Re Kumeroa - [2014] WADC 18

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: RE KUMEROA [2014] WADC 18

CORAM: EATON DCJ

HEARD: 31 JANUARY 2014

DELIVERED : 7 FEBRUARY 2014

FILE NO/S: APP 103 of 2012

MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: PETER KAHUKURA KUMEROA
Appellant

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :R GUTHRIE
File No  :CI 001220 of 2012

Catchwords:

Appeal - Criminal injuries compensation - Appeal from Assessor – New evidence

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Appeal allowed as to additional evidence only in the sum of $2,120.00

Representation:

Counsel:

Appellant: In person
Amicus Curiae : Mr C M Beetham appeared for the Chief Executive Officer of the Department of Attorney General

Solicitors:

Appellant: Not applicable
Amicus Curiae : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

EATON DCJ: As the result of an incident at Forrestfield on 9 December 2010 one Aaron Portlock was charged with assault occasioning bodily harm and criminal damage. In due course he entered pleas of guilty to both charges in Midland Magistrates Court and on 30 August 2012 he appeared to be sentenced by Magistrate Roth in that court. He had been convicted on his own plea of assault occasioning bodily harm and unlawful damage. The victim of the assault was Peter Kahukura Kumeroa (the appellant).
At about 8.30 pm on 9 December 2010 the appellant, accompanied by his mother Leonie Kumeroa, drove to a McDonald's store on Hale Road, Forrestfield and joined the queue of vehicles proceeding through the drive‑through service bay. He realised that he was unable to locate his wallet, and in order to do so, drove his vehicle out of the queue. Having located the wallet he re‑entered the queue in front of a vehicle driven by Mr Portlock. In response to the appellant's driving Mr Portlock drove his vehicle up to the driver's side door of the appellant's vehicle, alighted from his vehicle and, standing at the side of the appellant's vehicle, began to make threats in a loud voice. The appellant alighted from his vehicle in an attempt to deal with Mr Portlock's aggression. Others, witnessing what was happening, attempted to defuse the situation.
Mr Portlock attacked the appellant, attempting to kick him. He then began throwing punches which the appellant managed to fend away. The appellant pushed the aggressor away and managed to restrain him for a time in a headlock. Mr Portlock continued to be aggressive. The appellant released him from the headlock. Mr Portlock returned to his own vehicle and the appellant returned to his, locking the doors while seated in the driver's seat.
Mr Portlock then emerged from his own vehicle with a golf club in hand. He walked to the driver's side of the appellant's vehicle and smashed the windscreen with the golf club. He then smashed the right‑hand driver's window causing the appellant to shield himself with his right arm. The golf club penetrated the window, smashing the glass and striking the appellant on the arm. He sustained lacerations and a broken ulna. The appellant lost consciousness for a short period before regaining consciousness to hear Mr Portlock's vehicle leaving the drive‑through area. Ambulance officers attended the scene. The appellant was taken to Sir Charles Gairdner Hospital where he underwent surgery.
Magistrate Roth, in sentencing Mr Portlock, noted that the attack with the golf club was 'an extremely serious assault'. He noted that the altercation had been initiated by Mr Portlock and that, having done so, he escalated violence beyond anything necessary or appropriate in the circumstances in which it occurred. The magistrate said:
The reports that I have indicate that the victim of this matter suffers anxiety and panic attacks, post‑traumatic stress disorder, which he relates back to the assaults in 2010 so it has obviously had a serious effect on him. Although, again, I think it is important to note that this man did get out of his vehicle as well. This man did confront you. So whilst he is in no way to be held blame for the eventual level or degree of assault, he also in my view does not come before the court with entirely clean hands himself. Be that as it may, I am not here to sentence him in relation to his conduct. I am here to sentence you in relation to yours.
Mr Portlock was sentenced to 9 months' imprisonment for the conviction for assault occasioning bodily harm. That term was suspended for 18 months. So far as the wilful damage conviction was concerned the magistrate imposed an 18‑month intensive supervision order. He imposed both a supervision and programme requirement, the latter in relation to anger management.
On 20 August 2012 the appellant made application for criminal injuries compensation pursuant to the provisions of the Criminal Injuries Compensation Act 2003 (the Act). He gave his occupation in his application as 'disability pensioner'.
On 11 December 2012 Mr R Guthrie, an Assessor, made a compensation order in favour of the appellant in the sum of $18,329.80 which sum was comprised of the following:
Injuries$17,500.00
Treatment expenses $169.80
Travel$150.00
Future psychological counselling to maximum of $510.00
On 18 December 2012 the appellant filed a notice of appeal in this court from Mr Guthrie's award of 11 December 2012.
On 4 February 2013 Mr Guthrie published reasons for his decision. He did so as a result of a request for written reasons.
In the course of those written reasons Mr Guthrie made reference to Magistrate Roth's comment in sentencing Mr Portlock to the effect that the appellant did not come before the court with 'entirely clean hands'. Mr Guthrie, in light of that comment, considered it necessary to have regard to s 39 and s 41 of the Act. He then surveyed all of the information before him as to the circumstances of the offence giving rise to the appellant's injury and concluded:
In all the circumstances I did not consider that it was appropriate to apply s 41 of the Act notwithstanding the comments made by the sentencing magistrate.
The Assessor proceeded to outline the basis of his award.
The grounds of appeal in the appellant's notice of appeal are as follows:
Mr Guthrie failed to acknowledge the following submissions and therefore he has made an error in determining the compensation order for my CIC matter.
1.Mr Portlock threatened to kill.
2.Mr Portlock fractured my ulna.
3.Soft tissue injury still exists.
4.Major scarring.
5.Post‑traumatic stress.
6.Mental nervous shock.
7.Car damages.
8.Dr's reports.
9.Future operations.
