Re RJA - [2022] WADC 106

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE RJA [2022] WADC 106
CORAM:   COMMISSIONER COLLINS
HEARD:   29 JUNE 2022 AND WRITTEN SUBMISSIONS FILED 13, 19 & 23 MAY & 13 JULY 2022
DELIVERED          :   30 NOVEMBER 2022
FILE NO/S:   APP 41 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: RJA
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R GUTHRIE
File Number            :   CIC 1823 of 2020

Catchwords:

Criminal injuries compensation - Appeal - Proved offence - Mental and nervous shock - Admission of additional evidence - Assessment of compensation - Loss of earning capacity - Mitigation - Contribution to injuries - Turns on own facts

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 301
Criminal Injuries Compensation Act 2003 (WA), s 3, s 6, s 12, s 35, s 41, s 45, s 48, s 55, s 56

Result:

Appeal allowed
Compensation award varied

Representation:

Counsel:

Appellant	:	Mr C S Cooper
Amicus Curiae	:	Ms K A Miller on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Bradford Legal
Amicus Curiae	:	State Solicitor's Office for Western Australia

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

A v D (1994) 11 WAR 481
ATB v LA [2021] WADC 64
ATS v Williss [2021] WADC 58
Blackwell v Warren [2018] WADC 127
Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 18
De Florenca v Hayden [2007] WADC 54
Dimitrovska v The State of Western Australia [2015] WASCA 162
Dunne [2014] WADC 131
E M v C L [2021] WADC 127
EB v Ramljak [2021] WADC 134
Edmonds v Juniper [2016] WADC 7
ELK v CFB [2009] WADC 90
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Fairhead v Quartermaine [2010] WADC 1; (2010) 69 SR (WA) 73
Gullelo v Halloran [2008] WADC 145
GW v JW [2019] WADC 15
Harris v Sycamore [2022] WADC 4
Hayward v Hart [2012] WADC 151
Hinchcliffe v Hinchcliffe [2010] WADC 78
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
JDQ [2010] WADC 93
JLW v DRH (2004) 36 SR (WA) 301
JY [2013] WADC 187
KMA v DFS [2010] WADC 6
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Montemaggiori v Wilson [2011] WASCA 177
Montgomerie v Scott [2011] NSWDC 154
Perris v Riley [2009] WADC 39
Re Anderson [2022] WADC 97
Re ATS [2017] WADC 92
Re Butler [2020] WADC 22
Re Farmer [2015] WADC 91
Re Richardson [2009] WADC 93
Re Tilbury [2010] WADC 46
Savic v Duric [2021] WADC 53
SH v BS [2001] WADC 291
Sweetman v Lilley [2021] WADC 74
Swinford [2021] WADC 82
Syme v Roos [2016] WADC 164
TAW v NJS [2011] WADC 187
Underwood v Underwood [2018] WADC 13
WHW v Commissioner of Police [2014] WASCA 153(S)

Table of Contents

A. Introduction

B. Background to claim under the Compensation Act

C. RJA's Compensation Application

D. The appeal to the District Court

Grounds of appeal

General principles

Further evidence

E. Issues for determination

F. Was RJA a victim of a proved offence?

General principles

G. The circumstances of the offence

RJA

Medical records

HT's mother

Police records

H. Did RJA suffer an injury as a consequence of the commission of a proved offence?

Overview

Physical injuries

Psychological harm

Disposition

I. If RJA did suffer an injury as a consequence of a proved offence, did he suffer any loss?

Overview

Loss of earnings

Damage to personal items

Past medical expenses

Medical reports

Future medical treatment

J. Did RJA suffer loss of earning capacity as a result of a proved offence?

General principles

RJA's claim for loss of earning capacity

Disposition

Causation

No loss of earning capacity

K. What is the appropriate amount of compensation?

General principles

General damages

Damage to personal items

Past medical expenses

Medical reports

Future medical treatment

L. Mitigation

M. RJA's behaviour - should the award of compensation be reduced?

N. Barring orders - s 45

O. Costs

P. Conclusion

COMMISSIONER COLLINS:

A. Introduction

On 14 October 2020, the respondent (HT) stabbed the appellant (RJA) twice in the lower back whilst at their local school, where they were students. At the time of the offending, HT was 14 years of age and RJA was 17 years of age.
By an application dated 28 October 2020, RJA's father applied for criminal injuries compensation under the Criminal Injuries Compensation Act 2003 (WA) (Compensation Act) in respect of RJA's injuries arising out of the incident on 14 October 2020 (Compensation Application). The claim was made under s 12(1) of the Compensation Act, for an injury and loss as a consequence of a proved offence.
HT was convicted on his plea of guilty of unlawful wounding contrary to s 301(1) of the Criminal Code Act Compilation Act1913 (WA) (Criminal Code) on 4 November 2020: Assessor's Papers, page 72.
By a compensation award made on 2 June 2021, an assessor of criminal injuries compensation (Assessor) awarded RJA $16,126 in respect of a proved offence.
The Assessor provided RJA with a letter dated 2 September 2021, which set out the reasons for his award: RJA's Book of Documents dated 10 May 2022 (BoD), page 8. I will refer to the Assessor's compensation award and reasons for the award collectively as the Assessor's Decision.
RJA appealed the Assessor's Decision by notice dated 22 June 2021: BoD, pages 11 - 13. The principal ground advanced was that the compensation award was 'inadequate'. It was not disputed that the appeal was commenced within time.
This court made orders dated 31 August 2021 to anonymise the names of the parties. In order to preserve the anonymity of the parties, names of places have also been omitted or de-identified.
The hearing of the appeal took place on 29 June 2022. RJA was represented by counsel. The Chief Executive Officer of the Department of Justice (CEO) appeared as amicus curiae and was represented by counsel for the State Solicitor.
In support of the appeal, RJA filed a schedule of loss of earning capacity dated 22 May 2022 and particulars of loss and damage dated 13 July 2022 (Particulars of Loss). RJA also filed an outline of submissions on 19 May 2022 (RJA Submissions). The CEO filed an outline of submissions on 13 May 2022 (CEO Submissions) and brief submissions dated 15 July 2022 (Further CEO Submissions).
For the reasons that follow, I would allow RJA's appeal. I consider that RJA is entitled to an award of compensation of $26,815.17 in total, of which $3,550 relates to future treatment expenses. Payment of the $3,550 for treatment expenses is subject to the satisfaction of s 48 of the Compensation Act.

B. Background to claim under the Compensation Act

RJA's counsel referred the court to the Police Statement of Material Facts and submitted that they provided the 'history of the incident giving an explanation from both [RJA] and [HT] as to how they found [themselves] in that incident on the day' (ts 10).
The circumstances of the incident are set out in the Police Statement of Materials Facts in the following terms: BoD, pages 44 ‑ 45:
The accused and the victim attend the same school, …
The accused felt angry and upset due to previous circumstances that had occurred between the [accused's] sister and the victim and their past dating relationship. The accused had not taken his medication for four days previously for his Bi-polar and depression. The accused also suffers from PTSD and anxiety.
On Wednesday 14 October 2020 the [accused] packed his dad's paring knife (red handled) into his lunch box with the intention of 'hurting' the [victim] if he was seen at school.
The accused attended school, during his first and second class he moved the knife from his lunchbox to the left side of his tracksuit waistband. The accused was walking to his third class when he sees the [victim] sitting on the outside benches of the cafe.
The [accused] using his left hand grabs the knife from his waist band and runs towards the victim. Swinging his arm upwards from the waist. The accused stabs the victim twice in his back. Causing two puncture wounds to his lower back that penetrated the abdominal cavity narrowly missing his internal organs.
The victim runs from the accused and the accused continues to make chase.
The [accused] is detained … and on request the [accused] turns the knife around and hands the handle end to another employee.
The accused was charged and the present charge preferred and released on protective bail.
The incident was captured on CCTV footage.
By the Police Prosecution Notice, HT was charged with unlawfully wounding RJA contrary to s 301(1) of the Criminal Code. On 4 November 2020, HT entered a plea of guilty: BoD, pages 63 - 65.
HT was sentenced to a four-month Juvenile Conditional Release Order by Magistrate Horrigan at the Children's Court of Western Australia in Rockingham: BoD, pages 66 - 78.

