Re Chitubura
[2025] WADC 56
•2 SEPTEMBER 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE CHITUBURA [2025] WADC 56
CORAM: JEYAMOHAN DCJ
HEARD: 19 AUGUST 2025
DELIVERED : 2 SEPTEMBER 2025
FILE NO/S: APP 16 of 2025
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: MANAIL CHITUBURA
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: C F HOLYOAK-ROBERTS
File Number : CIC 4050/2024
Catchwords:
Criminal injuries compensation - Appeal - No person charged with offence - Whether 'alleged offence' proved - Turns on own facts
Legislation:
Criminal Code (WA)
Criminal Injuries Compensation Act 2003 (WA), s 17, s 43, s 55, s 56
Result:
Assessor's award affirmed
Additional award for future treatment expenses subject to s 48
Representation:
Counsel:
| Appellant | : | In person |
| Amicus Curiae | : | Ms J R D Symons appeared on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
B v B [2004] WASC 6
B v S (Unreported, WASC, Library No 950223, 10 May 1995)
Bedetti v Chief Executive Officer [2003] WADC 37
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10
Briginshaw v Briginshaw (1938) 60 CLR 336
Fagan v The Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Green v Lee (1996) 17 SR (WA) 93
Gullelo v Halloran [2008] WADC 145
Hinchcliffe v Hinchcliffe [2010] WADC 78
Lyle v Soc [2009] WASCA 3
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Martin v Martin [2015] WADC 138
MES v KG (1995) 12 SR (WA) 330
Nagel v Tahere [2020] WADC 110
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Re ATS [2017] WADC 92
Re ATS [2019] WADC 76
Re Carter (1984) 4 SR (WA) 219
Re Harvey [2023] WADC 83
Re Jackamarra [2014] WADC 9
Re: Tilbury [2010] WADC 46
Re; Hojetzki [2009] WADC 77
Robinson [2017] WADC 18
RW [2018] WADC 116
S Neumann (1995) 14 WAR 452
T v Curnuck [2004] WASC 139
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Underwood v Underwood [2018] WADC 13
JEYAMOHAN DCJ:
Overview
Ms Manail Chitubura, the appellant, alleges that late in the evening of 23 March 2024 she was assaulted by a male, J, who approached her holding a kettle and threw a hot liquid onto her. Ms Chitubura alleged that as a result, she sustained burns to her neck, shoulder and right cheek.
On 9 December 2024, Ms Chitubura applied for compensation pursuant to the provisions of the Criminal Injuries Compensation Act 2003 (WA) (Act) for injuries arising out of the alleged assault (Compensation Application CIC 4050/2024).
On 5 March 2025, a compensation reimbursement order under s 52 of the Act was made in Compensation Application CIC 3351/2022 pursuant to which Ms Chitubura owes the State of Western Australia (State) $17,679 (Reimbursement Order).
On 28 March 2025, the Chief Assessor of Criminal Injuries Compensation (Chief Assessor) awarded Ms Chitubura $20,566.50, including $566.60 for interim treatment expenses in respect of Compensation Application CIC 4050/2024 (Award).
Pursuant to s 43 of the Act, the Chief Assessor reduced the amount payable to Ms Chitubura under the Award by the amount payable under the Reimbursement Order (ie reduced the Award by $17,679).
By notice of appeal filed 17 April 2025, Ms Chitubura appeals the Award and the order made in Compensation Application CIC 4050/2024 reducing the amount payable to Ms Chitubura under the Award by the amount payable under the Reimbursement Order.
For the reasons that follow, the Chief Assessor's Award is affirmed and an additional amount for future treatment expenses to cover psychological treatment is made, to be dealt with pursuant to s 48 of the Act.
Factual background
The book of assessor's papers dated 8 May 2025 (Assessor's Papers) and book of documents dated 2 July 2025 (Book of Documents) contain various materials addressing the injuries in respect of which the Compensation Application CIC 4050/2024 was made.
The principal evidence in respect of the alleged offence is as follows.
On Friday 23 March 2024, Ms Chitubura was drinking with her partner, and his friend at her partner's address.[1] In a statement to the Western Australia Police (WA Police) dated 28 May 2024, Ms Chitubura states as follows:[2]
[1] Assessor's Papers, page 6, Statement of Manail Chitubura to WA Police dated 28 May 2024, par 3.
[2] Assessor's Papers, pages 6 ‑ 10.
