Re SR (by their Next Friend Mr) (pseudonym initials) - [2024] WADC 43

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE SR (by their Next Friend MR) (pseudonym initials) [2024] WADC 43
CORAM:   RITTER DCJ
HEARD:   14 DECEMBER 2023
DELIVERED          :   7 JUNE 2024
FILE NO/S:   APP 30 of 2023
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: SR (by their Next Friend MR) (pseudonym initials)
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R GUTHRIE
File Number            :   CIC 2025/2022

Catchwords:

Criminal injuries compensation - Appeal against amount awarded - Psychological injuries - Nervous shock

Legislation:

Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal allowed

Representation:

Counsel:

Appellant	:	Ms M Orellana
Amicus Curiae	:	Ms M H Cowie appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Compo Lawyers WA Pty Ltd
Amicus Curiae	:	State Solicitor for Western Australia

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

Re VPAN [2011] WADC 40
Re ZD [2024] WADC 42
WHW v Commissioner of Police [2014] WASCA 153 (S)

RITTER DCJ:

SR seeks, by way of an appeal, an increase in the amount of compensation awarded in their favour by an assessor of criminal injuries compensation (the assessor). The application to the assessor had been made under the Criminal Injuries Compensation Act 2003 (WA) (the Act). The award of compensation was made by the assessor on 28 June 2023. SR was born in November 2007. Accordingly, the appeal is brought by their mother, MR, as a next friend. An application to the assessor had also been made by the sibling of SR, ZD. ZD's application was determined at the same time as SR's application. ZD has also appealed against the award of compensation to them.
The assessor did not provide any reasons for decision. However, correspondence to SR said an award of compensation of $26,334.54 was made on 28 June 2023, made up as follows:

General damages

$22,500.00

Reports

$2,085.60

Treatment expenses

$283.94

Travel expenses

$250.00

Future treatment expenses to a maximum of

$1,215.00

Total

$26,334.54

Also, in a letter from the assessor to SR, dated 28 June 2023 (the assessor's letter) it was said that the compensation awarded to the appellant had been awarded for injuries, reports, treatment expenses, travel expenses and future treatment.
Both the appeals by SR and ZD were heard before me at the same time and some common submissions were made. However, the appeals of SR and ZD must be determined separately, based upon the issues and evidence relevant to the particular appeal.
These reasons should be read with the reasons for decision in the appeal of ZD. In the reasons for decision of ReZD,[1] I have set out principles applicable to both appeals. I will refer to these again below.
[1] ReZD [2024] WADC 42.
Both of the applications for compensation before the assessor were made pursuant to s 35(2)(c) and/or s 35(2)(e) of the Act. The application of SR was made on the basis that they had suffered nervous shock as a secondary victim to offences committed by their father, FR, against MR. FR had been charged and convicted of five offences against MR. For these proved offences, s 12 of the Act applied. There were also five incidents in which it was alleged that FR had caused injury to MR, but where no person had been charged with the commission of any offence. Section 17(2) of the Act applied to those alleged offences.
As set out in the reasons for decision in ReZD, on the hearing of the appeals, Ms Cowie, from the State Solicitor's Office appeared as amicus curiae and also provided written submissions. As stated in the reasons for decision in ReZD, the court is grateful for the assistance from Ms Cowie.
The principles set out in the reasons for decision in ReZD, about the following issues, apply and are applied in determining this appeal:
(a)The general principles applicable to appeals under the Act.
(b)The applicable jurisdictional limit.
(c)The entitlement to compensation under the Act.
(d)The principles that apply to the admission and weight of the evidence of Mr Haddad as a psychologist.
(e)The compensation to be awarded for loss of earning capacity, including the assessment of loss of an earning opportunity by SR as a child.
The evidence about the following matters is the same with respect to SR as ZD and the discussion of the evidence and conclusions reached on these issues is the same as in ReZD:
(a)Whether the assessor took into account the issue of future loss of earnings in determining the amount of compensation awarded.
(b)The evidence and information to be taken into account in determining the appeal.
(c)For the purposes of s 35(2)(e) of the Act, that SR was, as was ZD, a close relative and living with MR at the time MR was injured as a consequence of the proved offences and alleged offences.
(d)The proved offences.
(e)The alleged offences.
(f)The evidence and information about injuries suffered by MR.
(g)MR's statement about the effects of the injuries upon her.
(h)The information contained in ZD's statement about the offences committed against MR and injuries from the offences.
(i)The evidence of Mr Haddad about the injuries suffered by MR and the cause of those injuries.
(j)The applicable jurisdictional limit.
Given all of the above, SR is entitled to compensation if they suffered an injury, being nervous and mental shock, in the circumstances described in s 35(2) of the Act. This requires, amongst other things, for SR to prove on the balance of probabilities that they have suffered mental and nervous shock as a consequence of the offences committed against MR.
On this issue, in the statement of MR it is said that since the proved and unproved offences, SR has been displaying anger behaviours at home like shouting and punching. They have also been experimenting with marijuana. They look like they are feeling hopeless, anxious and depressed. SR informs their mother that 'nothing makes [them] happy' and that they do not 'care about [their] future. At night I notice [their] anxiety and depression have made it hard for [them] to sleep, but during the day it is hard for [them] to get out of bed. [They have] lost a lot of weight as [their] appetite is not the same anymore. These incidents really impacted [them] at school as well. [Their] teachers have mentioned that they have noticed that [they were] very anxious at school. [They] used to perform quite well academically but since the incidents [they lack] motivation and [have] withdrawn from school and friends. [They] dropped out of being in the academic enrichment program'.
Additionally, MR said in a submission to the assessor dated 10 November 2020, that SR had disclosed to MR that they attempted to commit suicide by hanging off a bridge and wanting to jump off. They disclosed the only reason they did not jump was because a motorist stopped and talked them out of it.
The general practitioner of the appellant, Dr David Moss, said in his medical records that SR suffered from post-traumatic stress disorder (PTSD). Dr Moss said the symptomology and behaviours of SR were in the 'context' of PTSD, anxiety and signs of depression.
Another general practitioner at the same medical group,[2] Dr SL referred SR to Headspace Joondalup. This was for 'management of [their] labile mood, low motivation, sleep issues secondary to significant family dynamics'. The referral was on 9 November 2020.
[2] This is anonymised.
The appellant was reviewed by a consultant psychiatrist, Dr Navneet Johri on 30 November 2020. Dr Johri diagnosed SR with 'adjustment disorder with differential of depressive disorder' and 'prominent sleep disturbance' and noted that SR may 'qualify' for an ultra high‑risk stream due to a reduction in functioning combined with a family history of schizophrenia. On this point, however, Dr Johri noted that the family history was unconfirmed.
