Re PK (by her next friend the Public Trustee)
[2014] WADC 139
•10 OCTOBER 2014
RE PK (by her next friend THE PUBLIC TRUSTEE) [2014] WADC 139
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 139 | |
| Case No: | APP:76/2013 | 27 JUNE 2014 | |
| Coram: | WAGER DCJ | 10/10/14 | |
| PERTH | |||
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Total amount of award (payable to the Public Trustee) $113,617.50 | ||
| PDF Version |
| Parties: | PK (by her next friend THE PUBLIC TRUSTEE) |
Catchwords: | Criminal injuries compensation Assessment of compensation for multiple offences perpetrated by multiple offenders Future treatment expenses |
Legislation: | Child Welfare Act 1947 s 31A Criminal Injuries Compensation Act 2003 s 6(2)(b), s 9(1), s 9(2), s 21, s 42, s 48, s 56(1), s 56(2) |
Case References: | G v H (1994) 181 CLR 387 Gullelo v Halloran [2008] WADC 145 Hinchcliffe v Hinchcliffe [2010] WADC 78 Hogben v Darcy [2009] WADC 63 Jones v Armstrong [2002] WADC 130 PK [2013] WACIC 24 RE: Tilbury [2010] WADC 46 |
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 : R GUTHRIE
Citation : [2013] WACIC 24
Catchwords:
Criminal injuries compensation - Assessment of compensation for multiple offences perpetrated by multiple offenders - Future treatment expenses
Legislation:
Child Welfare Act 1947 s 31A
Criminal Injuries Compensation Act 2003 s 6(2)(b), s 9(1), s 9(2), s 21, s 42, s 48, s 56(1), s 56(2)
Result:
Appeal allowed
Total amount of award (payable to the Public Trustee) $113,617.50
Representation:
Counsel:
Appellant : Mr GT Stubbs
Amicus Curiae : Mr JL Winton appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Dwyer Durack
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
G v H (1994) 181 CLR 387
Gullelo v Halloran [2008] WADC 145
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
Jones v Armstrong [2002] WADC 130
PK [2013] WACIC 24
Re Tilbury [2010] WADC 46
1 WAGER DCJ: On 10 September 2013 the learned assessor made an order of compensation in favour of the appellant in the total sum of $107,000 in respect of 11 applications. A sum of $1,700 of the total sum awarded was attributed to s 6(2)(b) Criminal Injuries Compensation Act 2003 (the Act) loss in respect of payment for future treatment expenses incurred by the appellant.
2 The appellant appeals the learned assessor's decision pursuant to s 55 of the Act solely in relation to the portion of the award relating to payment for future treatment expenses. The relevant grounds of appeal are:
5. The medical evidence submitted to the CIC Assessor indicated the lower end of the value of the appellant's medical treatment was approximately $143,000 (see attached report of Dr Karen Goodall-Smith dated 14 June 2010).
6. The appellant seeks to appeal that part of the decision of the CIC Assessor's determination as to her future medical treatment on the following basis:
(a) the finding of the Assessor in respect of future medical treatment was not supported by the weight of the evidence in that:
(i) there was evidence provided that the appellant participated in counselling after 2002; and
(ii) the Assessor erred in basing his decision on the clearly inappropriate assumption that a severely intellectually disabled individual could present herself willing and proactively for counselling; and
(b) the Assessor's reasoning for not awarding further funds towards future medical treatment was in direct contra indication of the Act.
4 It is however appropriate to have regard to the assessment made by the learned assessor as a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63 [13] (Goetze DCJ); Gullelo v Halloran [2008] WADC 145 [5] (Staude C).
5 Following the filing of the appeal notice the learned assessor published well-considered and detailed reasons in respect of 11 very difficult applications: PK [2013] WACIC 24 delivered 29 November 2013.
6 The 11 applications were lodged out of time, the last alleged offence occurring in 1996 making the applications approximately 14 years out of time: s 9(1) of the Act. The time period is significant. However, given the nature and the extent of the offending against the appellant that commenced when she was very young, the significant harm that the offending caused her and the degree of intellectual impairment from which she suffers which are factors that have resulted in her being the subject of the order of limited guardianship made 14 June 2013, I accept the appellant's case is an exceptional one. An extension of time in which to file the applications pursuant to s 9(2) is appropriate.
