Re NMB
[2015] WADC 157
•21 DECEMBER 2015
RE NMB [2015] WADC 157
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 157 | |
| Case No: | APP:51/2015 | 25 NOVEMBER 2015 | |
| Coram: | BRADDOCK DCJ | 21/12/15 | |
| PERTH | |||
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Compensation order made | ||
| PDF Version |
| Parties: | NMB |
Catchwords: | Criminal injuries compensation Quantum of award of damages Extension of time Long delay Credit Mental and nervous shock Psychiatric injury Causation Costs of medical report Reassessment of award |
Legislation: | Criminal Injuries Compensation Act 2003 s 3, s 9, s 17, s 18(2), s 38, s 56 |
Case References: | A v D (1994) 11 WAR 481 Bennell [2015] WACIC 10 Fagan v Crimes Commission Tribunal [1982] HCA 49; (1982) 150 CLR 666 Gallo v Dawson (1990) 93 ALR 479 Gullelo v Halloran [2008] WADC 145 Hinchliffe v Hinchliffe [2010] WADC 78 HNR v CJF [2002] WADC 94 Hogben v Darcy [2009] WADC 63 Medlin v State Government Insurance Commission (1995) 182 CLR 1 S v Neumann (1995) 14 WAR 452 TAW v NJS [2011] WADC 187 TB v The State of Western Australia [2015] WASCA 212 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
AND
IN THE MATTER of an appeal by
- Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : H L PORTER
Citation : [2015] WACIC 10
Catchwords:
Criminal injuries compensation - Quantum of award of damages - Extension of time - Long delay - Credit - Mental and nervous shock - Psychiatric injury - Causation - Costs of medical report - Reassessment of award
Legislation:
Criminal Injuries Compensation Act 2003 s 3, s 9, s 17, s 18(2), s 38, s 56
Result:
Appeal allowed
Compensation order made
Representation:
Counsel:
Appellant : In person
Amicus Curiae : Mr E F Faeris appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
A v D (1994) 11 WAR 481
Bennell [2015] WACIC 10
Fagan v Crimes Commission Tribunal [1982] HCA 49; (1982) 150 CLR 666
Gallo v Dawson (1990) 93 ALR 479
Gullelo v Halloran [2008] WADC 145
Hinchliffe v Hinchliffe [2010] WADC 78
HNR v CJF [2002] WADC 94
Hogben v Darcy [2009] WADC 63
Medlin v State Government Insurance Commission (1995) 182 CLR 1
S v Neumann (1995) 14 WAR 452
TAW v NJS [2011] WADC 187
TB v The State of Western Australia [2015] WASCA 212
1 BRADDOCK DCJ: This is an appeal from a decision of an assessor of criminal injuries compensation of 15 June 2015. On 20 July 2015, the assessor delivered reasons for judgment: Bennell [2015] WACIC 10 (the CIC decision).
2 On 4 December 2013, the appellant, NMB, through her solicitors made application for criminal injuries compensation pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (the Act) in relation to three separate incidents, which occurred allegedly on 10 June 1993, 14 February 1996 and 1 August 1997.
3 In relation to the first incident, the assessor said that she declined to extend time. The second and third were also out of time, but leave was granted. The assessor considered the materials made available with the application and materials sought from third parties.
4 The assessor awarded NMB the sum of $6,000, plus $1,474 for expenses of a psychiatric report. In the event, no monies have been paid to NMB, due to a notice filed by the Deputy Sheriff in relation to outstanding fines and penalties of $11,887.13 incurred by her. The sum of $6,000 was remitted to the Fines Enforcement Registry.
5 On 10 February 2015, NMB filed a written notice of appeal stating that she was dissatisfied with the amount of the award, the refusal to grant an extension of time in relation to the earliest incident and the refusal to pay the cost of the second report of Dr Frederick Ng.
6 Given that the events with which these applications are concerned span many years, I set out below a chronology of the significant events disclosed in the materials.
Chronology
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7 The assessor had before her materials provided by NMB and other information obtained by her office from the West Australian Police Service, Community and Juvenile Justice and the Department of Child Protection (DCP).
8 NMB provided statements dated 8 October 2013, 25 March 2015, 23 June 2014 and a statement dealing with the reasons for delay in lodging the applications, also dated 8 October 2013. She has also provided statements from her son R (9 July 2014) and her daughter C (24 April 2014) and her mother Ms W.
