Re Puterangi
[2017] WADC 168
•22 DECEMBER 2017
PUTERANGI [2017] WADC 168
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 168 | |
| Case No: | APP:2/2017 | 30 AUGUST 2017 | |
| Coram: | DAVIS DCJ | 22/12/17 | |
| PERTH | |||
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Compensation awarded | ||
| PDF Version |
| Parties: | WILLIAM PEIOWHAIRANGI PUTERANGI |
Catchwords: | Criminal injuries compensation Two alleged offences Appeal from assessor's refusal to award compensation for second alleged offence Whether victim committed a separate offence Whether victim by his behaviour contributed to his injuries Whether the two alleged offences are related Assessment of compensation Turns on own facts |
Legislation: | Criminal Injuries Compensation Act 2003 s 17, s 39, s 41 |
Case References: | A v D (1994) 11 WAR 481 Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 B v W (1989) 6 SR (WA) 79 BKW v JFO [2003] WADC 274 Bodney v Assessor of Compensation (2000) 24 SR (WA) 299 Bull v Hobbs [2009] WADC 128 CKM [2008] WADC 79 DNA v Britten (1995) 14 SR (WA) 325 Egitmen v The State of Western Australia [2016] WASCA 214 Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Green v Lee (1996) 17 SR (WA) 93 Hill v Clarke [2015] WADC 93 Hutchings v Lachlan [2012] WADC 89 Insurance Commission of Western Australia v Weatherall [2007] WASCA 264 Kaporonovski v The Queen (1973) 133 CLR 209 Lewington v The Assessor for Criminal Injuries Compensation [2005] WADC 200 Lloyd v Small (1996) 16 SR (WA) 111 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 McDavitt v McDavitt [2013] WADC 22 MES v KG (1995) 12 SR (WA) 330 MJN v MAJS (2003) 35 SR (WA) 219 Re ATS [2017] WADC 92 Re Bianchi [2012] WADC 147 Re Carter (1984) 4 SR (WA) 219 Re Dunne [2014] WADC 131 Re Piggott [2017] WADC 150 Re TLJ [2016] WADC 74 Re VPAN [2011] WADC 40 [14] S v Neumann (1995) 14 WAR 452 Stocker v Loeper [2001] WASC 176 TLW v RBC [2001] WADC 244 Zadeh [2015] WADC 136 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
AND
IN THE MATTER of an Appeal by
- Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : H PORTER
File No : CI 00755 of 2016
Catchwords:
Criminal injuries compensation - Two alleged offences - Appeal from assessor's refusal to award compensation for second alleged offence - Whether victim committed a separate offence - Whether victim by his behaviour contributed to his injuries - Whether the two alleged offences are related - Assessment of compensation - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003 s 17, s 39, s 41
Result:
Appeal allowed
Compensation awarded
Representation:
Counsel:
Appellant : Mr N F Morrissey
Amicus Curiae : Mr S P Tomasich appeared on behalf of the Chief Executive Officer of the Department of Justice
Solicitors:
Appellant : CLP Legal Pty Ltd
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
A v D (1994) 11 WAR 481
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
B v W (1989) 6 SR (WA) 79
BKW v JFO [2003] WADC 274
Bodney v Assessor of Compensation (2000) 24 SR (WA) 299
Bull v Hobbs [2009] WADC 128
CKM [2008] WADC 79
DNA v Britten (1995) 14 SR (WA) 325
Egitmen v The State of Western Australia [2016] WASCA 214
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Green v Lee (1996) 17 SR (WA) 93
Hill v Clarke [2015] WADC 93
Hutchings v Lachlan [2012] WADC 89
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
Kaporonovski v The Queen (1973) 133 CLR 209
Lewington v The Assessor for Criminal Injuries Compensation [2005] WADC 200
Lloyd v Small (1996) 16 SR (WA) 111
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
McDavitt v McDavitt [2013] WADC 22
MES v KG (1995) 12 SR (WA) 330
MJN v MAJS (2003) 35 SR (WA) 219
Re ATS [2017] WADC 92
Re Bianchi [2012] WADC 147
Re Carter (1984) 4 SR (WA) 219
Re Dunne [2014] WADC 131
Re Piggott [2017] WADC 150
Re TLJ [2016] WADC 74
Re VPAN [2011] WADC 40 [14]
S v Neumann (1995) 14 WAR 452
Stocker v Loeper [2001] WASC 176
TLW v RBC [2001] WADC 244
Zadeh [2015] WADC 136
1 DAVIS DCJ: This appeal concerns the dismissal of part of Mr Puterangi's criminal injuries compensation application arising from alleged offences which occurred on 25 May 2012.
2 On that day Mr Puterangi had attended a local tavern with a friend. Two offences are alleged to have occurred while he was at the tavern. The first occurred near the bottle shop at the front of the tavern where Mr Puterangi assisted a crowd controller (bouncer) who worked at the tavern who was being attacked. Mr Puterangi was punched in the jaw by the alleged offender (the first incident). The second occurred about 15 minutes later when the alleged offender from the first incident subsequently attacked Mr Puterangi in the carpark at the rear of the tavern (the second incident). While police identified the alleged offender, to whom I will refer as ACW, as a suspect in relation to both alleged offences, no charges were brought against him.
3 On 10 January 2017 the Chief Assessor of Criminal Injuries Compensation ('the assessor') awarded Mr Puterangi criminal injuries compensation for the first incident in the sum of $3,000. The assessor refused to make an award in relation to the second incident. The assessor's reasons for doing so were contained in correspondence to Mr Puterangi's solicitors dated 20 December 2016 and 10 January 2017 and were, in summary, that:
(a) the second incident in the carpark occurred as a result of a separate offence on the part of Mr Puterangi towards the alleged offender and he was thus precluded from compensation pursuant to s 39 of the Criminal Injuries Compensation Act 2003 (the Act);
(b) the assessor was not satisfied that Mr Puterangi had been injured as a consequence of the commission of an alleged offence in the carpark pursuant to s 17 of the Act; and
(c) the assessor was not satisfied that Mr Puterangi had been assaulted without provocation in the carpark.
The grounds of the appeal and the issues
4 There is no issue as to the assessor's findings and award the subject of the first incident.
5 This appeal concerns only the second incident, although the first incident may well inform what findings should be made about the second incident.
6 The grounds of the appeal are that the assessor erred, in respect of the second incident, in concluding that:
1. there was insufficient evidence to establish the claimed injury or loss occurred as a result of an alleged offence under s 17 of the Act;
2. there was sufficient evidence to raise the defences of self-defence or provocation; and
3. there was sufficient evidence for her to refuse the application.
7 After reviewing the written submissions filed by each of Mr Puterangi and the amicus curiae and hearing the parties on this appeal, the issues in this appeal are as follows:
1. Was Mr Puterangi injured as a consequence of the commission of an alleged offence in the second incident?
2. If the second incident is an alleged offence, is Mr Puterangi precluded from an award of compensation pursuant to s 39 of the Act, because the injuries he suffered during the second incident were suffered when he was committing a 'separate offence'?
3. If the second incident is an alleged offence, did Mr Puterangi contribute towards the second incident, for example by acting in some provocative way towards the alleged offender?
4. If I am satisfied that the second alleged offence occurred, what is the jurisdictional maximum which applies? That will depend on whether I conclude that the two incidents were related or not.