C. RJA's Compensation Application

By the Compensation Application, RJA's father applied for criminal injuries compensation in respect of:
(a)RJA's physical injuries;
(b)medical expenses associated with an account from St John Ambulance; and
(c)damage to RJA's clothing: see generally, the Compensation Application and Assessor's Decision as contained in BoD, pages 1 - 6 and 8 - 10.
RJA's Compensation Application included a completed claim form, a statement by RJA, statements by several witnesses to the incident and a colour photograph of RJA's injury: Assessor's Papers, pages 2 - 27.
By his award of 2 June 2021, the Assessor awarded RJA $16,126 comprising:
(a)$15,000 for physical injuries;
(b)$120 for damage to personal items worn when RJA was injured; and
(c)$1,006 for medical expenses associated with an account from St John Ambulance, which the Assessor made payable to RJA's father: Assessor's Papers, pages 1 and 57 - 58.
The Assessor also ordered that $2,000 be the subject of proceedings under pt 6 of the Compensation Act: Assessor's Papers, page 1.
RJA appealed the Assessor's Decision by notice dated 22 June 2021, principally on the ground that the compensation award was 'inadequate' (ts 4).
In RJA's Submissions, RJA argued that his father had submitted the Compensation Application but that the Compensation Application was incomplete. He further submitted that given the severity of the physical and psychological injuries he sustained, and their long term sequelae, the Assessor's award of $16,126 was inadequate: RJA Submissions, par 1.10.
RJA sought a fresh assessment of his claim for injury and loss by reference to the following claimed injuries and loss (ts 4, ts 47): RJA Submissions, par 1.11:
(a)for physical injuries suffered;
(b)for mental and nervous shock suffered;
(c)for past economic loss and future loss of capacity;
(d)for the cost of medical reports; and
(e)for future medical treatment costs.

D. The appeal to the District Court

Grounds of appeal

In his Appeal Notice, RJA relied on two grounds of appeal, namely:
1.The Assessor's award of compensation in respect of [RJA's] injuries and other compensable loss is inadequate.
2.Further and/or amended grounds for appeal are to be supplied after the Reasons for Decision have been provided by the Assessor and reviewed.

General principles

The long title to the Compensation Act is 'An Act to provide for the payment of compensation to victims of offences in some circumstances, and for related matters'. It may be inferred that that is the public policy behind the Compensation Act: Hinchcliffe v Hinchcliffe [2010] WADC 78 [60] Stevenson DCJ (Hinchcliffe).
RJA's appeal is made pursuant to s 55 of the Compensation Act, which involves an appeal to the District Court.
In hearing this appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information': s 56(1) of the Compensation Act.
The appeal is a hearing de novo: Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude) (Gullelo); Underwood v Underwood [2018] WADC 13 [19] (Gething DCJ) (Underwood). RJA does not have to demonstrate an error on the part of the Assessor in order to succeed: Gullelo [5]; Underwood [19].
It is open to this court to 'confirm, vary or reverse the assessor's decision, either in whole or in part': s 56(2)(b) of the Compensation Act.
In this court, there are some decisions that differ in their conclusions as to whether it is appropriate to have regard to the assessor's reasons. For the reasons I gave in Re Anderson [2022] WADC 97 at [30] - [32], I am satisfied that it is permissible to have regard to the Assessor's reasons without being fettered by the Assessor's decision.

Further evidence

As the appeal involves a fresh hearing, further evidence should be admitted unless there is some reason why it would be unjust to do so: s 56(1) of the Compensation Act; Hinchcliffe [9] (Stevenson DCJ); Re Tilbury [2010] WADC 46 [3] (Martino DCJ).

On 11 May 2022, RJA filed a BoD in support of the appeal, which contained amongst others, the following additional evidence:
(a)Undated statement from RJA: BoD, page 21;
(b)Impact of Injury Statement from RJA dated 9 May 2022: BoD, pages 25 - 37;
(c)Interim Property Receipt: BoD, page 62;
(d)Royal Perth Hospital Triage Nursing Assessment: BoD, pages 80 - 81;
(e)Royal Perth Hospital Emergency Department Trauma Notes: BoD, pages 84 - 85;
(f)Royal Perth Hospital Radiological Reports and Investigations: BoD, page 89;
(g)Report of Dr Stephen Whiting: BoD, pages 90 - 92;
(h)Report of Dr Frederick Ng: BoD, pages 93 - 105;
(i)Referral note: Dr Jo An Dovaston to A Resolution: BoD, pages 106 - 107;
(j)Photographs, human back, undated, unlabelled: BoD, pages 108 ‑ 109;
(k)Email correspondence from German Panopio dated 18 October 2020: BoD, pages 119 - 120;
(l)Academic Transcript CPC20211 - Certificate II in Construction Pathways: BoD, page 123;
(m)Certificate II in Construction Pathways: BoD, page 124;
(n)Year 12 certificate from his school: BoD, page 125;
(o)Valedictory Certificate from his school: BoD, page 126;
(p)Statement of Attainment - Construction on site training: BoD, page 127;
(q)Notice of Assessment (ATO) - financial year ended 30 June 2021: BoD, page 128;
(r)Payslip: GFC Geraldton Fishermen's Co-operative: BoD, page 129;
(s)TAFE WA - Certificate II in Engineering Pamphlet (Heavy Fabrication Pre-Apprenticeship): BoD, pages 133 - 138;
(t)Wageline - Metal Trades (General) WA Award Part 1 - General Summary: BoD, pages 139 - 146;
(u)Metal Trades (General) WA Award Part 4 - Rates of Pay: BoD, pages 147 - 163;
(v)Tax invoice of Dr Frederick Ng: BoD, page 165;
(w)Tax Invoice of Interpreter: BoD, page 166; and
(x)two news articles about the incident: BoD, pages 167 - 169 and 170 - 172.
There was no objection to receipt of the additional evidence. In the circumstances, leave should be granted pursuant to s 56(1) of the Compensation Act for RJA to rely upon the additional evidence, as I am satisfied that it would not be unjust to do so.

E. Issues for determination

There are broadly speaking two issues for determination. First, whether the court should make a compensation award in favour of RJA in respect of a proved offence. Secondly, if so, the quantum of the compensation award. Determination of the second issue turns on whether RJA's injury and any claimed loss occurred as a result of the proved offence.
These issues are addressed below.

F. Was RJA a victim of a proved offence?

General principles

RJA's claim was based on s 12 of the Compensation Act (ts 12). Section 12 provides for an application for compensation in respect of a 'proved offence'.
Section 12 provides, relevantly:
12.Proved offence
(1)A person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for that injury and any loss also suffered.
…
(3)An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied -
(a)if the application is made under subsection (1) - that the claimed injury and any claimed loss has occurred and did so as a consequence of a proved offence[.]
The term 'proved offence' is defined to mean 'a crime, misdemeanour or simple offence of which a person has been convicted': s 3 of the Compensation Act. And the term 'satisfied' is defined to mean 'satisfied on the balance of probabilities': s 3 of the Compensation Act.
In the present matter, it was not disputed that on his plea of guilty HT was convicted of unlawfully wounding RJA contrary to s 301(1) of the Criminal Code, which is a proven offence for the purposes of the Compensation Act.
In its written submissions, the CEO submitted that the appeal was to be determined on the basis of the facts on which HT was sentenced: CEO Submissions, par 19. RJA did not submit otherwise.

