Re Potschick
[2025] WADC 9
•27 FEBRUARY 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE POTSCHICK [2025] WADC 9
CORAM: RITTER DCJ
HEARD: 12 MARCH 2024 & FINAL INFORMATION/SUBMISSIONS RECEIVED 20 DECEMBER 2024
DELIVERED : 27 FEBRUARY 2025
FILE NO/S: APP 39 of 2023
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: HILDEGARD IRMA POTSCHICK
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: R CAPARARO
File Number : CIC 832 of 2020
Catchwords:
Criminal injuries compensation - Assessment of damages - Leave to commence appeal out of time
Legislation:
Criminal Code (WA)
Criminal Injuries Compensation Act 2005 (WA)
District Court Rules 2005 (WA)
Result:
Leave to commence appeal out of time granted
Appeal allowed
Compensation assessed
Representation:
Counsel:
| Appellant | : | Ms M J Aranda |
| Amicus Curiae | : | Ms I N Darch appeared on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Maryse Aranda Lawyers |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
EB v Ramljak [2021] WADC 134
EM v CL [2021] WADC 127
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
James v Sievwright [2003] WASCA 251
LS v SL [2023] WADC 8
Martin v Martin [2015] WADC 138
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
Puterangi [2017] WADC 168
RBF v OSD-S [2004] WADC 97; (2004) 36 SR (WA) 61
Re ATS [2017] WADC 92
Re Coad [2023] WADC 9
Re Collard [2018] WADC 1
Re Jackamarra [2014] WADC 9
Re McHenry [2014] WADC 92
Re TLJ [2016] WADC 74
Re ZD (pseudonym initials) [2024] WADC 42
S v Neumann (1995) 14 WAR 452
Simonsen v Legge [2010] WASCA 238
Underwood v Underwood [2018] WADC 13
RITTER DCJ:
The appeal
By a notice of appeal dated 21 August 2023 the appellant appeals against a decision of the Assessor of Criminal Injuries Compensation (Assessor). The decision was made following an application for compensation made by the appellant on 29 April 2020 pursuant to s 17 of the Criminal Injuries Compensation Act 2003 (WA) (the Act). The application was made for a compensation award arising out of injuries suffered as a result of an incident on 3 May 2017. On 19 May 2021 the Assessor formally refused the application on the basis that the appellant was committing a separate offence at the time of suffering the injury.
The issues
As outlined in the written submissions made on behalf of the appellant, there are three issues for determination in the appeal. These are:
(a)whether the appellant is granted leave to commence the appeal out of time;[1]
(b)if so, should an award for compensation be made?
(c)if the answer to (a) and (b) is yes, the appropriate award of compensation.
[1] Technically, unless and until the court orders that Ms Potschick may commence the appeal out of time she is an applicant rather than appellant. For ease of reference however I will refer to her as an appellant throughout these reasons.
In my opinion it is most convenient to determine issue (b) first. This is because if, in my opinion, an award for compensation should be made this is a factor very relevant to the determination of issue (a). Further, if issue (b) is determined in favour of the appellant, it gives rise to a consideration of issue (c).
The amicus curiae
The State Solicitor's Office, by order of Registrar Kubacz on 7 November 2023, was granted leave to appear as amicus curiae.
The amicus provided written submissions to the court dated 7 March 2024. The amicus also appeared to provide oral submissions. The amicus also responded, briefly, when additional documents were provided on behalf of the appellant, following the hearing of the appeal. The court is indebted to the written and oral submissions made by the amicus curiae. Submissions of an amicus curiae are particularly important when a respondent to an appeal does not appear, as in this instance, and therefore there is no contradictor before the court.
In the submissions of the amicus it was asserted that there were five issues to be determined. These included, in addition to those identified by the appellant, fourthly whether the appellant committed a separate offence at the time of the alleged offence and therefore the court must refuse the award of compensation under s 39 of the Act. And fifthly whether the appellants behaviour, condition, attitude or disposition contributed directly or indirectly to her injury. If the answer to that question is yes, the court may refuse to make a compensation award or reduce the amount it otherwise would have awarded if it considers it just to do so. This is provided for by s 41 of the Act.
I accept that these are issues to be determined, but they are subsumed in issues (b) and (c) identified on behalf of the appellant, as set out above.
Applicable principles - appeals
Part 7 of the Act legislates about appeals and referrals.
Section 55 of the Act provides that, relevantly, an interested person may appeal to the District Court against an assessor's decision as to the amount of a compensation award. Section 56(1) of the Act provides:
On an appeal under section 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information.
As stated in s 56 of the Act, the appeal/application is to be determined by the court 'without being fettered by the assessor's decision'. Whilst there are conflicting authorities, the better view in my opinion is that the appeal may and most often should be determined without regard to the assessor's reasons and instead, the court is to independently review the evidence.[2]
[2] Re Coad [2023] WADC 9 [17]; EM v CL [2021] WADC 127 [11]; EB v Ramljak [2021] WADC 134 [18].
From the terms of the legislation and as confirmed by authority, an appeal under the Act is a hearing de novo.[3] Accordingly there is no requirement for the appellant to demonstrate error on the part of the assessor.
[3] Underwood v Underwood [2018] WADC 13 [19] (Underwood); Re Collard [2018] WADC 1 [30].
Section 56(2) of the Act provides that on an appeal the District Court may, relevantly, confirm, vary or reverse the assessor's decision, either in whole or in part; and make any order that an assessor could make under the Act.
Additional evidence and information
As set out in s 56(1) of the Act the court 'may receive further evidence and information' as opposed to deciding 'the application to which the decision relates … solely on the evidence and information that was in the possession of the assessor …'.
In the present appeal, the appellant sought to rely on evidence and information in addition to that before the Assessor. In particular the additional evidence and information initially before me included a psychological report from Mr Augustine Hwee dated 3 May 2024 and other medical records. However, at the hearing I made an order permitting the appellant to file an additional report from her treating psychologist. This led to the supplementary report of Mr Hwee dated 2 August 2024, being provided. It is therefore just that the appellant be entitled to reply on this document. I also made an order at the hearing allowing the appellant to provide the transcript of the earlier hearing before Magistrate Wilson on 10 January 2018. This was the transcript of the hearing of a violence restraining order application by the appellant against the alleged offender. The application was dismissed on 18 January 2018. Magistrate Wilson provided written reasons for decision.[4] The transcript was not however provided to me.
[4] Assessor's papers, page 65. The transcript of those proceedings has not been provided.
These documents were provided consequent to the hearing of the appeal on 12 March 2024, consistent with either orders then made, or subsequent correspondence with my associate. Accordingly, in my opinion these documents, as a matter of justice, ought to be considered by me in determining the application.
The appellant was ordered on 7 November 2023 to file a book of documents in addition to those provided to the Assessor, on which she intended to rely. On 26 February 2023 the appellant filed additional documents, including documents not previously before the Assessor, being:
(a)a further note for roofing dated 9 June 2017;
(b)three affidavits sworn by the appellant in 2017, 2023 and 2024;
(c)a letter from Scarlet Runner;
(d)an undated photograph of a broken tile roof;
(e)a receipt from Dr Wong of the Ranford Medical Centre; and
(f)a medical report provided by Dr Wong of Ranford Medical Centre.
In my view this is also just that the court take into account these documents.
Medical records from the Carousel Medical Centre, as referred to later, were also provided to the court after the hearing of the appeal. It is also just for the court to take into account these documents in determining the appeal.
It is relevant that the Act does not set out any particular requirement for the receipt of further evidence and information in the hearing of the appeal. There is no requirement, for example, to demonstrate that the evidence or information should only be received if it is new or fresh information. This is consistent with the appeal being a determination afresh, not fettered by the assessor's decision.
The notice of appeal
Although, as set out earlier, the hearing of an application is a hearing de novo, the relevant form for an appeal notice under r 51(1) of the District Court Rules 2005 (WA) provides that grounds of appeal should be included in the appeal notice. Here the appellant relies upon four grounds of appeal being:
1.The Assessor failed to give due consideration to the offender's conduct under s.70A of the Criminal Code Compilation Act 1913
2.The Assessor failed to give due consideration to the offender's conduct under s.222 of the Criminal Code Compilation Act 1913
3.The Assessor consequently failed to give due consideration to the offender's conduct under s.244 of the Criminal Code Compilation Act 1913
4.The Assessor failed to give any or any sufficient weight to the injuries sustained by the Appellant and the effect of those injuries.
As I have said earlier the formal refusal of the application of the appellant by the Assessor was made on 19 May 2021. The letter referred to previous correspondence from the Assessor dated 8 July 2020 and a response to that letter. However, the Assessor's letter said that for the reasons set out in her letter of 8 July 2020, the appellant's application for compensation was formally refused.
The Assessor's letter of 8 July 2020 said that the Assessor had reviewed the documents provided as part of the compensation application and had requested and received from Western Australia Police the incident report and running sheet. The letter then said:
…
The running sheet reports on 30 May 2017 the alleged offender stated your client struck him numerous times whilst holding an umbrella. He then said he took hold of the umbrella to protect himself and as he grabbed the umbrella your client fell to the ground. He said as your client fell he attempted to help her back up during which time she struck him further with the umbrella. Your client has informed police the alleged offender took hold of the umbrella that she was holding after she smashed his vehicle, she then said he pulled the umbrella and pulled her around as a result she fell to the ground. Your client then stated to police she got back up and was pushed to the ground once more by the alleged offender which was denied.
