Re MJM
[2021] WADC 104
•5 NOVEMBER 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE MJM [2021] WADC 104
CORAM: WHITBY DCJ
HEARD: 6 SEPTEMBER 2021 & WRITTEN SUBMISSIONS FILED 1 NOVEMBER 2021
DELIVERED : 5 NOVEMBER 2021
FILE NO/S: APP 3 of 2021
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: MJM
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: R GUTHRIE
File Number : CIC 47 OF 2019
Catchwords:
Criminal injuries compensation - Appeal - Proved offence - Alleged offence - Admission of additional evidence - Conduct of the Appellant
Legislation:
Criminal Code
Criminal Injuries Compensation Act 2003 (WA)
Criminal Investigation Act 2006 (WA)
Criminal Procedure Act 2004 (WA)
Result:
Appeal allowed
Compensation award varied
Representation:
Counsel:
| Appellant | : | Mr N Morrissey |
| Amicus Curiae | : | Ms K E Ellson on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Bradford Legal |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Guy v Hampson [2019] WADC 19
Puterangi [2017] WADC 168
Re Richardson [2009] WADC 93
Robinson [2017] WADC 18
Savic v Duric [2021] WADC 53
Sweetman v Lilley [2021] WADC 74
Underwood v Underwood [2018] WADC 13
X v McAllister [2021] WASCA 3
S v Neumann (1995) 14 WAR 452, 461
WHITBY DCJ:
MJM was a 15-year-old boy in 2017.
On 6 April 2017, MJM went to Cockburn Gateway Shopping Centre with a friend in the evening. At about 8.45 pm, MJM was having dinner at McDonald's when he saw a group of young people gathering nearby in the car park.
The police had attended the scene in order to move the group on. MJM recognised one of the people in the group so went over to see what was going on. The police asked all of the young people to move on, including MJM. One of the police officers was Constable T. As MJM was leaving the scene, Constable T pushed MJM in the back to hurry him along.
As he was leaving the scene, MJM shone a torchlight at Constable T and other police officers. MJM then ran towards the entrance to the shopping centre. The front doors of an entrance to the shopping centre opened, but the second set of doors to the entrance did not open because it was after 9.00 pm. MJM was left standing between the two sets of doors.
Another police officer and Constable T ran into the space between the two sets of doors where MJM was standing. As MJM tried to run away from them, Constable T and the other police officer tackled MJM and brought him to the ground. MJM says he felt Constable T drop his knee onto the top of his head from behind to restrain him.
Constable T then shone his torchlight into MJM's face and pressed the torch against MJM's right eye for approximately 15 seconds. The incident was captured on CCTV.
MJM says he suffered a black eye from where the torch was pressed into his eye, grazes to arms and knee and damage to his teeth and jaw. MJM says the damage to his teeth and jaw was a result of Constable T dropping his knee into the back of MJM's head.
On 13 June 2017, Constable T was convicted in the Magistrates Court at Fremantle of common assault pursuant to s 313 of the Criminal Code in circumstances of aggravation against MJM (proved offence). Constable T pleaded guilty and the facts of the proved offence were agreed in a statement of material facts (Agreed Facts).[1] The magistrate sentenced Constable T on 10 August 2017 on the basis of the Agreed Facts (Sentencing Remarks).[2]
[1] Appeal Book dated 30 August 2021, page 101.
[2] Appeal Book dated 30 August 2021, page 103.
By application dated 25 January 2019 and pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA) (the Act), NM claimed compensation on behalf of MJM, her son, as a consequence of injury and loss arising from the assault on MJM by Constable T (original application).
On 8 December 2020, an assessor of Criminal Injuries Compensation (Assessor) awarded $3,000 compensation under the Act in respect of the original application.
The original application
The original application was made by MJM's mother pursuant to s 12 of the Act. Section 12(1) of the Act provides:
(1)A person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss suffered.
The Assessor was provided with, amongst other material, the Agreed Facts and the Sentencing Remarks. In the Agreed Facts, Constable T admitted that he had caused injury to MJM's right eye by applying his torch to MJM's face. The Agreed Facts did not refer to Constable T dropping his knee into the back of MJM's head or to any other injury suffered by MJM.
As evident from the Sentencing Remarks, the magistrate sentenced Constable T on the basis of the Agreed Facts, that is in relation to the assault by Constable T by applying his torch to MJM's eye.