1.At about 4.00 pm, J, who was known to Ms Chitubura, knocked at Ms Chitubura's partner's front door and asked to speak to him.[3]
[3] Assessor's Papers, page 6, Statement of Manail Chitubura to WA Police dated 28 May 2024, pars 4 and 8.
2.Ms Chitubura's partner went to speak to J and came back 'red faced' stating that J had tried to sell him a bracelet that had been taken from him during a recent burglary.[4]
[4] Assessor's Papers, page 6, Statement of Manail Chitubura to WA Police dated 28 May 2024, par 10.
3.Ms Chitubura and her partner argued about the bracelet.[5]
[5] Assessor's Papers, page 6, Statement of Manail Chitubura to WA Police dated 28 May 2024, par 13.
4.Ms Chitubura then went to Centenary Park, next to her partner's house, and drank more alcohol.[6] Ms Chitubura could see her partner's front door from where she was sitting and could see J going from her partner's house.[7] Ms Chitubura became angry and started yelling and swearing because the items that had been stolen in the burglary from her partner's house were being offered back to him for a price.[8]
[6] Assessor's Papers, page 7, Statement of Manail Chitubura to WA Police dated 28 May 2024, par 14.
[7] Assessor's Papers, page 7, Statement of Manail Chitubura to WA Police dated 28 May 2024, pars 15 ‑ 16.
[8] Assessor's Papers, page 7, Statement of Manail Chitubura to WA Police dated 28 May 2024, par 17.
5.Ms Chitubura saw a third person kick her partner's front door and shout out 'Come outside we're going to jump over your head'.[9]
[9] Assessor's Papers, page 7, Statement of Manail Chitubura to WA Police dated 28 May 2024, pars 18 - 19.
6.Ms Chitubura rang WA Police on 000 who attended, and then left.[10]
7.About half an hour after WA Police left, J approached Ms Chitubura at the park.[11]
8.Ms Chitubura said to J, 'Hey what's up?', in response to which J said 'Why do you keep busting your [c#@t] for?'[12]
9.As she was half way up to standing, Ms Chitubura felt hot liquid hit the right side of her neck, ear and face area.[13] Ms Chitubura states that the liquid went across her back towards the left.[14] She was unsure if it was hot water or tea.[15] Ms Chitubura states that within seconds she could feel her skin 'burning and bubbling off'.[16]
10.She did not see where J went.[17]
11.Ms Chitubura went over to the building at Centenary Park, where she received assistance from persons having a party at the park who called WA Police and an ambulance.[18]
12.Ms Chitubura was taken by ambulance to Sir Charles Gairdner Hospital (SCGH) but states that she was 'kicked out' and spent the night at home in pain.[19]
13.The next morning, Ms Chitubura took photos on her phone and went to Royal Perth Hospital where they dressed the burns and booked Ms Chitubura into the Fiona Stanley Hospital Burns Unit (Burns Unit).[20]
14.Ms Chitubura attended the Burns Unit on 26 March 2025 and spent five days there.[21]
15.At about 1.30 pm on Monday, 22 April 2024, Ms Chitubura attended Belmont Police Station where she provided a statement and photos of her were taken.[22]
[10] Assessor's Papers, page 8, Statement of Manail Chitubura to WA Police dated 28 May 2024, par 20.
[11] Assessor's Papers, page 8, Statement of Manail Chitubura to WA Police dated 28 May 2024, par 22.
[12] Assessor's Papers, page 8, Statement of Manail Chitubura to WA Police dated 28 May 2024, pars 23 ‑ 24.
[13] Assessor's Papers, page 8, Statement of Manail Chitubura to WA Police dated 28 May 2024, par 25.
[14] Assessor's Papers, page 8, Statement of Manail Chitubura to WA Police dated 28 May 2024, par 26.
[15] Assessor's Papers, page 8, Statement of Manail Chitubura to WA Police dated 28 May 2024, par 27.
[16] Assessor's Papers, page 8, Statement of Manail Chitubura to WA Police dated 28 May 2024, par 28.
[17] Assessor's Papers, page 8, Statement of Manail Chitubura to WA Police dated 28 May 2024, par 29.
[18] Assessor's Papers, pages 8 - 9, Statement of Manail Chitubura to WA Police dated 28 May 2024, pars 30 ‑ 32.
[19] Assessor's Papers, pages 9, Statement of Manail Chitubura to WA Police dated 28 May 2024, pars 37 and 38.
[20] Assessor's Papers, page 9, Statement of Manail Chitubura to WA Police dated 28 May 2024, pars 39 and 40.
