, are a constant reminder of the beating and when her eyesight is disrupted or her sinuses require lavage, she cannot stop the automatic reaction of her body.
(c)Avoidance of stimuli associated with the events
Kendrie does not feel safe outside her bedroom - it is what she calls her safety zone. She has reactions to raised voices and will have severe anxiety and have to leave the situation.
(d)Negative alterations in mood or cognitions
Kendrie has been on Effexor for depression for a number of years. She has severe anxiety when she has to keep any kind of appointment. She gets distracted and will go off on a tangent and is consequently usually late for appointments or will forget what she went out for.
(e)Alterations in arousal and re‑activity
Kendrie has constant anxiety with bouts of panic which cause her limbs to spasm and what she refers to as convulsions. She is hyper‑vigilant at all times and can only relax in any way when in her bedroom. …
Kendrie completed the PCL-5 assessment (developed by the National Centre for PTSD in America) which indicates the degree of stress following traumatic incidents. The cut off score to indicate PTSD is 30 and Kendrie scored 61 out of a possible 80, with all sections of the questionnaire having a high rating. Kendrie also meets the criteria for agoraphobia, by feeling safe only in her room and having excessive fear of being outside the house and with other people.
Kendrie's psychological condition is due to the violence she has experienced in all three relationships. According to her, the most symptoms occurred as a result of the assault by [NC], because she was so terrified and in fear of her life. … Kendrie will require trauma therapy in order to recover psychological health. …
In addition, the appellant claims past and future economic loss for loss of earning capacity arising from the alleged assault by NC. In her witness statement of April 2018 the appellant notes that prior to the alleged assault she was financially savvy, usually paying household bills before they were due and making extra mortgage repayments. The appellant states that she worked three jobs in order to purchase her home and at one point was able to save enough funds for an overseas holiday with her daughter. The appellant asserts that now due to her anxiety she does not believe that she could hold down a job.[40]
[40] Appellant's statement dated 24 April 2018, page 3.
The last employment the appellant had was with Auto Pro Exmouth (Rainfield Pty Ltd), between 4 June 2014 and 12 November 2014 where she was employed as a car hire assistant. The appellant received a final gross payment of $753.50.[41] The employment separation certificate notes the reason for separation as 'end of season or contract'.[42] The appellant is currently unemployed and relies on income from her Centrelink Newstart Allowance of $555.70 minus applicable deductions per fortnight.[43]
[41] Affidavit of Jessica Morath dated 13 January 2020, Annexure JMM6.
[42] Affidavit of Jessica Morath dated 13 January 2020, Annexure JMM6.
[43] Affidavit of Jessica Morath dated 13 January 2020, Annexure JMM6.
The Assessor's decision
The learned Assessor refused the appellant's Application for compensation by way of letter dated 29 August 2019.
The appellant sought written reasons for the decision which were published on 26 September 2019: Butler.[44] The published reasons show that the learned Assessor was satisfied that the appellant had suffered an injury as a consequence of the commission of an offence of assault pursuant to s 222 of the Criminal CodeAct Compilation Act 1913 (WA) (Criminal Code).[45] The learned Assessor was also satisfied that the appellant's injuries fell within the definition of bodily harm under s 1(1) of the Criminal Code.
[44] Butler [2019] WACIC 22.
[45] Butler [23].
Accordingly, the Assessor was therefore satisfied that the appellant was injured in the incident which occurred on 19 December 2014 as a consequence of the commission of an alleged offence pursuant to s 17 of the CIC Act.[46]
[46] Butler [24].
However, the Assessor found that the actions of the appellant, by withdrawing her complaint and failing to provide a formal statement to the police, constituted not doing any act or thing which she ought reasonably to have done to assist in the identification, apprehension or prosecution of the alleged offender pursuant to s 38 of the CIC Act.[47]
[47] Butler [46].
The learned Assessor was not satisfied that the failing on the part of the appellant was reasonable given her personal circumstances and therefore refused the appellant's Application for compensation.[48]
[48] Butler [57].
Issues to be determined
The appeal notice filed with the court on 19 September 2019 sets out two grounds of appeal:
1.the Assessor erred in the application of s 38 of the CIC Act in finding that the appellant did not do any act or thing which she ought reasonably to have done to assist in the identification, apprehension or prosecution of the alleged offender; and
2.the Assessor did not make any compensation award.