Due to the operation of section 39 of the Criminal Injuries Compensation Act 2003 (the Act) I must not make an award of compensation to your client if I am satisfied your client was committing a separate offence when she was injured. On the basis of the information currently before me your client struck the alleged offender with the umbrella several times before he retaliated. This would amount to an offence of assault. Furthermore, she smashed the reverse window of his motor vehicle which would amount to criminal damage and as such I would be obliged to refuse your client's application for compensation.
…
Section 41 of the Act also requires that I take account of any behaviour, condition, attitude or disposition of your client which contributed directly or indirectly to her injuries. Your client called police but rather than waiting for them to attend the premises, exited the house and struck the alleged offender with an umbrella, assaulting him. She then further provoked him by smashing the umbrella on his vehicle. On this basis I would be required to reduce your client's compensation to take into account her contribution to her own injuries by exiting her home, approaching the alleged offender and striking him with the umbrella and then further provoking him by smashing the umbrella onto his vehicle. In my opinion your client's behaviour precludes me from making any award to her.
…
That letter was written to the appellant's then‑solicitor at the Gosnells Community Legal Centre.
The Assessor, in the letter, did not refer to the evidence before and the findings of Magistrate Wilson on 18 January 2018. Also the Assessor did not consider whether the appellant did not commit an offence due to s 244 of the Criminal Code (WA). Magistrate Wilson's reasons were amongst the documents before the Assessor.[5]
[5] Assessor's papers, pages 65 - 80.
Entitlement to compensation under the Act
As set out earlier the application for compensation was made on 29 April 2020 for injuries allegedly suffered as a result of an alleged offence occurring on 3 May 2017. Accordingly, the application was made within the three-year period set out in the Act in s 9(1).
The application to the Assessor was based upon s 17 of the Act. Relevantly to the present application are s 17(1), s 17(2) and s 17(4), which are as follows:
(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;
…
As summarised by the amicus the effect of s 17(4)(a) of the Act is that the court must not make a compensation award under s 17(2) of the Act unless satisfied:
(a)that the claimed offence occurred;
(b)that the claimed injury and any claimed loss occurred; and
(c)the claimed injury and any claimed loss occurred as a consequence of the commission of the alleged offence.
'Alleged offence' is defined in s 3 of the Act to mean a crime, misdemeanour or simple offence of which no person has been convicted.
The legislation has been construed to mean that the court must be satisfied that an alleged offence occurred in the manner described by the appellant. For this to occur the court must be satisfied that it is more probable than not that the alleged offence took place.[6] There is authority, which I accept, to support these propositions:
(a)The strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what is sought to be proved. This is particularly so when criminal conduct is alleged.[7]
(b)It is a serious matter to make a finding that an alleged offender has committed an act in the nature of an offence, particularly when they are not given an opportunity to refute those allegations.[8]
[6] Re TLJ [2016] WADC 74 [51].
[7] See for example Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, 449 - 450; Briginshaw v Briginshaw (1938) 60 CLR 336, 362; Re ATS [2017] WADC 92 [29], [141].
[8] Re Jackamarra [2014] WADC 9 [71], [75].
Accordingly, the court should exercise caution in making a conclusion that an offence has been committed. The evidence to support the commission of an offence must be precise rather than loose and inexact and should be considered with careful scrutiny before making the relevant findings.[9]
[9] Re ATS [29], [114].
The burden placed upon the appellant is not discharged merely by providing evidence that contains conflicting inferences of equal degrees of probability. In such circumstances the choice between the two versions is no more than conjecture.[10] I have applied these principles in the findings that I have made. I set out those findings later.
[10] Martin v Martin [2015] WADC 138 [30] (Martin).
An injury is defined in s 3 of the Act to mean bodily harm, mental and nervous shock, or pregnancy. Loss is defined in s 6(2) of the Act.
Section 6(2) of the Act provides as follows:
(2)In the case of a victim who is injured, loss means -
(a)expenses actually and reasonably incurred by or on behalf of the victim -
(i)that arise directly from; or
(ii)that arise in obtaining any report from a health professional or a counsellor in relation to,
the injury suffered by the victim; or
(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; or
(c)loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim; or
(d)any loss arising from any damage caused as a direct consequence of the commission of the offence to any personal item that was being worn by the victim when he or she suffered the injury.
(3)In the case of a victim who dies, loss means any loss suffered by a close relative of the victim for which damages could be awarded to the relative under the Fatal Accidents Act 1959 if the death of the victim were caused by the wrongful act, neglect or default of another.
'Personal item' is also defined in s 6(1) of the Act. It is not necessary to set out the terms of that definition.
The application of the appellant includes, in effect, a claim for compensation for mental and nervous shock. The court must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence or for any loss in respect of such shock, unless satisfied that an applicant falls within one of the categories specified in s 35(2) of the Act. Relevant to the present application is s 35(2)(a) and (b), as follows:
(2)An assessor must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence, or for any loss in respect of such shock, unless the assessor is satisfied -
(a)that the victim also suffered bodily harm or became pregnant as a consequence of the commission of the offence; or
(b)that the victim was the person against whom, or against whose property, the offence was committed; or
...
'Mental or nervous shock' includes a malfunction of the person as a consequence of the impact of events constituting the offence or offences, associated with the commission of the offences, as those events impact on the mind or nervous system. It must be more than a mere emotional reaction, being something of a more enduring character which may, in both the legal sense and in common parlance be described as an injury. It does not include mere fright, humiliation or anguish. But it does include distress, horror, disgust and other similar adverse mental reactions.[11] Mental or nervous shock includes therefore post‑traumatic stress disorder (PTSD) such as the appellant asserts was caused to her by the alleged assault.
[11] S v Neumann (1995) 14 WAR 452, 461; Martin [85].
As pointed out by the amicus, the application for compensation relied upon three alleged offences, committed by the same person, MJB. The alleged offences were assault, trespass and criminal damage.
Also relevant to deciding the appeal is s 39 and s 41 of the Act.
Section 39 provides:
39.No award if victim was engaged in criminal conduct
(1)If an 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,
the assessor must not make a compensation award in favour of the person.
(2)If an assessor is satisfied -
(a)that a person died as a consequence of the commission of an offence; and
(b)that the death occurred when the person was committing a separate offence,
the assessor must not make a compensation award in favour of a close relative of the person for any loss suffered by the close relative as a result of the death.
Section 41 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.
Assault
Section 313(1) of the Criminal Code provides that any person who unlawfully assaults another is guilty of a simple offence.
Accordingly, there are two elements to s 313(1)(b):
(a)there was an assault; and
(b)the assault was unlawful.
Assault is relevantly defined in s 222 of the Criminal Code as follows:
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, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.
The term applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.
As assault is unlawful and constitutes an offence unless it is authorised, justified or excused by law.[12] An assault may not be unlawful if an excuse or defence applies such as provocation or self‑defence.[13] Although provocation and self‑defence are commonly referred to as defences, having regard to the onus of proof, in criminal proceedings it is for the prosecution to prove that the 'defence' does not apply, beyond reasonable doubt, before a person could be convicted of assault. In the proceedings, the appellant must prove they do not apply, on the balance of probabilities.
[12] Criminal Code s 223.
[13] See for example s 246 and s 248 of the Criminal Code.
Trespass
On the relevant date being 3 May 2017, the offence of trespass was described in s 70A if the Criminal Code in this way:[14]
(2)A person who, without lawful excuse, trespasses on a place is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12,000.
[14] In 2023 s 70A was amended, however the amendment is immaterial to the present case.
Accordingly, the two elements of s 70A(2) of the Criminal Code are:
(a)a person trespasses on a place; and
(b)the person does so without lawful excuse.
Section 70A(1) of the Criminal Code defines trespass on a place, as follows:
(a)to enter or be in the place without the consent or licence of the owner, occupier or person having control or management of the place; or
(b)to remain in the place after being requested by a person in authority to leave the place; or
(c)to remain in a part of the place after being requested by a person in authority to leave that part of the place.
(2)A person who, without lawful excuse, trespasses on a place commits an offence.
Penalty for this subsection: imprisonment for 12 months and a fine of $12 000.
Criminal damage
The third offence relied upon by the appellant is with respect to criminal damage, contrary to s 444 of the Criminal Code. This section provides:
444.Criminal damage
(1A)In this section -
circumstances of aggravation has the meaning given in section 221.
(1)Any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable -
(a)if the property is destroyed or damaged by fire, to life imprisonment; or
(b)if the property is not destroyed or damaged by fire, to imprisonment for 10 years or, if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, to imprisonment for 14 years.
Alternative offence: s. 445.
Summary conviction penalty: for an offence where -
(a)in a case where subsection (1)(b) applies; and
(b)the amount of the injury done does not exceed $50 000,
imprisonment for 3 years and a fine of $36 000.
(2)Property that is capable of being destroyed or damaged by fire includes vegetation.
The two elements of an offence under s 444 of the Criminal Code are:
(a)a person damages property; and
(b)they do so wilfully or unlawfully.
Additionally, wilfully destroy or damage is defined in s 443 of the Criminal Code as follows:
443. Term used: wilfully destroy or damage
Where a person does an act or omits to do an act -
(a)intending to destroy or damage property; or
(b)knowing or believing that the act or omission is likely to result in the destruction of or damage to property,
and the act or omission results in the destruction of or damage to property, the person is regarded for the purposes of this division as having wilfully destroyed or damaged property.
Section 244 of the Criminal Code
Section 244 of the Criminal Code is relied upon by the appellant to justify her actions. This provides as follows:
244. Home invasion, use of force to prevent etc.
(1)It is lawful for a person (the occupant) who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary -
(a)to prevent a home invader from wrongfully entering the dwelling or an associated place; or
(b)to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place; or
(c)to make effectual defence against violence used or threatened in relation to a person by a home invader who is -
(i)attempting to wrongfully enter the dwelling or an associated place; or
(ii)wrongfully in the dwelling or on or in an associated place;
or
(d)to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place.