SR was then reviewed by Dr Deepak Davis, a consultant psychiatrist, on 22 March 2021. Dr Davis said that SR's current symptoms appeared to be dysthymia and irritability, difficulties with mood regulation and in particular anger, leading to emotional outbursts or acting out behaviours at school. Dr Davis said this could be understood in the context of a response to trauma. It was said by Dr Davis that due to the exposures of SR to traumas over 'the past four years' and their more acute presentation with what was likely to be an acute stress reaction, they were at risk of progressing into a more persistent complex PTSD-type illness.
SR was also reviewed by Mr Haddad on 27 June 2022 for the purpose of a medicolegal assessment and report.
In his report, Mr Haddad described the psychological injuries that SR sustained as a result (in his opinion) of the proved and unproved offences. These were:
(a)Heightened anxiety.
(b)Low mood.
(c)Rapid decline in mental health.
(d)Significant drop in school attendance.
(e)Isolation from friends by remaining home.
(f)A decline from the previous high levels of achievement at school.
(g)A reduction in sleep and quality of sleep, including nightmares.
(h)An increase in anger outbursts at school and home.
(i)A loss of appetite.
(j)Weight loss.
(k)Loss of motivation for activities in life.
(l)Feeling hopeless about their life and future.
(m)Decline in overall wellbeing.
Mr Haddad also reported that SR had informed him of their most recent symptomology, which was:
(a)Being tired.
(b)A very low mood.
(c)Being unmotivated to attend school.
(d)Poor sleep.
(e)Little interest in having contact with peers.
(f)No interests outside of the home.
(g)Seeing little purpose in previous activities and interests.
(h)Low self-esteem and confidence.
(i)Negative thinking.
(j)Self-doubt.
Mr Haddad noted that SR also struggled to see a meaningful future where they would be fulfilled and happy.
Mr Haddad reported that the psychological symptoms caused SR significant distress, clinically, and contributed to impairments in general and social and educational functioning. Mr Haddad said the ability of SR to engage in a fulfilling life, similar to other teenagers, had been impaired.
Mr Haddad 'diagnosed' the appellant with separation anxiety and a major depressive disorder in accordance with DSM‑5.[3] Mr Haddad said this was moderate in severity. Mr Haddad was also of the opinion that SR had suffered from mental and nervous shock as a result of the proved and unproved offences.
[3] American Psychiatric Association, 'Diagnostic and Statistical Manual of Mental Disorders DSM-5' (5^th ed, 2013).
Mr Haddad said there did not appear to be any other factors, besides the proved and unproved offences, that otherwise led to the ongoing mental health struggles of SR.
Mr Haddad prepared a supplementary report dated 23 October 2023. In that report Mr Haddad said that SR appeared to remain withdrawn from peers and remained home most of the time with online gaming being their only social contact. It was also noted that SR stayed up late at night and then slept during the daytime.
After reviewing additional school and medical records, Mr Haddad reported that SR's mental health had declined. SR had poor sleep, substance abuse had increased, school attendance was limited, and SR had been prescribed with medication to treat a major depressive disorder and generalised anxiety disorder.
Mr Haddad also said the proved and unproved offences 'would have' materially and significantly contributed to the existence of separation anxiety, major depressive disorder, and recurrent mental and nervous shock.
As in the appeal of ZD, there is an issue as to the weight that can be applied to the opinions of Mr Haddad.
The same principles in assessing this issue as set out in the reasons for decision in ReZD.
Mr Haddad's qualification and experience are set out in the reasons in ReZD.
In his first report about SR, Mr Haddad does not indicate that he tested SR in any clinical way. The same applies with respect to his supplementary report. I therefore approach the opinions expressed with some caution.
But, I must take note of the qualifications and experience of Mr Haddad.
Also, Mr Haddad's opinions are supported by those of the psychiatrists and general practitioners whose evidence I have referred to above. Accordingly, because of the consistency of Mr Haddad's opinions with the general practitioners and psychiatrists, together with his qualifications and experience, I give Mr Haddad's significant weight. On this basis, I am satisfied on the balance of probabilities that SR has suffered from the injuries referred to by the doctors and Mr Haddad as a result of the proved and unproved offences.[4] The injuries are 'mental and nervous shock' and therefore compensable under the Act.
[4] I add that in each of his reports with respect to SR, Mr Haddad has, similar to ZD, recounted the proved and unproved offences, so that Mr Haddad has expressly taken into account those proved and unproved offences in the preparation of his opinions.
The next issue to consider is the extent to which the injury suffered by the appellant has caused compensatory loss in the form of a loss of future earning capacity. This is the only complaint about the assessment by the assessor.
In his report dated 23 October 2023, Mr Haddad said the appellant's condition had not stabilised and had continued to deteriorate. Mr Haddad said that without ongoing suitable treatment the appellant will remain impaired.
The submissions of the appellant initially focussed upon the academic promise of the appellant. For example, Mr Haddad noted that the appellant had shown the aptitude to achieve at a high level during his primary school years.