10.Maximum compensation.
The appellant has progressed his appeal in this court in person. Initially he encountered problems in that he failed to comply with the rules of this court relating to service.
On 6 February 2013 the State Solicitor's Office entered an appearance for the Chief Executive Officer as amicus curiae in the appeal.
On about 4 December 2012 the appellant applied for leave to file additional material in support of his appeal. That application was treated as an application to adduce fresh evidence.
The appellant filed an application for substituted service on Mr Portlock. On 29 October 2013 Deputy Registrar Kingsley made orders to that effect.
It does appear that the order for substituted service was complied with.
The appeal was heard on 31 January 2014. The appellant appeared in person. Mr Beetham appeared as amicus curiae for the Chief Executive Officer.
At the outset I enquired of the appellant as to whether he intended to make oral submissions in support of his appeal. He replied:
If you can consider my payslips, the medical records from an additional operation and that is pretty much it.
He referred to further surgery at Sir Charles Gairdner Hospital confirming that the need for that surgery was consequent upon the injuries suffered by him as a result of the offence committed by Mr Portlock. He explained that the further surgery came subsequent to the assessment of his application for criminal injuries compensation.
The following exchange occurred:
EATION DCJ:         And is it a consequence of the second operation that you lost some earnings?
THE APPELLANT: Earnings. What else?          Damages to my mother's car. What else? That is pretty much it.
EATON DCJ:          Okay, alright. So in a nutshell is that what you say is wrong with the decision made by Mr Guthrie?
THE APPELLANT: Yes, your Honour.
EATON DCJ:          Because he awarded you $17,500 for injuries and $169.80 for treatment expenses, $150 for travel and $510 for future psychological counselling. You are suggesting that these later events, the second surgery and what have you, all ought to have been taken into account by him is that right?
THE APPELLANT:   Yes, your Honour.
Counsel for the Chief Executive Officer conceded that the second operation and associated pain, suffering and loss could be taken into account on appeal. There was an acceptance of a causal link between the offence giving rise to the application for criminal injuries compensation and the later surgery.
As to the appellant's claim for lost earnings I explained as follows:
You will appreciate, Mr Kumeroa, that a court needs to act on evidence and evidence in a matter such as this can be in various forms. We do not always rely on sworn evidence. We rely, for example, on documents obtained from hospital and police officers and things like that so there is some scope for things to be taken into account other than in the form of sworn evidence but I would not mind, seeing as you are here and rather than have you come back at some later stage, having you give some evidence as to your claim just to support that contention that you make that you lost some earnings. Would you be happy to do that?
He agreed that he would.
In consequence the appellant gave evidence in support of his appeal, answering questions both from the bench and from Mr Beetham as amicus curiae.
At the conclusion of his evidence the appellant returned to the bar table. He indicated that he had nothing further to say in support of his appeal.
It is clear that the Assessor Mr Guthrie, in his written reasons for his award took into account that on 12 January 2009, while in the course of his employment as a scaffolder, the plaintiff sustained an injury to his lower back. He made a claim for workers' compensation in consequence. On 11 August 2009 he underwent a micro‑discectomy on the right side. That surgery significantly relieved the appellant's back and leg pain resultant upon the injury at work. There was reliable material before Mr Guthrie to the effect that the appellant's back injury precluded him from attending to work as a scaffolder or performing manual work although he was fit for sedentary work.
Mr Guthrie had obtained records and notes from Sir Charles Gairdner Hospital which confirmed the appellant's attendance there in consequence of a right arm injury on 9 December 2010. On the following day he underwent an open reduction and internal fixation of that injury. He was discharged from Sir Charles Gairdner Hospital on 11 December 2010 with a recommendation to attend the out‑patients orthopaedic clinic. The appellant missed a number of appointments at that clinic and was eventually discharged as an out‑patient on 2 May 2011.
In summarising his attitude to the injury and its repair Mr Guthrie said:
In considering the appropriate award to be made to the applicant I took account of the fact that he sustained a significant injury to his right arm in frightening circumstances, which required operative treatment and ongoing care. By all accounts the injury to the applicant's arm has healed well as noted by the various medical reviews as discussed above. On the evidence supplied to me the applicant's discharge from orthopaedic care confirmed that no ongoing physical therapy was required. I took into account that the applicant suffered anxiety prior to the offence as a consequence of his work‑related injuries. However, I noted that as a consequence of the offence his anxiety was heightened and he also developed symptoms of post‑traumatic stress disorder (PTSD) as outlined by Ms Davey in her report of 22 June 2011. I noted the victim impact statement provided to me by the applicant. He described ongoing pain and loss of enjoyment of life and restriction of a range of sporting activities. I observed that the applicant's back injury also limited his capacity to pursue a range of activities. I noted that the applicant had previously had operative treatment to his right arm as a public patient and therefore assumed that the applicant would not be put to any expense for future operative treatment to remove any plates or screws from his right arm. Taking all these matters into account I consider the appropriate award of compensation for injuries sustained by the applicant was $17,500.
The applicant made no claim for loss of earnings and I infer that this was because he was, at the time of the offence, incapacitated by reason of his work‑related injuries. There does not appear to be any loss of earning capacity arising from the offence given that the applicant was by reason of the work injury incapacitated for work as a scaffolder and had commenced studies at UWA.
