| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : RE ESMAYILI [2014] WADC 38 CORAM : BRADDOCK DCJ HEARD : 14 FEBRUARY 2014 DELIVERED : 31 MARCH 2014 FILE NO/S : APP 69 of 2013 MATTER : IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an application by
HADI ESMAYILI
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA Coram : L V DEMPSEY Citation : [2013] WACIC 22 Catchwords: Criminal injuries compensation - Alleged offence - Extension of time for appeal - Quantum of award of damages - Further evidence on appeal Legislation: Criminal Injuries Compensation Act 2003, s 17, s 18(2), s 55(3), s 55(4), s 31(1) Result: Appeal allowed
Compensation order of assessor varied
Representation: Counsel:
Appellant : Mr McCabe
Amicus Curiae : Mr Winton appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Slater & Gordon
Amicus Curiae : State Solicitor of Western Australia
Case(s) referred to in judgment(s):
A v D (1994) 11 WAR 481
Bedetti v Chief Executive Officer [2003] WADC 37
Esmayili [2013] WACIC 22
Fagen v Crimes Commission Tribunal [1982] HCA 49; (1982) 150 CLR 666
Gallo v Dawson (1990) 93 ALR 479
Hogben v Darcy [2009] WADC 63
Medlin v State Government Insurance Commission (1995) 182 CLR 1
RBF v OSD-S [2004] WADC 97
S v Neumann (1995) 14 WAR 452
Introduction 1 This is an appeal from a decision of an assessor of criminal injuries compensation made on 31 July 2013: Esmayili [2013] WACIC 22 (CIC decision). 2 On 15 January 2012, Hadi Esmayili was in Northbridge, Perth at the corner of Aberdeen and Beaufort Streets, with a friend and his brother. It was the early hours of the morning. Whilst his brother and friends went to McDonalds, Mr Esmayili was assaulted by an unknown person. A car pulled up nearby. A passenger swore at him, then the passenger exited the car, still swearing, and without warning, punched Mr Esmayili to the right side of his face on the cheek. As a result of the assault Mr Esmayili suffered a comminuted fracture of his jaw and damage to his teeth, requiring surgery. 3 Although the incident was reported to the police, they were unable to apprehend the assailant, and nobody was charged arising out of the assault. 4 Mr Esmayili made an application for criminal injuries compensation, pursuant to s 17 of the Criminal Injuries Compensation Act 2003 (the Act). On 31 July 2013 the assessor made an award of $37,426.90. A written notice of appeal filed, on 6 September 2013, lists the following grounds: 5 Reasons for decision were published by the assessor on 29 October 2013. The appeal of Mr Esmayili proceeded on the basis that the award was inadequate due to a lack of appreciation of the severity of the appellant's psychiatric condition. The grounds were not amended.
Extension of time to appeal 6 An appeal against the order of an assessor under the Act must be commenced within 21 days after the order. If it is just to do so, the court may grant leave to commence an appeal after the expiry of that period: s 55(3) and s 55(4) of the Act. In this case, the appeal was not lodged within 21 days and it is out of time by a period of 16 days. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson (1990) 93 ALR 479. 7 On 23 August 2013, Mr Esmayili instructed solicitors. The solicitors attempted to file a notice of appeal on that day, which would then have been out of time by three days. It was not accepted for filing. The appeal notice was ultimately lodged on 6 September 2013. Mr Esmayili is a refugee from Iran who arrived in 2011 by boat. His native language is Persian, although he speaks some English. At the time he was still suffering from the psychological consequences of his injuries. An affidavit was filed by the solicitor (for Mr Esmayili) explaining the above in support of the extension of time. Having instructed solicitors, since the notice of appeal was filed, the matter has proceeded with diligence. 8 Given the fact that the appeal was lodged only 16 days late and taking into account the fact that Mr Esmayili was not represented earlier I am satisfied that it would be just to allow the appeal to be commenced on the date that the notice was filed and accepted.
