Re Swinford
[2021] WADC 82
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SWINFORD [2021] WADC 82
CORAM: RUSSELL DCJ
HEARD: 16 DECEMBER 2020 & 19 APRIL 2021
DELIVERED : 20 AUGUST 2021
FILE NO/S: APP 22 of 2020
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: JAMES SWINFORD
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: R GUTHRIE
File Number : CIC 235/2018, CIC 236/2018
Catchwords:
Criminal injuries compensation - Appeal - Admission of further evidence - Alleged offences - Two or more unrelated offences by one offender - Mental and nervous shock - Turns on own facts
Legislation:
Criminal Code Act Compilation Act 1913 (WA), s 222, s 223, s 248(4), s 313
Criminal Injuries Compensation Act 2003 (WA), s 3, s 6, s 6(2), s 9(1), s 17(1), s 17(2), s 30, s 31, s 33(1), s 34(2), s 41, s 55(3), s 56(1), s 56(2), s 56(2)(a), s 56(2)(b)
Result:
Appeal allowed
Compensation award varied
Representation:
Counsel:
| Appellant | : | Mr B L Nugawela |
| Amicus Curiae | : | Ms K T Dias (16 December 2020) and Ms A Y Seen (19 April 2021) on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Leon Martin Barristers & Solicitors |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
B v W (1989) 6 SR (WA) 79
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Cahill v Smith [2015] WADC 148
CKM [2008] WADC 79
CME [2018] WADC 69
Crumby v Kuru (1995) 13 SR (WA) 331
Dos Santos v Dos Santos [2000] WADC 256
DR v CD [2018] WADC 148
Dunne [2014] WADC 131
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Guy v Hampson [2019] WADC 19
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
Houlahan v Pitchen [2009] WASCA 104
JY [2013] WADC 187
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Martin v Martin [2015] WADC 138
McDavitt v McDavitt [No 2] [2013] WADC 198
MJN v MAJS [2003] WACC 9; (2003) 143 A Crim R 375
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Purkess v Crittenden (1965) 114 CLR 164
Re AK [2016] WADC 156
Re Farmer [2015] WADC 91
Re Piggott [2017] WADC 150
Re Robinson [2017] WADC 18
Re Utting [2011] WADC 10
RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)
Robertson v Baker [2014] WADC 14
S v Neumann (1995) 14 WAR 452
Selimoski [2012] WADC 30
TAW v NJS [2011] WADC 187
Taylor v Paindelli [2016] WADC 160
Underwood v Underwood [2018] WADC 13
VPAN [2011] WADC 40
WHW v Commissioner of Police [2014] WASCA 153(S)
Winiarczyk v Tsirigotis [2011] WASCA 97
RUSSELL DCJ:
Introduction
On 28 January 2018, the appellant, Mr James Swinford, filed applications for criminal injuries compensation in relation to separate assaults alleged to have occurred on 15 January 2015 (First Incident) and 23 February 2015 (Second Incident).
Both incidents are alleged to have occurred whilst Mr Swinford was in the course of his employment with Wilson Security as a transit guard and to have involved another employee of Wilson Security, assaulting Mr Swinford. I refer to the person alleged to have assaulted Mr Swinford in each incident as RP.
RP was not charged in relation to either incident.
Mr Swinford's applications were made pursuant to s 17 of the Criminal Injuries Compensation Act 2003 (WA) (CICA), which applies if an alleged offence is committed but no person is charged with the alleged offence,[1] and provides that a person who suffers injury as a consequence of the commission of an alleged offence may apply for compensation for that injury and any loss also suffered.[2]
[1] CICA s 17(1).
[2] CICA s 17(2).
On 15 April 2020, an Assessor of Criminal Injuries Compensation determined the applications. The assessor awarded Mr Swinford compensation in the amount of $12,505, made up of $10,000 for his injuries and $2,505 for the cost of reports obtained by Mr Swinford.
Mr Swinford has appealed the assessor's decision on the ground the award is manifestly inadequate. The notice of appeal also states 'further grounds to be provided after receipt of written reasons for decision'. No further grounds have been provided or raised.
In the appeal, Mr Swinford seeks compensation in the amount of $205,900.85, noting that the statutory cap for each claim is $75,000.
The total compensation claimed comprises amounts for general damages, past loss of earnings, future loss of earnings, report fees, future treatment expenses and past special loss.
For the reasons that follow, having considered the evidence and information filed in support of the applications and the further evidence adduced in the appeal, I consider that Mr Swinford is entitled to an award of compensation in the total amount of $76,665 of which $12,550 relates to future treatment expenses. Payment of the amount of $12,550 for future treatment expenses is subject to satisfaction of the requirements of s 48 of the CICA.
The award of $76,665 is within the maximum amount of $150,000 that may be awarded, Mr Swinford having suffered injury as a consequence of two offences committed by the same offender.[3]
[3] CICA s 34(2).
Issues to be determined
The issues to be determined in this appeal are:
1.Did each of the incidents occur and, if so, did they constitute an offence?
2.What compensable injury, if any, did Mr Swinford suffer as a consequence of the alleged offences?
