Re Sunjich
[2022] WADC 66
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE SUNJICH [2022] WADC 66
CORAM: MASSEY DCJ
HEARD: 4 MAY 2022
DELIVERED : 29 JULY 2022
FILE NO/S: APP 6 of 2022
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: BLAZENKA SUNJICH
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: R GUTHRIE
File Number : CIC 2309 of 2018
Catchwords:
Criminal injuries compensation - Appeal - Proved offence - Economic loss - Extension of time
Legislation:
Nil
Result:
Appeal allowed
Representation:
Counsel:
| Appellant | : | Mr J N Trigg |
| Amicus Curiae | : | Ms G Beck on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Stephen Browne Lawyers (South Perth) |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
August v Lynch [2019] WADC 78
Bothma v Hildebrand [2019] WADC 92
Harris v Sycamore [2022] WADC 4
JY [2013] WADC 187
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Michael v Panetta (1994) 10 SR (WA) 323
Re Goodwin [2020] WADC 128
Robinson [2017] WADC 18
Savic v Duric [2021] WADC 53
State of New South Wales v Moss [2000] NSWCA 133
TAW v NJS [2011] WADC 187
Underwood v Underwood [2018] WADC 13
MASSEY DCJ:
The appellant has had the misfortune to be the victim of two assaults. The first assault (the first assault) was committed by her former husband, Kieran James Brosnahan, on 26 October 2015. The second assault (the second assault) was committed by Jodie Papillia, the respondent, on 26 November 2021.
The appellant suffered injuries as a result of both of those assaults.
The appellant subsequently filed applications for criminal injuries compensation in the one claim form in respect of both assaults.
By an amended compensation award dated 21 January 2022, the Assessor of Criminal Injuries Compensation (the Assessor) ordered that the appellant receive a total of $48,304.50 compensation in respect of the first assault. The letter accompanying that award from the Assessor said that compensation had been assessed as follows:
Injuries
$17,500.00
Reports
$6,475.50
Treatment expenses
$11,114.00
Loss of earnings
$10,000.00
Travel expenses
$2,000.00
Future treatment expenses to a maximum of:
$1,215.00
The Assessor made a separate award in the amount of $10,000 in respect of the second assault dated 26 November 2021. No letter accompanied that award and no reasons were provided for the Assessor's decision.
The appellant takes no issue with the award made in respect of the first assault.
The appellant appeals against the award in respect of the second assault.
The appellant filed a notice of appeal against the decision of the Assessor on 12 January 2022. By virtue of s 55(3) of the Criminal Injuries Compensation Act 2003 (WA) (the Act) an appeal must be filed within 21 days of a decision.
Given that the Assessor's decision was dated 26 November 2021, the last date for commencing an appeal against the Assessor's decision was 17 December 2021.
Order 3 r 3 of the Rules of the Supreme Court 1971 (WA) mean that dates between 24 December to 12 January are not included in any time calculations in the absence of an order to the contrary, which means that the appellant's appeal was filed six days late.
The appellant accordingly seeks leave to extend the time within which to appeal. That application is made pursuant to s 55(4) of the Act, which provides:
If it is just to do so, the District Court may allow an appeal to be commenced after the 21 days, and may do so even if the period has expired.
In support of the application for an extension of time, the appellant relies upon an affidavit sworn by her solicitor, Mr Klein.
Mr Klein's affidavit explains, and I accept, that he firstly miscalculated the date by which the appeal had to be lodged and then, by an oversight, failed to lodge the appeal on that date in any event.
The relevant considerations governing the application for the extension of time in which to lodge the appeal are the length or the reasons for the delay, the prospects of the appellant succeeding and the extent of any prejudice to the respondent.
The appellant makes the point, and I accept, that there is no prejudice to the respondent given that she is not subject to a recovery order. The delay itself was only six days and I accept that the delay was caused by no fault of the appellant.
I therefore grant the application for an extension of time and order that the time in which the appellant be required to lodge the notice of appeal be extended to 12 January 2022.
The appeal - general principles
In hearing the appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the Assessor's decision' - and must determine the matter '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 Act.
The appeal is a hearing de novo: Underwood v Underwood [2018] WADC 13 [19]; Robinson [2017] WADC 18 [7]. Furthermore, the appellant does not have to demonstrate an error on the part of the Assessor in order to succeed: Underwood [19].