The claim
7 Only one of the applications relates to a proved offence being an attempted sexual penetration of a child under the age of 13 years that occurred between 1 January 1995 and 3 October 1995 at Beagle Bay. PE was convicted of the offence in the District Court on 2 December 2004. The remaining 10 applications relate to alleged offences for which an offender has not been charged. I need to be satisfied on the balance of probabilities that the identified offender or group of offenders committed an offence in respect of each application having regard to the totality of the material: G v H (1994) 181 CLR 387.
8 It is clear from the reports obtained between 1995 and 2010 that the appellant has limited intellectual capacity, a limited understanding and ability to communicate in respect of sexual matters and has suffered a significant degree of social and personal disadvantage. There are numerous reports referring to the appellant's allegations and the appellant's reports to the police. The Departmental records are credible and should be accepted in the absence of evidence to the contrary. I acknowledge a concern raised by the learned assessor that there is a tendency in Departmental files to repeat allegations to the point where mere repetition is regarded as substantiation. The learned assessor carefully attempted to trace the primary source of the complaint where possible: PK [5]. The learned assessor's factual findings in relation to the 11 applications made are accurate. I will deal specifically with each application.
1. JK 1983 to 1990
9 Consistent with Departmental records dated 18 August 1993, 3 August 1994, 15 August 1994, 5 December 1995, 15 December 1995 and 25 May 1999, I accept that between the appellant's birth in 1983 and 1990. The appellant suffered injury by reason of physical, emotional and sexual abuse perpetrated by her mother, JK.
10 JK is intellectually disabled and suffers from schizophrenia. She is functionally illiterate. JK is registered with the Disability Services Commission; report of Ms Juniper 7 July 1995, report of Dr Dingle 10 June 1999.
11 JK did not understand the concept of wardship in respect of PK and accordingly the application for the appellant's wardship at the age of 7 proceeded without her consent. A Departmental file dated 21 May 1990 (VAB) notes that in an interview with PK's foster parents when PK was 7 years old the foster parents said she had been playing with her brother NK's penis a great deal. The appellant's sister had told the foster parents that PK had often been in bed with (her mother) when she had a man in bed with her. A Departmental file note dated 11 October 1993 refers to the period prior to 1990 when the appellant lived with her mother. The author noted 'PK may have been sexually abused on a number of occasions but it does not appear that there have been adequate investigations of the circumstances surrounding the allegations of abuse'.
12 A Departmental case conference note dated 19 December 1995 summarises the appellant's living arrangements between 1988 and 1990 (PK [7]):
1. the appellant was generally unsupervised;
2. she was underweight with delayed speech functioning and unsteady gait;
3. she was not toilet trained at age 7 when attending school;
4. in January 1988 she was covered in scabies;
5. in June 1988 she suffered from a badly infected eye, requiring admission to hospital;
6. she attended school with dirty and smelly clothes;
7. she was observed at Catherine House to be shaky and vomiting and claimed to be frightened of a man; and
8. she was referred to a doctor for examination in relation to vaginal discharge suspected of being gonorrhea; although this was not confirmed she was treated with penicillin.
13 Ms Juniper, clinical psychologist reports that the extent of the abusive experiences suffered by the appellant between 1983 to 1990 is not known however Ms Juniper observed that:
PK comes from a family that is dangerous sometimes … so far [she] has been hit and kicked by her mother, [and] threatened with being knifed to death by her mother …
14 Although a Departmental file note dated 21 May 1990 refers to JK being the perpetrator of sexual abuse against PK, I am not satisfied that this has been proven.
15 I am satisfied that JK's conduct amounted to criminal negligence which constituted an offence pursuant to s 31A Child Welfare Act 1947 being misconduct or neglect concerning a child to be in need of care and protection.
2. RA 26 August 1990 to 1993
16 I adopt the learned assessor's summary of facts in relation to the conduct of RA at [9] that is consistent with the Departmental file note dated 24 October 1993 (PK [9]):
From 26 August 1990 until sometime in 1993 the applicant was in the care of RA who was the applicant's Auntie. During this period it is alleged that RA took no steps to progress the applicant's education, and that the applicant was sexually abused. The substance of these allegations is that the applicant was subject to criminal neglect. The evidence of neglect for this period overlaps to some extent with the period in which the applicant was in the care of her mother as the papers submitted on behalf of the applicant, in relation to this claim, make reference to the applicant's examination by Dr SC for suspected gonorrhoea. In addition a Departmental file note of 16 February 1993 compiled by MH indicates that RA did not take steps to ensure the applicant was at school when the applicant was visiting her mother JK. I was satisfied that the applicant had been subject to criminal neglect during this period. I noted that the Department has identified the applicant as a person with special education needs.