In considering the original application, the Assessor said that:
(a)the case of Underwood v Underwood[3] was authority for the proposition that MJM could not re‑litigate the facts which led to the proved offence;
(b)the original application must be determined by reference to the Agreed Facts and the Sentencing Remarks;
(c)in accordance with the Agreed Facts and the Sentencing Remarks, Constable T was guilty of a common assault by holding his torch to MJM's right eye;
(d)the injuries to MJM's teeth and head did not arise as a consequence of the proved offence;
(e)he was required to confine his assessment of MJM's injuries to the injury to his right eye;
(f)it was open to him to amend the original application pursuant to s 17 of the Act in relation to any other assault which may have taken place at the same time;
(g)having viewed the CCTV footage of the incident, he could distinguish between the force applied by Constable T to bring MJM to the ground and the force applied by Constable T to MJM's eye with his torch and he considered these to be two separate applications of force;
(h)he was satisfied that the force applied by Constable T to apprehend MJM, bring him to the ground and restrain him was reasonable and therefore lawful; and
(i)it was likely that MJM did sustain head and teeth injuries in the incident but that these injuries did not result from the common assault the subject of the proved offence.
[3] Underwood v Underwood [2018] WADC 13 (Underwood).
The appeal to the District Court
MJM relies upon the following material in support of the appeal:
(a)Appeal book dated 30 August 2021 (containing all of the documents before the Assessor).
(b)Outline of submissions dated 2 September 2021.
(c)MJM's supplementary statement dated 3 September 2021.
I granted leave, pursuant to s 56(1) of the Act, for MJM to rely upon his supplementary statement dated 3 September 2021. This statement sets out MJM's ongoing symptoms and treatment requirements.
In summary, counsel for MJM says that the Assessor erred in not awarding MJM compensation for injuries and consequential losses sustained to his jaw and teeth as a result of Constable T's offending on 6 April 2017.
Constable T participated in the original application. By orders of Registrar Kubacz dated 16 March 2021, Constable T was removed as a respondent to the appeal and the Chief Executive Officer of the Department of Justice (CEO) was granted leave to appear as amicus curiae. The CEO sought to rely upon its outline of submissions dated 31 August 2021 in response to the appeal.
In summary, counsel for the CEO says that the court is bound by the Agreed Facts and Sentencing Remarks and cannot consider any additional evidence in determining the amount of compensation payable to MJM. The CEO submits that, even if compensation is assessed having regard to the actions of Constable T in dropping his knee to the back of MJM's head, then that act of Constable T's was lawful and therefore, any injuries suffered as a result are not compensable.
Issues
On the materials before the court and on the submissions made, the following issues arise for determination:
(a)What are the legal principles applicable to the appeal?
(b)Can MJM adduce additional evidence beyond the facts detailed in the Agreed Facts and the Sentencing Remarks?
(c)Is MJM able to claim compensation pursuant to s 16 or s 17 of the Act?
(d)Did Constable T commit an alleged offence?
(e)Were the injuries to MJM's jaw and teeth sustained as a result of an alleged offence?
(f)What award of compensation is appropriate?
(g)Was MJM engaged in criminal conduct when he was injured?
(h)Should any award of compensation be reduced due to MJM's behaviour pursuant to s 41 of the Act?
What are the legal principles applicable to the appeal?
This appeal is made pursuant to s 55 of the Act. In hearing this appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the assessor's decision': s 56(1) of the Act. The court may determine the appeal 'solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information': s 56 (1) of the Act. It is open to the court to 'confirm, vary or reverse the assessor's decision, either in whole or in part': s 56(2)(b) of the Act.
Cases decided in this court differ in their findings as to whether it is appropriate to have regard to the Assessor's assessment of compensation (given the assessment is made by a specialist tribunal in the field).[4] I am of the view that a hearing de novo requires me to consider this appeal without regard to the prior decision of the Assessor. In any event, I would not be assisted by the assessment of the Assessor in this circumstance. The Assessor declined to assess any damages in relation to injuries to MJM's jaw and teeth. This is essentially not an appeal where the quantum of the assessment is in issue, rather whether the injuries are compensable at all. I propose to determine the appeal without regard to the assessment of the Assessor.
Can MJM adduce additional evidence beyond the facts detailed in the Agreed Facts and the Sentencing Remarks?
[4] See for example Robinson [2017] WADC 18 [9] and Underwood as authority for the view that regard should be had to the assessment as opposed to Sweetman v Lilley [2021] WADC 74 and Guy v Hampson [2019] WADC 19 [14] as authority for the view that it is not appropriate to have regard to the assessment.
The original application is made pursuant to s 12 of the Act. Section 12 relevantly provides:
12.Proved Offence
(1)A person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered.
…
(3)An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied ‑
(a)if the application is made under subsection (1) ‑ that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence [.]
The term 'proved offence' is defined, by s 3 of the Act, to mean 'a crime, misdemeanour or simple offence of which a person has been convicted'.