Mr Haddad said SR's educational opportunities and decline in school attendance and performance occurred because of his poor mental health. Mr Haddad said the appellant was noted as being 'at risk' from a school attendance notation in 2018. Additionally, Mr Haddad noted in his report dated 23 October 2023 that there had been a decline in school attendance from 2018 to 2023. It was Mr Haddad's opinion that the appellant's psychological injuries had led to his decline in school attendance and performance. In his report dated 23 October 2023 Mr Haddad said the appellant's psychological injuries constituted an impairment which will affect his ability to complete his schooling and seek future study or employment opportunities.
The appellant was also reviewed by Mr Andrew Hook on 23 October 2023. Mr Hook, as referred to in my reasons in ReZD, is a vocational consultant. The purpose of the conference was so that Mr Hook could prepare an assessment report of the education, training experience and other relevant information to determine the impact, if any, of the alleged injuries on SR's future career options and employment. In his report, Mr Hook says the appellant informed him that they had been a strong student and performed well academically and had been accepted into an academic enrichment programme at secondary school in Year 7 in 2020. They also said that they were good at mathematics and computers and reported an interest in working in 'something to do with computers'.
Mr Hook said he received similar information from MR.
In July 2023 the appellant commenced a pre‑apprenticeship carpentry course. However, his attendance during the theory component was poor and he only attended his work placement for one day. Mr Hook explained in his report that this was due to an aggravation or exacerbation of SR's psychological symptoms and irritable bowel syndrome which resulted in the need to frequently access a bathroom.
Mr Hook said in his report that the appellant appeared to be detached from formal education and had not attended formal education since Year 8 in 2021. They attended at school only once or twice in the past 12 months. Mr Hook also referred to the failure to complete the pre‑apprenticeship programme and said it was a good indicator of the appellant's lack of capacity for paid employment in the open labour market. It was noted by Mr Hook that prior to the offending and alleged offending, the appellant had school attendance of 100% and had performed strongly in English, mathematics and science. They had been accepted into an academic enrichment programme and were on track to complete Year 12 and obtain the Western Australian Certificate of Education (WACE) via the ATAR pathway. Mr Hook referred to the income that could be earnt in the information and technology sector which SR had said they had wanted to engage in. Mr Hook also took into account the difference between unemployment benefits and engaging in employment in that capacity. Mr Hook also referred to the difference in earning capacity between unemployment benefits and that of an entry level or trade carpenter. It was submitted by the appellant that Mr Hook's report provides evidence upon which an assessment of the loss may be made, by providing a comparison of what the appellant may have earned if not for their injury and what they were likely to earn in light of having suffered that injury.
As set out in my reasons in ReZD, Mr Hook in his report does not refer to any negative contingencies.
Mr Hook says that his opinions are based upon the appellant's psychological condition not yet being stable. Mr Hook says that if the appellant is unable to re‑engage with formal learning either by attending school or resuming his pre‑apprenticeship course, his future career options and unemployment opportunities are poor. This can be accepted. However, in my opinion there is insufficient information available to predict with any form of precision what the likely future loss of earnings are going to be. For this reason, as with ZD, in my opinion the future loss of earning capacity can only be assessed on a global or buffer basis as described in those reasons. Given the nature and severity of the symptoms suffered to date by the appellant, and likely effects upon their capacity to productively engage in education and the workforce, and the likely impact that this may have upon a future earning capacity, in my opinion it is appropriate to award a global or buffer amount of compensation in the amount of $30,000.
As set out earlier the assessor included general damages of $22,500 in the award of compensation handed down on 28 June 2023. The appellant did not specifically complain about the quantum although referred to non‑pecuniary loss as a heading in their written submissions. Under this heading the appellant referred to the opinions of Mr Haddad that:
(a)The appellant suffered a significant reaction to the trauma of being exposed to the incidents of domestic violence, namely major depressive disorder and separation anxiety. It was argued that whilst the appellant no longer has contact with their father, their psychological symptoms do not appear to have stabilised.
(b)The appellant has continued to have psychiatric symptoms and their sense of personal wellbeing, self‑esteem and self‑confidence still remain compromised.
(c)These things were supported by the evidence of the report of Mr Haddad dated 23 October 2023. Mr Haddad concluded the appellant's condition had not stabilised and had continued to deteriorate. Mr Haddad noted the psychological injuries had increased, and are ongoing and without suitable treatment the appellant will remain impaired.
(d)In his report dated 8 July 2022 Mr Haddad was of the opinion that with psychological intervention as recommended there may be improvement in the appellant's long‑term prognosis.
(e)The amicus did not make any specific submissions about an award of general damages as part of the compensation for the injuries suffered by SR.

