Re Preston - [2014] WADC 16

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: RE PRESTON [2014] WADC 16

CORAM: EATON DCJ

HEARD: 17 JANUARY 2014

DELIVERED : 5 FEBRUARY 2014

FILE NO/S: APP 87 of 2013

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

BETWEEN: ADRIAN CHADD PRESTON
Appellant

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :R GUTHRIE
File No  :CI 000787 of 2013

Catchwords:

Criminal injuries compensation - Appeal from dismissal of claim - Alleged offence - Whether appellant satisfied burden of proof

Legislation:

Criminal Code
Criminal Injuries Compensation Act 2003
District Court Rules 2005

Result:

Appeal allowed
Appellant awarded $18,225.00

Representation:

Counsel:

Appellant: Ms J H Craig
Amicus Curiae : Ms C E Brandstater appeared for the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant: Shine Lawyers
Amicus Curiae : State Solicitor for Western Australia

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

BAS v Estate of NAS [2000] WASCA 270
Kaporonovski v The Queen (1973) 133 CLR 209
S v Neumann (1995) 14 WAR 452

EATON DCJ: The appellant was born on 12 November 1987. On 21 October 2011 he attended a nightclub in Rockingham called 'Vibe', arriving there at about 9.30 pm in company with his friend, Gavin Braam, and another known only as 'Jamie'. In a statement given to police on 26 October 2011, the appellant said that he had consumed 'throughout the night' six stubbies of Jack Daniels bourbon and two shakers of 'Illusions'. I assume that the Jack Daniels drinks were mixed drinks being, in all probability, stubbies of bourbon and coke. I assume that the 'Illusions' were some form of combination of liqueur and other mixers, otherwise known as 'shooters'.
At about 1.00 am the appellant was on the dance floor when he noticed his friend Jamie wrestling with another patron. The other patron's friends came to his assistance. The appellant went to assist Jamie. He grabbed hold of a male, one of Jamie's assailants, and pushed him away. That person then attempted to punch the appellant but failed to do so. The appellant took a couple of steps toward the male and punched him with 'a straight right' to his cheek. At that point the appellant was grabbed by a bouncer in the employ of the venue who told him that he would be ejected. The appellant did not resist. He has no recollection of going down the front steps of the premises but did leave. His next recollection was of being woken up in a taxi by his friends Gavin and Jamie. They told him that they did not see what had happened but said that they noticed that he was bleeding from his mouth.
The foregoing summary is derived from the appellant's statement to police dated 26 October 2011. On 25 October 2012 Gavin Braam provided a statement in writing to the appellant's solicitors. In it he confirmed that he, the appellant and Jamie went to the night club on the night in question where they drank alcohol. He said that at about 1.30 am a group of young men were 'play fighting' on the dance floor. Their friend Jamie joined in. The group started to get 'rough' with Jamie and some tried to hit him from behind. The appellant stepped in to stop the fighting and some of those involved turned their aggression toward him. One took a swing at the appellant and missed. The appellant hit that person and bouncers intervened, escorting the appellant from the premises. Mr Braam stayed behind to ensure that Jamie was not attacked again. A few minutes later, an unknown person informed him that his mate (apparently referring to the appellant) was outside 'covered in blood'. He went outside to discover his friend, the appellant, unconscious with blood on his face. He called a taxi and took the appellant back to his home.
The police running sheet reports that the matter was brought to the attention of police on 26 October 2011. On 10 November 2011 a request was made by police to the nightclub management for a copy of the video surveillance footage of the night in question. They were told that it was no longer available, having been recorded over.
It appears from the police running sheet that the appellant may have suggested to police officers on 22 November 2011 that he had been assaulted by the nightclub security staff. He also told police that he was unable to substantiate that claim.
At 10.55 am on 23 October 2011 the appellant presented himself at the emergency department of Fremantle Hospital. Upon examination he was found to have bruising under the right eye and swelling of the right cheek and jaw. He was missing four teeth. An x‑ray of the jaw revealed no fractures of the facial bones or jaw. He was discharged with a recommendation for follow-up in the maxillofacial out‑clinic with a review scheduled for 3 November 2011. He did not attend. Instead, on 26 October 2011, he attended the Epsom Dental Centre in Belmont. From there he was referred to an oral surgeon, Sophie Mougos. She referred him for a CT scan of his facial bones. That occurred on 26 October 2011. She saw him on 27 October 2011.