9 The criminal record of Mr C, the police incident reports, a complaint in relation to the 1996 charge and other documents were obtained from the police.
10 The assessor also obtained records from DCP relating to NMB's early life and her later contact with that department in relation to financial support and her issues concerning her children after separation from Mr C. These documents provide dates for many matters that are not clear from the other materials. They also indicate offending by NMB and by her older sons against her.
11 Mr C was advised of the application and responded to it. He admitted the offending and convictions in relation to the second and third incidents, disputed many of the facts alleged against him, and made multiple allegations against NMB. He provided also letters and statements from his mother, also critical of NMB.
12 Dr Frederick Ng provided two reports, one submitted initially and a supplementary report following questions in relation to the depth of background he had been provided with, of which the assessor was critical.
13 The sum awarded comprised $6,000 for general damages for pain and suffering resulting from the second and third incidents, with no component for nervous shock or mental health issues. In addition, she awarded the costs of Dr Ng's first report. The assessor declined to meet the cost of the supplementary report, on the grounds that the need for this had been the appellant's failure to be frank with Dr Ng.
14 There was no award for future treatment, pursuant to s 48 of the Act.
15 In her written reasons the assessor recounted the history of the claim, the incidents and the information she had obtained from the various departmental records. She made findings seriously adverse to NMB's credibility, based upon what she perceived to be inconsistencies between NMB's recollections the dates and other matters in these documents, her criminal convictions and her omission of matters in her interview with Dr Ng. She did not hold a hearing to take evidence from NMB in person.
Evidence on appeal
16 Pursuant to s 56(1) of the Act, the District Court must decide the application on appeal afresh, on the evidence and information that was in the possession of the assessor but may receive further evidence and information.
17 The District Court is not fettered by the assessor's decision and the appeal is determined as a hearing de novo. It is open to the District Court to confirm, vary or reverse the assessor's decision, either in whole or in part: s 56(2)(b) of the Act.
18 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].
19 At the hearing of the appeal, I allowed further evidence from NMB on oath. NMB had not previously had the opportunity to be heard and in the context of a remedial compensation scheme, I was of the opinion this was just. NMB was representing herself. The court may exercise any power of the assessor, who may inform herself as she thinks fit: s 18(2).
20 The materials available to the court were those provided by the office of the assessor and documents provided directly by DCP and the Department of Corrective Services which had been available to her. No book of documents was provided by NMB, despite an order of the principal registrar to do so. Neither were any submissions filed by NMB.
21 The chief executive officer filed submissions, as ordered, on 20 November 2015. At the hearing, I learned that NMB had sent to the chief executive officer's office submissions earlier in November, but had not filed them with the court. She stated she did not understand that she needed to do so. She provided a copy at the hearing.
22 NMB explained that she had been unable to address the materials required by the order of the principal registrar because to do so required revisiting the events, and she was not feeling strong enough to be able to do so. She had recently sought medical assistance from her general practitioner for depression.
23 Taking into consideration the nature of the offences under consideration, even allowing for the passage of time, I accepted she faced real difficulties and formed the view, on hearing from NMB, that she had a reasonable excuse for not complying with the orders. She wished to proceed with her appeal and I saw no reason why she should not do so.
24 Counsel for the chief executive officer had no objection to her giving evidence to address any issues relevant to the appeal or to update the court.
25 NMB gave evidence that she was living in Warnbro with six of her children and a baby grandson. She stated that she was suffering from depression. She said she had seen Dr Finn at the women's health centre in Rockingham a couple of weeks ago. She said that she had an appointment that afternoon with the doctor to work out medication to deal with her condition.
26 She described the condition as being 'not too bad' if she was busy, but if she was not busy or at work she 'could not deal with it' and became a 'couch potato'. She said she was working for a company called QTM and doing traffic control but that they did not always have work. For the last two weeks, she had not had any work and her condition had been worse. She said she would look after her grandchildren from time to time.
27 In relation to her son, T, she told me that his charges had been recently 'downgraded'. That he had served two and a half years in jail, his appeal had recently been dealt with, and he was acquitted of manslaughter and re-sentenced for 'a lesser offence': (TB v The State of Western Australia [2015] WASCA 212).
