Re Coad
[2023] WADC 9
•10 FEBRUARY 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE COAD [2023] WADC 9
CORAM: TROY DCJ
HEARD: 19 DECEMBER 2022
DELIVERED : 10 FEBRUARY 2023
FILE NO/S: APP 23 of 2022
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: BENJAMIN JOHN COAD
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: C F HOLYOAK-ROBERTS
File Number : CIC 701 of 2019
Catchwords:
Criminal injuries compensation - Appeal - Proved offences - Psychological injury - Any behaviour, condition, attitude or disposition of the appellant which contributed to the injury
Legislation:
Criminal Injuries Compensation Act 2003 (WA), s 3, s 12, s 18, s 31, s 41, s 45, s 48, s 55, s 56
Result:
Appeal allowed
Compensation awarded increased to $46,425.00
Representation:
Counsel:
| Appellant | : | Mr A A Nolan |
| Amicus Curiae | : | Ms H M Cowie appeared on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | A & E Legal Pty Ltd |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
ATS v Williss [2021] WADC 58
Bacich v Blight [2019] WADC 94
Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377
Blezard v Chief Executive Officer of the Ministry of Justice [2000] WADC 41
Edmonds v Juniper [2016] WADC 7
Guy v Hampson [2019] WADC 19
Harris v Sycamore [2022] WADC 4
Michael v Panetta (1994) 10 SR (WA) 323
Mule v The Queen [2005] HCA 49; (2005) 221 ALR 85
Reed v Reed [2002] WADC 11
Swinford [2021] WADC 82
Underwood v Underwood [2018] WADC 13
TROY DCJ:
Introduction
The appellant Mr Coad and the respondent Mr Norris have known each other since they were children and used to regularly socialise. Mr Norris and Mr Coad's father both lived at the same unit complex in Margaret River. On 24 April 2016 Mr Norris was at home. He and Mr Coad were on bad terms at the time. Mr Coad knocked on Mr Norris' door. Mr Norris was in an agitated state. He warned Mr Coad of his anger but let him into the unit. He then began aggressively questioning Mr Coad about family issues. Mr Coad tried verbally to calm Mr Norris down. Mr Norris pushed Mr Coad to the chest and grabbed him around the throat with his hand. Mr Coad pushed back at Mr Norris who grabbed Mr Coad by the throat again and reached for a knife on the kitchen bench.
Mr Norris lunged towards Mr Coad with the knife held in his right hand above his head. Mr Coad ducked his head down towards the ground, resulting in the knife inserting into the back of Mr Coad's head and neck. Mr Coad sustained a 10 cm wound between the base of the skull and the C3 vertebrae.
Mr Coad's father heard the commotion and went to the unit to assist.
Mr Coad and his father fled whilst Mr Norris followed them with the bloodied knife. Mr Coad ran to the local hospital where he was treated and subsequently was conveyed to Bunbury Hospital. Mr Norris was interviewed and made full admissions.
On 22 August 2016, in this court, Mr Norris pleaded guilty to the offence of unlawfully wounding Mr Coad with an intent to maim, disfigure, disable or do some grievous bodily harm. He was placed on a pre-sentence order and ultimately sentenced on 9 October 2017.
Mr Coad presented at Margaret River Hospital Emergency Department at 19:32:41 on 24 April 2016 with the following injuries:
•a 'knife wound (sharp) object to base of skull', recorded variously as '10-11cms deep', '8cm-10cm deep', and '10-11cm long', requiring 12 stitches 3/0 Prolene;
•a 2 cm laceration of the soft tissues of the lower scalp/upper neck region requiring 3 x 3/0 Prolene stitches;
•a deep 2 - 3 cm long laceration to the right forearm, requiring 3 x 3/0 Prolene stitches;
•a deep 2 cm long laceration to the right thumb requiring 3 x 3/0 Prolene stitches;
•the possibility of an undisplaced nasal fracture which was not X‑rayed;
•left supraorbital haematoma, with vision and eye movements unaffected.
Hospital staff recorded Mr Coad stating that he 'had a "bong" just before' the offence occurred. He did not suffer any neurological deficit as a result of his injuries. He was transferred to Bunbury Hospital Emergency Department via ambulance for a CT brain scan. The CT scan undertaken at 00:35 the following morning was unremarkable. Records indicated:
[p]ostlaceration changes in the midline of the cervical spine, maximal to the right as described. No extracranial vessel involvement. No significant intracranial features. Routine follow-up of the spherical cystic lesion anterior to the pinna on the left advised.