He was found to have a fracture of the right zygomatic complex, a comminuted maxillary fracture involving a split palate and a right maxillary dento-alveolar fracture.
On 31 October 2011 he underwent open reduction and internal fixation under general anaesthesia at Subiaco Private Hospital. There was a substantial amount of follow up treatment.
On 19 April 2013 the appellant made application for compensation pursuant to the Criminal Injuries Compensation Act 2003 ('the Act'). He sought compensation for an assault by an unknown offender. Section 17 of the Act provides that it applies if an alleged offence is committed but no person is charged with the alleged offence. It provides further that a person who suffers injury as a consequence of the commission of an alleged offence may apply for compensation for that injury and any loss also suffered. An assessor must not make a compensation award in respect of a compensation application made under that section unless satisfied that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the alleged offence.
In response to the application the Assessor wrote to the appellant's solicitors by letter of 22 May 2013 advising that, in his view, the appellant had not satisfied the requirements of s 17 of the Act in that there was no evidence as to how the appellant came to be injured. The Assessor said that his conclusion was a preliminary one. He invited comment as to his view.
The appellant's solicitors responded to the invitation by writing to the Assessor by letter dated 21 June 2013. They submitted that on the night in question there were two separate incidents, the first being the altercation on the dance floor and the second 'when he was assaulted resulting in the injury'. There was an acceptance of the proposition that there was some relationship between the two events. His solicitors pointed to the only evidence as to the appellant's departure from the premises in the company of security staff as being relatively peaceful and cooperative. The appellant's solicitors contended that the appellant had been assaulted during the course of being ejected from the nightclub and that his injuries are evidence of that alleged assault.
The Assessor replied by letter of 3 July 2013 stating, inter alia, 'When he exited the nightclub he must have been engaged in some form of altercation'.
The Assessor asserted that the appellant had 'some obligation to negative the possible defences of self-defence and provocation'. He appears, in that correspondence, to concede the likelihood that the appellant was struck in an altercation. He asserted that the appellant was, however, unable to establish that the blow which caused the injury was not struck in self-defence or in consequence of the appellant's provocative behaviour. The Assessor advised:
Unless you can point to any information which allows me to negative the potential defences of your client’s assailants I remain of the view that your client is unable to satisfy the requirements of section 17.
By letter of 5 September 2013 the appellant's solicitors wrote again to the Assessor, reiterating their submissions in their letter of 21 June 2013, submitting that no complaint had been made to police of any assault by the appellant and that no person had applied for compensation in consequence of an assault by the appellant. Finally, the appellant's solicitors submitted that if the Assessor remained of the opinion that it was likely that the appellant was an aggressor to the person who inflicted injury upon the appellant, the Assessor, rather than refuse to make an award, might consider a reasonable reduction of any award made by reason of s 41 of the Act.
By letter of 19 September 2013 the Assessor advised that there was insufficient evidence of an offence. In consequence, he said, s 41 of the Act did not arise for consideration. The Assessor advised that he was unable, on the information before him to conclude that the appellant's injuries had been suffered in consequence of the commission of an offence. Accordingly, he refused the application.
Section 55 of the Act provides that an appeal lies to this court. An interested person may appeal against an Assessor's decision to refuse to make a compensation award. It provides that the appeal must be commenced within 21 days after the date of the decision. If it is just to do so, this court may allow an appeal to be commenced after 21 days, and may do so even if that period has expired. The appeal must be conducted in accordance with rules of this court.
Rule 50 of the District Court Rules 2005 provides that an appeal to the court must be by way of a reconsideration of the evidence that was before the primary court unless the parties agree otherwise. In other words, this appeal is a hearing de novo.