Apart from the affidavit sworn by Mr Klein, the appellant does not seek to rely on any further information.
I have been provided with the matter book, which contains the material which was before the Assessor and I have read and considered all of that material.
Evidence
The appellant provided a statement to police dated 10 November 2016. In that statement she described being at premises at 38 Suffolk Street, Caversham, which is a horse property that she was using for the agistment of horses. She said that as she arrived at the property she saw the respondent on the phone. She said that as she got out of the car, the respondent made her way over to her, still on the phone, walking very quickly. She said the respondent asked her 'which one is Missy?' to which the appellant responded by saying 'I moved her this morning'.
The appellant said that after she said that, the respondent reached her left hand out around her head and grabbed her hair by the bun. The respondent then pulled her forward and, with her right hand, started hitting the appellant with her right hand. Given that the respondent's right hand was holding her mobile telephone the appellant was being struck by the telephone. The appellant said that she was struck about 10 times by the respondent and that she heard her yelling out 'I knew you'd do my sister over, you stole her horse'.
The appellant said that she saw blood drip down and pulled the respondent close. She said that she felt something snap in her hand and the respondent yelled 'give me back my chain, cunt'.
The appellant said that the respondent started swinging both arms at her. The respondent's head was next to the appellant's left breast and she felt the respondent bite her left breast. She said that she pushed the respondent away and then saw that the respondent's neck chain was in her (the appellant's) hand. She said the respondent moved backwards and the appellant held out the chain and, after the respondent yelled 'give me back my chain', the appellant dropped the chain into her hand.
The appellant said that the respondent then walked away and went to her 15‑year‑old daughter Vanessa and said 'you wanna go' while clenching her fist and making a punching motion for her.
The appellant said that she, the appellant, told the respondent 'you do and you're done'. She said the respondent kept walking and yelled out 'I'll be back for your cunt' and continued saying this as she walked to her car. She said that the respondent got in the driver's seat of the car, reversed past where the appellant was parked and drove towards her car and stopped about a metre from the front of the appellant's car so that the appellant thought that she was going to ram her car. She said the respondent then reversed away and left the property.
The appellant said that her injuries included a 1 cm cut to her forehead, a black left eye that she could not open for a day, her left cheek was swollen, there was a bruise on the back of her left arm and she had a bite mark on her left breast that had bled slightly.
In her victim impact statement in relation to this assault, the appellant repeated what she said in her statement to the police and went on to detail the impact of that incident on her. She said that she suffered a 1 cm laceration on her forehead, a black left eye, a swollen cheek, a bruise on the back of her left arm and a bite on her left breast that had bled slightly. She said that she had pain and swelling in her forehead, left eye, left cheek, left arm and left breast for weeks following the incident and said that she could not open her left eye for one day following the incident and had a black left eye for weeks.
She went on to say that she experienced severe anxiety and could not stop thinking and ruminating about the incident and was still very afraid that the respondent would come back and try to attack her and her children. She detailed that she was unable to sleep properly due to fear and anxiety from both the first and second assault. She said that she stopped training horses after this incident and that any noise would wake her and cause her to panic. She had taken precautions insofar as securing her house was concerned and felt paranoid about being attacked which had become worse following the second assault. She was worried that either Mr Brosnahan (the offender in respect of the first assault) or the respondent would try to attack her.
She said that she had become very socially withdrawn, was afraid of bumping into the respondent socially, was anxious about her daughter going out because of her fear that the respondent might attack her and had become withdrawn and fearful of making new friends. She said she had more difficulty trusting people, more difficulty concentrating and was always feeling anxious and stressed. She said she had scarring on her forehead from the laceration.
Insofar as the impact on her life was concerned, she said that she felt unable to work due to her constant fear and anxiety and that she had started seeing a psychologist, Romana Lee from about September 2017. She said that she started getting counselling from Ms Lee once a week in relation to the two assaults from about July 2018 and was seeing her once a week as at the date of the statement (13 September 2018). She said that she was taking one tablet of Tramadol every night for her back pain.