17 I am satisfied RA committed the offence of criminal negligence against the appellant between 26 August 1990 and sometime in 1993 contrary to s 31A Child Welfare Act.
3. PC December 1991
18 I adopt the learned assessor's summary of facts in relation to the conduct of PC which is consistent with the Departmental reports and file notes dated 15 February 1993, 8 April 1994, 3 August 1994, 15 August 1994 and the reports of Ms Juniper, clinical psychologist, 17 April 1996 and 1 May 1996 (PK [10]):
Sometime in December 1991 it is alleged that one PC sexually assaulted the applicant. The evidence in relation to this assault relates to information recorded in a Case Review dated 8 April 1994 and a Case Conference Report No 3 dated 15 August 1994. In those documents reference is again made to the inconclusive tests conducted by Dr SC for gonorrhoea, however specific reference is made to the applicant having a sore 'Minnie' (vagina) after she was in the company of PC. Interviews were conducted with the applicant and her mother JK late in December 1991 and January 1992 and the applicant repeated the allegations that PC (who was also known by several other names) had touched her vagina.
19 I note JK is reported to have referred to AC sexually assaulting the appellant, not PC (Departmental report 15 August 1994), however I am satisfied from other material that PC and AC are the same person.
20 I am satisfied that PC committed at least one offence of indecent dealing contrary to s 189(1) Criminal Code.
4. PA 26 October 1990 to 21 October 1993
21 I accept the learned assessor's summary of facts as being accurate and I adopt them in relation to PA [11]. The summary is consistent with the Departmental file notes recorded on 1 October 1993, 3 October 1993, 5 October 1993 and 24 October 1993. The summary is also consistent with statements of Senior Sergeant Davies dated 6 October 1993 and 15 October 1993. The summary sets out:
Sometime in 1993 the applicant came into contact with PA who was the applicant's second cousin and the son of RA. On 3 October 1993 RS recorded in a file note that PK had told her that PA had attempted to lure her to his home so that she would 'sleep with him'. On 5 October 1993 a Police Officer interviewed the applicant who disclosed that PA had 'pulled down his underpants and pulled out his balls'. This interview was apparently recorded but the sound quality was 'extremely poor' due to the applicant's quiet voice and I was not supplied with that recording. RS, an Aboriginal Resource Officer, recorded in a file note dated 15 October 1993 that 'PA was seen dragging PK'. In a File Note dated 24 October 1993 RS raised concerns about the credibility of PK as she had 'been on the record as having previously made unsubstantiated claims of abuse ...' The 'unsubstantiated claims' were not specified, although I noted a document purportedly summarising the Department file headed 'PK - Sexual Abuse' which is undated but does supply some comment on these matters.
22 Based on the relevant Departmental and police reports, I am satisfied PA committed at least one offence of indecent dealing contrary to s 189(1) Criminal Code.
5. Mr PE 21 October 1993 to October 1995
23 Mr PE died on 1 November 2005; letter registrar of Births, Deaths and Marriages to Criminal Injuries Compensation assessor 12 August 2013.
24 Mr PE pleaded guilty to an offence on 2 December 2004 that he attempted to sexually penetrate PK, a child under the age of 13 on a date between 1 January 1995 and 3 October 1995.
25 I am required to accept the facts on which the proof of the offence was based and determine causation and assess compensation. The process does not involve a re-litigation of the facts which led to the proven offence nor require me to 'look behind' a conviction: Hondros, Re (1973) WAR 1, 3; Hutchings v Lachlan [2012] WADC 89.
26 In sentencing Mr PE to 12 months imprisonment suspended for a period of 12 months, Yeats DCJ said at t 25:
It happened on a day when your wife was away and when you began to do a very bad thing to that little girl. You rubbed her vagina. You began to attempt to put your finger into her vagina but then you stopped.
Nothing else happened. It's an extremely serious offence, I agree with the prosecution, and it is the kind of offence that the community is appalled at hearing of, particularly from a foster parent.
27 Consistent with the sentencing remarks, the brief for prosecution in respect of the relevant offence (IND BRO 40/2003) contains the following:
1. Notes of interview with PK dated 23 July 2001.
2. Statement of Mrs PE dated 16 April 2003.
28 In the notes of interview, PK says the following at prosecution brief pages 24 – 25:
K: Any other times this has happened to you?
T: About my uncle when he was drunk.