G. The circumstances of the offence

RJA

RJA's Compensation Application included a written statement he made on the day of the incident, being 14 October 2020. It relevantly included the following: Assessor's Papers, pages 8 - 10:
I am 17 years of age and I reside at an address known to police.
I am a student at [x] school. I am in year 12.
I know ST. She is in year 12 also. We are friends. I spent Australia Day last year with her family.
I also know HT, who is in year 10. He is her brother. We are friends also but I don't hang out with him much. I only know him through ST.
Today, which is Wednesday, 14 October 2020, I was at school.
Just after break, I was sitting at a table with my friends, …
This table was outside the canteen.
As I was sitting on the table, someone came up behind me and I felt something in my back. It was my lower back, right side, near my spine.
I turned around and saw HT standing behind me with a knife in his right hand. It was either a red or brown handled knife.
I can't remember what HT was wearing.
…
I then ran through the canteen… I hid behind [a teacher] and another teacher grabbed HT.
I then walked to the office and I was bleeding. They patched me up. I didn't feel anything when I got stabbed, but I felt pain when I saw the blood. I couldn't breathe and I sat down. The teacher told me to relax. They put a band-aid on.
I don't know why HT did this, but it may have been revenge because of his sister, but I don't want to talk about this anymore with the police.
RJA's BoD included a typed undated and unsigned statement, which records RJA as the author: BoD, page 21. In oral submissions, RJA's counsel submitted that RJA authored the statement in the days after the incident (ts 8). The BoD also included an Impact of Injury Statement from RJA dated 9 May 2022, which RJA had purportedly signed: BoD, pages 25 - 37.
Under the heading 'background', RJA relevantly stated the following:
2.I was born in the Philippines.
3. I moved to Australia with my family in May 2014.
4.Tagalog is my first language and I had to learn to speak English when I moved to Australia.
5.My parents speak Tagalog at home.
6.When I moved to Australia, I only knew a little bit of English.
…
12. Growing up I was interested in working in the construction and building industry.
13.My father had always worked as a builder in the Philippines and when he moved to Australia he has worked as a concreter.
14.I became aware that there was the option for me to do a pathway course to get to TAFE to complete a trade.
15.As I was interested in the building and construction industry I was told I could complete a Vocational Education and Training Course (VET) at school.
16.I chose to do a Certificate II in Construction Pathways.
17.I commenced my Certificate II in Construction Pathways.
…
22.My pre-apprenticeship would have me involved in going to TAFE to complete Certificate II in Engineering (Heavy Fabrication Pre-Apprenticeship).
23.It was my intention to finish school and the following year to go to TAFE in Rockingham and complete my Certificate II in Engineering (Heavy Fabrication Pre-Apprenticeship).
24. Part of the certificate also involved me doing a work placement for four weeks.
25.Prior to the incident, I had completed two weeks of work placement with my father.

Under the heading 'The Incident', RJA relevantly stated the following:
26.Prior to the incident, I was a friend of the offender's sister.
27.We had been friends for a few years.
28.In September 2020, there was an accusation made by the offender's sister against me.
29.I strongly denied the accusation as it was a misunderstanding.
30.Our friendship was over after this and the relationship between me and her was bad.
…
Under the heading 'Injury and Treatment, RJA relevantly stated the following:
40.I was stabbed twice to my back which included significant bleeding.
41.I have provided a photograph of my stab wounds.
42.Initially, I didn't feel any pain.
…
45.I was scared that I was going to die.
46.I was frightened.
…
49.I then felt a lot of pain in my back.
50.It was an intense ache that then spread to my stomach and chest.
51.It became hard for me to breathe.
…
59.I was taken by ambulance to Royal Perth Hospital.
…
66.My wounds were cleaned and stapled.
67.I recall this treatment being very painful.
…
69.I remained in hospital for a night under observation.
70.I was discharged the following day.
…
Under the heading 'Physical Pain and Restriction following the Assault', RJA stated the following:
73.My wounds were particularly painful and sensitive to touch for about 4 weeks.
74. It took about 6 weeks for the wounds to fully heal.
75. I now have two scars.
76. My wounds remained painful and sensitive touch for about 6 months after incident.
77. I still feel pain and discomfort at my wound sites when I perform certain activities such as heavy lifting at work.
78. I was told to take pain medication following the incident when I had any pain and discomfort.
Under the heading 'Psychological Symptoms following the Assault', RJA stated the following:
79.Following the assault, I was scared and felt like I was in danger.
80. I was incredibly frightened.
81.I recall that I had one bad nightmare in the weeks following the incident.
82.I had just been stabbed by someone at school.
83.School is supposed to be somewhere where I should feel safe and protected.
84.I didn't feel safe going back to school given how easily the offender had attacked me.
85.I was also worried that the family would find some other way or someone else to attack me.
86. I was worried that a family friend or another friend would attack me too.
87. My family were also worried about me and my safety given that I had been stabbed at school.
88. I also felt sad and depressed about what had happened to me.
89. I became tearful when I thought about the incident for a couple of months.
90. The incident was reported in the news and everyone knew about it.
91. I became very anxious.
92.I was scared to leave the house.
93. I was particularly scared when I was at home by myself.
94. The family and their friends knew where I lived.
95. I didn't want to leave the house for a few months.
96. I continued to feel sad and depressed after the assault for a few more months.
97. I didn't sleep well for a few months following the assault.
98.I only remained in contact with my close friends, but I was reluctant to go out and socialise.
…
Under the heading 'Schooling and Work following the Incident', RJA stated the following:
108.After the incident, I couldn't return to school as I felt extremely scared and embarrassed about the incident.
109.My parents were also very scared and worried about my safety.
110.My parents and I met with the school, and it was agreed that I wouldn't return to the school.
111.At the time of the meeting, I told the school that I was scared and the school offered counselling and support.
112.The school told my family that they would help me with going on to TAFE.
113.I was provided with my Certificates for completing year 12.
114.I was given a Valedictory Certificate.
115.I was also provided with my Year 12 Certificate which recorded that I had obtained by my Certificate II in Construction Pathways.
116.My Year 12 Certificate did record that I didn't achieve my workplace learning program as I didn't return to school and complete my final 2 weeks working with my father.
117.I was also provided with my Certificate II in Construction Pathways and my Certificate of Attainment and Academic Transcript for the course work.
118.Before the incident I intended to go to TAFE in Rockingham and start my Certificate II.
119.After the incident, due to my anxiety and fear of being attacked again I couldn't bring myself to go into Rockingham and go to TAFE.
120.Rockingham is too close to the school the offender's family and to others who I am worried might attack me.
121.I now avoid going anywhere where I might come into contact with the offender, his family or any of their friends.
122.I avoided going out and became socially withdrawn.
123.I could not socialise and became anxious thinking about having to go into Rockingham and attending my TAFE course.
124.I was unable to begin my TAFE course following the incident.
125.My father arranged for me to do some labouring work with a local business who employed Filipino workers.
126.At work, I still feel anxious and vulnerable.
127.I am able to go to work, work and leave and return home.
128.I don't feel comfortable doing anything else.
129.I feel pain and discomfort at work when I perform duties such [as] heavy lifting.
130.It is still my intention to go to TAFE and get some form of trade certificate and start a career.
131.I am sad that I was unable to go straight to TAFE and start my training.
132.I feel like I have put my life on hold after the incident and deal with the psychological impact of it.
133.I hope that the treatment I am currently having will allow to me process what has happened to me.
134.When I do go to TAFE I will need to go to a different campus as I will be unable to go to Rockingham campus.
And under the heading 'Current Condition', RJA stated the following:
135.I am still anxious to leave the house other than to go to work.
136.When I do leave the house I remain very hyper vigilant of where I am going and who might be there.
137.I do not like going anywhere near the school or where the offender's family or friends [may] be.
138.This is difficult because this includes my local area.
139.I am still scared that someone might attack me.
140.I am still very scared of the offender's family.
141.I still don't like socialising and prefer to socialise over social media.
142.I am worried about this as I know it is not normal for someone my age to be so anxious and socially withdrawn.
143.I used to play social basketball, but have stopped because I don't like going out anymore.
144.I also used to really enjoy going fishing with my family which I have also stopped.
145.I am reminded of the incident and think about it often.
146.I have seen a psychiatrist, Dr Frederick Ng, who has provided me with a report in support of my application.
147.At the time of the review with Dr Ng, Bradford Legal arranged for an interpreter to be present to assist with the review.
148.I incurred a report fee for the report of Dr Ng in the sum of $1,980.00.
149.I also incurred a fee for the interpreter to be present.
150.I have provided my general practitioner with a copy of Dr Ng's report.
151.I have been referred for the treatment recommended by Dr Ng.
152.I have been referred to see A Resolution and I have received two sessions.
153.I have found the sessions useful, and I hope to use the strategies they have provided will help me put this incident behind me and move on with my life.
As set out above, RJA's evidence comprised several written statements. Much of that evidence was not controversial. However, RJA did not give oral evidence at the appeal hearing and his evidence was not tested in cross-examination. Notwithstanding these limitations, on the materials provided to the court, I accept that RJA was a witness of truth. I generally accept his evidence, subject to the question of weight. RJA's subjective views, particularly as to his psychological symptoms following the assault, his current condition and his evidence as to his loss of earning capacity, need to be weighed in the usual way against the medical and other evidence that was before the court. In addition to this, RJA's evidence concerning HT's sister and their 'misunderstanding' was disputed. I refer to these matters below.

