Re Richards
[2022] WADC 100
•23 NOVEMBER 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE RICHARDS [2022] WADC 100
CORAM: GETHING DCJ
HEARD: 18 JULY, 9 AUGUST 2022
DELIVERED : 23 NOVEMBER 2022
FILE NO/S: APP 78 of 2021
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: PETER RICHARDS
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: R GUTHRIE
File Number : CIC 2175/2021
Catchwords:
Criminal injuries compensation - Appeal - Adequacy of award - Whether amounts received by the appellant from RiskCover must be deducted from the award - Whether amounts received by the appellant from the National Disability Insurance Scheme (NDIS) must be deducted from the award
Legislation:
Criminal Injuries Compensation Act 2003 (WA), s 42
Representation:
Counsel:
| Appellant | : | In person |
| Amicus Curiae | : | Ms E Tapsell on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Cases referred to in decision:
AA v ARW [2020] WADC 131
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
B v B [2004] WASC 6
B v W (1989) 6 SR (WA) 79
Baker v His Honour Judge Stone of the District Court of Western Australia [2015] WASCA 56
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Blackwell v Warren [2018] WADC 127
Bothma v Hildebrand [2019] WADC 92
Cahill v Smith [2015] WADC 148
CME [2018] WADC 69
Cooper v Smith [2017] WADC 82
East Metropolitan Health Service v Ellis [2020] WASCA 147
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673
Fitzgerald v Penn (1954) 91 CLR 268
G & N v R [2006] WADC 208; (2006) 48 SR (WA) 301
Garton v McCormack (2002) 30 SR (WA) 307
Goodwin v Baker [2020] WADC 43
Gullelo v Halloran [2008] WADC 145
Hansen v Bolton [2017] WADC 25
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) 5
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Houlahan v Pitchen [2009] WASCA 104
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613
M R & R C Smith Pty Ltd t/as Ultratune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992
Milburn-Thomas v Palmer [2020] WADC 158
Mulligan v National Disability Insurance Agency [2015] FCA 544
Nagel v Tahere [2020] WADC 110
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Re Jackamarra [2014] WADC 9
Re Karra (1984) 2 SR (WA) 97
Re Matthews [2017] WADC 126
Re McHenry [2014] WADC 92
Re Wakelin [2018] WADC 165
Re Warrek [2019] WADC 50
RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)
Robinson [2017] WADC 18
S v Neumann (1995) 14 WAR 452
Savic v Duric [2021] WADC 53
Shepherd v Shepherd [2010] WADC 30; (2010) 71 SR (WA) 143
South Metropolitan Health Service v Westcott [2016] WASCA 225
T v Curnuck [2004] WASC 139 [27]
Townend v McAlindon [2017] WADC 63
Underwood v Underwood [2018] WADC 13
Winiarczyk v Tsirigotis [2011] WASCA 97
GETHING DCJ:
Introduction
On 29 January 2016, the appellant, Peter Richards, was the victim of an assault in the course of his duties as a police officer (Assault). The offender, Alexandra Moore, was convicted in the Magistrates Court at Perth on 27 April 2016 of assaulting a public officer. On 13 October 2021, Mr Richards applied for criminal injuries compensation (Application). He was awarded compensation in the amount of $4,000. He has appealed this decision to the District Court on the ground that the award was manifestly inadequate having regard to the psychological injuries which he sustained.
For the reasons which follow, in assessing the Application afresh, I award compensation in the amount of $23,189.91.
The Assault
The statement of material facts (SOMF) for the Assault reveals the following events:[1]
[1] I will refer to the Matter Book provided by the Office of Criminal Compensation using the abbreviation 'MB' followed by the page number. In this instance MB 15.
At about 3.10 pm Thursday the 29th of January 2016, the accused was at the front of the Busselton Hospital, on Craig Street, West Busselton.
The accused had been making repeated threats to self‑harm and as such, uniformed Police approached the accused to make a decision in regards to the Mental Health Act.
The accused has told Police 'I just want to die' and 'Have you come to use your gun on me?'
Police and a Department of Health Social Worker have all told the accused that she is to come inside for the purposes of a Mental Health Assessment. The accused has remained seated, requiring Police to forcibly escort the accused into the hospital.
The accused has stiffened her body, withdrawing her arms to her chest. Fearing the accused would cause injury, Constable GILBERT has drawn her handcuffs.
Assault Public Officer 1:
The accused has thrown herself to the ground, Sergeant RICHARDS has reached down for the accused who has then bitten him to the left forearm (No puncture).
Assault Public Officer 2:
The Accused has kicked Constable GILBERT causing her to be knocked to the ground. Police managed to handcuff the accused who continued to struggle, kicking at Police then attaching herself to a nearby pole. The accused was removed, then a further officer arrived to assist escorting the accused inside the hospital.
The accused continued to pull against Police, dropping her body weight until she was carried to the doorway. The accused has kicked out her legs, then pushed against the doors in an effort to prevent her from being taken into hospital.
Police were directed to a hospital bed, where they carried the accused who continued to struggle, scream and swear.
The accused was issued a Transport Order to Bunbury Hospital for further mental health assessment. During the transport she tried to run away before being placed in the ambulance, then had to be physically removed from the ambulance at Bunbury.
On Saturday the 30th of January 2016, the accused was released from Hospital and arrested by Police. The accused refused to be interviewed, grabbing paper towels, throwing them on the floor along with plastic cups and cardboard boxes.
She was subsequently charged and bail refused.
As a result of the assault, Sergeant RICHARDS had swelling to his forearm. He had blood tests due to the accused's claims that she was a Hepatitis C carrier.
Constable GILBERT had tenderness and minor swelling to her hand which had been impacted on the kick.
Accused gave the explanation that she kicked one officer and bit the other as she was angry and did not want to go inside.
The police file was also before the court in response to a subpoena. There is nothing in the police file to the effect that Ms Moore was sentenced on a different factual basis to that in the SOMF. The SOMF is also consistent with Mr Richards' recollection of the events as set out in his Victim Impact Statement (VIC) filed with the Application.[2]
Events following the Assault
[2] MB 8 - MB 9.
As to the impact of the Assault, this is described in some detail by Mr Richards in his VIS, and which it is instructive to quote:[3]
[3] MB 8 - MB 12.
Introduction
This Victim Impact Statement recounts what I believe was the trigger event of my current diagnosis of Post‑Traumatic Stress Disorder (PTSD), Depression and Anxiety which resulted in my redundancy as a Police Officer and a career that has spanned 22 years since 1980.
Incident
…
Physical and Emotional Impact
As a result of the assault on myself, I had penetrating bite marks on my forearm, which the hospital staff began treating. I was informed that I was required to have mandatory blood tests as MOORE claimed she was a Hepatitis Carrier, hospital records confirm she was High Risk of Hepatitis C.
I was required to have 3 Blood Tests over a 6-month period to ensure that I had not contracted Hepatitis C. I was in shock, which was exasperated when I realised, I had to go home to my Wife and tell her that I had been bitten by a Female carrying Hepatitis C. This rocked me to the core, as I felt that I could not continue my relationship with my wife Alison. My wife at the time was in poor mental health and still finding it increasingly difficult to manage after the loss of our Son, Jonathon in June 2011.
I had been stationed in Perth and Rockingham since March 2012 and had transferred to the Busselton Police Station in August 2015 to reunite with my Wife and provide support to my Family. As I arrived home and informed my wife, she started to cry and be anxious about the event. This made me more upset as I was the sole provider for our family and my wife has not been able to work since our son's death in 2011.
My wife, Alison, told me she could not live without me, and that life would not be worth living without me. I tried to console her about the incident, but she was distraught, and I felt her emotionally pushing me away.
As 6 months passed, I received a negative result. I thought this would has brought me comfort, however I felt no change in my mental state and felt like I had been swallowed by the Earth with no possibility of escape.
My intimate relationship with Alison that we had since 1997 was diminishing as I receded into my own mind to the point where I could not hug her at nights. I found myself being insensitive and short with her as her own Mental Health continued to deteriorate.
At night, I would have dreams of the incident, acquiring Hepatitis C and my Wife taking my family and leaving me alone. I would wake up in cold sweats. I felt a change in myself and slowly other traumatic incidents that I had experienced in my career started to appear in my dreams at night and invading my thoughts during the day.
As the months followed, I felt that I had lost confidence in myself, my ability to make decisions under pressure and provide direction to my staff at the police station. I was unable to provide a guidance on a life decision when my staff came me, this resulted in my responsibilities being undermined and my staff phoning the OIC of the station for advice. This happened on multiple occasions.
On-going Psychological Impact
My family and friends would continuously ask me if I was Ok, I would put on a Front and say everything was Ok, when I knew it was not. I turned to alcohol to Block the thoughts I had during the day and stop the dreams at night, it was a source of comfort.
I was never a heavy drinker in the past and found myself consuming 2 bottles of wine a night along with Prescription drugs. The dreams, thoughts, initial incident with MOORE and countless other traumatic events felt relentless, I could not escape.
I felt like crawling into a hole, I would sit in the Police Station and only go on the road as a supervisor, allowing the other Police Officers to make the decisions. This made me feel helpless, in consultation with the OIC of the Police Station, I forced myself to rediscover my abilities and skills in my career that had spanned decades. It did not work; I was just going through the motions.
It took me months to get over the feelings of being upset, depressed, helpless, aggressive, and angry, I felt like I was dying inside. I continued to attend several other traumatic incidents, from major road crashes accidents that resulted in fatalities to members of the community completing suicide. I found myself increasingly emotional when I would attend these scenes, this was extremely out of character for me as I never used to show or be open with my emotions publicly. I was a professional Police Officer who could compartmentalise and process the scenes that I had witnessed.
I loved my Job, I loved being a Police Officer and assisting those in our Public that needed help. I joined in September 1980 and had enjoyed and felt purpose in my career until this incident and the subsequent incidents that followed. It was at this time that I started to attend Police health and Safety and speak with Psychiatrist Helen Piirto.