The Act provides that the term 'alleged offence' means a crime, misdemeanour or simple offence of which no person has been convicted. The onus of proof in criminal injuries compensation cases where an alleged offence is said to have been committed and the claimant claims to have suffered injuries and loss as a consequence of the commission of the alleged offence, is on the claimant. In this matter the appellant bears that onus, being required to prove those matters to the civil standard of proof, being proof on the balance of probabilities (BAS v Estate of NAS [2000] WASCA 270 [11]).
It is very clear from the information available that, on the night in question, the appellant suffered grievous bodily harm. The term 'grievous bodily harm' means any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health. I am satisfied, having regard to the appellant's injuries and the steps taken to mend them, that his injuries would have, in the absence of medical and/or dental intervention and treatment, resulted in permanent injury to his health. When he attended Epsom Dental Care he was found to have an asymmetrical face, the result of a maxillary fracture and dislocation of the fractured segment. He required urgent and extensive oral surgery during which the fractured bone was successfully repositioned. The vitality of several teeth had been compromised. He required extensive endodontic treatment.
Section 297 of the Criminal Code provides that any person who unlawfully does grievous bodily harm to another is guilty of a crime. The doing of grievous bodily harm by one to another will be unlawful if it is not authorised, justified or excused by law.
In the appellant's case, two questions arise. The first is as to whether the grievous bodily harm was done to him by another and the second is as to the circumstances in which the injury was inflicted. There is no direct evidence as to how the appellant came by his injury, only that he had apparently suffered it prior to the arrival of his fiend Gavin Braam at the front of the nightclub. He found the appellant lying on the ground unconscious with blood on his face.
The appellant's written submissions refer to the medical evidence placed before the Assessor and, in particular, to Dr Oldham's report of 29 October 2012 as to the history provided to him, presumably by the appellant, to the effect that the appellant had been punched to the right cheek. The doctor was obviously not a witness as to the fact. The information as to the punch to the right cheek can only have come from the appellant whose statement to police, given on 26 October 2012, was to the effect that he had no recollection of how he sustained the injuries seen by the doctor and other medical witnesses.
The appellant's written submissions, also under the heading of 'medical evidence', refer to the report of Dr Mitro Pavicevic of the Epsom Dental Care Centre dated 6 December 2012 who reported that, according to the appellant, his injuries were the result of an assault on the night in question. Again, it is the case that, notwithstanding what the appellant might have told various medical and dental practitioners as to how he came by the injuries, the plain fact is that he does not know and can only conjecture.
The appellant contends in his written submissions, as he did before the Assessor that there were two separate incidents on the night in question. The first, he says, was within the nightclub when he went to the aid of his friend Jamie, and the second following his ejection from the nightclub. It is the case that there is no evidence of a second 'incident' but rather, only of the discovery of the appellant unconscious and bleeding. How he came to be unconscious, injured and bleeding is not precisely known. One might infer that he suffered his injury as the result of the application of force. The only direct evidence of any application of force is that related to the violence on the dance floor prior to the appellant's ejection from the nightclub. Indeed, apart from the appellants own evidence about Jamie being assaulted by others and of one of those involved in Jamie's assault attempting unsuccessfully to strike the appellant, the only evidence of any actual assault, being the application of force by one person to another, is that of the appellant punching another male on the dance floor with a 'straight right' to the cheek.
The appellant, despite the fact that he said in his statement to police, that he was not intoxicated on the night, must have been, to some extent, under the influence of alcohol. Rather than take moderate steps to protect his friend by, for example, alerting the nightclub security staff to the fact that his friend was being assaulted on the dance floor, he chose to act aggressively himself, stepping into the fray on the dance floor, manhandling one of the men who were said to be assaulting Jamie and striking the same man.