Medical records

RJA was admitted to Royal Perth Hospital on 14 October 2020.
Royal Perth Hospital Trauma Survey notes record, amongst other things, two stab wounds on the thoracolumbar spine: '2 x 0.5 cm stab wound … ~ 0.5 cm depth': BoD, pages 82 - 83. On physical examination, his condition was described as 'stable'.
Royal Perth Hospital Emergency Department Trauma Notes record, amongst other things, that RJA had suffered two stab wounds to the right lower back, with a kitchen knife: BoD, pages 84 - 85. He was prescribed pain relief medication in the form of fentanyl.
The Assessor's Papers and BoD included a photograph of RJA's injuries: Assessor's Papers, page 27; BoD, page 79.
The Royal Perth Hospital Discharge Summary dated 15 October 2020 records the following summary of treatment: BoD, pages 86 - 88:
PRESENTING HISTORY:
Stabbed at school; x2 stab wounds to lower back
Denies collapse/LOC post stabbing
CLINICAL FINDINGS:
GCS 15/15
Vitally stable
x2 0.5cm stab wounds to back, approx. 0.5cm depth
Pain on deep inspiration
Nil else of note
MANAGEMENT/ PROGRESS:
Trauma: Mr Jarmin
1. x2 stab wounds to back, right of midline
The wound was irrigated with NaCl 0.9% and chlorhex. Local anaesthetic was administered and the wound was closed with staples to skin.
RJA's counsel referred the court to a report from Dr Stephen Whiting of Royal Perth Hospital (ts 14). Dr Whiting examined RJA and prepared a report dated 12 November 2020: BoD, pages 90 - 92. In his report, Dr Whiting stated relevantly as follows:
On 14 October 2020 after an alleged assault, the following injuries were noted:
1.2 x stab wounds right lower back (approx. 0.5 xm x 0.5cm)
The following treatment (if any) was administered:
1.Wounds were cleaned and stapled
2.Physiotherapy
The nature of the injuries:
•WERE consistent with having been inflicted as alleged
•WERE of such a nature so as to interfere with the health and comfort of the patient
Had the patient NOT received medical treatment, the injuries:
•were NOT of such a nature as to endanger or be likely to endanger life
•were NOT of such a nature as to cause or be likely to cause permanent injury to health
If the injury was a laceration, did the injury cut through the layers of outer skin? Yes.
Dr Whiting also recorded that RJA received several medications on discharge, including antibiotics (Cefalexin), celecoxib (nonsteroidal anti-inflammatory drug (NSAID)) and pain killers (paracetamol).
On the third page of Dr Whiting's report, were various diagrams of the human body, as well as pictures of the head, hands and feet, in various profiles (including face and side on). Two dots had been placed on an outline of the human body with the dots located in middle‑to‑lower right-hand part of the back. At the top of the page was the heading, 'please indicate the areas involved', next to which were the hand-written words '2 x puncture wounds, posterior ortho'. In effect, Dr Whiting indicated that RJA had suffered two puncture wounds to the middle‑to‑lower right side of his back.
RJA was discharged the day following his admission, being 15 October 2020.
In written submissions, RJA stated that he had been left with scarring from his wounds which were a daily reminder of the incident. RJA included two photographs in his BoD allegedly recording the scars on his lower back: BoD, pages 108 - 109. RJA's counsel referred to the photographs during his oral submissions and in describing them, candidly accepted that they were 'not the best quality' (ts 14).
The photographs provided in the BoD were not annexed to an affidavit. RJA did not refer to them in evidence.
On one of the photographs is the following caption: 'Hi I'm [RJA], this is the two stabbed scar on my back.' The image is about 4.5 cm by 6 cm. The image depicts two scars on what appears to be a person's lower back. The scars although visible, are not particularly clear or pronounced.
The second photograph records a person standing in front of a mirror with their shirt above their head showing their back. The image is also about 4.5 cm by 6 cm. I found it very difficult to see the scarring in this photograph.
The CEO referred to the same photographs in its written submissions, but described them as 'photographs, human back, undated, unlabelled': CEO Submissions, par 15(j). Otherwise, the CEO did not make any submissions as to the identity of the person in the photographs or the nature of the scars. In the circumstances, it was not clear to me whether the CEO disputed that the photographs depicted RJA and the scars on his back.
Having regard to the photographs, the label on the first photograph, and the location of the scars on the photographs, I am satisfied, with some hesitation, that they show the scars on RJA's lower back.
RJA's description of his injuries, to which I have referred at [50] ‑ [56] above, is consistent with the medical records and other materials before the court. I am satisfied that RJA sustained the injuries described as a result of the incident on 14 October 2020.
On the evidence before the court, I find that:
(a)RJA suffered two stab wounds to his lower right back;
(b)each stab wound was approximately 0.5 cm in length and depth;
(c)the wounds were cleaned and treated with staples;
(d)RJA was treated with a number of medications on discharge, including antibiotics, anti-inflammatory drugs and painkillers;
(e)the wounds were not of such a nature as to endanger or be likely to endanger RJA's life or to cause or be likely to cause permanent injury to his health; and
(f)RJA has been left with two scars.

HT's mother

The Assessor's Papers included an email written by HT's mother (KT) to the Office of Criminal Injuries Compensation: Assessor's Papers, page 28 - 29. The email was in the following terms, save that minor omissions/changes have been made to anonymise the parties:
I am writing to you on behalf of my 14 year old Son, HT, in regards to the matter of Criminal Compensation for RJA.
My Husband and I acknowledge that what HT did to RJA was wrong. HT knows this. However, there are circumstances leading up to the incident that I believe you should take into consideration.
My 17 year old Daughter, ST, and RJA both attended the same High School and had been friends over the past 4-5 years. In September this year RJA pulled a knife on ST at school and was suspended for his actions. He convinced ST that he was just "mucking around" and they continued to remain friends. A few days after this knife incident, ST and RJA went down to the local beach as they had done on multiple occasions. They were sitting in ST's car and because ST had a broken leg at the time she spun around in the driver's seat and rested her legs on the middle console. RJA grabbed her legs and pinned them under his legs and proceeded to sexually assault ST. She tried to fight him off but he kept telling her to "Just let me do it". She managed to get out from under his legs and because he refused to get out of her car she had no choice but to drive him home. Once he was at home he sent her a video of himself masturbating to porn videos and also sent a photo of himself masturbating to the videos.
ST didn't tell my Husband or myself about any of the above. She did however confide in a Teacher at school who then contacted me and I went in for a meeting and was told of what had happened. We went to the Kwinana Police Station and made a Statement and then went to the Rockingham Court House and applied for a VRO against RJA. In the meantime ST and I went to the Rockingham Detectives Office and made another Statement and ST was asked more questions about the incident. RJA was arrested not long after and was taken to the Police Station to be interviewed by Detectives. They confiscated his laptop and retrieved the deleted video and photo. He told them that ST asked him to touch her and also asked him to send the video and the photo to her. The end result: the Detective told me that they had to "can the interview due to the difficulty in interviewing with an Interpreter". They also told me that RJA said that he didn't understand that ST was saying "No" (he is Filipino).
As you can imagine, this has been a very stressful time for ST, my Husband and I and our other children but especially for our Son HT. He has been diagnosed with anxiety, depression and Bi-Polar. He has been on medication for all of these for the past 18 months. A week prior to the incident our Dr increased the dosage of HT's Bi‑Polar medication. He was already taking 200mg per day and that was doubled to 400mg per day. He was getting sick from the increase so he stopped taking his medication for 4 days prior to the incident with RJA. I usually monitor him and make sure he takes his medication but with everything going on with ST I wasn't as vigilant with him as I should have been.
HT found out that RJA was allowed to go back to school after the suspension and he was back in classes with ST. ST rang me a few times to tell me that she was scared that RJA would hurt her or even kill her because he got into trouble with his Dad over ST's allegation. I believe that HT snapped as a result of not being on his medication and that is why he hurt RJA.
My Husband has been unwell for most of the year and as a result he hasn't been able to work since April this year. He is a qualified Chef …. I have been laid off at my workplace, …. All Casuals were let go so I haven't been working since August. Things are tough at the moment with both of us out of work. We have had to postpone our Mortgage repayments for 6 months. We have 6 children, 4 of them are living at home with us so it's been a struggle to live week to week. The pressure of Christmas doesn't help.
I hope that you will take into consideration everything that I have told you when you make your decision. Your understanding of our situation is greatly appreciated.
Sincerely
KT's email and the circumstances of the incident outlined therein are relevant to the question of whether RJA contributed, directly or indirectly to the injury or loss suffered by him: s 41 of the Compensation Act. I say more about this later in the judgment.

