Re Griffiths
[2019] WADC 4
•30 JANUARY 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE GRIFFITHS [2019] WADC 4
CORAM: BRADDOCK DCJ
HEARD: 26 OCTOBER & 20 DECEMBER 2018
DELIVERED : 30 JANUARY 2019
FILE NO/S: APP 65 of 2018
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: CAITLIN TESSA GRIFFITHS
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION
Coram: H L PORTER
File Number : CIC 2310 of 2017
Catchwords:
Appeal - Criminal injuries compensation - Proved offence - Quantum of damages - Post-traumatic stress disorder - Psychiatric injury - Whether future treatment expenses to be included in award where employer required to make such payments
Legislation:
Criminal Injuries Compensation Act 2003
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr N Morrissey |
| Amicus Curiae | : | Mr J F Bennett appeared on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | A & E Legal (WA) |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Gullelo v Halloran [2000] WADC 145
Hogben v Darcy [2009] WADC 63
Re PK (by her next friend THE PUBLIC TRUSTEE) [2014] WADC 139
TAW v NJS [2011] WADC 187
BRADDOCK DCJ:
This is an appeal from a decision of an assessor of criminal injuries compensation made on the 18 June 2018.
On that date, the assessor awarded Ms Griffiths the sum of $12,246.60, comprising $10,500 for her injuries and $1,746.60 for reports obtained for the purposes of the application.
A notice of appeal was filed on the 26 June 2018. It listed the following grounds:
(i)the assessor incorrectly failed to make any award in respect of the appellant's future medical costs as detailed in the medico‑legal report of Ronelle Olivier, registered psychologist, dated the 15 March 2018 as lodged with the appellant's claim; and
(ii)the assessor failed to have due and proper regard to the nature, extent and sequelae of the appellant's injuries when making the award for compensation.
The assessor's decision
The assessor had before her the material contained in the application for criminal injuries compensation including a statement from Caitlin Tessa Griffiths dated the 9 September 2017, the record of the Coroner's proceedings in relation to the death of Giovani Wade Ryan, dated the 18 October 2016, records relating to Ms Griffiths from the Rokeby GP, printed on the 20 February 2018, a report from Ms Ronelle Olivier dated the 15 March 2018, invoices for the production of the records from the Rokeby GP and Ms Olivier. In addition, the assessor sought materials from the Carnarvon Medical Centre, Health Focus Clinical Psychology Services, documents concerning the prosecution of Shaun Samuel Capewell in relation to an accident on the 5 October 2013 and brief correspondence from Mr Jim Anderson of the West Australia Police, Claims Management Unit, detailing absences from work by Ms Griffiths in January and February 2017.
According to the application, Ms Griffiths sought compensation for (1) injury, (2) loss, (3) treatment expenses, (4) past and future and loss of earning capacity, arising out of an incident on the 5 October 2013 in Carnarvon involving a stolen vehicle and dangerous driving causing death. The assessor awarded compensation for injuries, in the sum of $10,500, and the costs of the reports from Ms Olivier and the records that had been obtained, in the sum of $1,746.60. No award was made for future medical treatment nor for loss of earnings or earning capacity.
No written reasons have been requested or published by the assessor in relation to her decision.
Evidence on appeal
At the hearing of the appeal, the appellant presented documents including all those documents before the assessor, and a further statement signed by Ms Griffiths on the 10 October 2018.
Pursuant to s 56 of the Criminal Injuries Compensation Act 2003 (the Act), the District Court on appeal is to decide the application 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, thus the appeal is determined as a hearing de novo: s 56(1) of the Act: Gullelo v Halloran [2000] WADC 145 [5]. 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. The assessment is by way of the application of the ordinary principles for the assessment of damages, subject to the Act and the jurisdictional limit.
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].
At the hearing of the appeal, I received the updated statement of Ms Griffiths in evidence.
The circumstances of the offences and injury
Ms Griffiths was born on the 20 February 1987, and thus was aged 30 years at the time of her application for criminal injuries compensation. She joined the WA Police Service in 2008. In 2012 she was posted to serve in the town of Carnarvon.