In a statement headed 'impact statement' dated 27 July 2021, she again reiterated her statement to the police and said that the injuries to her from the second assault included a 1 cm laceration to her forehead, bruising to her left eye, swelling to her left cheek, bruising to the back of her left arm and a bite mark to her left breast. She said that she had also suffered an exacerbation of the psychological injuries sustained in the first assault.
In that statement she also detailed her injuries from the first assault which included bruising to her right eye, bruising and swelling to her face, pain in both hands, whiplash to her back and exacerbation of a previous back injury. She said that her psychological injuries from the first assault included post‑traumatic stress disorder (PTSD), depression and anxiety.
She detailed her medical treatment and her psychological treatment.
She then went on to detail the effect of the incidents, firstly detailing the effect on her of the first assault and then the effect on her of the second assault.
Insofar as the first assault was concerned, the appellant said that she had been involved in a previous motor vehicle accident from which she experienced back pain but said that the first assault had aggravated that injury. She said she experienced severe anxiety, suffered from frequent panic attacks and could not stop thinking or ruminating about the incident. She detailed her fear and worry and her security precautions and said that she was not able to sleep properly. She said that, following the incident, the owners of horses she was looking after saw her bruised and she told them what had happened. She said that although she told them that her former husband would not be back, her clients did not want to leave their horses with her. She said that by January 2016 the horses' owners did not want her caring for their horses, but they continued to rent the paddock. She said that she had one horse and her mother had 12 and so she continued to care for those horses.
She again said that she had become withdrawn from her family and friends, had difficulty trusting people and often zoned out and was anxious and stressed.
Insofar as the second assault was concerned, she said that she experienced severe anxiety and could not stop thinking and ruminating about the incident. She said that the worst part of the ordeal was that her daughters were present. She said that she was very afraid that the respondent would attack her or her children again and she was unable to sleep properly.
She said that she stopped horse training and caring for horses after this incident and was unable to sleep well through the night. She again detailed her security precautions and said that her paranoia about being attacked had become worse following the incident with the respondent. She said that she avoided going to the area where the respondent lived and she was afraid of bumping into her socially.
She said again she was worried about her daughter going out as the respondent might attack her. She said that she experienced fear about being around people, had become withdrawn and was always anxious and stressed. She said that she was self‑conscious of the scar on her forehead and that she suffered from low self‑esteem and had lost all of her confidence.
In that statement she also detailed her education and employment. In December 2009 she was involved in a motor vehicle accident and suffered an injury to her back. She received a compensation payment but no allowance was made in that sum to compensate her for lost earnings.
She said that from 2010 she was in receipt of a single parent pension from Centrelink and had remained in receipt of that pension and received about $500 to $600 per week.
She thought that in July 2015 she had a meeting with Centrelink when her daughter was heading towards 6 years of age. She was told that she could not apply for JobSeeker or look for employment. She said as a result, she started a hobby farm with an agistment business and riding lessons at the beginning of August 2015. She then said that she charged $50 per horse per week for the rental of the paddock, $50 per week for what she described as 'DIY' agistment, $80 per week for part board and $140 for full board.
She said that her plan was to eventually run the hobby farm as a business if it were viable.
She said that she was also providing horse lessons to four of her clients once a fortnight and she would charge $40 for a 30-minute lesson. She provided a table with respect to her income prior to the first assault and her expenses prior to the first assault and also provided details to her solicitors of her various expenses which was reproduced in a table entitled 'Schedule of past and future loss of earning capacity'. She said that after expenses she was earning approximately $920 per week but that she did not have original bank statements as she had provided those to her previous lawyer who cropped the statements and saved them electronically without, it appears, retaining the original copies.
She said that at the time of the first assault she was running a hobby business but was not able to continue with it due to her injuries. She said that at the beginning of October 2016 she recommenced horse agistment work but was physically unable to provide horse riding lessons due to the injuries sustained in the first assault. She said she continued that agistment work up until the time of the second assault and was earning approximately $420 per week. She said that she had prepared a table of her earnings with respect to her income and expenses prior to the second assault and that she had verified those earnings as best as she could from the bank statements. She had provided her solicitors with details of her various expenses prior to the second assault and that those expenses and the accompanying details had been reproduced by her solicitors in a schedule entitled 'schedule of past and future loss of earning capacity'.