Diagnosis and Redundancy
To my shock, she diagnosed me with PTSD and placed me on prescription medication. I was upset, disappointed, confused and was confronted with the knowledge that my Policing Career was possibly over. I was referred to several Mental health professionals which resulted in receiving counselling and sessions of ERDM from Wayne McIntosh Counselling Psychologist, Bunbury.
This resulted in me accepting a redundancy in November 2018 after being told by the Police Hierarchy that by accepting a redundancy now it was better than accepting nothing later. As the Police Compensation Act was not in place at the time, there was no additional compensation, no pension and no financial security for me or my family, just the door that would see my career end. This absolutely devasted me.
My wife and I decided to move to Ballarat, Victoria and live with our eldest son Luke whilst we found our feet. In Ballarat, I was referred to a local Phycologist and placed on the Australian Disability Pension with my wife as my primary carer and minimal assistance from the NDIS. I was diagnosed with Anxiety and Depression in addition to my on‑going PTSD.
I am still very depressed and feel that life has no meaning, I have had extraordinarily little to no improvement in my mental health since the initial incident. In fact, my life has spiralled in a downward direction due to the additional financial stress that my Wife and I must navigate through every day.
I continue to attend Sound Psychiatry every 2 weeks for on-going support. I am currently receiving Transcranial Magnetic Stimulation (TMS) through NeuroCentrix, Noble Park, Melbourne for Anxiety, Depression and PTSD, that involves 30 intensive sessions.
In August I will be attending The Geelong Clinic, Geelong, as an outpatient for a 12-week PTSD treatment Program which involves individual and group therapy exploring PTSD education, anxiety, and anger management, along with drug and alcohol education. My Partner is also invited to attend partner support groups and relationship sessions.
Conclusion
I still think of my time as a Police Officer, and this upsets me greatly because of the situation I have found myself in. I had given over 22 years of my life to the Police Force and honestly believe, with the correct help, guidance, and assistance I still could have be[en] working in the Police Force serving the West Australian Community.
Instead, my problems were diagnosed, the correct help not given, I was made redundant, shown the door, and given no compensation for something I did not contribute too or am at fault for. This has resulted in me being unable to work or seek additional financial ventures to improve my degrading situation and provide financial support to my family.
I miss being a Police Officer every day of my life and knowing that I gave over 22 years of my life to the West Australian Community to receive nothing back, breaks my heart.
Mr Richards' assessment with Dr Piirto was on 16 July 2018 and was at the request of vocational rehabilitation staff of the police. At this stage he was 60 years old. Dr Piirto reported that at the time of assessment Mr Richards had not been at work for the preceding six weeks because of anxiety. He reported missing being at work. Dr Piirto diagnosed Mr Richards as presenting with a chronic post‑traumatic stress disorder (PTSD), which was related both to occupational and personal stressors. She also diagnosed him as presenting with a major depressive disorder, which had improved, but was not yet in partial remission. Dr Piirto noted that Mr Richards was then receiving psychological counselling from Wayne McIntosh, which she commented as being appropriate. She made some recommendations as to his medication. She estimated that, as at that date, Mr Richards would require at least a further four weeks off work, following which he may be in a position to start discussing a return to work program. As to his prognosis, she opined:[4]
[4] MB 29 - MB 32.
Question Four: Prognosis
Answer:This is reasonable insofar as Sergeant Richards has worked as an Operational Police Officer for many years, despite having chronic PTSD and associated chronic mood symptoms, as well as depressive phenomena following the death of his stepson. Hence there is every reason to believe that he can return to work effectively in an Operational capacity in the foreseeable future.
…
Question Six: Opinion on fitness for active service in the short, medium and long term.
Answer:Sergeant Richards is unlikely to be fit to return to Operational duties in the short term. However, in the medium term this will be possible, and in the long term quite probable.
In August 2018, Mr Richards was seen by Dr Stephen Proud, a psychiatrist. As to Mr Richards' psychiatric history, he reported:
He has never had psychiatric problems in the past. He has had a lot of trauma during his time as a policeman, including in his first year as a constable seeing someone's head blown off with a shot gun, and then seeing a 14 year old boy who had been crushed in a farm accident. However, closer to home, his stepson died in a car accident in 2011 and his wife's nephew died in her [sic] 40's from a myocardial infarction a year ago.
He had to attend a coronial this year for a 43 year old man who died suddenly from an infarct, and this brought up memories of his wife's nephew.
That's probably when he began to struggle and be distracted and withdrawn at work. This was noticed by his boss. He is very happy working. He has a good boss and good colleagues, and he wants to continue working up to the age of 70. However, he has been off work since March of this year, is seeing Wayne MacIntosh through the EAP and five weeks ago through WA Police Health and Welfare saw the psychiatrist Dr Helena Piirto, who started him on Lexapro 10 mg, and in the last week it has gone up to 20 mg. He also takes occasional Temazepam, Oxazepam and Mersyndol. None of them have really helped him and he still has sleep problems with nightmares and disturbing eidetic images. He has a moderate level of depression and anxiety but he is not suicidal. He does not own a gun.
He is on sick leave and I continued that for the next month. He has no lawyer or union but will be seeking workers compensation, but overall he wants to get back to work.
Dr Proud opined that Mr Richards had PTSD, moderate severity, 'chronic but because of his positive attitude to work at this stage he as a good prognosis'.[5]
[5] MB 34 - MB 35.
During the period of April to December 2018, Mr Richards was seeing Mr McIntosh. This was through the police employee assistance program. Mr Richards described to Mr McIntosh a number of traumatic events. Given that causation is the central issue in this appeal, it is instructive to set them out in detail:
Mr Richards reported that he has experienced two significant personal traumas in the last eight years including the tragic death of his stepson in an off‑road traffic accident in 2011 and the sudden death of his 42‑year‑old nephew in 2017. In both cases Mr Richards reported that he was very involved in both men's lives offering the guidance and nurturing of a father type role. Mr Richards reported that he undertook the responsibility of arranging funerals and being the emotional supporter for his wife and his nephew's wife and family. A task that Mr Richards took on with pride and as a matter of duty, he now acknowledges that there was limited opportunity for him to grieve his own loss.
As a Police Sergeant Mr Richards reported that it was his duty to guide and inform the newer recruits and less experienced officers in the practice of policing and he acknowledged that at times he would take on the tasks of informing families in an official capacity of the death of their family member, and in a way protect his less experienced colleagues from having to deliver tragic news.
Similarly, in his position as Police Sergeant, it was his role to attend sudden or suspicious deaths, murders, suicide, traffic accidents and misadventures that included significant injuries and or death. Mr Richards reported on several scenes that he attended whereby he witnessed death, with a case involving a 14‑year‑old boy in a farming accident that had a significant impact on his emotional wellbeing. Mr Richards acknowledged that this incident resonated with him as he recognised the grief in the boy's father that Mr Richards had experienced with the death of his son.
Mr Richards reported that he felt as though he was unable to discuss his feelings with his wife, as although they are close, he didn't want to burden his wife with his own grief. Mr Richards also acknowledged that whilst mental health and the welfare of police officers had improved in the latter years of his service, he still adopted a 'I should be able to handle these situation' type attitude.
There are multiple examples of trauma that Mr Richards has disclosed.
…
As at the date of Mr McIntosh's report in February 2019, Mr Richards had taken a redundancy package and was in the process of moving to Ballarat. Mr Richards reported to Mr McIntosh that he was continuing to struggle with anxiety and recurring nightmares and was intending to access psychological support in Ballarat.[6]
[6] MB 36 - MB 37.
There is then a report from Dr Madeline Fernbach, a clinical psychologist, dated 19 August 2019. Dr Fernbach practices in Ballarat. As with Mr McIntosh, Mr Richards disclosed to Dr Fernbach a number of traumatic incidents, which it is again instructive to quote:
Mental Health
Mr Richards has a history of exposure to traumatic events, both direct and indirect. These include:
•his role as the police officer attending a suicide in 1980/1981 in which he knew the victim;
•his role as the attending officer in 2008 at an accident where a person was run over by a train;
•loss of his stepson to a motorbike accident in 2011;
•more than a hundred reports he prepared for evidence into coronial deaths including cot deaths of babies;
•in 2014, attending officer of a boy crushed to death by a tractor and being required to prepare the file for the coronial inquiry;
•attendance at multiple hangings and suicides;
•in 2016, the sudden death of a family member;
•in 2018, attending a coronial death similar to that of his family member.
The final coronial death in 2018 triggered flooding memories of many traumas, requiring several months off work.
Mr Richards reported to Dr Fernbach that he was then drinking heavily and was on a range of medications. He had poor attention and concentration, low motivation and poor memory. He presented with symptoms of severe stress, anxiety and depression, along with strong levels of dissociative thought processes. Dr Fernbach opined that Mr Richards' history, responses to assessment and presenting issues were consistent with, and indicative of, a diagnosis of PTSD with dissociative symptoms.[7]
[7] MB 38.
In a report dated 25 October 2019, Dr Fernbach added that Mr Richards was then unable to work either full‑time or part‑time in any capacity for at least three years and that it was likely that he would be unable to work at any time in the future.[8]
[8] MB 39.
On 3 April 2020 Mr Richards was reviewed by Associate Professor Abdul Khalid, a consultant psychiatrist, who provided a medico‑report dated 14 April 2020. This was arranged for insurance purposes, presumably by his by that time former employer, the police. As to the history of his symptoms, Mr Richards told Dr Khalid the following:
Mr Richards said that in 2017 he had lack of performance and had 'cloud over my head'. He said that he was having recurring dreams of the events which he had attended in his role as a police officer and waking up with sweats. He said that he felt sick in the morning and had nerves, anxiety and dry retching. He said that he had lack of energy. He said that he had to depend on his wife to provide him support. He said that he could not think straight and the hierarchy picked it up.
Mr Richards reported 'memories of traumatic incidents he had attended both as a police officer and in his personal life'.