3.What additional loss, if any, has Mr Swinford suffered as a result of any compensable injury? and
4.If Mr Swinford has suffered compensable injury and loss, what is the appropriate compensation?
General legal principles applicable to this appeal
The appeal
The appeal has been brought within the time required under the CICA, being within 21 days after the date of the assessor's decision.[4]
[4] CICA s 55(3).
An appeal under the CICA is a hearing de novo.[5] There is no requirement for the appellant to demonstrate error on the part of the assessor.
[5] CICA s 53(3).
The court may confirm, vary or reverse the assessor's decision either in whole or in part.[6]
[6] CICA s 56(2)(b).
The appeal is to be determined 'without being fettered by the assessor's decision'.[7]
[7] CICA s 56(1).
Authorities conflict as to whether it is appropriate to have regard to the assessor's reasons. Earlier authorities suggest that it is.[8] More recently however, a number of authorities suggest that the appeal is to be determined without regard to the assessor's reasons.[9]
[8] See for example, Crumby v Kuru (1995) 13 SR (WA) 331, 333; Hogben v Darcy [2009] WADC 63 [13]; Selimoski [2012] WADC 30 [17]; JY [2013] WADC 187 [5]; Dunne [2014] WADC 131 [34]; Re Farmer [2015] WADC 91 [13].
[9]See for example, Re Piggott [2017] WADC 150 [10]; CME [2018] WADC 69 [10]; DR v CD [2018] WADC 148 [10] - [16]; Guy v Hampson [2019] WADC 19 [14].
I respectfully agree with the approach endorsed in those later authorities. That is, I should determine the appeal without regard to the assessor's reasons for the decision. I consider that is the correct approach given the appeal is a hearing de novo, there is no requirement to demonstrate error on the part of the assessor and that the appeal is to be determined without being fettered by the assessor's decision.
Admission of further evidence
The court may decide the application solely on the evidence and information that was in possession of the assessor or may receive further evidence and information.[10]
[10] CICA s 56(1).
On an appeal, the court has a general discretion to receive and admit further evidence without the necessity for a formal application being made seeking to adduce fresh evidence.[11] The court will ordinarily permit fresh evidence to be admitted 'unless there is some reason why it would be unjust to do so'.[12]
[11] Underwood v Underwood [2018] WADC 13 [36] (Gething DCJ); Cahill v Smith [2015] WADC 148 [8] (Wager DCJ).
[12] Underwood v Underwood [37]; Taylor v Paindelli [2016] WADC 160 [7] (McCann DCJ); Hinchcliffe v Hinchcliffe [2010] WADC 78 [9] (Stevenson DCJ).
Mr Swinford seeks to rely on fresh evidence in the appeal, namely:
1.his affidavit sworn on 3 March 2021 and the exhibits to that affidavit, which include:
(a)a further report of Mr Swinford's treating Clinical Psychologist, Dr Ates, dated 21 February 2021;
(b)a memorandum dated 19 February 2021 from Mr Swinford's employer, Wilson Security, confirming his promotion to the role of senior officer; and
(c)a copy payslip showing different rates of pay applicable to the different positions held by Mr Swinford;
2.a copy of the clinical records of Mr Swinford's general practitioner;
3.copies of Mr Swinford's income tax returns and notices of assessment for financial years 2018 - 2020 inclusive;
4.Mr Swinford's Medicare claims history; and
5.a further invoice from Mr Swinford's treating Clinical Psychologist, Dr Ates for report fees.
No objection has been made to the reception of such further evidence and information. Nor, am I aware of any reason it should not be admitted.
I received the further evidence and information in this appeal and I have determined the appeal on the materials which were before the assessor and the further evidence and information.
Award and assessment of compensation
On an appeal, in the exercise of my discretion, I am empowered to make an award of compensation in an amount that I am satisfied is just for the injury and for any loss found to have been suffered by Mr Swinford.[13]
[13] CICA s 30 and s 56(2).
The CICA defines the term 'satisfied' to mean 'satisfied on the balance of probabilities'.[14]
[14] CICA s 3.
The maximum amount of compensation payable under the CICA for a single offence is $75,000.[15] The maximum is a jurisdictional limit and is not reserved for the worst cases.[16]
[15] CICA s 31.
[16] S v Neumann (1995) 14 WAR 452, 463 (Murray J); TAW v NJS [2011] WADC 187 [21] (Bowden DCJ); Underwood [19], [30] (Gething DCJ).
Section 34(2) of the CICA provides, in effect, that where a person suffers compensable injury and loss as a consequence of two or more offences committed by one person, which are not related offences (within the meaning of s 33(1) of the CICA), the maximum amount that can be awarded for the injury and any loss suffered is $150,000.
In assessing the amount of compensation, I must have regard solely to the injury suffered by Mr Swinford as a consequence of the commission of the alleged offence. The amount of compensation is not to be fixed as punishment of an offender or as an expression of sympathy for the appellant.[17]
[17] B v W (1989) 6 SR (WA) 79, 89.