There are therefore broadly two issues for determination before this court, firstly, whether s 38 of the CIC Act acts as a bar in preventing the appellant from seeking compensation for her injuries sustained arising from the alleged offence on 19 December 2014, and secondly, if s 38 of the CIC Act does not act as a bar, what is the appellant's entitlement to compensation.
In determining whether the appellant is entitled to an award of compensation for the alleged offence, the court must also consider the following:
(a)whether it is satisfied that the appellant was the victim of an alleged offence;
(b)whether the appellant suffered an injury as defined in the CIC Act in consequence of the commission of the alleged offence; and
(c)whether the losses suffered by the appellant have been caused by the alleged offence, whether wholly or partially.
Determination
Was the appellant the victim of an alleged offence?
The standard of proof applicable in criminal injuries compensation cases where an alleged offence is said to have occurred is the civil standard and the onus of proving that the alleged offence occurred rests on the appellant.[49] However, the seriousness of the allegation that a violent crime has been committed against the appellant requires the court to feel an actual persuasion that the alleged offence occurred.[50] Such a conclusion should not be reached without the exercise of caution and unless the evidence survives careful scrutiny and appears to be precise, and not loose and inexact.[51]
[49] BAS v The Estate of NAS [2000] WASCA 270 [11].
[50] Briginshaw v Briginshaw (1938) 60 CLR 336 [361].
[51] Re ATS [2017] WADC 92 [29], [114].
In order for the appellant to discharge the burden of proof and persuade the court on a balance of probabilities, feeling an actual persuasion, she must show that there is more than conflicting inferences of equal degrees of probability that an offence has occurred, so that the choice between them is not a mere matter of conjecture.[52]
[52] Nominal Defendant v Owens (1978) 22 ALR 128, 132 - 133; Lloyd v Small (1996) 16 SR (WA) 111 [113].
The police incident report entry for 20 December 2014 identifies that the offence allegedly committed against the appellant is that of unlawful assault occasioning bodily harm pursuant to s 317 of the Criminal Code.
The elements of that particular offence which must be proven are firstly, that the appellant was assaulted, second and thirdly, that she suffered bodily harm as a result of the assault and lastly, that the assault was unlawful.
There were no witnesses to the assault other than the appellant and NC. However, the court has had the benefit of comparing the initial report gmiven to the police at the time of the alleged offence, with the witness statements and affirmed affidavit of the appellant prepared over time, all of which appear to be internally consistent with one another.
The court has also had the benefit of reviewing the contemporaneous medical records of the appellant as follows:
(a)the appellant's patient records from Fremantle Hospital dated 19 December 2014 state in the clinical history section 'punched to face';[53]
(b)the Fremantle Hospital inpatient discharge letter dated 24 December 2014 states '41 year old female presents … with fractured L orbital floor following alleged assault';[54] and
(c)a letter dated 13 January 2015 written by Dr Stephen Colley, consultant ophthalmologist at Fremantle Hospital, refers to the appellant as being 'three weeks post assault'.[55]
[53] Matter Book, page 10.
[54] Matter Book, page 16.
[55] Matter Book, page 22.
In addition, the nature of the injuries sustained by the appellant are not consistent with NC's version of events ie that any injuries sustained by the appellant were as a result of an inadvertent touching by his elbow to her face. The appellant suffered, amongst other injuries, a shattered left orbital floor which required a total of three reconstructive surgeries, and a titanium plate to be installed in her eye socket. Such injuries are not reflective of an inadvertent and unintended knock to the eye. Rather, the injuries were more likely sustained in the manner described by the appellant ie through several forceful and violent punches to her face by NC.
The court is therefore satisfied, and feels an actual persuasion, on a balance of probabilities, that the appellant was assaulted.
The court is also satisfied, on a balance of probabilities, that the appellant suffered bodily harm. Bodily harm is defined by s 1 of the Criminal Code as any bodily injury which interferes with health or comfort. The injury the appellant sustained, in particular the fracture of her left orbital floor, clearly interfered with the appellant's health or comfort.
The court is also satisfied on a balance of probabilities, that the assault, being the punches to the appellant's face, caused her to suffer the bodily harm being the fracture of the orbital floor, a cut to the appellant's eye area and a cut inside the appellant's lip.