At the time of that appointment, Mr Richards was having weekly sessions with Mr Eitan Daniel, a psychologist, and was under the care of a psychiatrist. He was taking a number of medications for his symptoms. However, they were not improving with treatment. Those symptoms included decreased concentration, forgetfulness, nightmares, most nights waking up in sweat, waking up in the morning feeling physically sick, anxiety and a shaking hand. He was drinking heavily and reported what I would describe as a socially isolated lifestyle.
Dr Khalid diagnosed Mr Richards as having PTSD and a major depressive disorder. He did not consider that Mr Richards' symptoms would be likely to improve with further treatment, commenting that Mr Richards had undergone all reasonable medical treatment for his conditions. He opined that Mr Richards had reached maximal medical improvement for his conditions. He further opined that Mr Richards was not then fit for work, even in a sedentary role, observing that the likelihood of Mr Richards returning to work even on a casual or part-time basis was 'fairly remote'. He was of the view that Mr Richards' short-term and long‑term prognosis for six months, one year and three years was poor.[9]
[9] MB 40 - MB 47.
On 24 February 2021, Mr Richards had an appointment with Dr Arup Dhar, a psychiatrist, on referral from his general practitioner. Dr Dhar noted Mr Richards' history of PTSD 'suffering from trauma when working as a Policeman'. On that occasion, Mr Richards reported ongoing symptoms of anxiety, flashbacks, nightmares, low moods and poor motivation, though not thoughts of self-harm or suicide. Dr Dhar also noted that Mr Richards was then seeing Eitan Daniel, a psychologist, on a weekly basis. In his report to the general practitioner, Dr Dhar made some recommendations as to changes in medication.[10]
[10] MB 23 - MB 24.
On 11 March 2021, Mr Richards had a further appointment with Dr Dhar. Dr Dhar noted that Mr Richards' PTSD symptoms had been reasonably stable since his last appointment some three weeks prior. He continued to report nightmares, hyper vigilance, insomnia, significant anxiety, low moods, decreased enjoyment and poor motivation. He reported some improvement in sleep as a result of a medication change.[11]
[11] MB 22.
Application for compensation
On 13 October 2021, Mr Richards applied for criminal injuries compensation (Application). The Application was outside the time limit set in CICA s 9(1), being (relevantly) within three years after the date on which the offence to which it relates was committed. However, by CICA s 9(2), 'an assessor may allow a compensation application to be made after the three years if he or she thinks it is just to do so and may do so on any conditions that he or she thinks it is just to impose'. Ultimately, this is what appears to have occurred in the present case (though there is nothing in the materials before the court provided by the Office of Criminal Injuries Compensation specifically addressing this issue).
In the Application, Mr Richards only claimed compensation for loss of earning capacity. He did not make any claim for treatment expenses. This, he explained in the hearing before me, was on the basis that these were being paid for by RiskCover pursuant to the Police (Medical and Other Expenses for Former Officers) Act 2008 (WA) (Former Officers Act). So the only two heads of damages which the Assessor had to assess was loss of earning capacity and general damages. Having said that, there was an amount of $208.65 of treatment expenses which were paid as criminal injuries compensation prior to the determination, being expenses paid by his employer.[12]
[12] MB 18, MB 50.
In relation to the claim for loss of earning capacity, the materials in the Application disclosed the following:[13]
[13] MB 52 - MB 67.
Financial year ending
Gross taxable income
Net taxable income from police
30 June 2017
$111,644
($117,055 from police less deductions)
$82,575 30 June 2018
$111,067
($115,780 from police less deductions)
$81,658 30 June 2019 $101,888
($77,692 income and
$24,650 eligible termination payment)
$74,416 30 June 2020 $87,520 (police and other unspecified)
Also a pension of $8,314
Not shown in materials provided 30 June 2021
$66 (interest) N/a
On 19 October 2022 a CIC Assessor (Assessor) awarded compensation in the amount of $4,000 (Decision). The Assessor further ordered that pursuant to CICA s 45(1)(a), further proceedings under CICA pt 6 be barred. The Assessor did not provide written reasons for the Decision.
Appeal to the District Court
By Appeal Notice filed 5 November 2021, Mr Richards appealed from the Decision. The Appeal Notice was filed within the required 21‑day time limit.[14]
[14] Criminal Injuries Compensation Act 2003 (WA) (CICA) s 55(3).
On 10 December 2021 the Chief Executive Officer of the Department of Justice (CEO) filed a memorandum of appearance. At a directions hearing on 1 February 2021, the CEO was given leave to appear as amicus curiae.
At the same directions hearing, an order was made removing Ms Moore's name as the respondent to the Appeal. This was because of the order made by the Assessor barring proceedings against her pursuant to CICA pt 6.
The CEO filed comprehensive written submissions on 13 July 2022. Mr Richards filed submissions on 14 July 2022. I have also been provided with a Matter Book.
The Appeal was heard by me on 18 July 2022. Both Mr Richards and counsel for the CEO appeared by audio link at the hearing on 18 July 2022. Among other matters, counsel for the CEO made submissions as to the application of CICA s 42(3) in relation to payments made by RiskCover to Mr Richards. That subsection provides that an assessor, and thus the court, 'must deduct from a compensation award in relation to any loss suffered by a victim any amount that the victim has received, whether under a contract of insurance or otherwise, for the injury or loss'. There is no discretion in CICA s 42(3). The assessor, and hence the court, must deduct the amount required by that subsection.
In the course of preparing reasons for decision, two outstanding issues emerged. The first was that the total amount paid by RiskCover to Mr Richards was not apparent from the materials then before the court. The second was that I had not heard from either Mr Richards or counsel for the CEO on the issue of whether the funding received by Mr Richards pursuant to the National Disability Insurance Scheme (NDIS) fell within the scope of CICA s 42(3). Accordingly, I convened a directions hearing on 9 August 2022 at which both Mr Richards and counsel for the CEO appeared. I made programming orders to facilitate updated information being obtained from RiskCover and further submissions being filed. The CEO filed further submissions on 19 September 2022. Mr Richards filed further submissions on 29 October 2022, along with some correspondence setting out some further information.[15]
[15] These letters have been lodged as court documents.
In hearing the Appeal, the court 'must decide the application to which the Decision relates afresh, without being fettered by the Assessor's decision'.[16] The appeal is a hearing de novo.[17] I am to treat the Application as if it came before the court for the first time.[18] Mr Richards does not have to demonstrate an error on the part of the Assessor in order to succeed.[19]
[16] CICA s 56(1).
[17] Savic v Duric [2021] WADC 53 [21] (Gething DCJ) (Savic); Underwood v Underwood [2018] WADC 13 [19] (Gething DCJ) (Underwood); Robinson [2017] WADC 18 [7] (Troy DCJ); Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude) (Gullelo).
[18] Savic [21]; Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcom CJ).
[19] Savic [21]; Underwood[19]; Gullelo [5].
In deciding the appeal, the court, like the assessor, is not bound by the rules or practice as to evidence or procedure and may inform itself in any manner it thinks fit.[20]
[20] CICA s 18(2).
The court must determine the Appeal 'solely on the evidence and information that was in the possession of the Assessor or may receive further evidence and information'.[21] Mr Richards seeks to rely on some further evidence, being:
[21] CICA s 56(1).
(a)a letter from psychologist, Mr Eitan Daniel of Sound Psychology Ballarat, dated 2 February 2022;
(b)a letter from consultant psychiatrist, Dr Louisa Du Toit of Geelong Psychiatry Practice, dated 23 April 2021;
(c)a letter from Dr Du Toit dated 10 June 2022;
(d)a letter from Ms Alison Richards (Mr Richards' wife), dated 1 July 2022;
(e)a Centrelink 2021/2022 PAYG Payment Summary, dated 6 July 2022;
(f)a letter from a RiskCover acting Commercial Claims Officer, Ms Leanne Tinsley, dated 5 July 2019;
(g)an NDIS Plan for period 21 May 2020 to 20 May 2023; and
(h)a letter from Victorian Mortgage Group dated 23 May 2022.
which I will refer to as the 'Further Evidence'.
There is no need for an application as the power to receive the Further Evidence is in CICA s 56(1).[22] Nor is any requirement for the Further Evidence to be 'fresh' or new (in the sense of not being reasonably available at the time the Decision was made), as CICA s 56(1) refers to 'further' evidence. As the appeal is a fresh hearing, further evidence should be admitted unless there is some reason why it would be unjust to do so, especially given the informal nature of a hearing before an assessor.[23]
[22] Savic [23]; Underwood [36]; Cahill v Smith [2015] WADC 148 [8] (Wager DCJ).
[23] Savic [23]; Milburn-Thomas v Palmer [2020] WADC 158 [51] (Lonsdale DCJ) (Milburn-Thomas); Nagel v Tahere [2020] WADC 110 [35] (Gething DCJ) (Nagel); Underwood [37].
The central issue in the determination of the Appeal is the extent to which Mr Richards' current symptoms of PTSD are referrable to the Assault. The Further Evidence is of significance to the determination of this issue. There is no reason why it would be unjust to receive the Further Evidence, so I do.
To the extent that the information provided by Mr Richards after the hearing on 9 August 2022 constitutes evidence as opposed to submissions, it is also just to receive this material.
It is open to the court to confirm, vary or reverse the Decision, either in whole or in part.[24] As the Appeal is a fresh hearing, it is necessary for me to determine all matters relating to the Application. So it is open to the court to increase or decrease the award of compensation even if no cross-appeal is filed.[25]
[24] CICA s 56(2)(b).
[25] Savic [27]; Nagel [28]; CME [2018] WADC 69 [11] (Bowden DCJ).
Issue arising for determination
The sole stated ground of appeal was that the award was inadequate in all the circumstances.
The Application was made pursuant to CICA s 12, which provides that a 'person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered'. It is not in issue that the Assault is a proven offence for the purposes of CICA s 12.
Given the nature of an appeal of this kind, the following issues arise for determination:[26]
•Should Mr Richards be given leave to commence the Application out of time?
•What are Mr Richards' symptoms and injuries?
•Were Mr Richards' symptoms and injuries suffered injuries as a consequence of the commission of the Assault?