Staff recorded that Mr Coad was 'on Naltrexone for ice addiction' and his urine drug screen noted 'Meth', 'THC' and 'AMP' in his system. At 02:45 Mr Coad discharged himself from Bunbury Hospital against medical advice. He subsequently presented at Margaret River Medical Centre on a number of occasions commencing on 26 April 2016.
Mr Coad applied for criminal injuries compensation. On 31 March 2022, the Chief Assessor of Criminal Injuries Compensation, 'the Assessor' awarded him $12,975 compensation in respect of the offence. Under s 43 of the Criminal Injuries Compensation Act 2003 (WA), 'the Act', the Assessor made an order reducing the amount payable to Mr Coad by $10,531.05. That being the amount owed by Mr Coad to the State under a compensation reimbursement order made against him on 21 January 2020.[1]
[1] Application CIC 2892 of 2017.
Nature of this appeal
Section 56 provides that on an appeal under s 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision. The court may decide the application solely on the evidence and information that was in the possession of the assessor or, if appropriate, further evidence and information.
I take into account the appellant's book of documents filed on 2 December 2022. At the hearing of 19 December 2022, I indicated that I would take three series of documents that were not before the Assessor into account.[2] I also take into account the appellant's supplementary book of documents filed on 20 December 2022. As can be seen, I have also taken into account the transcripts of 22 August 2016 and 9 October 2017. As I will explain, I also received further written submissions from the parties on the applicability of s 41 of the Act on 1 February 2023.
[2] ts 6 - ts 7.
In deciding the appeal 'afresh' as directed by s 56(1), I must nonetheless be conscious to ensure that my decision is not based on factual material which is inconsistent with the material facts comprising the elements of the offences.
Section 18 of the Act provides that an assessor must determine compensation applications expeditiously and informally having regard to the requirements of justice and this Act. In deciding a compensation application, an assessor (and the court on an appeal hearing) is not bound by rules or practice as to evidence or procedure but may inform himself or herself in any manner he or she thinks fit.
Mr Coad's claim for compensation is based on 'the commission of a proved offence'. The term 'proved offence' is defined to mean 'a crime, misdemeanour or simple offence of which a person has been convicted'. Mr Norris' conviction of the offence is a proved offence for the purposes of the Act.
For a claim based on the commission of a proved offence, the scheme of the Act is that an assessor (or this court on appeal) starts from the basis of the proved offence, and then proceeds to determine causation and assess compensation. Compensation for a proved offence can only be awarded if the assessor is satisfied, on the balance of probabilities, that the applicant has suffered the injury and loss claimed, and that the injury and loss were a consequence of the commission of the offence.
Assessment of the quantum of the award to Mr Coad
The principles governing such an appeal are well settled. Mr Coad is not required to demonstrate that the Assessor erred in order to succeed.
I concur with the view expressed by his Honour Judge Bowden, in Guy v Hampson [2019] WADC 19 at [14] that:
It is not appropriate to have regard to the assessment made by the assessor but rather to independently review the evidence. A hearing de novo requires that the Appeal Court consider the matter afresh without regard to any previous decision.
The two primary issues I must determine are:
•whether an award of compensation can be made; and
•if so, the appropriate quantum of a compensation award.
Mr Coad claimed compensation, under s 12(1) of the Act for injury and loss suffered as a result of the proved offence[3] arising out of this single incident on 24 April 2016.
[3] As defined in s 3 of the Act.
Compensation is payable when a person has suffered injury in consequence of the commission of the proved offence. For the reasons I have set out, there can be no doubt about that.
I turn, therefore, to the question of quantum.
The maximum amount of compensation that may be awarded for a single offence is $75,000: s 31(1) of the Act. The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases.
The correct approach in fixing the appropriate amount of compensation 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 Act and the jurisdictional limit. In assessing the amount of compensation which should be awarded, I must have regard solely to the injury suffered by Mr Coad in consequence of the commission of the offence, and not to the (obvious) seriousness of the offence.
I steadily bear in mind that the amount is not to be fixed as a punishment for the offence. The punishment is the suspended term of imprisonment imposed on Mr Norris. Nor should it represent an expression of sympathy for Mr Coad as the victim.
Supporting medical evidence from an appropriately qualified medical practitioner is generally required to prove that an injury exists and was caused by the offence.