Police records

The Assessor's Papers included Police Incident Reports, Police Running Sheets, Police Prosecution Notice, the Police Statement of Material Facts, and other miscellaneous documents: Assessor's Papers, pages 63 - 103.
I have referred to the Police Statement of Material Facts above at [12].
The Police Incident Report for 14 October 2020 recorded relevantly, the following: Assessor's Papers, pages 63 - 64:
The accused knows the victim as [the victim] was a friend of the [accused's] sister. There was an incident (100920 1300 16167) of sexual assault made.
On Wednesday 14 October 2020 the accused woke and got ready for school. Whilst packing his lunch he grabbed a fork and also picked up his father's chef paring knife. He placed it into his lunch box with the intention if he was to see the victim wanted to 'hurt him'.
The accused went to school and during his first two classes he moved the knife from his lunch box to his tracksuit waist band.
The accused was walking to his third class when he saw the victim sitting on a bench outside the cafe. The accused dropped his school bag and using his left hand pulled the knife from his waist band and began running at the victim.
Using an upward motion the accused stabbed the victim twice in the back. Causing two puncture wounds to his lower back that penetrated the abdominal cavity narrowly missing his internal organs.
The victim ran from the accused into the school cafe and the accused made chase.
The accused was restrained by an employee of the school and he handed the knife to another employee.
The victim was taken to RPH and was given medical attention. (medical release form signed)
The accused was detained in a school office. He was interviewed with his mother present and full admissions made.
Forensics attended and processed the scene.

Police obtained CCTV footage of the incident: Assessor's Papers, Police Running Sheet, page 69. I accept the facts recorded in the above two documents.
The Police Running Sheet for 27 October 2020, records that RJA told the police that he was 'healing well': Assessor's Papers, page 69.
Given that HT pleaded guilty to the charge of unlawful wounding, it is not necessary to further refer to the police records.

H. Did RJA suffer an injury as a consequence of the commission of a proved offence?

Overview

If RJA can establish that he has suffered an 'injury' as a result of a proved offence, he is entitled to seek compensation under s 12(1) of the Compensation Act. The court must not make a compensation award unless the claimed injury and any claimed loss occurred and did so as a consequence of the commission of a proved offence: s 12(3) of the Compensation Act.
The Compensation Act defines 'injury' to include relevantly, 'bodily harm' and 'mental and nervous shock': s 3 of the Compensation Act.
The words 'as a consequence of' require a causal relationship or connection: Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, 673 (Mason & Wilson JJ) (Fagan); Underwood [87]. Whether that causal relationship exists is 'essentially a question of fact, to be resolved as a matter of common sense': Fagan (673); Underwood [87]. It is sufficient that, as a matter of ordinary common sense and experience, the alleged offence should be regarded as having 'materially contributed' to the harm, in the sense that the contribution was not negligible: Underwood [87] and the authorities cited therein.
As set out above, RJA provided the court with an Impact of Injury Statement. When considering the significance of a victim impact statement provided under the Sentencing Act 1995 (WA), Martin CJ in Dimitrovska v The State of Western Australia [2015] WASCA 162 made a number of observations about the intrinsic nature and character of victim impact statements. Relevantly, his Honour stated at [74] that a victim cannot be expected to provide an objective and impartial account of an offence and its consequences in the statement provided to the court. McLure P, with whom Hall J agreed, gave separate reasons as to the significance of victim impact statements, which are not materially inconsistent with Martin CJ's observations above. In my view, Martin CJ's observations are relevant to RJA's Impact of Injury Statement.

Physical injuries

I have referred to RJA's physical injuries, as recorded in various medical records, at [50] - [65] above. I have also referred to the impact of the incident on RJA, and that he suffered pain in his lower back as a result of the incident. I have no doubt that RJA experienced pain and suffering as a result of his injuries.
In terms of ongoing pain and suffering, RJA alleges that his wounds were painful and sensitive to touch for about four weeks, and that they took about six weeks to fully heal. He says that they remained painful and sensitive to touch for about six months after the incident. He also says that he has ongoing pain and discomfort when he performs certain activities, such as heavy lifting at work. As to this last matter, RJA did not lead any medical evidence to quantify the extent of his ongoing pain and discomfort or the likely causes. Notwithstanding this, I am satisfied that RJA suffered some ongoing pain and discomfort following the incident.
As to the question of mitigation, there was no suggestion that RJA had failed to properly mitigate his physical injuries. In the circumstances, I accept that RJA properly mitigated his physical injuries.
In summary, I am satisfied that RJA sustained the injuries described above and that they occurred as a consequence of the incident on 14 October 2020.