(1A)Despite subsection (1), it is not lawful for the occupant to use force that is intended, or that is likely, to cause death to a home invader unless the occupant believes, on reasonable grounds, that violence is being or is likely to be used or is threatened in relation to a person by a home invader.
(2)A person is a home invader for the purposes of subsection (1) if the occupant believes, on reasonable grounds, that the person -
(a)intends to commit an offence; or
(b)is committing or has committed an offence,
in the dwelling or on or in an associated place.
(3)The authorisation conferred by subsection (1)(a), (b) or (d) extends to a person assisting the occupant or acting by the occupant's authority.
(4)If under subsection (1)(c) it is lawful for the occupant to use a degree of force, it is lawful for another person acting in good faith in aid of the occupant to use the same degree of force to defend the occupant.
(5)This section has effect even if the conduct it authorises would not otherwise be authorised under this Chapter.
(6)In this section -
associated place means -
(a)any place that is used exclusively in connection with, or for purposes ancillary to, the occupation of the dwelling; and
(b)if the dwelling is one of 2 or more dwellings in one building or group of buildings, a place that occupants of the dwellings use in common with one another;
offence means an offence in addition to any wrongful entry;
place means any land, building or structure, or a part of any land, building or structure.
Evidence
In the written submissions of the appellant, the findings made by Magistrate Wilson are summarised as follows:
32.Magistrate Wilson accepted the evidence of both parties to find that [the offender] 'was told to get off the roof of the House by the [Appellant] and [the offender] was trespassing'.
33.Magistrate Wilson found that the [offender's actions] amounted 'to an assault within the meaning of the s. 222 of the Criminal Code'.
34.Magistrate Wilson found that the '[Appellant] was authorised, pursuant to s. 244 of the Criminal Code, to use such force as is necessary to remove the [offender] from her property'.
35.Magistrate Wilson found that 'the events that unfolded on 3 May 2017 were frightening to the [Appellant]'. Further, that 'the telephone conversations the [offender] had with the [Appellant]' were 'intimidating' and 'caused fear in the [Appellant]'.
…
37.The offender entered the property of the Appellant without the consent of the Appellant in breach of s.70A(a).
38.The offender 'then climbed onto the roof of the House and lifted some tiles before then removing some rivets holding the down pipe in place' … which … 'amounted to damage'.
39.The Appellant says that the action by the offender in removing the downpipe and lifting the tiles caused damage to the Appellant's roof and the damage was an additional expense to the appellant that had to be repaired.
40.The Appellant told the offender to get off the roof and that he was trespassing.
…
45.Magistrate Wilson found that 'the [offender] applied force to the appellant in attempting to remove the umbrella from the hands of such a degree that he knew or ought to have known it was highly likely his strength would cause the Applicant to fall' and she did fall and sustained injuries.
46.Magistrate Wilson found that the actions of the offender amounted to 'an assault within the meaning of section 222 of the Criminal Code'.
…
48.Magistrate Wilson's comment about the offender: 'knew or ought to have known [that] it was highly likely [the action] would cause the [appellant] to fall' implies total disregard on the part of the offender to the foreseeable affects of his actions, and merely reinforces the offender's actions to intimidate and / or cause injury.
…
The appellant submitted Magistrate Wilson was in the best position to determine the credibility and the behaviour of the parties when they gave their respective evidence at the hearing of the restraining order on 10 January 2018.
The amicus summarised the evidence provided by the appellant and the findings of Magistrate Wilson in their written submissions as follows:[15]
[15] The summary included in these reasons has corrected some typographical errors made in the original document.
46.The Appellant has provided a statement and an affidavit in which she describes the events of 20 February 2021. In summary, the Appellant's description of the events are:
46.1On the 11 January 2017 the alleged offender attended the appellants [sic] property to provide a quote for some roofing maintenance work.
46.2On 24 March the alleged offender attended the property, with a younger colleague David, to do the work.
46.3The Appellant paid the alleged offender $1050 in cash, which she says was the total amount agreed to for the roofing works.
46.4The Appellant states that the alleged offender left the work incomplete.
46.5The Appellant states she contacted the alleged offender between 24 March 2017 and 29 April 2017 to do further work but he was too busy.
46.6David returned to the property to install guttering on 29 April 2017.
46.7On 29 April 2017 the alleged offender then informed the Appellant that this work was a 'new job' and she owed him a further $180. The Appellant disagreed with this.
46.8On 1 May 2017 the Appellant invited the alleged offender to her house to discuss the disagreement. She offered him $50.00 but he refused.
46.9Half an hour after he left he allegedly called the Appellant and yelled at her on the phone including calling her a 'bitch'. He told her he was going to come and rip the guttering out.
46.10The Appellant also describes the alleged offender as saying 'he will return and rip off the down pipe and damage the gutter'.
46.11On 3 May 2017 he called the Appellant and informed her he was coming to her house.
46.12The Appellant called 000 and was informed the situation was not an emergency. She was directed to call 131 444.
46.13While the Appellant was on the phone with 131 444 the alleged offender knocked on the door and the Appellant could hear him get on her roof so she hung up the phone and went outside.
46.14The appellant went out the front to tell the alleged offender she did not want him there and he was trespassing.
46.15The Appellant then 'used an umbrella to hit the mirror on his car to try and get him to stop damaging her roof and to leave. The mirror broke off.
46.16The alleged offender grabbed the umbrella the Appellant was holding and caused her to fall to the ground.
46.17The alleged offender ran towards her front door and she moved between the offender and her door.
46.18The alleged offender then used [sic] took hold of the umbrella again and using it pushed the Appellant to the ground again causing her to hit her head on the concrete.
46.19The alleged offender was pushing her around while she was on the ground causing her to wet herself.
46.20The alleged offender left before returning to tell her he had a witness.
47.The Appellant obtained an interim violence restraining order against the alleged offender. She applied for a final violence restraining order which was refused.
48.On 10 January 2018, both the Appellant and the alleged offender gave evidence at that hearing which is summarised by Magistrate Wilson in his written reasons.
49.The alleged offender's version of the incident is outlined below:
49.1The alleged offender accepted the work had been completed for $1050.
49.2The Appellant then required further work for which he quoted $160.
49.3On 27 April 2017 [the alleged offender] sent an employee to the house to do the work.
49.4On 1 May 2017, he telephoned the Respondent and then went to her house to discuss payment. She offered him $50 which he found insulting.
49.5He threatened to involve a debt collector. He stated he could hear his son crying so he told her he would return to discuss further the following Wednesday, 3 May.
49.6On 3 May the Respondent phoned the Appellant but she hung up on him.
49.7He knocked on the door but she did not answer.
49.8He decided to remove the down pipe as he had not been paid.
49.9To do so he removed tiles and in the process broke some cement on the ridge capping causing damage.
49.10The alleged offender was trying to replace roof tiles and put a protective piece of metal where he had removed the down pipe. The Appellant appeared with a broom and started to strike him and telling him he was trespassing. He did not dispute taking the broom off her and throwing it into the backyard.
49.11The alleged offender 'then heard his ute being struck with an umbrella by the Appellant so he got off the roof to attempt to stop her but found he couldn't as she kept striking him with the umbrella and it was hurting him'.
49.12He went towards the front of the house to get his ladder and leave but the Appellant kept on poking him with the umbrella through holes in the ladder.
49.13He grabbed hold of the end of the umbrella and tried to pull it off the Appellant. But he pulled her over and onto the ground.
49.14He moved towards the Applicant to help her up but she continued to poke him.
49.15He decided to remove himself from the area and as he was reversing his ute he saw the Appellant grab hold of a mirror and break it off.
49.16As he was reversing the Appellant also reached into the back of the ute and grabbed hold of some 'whirly bird' vents and threw them onto the ground damaging them.
50.There was no dispute relating to a number of matters leading up to the date of the alleged offending. Having noted the standard of proof required in civil cases is the balance of probabilities, and having had the benefit of seeing and hearing both parties, Magistrate Wilson accepted and found:
50.1The alleged offender became very annoyed.
50.2The alleged offender climbed onto the appellant's roof.
50.3The alleged offender was trying to patch where the downpipe had been removed from when the appellant began striking him with a broom which the alleged offender threw into the back garden.
50.4The Appellant began striking the ute and the alleged offender approached her to try and her [sic] stop her doing that.
50.5The Appellant began striking the alleged offender multiple times and that the alleged offender grabbed hold of the umbrella causing her to fall backwards.
50.6The actions 'by the Respondent amount to an assault within the meaning of the s. 222 of the Criminal Code'.
50.7The alleged offender was genuinely shocked and moved toward the Appellant to assist her.
50.8The Appellant perceived this as a threat and began striking him again.
50.9the Appellant caused damage to two side rear vision mirrors on the ute and scratched the window tint
50.10the Appellant 'was authorised, pursuant to s 244 of the Criminal Code, to use all necessary force to remove the alleged offender from her property'.
50.11that removing the down pipe and lifting of tiles caused damage.
51.On the evidence of both parties, outlined above, it appears open to this Court to consider whether an assault was constituted when the alleged offender pulled on the umbrella and caused the Appellant to fall to the ground.
52.If the court asks itself this question, then is it is necessary to consider whether the assault was justified or excused by law. For this reason, it is necessary to consider any relevant defences.