As Jackson QC DCJ set out in Blezard v Chief Executive Officer of the Ministry of Justice [2000] WADC 41 at [15] - [17] (citations omitted), the phrase 'mental and nervous shock' as used in s 3 of the Act, comprehends any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence or associated with the commission of the offence as those events impact on the mind or nervous system. In assessing mental and nervous shock the court must attempt to make a distinction between direct 'impact damage' and further damage that may be suffered by such things as the reaction of the victim's friends and family, court proceedings or public attention.
The term 'mental and nervous shock' includes distress, horror, disgust and similar adverse mental reactions but excludes mere fright, humiliation or anguish. What is contemplated by the Act is not a mere emotional reaction but something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury. It seems clear that conditions such as post-traumatic stress disorder and depression are compensable, subject to proof of causation regardless of remoteness or foreseeability.
The material before the court regarding the physical harm claimed by Mr Coad is as follows:
•Assessor's Papers pages 76, 79 - 81 (Margaret River Hospital Emergency Department Notes for 24 April 2016) and Assessor's Papers 73 (Letter from Dr Wilson dated 9 January 2020);
•Assessor's Papers pages 100, 102, 104 (Bunbury Hospital Emergency Department Notes);
•Assessor's Papers pages 154 - 156 (Margaret River Medical Centre Records).
The material before the court regarding the psychiatric injury claimed by Mr Coad is as follows:
•Assessor's Papers pages 137, 143 - 144, 151, 154 (Margaret River Medical Centre Records);
•Assessor's Papers page 183 (Referral Acknowledgement from Petrina Yates);
•Assessor's Papers pages 71 - 72 (Psychology Report of Dr Rosenbach‑Ziembinski dated 4 July 2019).
•Assessor's Papers page 73 (Letter from Dr Wilson dated 9 January 2020);
•Appellant's Additional Book of Documents pages 16 - 28 (Psychiatric Opinion Report of Dr Ng dated 28 September 2022).
I accept as a general proposition that at least part of the available evidence as to the extent of Mr Coad's psychiatric injury is based on his own self-report.
I am satisfied, however, that Mr Coad finds talking about the aftermath of the events of 24 April 2016 very traumatic and that he had recurring nightmares for several months after the incident.
I acknowledge the diagnosis of post-traumatic stress disorder to a moderate to moderately severe extent which is currently present to a residual extent. Further, that this condition is accompanied by heightened anxiety and depression and that the physical trauma of the knife attack is the main contributor to Mr Coad's psychological symptoms. These symptoms include disturbed affect, mood, sleep and flashbacks.
I accept that Mr Coad has accurately reported that his mood became quite depressed, at times he experienced transient suicidal ideation, he became hypervigilant of his surroundings and anybody picking up a knife would trigger flashbacks.
When Mr Coad saw Dr Ng on 28 September 2022 he lacked self‑confidence and was socially withdrawn, generally anxious and hypervigilant for himself and his partner of his surroundings. He experiences increased anxiety when he sees knives and avoids unfamiliar surroundings and crowded places. His sleep remains disturbed by sleep continuity difficulties, middle insomnia, and occasional nightmares. He is unable to tolerate anyone standing behind him.
The physical and psychiatric effect of the offending on Mr Coad has now persisted for well over six and a half years and will continue to impact Mr Coad into the future. Mr Coad's injuries and symptoms have prevented him from enjoying his employment, social and recreational life in the manner he did prior to the offence. Additionally, Mr Coad's physical scarring is prominently located and permanent.
I have had some regard to other assessments involving criminal injury compensation, in particular:
•Bacich v Blight [2019] WADC 94, Levy DCJ;
•ATS v Williss [2021] WADC 58, Goetze DCJ;
•Swinford [2021] WADC 82, Russell DCJ;
•An unpublished decision of my own, handed down on 23 August 2021.
In so doing I adopt the approach of his Honour Judge Jackson QC in Michael v Panetta (1994) 10 SR (WA) 323, 323 - 324:
The task of assessing the appropriate amount of compensation can only be carried out by way of a broad and subjective assessment of what, according to community attitudes, would be regarded as reasonable compensation.
The burden is on Mr Coad to establish, on the balance of probabilities, that following the proved offence, he has suffered the injury claimed, and that the injury was a consequence of the commission of the offence.[4] I am satisfied that the proved offence occurred. I am satisfied that the claimed injury occurred as a consequence of the proved offence.[5]
Conclusion on quantum of award
[4] Section 12(3)(a) of the Act.