The court is also satisfied on a balance of probabilities that the assault causing bodily harm was unlawful. In this regard, pursuant to s 223 of the Criminal Code, an assault is unlawful unless it is authorised or justified or excused by law. The appellant was attending NC's premises merely to discuss when he would be collecting his belongings from her home. When the appellant noticed how enraged NC was, she attempted to retreat. NC unnecessarily pursued the appellant and without any justification or excuse or provocation began violently assaulting her. The court does not accept the version of events proffered by NC to police, that the appellant had entered his premises and refused to leave. However, even if one accepted NC's version of events, there is no justification or excuse for the violent assault which ensued.
Is an award of compensation precluded by the operation of s 38 of the CIC Act?
Section 38 of the CIC Act relevantly provides:
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 or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence.
The purpose of s 38 of the CIC Act was clarified by Stevenson DCJ in Hinchcliffe v Hinchcliffe:[56]
The primary mischief aimed at is to ensure that the law enforcement authorities are not prevented by reason of any knowledge or information in the possession of the victim (or close relative) from investigating the actual circumstances of an alleged offence. This includes any matter relevant to the identification, apprehension or prosecution of the person who may have committed the offence.
In my opinion the question of whether s 38 should operate as a guillotine on a claim for an award by the victim of an offence must be assessed carefully and with a great deal of scrutiny. The remedial object and purpose of the legislation must be borne in mind.
[56] Hinchcliffe v Hinchcliffe [2010] WADC 78 [58] - [59].
The court is required to make two factual determinations in considering whether s 38 of the CIC Act applies:[57]
(a)whether there was a failure by the appellant to do any act or thing to assist in the identification, apprehension or prosecution of the offender; and
(b)if so, whether that failure to do any act or thing was reasonable in the particular circumstances of the appellant.
Was there a failure to do any act or thing?
[57] AJC v Lewis (2003) 35 SR (WA) 94 [99].
It appears that there may have been two possible failures on the part of the appellant:
(a)declining to make a formal complaint and provide a witness statement to police and ultimately withdrawing the complaint on 25 January 2015; and/or
(b)not notifying the police that the appellant wished to make a formal complaint and provide a witness statement over a period of 3 and a half years from the time of the commission of the alleged offence until 17 July 2018 when the appellant finally contacted police.
The appellant submitted that she took a number of actions to assist police with the identification, apprehension and prosecution of NC:[58]
(a)Reported the alleged offence to the police;
(b)Identified NC as the offender and provided his address details to police;
(c)On 27 December 2014, met with the police to provide a statement, but was too distressed (she had also undergone eye surgery on 22 December 2014 and 24 December 2014 in respect of injuries from the assault);
(d)On 17 January 2015, was informed by police that she would need to provide a statement if she wanted to apply for criminal injuries compensation;
(e)On 25 January 2015, was informed by police prior to signing the withdrawal of complaint form that she could contact the police again if she wanted to pursue the complaint;
(f)On 18 July 2018, contacted police and requested that her complaint be re‑opened as she had learnt NC was in prison; and
(g)Despite the police records from the call on 18 July 2018 noting 'Statement is to be provided by the victim and from there a re‑analysis of the evidence is to be conducted please', was not afforded the opportunity to provide a statement to police. The fact that the police did not take a statement from Ms Butler at that time cannot constitute her 'not doing any act or thing' for the purposes of a consideration of s 38 of the Act.
[58] Appellant's written submissions dated 24 January 2020, par 21.
The court does not find that the appellant's actions in initially declining to make a formal complaint and provide a witness statement on 25 January 2015 was a failure by her to do any act or thing to assist in the identification, apprehension or prosecution of the offender. It was clearly open to the appellant to make a formal complaint and give a statement at a later time. However, the court does find that it was a failure on the appellant's part to take no action for a period of over three years during which she failed to make a formal complaint and provide a detailed statement to police. In the court's view this inaction did constitute a failure of the type which is contemplated by s 38 of the CIC Act.[59]
[59] Re Iaria [2018] WADC 22 [28]; ReSullivan [2017] WADC 17 [128]; ReWillington [2005] WADC 30 [3], [28]; Wall v Chief Executive Officer [2000] WADC 320 [11].