Further evidence produced on appeal 9 At the hearing of the appeal, I allowed further evidence to be was produced, consisting of the following: 1. A report of David Sullivan, forensic psychologist, of Werribee Psychological Services, together with the letter of instructions to Mr Sullivan; 2. Mr Esmayili's certificate of qualification from Iran in cold and hot water plumbing, translated into English; 3. A letter from Mr Esmayili concerning his work in Iran. A letter from Meysam Esmayili, his brother, concerning Mr Esmayili's work in Iran; 4. A copy of Mr Esmayili's visa evidence card; and 5. Photographs of Mr Esmayili before and after the assault. 10 Pursuant to s 56 of the Act, the District Court must decide the application on appeal afresh, on the evidence and information that was in the possession of the assessor but may receive further evidence and information. The District Court is not fettered by the assessor's decision, that is to say the appeal is determined as a hearing de novo. It is open to the District Court to confirm, vary or reverse the assessor's decision, either in whole or in part: s 56(2)(b) of the Act. An appellant does not have to demonstrate error on the part of the assessor in order to succeed, but it is appropriate to give due regard to the reasons of the assessor as a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63 [13]. 11 The materials for the appeal were presented in a book of documents prepared by the solicitors for the appellant, including all the materials from the office of criminal injuries compensation which materials were available to the assessor at the time she made her award.
The assessor's decision 12 The assessor had statements of Mr Esmayili, to the police, a further statement for the purposes of the application and a 'statement of the effects' upon him of the injury, together with an updating statement in May 2013. There was also a statement from Ms Helen Wyse, who is described as Mr Esmayili's carer. There were included in the file, the police report, running sheet and their register of action. Under the medical documents were the in-patient records from Royal Perth Hospital, including a discharge letter, a report of Dr Harry Laparidis, dental surgeon, a letter from Mr Jabrulla Shukoor, psychologist, a letter from a GP and various email communications between the office of criminal injuries and Ms Helen Wyse. 13 From that correspondence, and the reasons of the assessor, it is quite apparent that the office of criminal injuries had some difficulties in assembling all the relevant materials for the assessment of Mr Esmayili's claim. On 31 July 2013, the sum of $37,426.90 was awarded, comprising a payment to Dr Laparidis in the sum of $640 and to Ms Helen Wyse in the sum of $131 (which had been advanced by way of interim payments on 22 January 2013) $30,155.90 damages and $6,500 for future treatment pursuant to s 48 of the Act.
Assessor's written reasons 14 The assessor recounted the circumstance of the assault, and Mr Esmayili's treatment at the Royal Perth Hospital. His fractured jaw was plated by way of an open reduction and internal fixation and the left wisdom tooth was extracted. He also lost another front tooth. As a result of his injury and treatment, he had to have a liquid diet for two months. He said that his jaw was better, but it still could be painful when the weather was cold, his bite was uneven and that put pressure on some of his teeth. He had a partial denture for the tooth that had been knocked out which he finds uncomfortable and painful when eating. He lost a significant amount of weight because of these factors. The assessor noted the mental deterioration of Mr Esmayili as a loss of confidence, a lack of desire to socialise and worried that he would be assaulted. Mr Esmayili moved to South Australia in about August 2012, hoping that this would improve his condition. Ms Helen Wyse wrote to the assessor indicating that Mr Esmayili's condition was getting worse and he had been prescribed various medications including Diazepam for anxiety. He suffered from insomnia and depression. The assessor was able to obtain directly from Mr Jabrulla Shakoor a report dated 16 November 2012. It appears that Mr Esmayili was referred for counselling in January 2012 by his Red Cross case worker and attended 13 sessions. These finished when he relocated to Adelaide. Mr Shakoor's opinion, noted by the assessor was that: [A]s a result of both the incident and the events that happened in Iran the applicant suffered from psychological distress and presented with numerous symptoms associated with post-traumatic stress disorder, anxiety and depression. 