She said she became very anxious of people coming onto her property after the second assault and was not able to continue with the agistment work. She said she had horses on her property and was receiving payment up until approximately 12 January 2016.
She went on to say that if it was not for the incidents, she would have continued with the hobby farm and horse‑riding lessons and was confident that it could have been turned into a successful business.
In terms of other evidence, the Assessor was provided with a report from Ms Romana Lee, clinical psychologist of Psychwest Psychological Services dated 3 June 2019 and a report from Dr Mathew Samuel of 360 Medico Legal dated 15 February 2021.
The report from Ms Lee, who is a clinical psychologist, indicated that the appellant attended her first session on 13 May 2017 and thereafter attended a total of 29 sessions over 22 months. In all but two of these sessions she attended she was accompanied by one child or more.
The sessions initially focused on the appellant's coping and her parenting difficulties with her middle child, and it was only in the latter part of 2018 that she spoke about the need for a report to support her victim compensation claim.
The Millon Clinical Multi‑Axial Inventory - III and the Depression Anxiety Stress Scales (DASS) were completed by the appellant. The results of the DASS indicated that the appellant was suffering from extremely severe levels of depression, anxiety and stress.
According to Ms Lee, the appellant's responses to the Millon Clinical Multi‑Axial Inventory indicated that the appellant was someone that had a tendency to avoid conflict and negative experiences in situations. She reported feeling a high level of vulnerability, finding it difficult to trust people and in the opinion of Ms Lee, her views of the world and how she sees herself might appear to others as being paranoid and delusional.
The Inventory also supported a diagnosis of PTSD by her doctors.
Ms Lee indicated that the appellant continued to suffer extremely severe levels of depression, anxiety and stress and PTSD symptoms.
The appellant reported symptoms including anxiety and panic attacks, fears for her safety and that of her children, insomnia, heightened arousal and hypervigilance to noises outside of the house, limited ability to leave the house, having trouble sleeping alone, trouble maintaining friendships and making new friends, inability to trust anyone, financial instability because she was unable to be gainfully employed, flashbacks, hypervigilance and pain from physical injuries as well as difficulties parenting and greater difficulty with her connections to the outside world being maintained.
Ms Lee said that the appellant exhibits the symptoms of severe chronic PTSD by directly experiencing traumatic events, recurrent, involuntary and intrusive memories of the assaults as well as nightmares, avoiding reminders of the assaults, altered thinking and mood and alterations in arousal and reactivity. Ms Lee said that all of those matters had been present since the appellant was assaulted and have impacted her in all areas of her life.
Ms Lee said that the psychological impact of the first assault was that the appellant suffered trauma and started experiencing PTSD symptoms. Ms Lee described this assault as the beginning of her difficulties where the appellant became unable to carry out her daily tasks and be an independent person.
Insofar as the second assault was concerned, Ms Lee said that this assault traumatised the appellant further, specifically because her children were present and there was a risk to their safety and wellbeing. The appellant recalled feeling that she could not do anything to protect either herself or her children.
Ms Lee described the appellant's obsession with locking doors and windows and security generally and said that the appellant reported avoiding going to areas where she might come into contact with the respondent. She did not allow any of her children to be outside the house and reported being paranoid about whom she provided her address details.
Ms Lee concluded that the appellant's psychological condition was directly attributed to the two assaults on her, with the second assault having the greater impact.
In terms of future incapacity, Ms Lee said that the following would be affected:
(a)parenting, with the assaults making her struggles with parenting worse and her having fears and safety concerns for her children;
(b)general, sporting and recreational activities because of the appellant's anxiety and paranoia;
(c)relationship, support network and connectivity - Ms Lee described the appellant as having a limited support network with minimal friends and social connections;
(d)Ms Lee described the appellant as having little confidence, little self‑esteem and no feelings of being safe and secure; and
(e)Ms Lee described the appellant as being in debt and was not in any position to be gainfully employed, which was a situation which could be prolonged and permanent. The appellant had spoken to Ms Lee of the possibility that she might work up to operating her own riding school and carrying out muscle work and healing on animals.
The psychiatric report from Dr Mathew Samuel indicated that he had interviewed the appellant on 15 February 2021 for the purpose of an independent medical report.
Dr Samuel described the appellant as scared to leave the house, paranoid and jumpy. It was his view that the appellant's symptoms currently fulfilled the criteria for PTSD.