•If so, what award of compensation is appropriate?
•Do the payments received from RiskCover have to be deducted from the award of compensation pursuant to CICA s 42(3)?
•Do the payments received from NIDS have to be deducted from the award of compensation pursuant to CICA s 42(3)?
•What final orders are appropriate?
[26] See generally: Baker v His Honour Judge Stone of the District Court of Western Australia [2015] WASCA 56 [42] (judgment of the court) (Baker); Cooper v Smith [2017] WADC 82 [13] ‑ [14] (Derrick DCJ) (Cooper).
Should Mr Richards be given leave to commence the Application out of time?
I have set out at [17] the power of an assessor to extend the time limit within which an application may be commenced. This power is to be exercised afresh by the court, which can make any order that an assessor could make.[27]
[27] CICA s 56(2).
The policy behind the time limit was explained by Herron DCJ in Hansen v Bolton:[28]
An assessor may allow an application for compensation to be made after the three‑year period if he or she thinks it is just to do so, and may do so on any conditions that the assessor thinks it is just to impose. The onus is on [the applicant] to explain to the satisfaction of the court the reasons for the delay in bringing the application. There are strong policy reasons for imposing limitation periods and ensuring they are complied with. The time limit set out in the Act is a substantive provision of the Act and not merely a procedural time limit imposed by the rules of court. As such, it ought not be treated with the indulgence appropriate to merely procedural rules. The burden on [the applicant] is thus no triviality and the applicant must make a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time.
[28] Hansen v Bolton [2017] WADC 25 [12] (Herron DCJ) (Hansen).
The power to extend the time limit is discretionary, indicated by the word 'may' in the grant of the power in CICA s 9(2). The overriding consideration pursuant to CICA s 9(2) is whether it is 'just' to do so.[29] Factors that may be relevant to the exercise of the court's discretion under s 9(2) include:[30]
(a)the history of and background to the proposed application;
(b)the length of the delay;
(c)the reasons for the delay;
(d)the prospects of the compensation application succeeding;
(e)the consequences for the parties of the grant or refusal of an extension of time, including the extent of any prejudice to the offender; and
(f)whether injustice will be suffered if an extension of time is refused.
[29] Re McHenry [2014] WADC 92 [27] (Herron DCJ) (McHenry).
[30] Hansen [14]; McHenry [20] - [27]; Re Jackamarra [2014] WADC 9 [19] - [23] (Schoombee DCJ).
There is nothing in the history of, or background to, the Application which suggests that the present case is not one in which the discretion to extend time should be exercised.
As to the length of the delay, the Assault occurred on 29 January 2016. The time limit expired on 29 January 2019. The Application was made on or about 13 October 2021, approximately 2 years, 8 ½ months outside out of time.
As to the reasons for the delay, in a statement from the Appellant titled 'Extension of Time Application' dated 27 June 2021, Mr Richards told the assessor:[31]
The reason that I had not completed my Criminal Compensation Application within the 3 years' time frame was that I was suffering from Anxiety, Depression and PTSD that affected my Mental Capacity in applying.
My ongoing treatments for Anxiety, Depression and PTSD have been addressed in my Victim Impact Statement.
[31] MB 13.
As to the prospects of the compensation application succeeding, as the Assault was the subject of a conviction, the only issue in the Application was quantum.
The consequences for Mr Richards in the refusal of an extension of time is that he will be precluded from claiming compensation. As to any prejudice to the offender, Ms Moore, as an order was made barring proceedings against her pursuant to CICA pt 6, there can be no prejudice to her. She is taking no part in the appeal. Further, this is not a case in which the delay has impacted the ability of the assessor to assess the evidence relevant to the determination of the Application. If anything, the delay has meant that the long-term consequences of the Assault have become apparent, enabling a more 'just' assessment.
On balance, I am satisfied that Mr Richards will suffer an injustice if an extension of time is refused. I accept the explanation given by him as being reasonable. The consequences for him of an extension not being given, in the absence of any countervailing prejudice, mean that he has satisfied me that it would be just to grant the extension.
What are Mr Richards' symptoms and injuries?
The Further Evidence provides an update as to Mr Richards' current symptoms, diagnosis and prognosis.
Mr Richards was referred to Dr Du Toit, a psychiatrist, for participation in a PTSD recovery program. Dr Du Toit reported to Mr Richards' general practitioners by letter of 23 April 2021. As to the commencement of PTSD symptoms, Mr Richards reported the following to Dr Du Toit:
Peter first displayed symptoms PTSD in 2016. This was in the context of attending the death of a young teenage boy and a few days later being bitten by an HIV‑positive person. He recognises the cumulative effect of attending multiple incidents over his years working in the police force, which included attending traffic accidents, suicides, SIDS deaths, family violence and aggression. Trauma or deaths related to children tends to affect him more deeply.
At that time of his initial mental health difficulties he experienced increased anxiety and struggled to perform his normal day‑to‑day tasks. His concentration declined and he struggled with decision‑making. He experienced vivid recurring dreams, especially nightmares of traffic accidents, and would often wake up in sweats. He also described flashbacks. In context of this he started struggling to find meaning and purpose in this job.
She goes on to opine:
Peter appears to have PTSD relating to numerous assaults and traumatic incidents that he was witness to. He continues to experience PTSD symptoms, but is also greatly afflicted by moral injury/guilt/shame and reduced self‑worth due to experiences as well as the PTSD. His wife and family are largely protective, and he has also enjoyed going to Men's Shed.
Dr Du Toit goes on to make some treatment suggestions and to confirm that Mr Richards would benefit from doing the PTSD group at her clinic.
Dr Du Toit wrote a letter dated 10 June 2022 advising that Mr Richards had completed the PTSD program at her clinic. She noted that while Mr Richards had found the group useful, his mental state had started to deteriorate again over the preceding weeks. At that time, he reported struggling with low energy and poor motivation, with increased incidence of nightmares, flashbacks, anxiety, poor memory and poor concentration. He continued to be on medication.
Also in the Further Evidence is a letter from Mr Daniel, Mr Richards' psychologist, whom he had been seeing on a fortnightly basis since the end of January 2019. Mr Daniel describes the onset of Mr Richards' symptoms in the following terms:
Mr. Richards has been dealing with PTSD symptoms stemming from his accumulative exposure to traumatic incidents as part of his duties with the Western Australian Police force. An incident where he was bitten in 2016 is considered the tipping point of his PTSD onset however, this event was preceded by a large amount of exposure to a significant and large number of critical incidents.
It does appear that a complicating factor to this accumulative impact of stress and anxiety may be attributed to police culture, procedures including a lack of support to identify, reduce and track the impact of critical incident exposure of Mr. Richards.
Mr Daniel goes on the describe Mr Richards' positive attitude to his treatment to date and the gains he has made, noting that his long-term recovery will not be a linear one.
I readily accept from the materials before the court that Mr Richards suffers from PTSD, with what I find to be an associated major depressive disorder. On the materials before the court, he appears to have been first formally diagnosed with these conditions by Dr Piirto in July 2018. His symptoms preceded this date, an issue which I will return to next. His symptoms have been present since at least July 2018, and he has been treated both medically and psychologically on a consistent basis since then.
The next issue which arises is whether PTSD is an 'injury' for the purposes of the CICA. The term 'injury' in CICA s 12, s 16 and s 30 includes 'mental and nervous shock'.[32] This phrase contemplates the impact of the offence on the mind or nervous system.[33] It refers to 'mental or emotional harm as opposed to physical injury or bodily harm'.[34] It must be of an enduring character so as to amount to an injury, as opposed to a mere emotional reaction.[35] For example, mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress and disgust are seen as compensable.[36]
[32] CICA s 3.
[33] Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) 5 (Burt CJ); Savic[45]; Underwood [83].
[34] S v Neumann (1995) 14 WAR 452, 461 (Murray J) (Neumann); Savic [45]; Underwood [83].
[35] Neumann (461); Savic [45]; Underwood [83].
[36] Savic [45]; Underwood [83].
The PTSD suffered by Mr Richards, as described above, falls within the definition of 'mental and nervous shock' in CICA s 3, and thus the definition of 'injury' in the CICA. So it is an injury which could be the subject of an award of compensation pursuant to the regime in the CICA.
There is a further limitation in CICA s 35(2)(b) which is that, relevantly, an 'assessor must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence, or for any loss in respect of such shock, unless the assessor is satisfied that the victim was the person against whom the offence was committed'. Mr Richards falls within this limitation.
Were Mr Richards symptoms and injuries suffered injuries as a consequence of the commission of the Assault?
'An assessor must not make a compensation award in respect of a compensation application unless satisfied that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence'.[37] 'Satisfied' means 'satisfied on the balance of probabilities'.[38]
[37] CICA s 12(3).
[38] CICA s 3.
The words 'as a consequence of' require a causal relationship or connection.[39] Whether that causal relationship exists is 'essentially a question of fact, to be resolved as a matter of common sense'.[40] It is sufficient that, as a matter of ordinary common sense and experience, the Assault should be regarded as having 'materially contributed' to the injury, in the sense that it was 'one cause' or 'a cause' of the injury sustained by Mr Richards in the sense that it played 'some part' in contributing to the injury.[41] As Mason and Wilson JJ observed in Fagan, the 'fact that other unconnected events may also have had some relationship to the occurrence is not material if the criminal act was a cause, even if not the sole cause'.[42]
[39] Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673 (Mason & Wilson JJ) (Fagan); Savic [33]; Underwood [87]; Townend v McAlindon [2017] WADC 63 [36] (Sleight CJDC); T v Curnuck [2004] WASC 139 [27] (Barker J); B v B [2004] WASC 6 [14] (Barker J).
[40] Fitzgerald v Penn (1954) 91 CLR 268, 277 (Dixon CJ, Fullagar & Kitto JJ); Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 ‑ 413 (Mason CJ, Deane & Toohey JJ); Fagan (673); East Metropolitan Health Service v Ellis [2020] WASCA 147 [277] (judgment of the court) (Ellis); Savic [33]; Underwood [87].