On the 5 October 2013, in Carnarvon, she was on duty with First Class Constable Wayne Shaw. They were alerted to the theft of a vehicle, which they noticed whilst on patrol, and attempted to stop. The vehicle sped off and they followed. After a short distance they came across the vehicle which appeared to have been in a rollover, and one of the young occupants, Giovani Ryan had been ejected from the vehicle. Further, an occupant in the rear of the vehicle had sustained a severe head injury. They attended to the injured, summoned other police and ambulance and detained the driver.
The young indigenous boy, Giovani Ryan, died a few days later from his injuries. Ms Griffiths said she found the whole experience extremely traumatic and it affected her very badly. She said she was also affected by the subsequent investigation into the incident. She said she was never offered any medical treatment, counselling or assistance for the trauma of what she had witnessed. She continued to work at the Carnarvon Police Station. She described her mental health as deteriorating and that she was functioning 'on auto‑pilot'.
In November 2016, she was transferred with her husband to Perth. In January 2017, she had a complete breakdown. She said she was utterly emotionally and physically exhausted. After that breakdown in January 2017, she attended Health Focus in Armadale where she consulted a clinical psychologist. She took six weeks off work. She said that she saw the psychologist weekly, who diagnosed her with post-traumatic stress disorder (PTSD) and anxiety. She was placed on medication which helped her.
The coroner's conclusions in relation to the death of Giovani Ryan was that it was a tragedy and that the actions of the police officers did not cause or contribute to the boy's death.
The patient health summary from the Rokeby GP shows a consultation with Dr Jane Spencer on the 31 March 2017. The reason for the visit was recorded as anxiety and post-traumatic stress. On the 28 April 2017, a surgery consultation records that she attended and had deteriorated since the previous visit. She was prescribed Lorazepam and Zoloft for anxiety and depressed mood. In May, the GP records note that she was seeing a new clinical psychologist on the 17 May 2017 and had a mental health plan. She found the medications helpful. The notes refer to medical certificates being provided in May and June. A surgery consultation recorded by Dr Jane Spencer on the 21 July 2017 indicates that Ms Griffiths went back to work fulltime three weeks prior and was coping well. Medications were continued. On 14 September 2017, it is recorded that she was working on full duties, was operational and was coping well, and that she needed a repeat prescription for the Zoloft. On 1 February 2018, she attended Dr Spencer and the notes show that she was working as an acting sergeant and was going back to the clinical psychologist.
Ms Griffiths was referred for a psychological assessment to Ms Ronelle Olivier in January 2018. Ms Olivier reviewed Ms Griffiths on 17 February 2018. Ms Olivier's report is dated 15 March 2018. She records Ms Griffiths' personal history, and the circumstances of the incident on 5 October 2013, which ultimately resulted in the death of one of the young passengers in the vehicle. She also notes the consequences and actions following the incident as reported by Ms Griffiths, including the police internal investigation, which was followed by a coronial inquiry some considerable time later.
She also records that in her continued work as a police officer in Carnarvon, Ms Griffiths was concerned with a suicide of a domestic violence victim, although it is not clear of the precise circumstances of her involvement. Ms Olivier notes that Ms Griffiths did not attend counselling or seek any treatment whilst in Carnarvon. She reports that she was reluctant to seek such support due to stigma associated with mental health issues in the police force. Ms Griffiths continued her work as a police officer in Carnarvon until she was transferred to Perth in November of 2016. Shortly afterwards she had a breakdown. In January 2017 she attended at Health Focus in Armadale resulting in psychological treatment sessions and six weeks off duty. Ms Olivier notes Ms Griffiths' report that after her time off, she said she was pestered about the sick leave she had taken, she notes that Ms Griffiths had medication at the time, and that she attended three sessions of further psychological treatment from October 2017.