I am required to apply the ordinary tortious principles for assessment of damages, taking into account the jurisdictional limitations and the definitions of 'injury' and 'loss' as defined by the CICA.[18]
[18] CICA, s 3 and s 6; M v JandJ v J (Unreported, WASC, Library No 920598, 19 November 1992) (Scott J); RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974) [3] (Burt J); Re Utting [2011] WADC 10 [6] (Braddock DCJ); Robertson v Baker [2014] WADC 14 [12] (Stone DCJ); Underwood [113].
Mr Swinford must establish a causal relationship between the commission of the alleged offence or offences and the injury and loss for which the compensation is sought.[19]
[19] Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666, 673; S v Neumann (463) (Murray J); Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [21]; Re AK [2016] WADC 156 [71] (Schoombee DCJ); Martin v Martin [2015] WADC 138 [82] (Derrick DCJ).
It is not necessary for the alleged offence which is the subject of an application for compensation to be the sole cause of the injury. It is sufficient for Mr Swinford to establish that the offence materially contributed to any injury.[20]
[20] S v Neumann (463) - (464) (Murray J); Martin v Martin [83] (Derrick DCJ). See also VPAN [2011] WADC 40 [83].
If the evidence establishes that a non-compensable event contributed to the injury or loss, the award of compensation must be reduced to take account of that contribution.[21] If it is not possible to disentangle the consequences of a non-compensable event from the consequences of the offence, the victim is entitled to compensation for the full injury and loss suffered provided that they can establish that the offence materially contributed to the injury or loss.[22]
[21] Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; MJN v MAJS [2003] WACC 9; (2003) 143 A Crim R 375 [52]; TAW v NJS [2011] WADC 187 [83] (Sweeney DCJ).
[22] Bonnington Castings Ltd v Wardlaw [1956] AC 613; Fagan v Crimes Compensation Tribunal; Purkess v Crittenden (1965) 114 CLR 164; MJN v MAJS [51]; CKM [2008] WADC 79 [136] ‑ [145]; TAW v NJS [84].
The amount awarded by way of compensation for non-economic loss must be fair and reasonable and proportionate bearing in mind the injuries received by the victim.[23]
Time within which compensation application must be made
[23] Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ); Houlahan v Pitchen [2009] WASCA 104 [107] (Newnes JA with whom Pulling & Miller JJA agreed); Winiarczyk v Tsirigotis [2011] WASCA 97 [71]; Underwood [117].
Section 9 of the CICA provides that:
(1)A compensation application must be made within 3 years after the date on which -
(a)the offence to which it relates was committed; or
(b)if it relates to more than one offence, the last of them was committed.
(2)Despite subsection 9(1), an assessor may allow a compensation application to be made after 3 years if he or she thinks it is just to do so and may do so on conditions that he or she thinks it is just to impose.
As noted above, Mr Swinford filed two separate applications in respect of the incidents. The application in respect of the First Incident was filed 10 days out of time. The application in respect of the Second Incident was filed within the time provided in s 9 of the CICA.
This court may, on an appeal, exercise any power of an assessor under the CICA with some limited exceptions, which are not relevant here.[24] Though the application relating to the First Incident was filed out of time, I consider it just to allow the compensation application and do so under s 9(2) of the CICA.
[24] CICA s 56(2)(a).
Did each of the incidents occur and, if so, did they constitute an offence?
For the reasons that follow, on the evidence before me, I am satisfied that the First Incident and the Second Incident occurred. I am also satisfied that RP assaulted Mr Swinford in the First Incident and the Second Incident and that each of those incidents constituted an offence for the purpose of the CICA.
First incident
Mr Swinford's application for criminal injuries compensation for the First Incident relates to an assault alleged to have been committed by RP on 15 January 2015. That application was allocated CIC number 235/2018.
In his statement dated 23 January 2018 filed in support of his application, Mr Swinford describes the First Incident as follows.
Mr Swinford arrived at work at around 1.00 pm for a 2.00 pm start. At around 1.20 pm he parked the work vehicle in a carpark. He was collecting some paperwork from the office when he heard a car horn beeping and went to see what was going on. He walked down the stairs and saw RP. RP shouted and swore at him to move his car. Mr Swinford said 'Not to [sic] you ask me nicely'. He noticed that there were 10 to 15 other parking spots where RP could have parked but he had parked right behind Mr Swinford's work car.
RP continued to shout at Mr Swinford. He cannot now recall what he said to him. RP moved towards Mr Swinford aggressively and grabbed Mr Swinford's left hand side collar and twisted it and was shouting and swearing at him and shaking him back and forth. He said this lasted about three seconds. Mr Swinford did not retaliate.
Mr Swinford went into the office to report the incident to his supervisor and prepared an incident report. There are two Wilson Security Incident Reports prepared by Mr Swinford dated 15 January 2015 numbered 83112 and 50397. Whilst some of the detail differs, the content of those reports is largely consistent with Mr Swinford's statement prepared about three years later in support of his application for criminal injuries compensation.
One of the work colleagues present at the time of the First Incident, set out his recollection of events on 15 January 2015 in an email which was before the assessor. That statement is largely consistent with Mr Swinford's statement, save that it states that RP let go after approximately five seconds of holding Mr Swinford by his shirt. The statement does not refer to RP shaking Mr Swinford.