[41] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd[2013] HCA 10; (2013) 247 CLR 613 [45] (French CJ, Hayne & Kiefel JJ); Ellis [597] - [699]; Savic [33]; Underwood [87].
[42] Fagan (673); AA v ARW [2020] WADC 131 [38] (Gething DCJ) (AA); Underwood [88].
It is readily apparent that by January 2016 when the Assault occurred, Mr Richards had experienced a significant number of traumatic events, both professionally and personally. These are succinctly summarised by Dr Fernbach in the quote at [9]. Interestingly, the Assault does not feature in this summary.
However, for four reasons, I am satisfied on the balance of probabilities that Mr Richards PTSD symptoms were materially contributed to by the Assault.
The first is that on the materials before the court, Mr Richards' first showed symptoms of PTSD in 2016. Although he experienced traumatic events in the past, and was no doubt impacted by them at the time, these events did not give rise to PTSD symptoms. In particular, he was able to continue work as a police officer. There were then three events which, from the reports in evidence, appear to have precipitated the onset of symptoms of PTSD. The first was the Assault in January 2016 ([44], [46]). The second was the death of a young teenage boy shortly prior to the Assault ([44]). The third was attending a coronial inquest in 2018 of a 43‑year‑old man who died suddenly from an infarct which appears to have brought up memories of the death of his wife's nephew ([7], [9]).
The second is the description of the impact of the Assault in Mr Richards' VIS ([5]). In particular, he describes having to have three blood tests over a six‑month period to ensure that he had not contracted Hepatitis C. The impact of the Assault was thus very much present in his mind as a continuing reality over a prolonged period, as opposed to being a distinct event. He describes the impact of this uncertainty on his relationship with his wife. He also describes how he would dream of this incident, acquiring Hepatitis C and his wife leaving him, leading him to wake up in a cold sweat. And:[43]
I felt a change in myself and slowly other traumatic incidents that I had experienced in my career started to appear in my dreams at night and invading my thoughts during the day.
So the Assault appears to have had a catalytic effect which the other events which I referred to at [55] did not.
[43] MB 10.
The third is the statement provided by Mr Richards' wife, Alison. She described the six‑month period during which Mr Richards was required to go through testing for Hepatitis C as being 'a very turbulent period of our lives, placing additional stress on our marriage'. She continues:
5…. Since the incident with MOORE, he would often wake up at night, in cold sweats, having vision of the incident. I believe the incident was the trigger point and cause for his rapid decline in mental health, but this wouldn't be confirmed until much later.
6.I watched the sole provider and father of my children's Mental Health continue to decline and I was unable to support him as I watched him became withdrawn and reclusive from all aspects of his personal, work, and social life. My partner, Peter, has always been a stoic and religious man and although he would tell me previously about Major Crash incidents or suicides, he carried that burden well. It was shocking to discover that as he continued to attend and investigate other traumatic incidents and major crashes post the incident with MOORE, he would become overly emotional when he returned home. I could see that it was overwhelming him, and I encouraged him to see a psychiatrist.
7.It was at this time he was diagnosed with Post Traumatic Stress Disorder (PTSD) and placed on prescription medication which adversely effected my own mental health. It is my belief that the incident with MOORE was the trigger for his PTSD, as he seemed to be unravelling physically, mentally, not sleeping and having night terrors.
8.I then watched as my Husband was forced to accept a partial redundancy in November 2018, leaving our family with no financial security, pension or compensation for his life dedicated as a public servant. This triggered my anxiety and depression as I did not know how to assist or aid my Husband and he did not know how to assist the family or me.
9.As we now reside in Ballarat with my son, Luke, Peter has been continually receiving Treatment, unable to work, and I, his full‑time carer. This incident, was the key that unlocked my Husbands mind, opening the gates to PTSD.
The fourth is the observation by Mr Daniel that it was the Assault which was the 'tipping point' of the onset of PTSD symptoms ([46]). I am prepared to give some weight to his observation as he has been working with Mr Richards on a very regular basis for over three years.
For these four reasons, I am satisfied that the Assault materially contributed to Mr Richards developing PTSD in that, as a matter of common sense and experience, it played some part in contributing to this injury; in my view it was a significant part, on the evidence being the tipping point or catalyst for Mr Richards to begin exhibiting symptoms which were eventually characterised as amounting to PTSD. Accordingly, I am satisfied that the PTSD sustained by Mr Richards was 'as a consequence of' the Assault.
What award of compensation is appropriate?
As to quantum, the general power of an assessor is contained in CICA s 30. It provides that 'on application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered'.[44]
[44] CICA s 30(1).
The correct approach to adopt in assessing the amount of compensation under the CICA is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the CICA, and to the jurisdictional limit of the CICA.[45]
[45] Savic [47]; AA [40]; Bothma v Hildebrand [2019] WADC 92 [40] (Gething DCJ) (Bothma); Underwood [113]; M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992 (Scott J); RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974) 3 (Burt J) (RJE).
The jurisdictional limit is $75,000.[46] This maximum is a jurisdictional limit and is not reserved for the worst cases.[47]
[46] CICA s 31.
[47] Savic [49]; Underwood [112]; Neumann (463).
The amount awarded is to be assessed solely on the basis of the injury suffered by the applicant. The amount is not to be fixed as punishment for the offender or as an expression of sympathy for the applicant as victim.[48]
[48] Savic [50]; Underwood [115]; G & N v R [2006] WADC 208 [8]; (2006) 48 SR (WA) 301 (Goetze DCJ); B v W (1989) 6 SR (WA) 79, 89 (Williams DCJ).
The losses to which Mr Richards is entitled to claim are set out in CICA s 6(2) in the following terms:[49]
[49] CICA s 6(2).
(2) In the case of a victim who is injured, loss means -
(a) expenses actually and reasonably incurred by or on behalf of the victim -
(i) that arise directly from; or
(ii) that arise in obtaining any report from a health professional or a counsellor in relation to,
the injury suffered by the victim; or
(b) expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim; or
(c) loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim; or
(d) any loss arising from any damage caused as a direct consequence of the commission of the offence to any personal item that was being worn by the victim when he or she suffered the injury.
Dealing first with general damages, these are ordinarily awarded to compensate for pain and suffering and other non‑pecuniary loss.[50] According to ordinary tortious principles, the amount of general damages must be fair and reasonable compensation for the injuries received by the claimant and the disabilities caused, having regard to current general ideas of fairness and moderation.[51] The amount must be proportionate to the situation of the particular claimant.[52] In assessing mental and nervous shock, the court must attempt to make a distinction between direct 'impact damage' and further damage that may be suffered by such things as the reaction of the victim's family and friends, court proceedings or public attention.[53]
[50] Savic [51]; AA [46]; M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [113] (Pullin JA, with whom Newnes JA agreed & Murphy JA generally agreed).
[51] Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ); South Metropolitan Health Service v Westcott [2016] WASCA 225 [133] (judgment of the court); Houlahan v Pitchen [2009] WASCA 104 [107] (Newnes JA with whom Pullin & Miller JJA agreed) (Houlahan); Winiarczyk v Tsirigotis [2011] WASCA 97 [71] (judgment of the Court) (Winiarczyk); Savic [51]; AA [46].
[52] Savic [51]; AA [46]; Houlahan [107]; Winiarczyk [71].
[53] Savic [51]; Underwood [118]; Shepherd v Shepherd [2010] WADC 30 [20]; (2010) 71 SR (WA) 143 (Wager DCJ); Garton v McCormack (2002) 30 SR (WA) 307 [15] (Yeats DCJ); Re Karra (1984) 2 SR (WA) 97, 100 - 101 (Heenan DCJ); RJE (3).
In assessing the appropriate amount of compensation, a broad and subjective assessment must be undertaken with consideration of what the community would regard as reasonable compensation.[54]
[54] Savic [52]; Re Warrek [2019] WADC 50 [37] (Troy DCJ) (Re Warrek); Blackwell v Warren [2018] WADC 127 [36] (Troy DCJ) (Blackwell).
On the materials before the court it is evident that, since the Assault, Mr Richards has experienced the following symptoms reflective of a diagnosis of PTSD and an associated major depressive disorder:
(a)insomnia;
(b)hypervigilance;
(c)nightmares, at times, most nights;
(d)significant anxiety;
(e)depression, including low mood and decreased enjoyment of life;
(f)waking to night sweat and night terrors;
(g)repetitive memories (flashbacks) of the Assault which intrude into his everyday life;
(h)waking up feeling sick in the morning;
(i)lack of energy;
(j)shaking hands; and
(k)dissociative thought processes.
His life more generally has been impacted. For example, he:
(a)resigned from a job he really enjoyed;
(b)has generally withdrawn from social life;
(c)struggles to perform day to day activities;
(d)has gained weight (at times);
(e)has low motivation;
(f)consumed alcohol to excess (at times); and
(g)has poor attention, concentration and memory.
It is also evident that his symptoms have impacted his relationship with his wife.
As to Mr Richards' prognosis, in July 2018, Dr Piirto thought that there was every reason to think that he would return to an operational capacity in the near future.[55] Likewise, in August 2018, Dr Proud thought that he had a good prognosis.[56] In November 2018, Mr Richards took a redundancy package from the police. By October 2019, Dr Fernbach, was of the view that Mr Richards was then unable to work either full-time or part-time in any capacity for three years and that it was likely he would be unable to work at any time in the future. In April 2020, Dr Khalid assessed Mr Richards as having reached maximal medical improvement, that his prognosis is poor and that his PTSD and major depressive disorder are 'unlikely to remit with further treatment'. He assessed the likelihood of Mr Richards returning to work on a casual or part-time basis as 'fairly remote'.[57] Finally, it is apparent from Mr Daniel's report that Mr Richards' recovery will be long and gradual with the reality of short-term declines.
[55] MB 31.
[56] MB 35.
[57] MB 46 - MB 48.
Applying these principles, in my view, an appropriate award of compensation for pain and suffering and other non‑pecuniary loss is $35,000.