[5] Section 12(1), s 12(3) read together with Underwood v Underwood [2018] WADC 13 at [46] ('… the scheme of the [Act] is that the Assessor starts from the basis of the proved offence, and then proceeds to determine causation and assess compensation').
I consider that the fair and reasonable award to compensate Mr Coad for pain and suffering and psychiatric injuries caused by Mr Norris' proven offending is $40,000.
Did Mr Coad commit a separate, disentitling offence(s)?
I discussed the principles relating to the application of s 39 of the Act in Harris v Sycamore [2022] WADC 4 [40] - [57].
There is circumstantial evidence that at some point prior to the proven offence Mr Coad used a drug or drugs and therefore at some point was in possession of an illicit drug such as cannabis or methamphetamine. Possession of drugs is of course an offence under s 6(2) of the Misuse of Drugs Act 1981 (WA). But I agree with counsel for the amicus that there is no clear, cogent evidence that when Mr Coad was injured as a consequence of the commission of a proved offence, that injury was suffered during the commission of a separate offence(s).
Did any behaviour, condition, attitude, or disposition of Mr Coad contribute directly or indirectly, to his injury?
I also discussed the principles relating to the application of s 41 of the Act in Harris v Sycamore at [126] et seq.
Proof of the fact of Mr Norris' conviction constitutes evidence of the material facts comprising the elements of the offence and necessarily means that all relevant defences have been conceded as not applying. Notwithstanding that well settled principle, any award of compensation may, in a given case, be reduced under s 41 of the Act.
Section 41 of the Act relevantly provides that:
Behaviour etc of victim to be considered
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor -
(a)must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury; and
(b)may, if he or she thinks it is just to do so -
(i)refuse to make a compensation award because of that contribution; or
(ii)reduce the amount that the assessor would otherwise have awarded.
I accept that the section refers to contribution to the injury not the offence, but it is somewhat difficult to disentangle the injury caused from the offence which brought about the injury.
Any reduction made to an award of compensation under s 41 of the Act must be applied after the jurisdictional maximum is applied.[6]
[6] Reed v Reed [2002] WADC 11 [2] (Deane DCJ); Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377, 381 (Sadleir DCJ).
Section 41 may be applicable in an appropriate case where the victim's conduct provoked an assault.[7]
[7] See, Edmonds v Juniper [2016] WADC 7 [19] (Goetze DCJ).
I am satisfied that there is a strong probability that Mr Coad was a methamphetamine user as of 24 April 2016. Whilst that would constitute 'behaviour', I am not satisfied, however, that any such behaviour contributed directly or indirectly to his injury.
I do need, however, to consider whether Mr Coad's behaviour in attending at Mr Norris' unit, entering it and anything I find that he said or did to Mr Norris, enlivens s 41. Given the amicus' position in its original written submissions that s 41 did not appear to be relevant in the circumstances of this case, it is readily understandable that counsel for Mr Coad did not engage with this issue. Having reflected on the relevant sentencing transcripts (which were not before the Assessor and were not formally before me at the time of the 19 December 2022 appeal hearing) I considered it appropriate to seek further written submissions on this issue. I did so on 19 January 2023 and received helpful written submissions from the appellant and the amicus, in each case on 1 February 2023.
At the hearing of August 2016, defence counsel submitted:
It was more of a reaction to what was going on, a complete overstep of the mark, because there was obviously a confrontation between him and the victim, and there may have been a physical contact between the pair of them before my client has finally, shall we say, snapped and did what he did. So it's not as if he went there with a knife in his hand and barged through a door and stabbed someone. The factual scenario is not one of his own making, I would suggest.
The sentencing judge, McCann DCJ noted,
well, I note that he didn't - that the victim wasn't welcome in his house.
His Honour continued:
I understand the victim isn't a particularly remarkable individual himself and is capable of unpleasant behaviour. The note I've made here just listening to you is the thought occurred to me - because I'm across the brief, of course. I'm just listening to what you're saying. It would seem to me that the victim's behaviour may have inflamed the situation.
In making a pre-sentence order his Honour stated (ts 13):
The attack was malicious. However, there were some extenuating circumstances. I'm satisfied that this attack was not unprovoked. The victim made himself - presented himself at Mr Norris' house uninvited and came inside even though he knew he was not welcome. He is a man of, I understand, unpleasant tendencies and on my reading of the brief it would seem to me that Mr Norris was provoked by what is effectively passive/aggressive unwelcome behaviour by the victim. Unfortunately, Mr Norris was under the influence of methylamphetamine at the time and that is the main reason the offence occurred and that is not mitigating.