K: Whose your uncle?
T: In BB I was staying with Uncle P. Aunty B was in Broome. Went into the house and he told me to shut the door and told me he wanted to talk about what C did. He told me to pull my pants down. I said why uncle. I call you my uncle. He took his clothes off too. I told him I would tell B. He gone wild with me. When Aunty B came back from Broome I told B. She rang CS and I then went to Catherine House to live.
K: What did you tell Aunty B?
T: I told Aunty B, Uncle P was rude to me.
T: Took my clothes off and took his clothes off
K: You were in bed, how were you laying?
T: My legs were open wide.
K: Where was Uncle P?
T: On top of em
K: What was he doing?
T: Being rude to me.
K: How was he being rude?
T: Don't know.
K: What did it feel like?
T: He was paining me.
K: Where did you feel the pain?
T: I don't know.
29 The notes of interview are consistent with the offence of attempted sexual penetration.
30 Mrs PE in her statement dated 16 April 2003 at prosecution brief page 3 – 5 stated:
PK was only eight or nine years old when she came to live with us.
A couple of weeks after she came and lived with me, I had to go down to Broome for some medical treatment. Ii stayed at my mother's house in A Street.
I took PK's brother down with me because he was teething. He was only about one year old.
A couple of days later my sister in law CD brought P and PK down to my mother's house.
After they arrived we were carting all the clothes and stuff inside. When I was by myself with PK the same day she came down, she told me something.
She said, 'Uncle P did touch me'.
I said 'God no'.
She said, 'Yes'.
PK told me this while we were in a bedroom at my mother's house in A Street. It was daytime sometime after 11.00 am.
That's all she told me.
I got angry and tried to talk to P but he was drunk. He was drunk already from BB.
I asked P a few times after that but he never gave me an answer.
When PK told me what had happened I knew straight away that she was talking about P touching her in her private parts. I never talked to PK again about what P had done.
P still never tell me what happened with PK.
I trust P with the children but when I leave them alone with him I ask them questions when I get back home.
I talk to the kids about people touching then, even dad. They tell me that he doesn't touch them.
I tell them about anyone touching them not just P.
They have told me that no one has touched them.
31 In her victim impact statement, PK said:
I was too scared to tell anyone for a long time. I was too scared to tell anyone. When I told PE I was going to tell what he did, he was really angry and said I couldn't tell anyone. I was scared of him, scared to tell, so I kept it a secret. But I knew he had done the wrong thing so I told my aunty.
I still feel scared of him. I am scared he might come for me and hurt me. I stay away from him and I don't talk to him.
I'm angry with him. I want him to know he is a sick bastard and he has done the wrong thing …
I feel sad that this happened. I think if it didn't happen I would be different. I would be happy and I wouldn't be scared.
32 I am satisfied the offence had a significant impact on the appellant because it was committed by her foster father who was married to her aunt. No action subsequently took place to assure the appellant that she would be protected when in his care. I find the appellant suffered significant injuries as the result of the offence perpetrated by Mr PE.
6. Mrs PE
33 The offence committed by Mr PE occurred when the appellant was in the care of both Mr PE and Mrs PE. Mrs PE was the appellant's aunty.
34 Consistent with Mrs PE's statement dated 23 July 2001, the statement of material facts in respect of Mr PE relevantly stated:
Several days later (following the offence) the accused has conveyed the complainant (the appellant) to Broome to be with his wife. They have travelled to his wife's family residence in A Street, Broome. Once alone with the accused's wife, the complainant has immediately told her that the accused had been rude to her at BB. The complainant has confronted the accused about the allegation but he has declined to comment. She has confronted him several times over the years but he has always declined to comment on the matter.
35 A file note made by the State prosecutor appearing on behalf of the Director of Public Prosecutions, Mr Dixon noted:
(The appellant) told my wife. My wife spoke to me about it. I admitted it to her. I didn't say anything cause I knew it was wrong. I told her I didn't do it.
36 However I find Mrs PE accepted her husband had offended against PK; statement of Mrs PE dated 16 April 2003 at pars 10 – 23. The appellant remained in the care of Mrs PE who did not complain to the police on PK's behalf and allowed the appellant to have ongoing contact with Mr PE from 1995 until the matter was dealt with on 2 December 2004, a period of nine years. It is clear from the statement of the appellant relevant to the prosecution dated 7 January 2004, pars 50 – 57 and the record of interview conducted by police with the appellant on 23 July 2001, that PK knew that Mrs PE was aware of the inappropriate dealing by Mr PE. Mrs PE failed in her duty to protect the appellant by failing to ensure she was in a safe environment. I am satisfied Mrs PE committed an offence contrary to s 31A Child Welfare Act 1947 being misconduct or neglect concerning a child to be in need of care and protection.