There is no direct evidence of any violent act by anyone following the appellant being escorted from the nightclub. He might have been violently struck and sustained the injury in the melee on the dance floor but his own evidence is to the effect that, when he left the nightclub, he was not injured. I am inclined to accept that that was so.
How, then, did the appellant come to be injured so badly? Dr Pavicevic, in his report of 6 December 2012, says:
Mr Preston's injuries are certainly caused by severe impact typical for fights, work or traffic accidents.
One can only agree with that conclusion. Having regard to Dr Pavicevic's opinion in that regard and the extent of the injuries, I infer that these were not injuries sustained as the result of an intoxicated man tripping or stumbling and falling over, striking his head on some hard surface, such as a curb.
I am being asked to infer that, firstly, his injury was inflicted upon him by the application of force by another, and secondly, that the application of force by that other person was unlawful, so as to constitute an offence. In other words, I am asked to infer that the appellant did not suffer an accident as he made his way from the nightclub or outside it.
As mentioned, it is the case that the onus of proof in this matter is on the appellant. He carries the onus of proving on the balance of probabilities, that he suffered injury as a consequence of the commission of an alleged offence. Undoubtedly he suffered injury. I am satisfied that, on the balance of probabilities, he suffered those injuries as the result of the application of force to him by another or others On the evidence before me it is not possible to infer quite how he came to be so injured but I do infer that he did so as the result of a severe blow or blows to the face and jaw by way of a punch or punches delivered as he stood, knocking him down, or by way of 'putting the boots in' as he lay on the ground having fallen over or been pushed over.
Having reached that conclusion on the balance of probabilities I must now consider whether there was present any circumstance which might render the application of force lawful. As mentioned, having regard to the appellant's injuries, I am satisfied that the person who applied that force to the appellant might well have been charged with unlawfully doing grievous bodily harm to him. The Assessor, in his correspondence with the appellant's solicitors, mentioned to need for the appellant to negative provocation as a factor which might render the doing of grievous bodily harm to the appellant lawful but it is well-established law that provocation is not a defence to a charge of unlawfully doing grievous bodily harm (see Kaporonovski v The Queen (1973) 133 CLR 209). That is so, in a nutshell, because assault is not an element of the charge of unlawfully doing grievous bodily harm.
The Assessor also made reference to the need for the appellant to negative self-defence as a factor which might render the doing of grievous bodily harm to the appellant lawful. Section 248 of the Criminal Code deals with self‑defence. It provides that a harmful act done by a person is lawful if the act is done in self‑defence. A person's harmful act is done in self‑defence if -
(a)the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b)the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
The section contemplates the doing of a harmful act by one person to another in certain circumstances. I consider that I can infer from what is known that the appellant suffered a harmful act done to him by another or others. What is required in order for a person's harmful act to be a lawful act is that the person should positively believe that his or her act is necessary to defend himself or herself from a harmful act by the appellant, that the person's harmful act is a reasonable response in the circumstances as the person believes them to be and there are reasonable grounds for that belief. The first of those considerations is subjective. The second is an objective consideration. Was the person's harmful act a reasonable response by the person said to be defending themselves in the circumstances as that person believed them to be? The latter aspect, relating to the circumstances as that person believed them to be, is an aspect which defies, in the matter before me, inferential reasoning. That is because the circumstances are not and cannot now be known. There is some prospect that they might have been had the police taken statements from the security personnel at the nightclub and promptly obtained a copy of the relevant surveillance videos from nightclub management, but that did not happen.