5. Finally there is the assessment of quantum for the injuries suffered by Mr Puterangi.
The nature of the appeal and the admission of further evidence
8 This appeal is a hearing de novo – I must determine the application made by Mr Puterangi afresh and I am not fettered by the assessor's determination. I may confirm, vary or reverse the assessor's decision in whole or in part: s 56 of the Act.
9 Mr Puterangi applied for leave to adduce further evidence in this appeal. I may receive that further evidence and information: s 56(1) of the Act. It is now well established that the discretion to admit further evidence on an appeal under the Act should be exercised without undue restriction, particularly given the beneficial purpose of the Act, and the fact that pursuant to s 18 of the Act an assessor is not bound by the rules of evidence and the nature of a determination by an assessor is informal.
10 I have admitted that further evidence, and therefore will proceed to determine this appeal on the information before the assessor and the following evidence and information:
(a) a statutory declaration of Benjamin Wolf, dated 13 February 2017; and
(b) a supplementary statement of Mr Puterangi dated 30 August 2017.
11 The evidence and information before the assessor included the police file including the incident reports for each incident, the police running sheet, photographs of Mr Puterangi and statements from witnesses taken from the police. The witness statements included:
(a) two statements from Mr Puterangi, one dated 29 May 2012 taken when he was at Fremantle Hospital, and another dated 19 June 2012;
(b) a statement from Mr Owen Lindsay, the owner of the tavern, dated 12 June 2012;
(c) a statement from Mr Jack Goodwin, who worked at the bottle shop at the tavern, dated 1 June 2012;
(d) a statement from Mr Kamdyn McIntosh, another employee at the bottle shop, dated 21 June 2012;
(e) a statement from Mr Gary Taylor, the crowd controller assaulted by ACW outside the bottle shop, dated 26 June 2012; and
(f) a statement from Mr Brown, ACW's friend, dated 1 July 2012.
12 Finally, the solicitors for Mr Puterangi also forwarded to the assessor, by letter dated 5 January 2017:
(a) a statement of Ms Samantha Morey, undated; and
(b) a statutory declaration of Benjamin Wolf, dated 23 November 2016.
The onus and standard of proof
13 As no person has been charged with any offence in relation to the assault upon Mr Puterangi in the second incident, s 17 of the Act applies. An assessor must not make a compensation award unless satisfied that the claimed injury and any claimed loss has occurred, and was a 'consequence of the commission of' the alleged offence.
14 Section 3 of the Act provides that 'satisfied' means 'satisfied on the balance of probabilities'.
15 The applicant who claims compensation under the Act where no conviction has been entered bears the burden of proving the offence: Re Carter (1984) 4 SR (WA) 219 and MES v KG (1995) 12 SR (WA) 330, 331 - 332; Hill v Clarke [2015] WADC 93 [13]; Re ATS [2017] WADC 92 [28]. That includes establishing on the balance of probabilities that the alleged offender had no defence to the allegation that he committed the offence: Green v Lee (1996) 17 SR (WA) 93, 97.
16 The strength of what is necessary to establish a matter on the balance of probabilities may vary according to the nature of what is sought. Where criminal conduct is alleged, clear and cogent evidence will be required: Hutchings v Lachlan [2012] WADC 89; McDavitt v McDavitt [2013] WADC 22 [30]; Hill v Clarke [14].
17 In order for Mr Puterangi to succeed in his claim for criminal injuries compensation, the circumstances must give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability, that the alleged offender ACW committed a criminal offence: Lloyd v Small (1996) 16 SR (WA) 111, 113 - 114; Hutchings v Lachlan [35]; Re ATS [29] and [115].
18 The evidence must be scrutinised with care and caution in determining whether the alleged offending occurred, but also having regard to the remedial purpose of the Act which provides a right to compensation: Re ATS [30] and [114].
19 It should also be remembered that proceedings in an application for criminal injuries compensation are not adversarial and neither the assessor nor the court on an appeal hearing is bound by rules of practice or evidence: Re ATS [31], [104].
The background facts
20 The circumstances of the first incident were that Mr Garry Taylor was assaulted by ACW outside the front of the tavern near the bottle shop.
21 From the statements on the police file, it is apparent that the aggressor during the first incident was ACW. ACW was well known to Mr Lindsay, the owner of the tavern, and Mr Lindsay and other employees of the tavern positively identified ACW as the aggressor. Mr Lindsay had banned ACW from entering the tavern about 18 months before because he had assaulted another bouncer.
22 In his statement, Mr Lindsay said he was told by his staff that there was a fight at the front at the tavern, so he went there and saw Mr Taylor with a bloody mouth and ACW standing opposite Mr Taylor. Mr Lindsay then saw ACW behaving aggressively towards about six other males, throwing punches at them all. Those punches connected, and the six males retaliated by throwing punches at ACW. One of the six males was a male of 'Tonga appearance'. While Mr Lindsay did not identify the 'Tonga male' as being Mr Puterangi, given the other details of Mr Lindsay's description of the 'Tonga male' and the fact that Mr Puterangi is from New Zealand and is of Maori appearance, the inference can be drawn that Mr Lindsay was referring to Mr Puterangi.
23 Mr McIntosh saw ACW throw punches at Mr Taylor and then four local males approached ACW and said 'You don't want to hit a security guard. What are you doing?'. Mr McIntosh then saw a 'Maori male' approach ACW, try and throw a punch at ACW but miss. ACW then punched the 'Maori male', which blow knocked him back into a van parked in the carpark. The inference can be drawn that Mr McIntosh was referring to Mr Puterangi when he described the 'Maori male'.
24 Another employee of the tavern, Mr Jack Goodwin, also provided a statement in which he described ACW punching Mr Taylor so hard that he was knocked to the ground. Then while Mr Taylor was on the ground, ACW threw more punches at Mr Taylor until he was pulled off by two males. One of the males was of Maori appearance and Mr Goodwin referred to him as the 'Kiwi guy'. Mr Goodwin saw ACW throw a punch at the Kiwi guy which was so hard that it knocked him into the bull bar of a white van. While Mr Goodwin did not identify the 'Kiwi guy' as being Mr Puterangi, the inference can be drawn that Mr Goodwin was referring to Mr Puterangi.
25 In his first statement to the police Mr Puterangi mentioned seeing a scuffle. In his second statement Mr Puterangi stated that upon seeing the scuffle, he went down to where it was happening and confronted a Caucasina male. He then stated:
I do not know who started the altercation but we ended up throwing punches at each other and I was knocked unconscious.
26 It is apparent from the assessor's findings, set out in her correspondence with Mr Puterangi's solicitors, that the assessor accepted the evidence of Mr McIntosh and Mr Lindsay in particular, and was satisfied that the first incident in which Mr Puterangi became involved most likely occurred after ACW had assaulted Mr Taylor and a number of people, including Mr Puterangi, intervened to prevent further assault and to remove ACW from that situation.
27 In relation to the evidence of what occurred during the second incident, neither Mr Lindsay nor any other of the tavern employees witnessed that incident, although Mr Lindsay said that 15 minutes after the first incident he was told of another incident at the rear of the tavern. Mr Lindsay went to the rear of the tavern and saw another bouncer cradling the 'Tonga male' who had massive bruising and blood on his face.