28 In relation to her son, R, she told me that he had been left on the side of the road after being attacked by a large group, only two of whom were charged. She said that the last time she spoke to Mr C was in January or February of last year, to let him know that R might 'not make it'.
29 She said she had not read the reasons given by the assessor for her decision. When asked what she was critical about in relation to that decision, she stated that she thought it was unfair and irrelevant that the assessor had regard to matters she learned from the DCP. In relation to her contact with that department at the relevant time, 1996 to 1997, she said that she had spoken to a lady then about the violence and about leaving her partner and that talking to her had made her stronger. Her former partner Mr C went to jail. By way of explaining contact with Mr C when he was in jail, she indicated that her youngest daughter then had a heart condition which was serious and she had taken the child to see him in jail.
30 She said that they separated not long after he was released from jail.
31 She said she found all the letters from the assessor, her lawyer and Mr C to be 'not very nice' and said she could not 'handle it any more'. She said that she had to re-live the events every time she had to deal with it. She said that she left him when she was pregnant with T. She told her former partner that she had lost the baby. She did not want him to have anything to do with the child.
32 She explained that she was with Mr C from 1991 to 1997 or 1998. She said that it was 'off and on' for some seven years and that she was 21 or 22 when they got together.
33 She said that she had five children with Mr C. In cross-examination, she explained that Mr C had treated her oldest child, E, as his own 'when it suited him'. Therefore, from time to time she would say that they had six children together.
34 Also in cross-examination, when asked about the first assault in 1993, she said she thought she had reported it. She said she had moved after that because she was scared. She had 'only just come back from Darwin'. She said she did not seek to contact the police afterwards because Mr C kept 'hunting her down'.
35 She confirmed that there were other assaults during the relationship, for the approximate seven years that it lasted.
36 When asked about her first written statement, where she said that the period of the relationship was 14 years, she said that this was an error, that she had informed lawyer about it and directed Mr Fearis (cross-examining) to her second statement.
37 She said that her son E was three or four months old when she got together with Mr C, and the children that they subsequently had were R, Y, C, CA and T.
38 She said that her letter to the assessor of 25 March 2015 was in response to Mr C's letter to the assessor, wherein he made allegations against her and her family. She confirmed that her son R had made a claim for compensation, although she said that his statement 'was more about her claim than his'.
39 She admitted that she had various criminal convictions including for an assault on a press reporter outside the Children's Court, when her son T was appearing there. She said she was seeking to protect her children. She also admitted to offences of stealing, the last of which she said she pleaded guilty to, 'to protect her daughter'.
40 She was cross-examined in relation to police incident reports and admitted offences in Rockingham in 2005, but denied any involvement in an offence at a liquor store in Warnbro, in 2006. She was quite adamant about this, stating that she knew the girls in the Warnbro liquor store. She further admitted involvement in a stealing matter in Rockingham in 2007. She admitted to pleading guilty, providing the explanation 'I cannot be stuffed with court'.
41 She said that Dr Ng only asked her about the abusive relationship. She accepted that there had been instances of violence with her sons. She explained that the boys 'had done drugs', and that she had been obliged to call the police and cause them to be removed from the house and charged. She was speaking about, E and T, when they were younger. She admitted that E had taken a brick and smashed things. She said that this happened twice.
42 She denied that she was generally violent towards her children, although she admitted slapping her son E, when she attended the principal of his primary school in relation to his behaviour. She stated that the incident was 'blown out of all proportion'. She accepted that E had been taken to hospital in 2004 in relation to drugs. She described him as 'a self-harmer'. She accepted that DCP had found him a foster placement, but said that he kept coming home.
43 She accepted that these incidents were not disclosed to Dr Ng at the first interview and explained that she found these matters to be irrelevant, repeating that he only asked her about the domestic violence.
44 She accepted that she said, in her statement of 23 April 2014, that she never hit the children. She explained that she was referring to allegations made by Mr C in relation to her daughters. She maintained that she did not hit her girls but she did slap E. She accepted that T was in detention both times she spoke to Dr Ng and that all the children had spent time in detention.