Whilst it can be said that the appellant took steps in order to assist in the identification of NC, there was a failure by her to do any act or thing in order to assist in his apprehension and/or prosecution.
It must be reasonably accepted and understood that a significant delay of the magnitude in this case, may hinder and interfere with the ability of police to properly investigate and prosecute an alleged offence.
Was the failure reasonable in all of the circumstances?
The court is not to assess the appellant's lack of action by reference to what a hypothetical reasonable person would have done. Thus although the applicable test is what was objectively reasonable in all of the circumstances, the test is to be applied by reference to what could reasonably be expected of the appellant in her particular circumstances.[60]
[60] Re Iaria [9]; ReCollard [2018] WADC 1 [24]; Re Sullivan [55]; Martin v Martin [2015] WADC 138 [62] - [63]; Hinchcliffe v Hinchcliffe [62], [69] - [70]; GPW [2005] WADC 48 [10]; Re Willington [9].
Davis DCJ in Re Iaria, identified in each case where it had been held that a failure on the part of the appellant had not precluded an award of compensation, there existed one or both of the following factors:[61]
(a)A legitimate fear by the applicant of reprisal by the alleged offender, especially where the threat of harm to the applicant was real and immediate. A general fear of an offender is not, on its own, sufficient to justify a failure to report an offence to the police; and/or
(b)Something in the applicant's personal circumstances which demonstrated that the applicant's failure to report or provide assistance to the police was reasonable.
[61] Re Iaria [18].
In the court's view the failure of the appellant in this case to make a complaint to police and provide a witness statement (at all or within a reasonable period of time) was reasonable in the circumstances. This is for two reasons:
(a)the applicant had a legitimate fear of reprisal by NC, or his family members, such threat of harm being real and immediate; and
(b)given the appellant's personal circumstances of significant physical and mental injury sustained as a result of the alleged offence, her failure to provide assistance to police was reasonable.
In relation to the finding that the appellant had a legitimate fear of reprisal from either NC or his family members, reference is made to the following evidence:
(a)in the appellant's personal statement dated 24 April 2018 she stated:
I was in shock and didn't know whether to press charges or not as I was too scared …
…
I called the police the following week to let them know I would not be pressing charges, as I was too afraid of what [NC] might do to me.
…
I initially spoke to the police about the incident on 19 December 2014, but I was too afraid to press charges against [NC]. I was afraid that he or his family would get revenge, and although the police said they would protect me and I should get a VRO, that would only get him arrested after the fact. A VRO would not keep him away from me.
I heard from the people [NC] lived with that he said that he would 'destroy me' if I told the police and went ahead with the VRO or assault charges. He previously had charges for assault and was on a 12 month good behaviour bond and he did not want to go to jail.
(b)the appellant's affirmed affidavit referred to the fear and terror that she felt and her belief that NC would return to kill her;[62]
(c)the text message received by the appellant which she believed was sent by NC's daughter, within a day or two of the alleged assault, stated 'I will get you';[63]
(d)NC's cousin informed the appellant the day after she was assaulted that NC would destroy her if she took out a VRO or went to the police about the assault and that if the appellant attempted to obtain a VRO it would not prevent further reprisal;[64]
(e)police incident reports, referred to at [36] and [44], record that the appellant was afraid for her safety following the assault and had a fear of further reprisal from NC;
(f)the appellant's fear is further corroborated by the report of Ms Rickman which noted 'she described the most powerful reaction she had as one of sheer terror. The police have been called over this incident, but [NC] had threatened her that he would destroy her if he was charged and his family would come from New Zealand to get her. As a result he was not charged'.[65]
[62] Paragraphs 6 ‑ 11, par 14, par 16, pars 18 - 19.
[63] Affidavit of the appellant sworn 13 January 2020, Annexure KLB.
[64] Appellant's sworn affidavit of 13 January 2020, par 8.
[65] Report of Ms Rickman dated 12 August 2019, page 1.
The evidence strongly supports the position that the appellant had a legitimate fear of reprisal from either NC, or his family, where such threat of harm to the appellant was real and imminent.