Although no specific complaint is made about the general damages assessment by the assessor, as set out earlier on appeal the court is not fettered by the decision of the assessor.[5]
[5] Section 56(1) of the Act.
Taking that into account, as well as the necessarily impressionistic nature of an award for general damages, in my opinion the appropriate amount to award to SR is the amount of $27,000.
With respect to future medical treatment, Mr Haddad recommended:[6]
(a)SR be reviewed by a psychiatrist to confirm the primary diagnosis and for consideration of pharmacological treatment. Mr Haddad was not able to comment on the cost of these sessions, however, noted that where there was a referral from a general practitioner SR would be eligible for a Medicare rebate; and
(b)SR attend psychotherapy sessions every 1 ‑ 2 weeks, for 12 ‑ 18 sessions. Mr Haddad said that the Australian Psychological Society's recommended rate per hour was $280. Mr Haddad also noted that SR would be eligible for at least 10 sessions to be rebated by Medicare with a mental health care plan, prepared by a general practitioner.
[6] Report dated 8 July 2022, assessor's papers (SR), page 41.
As set out in the reasons for decision in ReZD, in my opinion it is appropriate to assess compensation for future medical treatment on the basis that a Medicare rebate will be obtained.
Additionally, s 48 of the Act says that compensation for future treatment expenses is not paid unless and until there is proof that they have been incurred, and that this is provided to the assessor.
As for ZD, on the basis of information provided by the amicus, that the rate recommended by the Australian Psychological Society has increased to the recommended amount of $300 for a standard 46 ‑ 60‑minute consultation it is appropriate to award compensation for future medical treatment on that basis.[7]
[7] See as accessed by the amicus on 2 April 2024.
With respect to the past medical expenses of SR, as set out by the amicus there is evidence of various expenses incurred on behalf of SR for:
(a)Clinical notes and reports from BSH in the amount of $72.60, but paid by Legal Aid.
(b)Medical reports obtained from a medical group in the amount of $99, as paid by Legal Aid.
(c)The obtaining of further medical records from a medical group in the amount of $100.
(d)The cost of obtaining the report of Mr Haddad in the amount of $1,914, paid by Legal Aid.
(e)The cost of obtaining the supplementary report from Mr Haddad in the amount of $660.
(f)The cost of the vocational report prepared by Mr Cook in the amount of $1,848.
(g)Medication dispensed on various dates totalling $406.46.
For the reasons set out in ReZD, in my opinion the costs of obtaining the vocational report of Mr Cook are not compensable under the Act.
SR also claims travel expenses for travel of 54.4 km from their home to Perth on 27 June 2022 to attend the assessment with Mr Haddad. This claim should be part of the award of compensation, in the same amount as set out in Re ZD.
Finally, the appellant seeks expenses of the appeal pursuant to reg 5 of the Criminal Injuries Compensation Regulations 2003 (WA). The amounts claimed are $180 for the preparation of appeal and $632 as a filing fee for the notice of appeal. In my opinion these amounts should be included in the compensation to be awarded to the appellant.
In the submissions of the amicus, the issue is raised as to whether to reconsider the barring order made in respect of SR, pursuant to s 45(1)(a) of the Act. Such an order made by the assessor, bars proceedings under pt 6 of the Act in respect of the award of compensation made to SR. In my opinion for the reasons set out in Re ZD, I do not think it appropriate to reconsider the barring order. Essentially this is because it was not something that was raised by SR in their submissions with respect to the appeal.

Costs

On appeal the court may award costs against an unsuccessful party and in favour of a successful party in accordance with the scale of costs prescribed by the Criminal Injuries Compensation Regulations.[8]
[8] Section 56(2)(d) of the Act.
However, I accept the submission that there should be no costs order in this appeal. This is because there is no unsuccessful party to the appeal. The Chief Executive Officer is not a party to the appeal and therefore could not be characterised as an unsuccessful party. To do so would be to confuse the important role played by the Chief Executive Officer as an amicus curiae in the proceedings. As set out earlier counsel for the Chief Executive Officer performs a role that is invaluable and would not otherwise be performed for the benefit of the hearing and determination of the appeal and for the court.[9]
[9] WHW v Commissioner of Police [2014] WASCA 153 (S) [11] - [18]; Re VPAN [2011] WADC 40 [159].

Orders

These reasons will be published, and the parties requested to provide a minute of proposed orders to properly reflect the reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
HM
Associate to Judge Ritter
7 JUNE 2024

General damages	$22,500.00
Reports	$2,085.60
Treatment expenses	$283.94
Travel expenses	$250.00
Future treatment expenses to a maximum of	$1,215.00
Total	$26,334.54