45 She said she had been badly affected by the death of a nephew in 2012, but that 'Dr Ng had not asked her about that'. When I asked her directly whether the doctor had enquired about her general background and health, she agreed that he had, but said mainly it was about the 'violence' and 'the claim' with 'a bit of general stuff'.
46 When queried about what supports were available to her, she mentioned Miss Carrie Allen, who was present in court, saying she was a lady from her children's day care centre. She said that Miss Allen and her family and children were very supportive. She also said that she got some assistance from her sister.
47 She said that she had been working for the last 13 years. For 11 ½ years she 'did aged care', studied for a diploma of nursing, but she did not finish. She said after that she drove heavy machinery, until July 2015. Since that time she had been doing traffic control, when work was available.
48 In aged care work she could earn up to $2,500 per week. She said that recently her pay was not very good. It depended upon what hours they had available. She said she probably earned about $500 per week.
49 The details of the incidents themselves are set out in the first statement of NMB dated 8 October 2013.
50 On 10 June 1993 Mr C came home from the pub and started an argument. During the argument he struck her. She was pregnant at the time. He punched her several times to the face. He kicked her head and body when she was on the ground. As a result of the incident she received a cut to the bottom lip. She did not seek any formal medical treatment.
51 On 14 February 1996 she went to a birthday party of a friend and Mr C stayed at home looking after the kids. He followed her to the party, abused her and continued to abuse her when they got home. He then became aggressive and started to punch her and kick her. She ran to a neighbour's house and hid. The neighbours called the police. She suffered severe bruising to her left cheek, bruising on the bridge of her nose and lacerations and cuts on her right cheek. Mr C was charged and convicted. She did not seek medical treatment for her injuries. She said she was so embarrassed about being bashed up by her man all the time.
52 On the last weekend in July 1997 Mr C, NMB and the children were in Mandurah. He was drunk in the afternoon in the presence of the children and became verbally abusive. She decided to take the children and go but he would not let her. They went home together. He became abusive when they got home and was shouting loudly. He woke up on the children and in the early hours of the morning he hit her to the face with a closed fist repeatedly. The neighbours called the police. As a result of the punches, she suffered bruising and a split lip. She was holding a small child while she was being struck. The attack went on for an hour and a half, until he passed out. She reported the matter to the police. He was convicted and sentenced to 12 months' imprisonment.
53 Her statement also contains details of a fourth incident in June 1998. On that occasion, when Mr C's brother and girlfriend were staying with them, he became angry because the children were running about the house. There was an argument. During the argument he threw a plastic rollerskate at her head causing a cut to the head. The police attended and took the statement. They took photographs. However, she says she did not pursue the complaint because Mr C was going away and she believed she was not going to see him again. She said that was the last time they were together because she could not take him hitting the kids. She moved to another house thereafter. At this point she was about four months pregnant.
54 NMB saw Dr Ng on 6 November 2013. His report includes a brief personal history. He reports no psychiatric history either of NMB or her family, nor any significant medical history. He reports a relationship with Mr C from about 1991 to 1998, that he regularly became intoxicated, that he was verbally and physically abusive to her from the early part of the relationship and that the children had witnessed the violence. She reported that she was still scared of him. She reported that the physical abuse was regular and that Mr C also put her down. She said to him that he broke her self-confidence and self-esteem and living with him was like 'walking on egg shells'. She lost contact with her family, because he would not let her associate with them.
55 Dr Ng conducted a mental state examination describing her presentation. He states that her affect was occasionally mildly depressed and normal in range and reactivity.
56 Dr Ng's opinion was that NMB developed negative ruminations about herself, doubted herself, had lowered self-esteem and she suffered from varying levels of anxiety and worry about Mr C, when he would physically and verbally abuse her, and also varying levels of depressive symptoms, in the context of the entirety of her relationship. He believed that these symptoms would periodically have attained the level of an adjustment disorder mixed with anxiety and depressed mood, which would have caused a significant distress and led to an impairment in areas of occupational, social and general functioning. He said that to the present day she has residual anxiety and depressive symptoms.
57 He concluded that she developed bona fide psychiatric symptoms 'in excess of mental and nervous shock'.
58 In his opinion, on the history he had been given, the most significant contributing factor in precipitating the onset of the varying levels of depressive and anxiety symptoms during the course of the relationship and the current residual symptoms was the alleged physical and emotional abuse, in the context of the entire relationship with the offender.