Additionally, the appellant's own personal circumstances were such that her failure to formally complain and provide a detailed witness statement to the police was reasonable:
(a)the appellant had a history of domestic abuse at the hands of NC;[66]
(b)it has oft been acknowledged by courts that victims of domestic violence are reluctant to report episodes of abuse to police, and rather, will protect their abuser and return to them although knowing that the abuse may well continue;[67]
(b)the appellant had suffered significant physical trauma following the vicious attack which included three reconstructive surgeries to her eye socket and experienced ongoing complications including pain and affected vision; see [32], [33], [50] and [54] above;
(c)the appellant suffered significant psychological trauma and although she sought assistance through counselling, ultimately could not continue because discussing the incident was too traumatic for her; see [42], [55] and [56] above; and
(d)only 10 days following the alleged assault by NC, the appellant suffered a second assault by another ex-partner; see [38], [39] and [42] above.
[66] Appellant's sworn affidavit of 13 January 2020, pars 34 - 37.
[67] Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, 335 - 336; The State of Western Australia v Carlino [No 2] [2014] WASC 404 [20]; Liyanage v The State of Western Australia [2017] WASCA 112 [54] - [57].
When one takes into account all of the above background and personal circumstances and mental health wellbeing of the appellant, it is clear to this court that she could not reasonably have been expected to assist with the identification, apprehension or prosecution of the alleged offender.
Assessment of Compensation
The maximum award of compensation which can be made is $75,000: s 31(1) of the CIC Act.
In assessing the amount of compensation which should be awarded the court takes into account the following general principles:
(a)The maximum compensation payable pursuant to the CIC Act is simply a jurisdictional limit and is not necessarily reserved for the worst cases of injury and loss.[68]
(b)The court is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the CIC Act and also subject to the jurisdictional limit imposed by s 31 of the CIC Act.[69]
(c)In assessing the quantum of compensation which ought to be awarded the court must have regard solely to the injury suffered by the appellant in consequence of the commission of the offence.[70]
(d)The amount is to be fixed without any consideration or regard or intent to punish the alleged offender or as an expression of sympathy for the victim.[71]
(e)Whilst judicial minds may differ as to the utility of comparing other awards of compensation or damages for personal injuries in similar cases, it is the court's view that it may be appropriate to have regard to such awards when considering an application for compensation.[72]
[68] S v Neumann (1995) 14 WAR 452, 463 (Murray J).
[69] M v J and J v J (Unreported, WASC, Library No 920598; 19 November 1992) (Scott J).
[70] B v W (1989) 6 SR (WA) 79, 89; R v Forsythe [1972] 2 NSWLR 951, 953.
[71] B v W (89).
[72] De Florenca v Hayden [2007] WADC 54 [17] (Yeats DCJ); Asjes v Assessor of Criminal Injuries Compensation (Unreported; WADC, Library No 4169, 3 September 1994) (Commissioner Nisbet); Michael v Panetta (1994) 10 SR (WA) 323, 323 - 324 (Judge Jackson QC); TAW v NJS [2011] WADC 187 [24] (Bowden DCJ).
The appellant's injuries
Section 3 of the CIC Act defines injury as meaning bodily harm, mental and nervous shock or pregnancy. In relation to mental or nervous shock the injury must constitute more than a mere emotional reaction and thus have an enduring character.[73]
[73] Hatfield v Undersecretary for Law (Unreported WASC, Library No 4012; 15 December 1980) (Burt CJ).
In order for the appellant to be entitled to compensation, it is not necessary for the offence the subject of the Application to be the sole cause of her injury.[74]
[74] Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, 673.
Where the evidence establishes that non-compensable events had a propensity to cause the injury or loss or contributed to the injury or loss, if capable of being disentangled, the award of compensation should be reduced to take into account the other contributing events.[75] If it is not possible to disentangle the consequences of non‑compensable events from the consequences of the compensable offences, then the appellant is entitled to compensation for the full injury and loss suffered if the appellant has established that the compensable offences materially contributed to her injury or loss.[76]
[75] MJN v MAJS (2003) 35 SR (WA) 219 [47] - [52].
[76] MJN v MAJS [47] - [52].