(footnotes omitted)
Counsel for the appellant asserts she was not committing a separate offence when she was injured. This was because the appellant had a lawful excuse for her action pursuant to s 244 of the Criminal Code. This was because the appellant believed on reasonable grounds that her property, being her house was being damaged unlawfully and she had to do something to get the offender to leave her property. The appellant relies upon the observations of Barker J in James v Sievwright.[16]
[16] James v Sievwright [2003] WASCA 251.
His Honour, Barker J, in reviewing s 244 of the Criminal Code made the following observations:[17]
… there is no requirement in order to make out the 'defence' against home invasion for the occupant to show that the force he or she used was 'reasonably necessary' to prevent a home invader from wrongly entering the dwelling or the other purposes referred to in s 244(1)(a) ‑ (d). … The occupant must hold that belief 'on reasonable grounds', but it is the existence of an actual belief to that effect that is the critical or decisive factor. There is no additional requirement that the force used to prevent a home invader from wrongfully entering a dwelling, etcetera, must also be, objectively speaking, 'necessary' for the defence to apply.
[17] James v Sievwright [22].
The appellant therefore contends that the basis for the Assessor's refusal of the appellant's application for compensation was not made out. In considering the evidence relevant to s 244 of the Criminal Code, the amicus submits:
142.In this case, when considering the conduct of the appellant on her own premises, the Court will consider whether the Appellant was entitled, pursuant to s 244 of the Criminal Code (WA), to use all reasonable force or do anything else that the occupant believes, on reasonable grounds, to be necessary to cause a home invader who is wrongfully on the dwelling to leave it.
143.In her statement the Appellant reports having gone outside to tell the alleged offender that he was trespassing but he ignored her and she watched him damaging her roof.
144.In her evidence in the Magistrates Court the Appellant said:
144.1she tried to remove the Appellant from the roof with a broom however the alleged offender took hold of the broom and threw it in the garden;
144.2she yelled for help;
144.3she told the alleged offender to get off the roof again but he wouldn't;
144.4so she went to the front of the house and started 'hammering' the umbrella into the ute to try and cause him to come down.
145.The alleged offender gave evidence in the magistrates court proceedings that when he was in his car leaving the property, the Appellant snapped another mirror off his car and pulled venting from the back of his ute damaging it. The Magistrate made no finding in this regard. If this conduct did occur it could not be said [sic] to given the alleged offender was already leaving, it could not be said to be for the purposes of removing the Appellant from the property.
(footnotes omitted)
Findings
As set out earlier in considering the appeal the court can rely on the information and evidence before it. The evidence before Magistrate Wilson and his findings upon that are not, strictly, evidence before the court. Also, I take into account that the findings made by Magistrate Wilson were in the context of a civil application for a restraining order which is different to the nature of the proceedings before the court and the type of findings that are required to be made, to substantiate a claim when it is based upon an alleged offence, as set out above.
Nevertheless, it must be taken into account that the evidence before Magistrate Wilson and his findings were in the context of judicial proceedings. It is clearly 'information' before this court. It is in my opinion the best information and findings before the court as to what occurred on the date in question. Accordingly, for the purpose of deciding the appeal in my opinion it is appropriate to rely upon the evidence before Magistrate Wilson and take into account the findings his Honour made.
In doing so it is important in my opinion to look at the precise sequence of events as they unfolded. The alleged offender was trespassing upon the property of the appellant in the terms of s 70A of the Criminal Code. This is because he was in the place of the appellant without her consent and also remained in the place after a request by the appellant to leave the place.
This then brings into play s 244 of the Criminal Code and the lawfulness of the appellant's actions if she acted in accordance with that section. The actions that may be taken by a person under s 244 are lawful if they are in peaceable possession of a dwelling. They may then use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary to, relevantly, cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place.
The definition of a home invader for the purposes of s 244 includes, relevantly, a situation where the occupant believes on reasonable grounds that the person is committing or has committed an offence in the dwelling or on or in an associated place. Here, as just set out, at the relevant time the alleged offender was committing the offence of trespass. At that time the alleged offender was on the roof of the appellant's property. The roof of the property is part of the dwelling of the appellant, or an associated place as defined in s 244(6) of the Criminal Code. So too is the driveway to the appellant's dwelling as it is a place used in connection with the occupation of the dwelling. A place, as defined in s 244(6), is part of the land of the appellant.
The alleged offender was also probably committing the offence of wilful damage to the roof of the appellant's house. However, given my finding about trespass, it is unnecessary to make a finding about this.
As set out above it was after the alleged offender was trespassing on the roof of the appellant and damaging her roof that she used an umbrella to hit the mirror on the alleged offender's car to try and get him to stop damaging her roof and to leave. It was then that the mirror broke off. In that context the actions taken by the appellant are actions taken because she believed them to be necessary to cause the alleged offender to leave the dwelling or place. Based upon the evidence before Magistrate Wilson, and his findings, the actions taken by the appellant were those that she believed to be necessary to cause him to leave the dwelling or place. In my opinion the actions of the appellant in damaging the car were, in her belief, reasonably necessary to try and get the alleged offender to leave. This is because it could be reasonably expected that if the car was being damaged the alleged offender would come down from the roof, approach the car and leave the dwelling or place. Also the appellant had, prior to this, asked the alleged offender to leave, and he had not done so.
The appellant was damaging the car with the umbrella. It was then that the alleged offender grabbed the umbrella the appellant was holding and caused her to fall to the ground. As found by Magistrate Wilson, and in my opinion, this was an assault upon the appellant within the terms of s 222 of the Criminal Code, and therefore an offence under s 313 of the Criminal Code. The alleged offender then ran towards the front door of the appellant's dwelling. The appellant then moved between the offender and her door. The alleged offender then took hold of the umbrella again and used it to push the appellant to the ground again, causing her to hit her head on the concrete. Consistently with the evidence and findings of Magistrate Wilson that was also an assault committed by the alleged offender against the appellant at the time when she was acting pursuant to s 244 of the Criminal Code. The alleged offender then left the property.
In making my finding that an assault was committed against the appellant, I have decided that the 'defences' of provocation and self‑defence did not apply to the actions of the alleged offender. That is, on balance, the appellant has proved that these 'defences' did not apply to the actions of the alleged offender.
As summarised in the submissions of the amicus curiae, Sweeney DCJ in LS v SL[18] discussed the principles relevant to provocation. In particular:[19]
(a)Whether a particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce them to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact;
(b)There is no requirement for the response from the person provoked to have immediately followed the provocative act, however a lengthy period of brooding before retaliating would undermine a submission as to experiencing a sudden and temporary loss of self-control;
(c)Factors such as a person's personal circumstances and characteristics, including their age, are relevant in determining whether a person was in fact deprived of the power of self‑control. The content and extent of the provocation is assessed from the viewpoint of the person provoked;
(d)Personal characteristics other than age are to be disregarded when assessing whether a provocation was such that it might have caused an ordinary person to lose self-control.
[18] LS v SL [2023] WADC 8; Section 245 and s 246 of the Criminal Code.
[19] Outline of submissions of amicus curiae, pars 58.1 - 58.4.
In my opinion the appellant has established that provocation did not apply because there was no evidence that the alleged offender was deprived of the power of self‑control by any provocation.
In relation to the 'defence' of self‑defence,[20] Davis DCJ specified the elements of self‑defence in Puterangi as follows:[21]
(a)The accused subjectively believed their harmful act was necessary to defend themselves from a harmful act;
(b)The accused's harmful act was a reasonable objective response in the circumstances as they subjectively believed them to be;
(c)There are reasonable objective grounds for the accused's subjective belief that their harmful act was necessary to defend themselves from a harmful act;
(d)There are reasonable objective grounds for the accused's subjective belief as to the circumstances.
[20] Section 248 of the Criminal Code.
[21] Puterangi [2017] WADC 168 [47] - [49]; Outline of submissions of amicus curiae, pars 53.1 - 53.4.
I agree with the submission of the amicus curiae that the only evidence relevant to self‑defence was summarised by Magistrate Wilson. There, the alleged offender said he was trying to defend himself and get away from the appellant who was attacking him.[22] The alleged offender also said that the strikes from the umbrella used by the appellant were hurting him.[23]
[22] Assessor's papers, page 75.
[23] Assessor's papers, page 74.
In my opinion, the appellant has established that the alleged offender was not acting in self‑defence as defined in s 248 of the Criminal Code. This is because, at least, the alleged offender's harmful act against the appellant was not a reasonable objective response in the circumstances that the alleged offender believed them to be. This is because the alleged offender could have removed himself from the incident, by walking or running away or resolve the incident other than by engaging in the actions I have referred to earlier, which involved physical contact to the appellant.
Findings on s 39 and s 41 of the Act
Based upon my findings s 39 of the Act did not apply to the appellant at the relevant time. This is because the appellant was not committing a separate offence when injured as a consequence of the commission of an offence against her, but instead was acting in accordance with s 244 of the Criminal Code.
I also need to consider whether in terms of s 41 of the Act it is just to refuse to make a compensation award or reduce the amount that would otherwise have been awarded. This applies where, as is required, regard must be had to the behaviour, condition, attitude or disposition of the victim that contributed, directly or indirectly, to the victim's injury. In my opinion, after doing so, I do not think it is just to refuse to make a compensation award or reduce the amount that would otherwise have been awarded. This is because although the appellant damaged the car of the alleged offender and acted aggressively towards him, it was in the context of her acting lawfully in accordance with s 244 of the Criminal Code. In that context I do not think it would be just to refuse to make a compensation award or reduce the amount that would otherwise have been awarded.