[21] Assessor's Papers, page 9, Statement of Manail Chitubura to WA Police dated 28 May 2024, par 41.
[22] Assessor's Papers, pages 9 ‑ 10, Statement of Manail Chitubura to WA Police dated 28 May 2024, pars 42 ‑ 44.
Other contemporaneous records relating to the incident
Photographs of the burns Ms Chitubura sustained to her neck, shoulder and right cheek are included in the Assessor's Papers.[23] The WA Police Incident Report dated 23 March 2024 reports that:[24]
On 23 March 2024 Police received numerous calls from the Victim Manail CHITUBURA 23/05/1985 and other members of the public for disturbances going on at (details redacted).
On 23 February 2024 at around 9:40 pm, CHITUBURA was at (details redacted). CHITUBURA alleges that a male known to her … (details redacted) approached her randomly holding a kettle and said [']why are you talking shit about me['], then proceeded to pour hot water from the kettle onto her back.
CHITUBURA returned to her partner[']s address of (details redacted) where she remained until Police attended the location (contacted by a member of the public).
Police attended the location and assisted CHITUBURA in treating her injuries until SJA attended the location. Nil exact incident location identified by CHITUBURA to conduct CCTV canvas, from area described unlikely to be covered by CCTV from (details redacted).
Police attended (details redacted) in an attempt to locate the suspect … however nil persons matching him located inside the address.
CHITUBURA conveyed away from the address by ambulance for medical treatment.
[23] Assessor's Papers, pages 20 ‑ 29.
[24] Assessor's Papers, page 11.
Records from WA Police in the form of running sheet records were provided to the Chief Assessor.[25] The WA Police Running Sheet dated 11 December 2024 reports that:[26]
Upon Perth Police arresting the Suspect, further inquiries were undertaken by them however due to insufficient evidence the matter was filed due to insufficient evidence. This is likely due to currently the only evidence being your Victim statement and nil other corroborating evidence, inquiries were undertaken to identify and obtain any CCTV which would have captured the matter however the area where you indicated the incident occurred was in a camera blind spot.
At the scene I believe myself and other attending officers spoke with you and A, from speaking with A and from going off your statement provided to Police it was indicated that no other people were present with yourself during the assault.
Should any further lines of inquiry open up and sufficient evidence to prefer a charge is obtained I or the actioning Officer will update you accordingly.
[25] Assessor's Papers, pages 15 ‑ 19.
[26] Assessor's Papers, page 15.
With respect to medical records, contemporaneous records from SCGH dated 23 March 2024 record:[27]
1.Ms Chitubura presented to SCGH's Emergency Department on 23 March 2024 at 11.00 pm.
2.She had 'Boiling Water Poured Across Her Neck and Upper Back At 21:00-? 10cm Upper Back Skin Peeling Off and Blistering'.
3.The principal diagnosis was 'Injury - + Burns - + Thermal - + Back - Partial Thickness'.
4.The consultant tried to examine Ms Chitubura but she was adamant she did not want treatment.
[27] Book of Documents, pages 1 ‑ 31.
Records from the Emergency Department of Royal Perth Hospital note:[28]
1.Ms Chitubura presented to the Emergency Department at Royal Perth Hospital on 24 March 2024 at 15.17 hours. The presenting problem was 'INJURY - THROAT - BURN - THERMAL HOT WATER LAST NIGHT, DID NOT SEEK HELP, WORSE O/NIGHT. WENT TO SCGH. BUT LEFT'.
2.The diagnosis was '+INJURY - +BURNS - +THERMAL - +HEAD / NECK - PARTIAL THICKNESS'.
3.On examination, there were superficial partial thickness burns to her posterior neck and shoulder, anterior right shoulder, right lateral neck and right cheek.
4.The burns comprised 5% ‑ 6% of Ms Chitubura's body surface area.
5.The burns were debrided but not dressed by SCGH.
6.At Royal Perth Hospital, Ms Chitubura's burns were cleaned, the remaining areas of blisters were trimmed and the burns were dressed.
[28] Book of Documents, pages 1 ‑ 31.
Ms Chitubura was referred by the Emergency Department of Royal Perth Hospital to the Burns Unit. Records from the Burns Unit note that:[29]
1.Ms Chitubura stayed on the Burns Unit from 26 March 2024 until 31 March 2024.
2.The principal diagnosis was assault and complication of scald of skin.
3.The presenting history was 'assault, scald burn by neighbour ‑ threw hot tea on her'.
4.On admission, Ms Chitubura had superficial partial burns 'to 3.5% over back and shoulder'.