The appellant alleges that she suffered the following physical injuries arising from the assault by NC:
(a)a bruised chest;
(b)a cut to her upper lip which resulted in a scar;
(c)left eyebrow being split open which resulted in a scar;
(d)a fractured orbital floor of the left eye socket, requiring the insertion of a titanium plate and involving three reconstructive surgeries;
(e)dysfunction of normal eye functions in the form of restricted movement, double vision and disrupted depth perception which has affected the appellant's ability to complete day to day tasks such as drive, unlock doors and walk down steps;
(f)damage to the nasal passage and ongoing sinus problems including conjunctivitis and the requirement for manual nasal drainage which causes pain and dizziness;
(g)disfigurement to the appearance of the face around the left eye which is more sunken than the right eye; and
(h)nerve damage to the left hand side of the face resulting in the sensation of pins and needles.
The court finds that all of the injuries listed above, with the exception of a bruised chest, have been suffered by the appellant and are entirely corroborated by the medical evidence.
The court also finds that the physical injuries arising from the alleged assault have worsened and are ongoing on the basis of:
(a)an outpatient progress note dated 26 July 2018 prepared by Ms Hurrell which noted that the appellant had pain and pressure sensation from her left eye/orbit and the appellant felt that her diplopia is worse in the peripheral now and the eye felt sunken;[77]
(b)an outpatient progress note dated 8 August 2018 prepared by Mr Hurrell which noted that the appellant had been seen as an emergency patient with acute pain behind her left eye and had double vision which had worsened over six months. The record also noted that the appellant's left sinus constantly feels full and that the appellant needed to daily irrigate with water to attempt to clear and also suffers from discharge from her left eye;[78] and
(c)an outpatient progress note dated 22 August 2018 also prepared by Mr Hurrell which noted the appellant's ongoing sinusitis symptoms for months to years as well as fullness/pressure behind her left eye, nasal discharge and blocked ears.[79]
[77] Attached to a letter from Clayton Utz to the Office of Criminal Injuries Compensation dated 18 April 2019.
[78] Attached to a letter from Clayton Utz to the Office of Criminal Injuries Compensation dated 18 April 2019.
[79] Attached to a letter from Clayton Utz to the Office of Criminal Injuries Compensation dated 18 April 2019.
In relation to the appellant's psychological injuries, she asserts that she has suffered the following as a result of the alleged offence committed by NC:
(a)serious anxiety;
(b)post-traumatic stress disorder;
(c)agoraphobia; and
(d)disturbed sleep.
The appellant's evidence at [55] describe symptoms and behaviour which may be indicative of her having suffered, and continuing to suffer, psychological injury. Further, the psychological evidence of Ms Rickman, identifies that the appellant meets the criteria of post‑traumatic stress disorder and agoraphobia.[80]
[80] Report of Ms Rickman dated 12 August 2019, pages 3 - 4.
In relation to causation, it is Ms Rickman's view that the appellant's psychological condition is due to the violence that she has suffered at the hands of three separate offenders, including NC, and that whilst the appellant is of the view that most symptoms occurred following the assault by NC, each subsequent episode of abuse has compounded the previous one.[81]
[81] Report of Ms Rickman, page 4.
Firstly, in relation to the appellant's physical injuries, the court finds on a balance of probabilities that they were caused by the forceful punches to her face by NC.
In respect of an award of compensation for the appellant's physical injuries, counsel for the appellant directed the court's attention to the decision of ReCME.[82] The appellant in that case suffered a very similar physical injury to the left orbital floor, although not to the same degree of severity as that suffered by the appellant in this case. This case is also distinguishable from ReCME given the facial scarring and disfigurement that the appellant has suffered.
[82] ReCME [2018] WADC 69.
Given the severity of the appellant's facial injuries in this case, particularly given that the appellant had to undergo three reconstructive surgeries, the court intends to award $30,000 for the appellant's physical injuries.
In relation to the appellant's psychological injury, the court finds that the alleged assault by NC was a significant causative factor to the appellant developing post-traumatic stress disorder and agoraphobia. Whilst the court accepts that the subsequent two alleged assaults at the hands of different offenders compounded the diagnoses, it was the alleged assault by NC which caused the appellant to suffer the psychological injury in the first instance. The court therefore intends to award the appellant, in respect of her psychological injuries, the sum of $15,000.
Loss of past and future earning capacity
The appellant also claims past and future economic loss for loss of earning capacity arising from the alleged assault by NC. The details of this claim are set out above at [57] - [58].