28 Of some relevance is that in Mr Lindsay's statement he said that he spoke to the male of 'Tonga appearance' after the first incident and told him to go inside the tavern and that ACW was a 'potentially dangerous man'. Mr Lindsay described the 'Tonga male' as not believing him, but he also said that the Tonga man headed to the bar.
29 Mr Puterangi in his first statement to police could remember that about 5 minutes after the first incident he left the tavern to go and get cigarettes from his car. Once he had the cigarettes he was going to go back inside the tavern. As he was walking towards his car he saw two people who had been involved in the scuffle. He can remember nothing of the second incident. His next memory was of being picked up off the ground by Ben (Benjamin Wolf).
30 The only direct evidence of how the second incident started came from the alleged offender, ACW, and his friend Mr Brown.
31 ACW was interviewed by the police on two occasions. While a recording of the interview was not available to the assessor, the police running sheet records that ACW was interviewed on 26 June 2012, and that he agreed to the interview after taking legal advice. ACW answered 'no comment' to almost all the questions put forward by interviewing officers. However, ACW admitted he was involved in a physical altercation with the bouncer of the tavern and had already apologised to him. In relation to the second incident, it was recorded that:
[ACW] explained that it was self defence. Interviewing officers told him if that was the case, during the EROI is the perfect time to elaborate on why it was self defence. However, [ACW] declined to elaborate.
32 Mr Brown gave his statement to the police on 1 July 2012. From what he said in that statement, he witnessed only the aftermath of the first incident. He stated that he had been drinking in the tavern when he ran into ACW. He and ACW had a game of pool, after which ACW went outside. A short time later Mr Brown went out the front entrance for a cigarette. He saw a bouncer bleeding from his mouth and a 'few other people' who were also bleeding. He could also see that ACW was angry.
33 Mr Brown then told ACW to 'calm down' and that he would take ACW home. ACW 'started calming down' and the two of them left the tavern. After making their way down to the back carpark towards Mr Brown's car, Mr Brown noticed they were being followed by a male of 'Maori or Tonga appearance'. While Mr Brown did not directly identify Mr Puterangi as this man, the inference is that the man was Mr Puterangi. Mr Brown in his statement described how the male of 'Maori or Tonga appearance' approached ACW and said 'So you think you are a tough cunt!' and then reached into the left side of his pants and took out the 'fat bottom end of the pool cue'. This male then allegedly held the pool cue over his right shoulder with both hands. He then swung the pool cue at ACW's head, however did not connect. ACW then proceeded to grapple with the male, eventually bringing him to ground. ACW was then on top of the male and 'punched him a few times in the head'. Mr Brown noticed that the male was unconscious. ACW and Mr Brown then got into Mr Brown's car to drive away.
34 Police conducted a second interview with ACW on 27 July 2012 - after Mr Brown had provided his statement. According to the running sheet, on this occasion ACW raised self-defence and advised that the victim (Mr Puterangi) had 'swung a pool cue at him when he was at the rear carpark of tavern, about to leave the tavern'. In addition, the notes record that Mr Webster also stated that '[t]he guy came towards me w/ pool cue. I thought he was one of my friends. My friends did not know him. I punched him'.
35 Mr Wolf, the friend with whom Mr Puterangi attended the tavern, recounted in his first statutory declaration dated 23 November 2016 that he remembered hearing a blood curdling scream from a lady. He and another man, called Zane, ran around the back to the rear carpark of the tavern. There Mr Wolf saw Mr Puterangi lying on the ground with two men standing over him. The two men were kicking Mr Puterangi, who was on the ground and appeared to be unconscious. Mr Wolf, along with the other man, then yelled at the two men who ran off into a car and drove away.
36 Ms Samantha Morey in her statutory declaration gave, in essence, a character reference for Mr Puterangi in which she stated that over the course of the time she had known him (over four years), she had gone out to pubs and nightclubs with him on many occasions. Not once had she ever known him to 'burr up', get angry or have any altercations with anyone.
37 That was the evidence which the assessor had before her. There is now other evidence and information before me, as follows.
38 Mr Puterangi has provided a supplementary statement dated 30 August 2017 in which he has stated that when he left the tavern to go to his car to get cigarettes he was not carrying a pool cue. He had no reason to carry a pool cue and had not done so 'either that night or at all.'
39 Mr Wolf in his second statutory declaration dated 13 February 2017 stated (pars 7 - 13, with my emphasis in bold):
We arrived at the rear entrance of the tavern, at the rear carpark. I saw William lying on the ground with two (2) men standing over him.
There were about four (4) girls who were freaking out. They were right next to where William was being attacked and were standing at the outdoor bar area outside of the tavern. There was a half wall separating the girls from the incident.
One (1) of the men was repeatedly kicking William, who looked unconscious. This man was Caucasian and massive. He was solid built, much bigger than his associate, who was fair skinned.
Zane and I shouted at them and they hurriedly backed off, got into a car and drove away.
When I went to William's side he appeared semi-conscious and was bleeding from the face.
Zane, his friend and I got William into the car and drove him to the hospital in Mandurah. I wasn't the driver and I cannot remember who drove or whose car it was. I stayed by William's side all night.
Although it was evening, I don't recall having any difficulties with visibility. It was definitely not pitch black. I definitely did not see a pool cue lying around. The two (2) men did not have weapons.
The first issue - was Mr Puterangi injured as a consequence of the commission of an alleged offence in the second incident?
40 From the correspondence between the assessor and Mr Puterangi's solicitors, it appears that the assessor relied on the statement provided to the police by Mr Brown. Apart from Mr Brown, there was no other witness who observed the altercation between Mr Puterangi and ACW in the carpark. However, even on Mr Brown's evidence, ACW seriously assaulted Mr Puterangi to the point where he lost consciousness.
41 Mr Puterangi suffered significant injuries. The hospital records and a report from Dr Jason Lim dated 23 July 2012 record that Mr Puterangi suffered a ruptured left eye globe (eye ball), complete hyphaema (a haemorrhage into the anterior chamber of the eye), a subluxated lens (a dislocation or displacement of the lens of the eye from its normal position) and a scalp laceration. Dr Lim recorded that the injuries were consistent with the trauma as alleged and, without medical treatment were of such a nature as to cause permanent injury to health, namely blindness.
42 Mr Puterangi was reviewed by an ophthalmologist specialist and underwent repair of his eye. The ophthalmologist, Dr Stuart Ross, also provided a report dated 26 July 2012 in which Dr Ross set out Mr Puterangi's injuries as extensive periorbital and facial swelling, a very large superior laceration at the limbus measuring 10 mm horizontally and 1.5 mm behind the corneal limbus, and an extruded lens with extensive loss of vitreous from the wound. Dr Ross was of the opinion that Mr Puterangi's injuries were consistent with punching and kicking to the head having taken place.
43 The assessor determined that Mr Puterangi's injuries from the first incident were minor, and that 'he recovered sufficiently to continue his evening in the hotel, apparently uninjured', (assessor's letter 20 December 2016, page 2, third paragraph). Further, the assessment of criminal injuries compensation for the first incident was only $3,000. There can be no doubt that the more significant injuries suffered by Mr Puterangi were suffered in the second incident.