Psychological harm

The next issue that arises is RJA's claim for psychological injury following the incident. In written submissions, RJA acknowledged that his Compensation Application did not claim 'damage associated with his psychological injury' and stated that he would seek to amend his application accordingly: RJA Submissions, par 5.27.
RJA supported this part of his claim by reference to a report by Dr Frederick Ng and his Impact of Injury Statement dated 9 May 2022.
I have already referred to RJA's Impact of Injury Statement above. In written submissions, RJA stated that pars 79 - 98 of his Impact of Injury Statement record the nature and extent of his psychological symptoms following the incident: RJA Submissions, par 5.16. Paragraphs 135 - 145 record his ongoing psychological symptoms: RJA Submissions, par 5.23.
RJA saw Dr Ng for a medico-legal assessment on 25 October 2022. In his report, Dr Ng described the purpose of the report as an 'independent medico-legal psychiatric opinion': BoD, Dr Ng Report, page 93.
In his report, Dr Ng stated that he received documentation about the incident, which he had perused. That documentation included RJA's statement to the police, a colour picture of his wounds, Royal Perth Hospital documents, including the discharge summary, police incident reports and the police statement of material facts and documentation from his school.
In his report, Dr Ng explained how he had examined RJA. Dr Ng referred to RJA's background and history, and symptoms which had developed post the incident.
Dr Ng diagnosed RJA with unspecified trauma with some lesser depressive symptoms following the incident. His report included the following: BoD, page 102:
5. The extent of the reported psychiatric symptoms, and the fact that it caused your client clinically significant distress and impaired his capacity to engage in general, social and educational functioning, leads me to the conclusion that the reported psychiatric symptoms do warrant the diagnosis of a psychiatric condition as a consequence of the subject incident, the basis of this claim.
6. Based on the history elicited, the mental status examination, having perused the documentation provided and from my clinical experience, I form the view that following the subject incident, the basis of this claim, your client developed at least an unspecified trauma related disorder (DSM 5) with some lesser depressive symptoms, at its worst to a moderate to moderately severe extent, and currently to a moderate extent.
The psychiatric condition remains persistent and problematic at this time but to a lesser extent than it had been and the passage of time has seen some reduction in the reported psychiatric symptoms.
It is noted that although he did report some manifestations of post trauma anxiety following the subject accident, the reported psychiatric symptoms fell somewhat short of the diagnosis of post-traumatic stress disorder per se at this assessment interview, however the differential diagnosis of post-traumatic stress disorder does need to be considered given the nature of the subject incident and the reported psychiatric symptoms.
As to the cause of RJA's psychological condition, Dr Ng's report included the following: BoD, page 103:
7. From the history elicited and the available documentation, I form the view that the most significant contributing factors in materially and directly precipitating the onset of the psychiatric disorder stated above was the emotional and physical trauma directly arising as a consequence of the subject incident.
Regarding predisposing influences, your client had denied a family psychiatric history, he had denied a previous personal psychiatric history and he had denied a previous similar incident history.
However, Dr Ng noted that RJA had pre-existing behavioural difficulties in the past and may have suffered pre-existing stress: BoD, page 103:
RJA had pre-existing behavioural difficulties as well as difficulties attending to tasks at school, and these may have caused him some pre‑existing stress and distress but did not precipitate the psychiatric symptoms arising following the subject incident.
The allegation that he had assaulted the sister of the offender (which was a pre-existing issue and which he refuted) of itself may have caused him some pre-existing stress.
As to whether RJA required ongoing treatment and his prognosis, Dr Ng stated as follows: BoD, pages 103 - 104:
9. Your client does currently require ongoing psychiatric treatment as alluded to in my answer to question 10 below, and as a consequence of his currently reported psychiatric symptoms.
10. Your client would currently benefit from at least 12 sessions of trauma specific individual psychotherapy that should occur at least once every 2 to 3 weeks.
If the psychotherapy was provided by a consultant psychiatrist, each session would cost approximately $355 which was the published Australian Medical Association rate for item AM035 per session.
I do not know what psychologists charge for psychotherapy.
If the psychotherapy alone does not assist with attenuating the reported psychiatric symptoms (or if the psychiatric symptoms should evolve and deepen), then the treating doctor should consider a trial of antidepressant medication which treats both anxiety and depressive symptoms, to be taken on a daily basis for at least the ensuing 1 to 3 years at the cost of approximately $50- $100 per month.
13. With the psychiatric treatment recommended above, I would expect psychiatric improvement to occur in the ensuing 12 to 36 months.
Whether he is left with any residual psychiatric symptoms into the foreseeable future (ie. permanently) will become evident in the ensuing 12 to 36 months.
14. With respect to psychiatric prognosis, the further passage of 12 to 36 months as alluded to above, will indicate whether he is left with any residual psychiatric symptoms with associated residual psychiatric impairments into the foreseeable future.
Separate to the above, RJA's materials included a referral note from Dr Jo An Dovaston, RJA's usual doctor, for RJA to obtain psychological treatment (ts 19): BoD, pages 106 - 107. The referral note was addressed to A Resolution, Reynolds Road Medical Centre: RJA Submissions, par 5.25. In RJA's Impact of Injury Statement, RJA states that he had been referred for treatment and that he had attended two sessions with A Resolution, which he found useful: pars 150 - 153. During the appeal hearing, RJA's counsel informed the court that RJA had been 'unable to continue with the treatment with A Resolution counselling' and was endeavouring to locate suitable alternative treatment (ts 18). RJA's counsel also informed the court that that there was no evidence before the court as to the treatment that RJA had had, other than as included in RJA's Impact of Injury Statement (ts 18 - ts 19).

Disposition

An 'injury' under the Compensation Act includes 'mental and nervous shock'. In Underwood, Gething DCJ stated relevantly at [83] that:
This phrase contemplates the impact of the offence on the mind or nervous system. It refers to 'mental or emotional harm as opposed to physical injury or bodily harm'.
(citations omitted)
Similarly, Burrows DCJ in E M v C L [2021] WADC 127 stated at [101] that mental or nervous shock means any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence or associated with the commission of the offence.
Mental or nervous shock is not a mere emotional reaction. In Underwood, Gething DCJ emphasised at [83] that it must be of an enduring character so as to amount to an injury, as opposed to a mere emotional reaction. For example, mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress and disgust are seen as compensable.
Medical evidence from an appropriately qualified medical practitioner will generally be required to prove an injury exists and was caused by the offence. The court will not generally rely on conclusions made by an unqualified person on the basis of medical records without such supporting evidence: Sweetman v Lilley [2021] WADC 74 [14] (Troy DCJ) (Sweetman).
In the present matter, Dr Ng gave evidence that RJA suffered an unspecified trauma-related disorder with some lesser depressive symptoms. Dr Ng's opinion was based in part on a history taken from RJA, an examination of RJA, and from Dr Ng's review of the medical evidence. I accept Dr Ng's opinion. I am satisfied that RJA's unspecified trauma-related disorder falls within the meaning of 'mental and nervous shock' as found in the defined term 'injury' in s 3 of the Compensation Act.
I am also satisfied that RJA's trauma-related disorder was precipitated by the incident. Again, I accept Dr Ng's evidence. I observe that RJA had pre-existing behavioural difficulties. The allegation that RJA had assaulted HT's sister may have caused him some pre-existing stress. That said, in Dr Ng's opinion, the incident was the most significant contributing factor in causing the onset of RJA's psychiatric disorder.
I am also satisfied that RJA's trauma-related disorder falls within the criteria contained in s 35(2) of the Compensation Act, which regulates the circumstances in which an award of compensation for mental and nervous shock may be made. Those circumstances include that the claimant was the person against whom the offence was committed: s 35(2)(b). RJA is entitled to compensation for mental and nervous shock.
Dr Ng recommended that RJA seek and obtain psychological treatment. I deal with this further below.

If RJA did suffer an injury as a consequence of a proved offence, did he suffer any loss?

Overview

If RJA can establish that he has suffered a 'loss' (as defined in s 6 of the Compensation Act) as a result of an injury occasioned by a proved offence, he is entitled to seek compensation under s 12(1) of the Compensation Act. The court must not make a compensation award unless the claimed injury (compensable injury) and any claimed loss occurred and did so as a consequence of the commission of a proved offence: s 12(3) of the Compensation Act.
Loss is defined in s 6(2) of the Compensation Act as follows:
6(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.
Where the type of loss contemplated by s 6(2)(b) above is included in a compensation award, s 48 of the Compensation Act provides that the amount is not to be paid 'unless an assessor is satisfied that the expenses have been reasonably incurred by or on behalf of the victim for treatment that the victim required as a direct consequence of the injury suffered by the victim in consequence of the commission of the offence to which the award relates'. In order to satisfy the evidentiary requirement, RJA or someone on his behalf must give the assessor evidence to this effect: s 48(1)(a) of the Compensation Act.
In his written submissions, RJA claimed the following losses:
(a)$50,000 for past and future loss of earnings: RJA's Submissions, pars 6.5 - 6.42;
(b)$120 for damage to personal items worn when RJA was injured: RJA's Submissions, par 7.1 - 7.4;
(c)$1,006 for medical expenses associated with an account from St John Ambulance: RJA's Submissions, pars 8.2 and 8.4;
(d) $1,980 as the cost of obtaining a report from Dr Ng: RJA's Submissions, para 8.3 - 8.4;
(e)$159.17 as the cost of interpreter's fees incurred for the purposes of obtaining a related report from Dr Ng: RJA's Submissions, pars 8.3 - 8.4; and
(f)$10,730 for future medical treatment associated with his psychological harm: RJA Submissions, pars 9.1 - 9.3.
I address these below.

Loss of earnings

I deal with RJA's loss of earnings claim separately below.

Damage to personal items

In his Compensation Application, RJA claimed $120 for damage to personal items, being a shirt ($30) and a leavers' jacket ($90), which RJA was wearing when he suffered the injuries: Assessor's Papers, page 6; RJA's Submissions, par 7.1 - 7.4.
At the appeal hearing, it was not disputed that RJA had sustained damage to personal items. I accept that RJA was wearing the above items when he was injured. Although RJA did not provide any invoices or receipts associated with the purchase of the above two personal items, I accept that $120 is a reasonable amount for those items: s 18 of the Compensation Act. I will allow damage to the personal items as a compensable loss under s 6(2)(d) of the Compensation Act.

Past medical expenses

As part of his Compensation Application, RJA claimed the ambulance fees associated with taking him to hospital. RJA's Submissions, pars 8.2 and 8.4. A copy of the relevant account was included in his BoD, page 164. The expense incurred totalled $1,006.
At the appeal hearing, it was not disputed that RJA's father had paid the account (ts 41 - 42, 60). I accept that the ambulance fees associated with taking RJA to hospital constitute an expense that was actually and reasonably incurred on behalf of RJA in relation to the injuries he suffered. I will allow the ambulance fees as a compensable loss under s 6(2)(a)(i) of the Compensation Act.