He said that in his opinion the appellant had been suffering from psychological symptoms as the result of the first assault and these were aggravated with the second assault. He said that the psychological symptoms of the second assault continued and further that the appellant did not recover from the psychological injuries caused as the result of the first assault. He said the symptoms of PTSD such as poor sleep, nightmares, flashbacks, not being able to leave the home and always feeling paranoid as the result of the first assault were all present in the appellant. He said that the appellant's symptoms would remain for the foreseeable future and that she would require counselling sessions of at least 20 sessions a year for the next two or three years.
It was Dr Samuel's opinion that both of the assaults had significantly contributed to the psychological injuries and both the assaults are attributable to it.
In answer to a question of whether the appellant had been either totally or partially incapacitated from engaging in previous occupations as a result of the first assault, Dr Samuel replied that most of the appellant's work was related to attention and concentration and needing to work physically. He said that in his opinion she was totally incapacitated in doing any of her previous occupations from a psychological point of view for the foreseeable future.
When asked whether she had been incapacitated as a result of the second assault, his response was that the second assault had also made her totally incapacitated. It was his view that she would be unlikely to return to any of her previous occupations in the near future as a result of the first and second assaults. Further, he said that it would be unlikely that she would be ever able to return to any of these occupations due to a psychological injury as a result of the first and second assaults.
He said that it would be difficult for her to do any work related to horses as she was struggling to do any of those tasks and struggling to sit and stand for a long time. He said it would be difficult for her to do any office type jobs as a result. He said that the appellant might need a review by an occupational physician and occupational therapist.
It was Dr Samuel's view that the appellant did not suffer from any psychological conditions prior to the incident.
The appellant's submissions
The appellant says that she was the victim of a 'proved offence' committed by the respondent and is therefore entitled under s 12 of the Act to compensation for any consequential injury and loss.
I accept that the appellant is the victim of a proved offence in respect of both the first and second assaults.
Both of the respondent and Mr Brosnahan were convicted of assaulting the appellant.
The appellant submits that the most significant and long-lasting injuries are the psychiatric and psychological injuries resulting from the assaults. The appellant also submits that the physical injuries to the appellant are as described by her in her statement to the police in her victim impact statement, which I have set out above. It is submitted that the court should have no difficulty finding that the appellant suffered from PTSD prior to the second assault and that her condition was aggravated by the second assault.
The appellant accepts that the extent to which the second assault is causative of the appellant's PTSD or, more precisely, how much of her condition is due to the aggravation of her PTSD caused by the second assault, is for the judgment of the court.
In particular, the appellant points me to the view of Ms Lee that the second assault had the greater impact.
The appellant refers me to the combination of the report from Ms Lee, the report from Dr Samuel and the various statements of the appellant as to her symptoms.
The appellant says that the award from the Assessor was insufficient when one has regard to the nature and extent of the appellant's injury, both past and future, and the impact her injuries have had upon her and will continue to have upon her.
In particular, the appellant points to her lost earnings and future loss of earning capacity.
The appellant submits that prior to the first assault the appellant was running a hobby farm where she engaged in horse agistment work and was receiving payments of various amounts each week to care for people's horses, with the intention to establish and build the hobby farm and agistment work into a viable business. The appellant says that as a result of the first assault she was initially unable to pursue her business plans or other intentions for work but that by the beginning of October she had recovered sufficiently from the effects of the first assault to return to some work. She recommenced her agistment work at that time and continued with it until the second assault and thereafter had horses on the property and was receiving payments up until approximately 12 January 2017. The appellant says that she was earning $420 per week after payment of expenses and has not been able to return since then.
The appellant accepts that the question as to what might have occurred insofar as her earnings from her business were concerned if the second assault had not taken place is hypothetical, but submits that this is not a case where the probabilities are so low that there ought be no award for loss of earnings. The appellant accepts that the circumstances and the evidence in this case means that it is very difficult to assess loss of earnings, past and future, otherwise than on a global basis. Ultimately the appellant submits that the award should not be insignificant.
Submissions of amicus curiae
By order 8 March 2022 the chief executive officer of the Department of Justice (Chief Executive Officer) has leave to appear as amicus curiae.