44 I am satisfied that the injuries to Mr Puterangi's left eye constitute grievous bodily harm. Accordingly the offence allegedly committed by ACW is unlawfully causing grievous bodily harm.
45 However, for Mr Puterangi to establish on the balance of probabilities that he was injured as a consequence of the commission of that offence, he must negate, on the balance of probabilities, the existence of defences reasonably open to ACW. Save for the burden of proof being the civil standard, Mr Puterangi must persuade the court as if he were prosecuting the criminal offence: Green v Lee; see also Re Piggott [2017] WADC 150 [144] (Bowden J).
46 The defence which must be negated in this case, based on the statement of Mr Brown and what ACW told the police, is that of self-defence. (Provocation is not a defence to a charge of doing grievous bodily harm: Kaporonovski v The Queen (1973) 133 CLR 209).
47 The law recognises the right of people to defend themselves from attacks or threatened attacks. The law relating to self-defence is contained in s 248 of the Criminal Code Act 1913 (WA) (the Criminal Code) which provides that a harmful act (which is defined to include an act which causes grievous bodily harm) done by a person is lawful if the act is done in self-defence. Section 248(4) provides 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.
48 Before the issue of self-defence can arise, there must first have been a harmful act by Mr Puterangi to ACW. A harmful act can be an unlawful assault or a threatened unlawful assault. If there was no harmful act by Mr Puterangi and ACW was, in fact the aggressor, then the issue of self-defence does not arise. It is only if there was a harmful act by Mr Puterangi that self-defence arises.
49 In Egitmen v The State of Western Australia [2016] WASCA 214[76], Buss P referred to four elements of self-defence. In a criminal case, the State must negate to the standard of beyond reasonable doubt any one of these four elements:
(a) the accused (subjectively) believed his harmful act was necessary to defend himself from a harmful act, including a harmful act that is not imminent (s 248(4)(a));
(b) the accused's harmful act was a reasonable (objective) response by him in the circumstances as he (subjectively) believed them to be (s 248(4)(b));
(c) there are reasonable (objective) grounds for the accused's (subjective) belief that his harmful act was necessary to defend himself from a harmful act, including a harmful act that is not imminent (s 248(4)(a) read with s 248(4)(c)); and
(d) there are reasonable (objective) grounds for the accused's (subjective) belief as to the circumstances (s 248(4)(b) read with s 248(4)(c)).
50 Mr Puterangi must prove that ACW was not acting in self-defence either by proving on the balance of probabilities that he, Mr Puterangi, did not commit a harmful act (an assault or threatened assault against ACW), or by excluding at least one of the four elements of self-defence on the balance of probabilities.
51 Submissions were made on behalf of Mr Puterangi both to the assessor and in this appeal that Mr Brown is not credible and no weight can be placed on his statement to the police, nor on anything said by ACW to the police.
52 I accept the submissions made by counsel for Mr Puterangi for the following reasons:
(a) It is clear that ACW was the aggressor during the first incident, and he was, even on Mr Brown's evidence, angry afterwards and had only 'started calming down' upon leaving the tavern. ACW's propensity to violence both on this night and generally (as Mr Lindsay stated) is in my view a significant and relevant factor to take into account when determining the circumstance of the second incident: Re VPAN [2011] WADC 40 [14], [17] (Sweeney DCJ); Re TLJ [2016] WADC 74 [59] (Goetze DCJ).
(b) There is no evidence that Mr Puterangi was playing pool or in the vicinity of a pool table. The only evidence of anyone playing pool comes from Mr Brown, who said in his statement that he and ACW had a game of pool before ACW went outside.
(c) When ACW was first interviewed by police, while he claimed he was acting in self-defence, he provided no particulars. As a matter of common sense and experience, one would expect that if, in fact, there had been any pool cue in Mr Puterangi's possession at the time of the second incident, ACW would have been quick to mention this to the police. It was only after Mr Brown had given his statement to the police that the explanation by ACW evolved, and he first proffered the explanation about the pool cue.
(d) The allegation made both by Mr Brown and ACW that Mr Puterangi was armed with a pool cue is inherently incredible. A pool cue is a very long implement, over a metre in length. The suggestion by Mr Brown that Mr Puterangi took out the 'fat bottom end of the pool cue' from the side of his pants is simply incredible.
(e) No pool cue or bottom end of a pool cue was seen at the scene of the second incident by Mr Wolf, and there is no evidence that any such object was found at the scene.
(f) Mr Puterangi has stated in his statutory declaration in this appeal that he was not armed with a pool cue.
(g) Another relevant matter is the fact that Mr Puterangi suffered serious injuries, while there is no evidence that ACW was injured at all. This together with Mr Wolf's description of how he saw Mr Puterangi being assaulted while lying on the ground indicates to me that ACW was the aggressor in the second incident, consistent with his being the aggressor in the first incident.
53 In the circumstances I consider that Mr Brown's statement to police about Mr Puterangi producing the bottom end of a pool cue, along with ACW's subsequent statement to the police that Mr Puterangi produced a pool cue, are both glaringly improbable, and contrary to compelling inferences in this case: Fox v Percy[2003] HCA 22; (2003) 214 CLR 118 [28] and [29]. Having assessed the whole of the evidence, I am not satisfied that Mr Puterangi was armed with a pool cue as claimed by either Mr Brown or ACW.
54 In her correspondence with Mr Puterangi's solicitors dated 20 December 2016, it appears that to justify acceptance of the evidence of Mr Brown, the assessor relied on the fact that Mr Lindsay told Mr Puterangi that ACW was aggressive. The assessor did not mention the evidence from Mr Lindsay which followed, which was that Mr Puterangi went to the bar. There was no mention of the 15 minute hiatus between the first and second incidents set out in Mr Lindsay's evidence. The assessor also did not appear to take into account Mr Puterangi's evidence that he was going to the carpark to get cigarettes from his car and then intending to return to the tavern.
55 It follows from the matters I have set out in [52] - [54], that upon consideration of the evidence, I cannot be satisfied on the balance of probabilities that Mr Puterangi was committing an assault or threatened assault when he was injured by ACW. I find that it is more probable than not that ACW was acting out of uncontrolled aggression rather than in self-defence.
56 Further, even if I had accepted Mr Brown's and ACW's statements to the police, on all of the other material before me I am satisfied on the balance of probabilities that:
(a) Even if ACW did subjectively hold the belief that he had to do the acts he did to defend himself from Mr Puterangi, there were no reasonable (objective) grounds for ACW's (subjective) belief that his attack on Mr Puterangi was necessary to defend himself.
(b) What ACW did was not a reasonable response in the circumstances that he believed them to be. ACW was with his friend Mr Brown who was taking him home; ACW could have retreated or called for help from Mr Brown. ACW's actions in repeatedly kicking and punching Mr Puterangi to the head while he was on the ground, were disproportionate to any threat by Mr Puterangi.
(c) There were no objectively reasonable grounds for ACW's belief as to the circumstances (ie, that it was necessary to do what he did to defend himself).
57 I am satisfied on the balance of probabilities that ACW committed the criminal offence of unlawfully causing grievous bodily harm to Mr Puterangi. Accordingly, I find that Mr Puterangi was injured in the second incident as a consequence of the commission of an alleged offence pursuant to s 17 of the Act.