Medical reports

In materials before the court, RJA claimed the cost of engaging Dr Ng and obtaining a report from him: RJA's Submissions, pars 8.3 ‑ 8.4. RJA included both a copy of Dr Ng's report and Dr Ng's tax invoice in the amount of $1,980 in the materials before the court: BoD, pages 93 - 105 and 165. I accept that the expense of obtaining a report from Dr Ng was actually and reasonably incurred by RJA in relation to the injuries he suffered. I will allow the fee paid to Dr Ng as a compensable loss under s 6(2)(a)(ii) of the Compensation Act.
The materials before the court also included an invoice in respect of the cost of engaging an interpreter for the purposes of Dr Ng's assessment of RJA: BoD, page 166; RJA's Submissions, pars 8.3 - 8.4. The invoice is in the amount of $159.17. I accept that the related expense of engaging an interpreter for the purposes of Dr Ng's assessment is an expense that was actually and reasonably incurred in relation to the injuries RJA suffered. I will allow the related interpreter fee as a compensable loss under s 6(2)(a)(ii) of the Compensation Act.
I observe that the CEO did not submit that either of these medical‑related payments should be refused.

Future medical treatment

In his written submissions, RJA submitted that Dr Ng had recommended that he undergo at least 12 sessions of trauma-specific individual psychotherapy at an approximate cost of $355 per session. He further submitted that as RJA had already undergone two treatment sessions, his claim was limited to 10 sessions, which total $3,550: RJA Submissions, pars 9.1.1 - 9.1.2.
During the appeal hearing, the CEO's counsel submitted that RJA had performed his calculations on the assumption that he would attend therapy provided by a psychiatrist. That assumption appeared to be incorrect, because the two treatment sessions that RJA had attended had been with a psychologist, not a psychiatrist (ts 77). The CEO's counsel further submitted that RJA had not adduced evidence as to the costs of the sessions that he had attended or the cost that a psychologist might charge for the relevant type of treatment (ts 77).
In response, RJA's counsel made a 'concession' stating that RJA was not 'seeking psychiatric treatment' but rather, treatment with a 'psychologist or counsellor' (ts 83). Counsel for RJA accepted that there was no evidence before the court as to the likely cost of that service (ts 83).

In Re Richardson [2009] WADC 93, Yeats DCJ stated at [81] relevantly that in the context of s 41(b) of the Compensation Act:
The use of words 'if he or she thinks it is just to do so', requires the Court to consider all the circumstances and to make a judgment ensuring that justice is done in this case. It is a discretion and must be exercised according to law, taking account of the purpose of the legislation and the requirements of the Act.
In the present matter, the CEO supported its submission by reference to a document HT's mother (KT) submitted to the Assessor, which I have referred to at [66] above: CEO's Submissions, par 57. Relevantly, KT informed the Assessor that her daughter [ST] had been sexually assaulted by RJA, and later on the same day, RJA had sent ST a pornographic video and a pornographic photograph of himself. This had led to RJA's arrest and questioning by police.
The CEO also referred to an Online Incident Notification System report made by the principal of the school on 10 September 2020 regarding the disclosure of the incident by a female student to a teacher: CEO's Submissions, par 58. The CEO submitted that that evidence was consistent with the occurrence of the alleged sexual offence. The CEO's written submissions indicated that this document was located in a file produced by the school. While it would have assisted to have read the report, I have not been able to locate a copy of that document in either the Assessor's Papers or the BoD.
RJA seems to refer to the same incident in September 2020 involving ST, however, he describes the incident as a 'misunderstanding': BoD, RJA Impact of Injury Statement, pars 26 - 30. RJA's counsel did not submit otherwise. In the circumstances, I am satisfied that there was an incident in September 2020 involving RJA and ST, though the precise circumstances are disputed.
The CEO also referred to a police incident report at page 81 of the Assessor's Papers, which states that HT's sister was protected from RJA by a Violence Restraining Order: CEO's Submissions, par 59.
I observe that the Police Running Sheet for 29 October 2020, records 'Intel - History between the victim and suspect's sister (VRO) in place': Assessor's Papers, page 69.
The Violence Restraining Order was not before the court. However, it did not appear to be in dispute at the appeal hearing that in September 2020, HT's sister, ST, was protected from RJA by a Violence Restraining Order. RJA's counsel did not submit otherwise. I make that finding accordingly.
I also observe that two witnesses to the incident on 14 October 2020, being LJM and CKRD, made statements which tended to indicate that they were aware of the alleged sexual assault: BoD, pages 46 and 56.
In this regard, LJM stated relevantly that:
21.I followed HT into the deputy's office. As we were walking, HT said 'He's a sick fuck'. I believed he was referring to the alleged sexual assault that his sister had disclosed about RJA.
And CKRD stated relevantly that:
8.I immediately had concerns regarding RJA. I am aware of some family history between the pair.
RJA's counsel referred to their evidence in passing but did not directly address the above matters (ts 8 - ts 9).
The CEO also submitted that at HT's sentencing hearing in March 2021, the court accepted that ST's disclosure of the alleged sexual assault contributed to HT deciding to attack RJA: CEO's Submissions, pars 60 - 62. Having reviewed the transcript of HT's sentencing hearing, I accept the CEO's submission. RJA's counsel did not submit otherwise.
Ultimately, the CEO submitted that it was open to the court to find that RJA's actions were insufficient to justify a reduction in the award of compensation (ts 79). This was because, in essence, RJA's actions were not sufficient to justify HT acting in self-defence or under provocation: CEO's Submissions, par 63.
In written submissions, RJA submitted that whilst HT felt or believed that there was a causative link between his offending and RJA's behaviour (which was denied), RJA did not contribute directly or indirectly to the injury and loss suffered by him: RJA's Submissions, pars 10.1 - 10.2. In oral submissions, RJA's counsel repeated that RJA did not contribute to the injuries he suffered (ts 85).
I observe here that RJA's counsel did not make any submissions as to KT's document mentioned above at [66]. I also observe that RJA's Impact of Injury Statement did not refer to the Violence Restraining Order, or the allegation that RJA had pulled a knife on ST at school and been suspended or that he had sent ST a pornographic video and a pornographic photograph of himself in September 2020.
While I have some misgivings, I am not satisfied that an award to RJA should be reduced under s 41 of the Compensation Act. My reasons for reaching this conclusion can be summarised as follows.
First, RJA is entitled to the presumption of innocence. In Re ATS [2017] WADC 92, Herron DCJ explained at [29] that exactness of proof is required when in a civil proceeding, a question arises whether a crime has been committed. Where criminal conduct is alleged, which is the effect of the allegations against RJA, clear and cogent evidence is required. That evidence is not before the court.
Secondly, in order to conclude that RJA's behaviour contributed directly or indirectly to his injuries, it seems to me that I have to accept KT's version of events, namely, that RJA sexually assaulted ST. Given that I do not have a statement from ST and that RJA strongly denies the 'accusation', and maintains that it was a 'misunderstanding', I am not in a position to make findings about RJA's alleged conduct: BoD, RJA Impact of Injury Statement, par 29.
Thirdly, it is accepted that s 41 of the Compensation Act is stated in terms that are wider than the defences of provocation and self‑defence: Underwood [78], [86]. In effect, RJA's behaviour, while not giving rise to a defence of provocation or self-defence, may nonetheless provide a reason to adjust the award under s 41 of the Compensation Act.
In the present matter, RJA admitted that he had had a 'misunderstanding' with ST in September 2020. That limited admission concerned an 'accusation' that ST had made against him. Although not contained in his Impact of Injury Statement, I accept that the 'accusation' refers to the alleged sexual assault. That is apparent from the evidence referred to above and the context of RJA's evidence. It is also apparent from RJA's first statement to the police when he said that he did not know why HT had attacked him, but that it may have been 'revenge because of his sister'.
Section 41(a) is stated in very broad terms, referring to 'any behaviour …' on the part of the victim. RJA's past behaviour including the imposition of a Violence Restraining Order and his admission of a 'misunderstanding' are relevant to whether he could be said to have contributed, directly or indirectly to his injuries. At the same time, HT's sentencing hearing proceeded on the basis that ST's disclosure of the alleged sexual assault contributed to HT deciding to attack RJA.
Given that RJA accepts that there was an incident involving ST, which he characterises as a 'misunderstanding', and which others (including ST's mother and brother) characterise as sexual assault, and the breadth of s 41(a) of the Compensation Act, there is arguably behaviour on the part of RJA which tends to suggest that he has contributed, directly or indirectly to his injuries. That finding is made without finding RJA at fault or impliedly at fault in respect of the allegations.
That however, is not the end of the matter. Attention must turn to s 41(b) of the Compensation Act, being the second limb. In my view, it would not be just to reduce the amount that the court would otherwise have awarded RJA. My reasons for this conclusion are three‑fold. First, the evidentiary finding for the first limb rests in part, on conduct limited to an admission of a 'misunderstanding'. That admission is not an admission of guilt. Secondly, I agree with the learned magistrate's sentencing remarks to the effect that HT was wrong to take 'the law into his own hands': BoD, page 68. The law should not be seen to condone unlawful conduct, which might on one view be the effect of a reduction in the award. Thirdly, it could not be said that HT was acting in self‑defence or under provocation. The length of time between the alleged sexual offending and the incident on 14 October 2020, which is about a month or more, mitigates against any suggestion of provocation.
In conclusion, I am not satisfied that s 41 of the Compensation Act has any application in the present circumstances.