Mr Swinford filed a further incident report dated 22 January 2015. In that report, Mr Swinford describes the type of incident as 'verbal threats of violence, bullying, harassment'. In it he referred to having been constantly bullied, harassed and threatened by RP. He referred to the assault by RP on 15 January 2015 and threats made by RP and said he was afraid he would attack him again. He said that he had reported this in the past and nothing had been done. He stated that he was very depressed, fearing coming to work and scared that if he was promoted things would get worse.
Second incident
Mr Swinford's application for criminal injuries compensation for the Second Incident relates to a further assault alleged to have been committed by RP on 23 February 2015. That application was allocated CIC number 236/2018.
In his statement made to police in relation to the Second Incident dated 28 February 2015 and filed in support of his application, Mr Swinford described the Second Incident as follows.
Whilst at work on 22 February 2015, he was checking the patrol vehicle in a carpark at the Wilson Security office and was approached by RP. RP said to him 'Haven't you learnt from the last time you parked your car there.' Mr Swinford and RP exchanged words.
At approximately 12.35 am on 23 February 2015, Mr Swinford returned to the office to submit paperwork and finish his shift. When he arrived, he saw RP sitting in his private vehicle in the carpark. He went into the office to the paper room to submit his end of shift paperwork. As Mr Swinford left the paper room, RP entered the corridor and shut the door behind him, blocking Mr Swinford's exit. RP said 'we have something to talk about' to which Mr Swinford responded 'please move out of my way'. Mr Swinford attempted to get past but RP continued to block his exit.
RP then grabbed Mr Swinford by the shirt, causing him to drop the papers he had been holding. They then both went through the door that RP had been blocking. Mr Swinford attempted to break free of his grip and said his hand or arm may have struck RP while he was doing this. A work colleague then separated the two men.
The entire incident from when RP blocked Mr Swinford's exit until they were separated lasted no more than 15 seconds. Mr Swinford sustained a 5 cm scratch on his upper left arm.
Mr Swinford attended his general practitioner later on 23 February 2015. This general practitioner prepared a note dated 23 February 2015, which includes a summary of Mr Swinford's report of the incident and records 'very minor superficial abrasion 5 cm long on left upper arm - fits description of a minor scratch from a fingernail'.
The police incident report and running sheet record, in summary, that:
1.Mr Swinford reported the Second Incident to police on 24 February 2015;
2.RP made a counter complaint against Mr Swinford when he was spoken to by police about the incident on 28 February 2015 alleging he was punched by Mr Swinford during the altercation on 23 February 2015 and suffered a cut above his left eye; and
3.in late March 2015, the investigation was discontinued, and no charges were brought against RP or Mr Swinford due to insufficient evidence.
A Wilson Security incident report was completed by another Wilson Security employee in respect of the Second Incident dated 23 February 2015 numbered 83853. However, the copy of the report is illegible and a clearer copy was unable to be provided.
That employee also made a statement to police. It is clear from that statement that the other employee did not witness the Second Incident. He came into the building afterwards and refers only to what he was told by RP and Mr Swinford after the event. That is that RP told him that Mr Swinford had punched him to the head and Mr Swinford complained that RP had refused to move out of his way in the corridor.
Meaning of offence under the CICA
The term 'offence' is defined in s 3 of the CICA to mean 'an alleged offence or a proved offence'.
The term 'alleged offence' is defined in s 3 of the CICA as meaning 'a crime, misdemeanour or simple offence of which no person has been convicted'.
Mr Swinford must satisfy the court, on the balance of probabilities, that an alleged offence occurred.[25] The court must also be satisfied that there were no defences reasonably open to the offender.[26]
Assault
[25] Dos Santos v Dos Santos [2000] WADC 256 [13].
[26] Re Robinson [2017] WADC 18 [22].
Section 313(1) of the Criminal CodeAct Compilation Act 1913 (WA) (Criminal Code) provides that:
Any person who unlawfully assaults another is guilty of a simple offence …
The term 'assault' is defined in s 222 of the Criminal Code and, relevantly, includes:
A person who strikes, touches or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent … or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.
Section 223 of the Criminal Code provides, relevantly, that:
An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.
An assault will be not be unlawful if the person alleged to have assaulted the other did so in self-defence. That is, if that person believed an act was necessary to defend themselves from an unlawful harmful act by the person assaulted and their response was reasonable in the circumstances as they believed them to be and they had reasonable grounds for those beliefs.[27]
[27] Criminal Code s 248(4).
In relation to the First Incident (the first alleged offence) there is no suggestion, nor any evidence to support, that RP was acting in self‑defence or was provoked by Mr Swinford or of any other defences being available to him.
In relation to the Second Incident (the second alleged offence), though there is reference in the police incident report and running sheet to RP sustaining a cut during the altercation, there is insufficient evidence before me to be satisfied that RP was acting in self‑defence, was provoked or of any other defences being available to him.
As such, I am satisfied on the evidence and information before me that each of the First Incident and the Second Incident constituted an alleged offence as defined in the CICA.