The second issue - s 39 of the Act
58 Based on Mr Puterangi's 'willingness to participate in the fight' the subject of the first incident, the assessor was 'not persuaded that he must have been assaulted without provocation when he and the alleged offender met in the back carpark' (assessor's letter 20 December 2016, page 2, fourth paragraph). It appears from this and the subsequent correspondent between Mr Puterangi's solicitors and the assessor, that the assessor took the view that either s 39 or s 41 of the Act applied to preclude any award of compensation to Mr Puterangi for the second incident.
59 Section 39 of the Act provides that if a person was injured as a consequence of the commission of an offence and that injury was suffered when the person was committing a separate offence, a compensation award cannot be made in favour of the person.
60 There is no requirement in s 39 of the Act that the disentitling offence be causally connected to the offence that causes the applicant's injuries. The only relationship is a temporal one: Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [31] - [33].
61 The temporal connection between the separate offence committed by the applicant before the offence causing injury is not to be interpreted on a narrow basis. It is not necessary that they must be committed at the same instant in time: Attorney General v Schoombee [53], [54]; McDavitt v McDavitt [21] and [22].
62 Whether there is a temporal connection requires judgment of all the facts and circumstances of the case to determine whether at the time the applicant was injured he or she had committed a separate offence: Attorney General v Schoombee; McDavitt v McDavitt. This will include a consideration of whether the applicant's separate offence and his or her injuries are part of the one incident: McDavitt v McDavitt [22]; Hutchings v Lachlan [32].
63 Section 39 of the Act requires the assessor (and therefore this court on appeal) to be 'satisfied' of certain matters on the balance of probabilities. Before s 39 can apply to enable the assessor to refuse an award of compensation, there must be clear and cogent evidence 'that the injury was suffered when the person', namely the applicant for criminal injuries compensation, 'was committing a separate offence': Hutchings v Lachlan [35] and [36].
64 Given the findings of the assessor in relation to the first incident, and the award of compensation made to Mr Puterangi for that incident, there could have been nothing about Mr Puterangi's conduct in the first incident which could constitute a 'separate offence' when looking at the second incident. As the assessor found, 'the fight' the subject of the first incident in which Mr Puterangi became involved mostly likely occurred after ACW had assaulted the bouncer and people intervened to prevent further assault and remove ACW. I am also satisfied, to the extent that Mr Puterangi threw a punch at ACW, that Mr Puterangi did so in the defence of another, namely the tavern bouncer, Mr Taylor.
65 I am also satisfied that the second incident was, in fact, quite separate and distinct from the first incident. There had been a physical separation of Mr Puterangi and ACW after the first incident, with each going his separate way. The assault on Mr Puterangi, the subject of the second incident, occurred some time after the first incident – 15 minutes later according to the statement of Mr Lindsay. Finally, the two incidents took place in two distinct locations – the first at the front of the tavern outside the bottle shop and the second in the carpark at the rear of the tavern. The first incident was well and truly over by the time of the second incident, so that there was no temporal connection between the two.
66 In the circumstances of the second incident, and my findings in [52] - [55] above, there is no clear and cogent evidence that Mr Puterangi's injuries were suffered when he was committing a 'separate offence'. Based on all of the information before me I am not satisfied that Mr Puterangi was either armed with a pool cue or was otherwise engaged in any criminal conduct at the time of the second incident.
67 For these reasons I am not satisfied that at the time of the second incident, Mr Puterangi was committing a 'separate offence'. Accordingly, Mr Puterangi is not disentitled to an award of compensation for the injuries he suffered in the second incident.
The third issue – s 41 of the Act
68 Section 41 of the Act provides as follows:
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a 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 -
(1) refuse to make a compensation award because of that contribution; or
(2) reduce the amount that the assessor would otherwise have awarded.
70 The determination of whether, pursuant to s 41 of the Act, a compensation award is to be refused or reduced by reason of the victim's contribution to the injury involves two stages. The first is that an assessor must have regard to any behaviour, condition, attitude or disposition of the victim that contributed directly or indirectly to the injury. The second is that, if there has been any such contribution, an assessor then has a discretion to refuse or reduce the award that the assessor otherwise would have made: Re Ballantyne-Fredericks [10]; Bull v Hobbs [22].
71 There will be no contributory behaviour where the incident giving rise to the offence is precipitated by the offender and the reaction of the victim to that should be of no surprise to the offender. There will be contributory behaviour where the incident is precipitated by the victim: Re Ballantyne-Fredericks [10]; Bull v Hobbs [23].
72 For the reasons I have already set out when discussing s 39 of the Act, I am not satisfied that Mr Puterangi was armed with a pool cue as alleged by Mr Brown. As I have found when considering the issue of self-defence, ACW was the aggressor, not just at the time of the first incident but also at the time of the second incident. Upon reviewing all of the evidence, I am not satisfied that there was otherwise any behaviour, condition, attitude or disposition of Mr Puterangi which precipitated the second incident.
73 I consider there is nothing in the circumstances of the second incident which warrants the exercise of my discretion under s 41 to refuse or reduce the award in favour of Mr Puterangi.
Conclusions on the first three issues
74 I am satisfied that Mr Puterangi suffered an injury in the second incident injury as a consequence of the commission of the alleged offence of unlawfully doing grievous bodily harm.
75 I am satisfied that Mr Puterangi did not commit a 'separate offence' so as to preclude him from an award of compensation pursuant to s 39 of the Act.
76 I am satisfied that there was no behaviour, condition, attitude or disposition of Mr Puterangi that contributed, directly or indirectly, to his injury which warrants the exercise of my discretion to refuse or reduce the award in favour of Mr Puterangi, pursuant to s 41 of the Act.
77 Mr Puterangi's appeal against the assessor's refusal to make a compensation award for the second incident should be allowed and he is entitled to compensation.
78 The assessor did not consider the issue of compensation for the second incident, which was more serious than the first incident. While the assessor made an award in relation to the first incident, it appears she did not consider the medical evidence which had been produced by Mr Puterangi. As the assessor refused to award compensation for the second incident, I assume she determined there was no need to consider the medical evidence that was provided.
79 It is open to me to either assess the award of compensation or remit it to the assessor for assessment: Zadeh [2015] WADC 136 [13]; Re TLJ [67] - [71].
80 In this appeal, I have the assessor's file with all relevant information to enable an assessment of damages. I also have written submissions from both parties which address the issue of quantum, together with further written submissions on quantum filed by the solicitors for Mr Puterangi after the hearing of this appeal, at my request.
81 In the circumstances, I propose to address the further issues and assess Mr Puterangi's compensation award.
The fourth issue – what is the jurisdictional maximum limit?
82 The jurisdictional maximum that will apply depends on whether the two alleged offences were 'related'.
83 If the two alleged offences are related, the maximum compensation available is $75,000 total for both alleged offences. However, if I am not satisfied that the two alleged offences are related, the maximum compensation available is $150,000 total for the two alleged offences: s 34(2).
84 A related offence is defined in s 33(1) of the Act. Two or more offences will be related when either they were committed 'at approximately the same time, whether by one person or by two or more persons acting in concert', or they are related 'for any other reason'.
85 I am not satisfied, for the reasons I have discussed when considering s 39, that the two offences were committed at approximately the same time. The issue is whether they are related for any other reason. Submissions were made on behalf of the amicus curiae that the offences are related because the first incident appears to have precipitated the second, and the two offences did occur on the same day within some temporal proximity of each other.