N. Barring orders - s 45

As recorded in the Assessor's Decision, the Assessor made an order under s 45(1)(b) of the Compensation Act that $2,000 was recoverable from HT under pt 6 of the Compensation Act.
The CEO submitted in written submissions that there is a divergence of authority as to whether this court may vary such an order on appeal under s 55(1) of the Compensation Act: CEO's Submissions, pars 67 - 70. I expand on this below.
In his written submissions, RJA stated that he did not seek to disturb the reimbursement orders the Assessor had made under s 45(1)(b) of the Compensation Act: RJA Submissions, 11.1.
For my part, once there is an appeal from a decision falling within the scope of s 55 of the Compensation Act, then this court 'must' decide the application to which the decision relates afresh without being fettered by the assessor's decision: s 56(1) of the Compensation Act. In effect, this court has the power to vary the Assessor's order under s 45(1) of the Compensation Act. My reasons for reaching this conclusion can be stated shortly.
The relevant provisions in question provide as follows:
45. Order about reimbursement order may be made
(1)When or after making a compensation award in respect of an application made under section 12, an assessor who thinks it is just to do so may make -
(a)an order barring proceedings under Part 6 in respect of the award; or
(b)an order that only a part of the award (specified in the order) may be the subject of proceedings under Part 6.
(2)At any time, on an application by the CEO, an assessor may cancel an order made under subsection (1).
…
55.Appeal lies to District Court
(1)An interested person may appeal to the District Court against an assessor's decision -
(a)to make or to refuse to make a compensation award;
(b)as to the amount of a compensation award.
(2)The CEO or an offender may appeal to the District Court against an assessor's decision -
(a)to make or to refuse to make, or to cancel or amend or to refuse to cancel or amend, a compensation reimbursement order under section 52;
(b)as to the amount of a compensation reimbursement order made or amended under section 52.
…
56. Dealing with appeals
(1)On an appeal under section 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information.
(2)On an appeal under section 55 the District Court may do any or all of the following -
(a)exercise any power of an assessor under this Act, other than a power under section 19(1)(b), 24(1) or 25;
(b)confirm, vary or reverse the assessor's decision, either in whole or in part;
(c)make any order that an assessor could make under this Act;
…
Part 6 of the Compensation Act is titled 'Recovering compensation from offenders'. Self-evidently, that part of the Compensation Act is concerned with recovering compensation from offenders.
Ordinarily, the CEO must make an application under that part of the Compensation Act for a compensation reimbursement order, the effect of which, if ordered by an assessor, is to require the offender to make payment of a nominated amount to the State of Western Australia: s 49 and s 50 of the Compensation Act.
In the present matter, the materials before the court did not appear to include the CEO's application under either s 49 or s 50.
The first point to note about the relevant provisions is that s 55 and s 56 govern appeals under the Compensation Act. It is not possible to commence an appeal by reference to s 45 alone.
The second point to note is that s 56(2)(a) to s 56(2)(c) are stated in wide terms. Giving the text in s 56(2)(a) to s 56(2)(c) their plain and natural meaning, this court may exercise any power of an assessor under the Compensation Act, to confirm, vary or reverse an assessed decision, either in whole or in part and make any award that an assessor could make under the Compensation Act.
Thirdly, the powers given to s 56(2) are to be used in relation to an appeal commenced under s 55 of the Compensation Act.
Fourthly, applications to appeal under s 55(1) and s 55(2) are of two types: those commenced by an interested person and those commenced by the CEO or an offender. Both applications involve an appeal 'against an assessor's decision'.
Fifthly, once an appeal against an assessor's decision has been commenced under s 55, s 56 stipulates that the court must decide the 'application' to which the 'decision' relates afresh, 'without being fettered by the assessor's decision'. As Gething DCJ set out in Savic at [94], that includes the matters contained in pt 4 of the Compensation Act. Part 4 commences with s 29 and concludes with s 45. In this court, the matters contained in pt 4 have historically been considered in an appeal under s 55(1). Troy DCJ came to the same view in Harris at [226] as Gething DCJ in Savic.
Sixthly, the statutory scheme provides broad powers of review, which are not expressly fettered in any way.
Seventhly, the present matter involves an appeal under s 55(1).
Given the above circumstances, it is open for this court to consider afresh what orders should be made under s 45(1), if any. Whether this court should exercise the power given to it under s 45(1) turns on whether it would be 'just to do so'. Given the age of RJA and HT and the circumstances that appear to have led to the incident on 14 October 2020, I do not consider that it is in the interests of justice to recover any part of the compensation award from HT or HT's family. Given this, I would bar proceedings under pt 6 of the Compensation Act.

O. Costs

The CEO submitted in written submissions that no costs order should be made against it because the CEO is not an unsuccessful party to an appeal. Further, costs should not be awarded against the CEO because counsel for the CEO performs a role that would not otherwise be performed: CEO's Submissions, par 72. The CEO relied on WHW v Commissioner of Police [2014] WASCA 153(S) [9] - [18] (Martin CJ, Buss and Murphy JJA) (WHW).
In WHW, the court stated at [13] that:
It may be accepted that at least ordinarily, the court would not, having granted leave to the amicus to appear in order to assist the court, make an adverse costs order against the amicus.
Subject to hearing from the parties' counsel, my tentative view is that the amicus curiae (CEO) did not go beyond the proper role of amicus curiae. Similar to WHW at [14], the amicus curiae made submissions that might properly be raised in the absence of a contradictor. The amicus curiae's submissions did not convey partisanship.
Subject to hearing from the parties' counsel, my tentative view is that there should not be any order as to costs. This is consistent with the usual order for costs in this kind of matter: see the recent authority of Swinford at [133] - [134]. Subject to hearing from the parties, I see no reason to depart from the usual order.

P. Conclusion

For these reasons, I allow the appeal and award RJA $26,815.17 comprising:
(a)$20,000 as general damages;
(b)$120 for damage to personal items worn when RJA was injured;
(c)$1,006 for medical expenses associated with an account from St John Ambulance;
(d) $1,980 for the cost of obtaining a report from Dr Ng;
(e)$159.17 for the cost of interpreter's fees; and
(f)$3,550 for future treatment expenses (payment of which is subject to compliance and satisfaction of the requirements of s 48 of the Compensation Act).
Subject to hearing from the parties, the appropriate orders are:
(a)the appeal is allowed;
(b)the decision of the Assessor be varied to increase the amount of compensation to $26,815.17 inclusive of the amount of $3,550 which is subject to s 48 of the Compensation Act, as compensation for injuries and losses;
(c)under s 45(1)(a) of the Compensation Act, proceedings under pt 6 of the Compensation Act are barred in respect of the award; and
(d) there be no order as to costs.
I will hear from the parties as to the final form of the orders and orders that should be made with respect to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LL
Associate
2 DECEMBER 2022