15 The assessor subsequently learned that Mr Esmayili had recently been hospitalised in Adelaide for depression and suicidal ideation but was provided with limited details of the occurrence and its treatment. 16 To say that the information provided to the assessor had to be extracted and trickled into her office is perhaps an understatement. Nevertheless, the assessor was provided with Dr Laparidis' report, and an account for x-rays. The assessor subsequently learned that Mr Esmayili had seen a specialist oral and maxillofacial surgeon (Dr Doddridge), who said that the fracture had incurred some nerve damage and that surgery hardware was interfering with the nerve which was the reason he was experiencing pain. Surgery was not suitable to alleviate these problems and medication was required. It appeared that subsequently Mr Esmayili was prescribed a low dose of Endep to manage his neuropathic pain in the long term. The assessor was of the view that Mr Esmayili had suffered considerable psychological distress, but the comments of Mr Shakoor were then a year before and the assessor had no up to date professional information as to Mr Esmayili's mental state. The assessor also remarked upon the lack of clarity about Mr Esmayili's pre-morbid mental state due to Mr Shakoor's reference to his experiences in Iran. 17 In those circumstances the award for general damages for his physical and psychological injuries was assessed at $30,000, without further explanation and out of pocket expenses were included. Further an award of $6,500 was made for future treatment, as recommended and costed by Dr Laparidis. 18 This court now has the benefit of a forensic psychology report, further updates from Mr Esmayili, which confirm that he continues to suffer pain when eating, that he lost 30 kg in weight, that he takes medication for depression and has had counselling which has not been successful. He says that he was a plumber before he came to Australia and intended to work as a contractor plumber when his protection visa was granted. He said that he cannot attend interviews because of his mental state, he finds it difficult to go out to attend courses to improve his English at TAFE. His brother confirms that prior to the injury Mr Esmayili was 'always smiling and had a good attitude towards life even though we have experienced some hard times in the past'. Mr Esmayili is no longer able to leave the house without the company of himself or Ms Wyse. Mr Esmayili has become very distant and does not communicate with anybody except his brother and Ms Wyse who states that he needs a lot of dental work and treatment to assist him.
The report of David Stuart Sullivan 19 Mr David Sullivan has provided a lengthy report dated 10 January 2014. This comprises a thorough psychological assessment of Mr Esmayili. Mr Sullivan is an experienced forensic psychiatrist whose qualifications are set out in full, annexed to his report. He was provided with the relevant materials by Mr Esmayili's solicitors, including the report of Mr Shakoor dated 16 November 2011 and the dental documents. His report is based upon these and two clinical interviews with Mr Esmayili. From his report Mr Esmayili's background becomes clearer. He was the second of six children, born in Iran in 1986, who started work with his father as a plumber at the age of 13, on a part-time basis. He left school at 15 and continued to work and subsequently obtained a certificate of qualification in plumbing hot and cold water. Mr Esmayili left Iran in March 2011 together with his young brother aged 16. They came to Australia by boat from Indonesia and landed at Christmas Island. He spent time in a detention centre in Kalgoorlie, moved to Perth towards the end of 2011 and now has been granted a protection visa. Mr Esmayili told Mr Sullivan that he had obtained psychological treatment with Mr Shakoor, whom he describes as a recently registered psychologist, and had about 13 consultations. 