Causation
The next issue to consider is whether the claimed injury occurred and whether it occurred as a consequence of the commission of the alleged offence. In making the assessment about causation, ordinary tortious principles apply.[24] Therefore whether there is the required causal connection is a question of fact to be resolved as a matter of commonsense. The causal connection can be made if as a matter of ordinary commonsense and experience the offence is regarded as having materially contributed to injuries or loss.[25] If however the evidence establishes a non‑compensable event had created a propensity to cause an applicant injury or loss and did contribute to the injury or loss an award of compensation must be reduced to take into account that contribution so that the applicant only receives compensation for the compensable offence.[26] In addition an applicant is obliged to mitigate their injury or loss by obtaining reasonable medical treatment for the injuries caused by the offences. The failure to do so should be taken into account in assessing the amount of an award of compensation.[27]
Causation evidence and findings
[24] Martin [82] - [84]; Underwood [87].
[25] Martin [83]; Underwood [87].
[26] Martin [84].
[27] RBF v OSD-S [2004] WADC 97; (2004) 36 SR (WA) 61 [59].
In the submissions of the appellant, she was injured physically and then psychologically injured, with mental trauma continuing to at least six years after the incident. The appellant provided the assessor with a document called a victim impact statement dated 29 February 2020.[28] As summarised in the written submissions of the amicus curiae, the victim impact statement by the appellant, in support of her application, said that the impact of the assault has been:
(a)headaches several times a month;
(b)neck pain;
(c)pain in the shoulder;
(d)collar bones clipping with movement of her arms;
(e)terrible back pain, waking her several times a night;
(f)sleep disturbance; and
(g)nervousness of heavy noises outside her property.
[28] Assessor's papers, page 22.
The appellant's submission about 'mental trauma' was said to be supported by the report of Dr Wong dated 4 October 2023. It was also said to be supported by a report from Mr Augustine Hwee dated 3 May 2024. This report mentioned that prior to the incident, the appellant reported no previous history of PTSD or any notable post‑traumatic anxiety or related symptoms. However, it had been noted in the written submissions of the amicus curiae that there was evidence of such a history. As a result, on my instructions my associate wrote to the appellant's solicitors, with a copy to the amicus curiae, indicating that I would be prepared to receive additional information on that issue including a supplementary report by Mr Hwee. Consequently, an additional report was provided by Mr Hwee dated 2 August 2024.
In the submissions of the amicus curiae it was noted that:
(a)At the time of the alleged offences, in a referral letter to the emergency department, the treating doctor noted the appellant's history of knee pain, back pain, anxiety disorder, PTSD and lumbar spondylosis;[29] and
(b)A report provided by Lorna Joy, of Joy Counselling, was provided on 26 January 2020 following a total of 16 sessions with the appellant. However, the referral to Ms Joy did not set out any history of anxiety disorder or PTSD. Further, the history is not set out in the report, and it is unclear whether the author was aware of any pre-existing history for the purposes of determining whether any PTSD was caused by the alleged offending. Additionally, it was pointed out that Ms Joy is a psychologist and not a psychiatrist. And there was nothing in her reports which referred to the circumstances of the appellant's PTSD diagnosis or any assessments that were performed.
[29] Assessor's papers, page 190.
The documents before me include a referral to the Emergency Department of the Armadale Kelmscott Hospital from Dr May Zin Dennis of the Burslem Medical Centre. It refers to the appellant being assaulted in her driveway and being pushed, 'landed on the ground' with head, back and right shoulder causing dizziness and pain and nausea. It notes in the past history a 2008 bike accident where the appellant was hit by a car whilst riding a bike and also another separate bike accident in 2008. It records PTSD in 2009 post‑bike accident and further an anxiety disorder in 2010. It also records lumbar spondylosis in 2015 and a disc bulge in 2020.
The appellant presented to the Armadale Hospital Emergency Department the day after the assault. There are records of the notes of the hospital in the Assessor's papers.[30] The appellant presented at the hospital at 12.14 pm and was discharged by 3.46 pm and there were no other medical interventions.[31] Patient records by the hospital refer to the appellant receiving a blunt injury to her head when she was pushed over the previous day and fell back, hitting her head on concrete. It said that on 4 May 2017 she had ongoing pain to the back of her head, shoulder and clavicle and was nauseated. There were complaints of headache, neck stiffness and pain on movement of the neck. The hospital notes say there was a small area of erythema on the head/scalp. But there was no evidence of any depressed skull fracture. After a CT scan of the head and neck, there was found to be no evidence of intracranial, skull vault or cervical spine trauma.
[30] See Assessor's papers, pages 185, 217, 218.
[31] Assessor's papers, pages 217 - 218.
There are also reports from Dr Gafari, a chiropractor from the Burslem Medical Centre, dated 30 May 2018 and 21 February 2020.[32]
[32] Assessor's papers, pages 161 and 162.
The 30 May 2018 report says the appellant presented to the clinic on 26 May 2017 with blunt injury of the head, shoulder and clavicle pain. The report says the symptoms were the result of the assault she was subjected to. The report mentions treatment of soft tissue therapy, trigger point therapy, biopuncture, dry needling, mobilisation and gentle stretching. The report says that the appellant is still symptomatic and will need further treatment.
The report from Dr Gafari dated 21 February 2020 refers to the appellant attending at the clinic on 8 November 2019. The report says she presented with lower back pain, upper back pain and bilateral collar bone pain. The report says the pain was persistent after the assault she was subjected to earlier in 2017. The report says that the appellant was treated in the same way as previously described. The report says the appellant attended the chiropractic treatment five times and showed some improvement. However, it says the appellant required ongoing treatment at least twice a month. There is no updated report to say whether this occurred and how long it continued.
As mentioned above, the appellant's solicitors have also provided a report from Dr Wong of the Ranford Medical Centre dated 4 October 2023. As submitted by the amicus, it appears that Dr Wong had not been the treating doctor of the appellant at the relevant time. However, it seems that the report has been based upon the medical notes of the medical centre and therefore in my opinion I am entitled to give weight to the report. The report referred to information the appellant provided about an assault in her driveway and front yard which occurred on 3 May 2017. The report says the appellant said that during the assault she was repeatedly slammed into the driveway, making impact with the concrete surface with multiple areas including hips, shoulders, back and head on both sides. The report says that the appellant had said she was independent and mobile prior to the attack but afterwards was restricted to using a four wheeled walker for mobility. There is no indication in the report as to how long this lasted. The report says the appellant described severe pain after the assault which limited her ability to function. This included right shoulder and bilateral hip pain. The report said the appellant became poorly functional after the attack with difficulties completing tasks around the house and in recreational activities. The report also said the appellant reported nightmares since the attack for years and had counselling until the COVID‑19 outbreak made the appointments difficult. The report said that since the assault, the appellant found herself becoming fearful of opening her front door and felt threatened by going outside. It was also reported the appellant had flashbacks of the assault and feels constantly anxious. The report said the appellant had informed the medical practice that she had also been apprehensive around males after the assault. The report said the appellant reported being anxious and having low mood, poor sleep, low energy, loss of appetite and sluggish movement. The report referred to investigations that established injuries to the right shoulder and other associated injuries. The report said these can be caused by the application of large amounts of force across the related joints and were consistent with having been caused by the assault as described by the appellant. The report said these injuries could cause significant functional impairment as described by the appellant. The report says the investigations also revealed arthritis of the right shoulder and both hips. However, the report says the appellant described the arthritis as asymptomatic prior to the incident but the joints had become stiff and painful after the assault. The report said the psychological symptoms described are consistent with PTSD suffered from the assault. The report also said the appellant displayed symptoms of anxiety and depression which had not been present prior the assault. It was said that these conditions can cause significant functional impairment and could significantly affect her relationships with those around her and making it more difficult to engage in leisure activities. The report referred to referrals made, including one to Ms Tracey McCracken to assist with psychological trauma. There is no evidence before me as to whether counselling from Ms McCracken occurred.
Provided with the report of Dr Wong is the Western Radiology assessments of the appellant. It appears that these assessments are those referred to in the report of Dr Wong but they were made on 20 July 2023. They are therefore of limited assistance in assessing the injuries caused by the assault.
Also included in the papers before me is a report from Mr Fabian Yeo of Canning Vale Physiotherapy Centre dated 22 September 2023. This refers to the appellant having attended four treatment sessions between 16 August and 20 September 2023. This refers to treatment of her right knee and hip injuries. It says that she has severe OA which are causing her much grief.[33] The report refers to the assessment and treatment of her hip and knee. However, the report is unclear as to whether these medical complaints were caused by the assault and therefore the contents of the report is of limited assistance.
[33] I infer that OA refers to osteoarthritis.
There are before the court two reports from Ms Lorna Joy from Joy Counselling. The letterhead to the reports say that Ms Joy is a registered psychologist. However, the reports do not contain any additional information about when Ms Joy became qualified or her experience in providing medico-legal assessments. The reports are dated 8 March 2019 and 26 January 2020. The January 2020 report says that Ms Joy had seen the appellant for a total of 16 sessions since 6 June 2018. The March 2019 report by Ms Joy said that she had been asked to provide a report about the effect that the assault from 3 May 2017 had on the appellant. The report says that the appellant was 'totally consumed by the effect of the trauma as a result of the assault'. The report says that the appellant is definitely suffering from PTSD as a result. The report says the appellant is fearful of engaging in everyday living experience and experiences fear at the slightest noise or any change in her everyday surroundings. The report says the appellant has limited her activities to absolute essentials and has lost trust in people. The report says some of her fear seems to have become more globalised as during a recent session late last year attempts were made to help the appellant relax, including by meditation. The report says the assault has shaken the appellant's 'very core and has affected her confidence and although she was until the incident an able, highly motivated and very intelligent women it is unlikely that she will be able to resume a productive and fulfilled life'. The report says the appellant will require ongoing counselling and access to a trauma psychologist to assist her. There is no evidence before the court that this occurred.