Counsel for MJM referred to the original statement of material facts (original facts) dated 12 May 2017[5] which included the following:
The accused, whilst the victim was on the ground dropped his right knee onto the head of the victim. The accused continued to press down on the victims [sic] head with his right knee and left hand.
[5] Appeal Book dated 30 August 2021, page 90.
Prior to Constable T pleading guilty to the proved offence, the Agreed Facts were amended to remove the reference to Constable T dropping his knee into MJM's head. This was removed from the Agreed Facts without MJM's knowledge or consent.
Counsel for MJM submits that the 'proved offence' still includes the act of Constable T dropping his knee into the back of MJM's head and that it is open to the court to assess MJM's claim for compensation for injuries sustained as a result of that act pursuant to s 12 of the Act.
Counsel for the CEO submits that MJM cannot re-litigate the facts which led to the proved offence by introducing further evidence. The Agreed Facts and Sentencing Remarks are the only facts, the CEO submits, on which Constable T has been convicted and therefore, the proved offence is limited to the common assault comprising the placement of the torch by Constable T on MJM's eye.
In Underwood, Gething DCJ set out, at [56] - [62], the principles which govern what facts can be considered in determining compensation for a 'proved offence'.
In applying those principles, I find that for the purpose of this appeal:
(a)Constable T's plea of guilty to the proved offence is evidence of the Agreed Facts;
(b)Constable T's plea of guilty to the proved offence means that Constable T cannot raise any defence to the proved offence;
(c)if MJM was able to re-litigate the facts which led to the proved offence by introducing further evidence, procedural fairness would dictate that Constable T would be entitled to introduce contradictory evidence. This would, in turn, lead to the re‑litigation of the facts which led to the proved offence;
(d)in determining any issue as to the facts that form part of the proved offence following a plea of guilty, the facts admitted for the purposes of sentencing, as evident from the Sentencing Remarks, are the most reliable guide;
(e)I must be conscious to ensure that the determination of the appeal is not based on factual material which is inconsistent with the material facts comprising the elements of the proved offence; and
(f)therefore, MJM cannot re-litigate the facts which led to the proved offence by adducing additional evidence of facts not contained in the Agreed Facts and/or the Sentencing Remarks.
In all of these circumstances, I am of the view that the original application under s 12 of the Act must be determined on the basis of the facts set out in the Agreed Facts and the Sentencing Remarks. It is these facts that constitute the proved offence. Constable T's alleged act of dropping his knee into the back of MJM's head is not a 'proved offence' of which Constable T has been convicted.
I find that MJM is not permitted to adduce additional evidence, in the form of evidence which goes to any conduct of Constable T in dropping his knee into the back of MJM's head, in relation to the original application under s 12 of the Act.
That is however, not the end of the determination of the appeal. An application for compensation may also be made under the Act, pursuant to either s 16 or s 17 of the Act, in respect of an 'alleged offence'.
Is MJM able to claim compensation pursuant to s 16 or s 17 of the Act?
Counsel for MJM submits that Constable T's act of dropping his right knee and body weight into the back of MJM's head with force was not a reasonable use of force, was not lawful and was causative of his jaw and teeth injuries. Counsel for MJM submits that those injuries should be compensable pursuant to either s 16 or s 17 of the Act, as that act constitutes an 'alleged offence' where the charge is not determined or alternatively, an 'alleged offence' where no person was charged.
Section 16 of the Act deals with a circumstance where a person is charged with an offence, but the charge is not determined. Section 16 of the Act relevantly provides:
16.Alleged offence: charge not determined
(1)This section applies if a person is charged with an alleged offence and ‑
(a)the charge is withdrawn or a nolle prosequi is entered in respect of it or the prosecution of it is discontinued; or
(b)the charge is dismissed without a finding as to whether the person charged is guilty or not guilty of it; or
(c)the person is acquitted because the prosecutor does not adduce any evidence on the charge; or
(d)the person dies before he or she is found guilty or not guilty of the charge; or
(e)for any other reason, the person is not brought to trial on the charge,
and -
(f)the person charged is not otherwise charged with the alleged offence or tried for it; and
(g)section 15 does not apply.
(2)A person who suffers injury as a consequence of the commission of the alleged offence may apply for compensation for that injury and any loss also suffered.
…
(4)An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied ‑
(a)if the application is made under subsection (2) - that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the alleged offence[.]
Section 17 of the Act deals with a circumstance where an alleged offence is committed but no person is charged with the alleged offence. Section 17 of the Act relevantly provides:
17.Alleged offence: no person charged
(1)This section applies if an alleged offence is committed but no person is charged with the alleged offence.