7. LLG June to July 1994
37 I adopt the learned assessor's summary of facts as accurate and note the summary is consistent with Departmental file notes dated 23 June 1994 and 29 June 1994 (PK [13]):
Sometime in June 1994 it is alleged that LLG indecently dealt with the applicant by taking her pants down and 'showing her his things' and 'lick[ing] her private parts'. These allegations are contained in a series of File Notes dated 23 June 1994 complied by AC and an undated Notification of Abuse of a Ward in Departmental Care. In a File Note dated 29 June 1994 it was recorded that LLG had been interviewed by police and denied the allegations. It was also noted that PE provided information in support of PK's allegations.
38 I am satisfied CCG committed uncharged offences. I find one offence of sexual penetration (cunnilingus) contrary to s 324F Criminal Code proven.
8. JC prior to 29 April 1994
39 I accept the learned assessor's summary of facts as being accurate and consistent with the Departmental note dated 2 May 1994, interview dated 23 July 2001 and letter of Dr Couzos dated 25 August 1995 (PK [14]):
Sometime prior to 29 April 1994 whilst the applicant was in the care of PE she was also sexually assaulted by JC. This allegation was recorded in a report from Ms MJ dated 7 July 1995 and Dr SC on 25 August 1995 as well as in Departmental File notes dated 15 August 1994. These documents refer to the applicant being 'JC's girl'. The interview conducted on 23 July 2001, referred to above, also referred to the sexual assault of the applicant by JC. In this interview the applicant told those officers that in relation to JC 'One day I was walking, he grabbed my shirt, he took my clothes off and layed [sic] me down in his house'. She also said 'he made me take my knickers off. He told me to open my legs wide and told me to lay down'. The interviewers were unable to elicit clear responses to open questions directed at this aspect of the assault upon the applicant, however the applicant did say '[H]e touched my nanya ... he was feeling and touching'. She later told the interviewers that 'nanya' meant 'boob'.
40 I accept JC committed an offence against the appellant contrary to s 183(1) Criminal Code in that he unlawfully and indecently dealt with her.
9. PA(2) prior to 2 August 1995
41 I adopt the learned assessor's summary of facts in relation to this matter which is consistent with the letter of Ms Collins dated 16 August 1995, Departmental file notes dated 2 August 1995 and 24 August 1995 (PK [15]):
Sometime prior to 2 August 1995 the applicant was indecently dealt with by PA who touched the applicant between the legs underneath her clothing and showed her pornographic pictures. Notification of this incident was given to the police on or about 16 August 1995, but I do not have any evidence that the police took any action, save to advise the Department that it was unlikely that charges would be laid. Ms MJ also commented, in a file note 1 May 1996, on the allegations relating to PA showing a 'rude book' to PK.
42 I find the facts are consistent with PA(2) committing an offence against the appellant contrary to s 183(1) Criminal Code.
10. Multiple offenders prior to 13 October 1995
43 I accept the learned assessor's summary of the facts as being accurate and consistent with Departmental file notes dated 13 October 1995 (PK [17]):
Sometime prior to 24 September 1996 whilst the applicant was resident at Catherine House, she disclosed to a staff member that NAP had had sexual intercourse with her for which the applicant was paid. The applicant was aged 13 years at the time making this sexual intercourse unlawful.
44 Police were notified of the incident but there were no formal charges nor was there a formal investigation. I accept the appellant's complaint and find that NAP committed an offence contrary to s 324 Criminal Code against the appellant.
11. NGI
45 It is conceded that NGI is the same person as PC. This is consistent with the Departmental report of Ms Collins dated 11 March 1993. The application is not made out and on that basis no award is made in respect of this application.
The injuries sustained by the appellant
46 The appellant's extensive and serious criminal history is a non-compensable stressor or injury suffered by the appellant.