86 While the two offences did occur on the same day, and by the same offender against the same victim, I am not satisfied that there is temporal proximity. These were two separate and distinct incidents, involving two alleged offences committed by the offender at a separate time and in a different part of the tavern. There were also different injuries suffered by Mr Puterangi in each incident. In my view each incident constitutes a 'separate and distinct' act of violence by ACW against Mr Puterangi: Stocker v Loeper [2001] WASC 176 [11] (where McKechnie J considered the equivalent provision in the Criminal Injuries (Compensation) Act 1970 (WA). Section (2a) of that Act limited compensation available to an applicant where '… or the offences are otherwise related to each other …).
87 Accordingly, the maximum award of compensation for the two offences is $150,000. As $3,000 has already been awarded for the first incident, the additional amount I can award is $147,000.
The fifth issue - assessment of compensation
88 The principles of assessment of criminal injuries compensation are well established. The maximum compensation that may be awarded is a jurisdictional limit. It does not create a scale: S v Neumann (1995) 14 WAR 452, 463.
89 Compensation is payable for injury which is defined to include bodily harm and mental and nervous shock: s 12(1) and s 12(3). The phrase 'mental or nervous shock' has been construed as including any malfunction of the victim which can be seen to be a consequence of the impact of events constituting the offence, or associated with the commission of the offence, as those events impact on the mind or the nervous system. Mental and nervous shock includes distress, horror, disgust and other similar adverse mental reactions but does not encompass mere fright, humiliation or anguish. Something of a more enduring character which may in both the legal sense and common parlance be described as an injury is required: S v Neumann (461); Re Dunne[2014] WADC 131 [25].
90 Compensation is also payable for loss as defined by s 6. Loss of earnings and loss of earning capacity are compensable: s 6(2)(c); A v D (1994) 11 WAR 481, 489
91 Ordinary tortious principles are to be applied in the assessment, subject to the statutory limit: S v Neumann (462).
92 The applicant for compensation must prove the necessary causal relationship between the offence and the claimed injury and loss, on the balance of probabilities: S v Neumann (463 - 464), A v D (489).
93 Whether such causal relationship exists between the claimed injury and loss and the proved or alleged offence is a question of fact. It is not necessary to prove that the offence is the sole cause of the injury or loss but it needs to have materially contributed to that injury or loss: Fagan v Crimes Compensation Tribunal[1982] HCA 49; (1982) 150 CLR 666; S v Neumann(463 - 464).
94 Where the evidence establishes that non-compensable events had a propensity to cause the applicant injury or loss and did contribute to the injury or loss, the award of compensation should be reduced to take account of that chance. In other words, the applicant may not be entitled to compensation for the full extent of the injury or loss: MJN v MAJS(2003) 35 SR (WA) 219 [51] - [57]; CKM [2008] WADC 79 [144]; see also Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 642 - 643, 645.
95 The amount of compensation is not to be fixed as punishment of the offender or as an expression of sympathy for the applicant: B v W(1989) 6 SR (WA) 79, 89; DNA v Britten (1995) 14 SR (WA) 325.
96 Mr Puterangi has claimed compensation for his physical and psychiatric injuries, past and future economic loss, future treatment and report fees totalling $4,367.
Non-pecuniary loss
97 Mr Puterangi was aged 43 at the time of the offence. He is now 49 years old. All of the information before me was that he was healthy and had normal vision in both eyes before the second incident on 25 May 2012.
98 The medical reports produced to the assessor, including the hospital reports I have already mentioned, establish that as a result of the second incident, both Mr Puterangi's eyes were swollen shut for a day due to significant facial swelling.
99 He was initially admitted to Peel Health Campus, but transferred the following day to Fremantle hospital. He underwent surgery to repair the ruptured left eye globe on 27 May 2012 and was discharged on 30 May 2012.
100 On 23 November 2012 he was re-admitted to Fremantle Hospital for left anterior vitrectomy and sutured intraocular lens surgery under the care of the ophthalmologist, Dr Stuart Ross. In his report Dr Ross has expressed the opinion that Mr Puterangi is unlikely to regain full vision in his left eye. He also stated that Mr Puterangi may develop glaucoma in the left eye over time. He requires medication for life in the form of eye drops and may also need surgery in the future.
101 In December 2015 Mr Puterangi was reviewed by another ophthalmologist, Dr Con Anastas. In a comprehensive report dated 14 December 2015 Dr Anastas confirmed the injuries to Mr Puterangi's left eye, stating that Mr Puterangi had suffered severe left eye trauma including globe rupture as a result of the second incident. Dr Anastas stated:
Despite the significant possibility of loss of all useful vision in that eye and indeed loss of the eye itself, Mr Puterangi maintains a degree of useful vision on the let albeit with a moderate astigmatic refractive error with a titled intraocular lens implant and lack of iris sphincter function superiorly. Secondary glare/scatter symptoms were reported later in the consultation on specific enquiry.
102 Dr Anastas has assessed Mr Puterangi's impairment as follows:
(a) total visual impairment for the left eye of 59%;
(b) visual impairment for both eyes of 15%; and
(c) total whole of person impairment of 15%.
103 In submissions filed in this appeal, it is stated that Mr Puterangi uses eye drops regularly and on a daily basis because his left eye continually weeps. Occasionally, he sees black spots in his left eye vision.
104 Before the second incident, Mr Puterangi had a hobby of hunting wild game in the Australian outback. As a result of the injury to his left eye he is no longer able to pursue that hobby because he is unable to see through the scope of the gun (as he is left handed and shoots left-handed).
105 Mr Puterangi has also claimed damages for 'nervous shock' within the meaning of the Act. Evidence of this is set out in the statement made by Mr Puterangi in support of his claim, filed with the assessor and dated 30 November 2015, and a medical report from Dr Frederick Ng, Consultant Psychiatrist, dated 3 December 2015. There are also some further details in the supplementary statement of Mr Puterangi dated 30 August 2017.
106 Before the second incident Mr Puterangi was sociable, happy and felt good about himself. As a result of the second incident, the upper part of his left pupil is missing. Consequently, he feels sensitive about the appearance of his left eye and is paranoid about people staring at his eye. He also worries that others think negatively of him, including close friends. Mr Puterangi has lost confidence and no longer trusts anyone since the incident. He feels depressed a lot of the time and has lost motivation and drive, his smoking of cigarettes has increased and he has developed unhealthy eating habits, gaining weight as a result.
107 After he returned to work, Mr Puterangi experienced short-term memory difficulties and difficulties concentrating at work. He became sensitive and easily got into arguments with his work colleagues.
108 He is now 'standoffish', wary and avoidant of interacting and talking to unfamiliar people, and avoids interactions with others. He particularly avoids people who look like ACW. He feels anxious whenever he talks about or recalls the incident.
109 He has experienced difficulty sleeping, and suffers from insomnia. He is hypervigilant about noises outside his home. He feels tense, insecure and anxious. His feelings of anxiousness result in episodes of physical shaking, difficulty breathing and increased heart rate about once per day, which is triggered by leaving the home and being in public areas, so that he now prefers to stay at home. He leaves the house for the essentials and only travels to familiar places.