The January 2020 report provided an update. The report says that although the appellant had made some progress she still presents as a person experiencing severe PTSD. The report says this is evidenced from the findings of the PTSD symptom scale (PSS) where the appellant scored 38 (0-51) sand where cores 'over 13 suggested likelihood of PTSD'. The report says this indicates the appellant is suffering from symptoms of post‑traumatic stress and adjustment disorder. The symptoms were said to be evidenced by:
•a stressor in which the appellant was exposed to physical injury;
•avoidance in which she is more inclined to avoid people, especially men who trigger her fear;
•negative alterations in which the appellant sees her world as unsafe;
•arousal and reactivity in which the appellant has difficulty concentrating on simple tasks; and
•functional significance as demonstrated by the appellant fearing contact with others and withdrawing and only going out if she has no other choice.
The report says the appellant has made some progress but will require ongoing therapy.
To me, there is a significant issue as to whether the appellant suffers PTSD caused by the assault. It was in this context that the appellant was granted leave to submit further medical information and in particular a supplementary report by Mr Hwee. As stated, Mr Hwee's initial report was dated 3 May 2024 and the supplementary report dated 2 August 2024.
Mr Hwee is a clinical psychologist. He says in his supplementary report that he completed a Bachelor of Arts (Hons) and a Master of Psychology (Clinical) at the University of Western Australia. The dates of the qualifications are not specified. However, it says he has been practising since 1995. The reports also say he is a member of the Australian Psychological Society and an approved provider of Medicare funded psychological therapy services. His reports do not refer to any particular experience in making medicolegal assessments of people.
The appellant was referred to him for psychological therapy services by her GP Dr Wong on 2 February 2024. She attended her first appointment on 16 February 2024 and had since, at the time of the writing of the first report, attended a further session. This information was repeated in the supplementary report. That report referred to the most recent contact with the appellant being by a telehealth service on 20 June 2024. Therefore, the appellant has engaged with Mr Hwee on two or possibly three occasions, it being unclear in this part of the report whether the telehealth consultation was the second attendance referred to, or an additional one. It seems most likely however that from the dates referred to in the report there were a total of three attendances including the telehealth consultation.
In addition to the supplementary report from Mr Hwee, the appellant's solicitors advised my associate, post‑hearing, that they had obtained information that the appellant was a patient of the Carousel Medical Centre from 2008 to 2014. Records were requested by the appellant's solicitor and received on disc. This was then provided to the court. The appellant's solicitors said that those records may be relevant because they refer to the period prior to the 2017 incident. However, no particular submissions were made about those records. It was noted by the solicitors however that there was some reference to PTSD in the records. There is also a letter dated 13 July 2009 from Dr Leavy of Carousel Medical Practice to the Insurance Commission of Western Australia. This refers to the appellant's involvement in a motor vehicle accident on 11 April 2009. Apart from referring to physical injuries the report includes a statement that the appellant has been 'traumatised quite badly physiologically as a result of this accident'. There is also a letter from Dr Leavy of the Carousel Medical Centre to the Insurance Commission of Western Australia dated 28 January 2010. This also refers to an accident on 11 April 2009 in which a '4WD struck her, she suffered a laceration to her left knee with bruising of her left rib cage and left elbow'. The letter refers to the physical injuries and limitations occasioned by the appellant. The report says that 'normally I would have thought that [the appellant]'s claim could be considered for finalisation however her progress has been slow and also the psychological trauma she suffered may have been more intense than I realised'.
The Carousel Medical Centre records contain information that the appellant was knocked off a bike on 11 April 2009. A letter dated 16 April 2009 refers to her being involved in two motor vehicle accidents while riding her bike. A letter from Carousel Medical Centre to the Insurance Commission of Western Australia refers to an 'understanding' that the appellant was 'involved with a motor vehicle while crossing a pedestrian crossing on the 19th January 08'. This letter is dated 13 July 2009. However, a surgery consultation record says the appellant was knocked off her bike on 19 January 2008. In my opinion, consistent with other records in the file, this is the most likely occurrence. The records of these two accidents include notes of physical injuries not presently relevant.
A Depression/Anxiety Disorder Management Plan dated 21 July 2012, specifies 'current problems' as 'depression/anxiety' and 'involved two accidents'.
An earlier letter from Ms Maggie Orum to Dr Leavy of the Carousel Medical Centre referred to the appellant having 'motor vehicle' crashes on 19 January 2008 and 11 April 2009. This letter was dated 16 May 2011. The letter said the appellant had been assessed by clinical interview and psychometric testing, which was described. The 'treatment focus' was via cognitive behaviour therapy for PTSD, depression and anxiety. Then followed a summary of findings. These included, relevantly, 'serious depression' over the last 12 months which was worsening, with a description of the symptoms. These included difficulty with sleeping, lack of energy, tearfulness, anxiety, fears and worry about future disability. Ms Orum also said following interview and application of the 'Davison Trauma Scale' there was 'a very high degree of probability of' PTSD'. The appellant's symptoms of PTSD were described as feeling disconnected, social overreactions, avoidance of cycling, anger and tearfulness when discussing the accidents.
An additional letter from Ms Orum to Dr Leavy dated 4 July 2012, said she had seen the appellant on six occasions for treatment for depression, anxiety and PTSD. The letter said the appellant 'continued to be troubled by depression, stress and anxiety symptoms'. An additional four sessions of psychological testing was recommended. There is in the file no additional reports from Ms Orum.
There is in the file a later letter from Ms Nicole Loseby, registered psychologist to Dr Modur of Carousel Medical Centre, dated 14 July 2014. This referred to a first counselling session for 'interpersonal distress' with symptomology consistent with the Diagnostic and Statistical Manual 5 (American Psychiatric Association) (DSM-5) for significant anxiety and depression. The letter said this likely related to 'workplace bullying [although] … further historical information was required'.
The first report of Mr Hwee says that the appellant reported no past history of any significant psychological trauma. That statement appeared to be at odds with the other information before me at the hearing. That was a major reason why the appellant was permitted to submit a supplementary report from Mr Hwee. However, the subsequent information received from the Carousel Medical Centre is also relevant to causation issues. The information is summarised above.
In his first report, Mr Hwee outlined the appellant's account of the incident on 3 May 2017 as reported to him. He also answered a question about how the incident had affected her. Mr Hwee referred to the report by the appellant that during the conflict she was physically assaulted by the alleged offender and at times feared for her life as he was holding a ladder which she believed he might use to assault her. Mr Hwee referred to the appellant's report that she was pushed to the ground and injured when she fell. The report said that following the incident the appellant had reported she was feeling highly anxious and distressed, and that this affected her actions and interactions with men.
Mr Hwee was also asked for his conclusion upon clinical examination and diagnosis of any possible resulting psychological conditions, for example depression, anxiety and PTSD. Mr Hwee said that the appellant presented with symptoms of anxiety consistent with a diagnosis of PTSD according to the DSM-5. Mr Hwee said that the appellant presented with a range of psychological symptoms meeting the diagnostic requirements. However, Mr Hwee did not specifically outline what the symptoms were which met that diagnosis. Nor did he test the symptoms expressed by the appellant in any particular way. Mr Hwee also said that the appellant had reported that her symptoms had persisted since the incident in 2017 and not improved significantly over time.
Mr Hwee then repeated that the appellant had reported no previous history of PTSD or any notable post‑traumatic anxiety or related symptoms. I have already referred to this aspect of the report. The report of Mr Hwee then said immediately afterwards that the symptoms described by the appellant appeared to be causally related to the incident on 3 May 2017, as described. The report then said, 'as such, I am confident in my opinion that the post traumatic anxiety symptoms that she describes are caused by the event she describes occurring on that day'. I note that this causation opinion is at least partly dependent upon the appellant's report of no previous history of PTSD or notable post‑traumatic anxiety or symptoms. As set out there is some tension between this report by the appellant to Mr Hwee and the conclusion reached by Mr Hwee.
The report of Mr Hwee then referred to the appellant's report that she had been seeing a psychologist, Ms Joy. It was said that the appellant reported the counselling to be supportive although it had not made any significant impact upon her symptoms of anxiety related to the May 2017 event. It was then said that based upon the history of the appellant and the current severity, the appellant's PTSD was likely to be chronic and to persist requiring specific psychological trauma therapy. It was said that this would be expected to require psychological treatment over the next one to two years. It was said that absent this, it was likely that the PTSD symptoms would continue for the foreseeable future. The report of Mr Hwee did not set out any opinion as to the number of psychological appointments the appellant would require over that period, nor as to the cost of the same. If that future treatment of the applicant is to be taken into account in an assessment of compensation for the appellant, it can and must be subsumed in an assessment of general damages.
As stated, the supplementary report of Mr Hwee was dated 2 August 2024.
The supplementary report responds to a number of questions asked by the appellant's solicitors. Mr Hwee reports that during an 'interview' on 11 April 2024 the appellant said she was experiencing a range of psychological symptoms following the assault in 2017 and that this was consistent with a diagnosis of PTSD. He reports that the symptoms have persisted to the present day. The report does not say specifically what these symptoms were and how they are consistent with the diagnosis referred to.