59 He noted that she had disclosed she was abused at a young age and said that she may have been mildly predisposed to the onset of the symptoms.
60 He was of the view that she would benefit from at least 12 - 20 sessions of psychotherapy every two to four weeks. He estimated the cost, if provided by a consultant psychiatrist, of $335 per session.
61 Dr Ng was asked to review NMB having been advised that there were 'other non-incident related factors' that should have been explored in his initial interview. He subsequently reported that she remained 'a single woman and unattached', that she had three sons and five daughters in total, two of the children were born to other men after the relationship with Mr C ceased. She felt she could no longer trust men to be in a committed or ongoing relationship. She was unable to discuss specific dated incidents with Dr Ng and told him that they 'all rolled into one'. She told him of her son being charged with murder and going to trial, she told about the death of a nephew in jail, she told him about the imprisonment of her oldest sons, and the injuries suffered by her son R.
62 Dr Ng remained satisfied that the entirety of the relationship with Mr C caused her to develop the condition he previously he described. He said it was more likely than not that the three specific incidents exacerbated anxiety and depressive symptoms. The fact that the children witnessed domestic violence would have exacerbated her emotional distress. He said that worry over her son's issues would have 'somewhat exacerbated' and perpetuated levels of anxiety and depression, to mild or moderate extent.
63 In short, the additional information did not cause Dr Ng to depart from his original assessment.
64 Mr C provided extensive materials in response to the application. In these materials, he doubts the parentage of all the children, he makes allegations against his former partner, expresses assorted opinions, admits he went to prison in 1997 in relation to the third incident, and spent about four months in custody. He also admits the 1996 incident. I have perused all the materials including those from Mr C's mother and sister. I am not persuaded to attach great weight to them, they are argumentative, provocative and untested. Mr C has an extensive criminal record, in addition to the instant offences, going back to 1983. The offences do not appear to be of the most serious character and a considerable number of them are traffic related but there are other assaults both before and after the incidents relating to his former partner.
65 The records of the DCP indicate that NMB had considerable financial and other difficulties raising the children after 1998. They show that the children had significant involvement with the criminal justice system, and on occasion her older sons assaulted her. Police records indicate that NMB has a number of convictions for offences of dishonesty, and one for an offence of assault upon a newspaper reporter.
66 The statements of R and C confirm that they are supportive of their mother, and R particularly recalls abuse by Mr C. Specifically, he appears to have a recollection of the incident immediately prior to the final separation involving a rollerskate.
Findings of fact on appeal
67 NMB is an Aboriginal woman, now 46, who from the age of about 21, was in a relationship with Mr C. She has a number of relatively minor connections, including theft. On the three occasions relied on in this application, she was assaulted by Mr C, and those matters were documented by the police at the time for the purposes of prosecution. The 1993 incident did not result in a conviction. The second incident resulted in him being charged with assault occasioning bodily harm. Mr C was convicted on his plea of guilty, and fined. For the third incident, he was charged with assault and convicted on his own plea and sentenced to a period of 12 months' imprisonment.
68 I am satisfied to the required standard that these three incidents occurred and that Mr C assaulted NMB as alleged. I am satisfied that she suffered personal injury despite the absence of contemporary medical evidence.
69 The police incident reports document a further complaint to them about Mr C in 1998. I am satisfied that this relates to a final incident, in relation to which there is no specific claim for compensation. Following this event, the parties finally separated. I am satisfied that there was an incident of violence on 13 June 1998, where, after an argument, Mr C threw a rollerskate at NMB causing her injury. The matter did not proceed to court. She was moving to Darwin, did not want to proceed with charges and hoped she would not see him again.
70 I find that all these incidents formed part of a relationship characterised by domestic violence, during which there were other incidents of physical violence, as well as verbal and emotional abuse. I accept NMB's evidence in relation to the nature of that relationship, which she endured for seven years.