5.There was significant exudate. The clinician was 'unable to lift pseudoeschar off to appreciate depth'.
6.There was a superficial partial burn to Ms Chitubura's right neck. Upon discharge, eschar remained adhered to the left upper back, and the 'remainder wound beds pink with buds of growth evident'. Her right neck was healed.
[29] Book of Documents, pages 46 ‑ 153.
Ms Chitubura saw a clinical psychologist whilst at Fiona Stanley Hospital (FSH). The FSH notes relevantly record as follows:[30]
Clinical Psychology service:
SITUATION
Reason for Referral: Manail is a 38-year-old woman, referred by the medical team on the 28/03/24 due to potential trauma symptoms associated with 3.5% TBSA scald burns to her back and shoulder when her partner's neighbour allegedly threw hot water over her on the 23/03/24.
Presenting Problems:
1.General adjustment post-burns: Manail recounted the circumstances surrounding her burns with distress. She reported that she has been experiencing flashbacks during the day, as well as rumination. She reported generally feeling more anxious than usual. Manail reported reasonable sleep since the incident after taking medication, with no nightmares. Manail rated her mood as 5/10 (0=depressed; 10=elated) on average over the past week, with no suicidal ideation. She reported no major issues managing pain.
2.Fears for her and her partner's safety: Manail reported worrying most about her and her partner's safety due to concerns that the alleged perpetrator and his family will retaliate for the alleged perpetrator's arrest. Manail ventilated her concerns about feeling unsupported by Belmont Police due to her history of poor relationships with most of the officers at this location. She added that she feels that the police may not be of assistance in preventing further harm to herself or her partner by the alleged perpetrators until 'it is too late'. When asked what action would be helpful, Manail stated that alternative accommodation in a location unknown to the alleged perpetrator and his family would provide the most reassurance although she had insight into the unlikelihood of this being provided. Manail stated that she didn't want to be placed in accommodation away from her partner.
[30] Book of Documents, pages 49 and 99 - 101.
FSH notes record as follows:[31]
[31] Book of Documents, pages 99 ‑ 101.
Psychology as of 28 March 2024 15:49
…
ASSESSMENTS
Manail scored very high for anxiety (5) and depression (5) on the PHQ‑4.
…
ACTIONS
1.Allowed Manail to ventilate about her fears and anxiety and validated her experience.
2.Provided psychoeducation regarding burns and trauma symptoms to normalise her experience.
3.Explored cognitive strategies to manage distress including focusing on the present and taking the time to talk and think through ways of managing stressors before taking action to decrease impulsiveness.
RECOMMENDATIONS
1.Manail would benefit from continued engagement with psychology after discharge to expand her repertoire of distress management strategies to assist with adjustment post-burns. I invited her to request clinical psychology input after discharge via SABU via any of the Burns staff members.
…
Appeal to the District Court
By notice of appeal filed 17 April 2025, Ms Chitubura appeals the Award on the following grounds, namely 'Didn't receive email/ not happy with amount'. This appeal is made pursuant to s 55 of the Act. In hearing this appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the assessor's decision': s 56(1) of the Act. An appeal under the Act is, therefore, a hearing de novo.[32]
[32] Gullelo v Halloran [2008] WADC 145 [5].
The court may determine the appeal 'solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information': s 56(1) of the Act. The court should admit further evidence unless there is some reason why it would be unjust to do so.[33] It is open to the court to 'confirm, vary or reverse the assessor's decision, either in whole or in part': s 56(2)(b) of the Act.
[33] Re: Tilbury [2010] WADC 46 [3]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9].
Pursuant to s 56(1), the materials before the court in this appeal, as relied on by Ms Chitubura are:
(a)the redacted Chief Assessor's papers lodged by the Chief Assessor on 27 May 2025 (ie the Assessor's Papers); and
(b)the documents before the Chief Assessor but which were not produced as part of the Chief Assessor's Papers filed by the Chief Executive Officer (CEO) on 2 July 2025 (Book of Documents):
(i)the bundle of documents produced by Royal Perth Hospital;
(ii)the bundle of documents produced by SCGH; and
(iii)the bundle of documents produced by FSH.
Ms Chitubura did not otherwise seek to rely upon any other additional material.
The hearing of the appeal took place on 19 August 2025. Ms Chitubura was self‑represented at the hearing. In her written submissions, Ms Chitubura identified the following in respect of the basis of her appeal:
(a)that the Reimbursement Order made on 5 March 2025 was made in her absence; and
(b)that the Award does not reflect the severity and long-term impact of the physical trauma and psychological injury suffered by Ms Chitubura as a result of having been deliberately assaulted with boiling water.