The second consideration, that of being necessary to defend oneself, involves an objective approach concerning the relationship between the harmful act giving rise to the need for a person to defend themselves and the act of self‑defence in response. That involves consideration of the proportionality of the harmful act said to be done in self-defence. The section sanctions a harmful act that is a reasonable response. It follows that an unreasonable response is likely to be unlawful.
What I do know from the information before me is as follows:
1.the appellant had been drinking and was under the influence of alcohol to some extent;
2.the appellant's time at the nightclub was uneventful until the disturbance on the dance floor;
3.the appellant unwisely became involved in defence of his friend Jamie who he perceived to be under attack by others;
4.the appellant was not the instigator of the disturbance on the dance floor;
5.the appellant displayed violence to another male patron of the club in response to what he perceived to be an attack on his friend Jamie;
6.the appellant was not injured in that disturbance;
7.the nightclub security staff intervened in the disturbance on the dance floor and escorted the plaintiff from the premises;
8.there is no evidence of any other person being ejected from the nightclub in consequence of the disturbance;
9.the appellant left the club willingly and offered no resistance to his ejection;
10.the appellant was found by his friend, Gavin Braam, a few minutes later outside the nightclub unconscious and with 'blood all over his face';
11.the appellant was, prior to be being found in that state, last in the company, if not custody, of the nightclub security staff;
12.the appellant brought the matter to the attention of Police Officer Ellison at Cannington Police Station on 26 October 2011 and gave written authority to the WA Police Service to release medical information as to his injuries and treatment;
13.the appellant's complaint to police was to the effect that 'he had been assaulted at the Vibe nightclub located in Rockingham on 22/10/2011';
14.the police were informed that the appellant had attended both a doctor and a dentist, that he had suffered severe damage to his teeth which would require extended work and that he had suffered a fracture of his front right sinus which would require surgery;
15.the initial police incident report included a note that the CCTV from the nightclub would be required;
16.Constable Ellison on 26 October 2011 referred the matter to the Rockingham Detectives' Office for further enquiry noting that CCTV should be obtained and that witnesses, including the nightclub bouncers, should be interviewed;
17.by the time police made enquiries as to the CCTV footage it was no longer in existence, having been recorded over by nightclub management;
18.there is no indication on the police ruining sheet of any police officer having interviewed any member of the nightclub security staff;
19.there is no evidence of any violent conduct on the part of the appellant following his ejection from the nightclub by the security staff;
20.the injuries suffered by the appellant were the result of a 'severe impact'.
I do infer from the foregoing that the appellant was the subject of a harmful act which left him with severe facial and dental injuries. In arriving at that conclusion I am satisfied that he did not come by the injuries by way of accidental application of force. I exclude, on the balance of probabilities, that he came by his injuries by accidentally tripping and falling to the ground. Such an event is unlikely to have involved the 'severe impact' described by Dr Pavicevic. As such, I am satisfied that the severe impact was a blow to the face, whether by punch or kick, and that it was a deliberate act on the part of a person or persons unknown, possibly the security staff at the nightclub, given that there is no evidence as to any person from the disturbance on the dance floor leaving the nightclub at about the same time as the appellant. In fact, there is no evidence of any other person being ejected from the nightclub at about that time. I do not infer that the appellant did a harmful act to any other person while being ejected from or outside the nightclub. Such a conclusion would be mere conjecture. There is certainly no evidence of any other person suffering any form of harm or injury on the night in question.
I am satisfied to the requisite standard that the harmful act done to the appellant, having regard to the severity of the injuries suffered by him and the fact that he was rendered unconscious, was such as to be, objectively viewed, quite out of proportion to any harmful act done by the appellant and, therefore, a quite unreasonable response to any harmful act done or threatened to be done by the appellant. It follows from the foregoing, that I am satisfied that the doing of grievous bodily harm to the appellant was likely to have been unlawful, there being no circumstance present which would render it lawful.
No person was charged or convicted of any offence arising out of the injuries suffered by the appellant. I am satisfied to the requisite standard that he is a person who suffered injury as a consequence of the commission of an alleged offence and that he may apply for compensation for that injury and any loss also suffered. As to s 39 of the Act, I am satisfied that the appellant was not, at the time he suffered the injuries, committing any criminal offence or engaged in criminal conduct.