20 He moved to Adelaide on 28 August 2012, subsequently being admitted as an in-patient at Glenside Hospital, which is psychiatric treatment hospital in Adelaide. Apparently he received no follow up on discharge. Mr Esmayili then moved to Renmark and subsequently to Werribee in Victoria. He arrived in Werribee on 16 July 2013 and consulted a general practitioner, Dr Bradley who has prescribed medications including anti-anxiety medication and referred him to a psychologist at a catholic church agency. The psychologist did not follow up with Mr Esmayili and it is reported that he made a comment to Mr Esmayili to 'be a man'. 21 Ms Esmayili lives with Ms Helen Wyse and her two daughters. Ms Wyse is described as his carer. Mr Esmayili is not employed, is not currently receiving any medical, pharmacological or psychological treatment. When asked by Mr Sullivan, Mr Esmayili replied that he only went out to do necessary stuff, he went shopping with Ms Wyse and his moods were variable. He has difficulty leaving the house and seldom leaves the house alone. He takes anti-anxiety medication on an occasional basis. He suffers from waking at night and from angry outbursts. 22 Mr Sullivan's opinion is that Mr Esmayili is suffering from severe and chronic anxiety, hyper-vigilance, significant sleep disturbance, disabling social avoidance, fluctuating irritability and severely depressed mood. He states that he is not aware of any prior psychological or psychiatric disorder or dysfunction prior to 15 January 2012. In his opinion, Mr Esmayili's current psychological dysfunction and his restrictions and disablement are a direct consequence of the violent physical assault perpetrated upon on 15 January 2012 and its consequences. He is of the view that despite the treatment he has obtained, Mr Esmayili is severely psychologically disabled and restricted in his capacity to engage in appropriate social, recreational and occupational activities. His clinical finding is that Mr Esmayili suffers from a moderately severe adjustment disorder with mixed anxiety and depressed mood. He also states that the adjustment disorder has become entrenched and habituated as a consequence of the inadequate psychological treatment which he has received. His view is that when he saw Mr Sullivan his condition was substantially untreated. 23 Given these matters, he expressed the view that Mr Esmayili was currently totally incapacitated for any employment for which he is qualified. In relation to the prognosis, he stated that even if Mr Esmayili were to receive skilled intensive psychological treatment provided immediately by an experienced specialist trauma psychologist, in conjunction with appropriate medical and pharmacological treatment, the current severity of his psychological dysfunction was such that a prognosis as to his longer term psychological functioning and the timeframe for that prognosis was not possible. 24 Specifically, he stated he was unaware of any other disorder or dysfunction which would have affected his capacity for work. He thought that Mr Esmayili would remain vulnerable even with the best treatment to recurring episodes of an adjustment disorder. The symptoms of that include hyper-vigilance, exaggerated startle response, difficulties with trust, uncertainty and loss of confidence. He did not think that the condition would spontaneously remit due to the passage of further time, required intensive treatment. He said he ought to be given psychological treatment on at least a weekly basis extended to fortnightly and then monthly consultations. When an optimal psychological adjustment had been achieved he would require ongoing episodic treatment to deal with any exacerbations. His view was that this regime of fortnightly then monthly consultations might need to extend over 24 months to 36 months to a total of 44 consultations over a two-year period. His opinion was that the cost of such a specialist therapist would be at the current rate of $228 per consultation.
Assessment of compensation 25 On this appeal the court may exercise any power of the assessor under the Act, subject to certain exemptions which are for current purposes irrelevant. In deciding the appeal this court is not bound by rules or practice as to evidence or procedure and may inform itself in any manner it thinks fit: s 18(2).
Jurisdictional limit 26 The maximum compensation that may be awarded in favour of a person for a single offence is $75,000: s 31(1). 27 The maximum compensation payable under the Act is a jurisdictional limit and is not to be reserved for the worst of cases: S v Neumann (1995) 14 WAR 452, 463.