At the hearing, Ms Chitubura relied on her written submissions and made oral submissions, although at times those submissions were on matters unrelated to the appeal. The CEO was ably represented by Ms Symons of the State Solicitor’s Office, who appeared as amicus curiae.
Issues arising
The following issues arise for determination in the appeal:
1.Is Ms Chitubura entitled to an award of compensation?
2.If yes, what award of compensation is appropriate?
3.What is the effect (if any) of the Reimbursement Order on any award of compensation assessed?
I will deal with each of these issues in turn.
Issue 1: Is Ms Chitubura entitled to an award of compensation?
Legal principles - Alleged offence
Ms Chitubura's application for compensation with respect to the alleged offence was brought under s 17 of the Act; that is, for the commission of alleged offences for which no person has been charged. Section 17 of the Act relevantly provides:
17.Alleged offence: no person charged
(1)This section applies if an alleged offence is committed but no person is charged with the alleged offence.
(2)A person who suffers injury as a consequence of the commission of the alleged offence may apply for compensation for that injury and any loss also suffered.
…
(4)An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied -
(a)if the application is made under subsection (2) - that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the alleged offence[.]
The term 'alleged offence' is defined in s 3 of the Act as,
a crime, misdemeanour or simple offence of which no person has been convicted …
Where no conviction has been entered, the applicant for compensation bears the onus of proving the offence.[34] That includes establishing to the requisite standard that the alleged offender had no defence to the allegation that he or she committed the offence.[35] What is necessary to establish a matter on the balance of probabilities will vary according to the nature of what is sought to be established. In cases where criminal conduct is alleged, clear and cogent evidence will be required.[36] Section 17(4)(a) of the Act provides, in effect, that the court must not make a compensation award in respect of a s 17 application unless it is satisfied that the claimed injury and any claimed loss has occurred, and did so as a consequence of the commission of the alleged offence.[37]
[34] Re Carter (1984) 4 SR (WA) 219; MES v KG (1995) 12 SR (WA) 330, 331 - 332 and Re ATS [2017] WADC 92 [28] (Re ATS [2017]).
[35] Green v Lee (1996) 17 SR (WA) 93, 97 and Re ATS [2019] WADC 76 [28] (Re ATS [2019]).
[36] Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297 ‑ 298.
[37] Re Harvey [2023] WADC 83 [107].
Section 3 of the Act defines the term 'satisfied' as meaning 'satisfied on the balance of probabilities'. The applicant bears the onus of proving, to the civil standard, that an alleged offence has occurred.[38]
[38] Robinson [2017] WADC 18 [10]; Martin v Martin [2015] WADC 138 [29]; Re Jackamarra [2014] WADC 9 [13]; RW [2018] WADC 116 [17].
The 'alleged offence' is the burns sustained by Ms Chitubura to her neck, shoulder and right cheek when she was allegedly assaulted by a male, J, late in the evening of 23 March 2024, who approached her holding a kettle and threw a hot liquid onto her. It would be open to me to find that, given the evidence before me, the alleged offence is that of unlawful assault occasioning bodily harm pursuant to s 317 of the Criminal Code (WA). That section provides as follows:
(1)Any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime, and is liable -
(a)if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, to imprisonment for 7 years; or
(b)in any other case, to imprisonment for 5 years.
Having regard to the definition of 'alleged offence' in s 3 of the Act, this means that the applicant must satisfy the court, on the balance of probabilities 'that a specific act was committed against him or her which would qualify as a crime, misdemeanour or simple offence if the perpetrator had been convicted of it'.[39] The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved; that is particularly so when criminal conduct is alleged.[40]
[39] Re Jackamarra [13].
[40] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 170 ‑ 171; Briginshaw v Briginshaw (1938) 60 CLR 336, 362.
In the context of criminal injuries compensation, the Briginshaw approach has been applied regularly.[41] It is a serious matter to find that an alleged offender has committed an act in the nature of an offence, particularly where the alleged offender is not given the opportunity to refute those allegations.[42] 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 careful scrutiny and appears precise and not loose and inexact'.[43]
[41] Martin v Martin [30]; Re Jackamarra [73] - [74]; Re ATS [29], [141]. Re ATS [2017].
[42] Re Jackamarra [71], [75].
[43] Re ATS [29], [114].