In response to a notice to produce issued by this court on 18 March 2013 Sir Charles Gairdner Hospital delivered the appellant's file.
It is apparent that Dr Hudaila Ahmad of the St Luke's Family Practice in Katanning referred the appellant to the orthopaedic out‑patient clinic of Sir Charles Gairdner Hospital on 7 August 2012. The appellant attended the orthopaedic registrar of that hospital on 30 October 2012. The registrar, Dr Ryan Du Sart, replied to the St Luke's Family Practice at Katanning by letter of 30 October 2012 in the following terms:
I have reviewed Peter today on behalf of Mr A Keogh in the orthopaedic out‑patient clinic. He is a 36‑year‑old gentleman who had an open distal third ulna fracture which was ORIFed approximately 2 years ago. He comes in today complaining of vague pain over his distal ulna.
Clinically he has tenderness over the scar with normal range of movement of his wrist and full pronation and supination. He has no tenderness over his distal radio ulnar joint which is stable. His current x‑rays shows union of the distal ulna fracture.
Peter was reviewed by Mr A Keogh and we think that his pain is related to his plate and screws. Therefore we have booked him for removal of plate and screws from his distal ulna.
The abbreviation 'ORIFed' is a reference to the open reduction and internal fixation of the fractured ulna in December 2010 in consequence of the injury suffered as a result of the offence committed by Mr Portlock. The fixation on that occasion was with plate and screws. On 17 January 2013 the hospital issued a medical certificate certifying that the appellant was unfit from 17 January 2013 to 24 January 2013 having undergone a surgical procedure.
In evidence before me the appellant said that he was unable to work by reason of the surgery in January 2013. In cross‑examination by counsel for the Chief Executive Officer the appellant said that he was not working in December 2010 in consequence of his back injury in 2009. The following passage ensued:
Q.And so after December 2010 when did you start working again?
A.Didn't.
Q.Okay. So you haven't been working since December 2010?
A.That's right.
Q.And that's as a result of the injury to your back?
A.Yes.
Q.And that – that injury is it relates to your other application in this court and your – well, just the other application in this court, is that right, because Yougel [sic] didn't pay you – refused your claim in relation to that injury?
A.Yes, they disputed it.
Q.Okay. And in January 2013 you had your second operation on your arm?
A.Yes, I did.
Q.And you were not working at the time then?
A.No.
In an earlier exchange with the appellant he informed me that he is currently not employed having been dismissed by his employer. He claims that his dismissal was wrongful and has taken the matter up with an appropriate industrial tribunal or body. The following exchange took place:
EATON DCJ:          Okay so does your lost income, does that result from the injuries that you received giving rise to your application for criminal injuries compensation? Or does it result from the fact that you were unfairly dismissed by your employer?
THE APPELLANT: I was – I was employed by my employer and I intended to use that as some means of support to support the – I'm employed, I'm still employed, and that's how much I get.
EATON DCJ:           Yes, I'm not quite sure what the answer to my question was. You're saying you were unfairly dismissed, is that right?
THE APPELLANT: Yes.
EATON DCJ:           And so you are seeking to recover lost wages by reason of ---
THE APPELLANT: That's right.
EATON DCJ:           --- that unfair dismissal.
THE APPELLANT: That's right.
EATON DCJ:           And you've got proceedings on foot somewhere?
THE APPELLANT: Yes, on Monday.
EATON DCJ:           Monday?
THE APPELLANT: Monday.
EATON DCJ:           There's a hearing on Monday?
THE APPELLANT: Yes.
EATON DCJ:           Whereabouts?
THE APPELLANT: The hearing is by telephone, the Commission is by ---
EATON DCJ:           In the Industrial Commission, is it?
THE APPELLANT: Yeah, that's right.
EATON DCJ:           Right. Alright. Well, you tell me in your written submissions that the payslips for past and future earnings pursuant to section 6 ought to be taken into account. When were you dismissed?
THE APPELLANT: In June 2013. Was employed – 2000 – August 2008.
EATON DCJ:           Okay, by ---
THE APPELLANT: The United Group.
EATON DCJ:           --- Phoenix.
THE APPELLANT: No, the United Group.
EATON DCJ:          Okay. Yes that's the other matter that I referred to earlier isn't it?
THE APPELLANT: That's right.
EATON DCJ:          It shouldn't be on this file at all. Let's have a look. Have you got other proceedings on foot in this court?
THE APPELLANT: No.
EATON DCJ:          And what's the appeal from Deputy Registrar Hewitt about?
THE APPELLANT: Bill of costs.
EATON DCJ:          That's in the matter of the United Group Ltd.
THE APPELLANT: Yeah, that's right.
EATON DCJ:          So ---
THE APPELLANT: Yes, yeah.
EATON DCJ:          So you do have other proceedings ---
THE APPELLANT: Yes, yes.
EATON DCJ:          --- in this court? Yes, okay. Number 50 of 2012.
THE APPELLANT: That's right.
It is the case that, following an accident at work on 12 January 2009 the appellant applied under the Workers' Compensation and Injury Management Act 1981 for weekly payments for his incapacity from the date of the injury. The relevant employer was United Group Ltd. The application was the subject of an arbitration conducted by Mr S Melville. He dismissed the application on 5 July 2012, publishing reasons for doing so.
On 6 August 2012 the appellant filed a notice of appeal from the ruling of Mr Melville in this court, that matter being appeal number 50 of 2012. On 20 August 2012 the United Group Ltd gave notice of its intention to respond to the appeal.
On 30 April 2013 his Honour Judge Goetze dismissed the appeal and ordered the appellant to pay the respondent's costs of the appeal including any reserved costs.
The appellant, on 17 May 2013, gave notice of appeal in the Court of Appeal in the Supreme Court of Western Australia from the judgment of his Honour Judge Goetze. That appeal was heard on 24 July 2013 along with an application by the appellant to adduce additional evidence. On that day both the application to adduce additional evidence and the appeal were dismissed. The Court of Appeal published reasons for doing so on 9 August 2013.