As to Mr Richards' claim for economic loss, he may claim 'loss of earnings suffered by [him] as a direct consequence of the injury suffered by' him.[58]
[58] CICA s 6(2)(c).
The evidence I have summarised at [72] is to the effect that at least since October 2019 Mr Richards has been unable to work due to his PTSD, and that this is likely to continue for the foreseeable future. Prior to leaving the police, he had been on sick leave, and had clearly been struggling with working. I find that his decision in November 2018 to accept a redundancy package was an acceptance of the inevitable, that he was no longer able to work as a police officer.
For present purposes, it is sufficient that I assess damages for economic loss on the basis that as a direct consequence of the injury suffered by him, being his PTSD, he was no longer able to work as a police officer from November 2018 (at which time he was 60 years and 8 months). It is appropriate to assess damages on the basis that he would work until he was 65 (14 March 2023), so a further four years and four months. I am not persuaded on the evidence before the court that Mr Richards would have continued working past the age of 65, at least as a police officer.
As to the quantum of his loss, as the table at [19] indicates, he appears to have continued to receive income from the police in the financial year ending 30 June 2020. It is sufficient to use the net taxable income for the year ending 30 June 2018, his last full year of employment as the baseline, being $81,658. I then deduct the amount he currently receives for his pension, being $17,853 per annum. This leaves $63,805. As set out at [19], it is not clear how the termination payments worked, but is apparent that the gross income received by Mr Richards in the year ending 30 June 2020 was around 75% of his income as a police officer in preceding years. Bringing this all to account, I allow compensation for the three years from 14 March 2020 (so around 75% of the financial year ending 30 June 2020) to 14 March 2023 when he turned 65. This gives an amount of $191,415 (3 x $63,805).
As set out at [18], Mr Richards does not make any claim for medical expenses.
For these reasons, subject to the application of CICA s 42(3), I assess compensation to which Mr Richards is entitled to at $226,415 ($35,000 + $191,415). This is reduced to $75,000, being the statutory maximum, and then by a further $208.65 to bring to account the expenses previously paid (see [18]), giving $74,791.35.
Do the payments received from RiskCover have to be deducted from the award of compensation pursuant to CICA s 42(3)?
In determining whether the amount received by Mr Richards from RiskCover must be deducted pursuant to CICA s 42(3), an instructive starting point is the purpose or object of the CICA, in particular in relation to CICA s 42(3). As to this, in Baker the Court of Appeal observed:[59]
[T]he proposition that the purpose or object of the Act is, generally speaking, to provide compensation out of the public purse for all victims of crime, is incorrect. The provisions of the Act, construed in their ordinary and natural meaning, do not reveal that that is the purpose of the legislature. Rather, the amicus was correct to observe that the policy of the Act is evidently to provide a publicly funded means by which victims of crime can receive some payments of compensation for injury or loss incurred as a result of criminal activity 'in some circumstances' (as the long title indicates). It does so on the basis that there is to be a deduction from the award of the amount of compensation or damages which a victim receives from another source. In that manner, the limited public resources engaged by the Act are directed to victims of crime who would not otherwise be compensated for their injury or loss. This is confirmed by s 21, which provides, in effect, that an assessor may defer dealing with the question of compensation and require the victim first to take steps to recover any amounts to which he or she may be entitled independently of the operation of the Act. A provision of that kind indicates that the legislature was not merely concerned with the avoidance of 'double dipping' (itself a term the meaning of which is dependent upon context) as the appellant contended, but more broadly intended that the victim should exhaust other means of compensation available to him or her before there is any recourse to payment from the public purse.
And more specifically that 'the effect of s 42(3) is to prevent "double dipping" in the sense that other sources of compensation are to be deducted from a "compensation award'''.[60]
[59] Baker [45].
[60] Baker [50].
In Baker, an assessor had awarded Mr Baker the statutory maximum allowed by the CICA, $75,000, after he was assaulted in the course of his employment as a senior transit officer. Separately, Mr Baker had also been awarded workers' compensation totalling approximately $257,000 under the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA). The primary judge reversed the assessor's decision on the basis that, pursuant to CICA s 42(3), the workers' compensation payments were to be deducted from the compensation award under the CICA, and that as those payments exceeded the statutory maximum for an award under the CICA, Mr Baker had no entitlement to compensation under the CICA. The Court of Appeal agreed with the primary judge.
The central argument made on behalf of Mr Baker was that the deduction required under CICA s 42(3) operates differentially upon different elements of the notional compensation award so that, for example, a workers' compensation payment which is effectively attributable to past economic loss would be deducted from that particular element of the notional compensation award, but other elements, such as the general damages component of the notional award, would remain unaffected.[61] The Court of Appeal disagreed, observing:[62]
[T]here is no foothold in the language of s 42(3) for an argument to the effect that s 42(3) is addressing a notional compensation award which is split into different elements to which the deductions in s 42 are to be applied differentially. Under s 42(3) a (single) 'compensation award' in relation to any injury or loss is the subject of the deduction. The deduction is (relevantly) 'any amount' that the victim has received.
[61] Baker [28].
[62] Baker [43].
The question of the interaction between the CICA regime and the statutory regime by which medical expenses of a police officer are otherwise paid was considered by Derrick DCJ in Cooper v Smith.[63] In that case, Mr Smith was convicted of the offence (Offence) of obstructing a public officer, being Mr Cooper, a police officer. Mr Cooper made an application under the CICA for an award of compensation for injuries allegedly suffered by him as a consequence of the commission of the Offence. He was awarded compensation of $6,740. He appealed to the District Court on the basis that this amount was inadequate.
[63] Cooper v Smith [2017] WADC 82 (Derrick DCJ).
Derrick DCJ considered a preliminary issue, being the impact of CICA s 42(3) on any potential award of compensation. This issue arose because Mr Cooper had received medical treatment for injuries suffered by him as a consequence of the commission of the offence. The total cost of the medical treatment received by Mr Cooper was $70,661.61. This has been paid by the Commissioner of Police pursuant to regulation 1306 of the Police Force Regulations 1979 (WA) (Regulations) and cl 35 of the Western Australian Police Industrial Agreement 2014 (WA) (Agreement). Further, Mr Cooper had, in respect of periods of time for which he was unfit to work as a result of the injuries suffered by him as a consequence of the commission of the Offence, been granted 'leave of absence' pay by the Commissioner pursuant to regulation 1304(1) of the Regulations and cl 33 of the Agreement. The total amount of 'leave of absence' pay paid to Mr Cooper was $32,653.96.[64]
[64] Cooper [16].
Derrick DCJ reviewed a number of dictionary definitions of the word 'compensation' and concluded that 'the ordinary meaning of the word "compensation" encompasses something that is given to make up for, or to offset, or to make amends for a debt or a loss'. His Honour went on to hold that this definition was consistent with the language used in CICA s 42(3) the other provisions of that Act, as well as the purpose of the CICA set out in Baker (which I have quoted at [80]).[65] Applying this definition, His Honour held that both the medical treatment payments and the leave payments were amounts received by Mr Cooper by way of compensation for the loss and injury the subject of the claim and the CICA. As these amounts exceeded the statutory maximum, Mr Cooper was not entitled to any compensation under the CICA.[66]
[65] Cooper [57].
[66] Cooper [72], [91], [100].
It is significant to note that the wording of CICA s 42(3) was amended subsequent to the decisions in Baker and Cooper. At the time of those decisions, the amount to be deducted was 'any amount that the victim or close relative has received by way of compensation or damages, or under a contract of insurance, for the injury or loss'. By an amendment taking effect on 5 December 2018 the words 'by way of compensation or damages, or' were deleted. The amended and current wording is: 'any amount that the victim or close relative has received, whether under a contract of insurance or otherwise, for the injury or loss'. The same amendment was made to CICA s 42(4) dealing with future payments.
The amending legislation was the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018 (WA) (Redress Act), in specifically s 19. As its title suggests, the Redress Act is the enabling legislation for Western Australia to participate in the redress scheme established pursuant the National Redress Scheme for Institutional Child Abuse Act 2018 (Cth). The Redress Act then goes on to deal with the interaction between the National Redress Scheme and the CICA. The amendments to CICA s 42(3) and s 42(4) were not in the initial version of the bill but came about as a result of consideration of the bill by the Legislative Council. The purpose of the amendments to CICA s 42(3) and s 42(4) was succinctly stated by the Attorney-General in the Legislative Assembly when the amended bill returned for consideration. It is:[67]
…
… there will be a deduction of any redress payment from any criminal injuries compensation payment … People can go to criminal injuries compensation, but any money they have received under redress will be deducted from their criminal injuries compensation.
[67] Hansard, Legislative Assembly, 28 November 2018, pages 8813 - 8818.
Similar decisions to that in Cooper have been made in three subsequent cases involving police officers.
In Blackwell the appellant was a serving police officer who was assaulted in the course of his duties as a public officer.[68] He was entitled to an award of compensation. However, adopting the decision in Cooper the award of compensation was reduced by amounts which the appellant had received from the Commissioner of Police by way of payment of medical expenses and sick leave.[69]
[68] Blackwell [1].
[69] Blackwell [44].
In Re Wakelin the appellant was a serving police officer injured in the course of her employment as a result of an assault by a woman she was trying to restrain.[70] The appellant had received a significant amount by way of sick leave and medical expenses paid by the Commissioner of Police. The primary issue in the appeal was whether this amount exceeded the statutory maximum (as the assessor found) or not (which the appellant contended on appeal). No issue was taken with the proposition that if the appellant 'received sick leave and medical expenses paid by her employer in relation to her injury totalling more than the maximum amount of compensation payable under the Act of $75,000 then applying the reasoning in Baker and Cooper she would be precluded from receiving further compensation'.[71] In the end, further information was received to the effect that the correct figures for sick leave and medical expenses only left a difference of $6,568.73 which might be awarded by way of compensation.[72] Quail DCJ assessed the compensation to which the appellant was entitled to in an amount exceeding the statutory maximum, reduced it to the statutory maximum and then deducted the amounts which the appellant had received by way of sick leave and payment of medical expenses, leaving compensation of $6,568.73.