The alleged injury
What injury, if any, did Mr Swinford suffer as a consequence of the alleged offences?
Mr Swinford does not claim to have suffered any physical injury as a result of the First Incident. As noted above, Mr Swinford's general practitioner reported that Mr Swinford suffered a very minor superficial abrasion 5 cm long on his left upper arm during the Second Incident. Mr Swinford does not make any claim in relation to that physical injury.
Mr Swinford's claim in relation to the First Incident and the Second Incident is in respect of mental or nervous shock alleged to have been suffered as a consequence of the offence alleged to have been committed in each incident. Before considering the evidence relied upon in support of Mr Swinford's claim, I set out the general principles that apply and what Mr Swinford must establish for any injury suffered to be compensable under the CICA.
General principles
The term 'injury' is defined in s 3 of the CICA to mean, relevantly, 'bodily harm, mental and nervous shock …'.
Mental and nervous shock must be more than a mere emotional reaction and be something of a more enduring character which may be described as an injury in both the legal sense and in common language.[28] This includes distress, horror, disgust and other similar adverse mental reactions, but excludes mere fright, humiliation or anguish.[29]
[28] S v Neumann (461) (Murray J).
[29] M v J and J v J (11) (Scott J).
A causal connection between the injury and the commission of the offence is required, which is primarily a question of fact. It is not, however, necessary for the offence to be the sole cause of the injury in order for that causal connection to be established.[30]
[30] Fagan (673) (Mason & Wilson JJ).
Section 41(a) of the CICA provides that an assessor must have regard to any behaviour, condition, attitude or disposition of the victim that contributed, directly or indirectly, to the victim's injury. Section 41(b)(i) and s 41(b)(ii) provide respectively that the assessor:
…
(b)may, if he or she thinks it is just to do so -
(i)refuse to make a compensation award because of that contribution; or
(ii)reduce the amount the assessor would otherwise have awarded.
There are two lines of authority in this court about the meaning of s 41 of the CICA. The first line of authority holds that the reference in s 41 to the victim's behaviour, condition, attitude or disposition is limited to the extent to which those factors contribute to the commission of the offence against the victim which is causally connected to the injury. The alternative view is that there is no basis for imposing that limitation on the apparently clear meaning of the words in s 41, and that section requires an assessor to take into account the contribution to the injury made by any pre‑existing or subsequent condition, attitude or disposition which has contributed to the injury being assessed, and to carry the effect of that into the assessment of compensation if the assessor considers it is just to do so.
Her Honour Judge Davis provided an extensive analysis of the two lines of authority in McDavitt v McDavitt[No 2].[31] I respectfully agree with her Honour's conclusion that the latter is the correct approach. As her Honour states, the extent to which such conditions are taken into account is subject to the court's determination of what is just in the circumstances of the case.
[31] McDavitt v McDavitt [No 2] [2013] WADC 198 [24] - [54].
However, as his Honour Judge Gething said in Underwood v Underwood,[32] the first line of authority provides a framework to deal with a situation in which the injuries the subject of the CICA claim have multiple causes, including pre‑existing physical or mental illnesses or disabilities. This is necessarily part of the analysis required under s 30 of the CICA as to whether the injuries were suffered as a consequence of the commission of the offence and in determining whether the compensation to be awarded is in an amount the assessor (or this court on appeal) thinks is just.
[32] Underwood [130].
Accordingly, if an assessor (or this court on appeal) is satisfied on the evidence that a non‑compensable condition has causally contributed to the injury, the appellant will not necessarily be entitled to full compensation and the award of compensation may be reduced to take into account that contribution, provided it is just to do so.
Evidence of the alleged injury
Medical reports
Mr Swinford relies on medical reports provided by Consultant Psychiatrist, Dr Jon Laugharne dated 28 November 2017 and Registered Clinical Psychologist, Mr Adam Ates dated 1 August 2018 and 24 February 2021. A number of other reports from Mr Ates to Mr Swinford's general practitioner have also been produced. These are identified and referred to later in these reasons.
Report of Dr Laugharne
Mr Swinford's solicitors obtained the report from Dr Laugharne for the purpose of his compensation applications. Dr Laugharne assessed Mr Swinford on 10 October 2017. Dr Laugharne stated, amongst other things, that Mr Swinford:
1.explained that he had had difficulties at his workplace since 2014, in particular with RP bullying and intimidating him;
2.had been promoted to the position of senior security officer on the day of the Second Incident;
3.had an interview with management the day after the Second Incident and was told he should resign or would be sacked;
4.felt he had no choice and resigned and ceased his employment with Wilson Security on 25 February 2015;
5.developed insomnia, vomiting and diarrhoea, high levels of anxiety and depressed mood, he stopped functioning in any useful way and could not think clearly, he was not leaving the house or eating properly, he struggled to cope and did not work for five months; and
6.returned to work in July 2015, initially as a security officer with MSS Security, and in December 2015 returned to work at Wilson Security. He did not go back to his promoted position. He worked initially as a security officer working nightshifts in a warehouse. He returned to his previous position as a transit officer in July 2016.