It is appropriate, however, to consider the impact of s 41 of the Act. It provides that in deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim the 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; and
(b)may, if the assessor 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.
I must, firstly, make findings as to the behaviour, condition, attitude, or disposition of the appellant on the night in question. I have already concluded that he was, to some extent, under the influence of alcohol. That, in itself, does not tell me a great deal other than that he might have been less inhibited than if he had been sober at the time. Having perceived that his friend Jamie might have been in some danger at the hands of others on the dance floor he might have attempted, in a non-violent way, to usher Jamie from the dance floor or alert the nightclub management to what appeared to be inappropriate behaviour on the dance floor. Instead, he chose a violent option, stepping into the fray and manhandling and then punching a stranger. It was that act which led directly to the intervention of the nightclub security staff and his ejection from the nightclub. It was at the conclusion of that ejection or in the immediate aftermath of it that he sustained his injuries. Admittedly, on the evidence before me, his attitude, when being ejected was calm and cooperative, but he had contributed to a violent situation and in the, perhaps, overheated atmosphere of a nightclub in the early hours of the morning, violence was likely to beget violence. In the appellant's case he suffered, as a result, in circumstances which may not have been particularly fair or just.
In my opinion the appellant's behaviour did contribute indirectly to his injuries. I consider that it would be just to reduce the amount that would otherwise be awarded by 50%.
The maximum compensation available is $75,000. That is merely a jurisdictional limit and not reserved for the worst cases (S v Neumann (1995) 14 WAR 452, 463). I may award compensation to the extent that I am satisfied is just for the injury and for any loss also suffered. In this context 'loss' means -
(a)expenses actually and reasonably incurred by or on behalf of the victim that arise directly from; or 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.
In the matter before me the appellant has documented his claim for injury and loss. I accept that, at the time of his injuries, he was an apprentice plumber and gas-fitter employed by Metrolinx Plumbing and Gas of Winthrop, Western Australia. His expectations were that he would return to work on Monday 24 October 2011 and finish work in that week at the end of business on Thursday 27 October 2011. Friday 28 October 2011 was a public holiday to mark the Queen’s birthday. The appellant had arranged two weeks leave commencing on Monday 31 October 2011 for a holiday in Bali. Because of the urgent need for surgery he cancelled his trip and spent that period in significant pain and discomfort. The appellant returned to work on Monday14 November 2011 with a swollen face and still feeling the effects of his surgery and medication.
In the week preceding the injury the appellant worked 38 hours and received net pay of $520.28. In the week immediately following the injury the appellant received net pay of $529.97. His pay slips for the period between the injury and his return to work indicate that he suffered no loss of earnings as a direct consequence of his injuries.
The appellant's solicitors submitted that, in consequence of the injuries, he utilised some sick pay, some rostered days off and 76 hours of holiday pay. It is submitted that he, therefore, used benefits available to him which he would otherwise not have used. I conclude that he would certainly have utilised his holiday pay and may well have used some of his other entitlements in the course of his holiday plan. Seventy six hours' holiday pay represents two weeks based on a 38‑hour week. In my view the claimed lost entitlements are not lost earnings. It is the case that the appellant did take his paid holiday, albeit in far less enjoyable circumstances than he had anticipated.
He was booked to fly from Perth to Bali and return on 1 November and 9 November 2011, respectively, the costs of the travel being $568.10 paid by him in advance in full by credit card. The appellant's claim in that regard is for $347.42 being the cost of cancelling his flight reservations. In round terms I am prepared to allow $175 for that component having regard to the impact of s 41 of the Act.
The appellant claims the expenses associated with obtaining reports as to his injuries and treatment as follows:
Fremantle Hospital  $110.00
Dr Sophie Mougos  $450.00
Dr Clive Heaysman                   $385.00
Dr Stephen Proud                   $1,441.00
Among the papers which accompanied the appellant's application and appeal is a remittance advice addressed to the appellant's solicitors from the Metropolitan Health Service Board Bureau which appears to have accompanied cheque number 582046 dated 5 November 2012 in the sum of $110 being a refund to the appellant from the Western Australian Health Department. I assume that he received a refund of the $110 paid to Fremantle Hospital for the report referred to. Excluding the claim in respect of Fremantle Hospital I will allow $1,138 for the cost of reports, having regard to the impact of s 41 of the Act.