47 The learned assessor set out a detailed summary of medical reports that were before him. I adopt the summary because it accurately reflects the relevant material (PK [12]):
Date | Provider | Treatment/Findings | Purpose of review | Comments |
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Diagnosis of PTSD. Relates the applicant's propensity to sexually abuse children (in 2001) to applicant's alleged sexual abuse. |
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Anger management issues. Noted that between 2002 and 2010 the applicant was admitted to Graylands for treatment Recommends future therapy throughout applicant’s life for PTSD, anger management – once a week to once a month and other services. |
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Noted that as a date of the review applicant was assisted by Disability Services Commission |
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Intensive reviews |
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Depression/PTSD/Borderline personality disorder. Noted memory problems with incidents and names. As at 2001 Ms MJ noted "no direct formal contact" with the applicant. Noted the range of community based services to which the applicant had access – some of which would not extend beyond the applicant’s 18th year. Summarises applicant's recent contact with the criminal justice system – noted some community antagonism to the applicant due to her offending against small children |
Assessed for support DSC and support Education in sexual protective behaviours Feelings/anger management training Ms MJ also played a role in 'consultant and de-briefer to staff assisting the applicant'. Noted that the applicant had some therapy from Ms TW whilst in remand in Perth. Review in January 2002 related to applicant’s escalating offending behaviours in 2001. Noted that the applicant was in prison at the time of reporting and the main focus of the reports during this period was in relation to appropriate responses to applicant’s criminal behaviours |
Altercations with family and in particular her grandmother Family violence Death of family members/foster carers. "Incidents" occurred whilst applicant in remand on abduction charges – access to pornographic material. Recommended that the best form of treatment was community based – full time care supported by medical and psychological intervention. Reports of Ms MJ provide notes on various alleged incidents, including a number of incidents at Catherine House |
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Intensive court based treatments Saw applicant at least 6 times |
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Recommendations for continued interventions made |
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Noted several triggers for the applicant's behaviours |
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Detachment, flashbacks- lack of primary attachment figure – noted that the termination of two primary relationships may have triggered offending. (death of Mr J) "Nothing in PK functioning which points to an organic basis for her impairments. Her traumatic and invalidating personal environment have provided sufficient reasons for her to be severely disadvantaged" |
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Continued need for counselling to focus on self-esteem and to address cognitive distortions |
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Findings of not fit to plead |
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Noted that the applicant had had three episode of loss of consciousness. Recommends medications for sequelae for abuse and 'fits'. |
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48 I have also considered the medical and Departmental reports contained in the appellant's book of documents dated 18 June 2014. These reports deal with the same period as is covered by the reports that were before the assessor. They do not disclose any new circumstances however they provide further evidence of the injuries suffered by the appellant.
49 The court has a general discretion to receive and admit further evidence pursuant to s 56(1) of the Act. Further evidence should be admitted unless there is some reason why it would be unjust to do so: Re Tilbury [2010] WADC 46 [3] (Martino DCJ); Hinchcliffe v Hinchcliffe [2010] WADC 78 [9] (Stevenson DCJ). I accept and consider the additional reports and I make the following observations.
50 Specifically in relation to post-traumatic stress disorder, Dr Jaroslaw Komeda said in his report dated 1 January 2001:
[The appellant] has been suffering from chronic and highly disturbing to her post-traumatic stress disorder (PTSD) which manifested itself through dramatic mood swings, irritability, intrusive thoughts relating to previous abuse, behavioural disturbance, aggression and prominent pseudo hallucinations inform of intrusive 'voice' controlling her actions and behaviour.
51 Dr Komeda notes that the appellant does not suffer from any psychotic illness.
52 Dr Millroy notes in her report dated 6 September 2000:
PK has some understanding of the triggers associated with these offences (perpetrated by her) due to the link between her PTSD and the offences. This understanding is somewhat limited however with symptom reduction and better stress management some of the triggers would be reduced.
53 Ms Karen Goodall-Smith states in her report dated 10 May 2010:
[PK] is suffering from post-traumatic stress disorder (DSM-IV) as a result of the sexual abuse suffered as a child. She has frequent and unresolved flashbacks, experiences a lack of trust in men and has never had appropriate sexual intimate relationships with either men or women.
54 I am satisfied on all of the material provided that PK suffers from post-traumatic stress disorder that has resulted directly from the sexual, physical and emotional trauma of the offending against her.
55 I am also satisfied that the appellant has suffered borderline personality disorder that is causally connected to the offences perpetrated against her. This has manifested itself in ways described by Dr Dodd in her report dated 28 August 2008 and Ms Juniper dated 9 January 2002. Ms Goodall-Smith refers to the impact of the offending on the appellant's sexual development in her report dated 14 June 2010:
On a sexual level my opinion is that [PK] has developed abnormal sexual obsessions towards children as a direct result of the abuse suffered by her as a child. It is likely that unresolved issues caused by the abuse resulted in her abusing others.