To discharge the burden, the evidence adduced by the applicant must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a matter of mere conjecture.[44] Where an application for compensation is made under s 17 of the Act, the court cannot award compensation if it is satisfied that the alleged offender is not criminally responsible for the alleged offence, unless the alleged offender was not criminally responsible due to unsoundness of mind: s 17(5) of the Act.[45] Thus, an applicant is also required to negative any defences reasonably open on the evidence.[46]
Is Ms Chitubura a victim - Alleged offence
[44] Martin v Martin [30].
[45] Robinson [69] - [70].
[46] Robinson [22].
I must be satisfied on the balance of probabilities that the criminal offence said to constitute the 'alleged offence' was committed against Ms Chitubura.[47] The principal evidence in this regard is contained in Ms Chitubura's statement to WA Police dated 28 May 2024 and the contemporaneous records from WA Police in the form of running sheet records.[48] There is no evidence before the court that the burns were caused by some other event.
[47] Re ATS [2017] [28].
[48] Assessor's Papers, pages 11 ‑ 15.
Taking these matters into account, and upon considering the relevant materials within the Assessor's Papers, I am satisfied on the balance of probabilities that Ms Chitubura was the victim of the alleged offence of unlawful assault occasioning bodily harm.
It follows that I find that it is open for Ms Chitubura to apply for compensation for injury and loss pursuant to s 17 of the Act as a 'person who suffers injury as a consequence of the commission of the alleged offence'.
Issue 2: What award of compensation is appropriate?
Legal principles governing application for compensation
Compensation is payable where a person has suffered 'injury' in consequence of the commission of a proved offence and/or an alleged offence: s 12(1) and s 17(2) of the Act. Relevantly 'injury' is defined in s 3 of the Act to include bodily harm and mental and nervous shock.
In fixing the amount of compensation, the correct approach is to apply the ordinary tortious principles for the assessment of damages, subject to the jurisdictional limit imposed by the Act.[49] The ordinary tortious principles include that a person who is injured is obliged to obtain reasonable medical treatment. Failure to obtain reasonable medical treatment or to take reasonable medical advice as to treatment can be taken into account when determining the award of compensation to be made.[50]
[49] S v Neumann (1995) 14 WAR 452, 463.
[50] Bedetti v Chief Executive Officer [2003] WADC 37 [11].
A compensation award cannot be made unless I am satisfied that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence and/or an alleged offence: s 12(3) and s 17(4) of the Act. Section 3 of the Act defines 'satisfied' to mean 'satisfied on the balance of probabilities'.
The term 'as a consequence of' requires a causal relationship or connection between the injury and the commission of an offence.[51] The determination of whether the requisite causal connection exists is a question of fact to be resolved as a matter of common sense.[52] A sufficient causal connection will be established if, as a matter of ordinary common sense and experience, the offences are regarded as having 'materially contributed' to the injuries.[53]
[51] Fagan v The Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673; T v Curnuck [2004] WASC 139 [27]; B v B [2004] WASC 6 [14].
[52] Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 ‑ 413; Fagan v The Crimes Compensation Tribunal (673); Underwood v Underwood [2018] WADC 13 [87] (Underwood).
[53] Bonnington Castings Ltd v Wardlaw [1956] AC 613, 620; March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515; Lyle v Soc [2009] WASCA 3 [40]; Underwood [87].
In Nagel v Tahere,[54] Gething DCJ said:
… It is sufficient that, as a matter of ordinary common sense and experience, the assault should be regarded as having 'materially contributed' to the harm, in the sense that the contribution was not negligible.
[54] Nagel v Tahere [2020] WADC 110 [43].
According to the Oxford English Dictionary 'negligible' is defined as:
able to be neglected or disregarded; unworthy of notice or regard; so small or insignificant as to be ignorable.
Mental harm and nervous shock
Section 35(2) of the Act provides that:
(2)An assessor must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence, or for any loss in respect of such shock, unless the assessor is satisfied ‑
(a)that the victim also suffered bodily harm or became pregnant as a consequence of the commission of the offence; or
(b)that the victim was the person against whom, or against whose property, the offence was committed; or
…
The phrase 'mental and nervous shock' includes distress, horror, disgust and other similar adverse mental reactions but excludes fright, humiliation or anguish. In order to constitute mental and nervous shock, the injury must be more than a mere emotional reaction, it must have an enduring quality which impacts on the mental state or the nervous system of the person injured.[55]
Meaning of 'loss'
[55] M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992); B v S (Unreported, WASC, Library No 950223, 10 May 1995); S v Neumann (461); Martin v Martin [85].