Dr Stephen Proud, a psychiatrist, saw the appellant on one occasion, 20 March 2013, and prepared and despatched a five‑page report on that day, along with a bill for $1,441 for his services. In his report Dr Proud diagnosed the appellant as suffering chronic post-traumatic stress disorder of mild to moderate severity.
The appellant told Dr Proud that he had, in consequence of the injuries, three weeks off work. My understanding is that he had two weeks off work, those two weeks being leave planned in advance.
The appellant told Dr Proud that he had completed his apprenticeship, had left Metrolinx Plumbing and Gas and moved to another employer where he was doing well. He told Dr Proud that he was still angry after the attack, advising that his mood was angrier 'with a shorter fuse than before'. He has been to nightclubs since the events of 22 October 2011, saying that he 'probably gets drunk more often' and has been 'kicked out of three nightclubs because of his aggressive attitude'.
Dr Proud reported that the appellant had no enduring consequences from the assault, that his face showed very little evidence of asymmetry or deformity and that he does not feel deformed or embarrassed by his facial appearance. The appellant had no cognitive impairment and normal concentration and short-term memory. No treatment was required from a psychiatric perspective. Dr Proud concluded that, should the appellant continue to be aggressive, he might need 20 sessions with a clinical psychologist at a cost of $200 per session. Dr Proud did not suggest that the appellant's aggressive behaviour was causally related to the events of the evening of 21 October 2011 or that it was symptomatic of post‑traumatic stress disorder. In fact, the appellant told him that, since that event, his mood was angrier and that he had a shorter fuse than before. He did say that he continued to go to nightclubs after the event and that he got drunk more often.
Certainly, on the night in question, the appellant displayed an inclination to be aggressive when under the influence of alcohol at a nightclub. In all of the circumstances, I am not satisfied to the requisite standard that any increment in the appellant's aggressive behaviour since the events of the evening of 21 October 2011 are the consequence of the injuries suffered by him on that evening or are a symptom of post‑traumatic stress disorder. I make no allowance for the future medical treatment suggested by Dr Proud.
The appellant's claim for compensation is principally for what would ordinarily be described as general damages or non-pecuniary loss, for the residual costs of his treatment and for the cost of future treatment. Following the surgery at Subiaco Private Hospital on 31 October 2011, involving the insertion of four permanent titanium plates, he attended Dr Mougos for post‑operative review on four occasions, the last being on 29 November 2011. On 22 November 2011, his occlusion being stable, interdental wires were removed. He had residual paraesthesia of the right infra-orbital nerve and right maxillary dentition. He was referred by Dr Mougos to his general dental practitioner, Dr Pavicevic, for further monitoring.
Dr Pavicevic reported on 6 December 2012 that he attended the appellant by way of follow-up on 19 and 20 December 2011. Examination revealed a good post-operative result. There was, however, the danger that the vitality of some of the appellant's teeth might be compromised in the future. He said that, in all trauma cases, pathological changes may develop years later. He said that it was very difficult to predict or estimate future treatment needs. He spoke of there being a possibility of future dental treatment costing between $10,000 and $20,000 in the next 5 years to 10 years. I would have allowed $5,000 for this aspect of the appellant's claim, being expenses that might be incurred over and above what might be recovered from medical health insurers, but will allow $2,500 by reason of s 41 of the Act.
In terms of the impact upon the appellant I have no doubt that he suffered, in the weeks following the injuries being sustained, a good deal of pain and discomfort. I accept that he could not eat solids for about five weeks and that he lost, for a period, about 15 kg in weight. In terms of his mental state he said that he has been 'a bit more on edge' since 22 October 2011 and that he had 'completely lost trust in bouncers'. He explained that he was now more aggressive because the incident in which he was trying to do 'the right thing' had resulted in him being badly injured. As already mentioned, becoming aggressive with strangers in the early hours of the morning on the dance floor at a night club in an alcohol‑fuelled context would not be regarded by most people as 'doing the right thing'.
Taking into account all that is before me in terms of the appellant's pain, discomfort and impact on the amenities of life, as well as mental and nervous shock, I would have allowed $25,000 but will award $12,500 by reason of the impact of s 41 of the Act.
Finally, as to the cost of his medical and dental treatment, his claim is for the gap between the amount recovered from his health insurers and that actually paid in the sum of $3,823.44. Having regard to the impact of s 41 of the Act, I will allow $1,912.
In summary, therefore, I allow the appeal and award compensation to the appellant as follows:
Non-pecuniary loss  $12,500.00
Actual medical and dental expenses           $ 1,912.00
Future medical and dental expense            $ 2,500.00
Cost of medical and dental reports             $ 1,138.00
Cancellation of flight reservations             $     175.00
$18,225.00