At the date of his assessment, 10 October 2017, Mr Swinford described ongoing symptoms of anxiety, his sleep remained quite poor with anxious ruminations and his mood remained moderately depressed, he was seeing a psychologist on a regular basis and was not prescribed any medication.
Dr Laugharne reported that Mr Swinford did not have any past psychiatric history and no past medical history of note. There was no evidence of any pre-existing condition.
In Dr Laugharne's opinion, Mr Swinford had sustained a psychiatric injury, which he diagnosed as an acute adjustment disorder with depressed mood and anxiety, in partial remission but with residual symptoms. He observed that there were post-traumatic symptoms but on assessment Mr Swinford did not meet the full criteria for a post‑traumatic stress disorder diagnosis.
Dr Laugharne stated that, in his opinion, the incidents (the alleged offences) were significant in the development of Mr Swinford's symptoms but most notably the decision by management to give Mr Swinford an ultimatum that he either resign or be sacked consequent to the Second Incident seems to have been the key trigger in the development of his acute psychological symptoms in February 2015.
In terms of apportionment, in Dr Laugharne's opinion, the First Incident was of greater significance out of the two incidents in terms of the psychological consequences. Though, I note Mr Swinford continued to work between the First Incident and the Second Incident. Dr Laugharne stated that Mr Swinford was unfit for work for psychiatric reasons between the cessation of his employment with Wilson Security on 25 February 2015 and the commencement of his employment with MSS Security on 20 June 2015.
Dr Laugharne stated that he considered the two incidents contributed to Mr Swinford's unfitness for work for psychiatric reasons. He also stated that him being put in a position where he felt he had no choice but to resign from his position consequent to the Second Incident also played a very significant part in the development of his symptoms.
Reports of Mr Ates
A number of reports prepared by Mr Ates have been produced, including further reports that were not before the assessor that form part of the clinical notes of Mr Swinford's general practitioner.
In an undated letter that attaches a completed Depression Anxiety and Stress Scale questionnaire dated 23 April 2016 from Mr Ates to Mr Swinford's general practitioner, Mr Ates stated that during their last session, Mr Swinford reported concentration, attention and some cognitive functioning problems 'since his workplace problems started on 15.01.15' and to having started his cognitive behavioural and interpersonal therapy.
In Mr Ates' report dated 7 August 2016, the diagnosis stated is Major Depressive Disorder and Generalised Anxiety Disorder. Mr Ates reports that Mr Swinford presented with symptoms of those disorders and that the symptoms started after experiencing work related problems. There is no specific reference to either the First Incident or the Second Incident in the report.
In each of his reports dated 9 September 2017, 12 January 2018, 1 August 2018, 19 June 2019 and 24 February 2021, Mr Ates reported that Mr Swinford presented with symptoms of depression and post‑traumatic stress disorder upon his referral. The reports refer to those symptoms having started after Mr Swinford experienced work related problems in 2015 and to him being attacked at work on 15 January 2015 and 23 February 2015 and to him having stopped working for five months after the Second Incident. He returned to full‑time work in about July 2015.
He also reported in those reports that Mr Swinford reported suffering from symptoms of insomnia, incident related nightmares, flashbacks, difficulty with attention and memory and effects on his psychological health and finding it difficult to work up initiative to do things in his daily life since the last incident. Mr Ates recommended that Mr Swinford continue his cognitive behavioural and interpersonal therapy to address those concerns, to maintain his gains and prevent relapse.
In his most recent report dated 24 February 2021, Mr Ates stated that Mr Swinford is no longer suffering symptoms of post‑traumatic stress disorder but his major depressive disorder is active and Mr Swinford would benefit from continuing his cognitive behavioural and interpersonal therapy to prevent clinical relapse. Mr Ates also confirmed that he had seen Mr Swinford 14 times since his report dated 1 August 2018, being four times in 2018, four times in 2019 and six times in 2021.
Mr Ates also reported in his February 2021 report that he considers the assaults of 15 January 2015 and 23 February 2015 are a material cause of Mr Swinford's current psychological symptoms. He recommended that Mr Swinford continue with his therapy sessions 10 ‑ 12 times per year for the next five years to maintain his current gains and prevent relapse. He states that the Australian Psychology Society suggested fee for a session is $251.
In response to a question asking Mr Ates to comment on the effects and restrictions of ongoing psychological symptoms on Mr Swinford's employment, Mr Ates stated that:
Mr Swinford was back at work in July 2015 after the assault dates. Therefore nil restrictions of the ongoing psychological symptoms on Mr Swinford's employment is suggested.
Mr Ates also stated it was not clinically foreseeable that Mr Swinford will suffer periods of unfitness for work in the future given his ongoing psychological symptomatology. He also said nor was it clinically measurable or foreseeable that his working life or perimeter of employment was likely to be shortened or diminished as a consequence of the psychological injuries suffered in the assaults.
Mr Ates stated that the major depressive order was and had been affecting Mr Swinford's family, social, sporting, recreational and domestic activities.
Did Mr Swinford suffer injury as a consequence of the alleged offences?