Section 6(2) of the Act defines 'loss' to include:
…
(a)expenses actually and reasonably incurred by or on behalf of the victim -
(i)that arise directly from; or
(ii)that arise in obtaining any report from a health professional or a counsellor in relation to,
the injury suffered by the victim; or
Supporting medical evidence from an appropriately qualified medical practitioner is generally required to prove that an injury exists and was caused by the offence. The court will not generally rely on conclusions made by unqualified persons on the basis of medical records without such supporting evidence.[56]
[56] Re; Hojetzki [2009] WADC 77 [48].
In addition, s 6(2)(b) of the Act refers to 'expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment which the victim is likely to need as a direct consequence of the injury suffered by the victim' (emphasis added). Section 6(2)(b) is to be read in conjunction with s 48 of the Act. The effect of s 6(2)(b) and s 48 of the Act is that if an award is to be made for future medical expenses, an assessor or the court in the case of an appeal, must be satisfied of two matters:
(a)first, that the expense is likely to be reasonably incurred by the appellant; and
(b)secondly, that the need for the treatment is a direct consequence of the injury suffered by the victim.
The meaning of the word 'likely' as a degree of probabilities will vary according to the statutory context in which the word appears. Where the word is used in the context of criminal law it has been said that it should not be construed to mean 'more likely than not' or to assume a degree of mathematical probability not conveyed as a matter of ordinary language or the statutory context. It is said to convey a notion of substantial, real and not remote chance, regardless of whether it is more or less than 50%.[57]
Injuries as a consequence of the alleged offence
Physical injuries
[57] Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10.
Photographs of the burns Ms Chitubura sustained to her neck, shoulder and right cheek are included in the Assessor's Papers.[58] Ms Chitubura presented to the Emergency Department of SCGH on 23 March 2024, the day of the incident, at 11.00 pm. The burns were debrided but not dressed by SCGH staff.[59]
[58] Assessor's Papers, pages 20 ‑ 29.
[59] Book of Documents, pages 35 ‑ 43.
Ms Chitubura presented to the Emergency Department at Royal Perth Hospital on 24 March 2024, the day following the incident, at 15.17. At Royal Perth Hospital, Ms Chitubura's burns were cleaned, the remaining areas of blisters were trimmed and the burns were dressed. Ms Chitubura was referred by the Emergency Department of Royal Perth Hospital to the Burns Unit where she stayed from 26 March 2024 until 31 March 2024. There was significant exudate.[60]
[60] Book of Documents, pages 46 ‑ 153.
I am satisfied, on the balance of probabilities, that Ms Chitubura suffered physical injuries, in the form of superficial partial thickness burns to her posterior neck and shoulder, anterior right shoulder, right lateral neck and right cheek, as a result of being assaulted by a male, J, who approached her holding a kettle and threw a hot liquid onto her, during the commission of the alleged offence.
Psychological injuries
In order to claim compensation for mental and nervous shock, I must be satisfied that Ms Chitubura falls within one of the categories in s 35(2) of the Act.
There is limited evidence of Ms Chitubura's psychological symptoms resulting from the commission of the alleged offence. Ms Chitubura was seen by Ms Adele Summer, a clinical psychologist on 28 March 2024 whilst at FSH.[61] The hospital notes record that Ms Chitubura recounted the circumstances surrounding her burns with distress; that she reported that she had been experiencing flashbacks during the day, as well as rumination; and that she reported generally feeling more anxious than usual. One of the recommendations made by Ms Summers was that Ms Chitubura 'would benefit from continued engagement with psychology after discharge to expand her repertoire of distress management strategies to assist with adjustment post‑burns'.[62]
[61] Book of Documents, page 136.
[62] Book of Documents, page 101.
However, there is no evidence before this court that Ms Chitubura continued engagement with psychology after being discharged by the Burns Unit on 31 March 2024 despite the clinical psychologist's recommendation that Ms Chitubura 'continue engagement with psychology to expand her repertoire of distress management strategies to assist with adjustment post-burns'.
Assessment of compensation
The maximum amount of compensation which may be awarded for injury and loss is $75,000: s 31(1) of the Act. The maximum compensation payable under the Act is a jurisdictional limit and is not an amount which is reserved for the worst cases.[63]
[63] Underwood [112].