(2)A person who suffers injury as a consequence of the commission of the alleged offence may apply for compensation for that injury and any loss also suffered.
…
(4)An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied ‑
(a)if the application is made under subsection (2) - that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the alleged offence[.]
It is first necessary to identify what MJM says is the 'alleged offence'. Counsel for MJM submits that the 'alleged offence' is common assault pursuant to s 313 of the Criminal Code which Constable T committed when he dropped his knee into the back of MJM's head.
I will first consider whether this alleged offence was one with which Constable T was charged. If it was, then the original application may be amended so as to be made under s 16 of the Act.
Counsel for MJM says that Constable T was originally charged with common assault in circumstances where the original facts included the act of Constable T dropping his knee into the back of MJM's head. Counsel for MJM submits that, by amending the original facts to remove this act, the charge of common assault as it related to that act was withdrawn as contemplated by s 16(1)(a) of the Act.
Counsel for the CEO submits that whether an offence is charged is not only based upon a consideration of the acts which constitute the charge, but also upon each and every element of the charge. Therefore, it does not necessarily follow that an offence of common assault was charged for the act of Constable T dropping his knee into MJM's head simply because that act was referred to in the original facts.
The preliminary matter I am required to determine is not whether compensation should be awarded under s 16 of the Act, but whether MJM may apply for compensation pursuant to s 16 of the Act on the basis that Constable T was charged with an alleged offence in circumstances where the charge has been withdrawn and Constable T is not otherwise charged with the alleged offence or tried for it.
The first enquiry is whether it is permissible, where more than one assault is alleged to have been committed, for the person to be charged with one offence of assault.
I am satisfied that the answer to this enquiry is yes. This is because sch 1 cl 8 of the Criminal Procedure Act 2004 (WA) provides:
(1)If it is alleged that a person committed more than one assault on one other person during one incident, the person may be charged with one offence of assault, or of which assault is an element, in respect of the other person.
Therefore, it is possible for Constable T to have committed two common assaults but only be charged with one offence.
The second enquiry is whether all of the elements of the offence of common assault, arising from the act of Constable T dropping his knee into MJM's head, were contained in the original facts.
The elements of an offence of common assault pursuant to s 313 of the Criminal Code are:
(a)the offender was the accused;
(b)there was an assault; and
(c)the assault was unlawful.
The original facts, to the extent they referred to the act of Constable T dropping his knee into MJM's head, contain sufficient details to comprise the elements of common assault.
Therefore, I am satisfied that Constable T was charged with an offence of common assault by virtue of the act of dropping his knee into MJM's head. When the original facts were amended to remove that charge, the charge was withdrawn.
Further, Constable T was not otherwise charged with the alleged offence of assault by virtue of dropping his knee into MJM's head, nor was he tried for that alleged offence. This is not the same scenario as the assault example given in X v McAllister.[6] In that example, it is the same act against the same victim which is said to give rise to alternative charges. This is not a case where the alleged offence of assault arises out of a single act. Constable T engaged in two separate acts, one of applying the torch to MJM's eye and one of dropping his knee to the back of MJM's head. Constable T has not been otherwise charged with the alleged offence nor has he been tried for the alleged offence.
[6] X v McAllister [2021] WASCA 3 [83] ‑ [84].
The requirements of s 16(1)(a) and s 16(1)(f) of the Act are satisfied.
Therefore, I find that MJM is permitted to make an application for assessment of compensation pursuant to s 16 of the Act, based upon the alleged offence of common assault, being the act of Constable T dropping his knee into MJM's head (alleged offence).
While it is not necessary to consider whether MJM's application can also be made under s 17 of the Act, a similar analysis does apply. If the alleged offence was not one with which Constable T had been charged, it is an alleged offence for which no‑one has been charged.
Did Constable T commit the alleged offence?
An 'assault' is defined, in s 222 of the Criminal Code, as 'a person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent'.
An assault is unlawful pursuant to s 223 of the Criminal Code unless it is 'authorised or justified or excused by law'.
Counsel for MJM says that the alleged offence was committed when Constable T dropped his knee into the back of MJM's head when Constable T was not authorised or justified or excused by law to do so.
Counsel for the CEO submits that it is open for the court to find that the use of force by Constable T, in apprehending MJM in an effort to arrest him, and in bringing him to the ground and restraining him was reasonable in the circumstances and, therefore, lawful pursuant to s 233(1) of the Criminal Code.
Section 233(1) of the Criminal Code provides:
When any person is proceeding lawfully to arrest, with or without warrant, another person, and the person sought to be arrested takes to flight, or appears to be about to take to flight, in order to avoid arrest, it is lawful for the person seeking to make the arrest, and for any person lawfully assisting that person, to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested.