[70] Re Wakelin [2018] WADC 165 [12] - [13] (Quail DCJ) (Re Wakelin).
[71] Re Wakelin [36], [71].
[72] Re Wakelin [37].
In Goodwin v Baker the appellant was also a serving police officer.[73] In the period following the injury the subject of the claim, the Commissioner of Police paid the appellant sick leave, as well as an amount of medical expenses on his behalf.[74] On appeal, he sought to argue that there was no overlap between the amounts claimed pursuant to the CICA and the amounts paid by the Commissioner of Police.[75] Levy DCJ followed the approach in Cooper and deducted these amounts from the compensation payable.[76]
[73] Goodwin v Baker [2020] WADC 43 [18] (Levy DCJ) (Goodwin).
[74] Goodwin [66].
[75] Goodwin [67].
[76] Goodwin [69] - [70].
A difference in the present case is that Mr Richards is a former police officer. As a former police officer, he is entitled to payments for medical and other expenses from the Commissioner of Police in respect of injuries which he incurred arising out of or in the course of his employment as a police officer under the Former Officers Act. The administration of the Former Officers Act is carried out by RiskCover.
The issue is whether the amounts received by Mr Richards from RiskCover were 'received, whether under a contract of insurance or otherwise, for the injury or loss'. I have already referred to the definitions of 'injury' ([51]) and 'loss' ([67]). As set out at [63], the injury must be one suffered 'as a consequence of the commission of an offence'. The term 'loss' is likewise essentially limited to losses suffered as a direct consequence of the injury suffered. So the phrase 'injury or loss' in CICA s 42(3) means in context the injury or loss suffered as a consequence of the commission of the offence the subject of the claim for compensation under the CICA, in this case being the Assault.
The documents produced from RiskCover include the form by which Mr Richards initiated his claim. It is dated 9 July 2019. It identifies the incident giving rise to the claim as occurring in May 2018 in the 'field' in Busselton. No description of the particular incident is given. I note that the Assault occurred in January 2016. In response to the question - 'What actually happened and what caused the injury' ‑ Mr Richards responds: 'such events as serious/fatal traffic crashes and coronial matters i.e. accidental/natural and suicides'. The injury is identified as 'depression/PTSD'. This description mirrors what Mr Richards has reported to various medical practitioners which I have quoted in this decision.
RiskCover has accepted liability for reasonable medical expenses for a claim of anxiety and depression, with a date of injury or approximate onset of condition of 29 November 2018.[77] As mentioned at [18], this is why Mr Richards has made no claim for medical expenses in the Application.
[77] Letter dated 5 July 2019, part of the Further Evidence.
I have found the Assault to have been the catalyst or tipping point for Mr Richards to being exhibiting symptoms which were eventually characterised as amounting to PTSD ([62]). Accordingly, the scope of the RiskCover claim includes the injury and loss suffered by Mr Richards in the Assault. It follows that, in my view, the amounts received by Mr Richards from RiskCover were received 'for the injury or loss' suffered as a consequence of the Assault. The decision in Baker makes it clear that this conclusion cannot be avoided by Mr Richards only claiming under CICA for loss of income and general damages, and not for payment of medical expenses; the 'notional compensation award [cannot be] split into different elements to which the deductions in s 42 are to be applied differentially'.[78] This conclusion is consistent with the decisions in Cooper, Blackwell, Re Wakelin and Goodwin.
[78] Baker [43].
RiskCover has paid $51,601.44 by way of medical expenses up to 16 August 2022. This must be deducted from the amount of compensation to which Mr Richards would otherwise be entitled.
There is then the issue of future payments from RiskCover. By CICA s 42(4), these may, but not must, be deducted:
If an assessor is satisfied that a victim, or a close relative of a deceased victim, who has suffered injury or loss will receive an amount, whether under a contract of insurance or otherwise, for the injury or loss, the assessor may deduct the amount from a compensation award in relation to that injury or loss.
There is nothing in the materials before the court indicating what, if any, future payments Mr Richards is entitled to receive, or is likely to receive, from RiskCover. In the absence of this material, any deduction pursuant to CICA s 42(4) would be purely speculative. I decline to make any deduction on this basis.
In summary, the amount of $51,601.44 must be deducted from the amount of compensation I would otherwise assess that Mr Richards is entitled to pursuant to CICA s 42(3).
Do the payments received from NDIS have to be deducted from the award of compensation pursuant to CICA s 42(3)?
Mr Richards has been provided with funding by the National Disability Insurance Agency (NDIA). His plan started on 21 May 2020 and runs until a review date of 20 May 2023. The total funding provided is $42,592.03. The funds have been allocated to assisting Mr Richards participate in social and community activities, meet transport related costs, attend allied health professionals, receive assistance as to his diet and learn new skills. The plan does not include mental health treatment services. Material on the NDIS website informs that the mental health system is generally responsible for clinical services such as diagnosis and treatments. NDIS funding is for supports that are not clinical in nature and focus on improving or maintaining the claimant's functional ability and recovery and helping them increase their independence and social and economic participation.[79]
[79] >
The NDIS is established by the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). The objects of the NDIS Act are set out in s 3(1) and by par (d) relevantly include to 'provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme'. A 'participant' is someone who 'meets the access criteria'.[80] This phrase relevantly includes someone who, in addition to other criteria not relevant for present purposes, 'meets the disability requirements'.[81] This phrase is in turn defined in the following terms:[82]
[80] NDIS Act s 28(1).
[81] NDIS Act s 21(1)(c)(i).
[82] NDIS Act s 24(1).
(1)A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable ; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)self-management; and
(d) the impairment or impairments affect the person's capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime.
The purpose of providing NDIS funding is set out in NDIS Act 14(1):
Agency may provide funding to persons or entities
(1)The Agency may provide assistance in the form of funding for persons or entities:
(a)for the purposes of enabling those persons or entities to provide information in relation to disability and disability supports and services; or
(aa)for the purposes of enabling those persons or entities to provide assistance in building capacity within the community in connection with the provision of goods and services to people with disability and their families and carers; or
(ab)for the purposes of enabling those persons or entities to assist people with disability to realise their potential for physical, social, emotional and intellectual development; or
(ac)for the purposes of enabling those persons or entities to assist people with disability, and their families and carers, to participate in social and economic life; or
(b)otherwise in the performance of the Agency's functions.
The NDIS also addresses the issue of double compensation. There is a regime in the NDIS Act which allows the NDIA to recover funding of NDIS support from someone who has received an award of compensation. This is dealt with in the National Disability Insurance Scheme (Supports for Participants - Accounting for Compensation) Rules 2013 (Cth) (Compensation Rules). The broad effect of these rules is set out in r 1.1 and r 1.2:
The NDIS is designed to complement, not replace, existing compensation arrangements for personal injury. These Rules are about ensuring that where individuals receive compensation payments, the NDIS does not duplicate the funding for supports already provided for by these payments.
These Rules specify how compensation payments in respect of a compensable injury suffered by a participant are taken into account by the CEO in determining the reasonable and necessary supports that will be funded or provided under the NDIS.
The NDIA has advised Mr Richards that is does not consider his claim pursuant to the CICA to be 'compensation' for the purposes of the NDIS Act or the Compensation Rules. Consequently, Mr Richards will not be required to make any payment to the NDIA in respect of the any award of compensation in the present application. Nor will the NDIA reduce any future entitlement to NDIS funding on the basis of any award of compensation in the present application.
The key observation I make from this brief review of the provisions of the NDIS Act is that the legislation is not concerned with how the applicant comes to meet the disability requirements. This was an observation also made by Mortimer J in Mulligan v National Disability Insurance Agency in the following terms:[83]
Although it uses the word frequently, the Act does not define "disability". There is a definition in Art 1 of the Convention on the Rights of Persons with Disabilities:
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.
The Act also uses the word "impairment", especially in Ch 3. That is also not a defined term, although "participant's impairment" is: see s 9. The link between "disability" and "impairment" is not explained in the Act. The use of both the term "disability" and the term "impairment" in their context indicates that one matter the Act is not concerned with, at least in terms of access to the NDIS as a participant, is how a person came to have a disability. Whether it be through birth, disease, injury or accident, all persons with disabilities who meet the access criteria can be participants, and all persons with disabilities may be otherwise assisted in the way contemplated by Ch 2 of the Act. …
[83] Mulligan v National Disability Insurance Agency [2015] FCA 544 [15] - [16] (Mortimer J).
In the present appeal, the issue is one of the proper construction of CICA s 42(3), in particular whether the amounts received by Mr Richards from NDIS were 'received for the injury or loss' suffered as a consequence of the commission of the Assault.
The principles relevant to the proper construction of the CICA were outlined in Attorney General (WA) v Her Honour Judge Schoombee.[84] The principles were in turn adopted by the Court of Appeal in Baker with some elaboration.[85]I apply the principles as stated by the Court of Appeal in these two decisions. The task is to give the words 'received for the injury or loss' the meaning which the legislative is taken to have intended them to have.[86]
[84] Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [29] - [44] (Martin CJ, with whom Newnes & Murphy JJA agreed)(Attorney General).
[85] Baker [36] - [38].
[86] Attorney General [29].
An appropriate starting point is the natural and ordinary meaning of the word 'for' in its context in CICA s 42(3). According to The Australian Oxford Dictionary there are 21 definitions of the word 'for'. Of these, only two are potentially applicable to the context of CICA s 42(3):[87]
…
4.in respect of or with reference to; regarding; so far as concerns (usual for ties to be worn; don't care for him at all; ready for bed; MP for Canberra).
…
18.because of; on account of (could not see for tears).
[87] The Australian Oxford Dictionary (Second edition, 2004, Oxford University Press).
Interpreting the word 'for' in CICA s 42(3) to mean 'in respect of or with reference to; regarding; so far as concerns', any degree of overlap between the purpose for which the amount was received and the injury and loss suffered as a consequence of the commission of the offence the subject of the claim for compensation under the CICA is sufficient. I will refer to this as the wide interpretation.