The assessment of compensation 28 The offence is an 'alleged offence': s 3. Mr Esmayili, as the victim of the alleged offence, is entitled to compensation for any injuries suffered as a consequence of the commission of the alleged offence and also for any loss suffered: s 17(1) and s 17(2). 29 Injury is defined in s 3 of the Act to mean 'bodily harm, mental and nervous shock, or pregnancy'. Loss is defined in s 6(2) of the Act to mean 'so far as is presently relevant, expenses incurred by or on behalf of the victim that arise directly from the injury suffered by the victim, and loss of earnings suffered by the victim as a direct consequence of the injuries suffered by the victim'. Loss of earnings includes loss of earning capacity: A v D (1994) 11 WAR 481, 495 – 496. 30 Mental and nervous shock contemplates a more enduring injury than simply fright and anguish for example. The injury in question needs to be such that is to say something significant and enduring and detrimental. Section 35(2) provides that the court cannot award compensation for mental and nervous shock unless satisfied that the victim also suffered bodily harm as a result of the commission of the alleged offence. In this instance, clearly, it has been demonstrated that the physical injuries were caused by the assault. 31 Ordinary tortious principles apply for the assessment of damages within the context of the definitions in the Act of injury and loss, subject to the jurisdictional limit. 32 It is also necessary that a claimant establish, on the balance of probabilities, causation of the injury by the commission of the offence and causation of the loss for which compensation is sought. It does not have to be the sole cause of any injury or loss but it needs to be materially contributing to that injury or loss: Fagen v Crimes Commission Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673; S v Neumann (463 – 464). An applicant for criminal injuries compensation is obliged to obtain reasonable medical treatment for any injury caused by an alleged offence, and the failure to do so can be taken into account in determining the award. Bedetti v Chief Executive Officer [2003] WADC 37 [11]; RBF v OSD-S [2004] WADC 97. 33 In my opinion, there is no doubt the alleged offence was committed. It is amply established, not only by the evidence of Mr Esmayili but the evidence of the police investigations. No suggestion has been made that there was any other explanation for the injury or any other causative factor for the physical injury. Mr Esmayili suffered a significant injury to his jaw, a comminuted fracture involving the left mandibular, traversing to the left interior alveolar canal, involving the lateral root of the molar 38. 34 The treatment was plating of the bilateral mandibular fracture. Post-surgically the patient was describing as eating and drinking with good centric occlusion and good Nemo-stasis. Dr Harry Laparidis took x-rays and formed the opinion that the damage to his face was consistent with the impact to the face and included a jaw fractured in two places with the loss of a lower left third molar which occurred at the time of fixation of the fractures. He also complained of the loss of his upper right front tooth. Mr Esmayili required some unrelated dental treatment. The treatment related to the assault required replacing the upper left central incisor and a number of options were discussed including an implant, a bridge and dentures. Dr Laparidis records that Mr Esmayili had a part upper acrylic denture made in Perth but he could not wear it. He said that this was not an uncommon problem that they were made to fill the gap aesthetically but were difficult to function with. In summary, Mr Esmayili was recommended to have an implant and crown and a night guard appliance to protect the prosthesis. 35 Clearly from Mr Esmayili 's point of view, the ongoing consequences of the injury are, physically, some pain when eating some foods, ongoing pain in the jaw from nerve damage, noted by Dr Doddridge to the assessor. For that he has been treated with Endep. From a psychological point of view the injury is described by Mr Sullivan as detailed above and I accept his diagnosis, recommendations and prognosis as being realistic in the circumstances. 36 I am satisfied Mr Esmayili suffered physical and psychological injury as a result of the alleged offence and obtained such appropriate medical treatment as was reasonably available to him.