In her report, Ms Olivier lists Ms Griffiths' experiences subsequent to the incident which include fear of retribution by the family of the deceased boy, sadness, sleep disturbance, fear of being blamed, lack of trauma treatment or follow-up of her mental health, severe anxiety when driving, depressive symptoms as her competency were being questioned, low feelings of self‑worth, poor concentration, anxiety in car pursuits, low self‑confidence, avoidance of further training in driving, anxiety attacks, low motivation, avoidance behaviours and difficulty leaving her house, physiological symptoms of sweating, discomfort and palpitations when driving on duty, feeling overwhelmed and a marked effect on her relationship with her husband. Ms Olivier administered a number of well recognised psychometric tests.
Ms Olivier's conclusion was that the diagnosis was post‑traumatic stress disorder with delayed expression, meeting all the criteria for a 'DSM 5' diagnosis of post‑traumatic stress disorder.
Ms Olivier also expressed the view that Ms Griffiths' symptoms had been exacerbated by the second incident (suicide) and the absence of timely and appropriate psychological treatment. She noted that Ms Griffiths was left with no indication as to the outcome of internal investigations, causing a state of constant anxiety and uncertainty. Ms Olivier reported that Ms Griffiths has developed severe depressive symptoms that may severely impact her prognosis.
In relation to the prognosis, Ms Olivier stated that Ms Griffiths had been receiving appropriate psychological treatment since January 2017 which she had found helpful. Ms Griffiths reported a supportive and stable relationship with her husband as well as her mother and sister. Ms Olivier's opinion was that Ms Griffiths would require long term psychological treatment and that her prognosis would improve if she received appropriate treatment.
Ms Olivier recommended a minimum of 20 sessions with a psychologist and gave the rate of treatment fee at $246 per session, as recommended by the Australian Psychological Society. Ms Olivier further recommended that she should attend for a psychiatric assessment in relation to 'possible dissociative symptoms'. Ms Olivier gave the cost of such an assessment as an estimated $360 for initial consultation, and approximately $200 per follow‑up.
In her statement of 10 October 2018, Ms Griffiths confirmed the factual contents of Ms Olivier's report, and confirmed that in January 2018 she started to feel increasingly depressed and withdrawn and did not wish to leave her home. She confirmed that the medication and psychological treatment she had received were of immense help, but that she had struggled, due to lack of resources, to procure further treatment as recommended by Ms Olivier. She confirmed that many of the symptoms detailed in Ms Olivier's report persisted. She further stated that the incident had a substantial impact on her career in that she had passed up on promotional opportunities due to her inability to complete a priority driving course which would have assisted in progressing her career.
The documents obtained from the West Australian Police Service confirm that Shaun Samuel Capewell was charged amongst other things with an offence under s 59(1)(b) of the Road Traffic Act 1974 in relation to the death of Giovani Ryan, was so convicted on 13 June 2014 and sentenced to a term of detention. Accordingly, the incident attended by Ms Griffiths satisfied the definition of a proved offence under s 12(1) of the Act.
The information provided to the assessor by Mr Jim Anderson of the WA Police confirms that Ms Griffiths took sick leave between 20 January 2017 and 20 February 2017. This was not recorded as work‑related sick leave. Mr Anderson was therefore unable to confirm that this leave related to the motor vehicle accident of October 2013.
Ms Griffiths continues to be employed by the West Australian Police Service. There is no evidence that she has made any claim upon her employer for the cost of psychological treatment in relation to her injury.
Extension of time
Section 9 of the Act provides that an application must be made within three years after the date upon which either the offence relates to was committed or, if more than one, the last of them was committed. An assessor may allow a compensation application to be made after three years if he or she thinks it just to do so on any conditions that are just to impose: s 9(2).
The assessor allowed an extension of time to the date of Ms Griffiths filing of her application. An assessor has a broad discretion to allow a compensation application after three years. This appeal is to be considered afresh, and the court has all the powers of the assessor pursuant to the Act.
In these circumstances, I am satisfied that the full force of the effects of the accident did not manifest themselves until Ms Griffiths' breakdown in January of 2017. Considering the nature of her injury, PTSD, I am satisfied that Ms Griffiths' approach to her problems had been to simply carry on with her work. Given that history and diagnosis, it is just and I am prepared to extend time to the date of filing of the application, in order that the application may be considered on its merits in this appeal.