I have viewed the CCTV footage as urged to do so by both counsel for MJM and counsel for the CEO. I viewed the CCTV footage of the incident from four different angles. This is what I observed:
(a)MJM entered the outside glass sliding doors of the shopping centre doors;
(b)MJM attempted to prise open the inside set of glass sliding doors but they did not open;
(c)a police officer (not Constable T) ran through the outside glass sliding doors, as he did some customers approached the inside set of glass sliding doors from inside the shopping centre and the doors opened so MJM ran towards them;
(d)before he could go through the open inside glass sliding doors, the other police officer grabbed him and restrained him;
(e)Constable T ran through the first set of glass sliding doors, Constable T grabbed MJM immediately thereafter and both police officers brought MJM to the ground. At this point in time, MJM is face‑first on the ground, is restrained and is not attempting to resist the police officers;
(f)Constable T dropped his knee into the back of MJM's head when MJM is face‑first on the ground and keeps his knee on the back of MJM's head; and
(g)Constable T shines the torchlight into MJM's face and places the torchlight up against MJM's eye socket.
Based upon my review of the CCTV footage, I have formed the opinion that:
(a)while MJM does attempt to run away from the police officers before they apprehend him, once he is apprehended, he does not resist arrest or behave in an aggressive, threatening or intimidating manner towards Constable T or the other police officer;
(b)Constable T drops his knee into the back of MJM's head after MJM is placed face down on the ground. At this point in time, MJM is not resisting arrest or trying to escape; and
(c)Constable T's act of dropping his knee into the back of MJM's head after MJM is face down on the ground cannot be considered as reasonably necessary to prevent the escape of MJM. MJM was not attempting to flee, he was face‑first on the ground restrained by police officers. At this point in time, Constable T did not need to drop his knee into the back of MJM's head to prevent him from escaping.
I find that MJM's version of events, as detailed in his statement dated 24 May 2017, is consistent with my observations of the incident.
On the basis of the clear and cogent CCTV footage, I am satisfied that Constable T applied force by dropping his knee into the back of MJM's head without his consent, in circumstances where the assault was not authorised or justified or excused by law. I am, therefore, satisfied that Constable T committed the alleged offence.
Were the injuries to MJM's jaw and teeth as a consequence of the alleged offence?
An Assessor must not make an award of compensation unless satisfied that the claimed injury and claimed loss has occurred and was a consequence of the commission of a proved offence: s 12(3) of the Act, or of an alleged offence: s 16(4)(a). 'Satisfied' means 'satisfied on the balance of probabilities': s 3 of the Act.
MJM bears the onus of proving, on the balance of probabilities, that the injuries or loss he suffered were caused by the proved offence and/or the alleged offence. The question of whether the injuries were caused by the alleged offence is a question of fact, which is to be resolved by common sense. The alleged offence must have contributed in a material way to the injuries or loss suffered by MJM.[7]
[7] Savic v Duric [2021] WADC 53 [33] and the cases referred to therein.
In his impact of injury statement, MJM describes his injuries as a bruised eye, grazes to his arms and knee, swelling behind his right ear, dental injuries and damage to his jaw.
On 6 April 2017, MJM saw Dr Alissa Jacobs at Perth Oral Medicine & Dental Sleep Centre, where he underwent a consultation and examination of his oral injuries.
On 29 April 2017, MJM attended the Parry Street Dental Centre where his general dentist, Dr Rodney Sammut, diagnosed a large oblique crown fracture with 'nerve non‑vitality with both apical and periodontal tenderness on his upper right central incisor (tooth number 11)'. At this appointment, Dr Sammut 'restored the fractured crown with composite resin material'.
On 5 May 2017, Dr Sammut reassessed MJM's condition, where he determined that tooth number 11 was 'still non‑vital with apical tenderness'. He then referred MJM for endodontic assessment at Murdoch Endodontics with Dr Hian Siang Hsu.
On 15 September 2017, MJM underwent surgery with Dr Hsu on teeth number 11 and number 12.
In the months following the alleged offence, MJM noticed a clicking in his jaw which worsened over time. As a result, he then underwent a further consultation and examination with Dr Jacobs on 13 March 2018, where she recommended the following treatment:
… conservative management of his temporomandibular dysfunction, namely pain‑free jaw function, heat and ice pack 2 to 3 times a day, habit awareness, jaw postural awareness and relaxation, non‑steroidal anti-inflammatories which likely would be Celebrex and a mandibular posterior plane splint.
At this appointment, MJM was prescribed Celebrex 200 mg and advised to take one per day for 30 days.