The Chief Executive Officer made both written and oral submissions. The submissions were confined to reminding me of the relevant principles and summarising some of the evidence I had to consider. The Chief Executive Officer did not take a position with respect to the merits of the appeal.
Assessment of lost earnings - principles
In Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 (Deane, Dawson, Toohey and Gaudron JJ) the High Court enunciated the following principle:
A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that 'the diminution of … earning capacity is or may be productive of financial loss'.
In Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, Deane, Gaudron and McHugh JJ set out the appropriate approach to take when assessing the appellant's past and future loss of earning capacity, where their Honours said:
But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v. McMonagle [3]; Davies v. Taylor [4]; McIntosh v. Williams [5]. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.
In JY [2013] WADC 187 [13] Sleight DCJ, as he then was, set out the principles which must be taken into account where a complainant has a pre‑existing condition. Those principles are as follows:
(a)The onus is on the claimant to prove that the compensable offence did contribute materially to the claimant's injury and loss. However the offence need not be the sole cause of the injury or loss: Bonnington Castings Ltd v Wardlaw [1956] AC 613; Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666.
(b)Compensation will not be awarded if the injury and loss would have occurred in any event due to a pre-existing condition: Smith v Leech Brain & Co Ltd [1962] 2 QB 405. Where it cannot be positively stated that the event (the injury or loss) would have occurred in any event but it remained a probability then the award of compensation must be reduced to take into account that probability.
(c)If it can be proved that the offence has made a pre-existing condition worse by aggravation, or brings on a condition earlier, the assessment of compensation is made on the basis of the worsening or acceleration or both as the case may be: Zumeris v Testa [1972] VR 839.
(d)Where it is not possible to disentangle the consequences of a pre existing condition and the consequences of the offence, the claimant is entitled to compensation for the full injury and loss if the claimant has establish that the compensable offence did contribute materially to the claimants injury or loss: Bonnington Castings Ltd v Wardlaw; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; MJN v MAJS (2003) 35 SR (WA) 219, 227 (Martino J).
(e)In respect of events which have already occurred the court decides on the balance of probabilities whether a specific event has occurred or not and damages are assessed on an all or nothing approach. However, where it is necessary to assess a hypothetical situation such as whether a claimant's pre-existing condition would in any event have prevented the claimant from working in the future, the court must perform an estimate of the likelihood that the hypothetical situation may occur. If there is a fair chance that the hypothetical situation may occur, the court must evaluate that chance and discount the compensation by the percentage that represents that chance: Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485, 499 – 500. These adjustments for probabilities is relevant to general damages and past and future loss: Wilson v Peisley (1975) 50 ALJR 207, 212 (Stephen J); SW v BB [2010] WADC 86.
Findings
In oral argument it was submitted by the appellant's counsel that no claim was ever made for any medical expense reports in the appeal and no claim was made for any future medical treatment as well given that the appellant had received those amounts in the award for the first assault.
The heads of damage I am invited to consider by virtue of this appeal are the general damages or pain and suffering, the economic loss and the travel expenses. Ultimately I did not understand the travel expenses to be pursued because the appellant's counsel was reminded that $2,000 had been awarded for travel with respect to the award for the first assault.
I accept the appellant's evidence that she suffered the physical injuries detailed by her and which I have set out above.
I also accept from a combination of the appellant's evidence and the reports from Ms Lee and Dr Samuel that the appellant suffered from PTSD as a result of the first assault and that this condition was aggravated by the second assault.
The appellant's counsel conceded that the physical injuries themselves were not long lasting and that the main impact to the appellant had come from the psychological injuries she suffered.
I do accept the appellant's evidence that she had returned to work in her agistment business between the first assault and prior to the second assault occurring. However, she had only been able to return to work for approximately one month prior to the first assault occurring. It must be said that, given the diagnosis of PTSD arising from the first assault and given the opinion of Dr Samuel that the appellant did not recover from the psychological injuries as a result of the first assault and that she was totally incapacitated from returning to her previous occupations from a psychological point of view in respect of the first assault then the appellant's ability to persist with her employment in the agistment business is attended with significant uncertainty. There was insufficient time between the appellant returning to work and the second assault occurring to adequately assess whether or not the appellant would have been able to continue with that occupation on a permanent basis.