110 Dr Ng has specifically commented on the impact of the incident on the following aspects of the Mr Puterangi's life:
(a) Mr Puterangi's personal well-being, self-esteem and confidence remains moderately impaired;
(b) His capacity to engage in general, social and recreational activities remains moderately to moderately severely impaired; and
(c) His capacity to interact with friends and his family remains moderately to moderately severely impaired.
111 A complicating factor is that following the incident Mr Puterangi started to use the illicit drug methylamphetamine. (Both Mr Puterangi and Dr Ng refer to this as 'methamphetamine' but I will refer to it as methylamphetamine). This was, to Mr Puterangi's credit, openly admitted by him in his statement dated 30 November 2015:
I do not trust anyone immediate family friends, anyone I come in contact with absolutely no one. The only one I believe and trust is me, but the reason for that is probably because of my drug addiction to methamphetimen [sic] which I started using about 2 months after the altercation and has only escalated over the last 3 years.
112 According to Dr Ng's report, Mr Puterangi had used methylamphetamine before the incident, but had ceased for many years leading up to and prior to the incident. He had used again since the incident and become dependent. At the time of seeing Dr Ng, Mr Puterangi's methylamphetamine use was a regular habit and he used three times a week.
113 Dr Ng stated that it is known the use of methylamphetamine can lead to the onset of paranoia and clearly Mr Puterangi did develop some degree of paranoia, suspiciousness and a loss of trust in others, which could have been contributed to by his methylamphetamine use.
114 Dr Ng was, however, satisfied that Mr Puterangi had developed at least an anxiety disorder, at its worst to a moderately severe extent, which had since improved to some extent but with ongoing problematic and persistent anxiety symptoms. There was also an associated adjustment disorder with depressed mood to a moderate extent.
115 Dr Ng also stated that the complication of substance abuse, principally methylamphetamine abuse, had contributed to Mr Puterangi's onset of paranoid ideation, which of itself may also partly have arisen as a consequence of the psychological trauma of the incident itself.
116 As to the prognosis, Dr Ng stated that with the further passage of 12 months, he would expect psychiatric improvement to occur. That would be especially so if Mr Puterangi could cease all use of illicit drugs and also if he underwent the psychiatric treatment recommended by Dr Ng, namely antidepressant medication and psychotherapy or counselling.
117 An issue arises as to whether Mr Puterangi's drug use is compensable, even if he started using methylamphetamine as a consequence of the second incident. There are authorities which state that substance abuse, including illicit drug use, is not an 'injury' within the meaning of the Act: Lewington v The Assessor for Criminal Injuries Compensation[2005] WADC 200 [66]; TLW v RBC [2001] WADC 244. The reasons for this were explained by Mueller DCJ in TLW v RBC, a case where the applicant for criminal injuries compensation had been sexually abused:
[33] While I am confident the applicant's early abuse might have contributed in part to her use of illegal drugs I am not satisfied that her addiction constitutes an injury within the meaning of either the 1970 or 1982 Acts. Her abuse of illegal drugs was described by counsel representing the Chief Executive Officer as an 'intervening factor' falling outside the chain of causation. I agree with that submission. I do not believe the definition of injury was ever intended to encompass drug or alcohol abuse following the commission of an offence. The use of illegal drugs is an offence. It is not necessarily something that flows naturally from the commission of the offence. I do not believe it can be seen as a 'malfunction of a person resulting from the impact of events constituting the offence or associated with the commission of the offence as those events impact on the mind or nervous system':Hatfield v Under Secretary for Law (above). Drug addiction is, as Dr Terace described, multifactorial in origin and, even if the applicant's addiction is, as I have found, attributable in some part to her early abuse, it falls outside the scope of the definition of injury.
118 There are other authorities which have held that if substance abuse results from or is secondary to a psychiatric or psychological disorder which is itself a consequence of the commission of the offence, it is an 'injury' under the Act: BKW v JFO [2003] WADC 274; CKM. As explained by Commissioner Derrick (now Derrick DCJ) in CKM [127],after a review of the authorities I have mentioned:
The issue is not free from difficulty. However, in my opinion the better view is that if alcohol abuse or addiction results from, or is secondary to, a psychiatric or psychological disorder and the psychiatric or psychological disorder is itself a consequence of the commission of the relevant offence or offences, the alcohol abuse or addiction can be categorised as an injury amounting to mental and nervous shock. In such circumstances the alcohol abuse or addiction can, in my view, properly be described as a "malfunction of the person" (that is, a failure of the person to function in a normal or satisfactory manner) consequential upon the impact of events constituting the offence as those events impacted on the mind or the nervous system.
119 In this case I have expert evidence from Dr Ng which states that that a contributing cause of Mr Puterangi's symptoms of paranoia is his illicit drug use. Dr Ng does not say that Mr Puterangi's methylamphetamine use is secondary to a psychiatric or psychological disorder. I am unable to make a finding that there is a causal connection between the second incident and his use of methylamphetamine. Accordingly I have concluded that Mr Puterangi's illicit drug use (and its consequences, namely paranoia) is not compensable.
120 In the circumstances taking into account the eye injury, Mr Puterangi's permanently impaired vision, his subsequent loss of enjoyment of life, his anxiety and associated adjustment disorder with depressed mood, I consider an appropriate award for general damages (non-pecuniary loss) is $70,000.
Past Economic Loss
121 At the conclusion of the appeal hearing I invited the solicitors for Mr Puterangi to file further submissions to set out in detail his claims for past and future economic loss. Those submissions were dated 13 September 2017, and filed 14 September 2017, and all the calculations for past loss have been made up to and including 13 September 2017. Similarly future economic loss calculations have been made from that date. Although this judgment has been delivered after 13 September 2017, I consider it sensible to adopt that date for the purpose of calculations.
122 Prior to the second incident, Mr Puterangi was employed as a forklift driver and trades assistant. He had also done some steel fabrication work. The positions he held were on a temporary and contractual basis because the work related to shutting down mine sites. As stated in submissions to the assessor, by letter from Mr Puterangi's solicitors dated 21 March 2016, the work was said to last on average approximately three weeks and when his contract came to an end, he was required to search for another job.
123 At the time of the offence on 25 May 2012, Mr Puterangi had been working for approximately three months as a trades assistant for WorkPac, a labour hire company, but had been contracted to work for Tyco Water - Kwinana Manufacturing (Tyco) for a period of six months. It is said that there was an opportunity to secure stable long term employment with Tyco at the end of his then current contract, but that opportunity was lost when he was injured and unable to return to work.
124 As a result of the second incident, Mr Puterangi was totally unfit for work for a period of about three months. Before the second incident his average earnings were $1,299.20 gross or $1,062.97 net per week.
125 He returned to work with WorkPac on 5 September 2012, however, his employment ended on 5 April 2013. During this period, he earned a total income of $21,997.64 gross or $18,376.84 net.
126 Mr Puterangi then worked intermittently for three different companies between 18 October 2013 and 15 August 2014 earning a net total income of $28,035.77.
127 Since then Mr Puterangi has been unemployed and reliant on Centrelink benefits. Between 15 August 2014 and 13 September 2017 he received benefits at an assumed rate of approximately $228.50 net per week. When assessing Mr Puterangi's past economic loss, those Centrelink payments received must be taken into account, and compensation should be awarded only for the difference between those payments and what he may otherwise have earned if not for his injuries: Zadeh [62] - [63].