This appeal was filed within the prescribed time.
Assessment
Ms Griffiths' claim is for psychological injuries, which are said to have caused suffering and to have had a detrimental impact on her life for a period of more than five years. She relies upon Ms Olivier's opinion that she requires long term psychological treatment.
The written submissions clarify that Ms Griffiths does not make any claim for loss of earnings.
However, she claims future medical expenses in accordance with the recommendations of Ms Olivier; 20 sessions of psychotherapy, a consultation with a psychiatrist, followed by 10 treatment psychiatric sessions in all totalling $7,280. She also claims the report expenses.
The written submissions conclude with a paragraph which reads:
The consequences of Ms Griffiths' psychiatric injuries do not prevent her from participating in all aspects of normal life but have had a significant impact on her life. She seeks an increase in the award of damages for those injuries.
I am satisfied that Ms Griffiths suffered a compensable injury as a result of the incident she witnessed and attended on 5 October 2013. The traffic accident resulted in the conviction of the driver of the vehicle for a serious traffic offence, and thus in a proved offence for the purposes of the Act.
The Act defines 'injury' to mean bodily harm, mental and nervous shock, or pregnancy: s 3 of the Act. Section 35(2) deals with compensation awards for mental and nervous shock in respect of applications made on or after 23 September 2003. It provides that an assessor may not make a compensation award for mental and nervous shock, unless the assessor is satisfied, relevantly in this case, that a person other than the victim died or suffered injury as a consequence of the offence and the victim was personally present when or immediately after the offence was committed: s 45(2)(c). Mental and nervous shock contemplates an enduring injury which is significant and detrimental.
I am in no doubt that Ms Griffiths' injury, diagnosed as PTSD satisfies those requirements, in that it is clearly enduring, significant and detrimental to her. On Ms Griffiths' evidence, and in the light of Ms Olivier's report, I am also in no doubt that the origin of the condition suffered by Ms Griffiths is the traumatic incident on 5 October 2013.
I am also satisfied that her condition was exacerbated by a number of other factors, which she has mentioned and which Ms Olivier notes in her report, including Ms Griffiths' perceived experience of a lack of support in her workplace and from her superiors, a feeling of being blamed for the incident, fear of retribution from the family of the deceased boy, and further specific events such as the suicide of a woman which she attended during the course of her employment, the coronial inquest, and the lack of counselling or trauma treatment. None of these subsequent matters themselves are compensable under the Act. She also suffered the sudden loss of her father in 2014. It is impossible to distinguish with any precision the relative effects of the subsequent events upon Ms Griffiths' condition, neither has the psychologist Ms Olivier sought to do so. In those circumstances, there is no basis upon which any apportionment of responsibility to the varying causative factors can be made. As a result, Ms Griffiths' condition as a whole is attributable for the purposes of the Act to the proved offence: TAW v NJS [2011] WADC 187.
In the assessment of the compensation to be awarded in relation to the injury itself, there is no mathematical formula to be applied. It is to be assessed in the same way as general damages for an injury at common law. I have no doubt that the symptoms experienced by Ms Griffiths would have been debilitating, unpleasant and had considerable impact upon her enjoyment of life. Nevertheless, until January of 2017 Ms Griffiths continued work uninterrupted as a sworn officer in the West Australian Police Service. She married in 2015, and after taking leave in January and February 2017 continues to be a serving member of the police force and to discharge her responsibilities.
In those circumstances, I consider that the award made by the assessor for injuries of $10,500 to be an appropriate award and I will not interfere with the determination.
The costs of obtaining the report from Ms Olivier, plus the medical records that have been referred to, are allowed as part of the loss resulting from the proved offence: s 6(2)(a).
The remaining issue on this appeal, therefore, is the claim for future medical expenses, specifically psychological and psychiatric treatment. The assessor made no award in relation to such claim.