According to Dr Jacobs, scans revealed that MJM's jaw had a 'bilateral disc displacement without reduction', and also showed some 'additional effusion and inflammation in the left joint as well as some cortical irregularity of the condyle'.
At a further appointment with Dr Jacobs on 27 March 2018 MJM had a mandibular posterior plane appliance inserted, which was continuously adjusted by Dr Jacobs at four subsequent appointments, being on 24 April 2018, 5 June 2018, 11 September 2018 and 29 January 2019.
On 19 April 2018, MJM attended a follow-up appointment with Dr Sammut to maintain restorations of his two root canal treated upper incisors (tooth number 11 and tooth number 12). He also attended a subsequent follow‑up appointment with Dr Sammut for this purpose on 31 August 2018.
On 24 July 2018, MJM attended a 10 month follow‑up examination post‑surgery with Dr Hsu, where it was documented that there were no signs of 'ongoing periapical pathosis', and that MJM showed signs of 'good periapical bone repair'. Dr Hsu also recommended 'the incisal and mesial aspect of the restoration to be replaced as soon as possible to avoid bacterial ingress', with a further appointment having been arranged for 18 months' time.
Dr Jacobs prepared a medical report dated 5 March 2019: Appeal Book dated 1 September 2021 at pages 51 - 54 (Medical Report). The Medical Report was prepared for the purposes of the original application.
I am satisfied that MJM suffered the injuries to his head, teeth and jaw, as detailed by Dr Jacobs, Dr Sammut and Dr Hsu, as a consequence of the alleged offence.
What award of compensation is appropriate?
An assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered: s 30(1) of the Act.
'Injury' is defined to include bodily harm and mental and nervous shock: s 12(1) and s 12(3) of the Act. Mental and nervous shock refers to 'mental or emotional harm as opposed to physical injury or bodily harm'.[8] The mental or emotional harm must be enduring, rather than a mere emotional reaction.[9]
[8] S v Neumann (1995) 14 WAR 452, 461.
[9] Neumann (461).
'Loss' includes expenses that MJM has actually and reasonably incurred that arise directly from or in obtaining a report from a health professional in relation to the injuries that MJM suffered or expenses that are likely to be reasonably incurred by MJM for treatment that he is likely to need as a result of his injuries: s 6(1)(2) of the Act.
The maximum amount of compensation that may be awarded for injury and loss is $75,000: s 31 of the Act.
Non-pecuniary loss
Any compensation awarded for non-pecuniary loss must be fair and reasonable and have regard to moderation. The compensation must be proportionate to the injury suffered by MJM.
MJM suffered the following injuries as a result of the proved and alleged offences:
(a)black right eye;
(b)grazes to arms and knees;
(c)lump behind his right ear;
(d)damage to teeth 11 and 12; and
(e)displacement to and clicking in his jaw.[10]
[10] MJM's Impact of Injury Statement dated 23 January 2019; Appeal Book pages 30 - 32.
MJM says that as a result of the alleged offence he still suffers clicks in his jaw from time to time which he mainly notices when he eats. He says this is uncomfortable but he has learnt to deal with it.[11]
[11] MJM Supplementary Statement dated 3 September 2021.
I am satisfied that the injuries MJM suffered as a consequence of the commission of the proved and alleged offences have either resolved or, in the case of the injuries to his teeth and jaw, will substantially resolve with medical treatment. There is no evidence before me that discloses that MJM has suffered any enduring nervous or mental shock. There was no substantial interruption of MJM's schooling as a result of his injuries.
However, I am satisfied that the alleged offence and proved offence caused the MJM pain at the time and ongoing pain in his jaw and teeth that have not yet fully resolved. I am also satisfied that the incident was distressing for MJM. MJM will also suffer further discomfort associated with the proposed treatment for his teeth and jaw.
I therefore find that an amount of $10,227.39 is an appropriate award for non-pecuniary loss.