128 When assessed by Dr Anastas in December 2015 Mr Puterangi had been actively looking for work, but mentioned to Dr Anastas the reduced vision of his left eye and psychological issues, including concerns about people scrutinising his injured left eye while holding conversation, as potential barriers to holding down a job for an extended period.
129 Dr Anastas in his report stated that Mr Puterangi remained fit for work as a trades assistant, however Dr Anastas mentioned some limitations. First, while Mr Puterangi would qualify for holding a commercial driver's licence, given the qualitative impediment to visual function on the left, special assessment in this regard would be considered appropriate. Secondly, working at heights or with unfamiliar high powered machinery would not be recommended given the reduced stereoscopic (3 dimensional) vision due to the impaired vision in Mr Puterangi's left eye.
130 Dr Ng in his report when asked about the effect of Mr Puterangi's psychiatric injuries on his employment said this:
Following the incident the basis of this claim, your client was unable to be at work for 8 months [sic].
Thereafter, he did return to some type of work but with a different employer.
He reportedly could not trust his work colleagues.
He reportedly became somewhat paranoid with respect to his work colleagues.
He reported became socially anxious about his work colleagues.
The upshot of these were that it led to difficulties with his work colleagues and his employers and hence he had been unable to hold down a job since then.
131 Mr Puterangi claims $184,735.58 for past loss of income for the period 25 May 2012 (the date of the second incident) to the nominal date of 13 September 2017 (approximately 277 weeks) based on the net weekly wage he was earning in his employment before he was injured, less actual earnings and Centrelink payments. There is also a claim for past loss of superannuation benefits in the sum of $29,428.38, and interest at 3% per annum on both amounts.
132 There are some difficulties with these claims and the calculations made by the solicitors for Mr Puterangi.
133 The first difficulty is that the calculations assume that, but for the second incident, Mr Puterangi would have been in constant full-time employment earning what he had earned in the three months or so before that incident. In other words, there is an assumption that had he not been injured, he would have obtained full time long term employment with Tyco. What needs to be assessed is the loss of the chance for Mr Puterangi to work on a full time basis (rather than temporary, casual employment) but for the commission of the offence, applying the principles in Malec v JC Hutton Pty Ltd (642 - 643). There is a difficulty with this because I have no evidence that Tyco was considering offering employment to Mr Puterangi.
134 Secondly, notwithstanding his eye injury, I am not satisfied that he has lost all earning capacity. I accept that due to the nature of the injury to Mr Puterangi's eye and its appearance, there may have been some disadvantage in competing in the open workforce to secure employment. He has, however, demonstrated that he is capable of working for periods from 2012 to 2014.
135 It appears that the principal reason why Mr Puterangi has not worked since 2014 is due to the state of his mental health. From a psychiatric point of view, according to Dr Ng's report the principal factors affecting Mr Puterangi's employment are his social anxiety and paranoia about his work colleagues. As I have set out, Dr Ng's view is that Mr Puterangi's illicit drug use has contributed to his paranoia. Accordingly there should be a reduction for the impact of illicit drug use on Mr Puterangi's earning capacity. As Dr Ng noted when recording the history taken from Mr Puterangi (with italics my emphasis):
He also reported that following the incident he started to use methamphetamine (and that may also have affected his capacity to work).
136 Dr Ng was also of the view that with appropriate treatment and the cessation of illicit drugs, Mr Puterangi's symptoms would improve 'with the further passage of 12 months'. That is a view expressed by Dr Ng two years ago, in December 2015, yet I have no evidence either that Mr Puterangi has sought any treatment for his illicit substance use or attended any doctor to obtain, at the very least, the antidepressant medication he requires. If it is shown that an applicant for criminal injuries compensation unreasonably failed to undergo medical treatment, compensation should be assessed on the basis of the applicant's current medical condition, discounted (either pursuant to common law principles or s 41 of the Act) by the chance it would have improved: Re Bianchi [2012] WADC 147 [31] and [32].
137 The assessment of damages for loss of earning capacity is not an exact science and does not have to involve a mathematical calculation. It is governed by considerations of practical common sense in the context of the facts of the particular case: Insurance Commission of Western Australia v Weatherall [2007] WASCA 264[236] - [241].
138 In the circumstances I propose to utilise the calculations provided by Mr Puterangi's solicitors, but to discount these by 35% to take into account the matters I have identified.
139 I therefore calculate and allow past economic loss in the sum of $161,382, made up of:
(a) past loss of earning capacity in the sum of $120,078 ($184,735.58 x 65%);
(b) past loss of superannuation benefits in the sum of $19,128 ($29,428.38 x 65%); and
(c) interest on those two amounts in the sum of $22,176 ($139,206 x 3% x 5.31 years).
Future Economic Loss
140 Counsel for Mr Puterangi has submitted that due to the nature of the injury to Mr Puterangi's eye he will continue to be disadvantaged in competing in the open workforce to secure employment for which he is suitably trained and able to perform.
141 A claim is made for future loss of earning capacity at the rate of a $1,062.97 net per week as it was his intention to work until the age of 67, less a 30% reduction for contingencies. The total claimed is $432,905.15, plus future superannuation benefits in the sum of $50,265.66.
142 Unfortunately the calculations made by the solicitors for Mr Puterangi proceed on the basis that Mr Puterangi has lost all earning capacity. As I have discussed when looking at past loss of earning capacity, on the medical evidence that is not the case.
143 Accordingly I propose to make a global allowance for future loss of earning capacity of $50,000.
Future Medical Expenses
144 The medical evidence from Dr Anastas is that Mr Puterangi will require ongoing medical reviews and reviews by an ophthalmologist for the foreseeable future.
145 Dr Ng has also recommended future treatment including 16 sessions of psychotherapy, the costs for which are set out in his report. The amount claimed for psychotherapy is $3,652.38.
146 Mr Puterangi makes a claim for future medical expenses which incorporates all of these medical reviews, prescription multifocal lenses and frames, medication, and psychotherapy costs. The total of the claim is $18,277.73.
147 I note that this claim for future treatment is subject to the provisions of s 48 of the Act. The amounts allowed for future treatment are not payable to Mr Puterangi unless and until the prospective expenses have been reasonably incurred. Apart from the psychotherapy costs, most of these future medical expenses will be incurred some time in the future.
148 While the total of the claim of $18,277.73 appears reasonable, I will hear submissions from the parties as to whether I should allow all of the amount claimed, given the requirements of s 48.
Report expenses
149 I will allow the claim for fees incurred for the reviews and reports from Dr Con Anastas and Dr Frederick Ng, in the total sum of $4,367.
Conclusion
150 In summary, I assess Mr Puterangi's compensation award as follows:
Non-pecuniary loss $70,000.00
Past Economic Loss $161,382.00
Future Economic Loss $50,000.00
Report Expenses $4,367.00
TOTAL: $285,749.00
151 There should also be an allowance for future medical expenses (in an amount to be determined).
152 As my assessment exceeds the statutory limit of $147,000, that sum should be awarded. Accordingly, I would allow the appeal, set aside the decision of the assessor, and award compensation pursuant to the Act in the amount of $147,000.
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