Ultimately, on 9 October 2017, his Honour sentenced Mr Norris to 18 months imprisonment suspended for 8 months. At no stage in the various hearings did the State dispute his Honour's observations concerning Mr Coad.
Whether it is appropriate to preclude or reduce an award of compensation is a matter of fact. Section 41 gives a discretion to the court to be exercised according to law, taking into account the purpose of the legislation. Any reduction made to an award of compensation under s 41 of the Act must be applied after the jurisdictional maximum is applied.
I note the contents of Mr Coad's affidavits sworn on 25 April 2016, 20 December 2021 and 30 November 2022. I accept that there are some internal inconsistencies as the amicus has identified in its further submissions at pars 24 - 26. I note the unchallenged[8] findings of the sentencing judge that Mr Coad's behaviour in going into Mr Norris' unit when, to his knowledge Mr Norris was in an agitated state, constituted provocation.
[8] By prosecuting counsel, there being no opportunity for Mr Coad to challenge the learned judge's assessment.
I agree with the amicus that his Honour's conclusions appear to be based upon Mr Norris' record of interview of 24 April 2016, in particular the passage quoted at par 22 in the further submissions. Of course, in criminal trials judges often direct juries[9] that they are not obliged to give the same weight to an accused's exculpatory responses as they do to any admissions that are made, given that answers in an interview are not on oath nor have they been tested by cross‑examination. I follow that approach in considering the weight I give to Mr Norris' interview.
[9] Following Mule v The Queen [2005] HCA 49; (2005) 221 ALR 85.
The fact that the sentencing judge accepted Mr Norris' self‑serving assertions against Mr Coad for the purposes of quantifying Mr Norris' culpability, does not by itself prove such conduct when it comes to my assessment of Mr Coad's behaviour. That is particularly so when Mr Coad did not have the opportunity to challenge the relevant parts of Mr Norris' interview.
Whilst acknowledging the inconsistencies in Mr Coad's affidavits, on the materials before me I cannot be satisfied that Mr Coad did anything other than attend Mr Norris' unit, a man that he knew, and entered in circumstances where he was aware that he may not be welcome. Mr Norris did not tell him not to come in and Mr Coad did not force his way into the unit.
I cannot be satisfied that Mr Coad's mere presence in the unit deprived Mr Norris of his powers of self-control. Whilst Mr Norris may well have subjectively considered that Mr Coad's presence was provocative, I am not satisfied that objectively that was so. Particularly, given that Mr Norris' subjective belief is highly likely to have been influenced by his use of methamphetamine.
I bear in mind the beneficial purposes of the Act as discussed by Gething DCJ in Underwood v Underwood at [139].
I do not consider that Mr Coad's behaviour in attending at and entering the unit was intentionally provocative, aggressive or intimidatory. I am not satisfied that Mr Coad said or did anything (other than attending and entering) that might be so characterised. I am not satisfied that he was an aggressor or the aggressor.
I am not satisfied that Mr Coad's behaviour contributed to the offence and his injury. Accordingly, it is not open to me to reduce the amount I would otherwise have awarded by reason of s 41.
Other loss
Compensation is also payable where a person has suffered 'loss', which is defined to mean expenses, future treatment expenses, loss of earnings, and any loss arising from damage to personal items caused by the compensable offence.
(a) Reasonably incurred expenses
Section 6(2)(a) of the Act permits the recovery of expenses that arise in obtaining a report from a health professional or counsellor. There is now - in the supplementary book of documents which I also have regard to - a receipt setting out the expenses actually incurred by Mr Coad in obtaining a report from a health professional in relation to his injuries. I allow the sum of $1,925 under this head for Dr Ng's report.
(b) Future medical treatment
In his report of 28 September 2022, Dr Ng expressed the view, which I accept, that Mr Coad would benefit from at least a further 12 sessions of trauma specific psychotherapy that should occur at least once every 2 ‑ 4 weeks, at a cost of $355 per session. Dr Ng notes that Mr Coad's psychiatric condition has largely been under treated and, if Mr Coad were to avail himself of the psychiatric treatment recommendations, some degree of psychiatric improvement may well occur in respect of the current and residual psychiatric symptoms with the further passage of 12 - 24 months. I accept those conclusions.
There will be an award, under this head, of 12 x $355.00 = $4,260.00. Section 48 of the Act does condition that payment of compensation for future treatment such that future medical treatment expenses are not paid unless and until proof that they have been incurred is provided to the assessor.