71 I do not find that NMB's inability to be precise about dates or recall specific incidents at the times she was interviewed in relation to this application detracts from her general credibility in relation to the nature of the relationship, or the incidents which resulted in complaints to the police. The dates are reliably documented. The earliest events are 20 years ago, and without documentary evidence, it would be exceptional for a woman in her position to recall precisely the dates. I also accept her evidence of the difficulty she has experienced in dealing with the process of claiming compensation, the correspondence with lawyers and being obliged to recall these events in detail. Further, I do not consider that failing to disclose her criminal convictions, the assaults upon herself and her property by her sons, or other personal matters of recent bereavement to Dr Ng detract from her credibility to any significant extent. When asked about these matters in court, NMB was frank. I accept that she may not have been asked directly about all such matters, in the initial interview. She gave, and Dr Ng took, a background history and details of the relationship. She has a valid point when she says that was what the interview was about.
72 NMB failed to report her relocation to the police in 1993, for the purposes of them pursuing the complaint that she had made. The incident report indicates that she had made a statement. It is described as 'domestic related'. The police made inquiries to locate 'the suspect', it records, without success. I have no doubt that they knew who the 'suspect' was. The police file is no longer available.
73 In my view, a young Aboriginal mother, with an abusive partner, is unlikely to act primarily with regard to police prosecutors' requirements. My reading of the incident report is that the principal reason that the matter went no further is that the 'suspect' was not located.
74 I have considered the provisions of s 38 of the Act which provides:
38. No award if applicant did not assist investigators
An assessor must not make a compensation award in favour of a victim, or a close relative of a deceased victim, if the assessor is of the opinion that the victim or close relative did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence.
75 I do not find that she omitted to do any act which she ought reasonably to have done to assist the identification, apprehension or prosecution of the person who committed the offence. She had identified him and given a statement. He was not located. There is no evidence that she was actually required at any particular stage to do anything more to assist the police.
Extension of time
76 An application under the Act must be commenced within three years after the offence or the last of a series of offences: s 9(1) of the Act.
77 If it is just to do so, the assessor may allow an application after the expiry of that period s 9(2).
78 In this case, the application was not lodged within three years. It was out of time by a period of 13 years from the last offence. The discretion to extend time is for the purpose of enabling the court to do justice between the parties: Gallo v Dawson (1990) 93 ALR 479. It is for the appellant to satisfy the court of the reasons for delay.
79 The court is required to consider again whether the application should be permitted out of time, as this is an appeal de novo: Hinchliffe v Hinchliffe [2010] WADC 78.
80 Limitation periods are generally required to be observed and for good reason, amongst them being the quality and availability of evidence and the need for finality in dispute. Ignorance of a right to claim for compensation is not of itself necessarily sufficient reason to extend time.
81 The application on this appeal concerns a series of three offences, the last being on 1 August 1997. NMB has explained that she did not know of her ability to make a claim until June or July 2013. She then took legal advice and filed her application in December 2013. I accept that explanation. I also take into consideration her position in the years following the last offence. She was an Aboriginal woman raising eight children on her own. She clearly had limited resources in a material sense, and many personal challenges, as well as dealing with the DCP and other agencies. I do not consider that she would have been in a position to investigate her rights, nor would she have wanted any contact or reason to deal with Mr C. I grant an extension of time in relation to this application to the date upon which this application was filed.
82 The question of whether, in relation to any individual offence, an award should be made is a separate consideration from an extension of time to file an application. In purportedly refusing an extension of time for the first incident in the application, the assessor appears to have applied s 38, but in respect of the discretion under s 9. In my view, this was an erroneous approach.
83 Clearly, in some circumstances an extension might be refused where an application has no prospects of success but this application concerned three incidents.
Compensation under the Act
84 On appeal, this court may exercise any power of the assessor under the Act, subject to certain exemptions which are for current purposes irrelevant. In deciding the appeal this court is not bound by rules or practice as to evidence or procedure and may inform itself in any manner it thinks fit: s 18(2).
85 The appeal is 'de novo': Gullelo v Halloran [2008] WADC 145 [5].
86 The first incident is an 'alleged offence', in that no person has been convicted in relation to it: s 3 of the Act.
87 The second and third incidents are 'proved offences', in that Mr C was convicted in relation to both of these assaults. The application in relation to them is pursuant to s 12 of the Act.
88 I have found that NMB was also the victim of the alleged offence and is entitled to compensation for any injuries suffered as a consequence and also for any loss suffered: s 17(2) and s 17(4) of the Act.