I am satisfied and from the opinions expressed by Dr Laugharne and Mr Ates and the evidence of Mr Swinford that Mr Swinford has suffered injury as a consequence of the commission of the alleged offences. The injury suffered is the psychological disorders, being an acute adjustment disorder with depressed mood and anxiety and, as at February 2021, residual symptoms of major depressive order.
The amicus submitted that the predominant, if not sole cause, of Mr Swinford's injury were the earlier workplace issues rather than the assaults on Mr Swinford in January and February 2015. The amicus referred to Mr Swinford's statements in his affidavit and to Dr Laugharne about having suffered bullying and harassment in the workplace at the hands of RP and others before the incidents in which he was assaulted by RP.
However, though this may have contributed to his depression and anxiety, Dr Laugharne expressly stated in his report that Mr Swinford had no past psychiatric history and there is no evidence of any pre‑existing condition. As already stated, the assaults need not be the sole cause of Mr Swinford's injury. It is sufficient that the offence, in each case, materially contributed to any injury.
I find that the assaults were not the sole cause of Mr Swinford's injury though they did materially contribute to it.
I find that Mr Swinford's resignation from his position with Wilson Security was also a material cause of his injury. However this, in my view, though apparently related to the Second Incident, is a non‑compensable event.
There is no evidence from Mr Swinford or anyone from Wilson Security as to the circumstances in which Mr Swinford came to resign. There are only general statements by Mr Swinford to the effect that he was told to resign or he would be sacked and that he felt he had no option but to resign from his position. There is nothing to support a finding that Mr Swinford's resignation and any loss claimed to result from it occurred as a direct consequence of the injury suffered as a consequence of the assaults.
It is not, in my view, possible to disentangle the consequences of that non-compensable event from the consequences of the alleged offences insofar as Mr Swinford's injury itself is concerned. In those circumstances, Mr Swinford is entitled to compensation for the full injury. This is subject to the statutory maximum for multiple unrelated offences as provided in s 34(2) of the CICA. However, even though there were two separate assaults, Mr Swinford cannot be compensated twice for the injuries suffered, being the same psychological injuries as diagnosed by Dr Laugharne and referred to in his report and the reports of Mr Ates.
I am satisfied that the two assaults were unrelated being separate and distinct acts at different times weeks apart. As such the maximum amount of compensation that may be awarded is $150,000 as provided by s 34(2) of the CICA.
I consider the questions of the appropriate compensation for the injury suffered by Mr Swinford, whether he has suffered any additional compensable loss and, if so, what the appropriate compensation for any such additional loss is separately below.
Claim not excluded
The amicus raised an issue as to whether s 38 of the CICA operates such that the power to make an award of compensation is excluded, though in relation to both the First Incident and the Second Incident observed that it is open to the court to find that s 38 is not triggered.
Section 38 of the CICA relevantly provides that:
An assessor must not make a compensation award in favour of a victim … if the assessor is of the opinion that the victim … did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence.
No report was made to police by Mr Swinford in relation to the First Incident. He did, however, lodge an incident report with his employer in relation to the First Incident and sought to have the matter addressed within the workplace.
Mr Swinford reported the Second Incident to police and it is evident from the running sheet relating to the investigation and his provision of a witness statement to police that Mr Swinford assisted police with their investigation. Charges were not laid against RP due to the investigator's assessment that there was insufficient evidence.
Having regard to the steps taken by Mr Swinford, I do not consider that s 38 operates to exclude the making of a compensation award because Mr Swinford failed to do any act or thing which he ought reasonably to have done to assist in the identification, apprehension or prosecution of RP.
Nor do I consider the fact that Mr Swinford failed to make a claim for workers' compensation precludes an award of compensation for loss being made under s 6 of the CICA, as submitted by the amicus.
What is the appropriate compensation for the injury suffered?
As I have stated, I find that Mr Swinford has suffered injury in the form of mental and nervous shock as a consequence of the assaults on him in the First Incident and the Second Incident.
Mr Swinford described the symptoms and effects of his psychological injury, which he still suffers, in the materials that were before the assessor and in his affidavit sworn on 3 March 2021. These include the toll on his career, family, marriage and child, difficulty sleeping, frustration, anxiety, panic and occasional nightmares and flashbacks. Any award of compensation under the CICA cannot take account of any effects Mr Swinford's injury have had on his family. It is only Mr Swinford who may be compensated for any injury or loss.
In my view, the appropriate compensation for the mental and nervous shock Mr Swinford has suffered, his ongoing symptoms and his corresponding loss of enjoyment of life, as described by Dr Laugharne, Mr Ates and Mr Swinford himself, is $35,000.
What additional loss, if any, has Mr Swinford suffered as a result of any compensable injury?