I do accept that the appellant has lost the chance of continuing with the agistment business and lost the chance of attempting to grow that business, but I do take into account the uncertainty which I have already mentioned.
It must be remembered that the appellant received compensation in the amount of $10,000 for lost earnings in the award for the first assault. The award did not specify whether that loss of earnings was for past or future loss or a combination of both.
Additionally, the evidence of the appellant's loss provided to the Assessor and to which I have had regard is some redacted bank statements with highlighted payments which are said by the appellant to relate to her business. However I have not been provided with any documents corroborating the appellant's expenses of running that business, including any details about the rental and the premises, the cost of feed and any other expenses associated with the running of a business.
As a result of that, although the appellant says that she was earning $420 per week in the period from 1 October 2016 to 1 November 2016 I do not have any corroborative evidence to show that this amount reflected her net earnings.
I do accept that the appellant has lost the chance of running that business and I do accept that she suffered some lost earnings as a result. However, it is very difficult for me to quantify those lost earnings given the lack of information provided to the Assessor and consequently to me.
I have regard to other assessments involving criminal injuries compensation including Savic v Duric [2021] WADC 53, Underwood, August v Lynch [2019] WADC 78, Bothma v Hildebrand [2019] WADC 92, Re Goodwin [2020] WADC 128 and Harris v Sycamore [2022] WADC 4. In doing so I have accepted the views expressed by his Honour Judge Jackson QC in Michael v Panetta (1994) 10 SR (WA) 323 as adopted by Bowden DCJ in TAW v NJS [2011] WADC 187 and Troy DCJ in Harris v Sycamore.
According to ordinary tortious principles, the amount of general damages must be fair and reasonable compensation for the injuries received by the appellant and the disabilities caused, having regard to current general ideas of fairness and moderation. The amount must be proportionate to the appellant's particular situation.
In all of the circumstances I am of the view that the amount of $10,000 awarded by the Assessor sufficiently compensates the appellant for her pain and suffering inclusive of the PTSD and all other heads of damage apart from her past and future economic loss in relation to the second assault. Whilst I do not want to minimise the effects of the PTSD on the appellant, the reality is that the PTSD was already present and had incapacitated the appellant in the way described by Dr Samuel. The second assault aggravated the PTSD. Compensation payment was made in respect of the first assault. In all of those circumstances I am satisfied that the amount of $10,000 adequately compensates the appellant for her physical and mental injuries.
However, in my view the award does not adequately compensate the appellant for the loss of a chance of earning income from her agistment business. I therefore will increase the award.
I have however reduced the extent of that increase to the award because of the contingencies which I have mentioned, namely the potential difficulties caused by the first assault to the appellant's capacity to continue working in any event and the lack of evidence as to the appellant's net earnings from the business. Whilst I consider that the appellant may have been able to continue working and grow her business, her actual ability to do so is somewhat of a hypothetical situation bearing in mind the conclusions of Dr Samuel. Accordingly, I have adjusted the award I would make for those probabilities.
I have also taken into account that the second assault aggravated the PTSD experienced by the appellant as a result of the first assault.
Given the short period of time between the appellant recommencing her agistment business and the second assault it is difficult to quantify the likelihood of her being able to continue the agistment business on a permanent basis. Further, the failure of the Assessor to specify whether the award for lost earnings for the first assault was for past or future loss or a combination of both makes it difficult to ascertain whether the appellant has, to some extent, been compensated for the lost earnings claimed in this appeal. When I add those uncertainties to the paucity of information as to the appellant's likely earnings from the agistment business I am unable to assess the compensation for the loss of the chance on anything other than a global basis.
In State of New South Wales v Moss [2000] NSWCA 133 at [71] Heydon JA (Mason P and Handley JA agreeing) said:
Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities.
When I take into account those remarks and the uncertainties I have already mentioned, I assess the appellant's lost earnings on a global basis in the amount of $7,500. I therefore increase the award in respect of the second assault to $17,500.
I therefore order as follows:
1.the time by which the appellant be required to lodge the notice of appeal be extended to 12 January 2022; and
2.the decision of the Assessor be varied to increase the amount of compensation to $17,500.
I will hear the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ZB
Associate to his Honour Judge Massey
28 JULY 2022
18
0