89 Injury is defined in s 3 of the Act to mean 'bodily harm, mental and nervous shock, or pregnancy'.
90 Loss is defined in s 6(2) of the Act to mean 'so far as is presently relevant, expenses incurred by or on behalf of the victim that arise directly from the injury suffered by the victim, and loss of earnings suffered by the victim as a direct consequence of the injuries suffered by the victim'. Loss of earnings includes loss of earning capacity: A v D (1994) 11 WAR 481, 495 – 496.
91 'Mental and nervous shock' contemplates a more enduring injury than simply fright and anguish. The injury in question needs to be such that is to say something significant and enduring and detrimental.
92 Section 35(2) provides that the court cannot award compensation for mental and nervous shock unless satisfied that the victim also suffered bodily harm as a result of the commission of the alleged offence. In this instance, clearly, I am satisfied that physical injuries were directly caused by assaults in the three incidents.
93 Ordinary tortious principles apply for the assessment of damages within the context of the definitions in the Act of injury and loss, subject to the jurisdictional limit.
94 It is necessary that a claimant establish, on the balance of probabilities, causation of injury by the commission of the offence for which compensation is sought. It does not have to be the sole cause of any injury or loss but it needs to be materially contributing to that injury or loss: Fagan v Crimes Commission Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673; S v Neumann (1995) 14 WAR 452 (463 - 464).
95 The physical injuries NMB suffered were in each instance relatively minor, consisting of a split lip, bruising and lacerations. There are no ongoing consequences of the physical injuries, which would have healed over time.
96 From a psychological point of view, the injury described by NMB in her evidence is depression and a loss of self-confidence. Dr Ng's opinion has to be weighed carefully in the light of initially limited information. However, ultimately, he had the whole relevant history. I do not consider that there was any element of deception or concealment by NMB in failing to tell him the history of her sons' offending, herself being offended against, her criminal convictions or other traumas. He was appraised of the essential facts and conducted an appropriate enquiry and examination. He was subsequently provided with further information, but his opinion was not significantly revised.
97 I accept his diagnosis. It is realistic in the circumstances and consistent with the offences in the context of a violent and abusive domestic relationship. I accept that NMB suffered more than physical injuries by reason of the behaviour of Mr C, specifically the assaults. It is in my view impossible to disentangle the effects of those individual offences from the overall relationship. Dr Ng was unable to do so. The psychological effects clearly fall within 'mental and nervous shock'.
98 Undoubtedly, NMB has had a hard life. She has faced and continues to face many adversities. They have come mostly as an adult, and subsequent to her relationship with Mr C. Their effects will be cumulative upon the effects of his conduct. Dr Ng was unable to be precise about the interplay of those events. The evidence does not permit such a forensic enquiry. I find that the effect of the offences was and is a significant factor in her condition.
99 I am satisfied NMB suffered physical and psychological injury as a result of the proved offences and alleged offence. I am also satisfied that it is not possible to segregate the additional effects of other life events upon her. As the offences contributed significantly, she is entitled to full compensation: TAW v NJS [2011] WADC 187.
100 There is no evidence of any relevant pre-existing injury. If NMB was 'somewhat vulnerable' by reason of her childhood experiences, that does not diminish her claim for compensation for the effect of the offending.
Assessment of damages
101 I must now consider the proper award.
102 I do accept there may be some contribution from other life events to the persistence of NMB's condition. Ordinary experience of life indicates that persistent worry, struggles and crises do not promote the recovery of good mental health and functioning. In my view, it is not possible to distinguish the effect of subsequent events from the injury caused by the offences. Her mental condition is 'mild to moderate' and it would appear, from Dr Ng's opinion, amenable to treatment.
103 I find that NMB has, notwithstanding all of her struggles, proved herself to be resilient. She has worked to support herself and her children over the years since separation. She intends to continue to do so. She is in good physical health. She is not seeking to exaggerate her difficulties.
104 In summary, she suffered pain and inconvenience due to her physical injuries. She has suffered depressive and anxiety symptoms, loss of self-esteem and confidence as the psychological consequence of Mr C's conduct continuing to the present. Whilst the symptoms have not been disabling and she has coped by keeping busy, I find that they constitute injury for which compensation may be awarded. I am unable to distinguish the precise effects of the individual offences and the total effects of Mr C's course of conduct over the relationship. Accordingly I propose to make a global award: HNR v CJF [2002] WADC 94 [19].