Pecuniary loss
MJM provided the following summary of medical expenses for the treatment of his head, teeth and jaw injuries:
Date Provider Description Cost 29/04/2017
Dr Rodney Sammut
Emergency examination
$40.00
29/04/2017
Dr Rodney Sammut
Intraroral x-ray single
$40.00
29/04/2017
Dr Rodney Sammut
Adhesive rest 4 surf ant
$208.00
29/04/2017
Dr Rodney Sammut
Restoration incisal cornr
$45.00
5/05/2017
Dr Rodney Sammut
Emergency examination
$47.00
5/05/2017
Dr Rodney Sammut
Intraroral x-ray single
$44.00
5/05/2017
Dr Rodney Sammut
Adhesive rest 4 surf ant
$208.00
5/05/2017
Dr Rodney Sammut
Restoration incisal cornr
$45.00
24/05/2017
Dr Hian Siang Hsu
Consultation by referral
$139.00
24/05/2017
Dr Hian Siang Hsu
Intraoral periapical or bitewing radiograph-per exposure
$53.00
24/05/2017
Dr Hian Siang Hsu
Puilp vitality test -per visit
$44.00
15/06/2017
Dr Hian Siang Hsu
Complete chemo-mechanical preparation of root canal ‑ one canal
$429.00
15/06/2017
Dr Hian Siang Hsu
Intraoral periapical or bitewing radiograph-per exposure
$53.00
15/06/2017
Dr Hian Siang Hsu
Intraoral periapical or bitewing radiograph-per exposure
$53.00
15/06/2017
Dr Hian Siang Hsu
Adhesive restoration - one surface‑anterior tooth-direct
$88.00
15/06/2017
Dr Hiang Siang Hsu
Complete chemo-mechanical preparation of root canal-one canal
$429.00
15/06/2017
Dr Hian Siang Hsu
Adhesive restoration - one surface‑anterior tooth-direct
$88.00
15/06/2017
Dr Hian Siang Hsu
Intraoral periapical or bitewing radiograph-per exposure
$53.00
15/09/2017
Dr Hian Siang Hsu
Root canal obturation - one canal
$422.00
15/09/2017
Dr Hian Siang Hsu
Intraoral periapical or bitewing radiograph-per exposure
$53.00
15/09/2017
Dr Hian Siang Hsu
Intraoral periapical or bitewing radiograph-per exposure
$53.00
15/09/2017
Dr Hian Siang Hsu
Root canal obturation - one canal
$422.00
13/03/2018
Dr Alissa Jacobs
Consultation by referral - extended
$150.00
13/03/2018
Dr Alissa Jacobs
Diagnostic Model - per model
$75.00
13/03/2018
Dr Alissa Jacobs
Diagnostic Model - per model
$75.00
13/03/2018
Dr Alissa Jacobs
Clinical occlusal analysis, including muscle and joint palpa
$130.00
13/03/2018
Dr Alissa Jacobs
Registration and mounting of models for occlusal analysis
$130.00
27/03/2018
Dr Alissa Jacobs
Consultation by referral - review
$130.00
27/03/2018
Dr Alissa Jacobs
Occlusal splint
$800.00
19/04/2018
Dr Rodney Sammut
Adhesive rest 1 surf ant
$131.00
19/04/2018
Dr Rodney Sammut
Adhesive rest 1 surf ant
$131.00
24/04/2018
Dr Alissa Jacobs
Consultation by referral - review
$130.00
24/04/2018
Dr Alissa Jacobs
Adjustment of pre-existing occlusal splint
$90.00
5/06/2018
Dr Alissa Jacobs
Consultation by referral - review
$130.00
5/06/2018
Dr Alissa Jacobs
Adjustment of pre-existing occlusal splint
$90.00
24/07/2018
Dr Hian Siang Hsu
Consultation
$85.00
24/07/2018
Dr Hian Siang Hsu
Intraoral periapical or bitewing radiograph-per exposure
$60.00
24/07/2018
Dr Hian Siang Hsu
Pulp vitaly test - per visit
$50.00
11/09/2018
Dr Alissa Jacobs
Consultation by referral - review
$140.00
11/09/2018
Dr Alissa Jacobs
Adjustment of pre-existing occlusal splint
$90.00
29/01/2019
Dr Alissa Jacobs
Consultation by referral - review
$140.00
29/01/2019
Dr Alissa Jacobs
Adjustment of pre-existing occlusal splint
$90.00
12/07/2019
Dr Alissa Jacobs
Consultation by referral - review
$140.00
Total
$6,043.00
MJM also incurred the expense of the medical report of Dr Alissa Jacobs dated 5 March 2019 in the amount of $2,200.
I allow these items.
MJM also claims the following compensation for expenses that are likely to be reasonably incurred by him for treatment that he is likely to need as a result of the injuries to his teeth and jaw:
Dr Alissa Jacobs
5 x standard appointments at $130
$650.00
Dr Rodney Sammut
5 x standard appointments at $130
$650.00
Dr Alissa Jacobs
Occusal Appliances (2 x $1,340)[12]
$2,680.00
Dr Alissa Jacobs
Occusal appliance fitting appointments (1 x $130, 9 x $90)[13]
$1,030.00
Dr Alissa Jacobs
Physiotherapy ($100 per appointment, no estimate of number)
$100.00
Dr Alissa Jacobs
Botox treatment ($970 per appointment, no estimate of number)
$970.00
Crowning or implant replacement (estimate)
$5,000.00
Total
$11,080.00
[12] Medical Report: Appeal Book, page 53.