The appellant is entitled to compensation pursuant to s 12(1) or s 17(2) of the CIC Act if she can establish that she has suffered a loss as defined in s 6 of the CIC Act. It is necessary for the appellant to establish that the loss of earnings is by reason of the offence and the following needs to be established:
(a)that there has been a loss of earning capacity; and
(b)what economic consequences will follow from that loss.
The court accepts that the appellant has suffered a loss of earning capacity as a result of the alleged assault by NC. This is supported by Ms Rickman's report which states:
Kendrie is not working at present and cannot see herself being able to gain employment for quite some time. She has very high levels of anxiety and cannot be on time. When under any form of stress, she disassociates, so the simple task of being on time for work and being able to concentrate for a full day are not within her capacity. Her physical illnesses compound these issues.[83]
[83] Report of Ms Rickman, page 5.
The difficulty presented to the court, however, is how to assess the economic consequences for the appellant due to the loss of earning capacity. The only evidence before the court is the employment separation certificate from Rainfield Pty Ltd which certifies that the appellant's final gross payment was $753.50 and identifies as the reason for separation as 'end of season or contract'. The appellant was retained by that employer for a period of five months only.
There is no evidence before the court as to any of the appellant's prior employment history, the frequency of her employment, the average wages earnt by her during particular periods of time and the sustainability of her employment ie whether there were from time to time periods of unemployment.
There is also no evidence before the court as to the appellant's employment opportunities once she returned to Perth from Exmouth and whether she anticipated securing work within a particular time frame or in what particular profession and what her likely earning capacity would be.
Therefore the court is unable to properly identify the economic loss which would flow from the loss of earning capacity of the appellant and thus is unable to make an award for this loss given its speculative nature.
Future treatment
The definition of loss in s 6(2)(e) of the CIC Act includes expenses that are likely to be reasonably incurred by an appellant for future treatment that is required as a direct consequence of the injuries sustained.
The appellant claims future treatment costs, as estimated by Ms Rickman, in the amount of $9,500 for ongoing psychological treatment. The details of the ongoing treatment are set out in Ms Rickman's report as:[84]
Kendrie will require trauma therapy in order to recover psychological health. The APS recommended rate for counselling is $250 per hour session and Kendrie will probably need ongoing sessions for at least two years. This would come to $12,000 for 48 sessions. Medicare rebate under a mental health care plan is $125 per session and the limit is ten sessions in a calendar year. The rebate would be $2,500 over this period, leaving a gap of $9,500.
[84] Report of Ms Rickman, page 4.
Whilst it was noted at [107] that the appellant's psychological injuries were compounded by the subsequent two further alleged assaults committed by different offenders, the court is unable to disentangle each causative event such as to apply some mathematical formula by which to apportion blame.[85]
[85] Bonnington Castings Ltd v Wardlaw [1956] AC 613; Fagan v Crimes Compensation Tribunal;Purkess v Crittenden (1965) 114 CLR 164; CKM [2008] WADC 79.
In such circumstances it is appropriate for the appellant to claim the total cost of future treatment given that it is not necessary for her to show that the alleged offence by NC is the sole cause of the injury or loss but did materially contribute.[86]
[86] Bonnington Castings; Fagan; MJN v MAJS (2003) 35 SR (WA) 219, 227.
The court accepts that the future treatment costs identified by Ms Rickman will be incurred by the appellant as a direct consequence of the psychological injury she sustained as a result of the alleged offence NC committed. The court therefore awards the total claim of $9,500 subject to the operation of s 48 of the CIC Act.
Report expenses
The appellant also claims $1,500 for the cost of Ms Rickman's report.
The court allows that amount.
Costs
The appellant does not seek that a costs order ought to be made.
Conclusion and orders
The court therefore allows the appeal and awards the appellant the following:
Non-pecuniary loss $45,000.00
Report expenses $1,500.00
Future treatment $9,500.00
The orders are as follows:
1.The appeal is allowed.
2.The decision of the Assessor refusing the Application is set aside.
3.The sum of $56,000 is awarded to the appellant, inclusive of the amount of $9,500 which is subject to s 48 of the Criminal Injuries Compensation Act 2003 (WA), as compensation for injuries and losses.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KR
Associate to Judge Wallace20 FEBRUARY 2020
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