I am satisfied, based upon the report of Ms Olivier and her opinion in relation to future psychological treatment that such treatment is indicated, when read in conjunction with Ms Griffiths' statement of October 2018 confirming that the symptoms persist. However, I am not satisfied on the evidence that ongoing psychiatric treatment is required. There is no psychiatric evidence. Ms Olivier's recommendation was for an assessment of Ms Griffiths by a psychiatrist, and that is the extent of it.
As a serving police officer, Ms Griffiths has the benefit of the provisions for the illness and injury of officers contained in the Police Force Regulations 1979. Those regulations are made under s 138A of the Police Act 1892 (WA). Regulation 1306 provides:
Subject to regulation 1308(2), the Commissioner shall pay the reasonable medical and hospital expenses incurred by a member as a result of illness or injury arising out of in the course of the member's duties or suffered by the member in the course of travel to or from a place of duty.
Regulation 1308(2) is of no relevance in Ms Griffiths' case. Ms Griffiths as a police constable under the Police Act is a member within the meaning of r 1306: r 103 (definition of member). Regulation 1306 imposes a statutory obligation on the Commissioner of Police to pay reasonable medical and hospital expenses incurred by a member if the expenses are incurred as a result of the illness or injury arising out of or in the course of the member's duties. In addition, cl 37 of the West Australian Industrial Agreement 2017, provides that the employer shall pay the reasonable medical dental or medical aids, hospital and travelling expenses incurred by an employee as a result of illness or injury arising out of or in the course of the employee's duties.
There is no evidence that any claim has been made by Ms Griffiths upon the Commissioner of Police for the payment of any expenses arising out of her injury in this instance. In the absence of any claim, there is obviously no evidence of any refusal to meet such expenses.
Any claim for future medical expenses is to be considered in the light of the provisions of the Act concerning such expenses. Firstly, future medical expenses are not paid unless and until proof that they have been incurred is provided to the assessor: s 48 of the Act. Further, s 21 of the Act is entitled 'Applicant may be required to enforce other remedies'. It provides that:
(1)If an assessor dealing with a compensation application by or on behalf of a victim who suffered injury as a consequence of the commission of an offence is of the opinion that the victim —
(a)has reasonable grounds for taking proceedings independently of this Act to obtain compensation or damages for all or some of the claimed injury and any claimed loss; or
(b)may be entitled under a contract of insurance to payment for all or some of that injury or loss,
the assessor may require the victim to take proceedings to obtain the compensation, damages or payment and may defer the application pending the determination of those proceedings.
Section 42(4) provides if an assessor is satisfied that a victim or a close relative of a deceased victim, who has suffered injury or loss will receive an amount by way of compensation or damages or under a contract of insurance, for the injury or loss, the assessor may deduct the amount from a compensation award in relation to that injury or loss.
It is accordingly often said that compensation under the Act is compensation of 'last resort'. In effect, an applicant is required to look to other available sources of funding before an award will be made under the Act: Re PK (by her next friend THE PUBLIC TRUSTEE) [2014] WADC 139.
Ms Griffiths has not had, on the evidence, the benefit of any payments made by the Commissioner, her employer, either for medical expenses or sick leave attributed to the incident on 5 October 2013. The question of any deduction therefore does not arise. However, the statutory obligation on the Commissioner to meet such expenses is in my view directly relevant in the current situation. The issue was raised in the written submissions of counsel for the CEO of the Department of Justice, amicus curiae, on this appeal (submissions dated 22 October 2018 at pars 53 and 54). After the hearing on 26 October 2018, I adjourned proceedings with liberty to either party to make any further submissions or provide further materials. No further materials have been provided.
I accept Ms Griffiths' evidence that, at the time of and after the incident when she was serving in Carnarvon, she did not wish to make a fuss about her condition or reactions to the incident. However, following her breakdown in January 2017 and subsequent treatment, and in the context of an application under the Act, there is no explanation for the absence of any claim for her entitlements as a serving police officer. I must therefore deduce that she has chosen not to do so.
In those circumstances, I decline to make any award for future medical expenses. The provisions of the Act require all other remedies to be pursued and accounted for in relation to any compensation award.
Conclusion
Accordingly, the appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
Associate to Judge Braddock29 JANUARY 2019
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