[13] Medical Report: Appeal Book, page 53.
I allow an amount of $14,890 on the basis that 10 physiotherapy appointments and five Botox treatments are required. I find, however, that this amount for future treatment should be subject to s 48 of the Act, that is, it is not to be paid unless an assessor is satisfied that the expenses have been reasonably incurred by or on behalf of MJM for treatment that he required as a direct consequence of the injury suffered by him in consequence of the commission of the alleged offence.
Was MJM engaged in criminal conduct when he was injured?
Section 39 of the Act precludes an award of compensation if the assessor is satisfied:
(a)that a person was injured as a consequence of the commission of an offence; and
(b)that the injury was suffered when the person was committing a separate offence.
Constable T submitted to the Assessor that MJM committed an offence pursuant to s 38C of the Criminal Investigation Act 2006 (WA) (CIA) by failing to comply with an order relating to an out of control public gathering.
Section 38C of the CIA provides a person commits an offence if the person fails to comply with an order given under s 38B(1) or s 38B(2) of the CIA. Section 38B of the CIA provides, inter alia, that if an out of control gathering is occurring (or a gathering is likely to become out of control), a police officer may order a person to take any reasonable measures that the officer considers necessary to prevent that gathering from continuing or from becoming an out of control gathering.
An award of compensation to MJM will only be precluded, pursuant to s 39 of the Act, if there is clear and cogent evidence that the injuries to MJM's jaw and teeth were suffered when he was committing a separate offence: Puterangi.[14]
[14] Puterangi [2017] WADC 168 [63].
Counsel for MJM submits that MJM was not in breach of any order as defined in s 38B of the CIA and that, in any event, at the time that Constable T dropped his knee into the back of MJM's head, MJM was not committing any offence as he was already restrained.
The CCTV clearly shows that Constable T and the other police officer apprehended and restrained MJM before Constable T dropped his knee into the back of MJM's head and applied his torch to MJM's eye. Even if MJM, by running away from the police officers, had failed to comply with an order of the police pursuant to s 38B of the CIA, he was clearly not committing that offence when he had already been restrained.
I find that MJM was not engaged in criminal conduct when the injuries to his jaw and teeth were sustained. I am, therefore, not precluded from making an award of compensation to MJM.
Should any award of compensation be reduced due to MJM's behaviour pursuant to s 41 of the Act?
Section 41 of the Act provides:
41.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 or death; 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.
Whether or not MJM's behaviour, condition, attitude or disposition precludes or reduces an award of compensation is a matter of fact and is to be determined having regard to the particular circumstances of the case.[15] The court has a discretion to reduce the award, either in part or in whole, which must be exercised to ensure that justice is done and the purpose of the Act is upheld.[16]
[15] Underwood [193].
[16] Re Richardson [2009] WADC 93 [81].
The behaviour of MJM in shining a torch towards police officers when asked to move on and/or running from the police appears to be the conduct of MJM which may preclude or reduce any award pursuant to s 41 of the Act.
I have viewed the CCTV footage which records the conduct constituting both the proved offence and the alleged offence. I have also had regard to MJM statements dated 24 May 2017 and 3 September 2021.
In all of the circumstances, having considered the purpose of the Act, I do not consider that MJM's behaviour justifies the award of compensation being reduced. It is not in the interests of justice to do so. It is my finding that MJM suffered injuries to his teeth, jaw and eye as a consequence of both a proved and an alleged offence. MJM was a 15‑year‑old child and his injuries were sustained when MJM was not engaging in any adverse behaviour - he was restrained and not resisting arrest. I am satisfied that the very purpose of the Act is to compensate victims such as MJM for his injuries.
Conclusion and final orders
I find that the decision of the Assessor should be varied to increase the amount of compensation to $33,360.39 comprising of the following amounts:
(a)Non-pecuniary loss - $10,227.39
(b)Past medical expenses - $6,043.00
(b)Medical Report - $2,200.00
(c)Future medical expenses - $14,890.00
An interim payment of $2,200.00 has been paid.
The amount of $14,890 for future medical expenses is subject to s 48 of the Act.
For the avoidance of doubt, the order made by the Assessor, pursuant to s 45(1) of the Act, barring proceedings under pt 6 of the Act in respect of the award made is not disturbed.
The parties should provide a minute of consent orders within 7 days of these reasons or, in the event they cannot agree, each party should provide a minute of proposed orders within 7 days of these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CB
Associate to her Honour Judge Whitby
5 NOVEMBER 2021
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