Pre-existing injury 37 There is no evidence in Mr Sullivan's report which supports any suggestion of pre-existing psychological or psychiatric injury or incapacity. The only reference to such a condition is the comment in the report of Mr Shakoor 'as a result of the incident as well as what happened in Iran, Mr Esmayili suffers from psychological distress' and later 'Ms Esmayili's symptoms were mainly compounded by his mental health caused by past events'. Mr Shakoor provided no detailed factual assessment or basis for this opinion. His involvement occurred in the first six months post-injury. He also described the counselling he undertook to deal with symptoms as being associated with post-traumatic stress disorder anxiety and depression. He reports that Mr Esmayili spoke about the emotional pain and the discomfort caused by the broken jaw as a result of the assault. He expressed the opinion that Mr Esmayili appeared a fixated on the assault with constant intrusive thoughts on what happened. 38 As I have already said, I accept the comprehensive forensic opinion of Mr Sullivan rather than the brief letter of Mr Shakoor in relation to diagnosis. It may be that Mr Esmayili was additionally adversely affected by his experience in Northbridge because of the circumstances of being a refugee and from which he had fled. He spoke in his' statement of effects' of his belief that he would be safe in the community in Australia, 'as long as he did the right thing'. He describes that prior to the offence he was very happy to be in Australia, he was attending English classes and looking forward to becoming part of the Australian community. He was confident that the Australian people would treat him well as well if he did the same. He says he can now only trust his brother and his case worker or Ms Wyse. Previously he had been happy, confident, outgoing and positive about life. Mr Meysam Esmayili, his brother, confirms this in his statement of 17 January 2014 saying that they were happy when they arrived in Australia and felt very safe in their new life here. He says that 'Hadi was always smiling and had a good attitude towards our life even though we had experienced some hard times in the past'. 39 In my view, the circumstances in which Mr Esmayili found himself in Northbridge on that night would be likely to be very traumatic to any person, but to a person who has newly arrived in a new country believing that they were safe, the incident might be additionally traumatic. This scenario is not the same as a pre-existing condition or other injury having causative effect upon his incapacity at present. It is simply a description of the nature of the person who was injured. The facts do not require consideration of s 41 of the Act, which involve contributing factors in the behaviour, condition, attitude or disposition of the victim. In my view, no relevant pre-existing injury is established for present purposes, nor any contributory other cause.
Grounds of appeal 40 Ground 1 alleges a failure to give sufficient weight to Mr Esmayili's psychological condition. The assessor stated simply that he suffered considerable psychological distress and noted a lack of clarity about his pre-morbid mental state. She did not have the benefit of a full psychological report, which this court now has. 41 She was therefore unable to make a detailed assessment of his condition or the ongoing effects of it. She made reference to a loss of confidence, failure to socialise and worry about further assault. She records Ms Wyse's communications that he was getting worse and was on medication. She followed up with Mr Shakoor. She knew he had been hospitalised, but had no details of the treatment in Adelaide. In my view she did not take full account of the psychological injury due to the lack of proper evidence. Mr Esmayili was unrepresented. I am sure this is not an uncommon difficulty in the jurisdiction.
Assessment of damages 42 I must now consider afresh the proper award. The assessor considered that $30,000 was the appropriate compensation for the physical and psychological injuries. She also awarded $136.90 for medical expenses that had been incurred and allowed $640 for Dr Laparidis' report plus $150 for replacement of clothing at the time of the incident. Relying upon the estimate given by Dr Laparidis for future treatment in relation to the dental complications and associated pharmaceuticals, she allowed the sum of $6,500. 43 As I have indicated above, the assessor was not in a position fully to assess the psychological injuries. Mr Sullivan considers Mr Esmayili's psychological dysfunction at present to be sufficiently severe to make any prognosis as to his longer term psychological functioning and the timeframe for that difficult. I do not consider there is any contribution from any other cause to his incapacity. Mr Sullivan was of the opinion that even with the most optimal treatment, Mr Esmayili would suffer restrictions and limitations in his capacity to manage in some workplace environment, particularly involving dealing with the public, working as a team and coping with deadlines. He considered he was only likely to make a partial recovery to the health he enjoyed prior to 15 January 2012. 44 In short, Mr Esmayili suffered considerable pain, inconvenience and disability due to his physical injuries for a period of time and is left with a residual pain, which is managed by medication. There is the prospect of further dental treatment, which no doubt would also be painful and likely to cause temporary inconvenience. His psychological injuries from the injury have been totally disabling, as evidenced by Mr Sullivan's report including in-patient treatment at Glenside Hospital and great restrictions on his ability to conduct and enjoy an ordinary life at the present time. 45 In my view, taking all of these considerations into account the award of general damages of $30,000 was inadequate. On the evidence available to me an award of $60,000 is appropriate.