56 I note the reference to the appellant's offending is a reference to a non-compensable injury.
57 The persistent and damaging offending has also caused a loss of earning capacity. Ms Goodall-Smith refers to the report of the appellant's carer that the appellant is illiterate (Ms Goodall-Smith's report dated 14 June 2010).
58 Although learning difficulties are part of genetic factors as outlined by Ms Hudd in her report dated 18 June 1990, the appellant's lack of schooling has contributed to her illiteracy. Ms Hudd noted that the appellant suffers moderate intellectual handicap or a lack of schooling and that she could not advise of her age or what happened at what time in her life. Ms Hudd noted a disrupted school potential.
59 Consistent with the findings of the learned assessor I am satisfied that the appellant suffered from post-traumatic stress disorder (or PTSD) as a consequence of the combined effects of the assaults and criminal neglect perpetrated against her. I am satisfied that there is a causal connection between the assaults and the neglect and that condition. I am also satisfied that there is a causal connection between the diagnosis of borderline personality disorder and the sexual assaults and neglect that was suffered by the appellant.
60 I conclude that the sums awarded by the learned assessor are appropriate in the circumstances. The awards made in respect of each application are as follows:
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Sub-total: |
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The appellant's claim in respect of s 6(2)(b) of the Act
61 Section 6(2)(b) states:
(2) In the case of a victim who is injured, loss means -
…
(b) expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim; …
48. Future treatment expenses, payment of
(1) If a compensation award made in favour of a victim who has suffered injury includes an amount in respect of expenses of the kind referred to in section 6(2)(b), the amount is not to be paid unless -
(a) the Chief Assessor is given evidence for the purposes of paragraph (b) by or on behalf of the victim; and
(b) an assessor is satisfied that the expenses have been reasonably incurred by or on behalf of the victim for treatment that the victim required as a direct consequence of the injury suffered by the victim in consequence of the commission of the offence to which the award relates; and
(c) the Chief Assessor is given a request for payment of the amount in accordance with subsection (2).
(2) A request referred to in subsection (1)(c) must be given to the Chief Assessor -
(a) if the victim was under 18 years of age on the date of the award, before -
(i) the victim reaches 28 years of age; or
(ii) the expiry of 10 years after the date on which the Acts Amendment (Justice) Act 2008 section 31 commences,
- whichever occurs last; or
(b) otherwise -
(i) if the award was made before that section commences, within 10 years after the day on which it commences; or
(ii) otherwise, within 10 years after the date of the award.
64 The learned assessor acknowledged that the process in respect of payment by an assessor of any award made which is the subject of s 48 of the Act is a quasi-judicial process whereby the appellant submits the claim for expenses which must then be considered by an assessor.
65 The learned assessor noted that medical and psychological reports may recommend treatment and there is often no doubt that the treatment is warranted, appropriate and necessary but this does not always mean that the appellant is 'likely' (consistent with s 6(2)(b) of the Act) to pursue or incur costs for such treatment: PK [29]. The question of what is 'likely' must be considered pursuant to s 48.
66 Given that the appellant has had possible access to counselling through Disabilities Services Commission since her wardship was finalised in 2002, but has failed to undergo treatment the inferences open that the appellant would not necessarily attend recommended psychological counselling or therapy of her own volition consistent with the assessor's findings.
67 Counsel for the appellant submits the court should take the new evidence of the affidavit of Rebecca Jodie Salamon sworn 23 June 2014 into account. This affidavit was not before the learned assessor at the time he considered the applications (given the application was filed by PK's solicitors on 27 May 2013 and the limited guardianship order was made on 14 June 2014). There is no reason why the affidavit of Ms Salamon should not be received and considered as evidence in respect of this de novo hearing.
68 Ms Salamon is employed at the office of the Public Advocate as a senior guardian. She is responsible for making decisions on behalf of the appellant as a result of the State Administrative Tribunal appointing the Public Advocate as a limited guardian from the date of orders made on 14 June 2013. The relevant orders are annexure A to Ms Salamon's affidavit. The orders made are:
1. The order (made 3 July 2012) is revoked and a guardianship order in the following terms is substituted for it:
The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth Western Australia be appointed limited guardian of the represented person with the following functions:
(a) To decide where the represented person is to live, whether permanently or temporarily;
(b) To decide with whom the represented person is to live;
(c) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person;
(d) To determine what contact, if any, the represented person should have with others and the extent of that contact;
(e) To determine the services to which the represented person should have access;
(f) To decide whether or not the represented person should travel, whether interstate or overseas, and to determine the arrangements for any such travel; and
(g) As Next Friend or Guardian ad litem to commence defend or settle any legal proceedings on behalf of the represented person and to advocate generally on her behalf in relation to any legal issues that may arise.
2. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3. This order is to be reviewed by 14 June 2018.
69 Ms Salamon is therefore charged to make decisions regarding treatment for the appellant and to make decisions as to the services the appellant may access. Ms Salamon says in her affidavit:
9. I also know from working with her and other individuals with intellectual disabilities that counselling can be therapeutic even when the individual has an intellectual disability.
10. I advise the Court that the appellant has recently moved into accommodation where she receives more support.
11. She lives in a cluster of units that has support staff on duty at all times, 24 hours a day, 7 days per week.
12. The appellant is doing fairly well now in terms of her mental stability.
13. She has expressed to me that she wants to engage in therapy and get better.
14. If there were funds available, the appellant could attend therapy on a private basis.
15. She may also be able to attend therapy that is not as main stream as counselling, such as art therapy.
16. Art therapy is something that the appellant has expressed to me that she is keen to commence.
17. I understand from my work that art therapy is a common method of counselling used for patients with intellectual disabilities.
18. If the appellant had funds available for this treatment, I would assist her in accessing this treatment.
19. In my opinion it is in the best interest of the appellant to receive further psychological therapies.
70 There is no evidence that Ms Salamon has the expertise to comment on the type of therapies that would be appropriate for the appellant, however, I accept her evidence in relation to the appellant's desire to engage in expert counselling and Ms Salamon's commitment to ensure that attendance occurs. I also accept that, consistent with the reports of the appellant's history in care and detention, the appellant is more likely to attend treatment in a stable environment such as the one provided in the units in which she now lives than she would be if she was still in an unstable environment.
71 The original applications were supported by the expert counselling report of Ms Goodall-Smith, clinical psychologist, dated 4 June 2010. Ms Goodall-Smith assessed that the appellant required future psychological treatment from a clinical psychologist or consultant psychiatrist throughout her life. Ms Goodall-Smith concluded:
She needs help with post-traumatic stress disorder arising from the sexual abuse, for anger management issues, sexuality, appropriate social and sexual behaviour, self-esteem and whatever other areas are being affected by the non-resolution of issues occurring from the abuse. Her intellectual disability may mean that she benefits less from treatment then peers without this disability, but this would need to be assessed by the treating therapist.
72 Ms Goodall-Smith determined the likely frequency of treatment as being that the appellant needs psychological treatment between once per week to once per month indefinitely depending on the issues arising within her life at the time and stated the present cost of treatment was at a recommended rate of $206 per session.
73 The appellant submits that given the evidence of Ms Salamon the appellant is highly likely to attend psychological treatment. The orders made as part of the limited guardianship order are different from previous orders.
74 I accept that this is the first opportunity the appellant has had to have a guardian as a result of the limited guardianship order and that someone in Ms Salamon's position will be able to assist her and guide her in relation to psychological treatment.
75 I accept that with the assistance of Ms Salamon, the appellant will be able to go to the appointments that are scheduled because Ms Salamon will arrange for attendance to occur. Given the appellant's stable residential environment, I am satisfied that the appellant is likely to attend counselling as directed in the future. I accept that this is likely to be once per week.
76 In light of s 48, s 21 and s 42 of the Act an award should be made in respect of weekly sessions over a 10 year period. The award should however be in the sum of $85 per session being the Medicare gap required to be paid in order for the counsellor to receive the sum of $206 per session, not the full amount of $206 per session.
77 The appellant is 31 years old with a life expectancy of a further 55 years. The relevant multiplier is 385.5. For the period of 10 years during which the appellant is aged 31 to 41, at a weekly cost of $85 applying a multiplier of 385.5, the total sum for future treatment is $33,617.50.
78 I order that future treatment pursuant to s 6(2)(b) of the Act be awarded in this sum.
79 The appellant has received $35,000 compensation in full settlement of a separate claim that was related to the loss and injuries she has suffered. This sum is deducted is from the $115,000 awarded in respect of the successful applications. The total payable to the appellant for her injuries is $80,000.
| $115,000 |
| $35,0000 |
| $80,000 |
| $33,617.50 |
| $113,617.50 |
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