Mr Hwee's report also said that, at the time of his interview with the appellant on 11 April 2024, she reported no previous history of psychological trauma. He reports that in a subsequent interview she again did not recall any such experience, even when prompted to consider whether she had previously experienced a bicycle accident. Mr Hwee reports that, following the interview and after some discussion with a friend, the appellant did recall having a bicycle accident many years earlier. Mr Hwee reports that from (unspecified) medical notes the appellant was diagnosed with PTSD on 16 May 2011 by clinical psychologist Ms Maggie Orum. This related to two bicycle accidents in 2008 and 2009. Mr Hwee's report says that in interview, the appellant denied this had any long-term impacts upon her psychological wellbeing and there was no indication of any ongoing psychological symptoms related to the bicycle accidents at the time of the alleged assault in 2017. Mr Hwee said that, based upon information provided by the appellant, the assault of 2017 resulted in a range of psychological symptoms, being primarily fear of further assault and distressing recollections of the incident. Mr Hwee reported that these did not appear thematically related to the bicycle accidents experienced approximately eight years earlier. Mr Hwee reported that it was reasonable to conclude that there was no ongoing lasting impact from the bicycle accidents at the time of the assault in 2017.
Mr Hwee reported that as stated in his earlier report of 3 May 2024, the appellant says she experiences a range of psychological symptoms following the 2017 incident. Mr Hwee reported that the post‑trauma anxiety symptoms 'acknowledged' by the appellant appeared solely related to the alleged assault in 2017. Mr Hwee's report also says that the appellant:
… reported no particular use of bicycles prior to the reported incident in 2017. Whilst it is not possible to ascertain the exact reason for this change it is conceivable that her advanced age and physical incapacity would preclude her from engaging in bicycle riding at that time in her life.
It is clear from its terms that this opinion proffered by Mr Hwee is speculative and therefore I do not take it into account. This is not to imply any criticism of Mr Hwee for proffering this opinion.
Mr Hwee then reiterates that the post‑trauma anxiety symptoms reported by the appellant seem most likely related to the alleged assault in 2017. He reiterated that there were no specific psychological symptoms seemingly connected to the bicycle accidents which occurred in 2008 and 2009.
Mr Hwee recorded a question of whether the diagnosis of PTSD and anxiety constituted a permanent disability of psychological harm arising from the 2017 incident or earlier incidents. Mr Hwee replied that the psychological symptoms of PTSD reported by the appellant following her assault of 2017 have persisted for approximately six years to the present time, in spite of psychological treatment. He then said that:
[W]hile it is hoped that with further treatment she may receive some improvement based upon her history it is reasonably believe [sic] that her symptoms will persist for the foreseeable future.
Again, the nature, extent and cost of the further treatment is not specified. In answering the final question asked of him, Mr Hwee reiterated that the 'current diagnosis of post-traumatic stress disorder is directly related to her reported physical assault of 2017'.
I have concerns as to the extent to which I can give weight to the opinions expressed by Mr Hwee as to whether and the extent to which the appellant suffers from PTSD caused by the assault.
In Re ZD[34] I gave detailed consideration to the extent to which the court could give weight to the opinion of a psychologist, as opposed to a psychiatrist, in providing a diagnosis of medical conditions like PTSD.[35]
[34] Re ZD (pseudonym initials) [2024] WADC 42 (Re ZD).
[35] Re ZD [122] - [130].
Determining the extent to which the court can give weight to opinions upon medical conditions by a psychologist is a fact specific exercise. However, in Re ZD, I noted, although the psychologist's report of the relevant person was, not surprisingly, based in part upon information received from that person, there was also a mental status examination, application of the Beck Anxiety Inventory, the Beck Depression Inventory‑II and PTSD checklist contained in DSM‑5. The psychologist reported that the Beck Anxiety Inventory score of the relevant person was of a severe level of anxiety. The psychologist also reported that the Beck Depression Inventory‑II indicated a severe level of depression. With respect to the PTSD checklist, the psychologist said the score indicated that the relevant person would be likely to meet the threshold of a diagnosis of PTSD although further clinical review and investigation would need to confirm the diagnosis. The reports of the psychologist noted that he had been asked whether, in his opinion, the relevant person suffers from mental and nervous shock, as required in order to make the relevant finding being then considered under the Act. The psychologist reported that the relevant person met the DSM‑5 criteria for persistent depressive disorder and anxious distress.
The psychologist in Re ZD had similar qualifications to Mr Hwee. He also said that he had worked as a clinical psychologist for 14 years. The psychologist said he was working in a private capacity with teenagers and adults 'across the spectrum' and had previously worked for a number of years in the public sector in Western Australia. I decided that given the qualifications and experience of the psychologist and the stated basis of his opinions, including by reference to the tests I referred to, I should receive and give weight to the opinions expressed in his report about the relevant person.[36]
[36] Re ZD [141].
The reports of Mr Hwee can be distinguished from those of the psychologist considered in Re ZD. Mr Hwee did not record any tests undertaken by the appellant. His reports do not indicate with any specificity the particular symptoms or circumstances of the appellant which led him to conclude that she suffered from PTSD. He also did not explain his particular experience in treating or assessing patients with PTSD. I have therefore given anxious consideration to whether I can place weight upon the opinions expressed by Mr Hwee.
After doing so however, I have concluded that I may place weight on the opinions expressed by Mr Hwee, to the effect that the assault in 2017 has caused and continues to cause the appellant to suffer from PTSD. This conclusion is based upon Mr Hwee having been a practicing clinical psychologist since 1995. His opinions are expressed after having two or three consultations with the appellant. Although the basis for his conclusions could have been expressed with greater precision, what the reports say are, in the circumstances, in my opinion sufficient for me to give weight to his opinions. Although there is no report of any specific tests being administered to the appellant, Mr Hwee does refer to the DSM‑5 specifications for a PTSD diagnosis. I infer, given his qualifications and experience, that Mr Hwee is in a position to know of, understand and apply the DSM‑5 criteria. I also take note of the fact that the amicus curiae did not submit that it would be inappropriate to act upon the opinions expressed by Mr Hwee in his reports. The contents of Mr Hwee's reports are also supported by the reports of Dr Wong and Ms Joy. Although Ms Joy is also a psychologist and does not state her experience, as noted above, she did see the appellant for counselling and reports her findings. She also based her conclusion as to PTSD based upon the analysis she referred to, as against a PTSD symptom scale.
Accordingly, on the basis outlined, I do find that the appellant has suffered from PTSD because of the assault in 2017. I also find, therefore, that any award of compensation includes the mental and nervous shock suffered by the appellant, in accordance with s 35(2) of the Act.
Compensation award
The next issue is to assess the nature and extent of the appellant's damages based upon her physical injuries and PTSD, caused by the assault upon her. These amounts can be included in any compensation award.
I accept that there were physical injuries caused to the appellant by the assault. However, there is no evidence that these injuries were particularly serious or had any particularly longstanding impact upon her. In assessing the physical injuries I have also had regard to the reports summarised above; from the Armadale Kelmscott Hospital, Dr Gafari, Dr Wong and Mr Yeo. I note that there is limited evidence of long‑term causation of serious physical injury from the 3 May 2017 assault. The majority of the evidence before me is about the assault causing PTSD. I have already referred to this at length; and will mention again later.
There has been no evidence provided of past or future economic loss. I therefore cannot make any finding which would support compensation based upon these 'heads' of compensation or damages.
There is evidence of past medical and other expenses paid by the appellant as a consequence of the injuries suffered. These have been helpfully compiled in the submissions of the amicus. There are treatment expenses from Dr Gafari the chiropractor dated between June 2017 and November 2017 in the total amount of $470. It appears, and I find, that this treatment arose out of the injuries suffered by the appellant due to the assault. Therefore the expense is compensable.[37] There is also the expense of medical reports obtained from Burslem Medical Centre dated 29 September 2017 and 6 June 2018 in the total amount of $325. There is also the expense of a report from Dr Wong of Ranford Medical Centre in the amount of $302.50. These expenses should also be included in any amount of compensation.[38]
[37] Section 6(2) and s 17(2) of the Act.
[38] Section 6(2) and s 17(2) of the Act.
The appellant also provided to the Assessor a Smartrider card transaction report which summarises travel between 10 and 29 January 2018. The amount of money recorded as being spent on the report is $3.60. However there is no indication that the travel related to medical treatment. I therefore do not think this amount is compensable.
In her initial application form the appellant also claimed:
(a)442.4 km of travel to counselling, medical centres and the hospital;
(b)33.6 km of travel to Gosnells Community Legal Centre; and
(c)57.6 km of travel to the Armadale Magistrates Court.
I do not regard that item (c) should be compensable as it relates to travel to the Magistrates Court and this would clearly be in relation to the restraining order application. However in my opinion the amounts of 442.4 km of travel to counselling, medical centres and the hospital and 33.6 km of travel to the Gosnells Community Legal Centre should be compensable. That is a total of 476 km. I infer that the travel to the Gosnells Community Centre was for advice in relation to the claim for Criminal Injuries Compensation. Therefore, in my opinion it is within the definition of 'loss' in s 6(2)(a) of the Act. As quoted earlier, this paragraph of the Act defines 'loss' as including:
(2)In the case of a victim who is injured, loss means -
(a)expenses actually and reasonably incurred by or on behalf of the victim -
(i)that arise directly from; or
(ii)that arise in obtaining any report from a health professional or a counsellor in relation to,
the injury suffered by the victim ...
In my opinion the travel costs to the Gosnells Community Centre are an expense actually and reasonably incurred by the appellant arising directly from the injury suffered by her.