In her application for compensation, Ms Chitubura indicated, in effect, that she was claiming for both the physical and mental and nervous shock caused by the incident. There is no evidence before the court that Ms Chitubura was employed at the time of the incident or indeed any claim for 'loss of earning capacity', past or future, being advanced by Ms Chitubura.
The correct approach to adopt in assessing the amount of compensation under the Act is to apply the ordinary principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act, and to the jurisdictional limit of the Act.[64]
Past medical expenses
[64] Re Harvey[212].
As I have indicated above, the definition of 'loss' includes expenses reasonably incurred by or on behalf of the victim in relation to the injury suffered by the victim. Ms Chitubura incurred a bill of $566.50 from St John Ambulance in relation to the incident, this was paid by the Office of Criminal Injuries Compensation on 18 December 2024. There is no evidence of other loss (ie treatment expenses reasonably incurred) before the court.
Future medical expenses
As I have also indicated above, 'loss' includes expenses that are likely to be reasonably incurred by a claimant for future treatment needed as a direct consequence of the injury. There is therefore no evidence of the enduring quality which impacts on the mental state or the nervous system of Ms Chitubura after the commission of the alleged offence and Ms Chitubura did not provide a schedule of future treatment costs with her application.
Notwithstanding this, I am prepared to give some weight to the recommendations made by Ms Summers and Ms Chitubura's submission to the court that she continues to be affected by the incident and that she is still suffering distress after the commission of the alleged offence.
Overall, by reference to the available evidence:
(a)I am satisfied that Ms Chitubura has suffered some psychological symptoms as a consequence of the offences; and
(b)I am satisfied that, based on the FSH clinical psychologist's assessment there is a proper basis for me to award expenses for future medical treatment.
I therefore allow an amount for future expenses to contribute towards the cost of Ms Chitubura's continued engagement with psychology to expand her repertoire of distress management strategies to assist with adjustment post‑burns.
Where an award of compensation is made for future treatment, the award ought specify that amount, because s 48 of the Act conditions the payment of compensation for future treatment.
I therefore award a total amount of $2,500 for future treatment expenses, the payment of which is to be dealt with pursuant to s 48 of the Act.
I otherwise affirm the Chief Assessor’s award of $20,566.50 compensation in respect of the alleged offence. I do not consider a proper basis has been established for that award to be varied.
Issue 3: What is the effect (if any) of the Reimbursement Order on any award of compensation assessed?
Section 43 of the Act relevantly provides that:
An assessor may reduce the amount payable to a victim or close relative under a compensation award by an amount not exceeding any amount that the victim or close relative owes the State -
…
(b)under a compensation reimbursement order;
The Reimbursement Order was made in Compensation Application CIC 3351/2022 pursuant to which Ms Chitubura owes the State $17,679. Pursuant to s 43 of the Act, the Chief Assessor reduced the amount payable to Ms Chitubura under the Award by the amount payable under the Reimbursement Order (ie reduced the Award by $17,679).
An appeal can lie to this court from a decision made by an assessor in respect of a reimbursement order pursuant to s 55(2) of the Act. However, the Reimbursement Order was made in relation to Compensation Application CIC 3351/2022. The appeal notice for this appeal refers to Compensation Application CIC 4050/2024 (the Decision), not Compensation Application CIC 3351/2022.
When considering an appeal from a decision under the Act, this court must have before it the evidence and information that was in the possession of the assessor when making the decision: s 56(1). There is no evidence or material before the court in respect of CIC 3351/2021 which in any event is in respect of a separate and distinct criminal injuries compensation claim.
As Ms Chitubura is self-represented, the matter was stood down during the hearing of the appeal to allow Ms Chitubura further time to consider point. Ms Chitubura elected to proceed with the hearing of the appeal in respect of Compensation Application CIC 4050/2024 only. Matters to do with Compensation Application CIC 3351/2022 and the making of the Reimbursement Order were matters that were not before this court for the purposes of the appeal.
As no appeal has been commenced against the Reimbursement Order, the court is unable to determine an appeal against the Reimbursement Order. The Reimbursement Order therefore stands.
Conclusion
For the reasons set out above, the Chief Assessor's Award of $20,566.50, including $566.60 for interim treatment expenses in respect of Compensation Application CIC 4050/2024, is confirmed, and an additional award of $2,500 for future treatment is made, to be dealt with pursuant to s 48 of the Act.
As no appeal has been commenced against the Reimbursement Order, the court is unable to determine an appeal against the Reimbursement Order. The Reimbursement Order therefore stands.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LE
Associate to Judge Jeyamohan
2 SEPTEMBER 2025
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