Economic loss
105 Compensation includes loss of earnings as a direct consequence of the injury and loss of earning capacity. In the assessment of economic loss, a claimant carries the onus of proving the loss of earning capacity and the extent to which that loss produces or might produce financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1. NMB was not working at the time of the offences, and has substantially been employed for many years since, often on a full time basis. Dr Ng believes that her capacity currently is circumscribed to 30 hours per week. It is not possible to quantify that as a precise loss. In my view, from her own evidence, she finds employment to be therapeutic and intends to pursue it. In these circumstances, I make no award for lost earnings or capacity.
Future medical treatment
106 Dr Ng provides evidence of the benefit to NMB of psychological treatment. He has estimated a total of 12-20 consultations would be required. The fee for such consultation was $335. In the light of this, I assess future psychological treatment costs, in the middle of this range, at $5,000. These are to be dealt with pursuant to s 48 of the Act.
107 The Act provides maximum amounts which may be awarded for offences, depending upon the number of offences and when they were committed.
108 These offences were committed prior to the commencement of the Act, accordingly the maximum amount to be awarded for a single or aggregated offence is $50,000: s 31.
109 Where two or more offences are related to one another the amounts awarded may not exceed the amount for a single offence: s 33.
110 Offences are related if an assessor is satisfied that they are committed at approximately the same time or they are related for any other reason.
111 I am satisfied that these three offences are related in the context of a single violent relationship and the effects of the three offences are blended and accumulated in so far as they relate to mental health consequences.
112 Thus, on this application I consider them related and the maximum amount is $50,000.
113 The maximum compensation payable under the Act is a jurisdictional limit and is not to be reserved for the worst of cases: S v Neumann (563).
114 In my view, taking all of these considerations into account a global award of general damages of $20,000 is appropriate.
Summary
115 In considering an appeal from this specialist jurisdiction due regard has to be paid to the experience and wisdom of the tribunal. However, I have had the benefit of having heard the evidence of NMB which the assessor did not.
116 I find that the inconsistencies and supposed contradictions which were said to cast doubt over NMB's credibility and reliability have been explained sufficiently. I find that in relation to the essential matters she is reliable, notwithstanding her recall of dates and specifics is not good, and she has some criminal convictions.
117 NMB's evidence and Dr Ng's opinion satisfy me that, in addition to her physical injuries from the assault, she has suffered emotional and psychological trauma. It is in my view impossible to distinguish the precise effects of the three incidents from the effect of the violent relationship as a whole. In those circumstances, I am satisfied that it is appropriate to award general damages on the basis of the composite effects upon her.
118 NMB is a woman in her mid-40s who has had what can only be described as a hard life. I have no doubt that other traumatic events will have taken a toll upon her. She has had sons and daughters involved in criminal behaviour resulting in time spent in detention. One son has been convicted of manslaughter and served a significant time in prison. Another has been the subject of serious assault by others. She has suffered bereavements. These events would naturally have caused her anxiety and grief, as well as practical difficulties. They occurred subsequent to the relationship with Mr C for the most part, but I do not consider that these events break the chain of causation.
119 I see no reason to exclude reimbursement for the cost of Dr Ng's second report. It resulted from questions raised by the assessor. I do not believe that NMB is to be penalised for that, for reasons given above.
Summary
General damages $20,000
Future psychological treatment (s 48) $ 5,000
Cost of reports $ 1,694
Total $26,694
120 The reports were paid for by Legal Aid WA and they should be reimbursed to the extent they have not already been paid.
121 Accordingly, I allow the appeal, set aside the award of the assessor and substitute an award of $26,694.
122 Of the $25,000, there is a sum due to the Fines Enforcement Registry of $11,887.13. This sum must be remitted to the Registry. This leaves $8,112.87 to be paid to NMB, and $5,000 for future expenses.
123 The confidentiality of NMB's children requires protection and I order that there be no publication of these reasons which would lead her or them to be identified by members of the public: s 64.
124 I have considered the question of action arising under pt 6 of the Act to seek reimbursement of the award from Mr C. Given the passage of time prior to the lodging of the application, but also considering Mr C was convicted of two offences pursuant to s 45(1)(b), I order that only $10,000 of the award may be the subject of such action.
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