Interpreting the word 'for' in CICA s 42(3) to mean 'because of; on account of' leads to a narrower interpretation. This meaning connotes a requirement for the basis of the entitlement to receive the amount to be that the injury and loss are suffered as a consequence of the commission of the offence the subject of the claim for compensation under the CICA. I will refer to this as the narrow interpretation.
On the wide interpretation, the NDIS payments would be 'for' the injury and losses claimed by Mr Richards as they are in respect of, or with reference to, regarding or concerning the provision of services to assist him to overcome the day to day impacts of his PTSD and associated depressive disorder. I have found (at [62]) that these mental health conditions were an injury suffered as a consequence of the commission of the Assault. The services provided to Mr Richards under his NDIS plan (as set out in [101]) are designed to assist him to overcome the day to day impacts of Mr Richards' PTSD and associated depressive disorder (as set out at [70] and [71]). There is a degree of overlap.
On the narrow interpretation, the NDIS payments would not be 'for' the injury and losses claimed by Mr Richards. This is because his entitlement to these services is not because of or on account of the injury suffered as a consequence of the commission of the Assault. Rather, his entitlement to receive the amounts from NDIS is because of or on account of the fact he is a person under a disability. His entitlement to NDIS funding arises simply because he meets the disability requirements, the reason for him doing so being irrelevant. This is in contrast to Mr Richards' entitlement to receive the amount from RiskCover, which is because of or on account of the injury suffered in the Assault and the consequential loss.
Both interpretations are consistent with the decisions in Cooper, Blackwell, Re Wakelin and Goodwin. In particular, on the narrow interpretation, in each case the entitlement to receive the amount was because of or on account of the injury and loss suffered as a consequence of the commission of the offence the subject of the CICA application.
Perhaps the closest case on point is the decision of Wager DCJ in Re Matthews.[88] The issue in that case was whether amounts received by the appellant by way of an Australian disability support pension fell within CICA s 42(3), albeit prior to its 2018 amendment. Her Honour observed that:[89]
For the purposes of the Social Security Act, the pension does not appear to be compensation.
The purpose of social security payments is 'to provide benefits to a class of person who would be otherwise in impecunious or straitened circumstances' …
The payment is not dependent on a recipient having a loss or having suffered an injury. It relates to a person's inability to work as a result of disability.
I do not consider the disability support pension received by the appellant to be compensation for loss or injury pursuant to s 42(3)(d) of the Act. There is no evidence that it was intended to make up for or to offset or to make amends for a debt or a loss.
I do not reduce the appellant's award of compensation as a result of his receipt of the pension.
[88] Re Matthews [2017] WADC 126 [59] (Wager DCJ).
[89] Re Matthews [79] - [83].
The observation that there 'is no evidence that it was intended to make up for or to offset or to make amends for a debt or a loss'[90] picks up the definition of 'compensation' adopted by Derrick DCJ in Cooper (quoted at [85] above). The decision in Re Matthews turns on whether an Australian disability support pension constitutes 'compensation'. With the removal of this requirement from CICA s 42(3) the decision in Re Matthews cannot be regarded as authority in favour of either the wide interpretation or the narrow interpretation. However, if the issue arose in the future, the outcome would depend on whether the wide interpretation or narrow interpretation was adopted. On the wide interpretation, there is a degree of overlap between the purpose for which the disability payment was received (the claimant cannot work because of his disabilities) and the injury and loss suffered (which caused any part of the claimants disabilities, it being impermissible to disaggregate the amount received). On the narrow interpretation, as Wager DCJ observes, the claimant's entitlement to the disability pension relates to a person's inability to work as a result of disability. In other words, the claimant's entitlement to the amount received is because of or on account of the fact he is a person with a disability. It is not received because of or on account of the fact that he suffered an injury as a consequence of the commission of an offence to which the CICA applies. (There is, however, an antecedent issue, being the extent to which receipt of a pension reduces the economic loss suffered by a claimant as a consequence of the commission of the offence).
[90] Re Matthews [79] - [82].
The evident legislative intention behind the removal of the words 'by way of compensation or damages' does not assist either (see [87]). On both interpretations a redress payment made for a sexual assault would be 'for the injury or loss' suffered as a consequence of the commission of the offence comprising that sexual assault. Specifically, on the narrow interpretation, the payment of the redress is because of or on account of the sexual assault which is the subject of both the claim for compensation under the CICA and the claim for compensation under the redress scheme.
Resort to the relevant purpose or object of the relevant provisions in the CICA tends to favour the narrow interpretation. This purpose was identified by the Court of Appeal in Baker to be that 'the victim should exhaust other means of compensation available to him or her before there is any recourse to payment from the public purse'.[91] This purpose was discerned by the Court of Appeal not just from CICA s 42, but also CICA s 21, which requires an application to enforce other remedies before proceeding with an application. It relevantly provides in s 21(1):
If an assessor dealing with a compensation application by or on behalf of a victim who suffered injury as a consequence of the commission of an offence is of the opinion that the victim -
(a) has reasonable grounds for taking proceedings independently of this Act to obtain compensation or damages for all or some of the claimed injury and any claimed loss; or
(b) may be entitled under a contract of insurance to payment for all or some of that injury or loss,
the assessor may require the victim to take proceedings to obtain the compensation, damages or payment and may defer the application pending the determination of those proceedings.
[91] Baker [45] (quoted in full at [80]).
The two types of claim identified are within both interpretations. As to the narrow interpretation, they are amounts to which the applicant is entitled because of or on account of the injury suffered as a consequence of the commission of the offence. The injury would be the basis of the cause of action in CICA s 21(1)(a) and the basis of the claim under the contract of insurance in CICA s 21(1)(b).
The reason why the relevant purpose or object of CICA tends to favour the narrow interpretation is that payments received under NDIS do not relate to any of the 'losses' identified in CICA s 6(2) (quoted at [67]). As set out above ([101] - [106]) the purposes for which NDIS funding may be provided are of a different character than 'compensation' for an injury or loss. Those purposes don't include medical expenses or loss of income. Nor do they include any general amount for pain and suffering and non‑pecuniary loss. Rather, the purposes focus on empowering and facilitating a person under a disability to enjoy 'full and effective participation in society on an equal basis with others'. So NDIS funding is not another form of compensation for the types of loss to which may be claimed under the CICA which a claimant is required to exhaust before making an application under that Act.
The point in the preceding paragraph is illustrated in the present case. Mr Richards has received compensation for medical expenses from RiskCover which, consistent with the purpose identified, should be deducted from his CICA compensation. However, the amounts which he has received and will receive from NDIS are axiomatically outside that to which he is entitled from RiskCover (otherwise RiskCover would have paid it as a medical expense). They are also forms of support which do not on their face fit well within in the description in CICA s 6(2) of direct losses or consequences; they have more of an indirect character. NDIS is, in my view, not properly characterised as a source of compensation which a claimant such as Mr Richards should be required to exhaust before recourse from the public purse. The wide interpretation does not respect this distinction; the narrow one does.
For this reason, in my view, the narrow interpretation more closely reflects what the legislature may be taken to have intended. In summary, the phrase 'for the injury or loss' in CICA s 42(3) requires the amount received to have been because of, or on account of, the injury or loss suffered as a consequence of the commission of the offence the subject of the claim for compensation under the CICA.
An example illustrates the common sense behind this conclusion I have reached. Assume A has been impaired by autism spectrum disorder from birth. He has been the recipient of NDIS funding since 2015, at a rate of $40,000 per annum. A small portion of his funding is for occupational support for a generalised anxiety disorder along the lines of that provided to Mr Richards which I have set out at [100]. A is assaulted in 2020. He suffers a broken jaw which requires surgical repair with plates, which leaves him with some long‑term pain, discomfort and disfiguration. The assault and its ongoing sequalae aggravate A's generalised anxiety disorder.[92] His assailant is convicted. A makes an application for criminal injuries compensation. Applying the principles which I have set out above, the compensation would include the medical expenses arising directly from the broken jaw and aggravation of the generalised anxiety disorder. Assume that this includes an amount of $10,000 for past and future treatment and rehabilitation for the jaw, and $5,000 for past and future psychological counselling for aggravation to the generalised anxiety disorder. General damages would be likewise limited but say $20,000. Assume there is $20,000 by way of economic loss as A could not work while recovering from surgery for his broken jaw. The hypothetical award of compensation is $55,000.
[92] As to the principles for assessing damages for an aggravation of a pre-existing injury, see generally: Underwood [89] - [91], [108] - [120].
On the narrow interpretation of 'for the injury or loss' I prefer, NDIS funding is not deducted. The amount received from NDIS is because of or on account of the fact that A is a person with a disability. It is not received because of or on account of the fact that A suffered an injury for which a claim under CICA may be made.
On the wide interpretation, the fact that the NDIS funding includes funding for a service which overlaps with the loss, being support for the generalised anxiety disorder, is sufficient for the entirety of the NDIS funding to be deducted from the award of compensation. As I have said, any degree of overlap is sufficient. The decision in Baker makes it clear that neither the received amount nor the compensation that would otherwise be awarded can be dissected. So A is left without compensation for his past and future psychological counselling, medical treatment, rehabilitation, loss of income and general pain and suffering. These are amounts that cannot be claimed under NDIS, so there is no risk of double‑dipping. That does not seem to me to be the result intended by Parliament, nor a just one.
Accordingly, I am of the view that CICA s 42(3) does not require the court to deduct from the amount of compensation to which Mr Richards is otherwise entitled the amount he receives by way of NDIS funding.
What final orders are appropriate?
Mr Richards is entitled to compensation in the amount of $23,189.91 calculated by deducting from the amount of compensation I have assessed of $74,791.35 ([79]), the $51,601.44 he received from RiskCover.
The appropriate final orders are:
(a)the decision of the Assessor be varied to increase the amount of compensation to $23,189.91; and
(b) there be no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LL
Associate
23 NOVEMBER 2022
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