The appellant has not provided any basis upon which the travel expenses should be calculated. However, it appears that travelling took place between the date of the assault and the application made to the Assessor on 29 April 2020. The Australian Taxation Office provides amounts allowed for travel, per kilometre, for the purpose of deciding upon appropriate taxation deductions. In my opinion it is appropriate to use that method of calculation in this case.[39] Given the uncertainty about the dates when the travel occurred, I apply, on the basis of a rough average, the 2018 rate allowed by the Australian Taxation Office. This amount was then $0.68 per kilometre.[40] The total of this aspect of the claim is therefore $323.68.
[39] See ReZD [206].
[40] See internet reference Australian Taxation Office, 'Cents per kilometre method' (Web Page) >
The appellant also submitted receipts for repair of the gutter and roof, replacement of USBs and speakers and printing at the library. In my opinion these claims do not meet the definition of loss under the Act and are not compensable.[41]
[41] See definition in s 6 of the Act.
Therefore, the total amount for past expenses to be allowed if the appeal is permitted to proceed is $1,421.15
This leaves me with an assessment of general damages. This includes the physical injuries referred to earlier. As also stated earlier within this assessment, I take into account that the appellant is likely to require ongoing psychological assistance referred to by Mr Hwee. As earlier stated, as there is no specification of the nature and extent or cost of this treatment, my assessment of it is subsumed into a general damages assessment. But I take into account in my assessment the nature and the extent of the PTSD as referred to above, and in particular my assessment of and reliance on the reports of Mr Hwee.
I was not provided with any like cases which I could take into account in assessing the appropriate amount of an award of general damages. It is of course a fact specific and somewhat intuitive assessment. The appellant's date of birth is 14 May 1948. In making the assessment in this case, I take into account that the assault occurred at the home of the appellant where she was entitled to feel safe. As stated, I accept that the assault caused physical injury to the appellant. I accept that it would have been a frightening and shocking thing for her to suffer at the time. Also as stated I accept that she has had and continues to have PTSD as a result of the assault upon her. It has required psychological assistance and is likely to do so into the future.
Mitigation of loss
In relation to mitigation the submissions of the amicus refer to the following. In a letter from Dr Mark Jenkins to Ms Sharon Duane who appears to be a psychologist, dated 9 June 2017, it says the appellant would benefit from six sessions under a health care plan. The letter says the appellant has developed anxiety and depression in response to a recent assault by a contractor. The referral was for an opinion and management. However, there is no evidence establishing the appellant was treated by a psychologist before meeting with Ms Joy. Further the March 2019 report of Ms Joy recommended the appellant access a trauma psychologist. There is however no record of her doing so. Finally, in Granada Medical Practice notes dated 25 June 2019 in a page entitled BOIMC Mental Health 3 Step Process and in a section dealing with Relapse Prevention Plan it is noted that the appellant should 'continue psychology sessions, consider medication but [patient] not keen'.[42] This plan was completed by Dr Jenkins. It is unclear whether this records the appellant being 'not keen' on continuing psychology sessions or medication. I therefore do not think this note is evidence showing any failure to mitigate loss. In any event the notes also include a letter to Ms Joy dated 25 June 2019.[43] This refers to the appellant being on a new '2700 plan and would benefit from starting a further 6 sessions'. The appellant has attended Ms Joy for 16 sessions from June 2018, as noted in Ms Joy's January 2020 report. It therefore seems that the appellant did continue with psychology sessions as recommended in the care plan.
[42] Assessor's papers, page 145.
[43] Assessor's papers, page 141.
I also take the other information mentioned into account in assessing general damages. They indicate that there could have been a lessening of the appellant's current psychological symptoms if she had engaged in the earlier counselling referred to.
Quantum of compensation
Overall, in my opinion the appropriate award of general damages in any award of compensation is $12,000.
I have therefore made a decision in answer to issues (b) and (c) as identified by the appellant's solicitors which include issues 4 and 5 as identified by the amicus.
Leave to commence appeal out of time
It remains therefore to consider whether the appellant should be granted leave to commence the appeal out of time. In determining this issue, I note that the appeal was commenced a significant period out of time. However, I also take into account as particularly relevant that the appeal has merit, and if leave to commence the appeal out of time is granted, the appeal will be successful and lead to an award of compensation in excess of $12,000. I also note there is no disadvantage to any respondent if leave is granted to commence the appeal out of time. The amicus has been able to provide fulsome and very helpful submissions.
Relevantly, s 55(3) of the Act requires an appellant to commence an appeal within 21 days after the date of an assessor's decision. However, the court has a discretion to extend time if it is just to do so, pursuant to s 55(4) of the Act. A discretion to extend time is to enable the court to do justice between the parties and may be exercised in favour of an appellant where strict compliance within the law will work an injustice upon them.[44]
[44] Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459 (McHugh J); Re McHenry [2014] WADC 92 [24] (Herron DCJ); and see also Underwood [26] and [27].
Gething DCJ, as his Honour then was, in Underwood referred to four factors relevant to the discretion to extend time as considered by the Court of Appeal in Simonsen v Legge.[45] These factors are:
(i)the length of the delay;
(ii)the reasons for the delay;
(iii)the prospects of the applicant succeeding in the appeal; and
(iv)the extent of any prejudice to the respondent.
[45] Simonsen v Legge [2010] WASCA 238 [8].
I have already referred to factors 1, 3 and 4. The length of the delay is approximately two years. I have found that the appellant will succeed in the appeal if leave is granted and there is no prejudice to any respondent if that occurs.
The appellant has provided two affidavits explaining the delay in commencing the appeal. These are sworn 14 August 2023 and 19 February 2024. They are summarised in the written submissions provided on behalf of the appellant. At the time of the Assessor rejecting the appellant's application she was 73 years of age and was still receiving treatment for the trauma received as a result of the offence. Her first language is not English. At the time of the refusal of the appellant's application she was advised by a legal centre. The appellant asserts, and there is no contradiction of this, that the legal centre advised that they could not help any further when the Assessor's decision to reject the application was made. In her affidavit sworn 19 February 2024,[46] the appellant says that apart from her then‑solicitor expressing surprise that the claim had been rejected, there was no fulsome explanation of the rejection. The appellant also asserts that she was not provided with any explanation of the appeal process and no referral to another legal centre or solicitors who could assist the appellant to take the matter any further.
[46] Appellant's affidavit sworn 19 February 2024, page 29, par 5.
The appellant's solicitors also refer to a letter the appellant wrote to the Assessor on 1 June 2021. It is argued that the behaviour in writing to the Assessor for a reconsideration highlights confusion that the appellant felt and a deficiency in obtaining prior advice about the appeal process.
The submissions of the amicus express no submission on whether it would be just to allow the appellant to commence the appeal out of time. However relevant information and submissions are provided. The amicus contrasts the appellant's position to that of the appellant in EM v CL[47] where the court allowed the appeal to be commenced after 21 days. There, however the delay was relatively short and the appellant was an Aboriginal woman who lived in a remote community in the East Kimberley. English was her second language and she had moved between various places where her sister lived. She had no fixed place to live in the months leading up to the appeal. Additionally, the appellant had to borrow a telephone to contact her lawyers and her lawyers lodged the appeal as soon as they received her instructions. By contrast, the amicus notes that the delay in this case is significant. The amicus curiae also noted that the appellant has written a number of letters in English including a letter about the police investigation, a victim impact statement and letters to the Assessor.[48]
[47] EM v CL [23] - [26] (Burrows DCJ).
[48] See Assessor's papers, pages 40, 22 and 102.
Additionally, on 17 June 2021 the Assessor wrote directly to the appellant at her personal email address. In that letter the Assessor advised the appellant that any person dissatisfied with a decision could lodge an appeal with the District Court within 21 days.[49] The appellant was provided with a telephone number to contact should she wish to enquire about lodging an appeal.
[49] Assessor's papers, page 116.
The appellant's affidavit sworn 19 February 2024 did not include any explanation of the circumstances in which she engaged her present solicitors and when this occurred. This issue was covered to some extent in the affidavit sworn on 14 August 2023. This affidavit was made a week prior to the filing of the notice of appeal. Without specifying a particular date, in the affidavit sworn on 14 August 2023 the appellant says that recently she came to discuss with a 'man from the church' as to how she obtained injuries after he noticed that she was in pain. That man suggested the appellant speak to a solicitor he knew who might be able to help. These details were provided and as a consequence the appellant wrote to the solicitor; who I infer is the appellant's present solicitor. The solicitor advised the appellant that the time for appealing was well past. The advice was that it would not be easy to appeal because of the length of time that had past since the Assessor's decision, but it would be up to the court to decide whether there would be an extension of the time to appeal. The appellant says she then instructed her solicitor to 'go ahead and make the appeal'.
In my opinion the submissions of the amicus have some cogency and, therefore the explanation for the delay in commencing the appeal is not particularly persuasive.
In the end however, applying the relevant tests, I do conclude that it would be just to extend the time for instituting the appeal. The main reasons for this are the nature and extent of the mental health injuries which were, and continue to be, suffered by the appellant, the fact that no respondent has been prejudiced by the late institution of the appeal and, most importantly, that if the extension of time is granted, the appeal will be successful.
Orders
Accordingly, the orders of the court will be to allow the appeal to be commenced on 21 August 2023, allow the appeal, set aside the decision of the Assessor and award an amount of compensation of $1,421.15 for past expenses and $12,000 general damages making a total of $13,421.15.
Costs
There will be no costs order as there has been no unsuccessful party to the appeal.[50]
[50] Section 56(2)(d) of the Act.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
HM
Associate to Judge Ritter
27 FEBRUARY 2025
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