Economic loss 46 Mr Esmayili is entitled to compensation for both injury and loss suffered. Such loss includes loss of earnings as a direct consequence of the injury and loss of earning capacity. In the assessment of economic loss a plaintiff carries the onus of proving the loss of earning capacity and the extent to which that loss produces or might produce financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1, 18. Mr Esmayili was not working at the time of the offence, and accordingly has not put forward a calculation of his financial losses from the time of the offence to date. Even where a loss of earnings is proved, damages are to be assessed basically as a matter of judgment and cannot always be precisely proved. 47 The evidence before me is that Mr Esmayili was, prior to the alleged offence, attending English classes, attending the gym and swimming, looking forward to becoming a member of the Australian community and positive about his life. He was qualified as a plumber in Iran, and his certificates and statement indicate that is the employment that he has consistently pursued. However, at the time of the offence he was on a visa which would not have permitted him to engage in paid employment. In September of 2012, his visa status changed and he would have been from then on able to enter the workforce. 48 The assessor made no award for economic loss or loss of capacity. I have the benefit of further evidence which makes it apparent that Mr Esmayili has not worked since the offence, and would still have difficulty, re-entering the workforce even when treated for his psychological condition which, according to Mr Sullivan may take up to two years. 49 There is no evidence that Mr Esmayili's qualifications would be accepted in Australia or what his earnings might be expected to be in those circumstances. Common experience indicates that plumbers in Australia are required to be licensed by the appropriate authorities, and I am of the view that qualification would be a hurdle Mr Esmayili would have to overcome if he were fit to do so. The average gross working wage is $645 or thereabouts at the present time. I would assume that Mr Esmayili, a 28-year-old able-bodied man but for the accident would have sought employment of some kind soon after 23 September 2012. He would no doubt would have gone on learning English and probably sought to requalify in his trade. There is no evidence of what other work he could or would have done or the likelihood of his securing permanent employment. In these circumstances, it is impossible to make a calculated assessment of Mr Esmayili's losses. I consider that a global award should be made to reflect Mr Esmayili's loss of earning capacity in this case and I would assess that sum as being $50,000, taking into account he has not worked in the last 18 months, requires several years' psychological treatment and will always be less psychologically resilient as Mr Sullivan confirms.
Future medical treatment 50 No issue has been taken with the assessor's calculation of the future medical costs estimated by Dr Laparidis. Accordingly, for the dental work and its associated costs I would allow the same sum of $6,500. Further Dr Laparidis' report and the cost of past medications should be allowed as the assessor did in the sums respectively of $640 and $136.90. A claim is now made for the cost of Mr Sullivan's report in the sum of $1,197.90. In my view this is entirely reasonable. 51 Mr Sullivan provides ample evidence for the necessity of ongoing psychological treatment of a fairly intensive nature. He says that he requires intensive skilled psychological treatment with an experienced specialist trauma psychologist over an extended period of time, initially weekly, extended to fortnightly and then monthly consultations. He will then require ongoing episodic psychological support. Mr Sullivan estimated in total a period of 24 to 36 months for such a process with a total of 44 consultations. The fee for such a consultation currently is $228. In the light of this I assess future psychological treatment costs at $10,000, being 44 consultations approximately.
Summary General damages $ 60,000.00 Future economic loss $ 50,000.00 Future medical treatment $ 6,500.00 Future psychological $ 10,000.00 Past expenses $ 136.90 Cost of reports $ 1,819.00 Clothing $ 150.00 Total $128,605.90 52 This amount exceeds $75,000. I accordingly reduce the award to $75,000 in compliance with s 31(1) of the Act. 53 Accordingly, I allow the appeal, set aside the award made by the assessor and substitute an award to Mr Esmayili of $75,000.
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