The appellant applied to the High Court of Australia for special leave to appeal from the decision of the Court of Appeal. That application was refused on 3 December 2013.
It does appear to me that the only live issue remaining in this court is that as to costs in respect of appeal number 50 of 2012. The respondent filed a draft bill of costs. An appointment was made for its taxation in this court on 16 January 2014. By chamber summons filed 9 January 2014 the appellant applied to adjourn the appointment on 16 January 2014 on the basis that he was resident in the country, that he had financial difficulties and that the Equal Opportunity Commission, the State Administrative Tribunal, various Ministers of State and the Chief Justice of Western Australia were investigating his complaint as to why the High Court Registry at Perth had refused to fax his final application to appeal from the High Court decision pursuant to s 34 of the Judiciary Act 1903 to Canberra on 2 January 2014.
In an exchange between myself and the appellant during the hearing on 31 January 2014 reference was made to an impending hearing in appeal number 50 of 2012 in this court. The appellant correctly made reference to a bill of costs. I am now aware of the precise context of those proceedings.
In a further exchange with the appellant during the hearing on 31 January 2014 I enquired of him as to the amount sought by way of lost earnings as follows:
Right. How much do you say you should be compensated for in terms of lost earnings?
He replied:
Full amount $75,000.
He added that he was seeking the maximum amount payable by law under the provisions of the Act.
Returning to the appellant's grounds of appeal, it is clear that the Assessor, Mr Guthrie, had before him the police statement of material facts which asserted, inter alia, that Mr Portlock stood by the driver's side door of the appellant's car and shouted 'I'm gonna kill you'. I have no doubt that the Assessor took the threat to kill into account as part of the circumstances of the offending giving rise to the claim for compensation.
Clearly the Assessor took into account the fracture ulna suffered by the appellant. There is no evidence before me as to a continuing soft tissue injury resultant upon the attack by Mr Portlock. Neither is there any evidence of major scarring in that regard.
Clearly Mr Guthrie took into account that the appellant had suffered from symptoms of post‑traumatic stress disorder. He took that into account in the following terms:
The reports that I have indicate that the victim of this matter suffers anxiety and panic attacks, post‑traumatic stress disorder, which relates back to the assault in 2010 so it has obviously had a serious effect on him.
So far as car damages are concerned the Assessor made no award. I am not aware of the existence of any receipts for this component of the claim. It does appear that the vehicle damaged was the property of the appellant's mother. I have no doubt that the car was damaged and that there were expenses associated with it. I am not in a position to make any allowance in that regard, by reason of the absence of any evidence as to the cost of repair but, more importantly, by reason of the fact that damage to a car does not fall within the definition of 'loss' in s 6 of the Act.
The Assessor does not appear to have made any award for the cost of obtaining medical reports. The appellant particularises this component of his claim as follows:

(a) Lyn Davey $120; and
(b) WA Police $38.70.

I am not prepared to allow the latter claim, it being highly unlikely to be in respect of a report by a health professional. I will allow the sum of $120 claimed.

I do accept that on or about 17 January 2013 the appellant had a plate and screws surgically removed from his distal ulnar. Following surgery he was discharged to the orthopaedic out‑patient clinic for follow up. Following two failures to attend appointments there he was discharged from the out‑patient clinic on 5 March 2013.
In his published reasons of 4 February 2013 Mr Guthrie said:
I noted that the applicant had previously had operative treatment to his right arm as a public patient and therefore assumed that the applicant would not be put to any expense for future operative treatment to remove any plates and screws from his right arm. Taking all of these matters into account I consider the appropriate award for compensation for the injuries sustained by the applicant is $17,500.
I am satisfied that the appellant's referral to Sir Charles Gairdner Hospital by his general practitioner in Katanning was the direct consequence of the injury giving rise to his claim for compensation. The appellant was admitted for the removal of the plate and screws at 12.25 pm on 17 January 2013 as a public patient for a day procedure. He was discharged with a prescription for Panadeine Forte. The hospital records suggest that the appellant was discharged at 8.35 pm on 17 January 2013 with his right arm in a sling, having recovered successfully from the operation and the anaesthetic.
I note the report of the orthopaedic registrar of 30 October 2012 to the effect that the appellant was referred to the orthopaedic out‑patient clinic complaining of vague pain over the distal ulnar. A review by Dr Keogh led to the conclusion that the pain was likely related to the presence of the plate and screws inserted in the earlier surgery. In consequence, the surgery of 17 January 2013 was arranged for removal of those items.
Having considered the appellant's appeal and all of the material presented in support of it I am prepared to allow a further $2,000 additional to the $17,500 allowed by the Assessor in respect of the pain, suffering and discomfort associated with the further surgery not contemplated by the Assessor. As already mentioned, I am prepared to allow a sum of $120 for the provision of medical reports, as claimed.
So far as the appellant's claim for lost earnings are concerned I note the Assessor's comments in his reasons published on 4 February 2013 to the following effect:
The applicant made no claim for loss of earnings and I infer that this was because he was, at the time of the offence, incapacitated by reason of his work‑related injuries. There does not appear to be any loss of earning capacity arising from the offence given that the applicant was by reason of the work injury incapacitated to work as a scaffolder and had commenced studies at UWA.
On appeal I have not been provided with any further information as to study at the University of Western Australia. My assessment of the appellant's situation so far as work is concerned is that he was, as at 17 January 2013, unemployed. All of the material before suggests that the appellant has been pursuing and continues to pursue his claim for lost earnings against his former employer, United Group Ltd, arising out of the accident at work on 9 December 2009. I make no allowance for lost earnings or earning capacity associated with the further surgery on 17 January 2013.
In summary, I allow the appeal and award an amount of $2,120 in addition to the amount awarded by the Assessor made up as follows:
Additional non‑pecuniary loss associated with
the need for surgery on 17 January 2013 $2,000.00
Additional cost of obtaining a report $ 120.00
$2,120.00
Otherwise, I see no reason to disturb the Assessor's award.