(c) Economic loss
Section 6(2)(c) of the Act defines 'loss' as including 'loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim'.
It is the loss of earning capacity, and not the loss of earnings, that is to be the subject of compensation. It is necessary to identify both the capacity that has been lost and the economic consequences that will likely flow from the loss. It is only when this has been done that it becomes possible to assess the sum that should be paid to an applicant to put him or her in the same position as he or she would have been in, if the injury had not been sustained.
In assessing loss of earning capacity and the economic consequences that will probably flow from that loss, the past may provide important evidence. What a worker earned in the past may provide useful, albeit not determinative, guidance about what would have been earned if the worker had not been injured.
The Additional Book of Documents contains Mr Coad's taxation records between 2012/2013 and 2021/2022, excluding 2016/2017.
His taxable income in those years was:
2012/13: $18,775.00
2013/14: $20,226.00
2014/15: $10,444.00
2015/16: $8,369.00
Mr Coad has stated that, as at the date of the incident, he was unemployed but he was looking for work. He was unable to find work immediately after the incident due to his physical injuries. It is not entirely clear how long prior to the incident Mr Coad had been unemployed, although it appears that in the 2014/2015 tax year he did not receive any income other than Newstart Allowance and Youth Allowance.
I accept that the claim is put on the basis of loss of earning capacity as opposed to loss of earnings.
I am not satisfied that from a psychological standpoint Mr Coad was rendered unfit from any work for a period of six months.
I consider that potential occupations where Mr Coad has to interact with others who are potentially or actually aggressive, violent or intimidating would be very limited. Such behaviour in the contemporary workplace will almost always lead to termination of employment.
I am not satisfied that I should make a global allowance for past or future loss of earning capacity.
(d) Damage to personal items
Section 6(2)(d) of the Act defines 'loss' as including 'any loss arising from any damage caused as a direct consequence of the commission of the offence to any personal item[10] that was being worn by the victim when he or she suffered the injury'.
[10] Defined as an item of clothing or footwear.
I do not consider that there is a sufficient evidential base to make an award under this head.
(e) Travel costs
I accept that Mr Coad will be required to travel to and from treatment providers to obtain the treatment recommended for his injuries and I allow the sum of $240 for such travel as a global award. That will also be subject to s 48 of the Act.
Amount owed to the State - s 43 of the Act
By s 43(b) of the Act, an assessor may make an order reducing the amount payable to an appellant under a compensation award by an amount not exceeding any amount that they owe the State under a compensation reimbursement order. On appeal, this court may make any order that an assessor could make under the Act.
On 21 January 2020, a compensation reimbursement order was made under s 52 of the Act, ordering Mr Coad to pay to the State the amount of $10,531.05, being the amount awarded to a victim in application CIC 2892 of 2017 in circumstances where Mr Coad had caused the injuries.
I consider it appropriate to reduce the amount payable to Mr Coad by $10,531.05, being the amount owed by him to the State under that compensation reimbursement order.
Barring order - s 45(1) of the Act
Mr Coad has not sought to appeal the order made by the Assessor under s 45(1) of the Act that only $5,000 may be the subject of proceedings, under pt 6 of the Act. Of course, the appeal is an appeal de novo. An order made under s 45 of the Act is often referred to as a 'barring order'. In Harris, I reviewed the authorities on s 45 and expressed the view that while an order under s 45(1) of the Act could not form the basis of an appeal, the preponderance of authority was to the effect that where, on an appeal, a change is made to the award that would carry with it the associated power to make an order as to how much of the award on appeal might be barred from recovery from the offender.
I also consider that a barring order is made in the sum of $5,000.
Orders
For the reasons stated, I allow the appeal, and vary the award of the Assessor increasing the compensation award in favour of Mr Coad from $12,975 to $46,425, made up as follows:
1. Compensation for Mr Coad's injury: $40,000.00 2. Report fees: $1,925.00 3. Future treatment expenses: $ 4,260.00
(payment of which is subject to satisfaction of the requirements in s 48 of the Act).
4. Travel costs: $240.00
(payment of which is also subject to satisfaction of the requirements in s 48 of the Act).
TOTAL: $46,425.00
$10,531.05 is deducted from the award assessment of $46,425.00.
I award the sum of $35,893.95 to be paid to Mr Coad and $10,531.05 to the State.
Under s 45(1)(b) of the Act, I order that only $5,000 may be the subject of proceedings under pt 6 of the Act.
There will be no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MR
Associate to the Judge
9 FEBRUARY 2023
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