Additional loss claimed
The term 'loss' is defined in s 6(2) of the CICA, in the case of a victim who is injured, as meaning, relevantly:
(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 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 …
Mr Swinford claims the following additional loss:
1.Past earnings lost (including interest
and superannuation) $ 99,728.00
2.Future loss of earnings (including
superannuation) $ 25,000.00
3.Report fees $ 3,115.00
4.Future treatment expenses $ 16,260.00
5.Past special loss $ 1,797.85
Total $145,900.85
Loss of earnings
Past loss of earnings
Mr Swinford claims $99,728 for past loss of earnings. In summary, of the $99,728 claimed:
1.$47,835 represents the difference between Mr Swinford's average earnings for financial years 2012 ‑ 2013 and 2013 ‑ 2014, and his average earnings following the two assaults up to 2016;
2.$15,769 represents estimated losses of income between 25 January 2018 and 25 January 2021, on the basis it is claimed that Mr Swinford should have been earning the salary of a senior officer rank;
3.$9,540 interest is claimed calculated at 4% on $63,604, being the sum of (1) and (2) above;
4.$6,583 represents superannuation contributions at 9% of $73,145, being the sum of (1), (2) and (3) above; and
5.$20,000 represents a global claim for the loss of the opportunity for a more rapid progression to supervisor, which it is claimed would have yielded a higher income.
As stated above, I am not satisfied on the evidence that Mr Swinford's resignation from his position as senior security officer with Wilson Security on 25 February 2015, or all of the past loss of earnings claimed by Mr Swinford were lost as a direct consequence of the injury he suffered as a consequence of the assaults.
On the evidence of Dr Laugharne and Mr Ates, Mr Swinford was unfit for work because of his psychological injury between 25 February 2015 and 20 June 2015. He returned to work, albeit for a different employer and in a different capacity on 20 June 2015. I am not satisfied on the evidence before me that he was unable to work in a more senior and more highly paid position because of the injury he suffered. There is no evidence to support that.
As such, I find that any award of compensation for past loss of earnings in favour of Mr Swinford should be limited to the loss of earnings for the period he was unfit for work because of the injury suffered, being the period between 25 February 2015 to 20 June 2015.
Having regard to the evidence provided as to Mr Swinford's income before he resigned from his position of senior officer with Wilson Security on 25 February 2021 and the calculations provided to the assessor on Mr Swinford's behalf I award $26,000 for past loss of earnings.
The award is based on 16.3 weeks loss of net earnings of $1,463.45 per week together with an allowance for superannuation at the rate of 9%.
I have not included an amount for interest as there is no applicable statutory provision for interest.
Future loss of earnings
Mr Swinford claims a global amount of $25,000 in relation to future loss of earnings.
This claim is not supported by the evidence. In Mr Ates' report dated 24 February 2021, he states it is not clinically foreseeable that Mr Swinford is likely to suffer periods of unfitness for work in the future or that his working life or perimeter of employment will be shortened or diminished in the future.
I therefore make no award for future loss of earnings.
Report fees
Evidence has been produced in the form of invoices for each of the reports of Dr Laugharne and Mr Ates for which report fees are claimed.
I am satisfied that fees totalling $3,115 have been incurred in relation to obtaining those reports and award compensation in that amount.
Future Treatment
Mr Swinford claims $16,260 for future treatment costs. This is made up of:
1.$1,200 for the cost of a trial of anti-depressant medication recommended by Dr Laugharne in his 2017 report at a cost of $50 per month for two years; and
2.$15,060 in respect of future psychology sessions 12 times a year for the next five years at a cost of $251 per session recommended by Mr Ates in his February 2021 report.
There is no evidence that the recommendation made by Dr Laugharne in 2017 is still extant or that any such medication is likely to be required or as to the cost of it. As such, I make no award in respect of this.
Based on Mr Ates' February 2021 report as to Mr Swinford's future treatment needs, I award an amount of $12,550 for future psychology sessions. This is based on Mr Swinford attending 10 sessions per year for five years. Payment of the amount awarded in relation to such future treatment expenses will be subject to the requirements in s 48 of the CICA being satisfied.
Past special loss
Mr Swinford claims a total of $1,797.85 for past special loss of $717.85 for general practitioner treatment and $1,080 by way of reimbursement to Medicare for Mr Ates' treatment of $1,080.
There is no evidence that Mr Swinford has incurred any expenses himself for which he is entitled to compensation under s 6 of the CICA.
I therefore make no award in respect of this head of claim.
Conclusion and orders
For the reasons stated, I allow the appeal, and vary the award of the assessor increasing the compensation award in favour of Mr Swinford from $12,505 to $76,665, made up as follows:
1.Compensation for Mr Swinford's injury $ 35,000.00
2.Past loss of earnings $ 26,000.00
3.Report fees $ 3,115.00
4.Future treatment expenses $ 12,550.00
(payment of which is subject to satisfaction
of the requirements in s 48 of the
Criminal Injuries Compensation Act 2003)
TOTAL:$ 76,665.00
The award of $76,665 is the total amount awarded in respect of both alleged offences and both compensation applications.
In relation to costs, submissions were made on behalf of Mr Swinford to the effect that the amicus curiae, the Chief Executive Officer of the Department of Justice, has constituted himself as a party to the appeal or at least an intervenor and should be treated as such on the question of costs.
Subject to hearing from counsel in relation to costs:
1.I am not satisfied there is any reason to depart from the usual order for costs in relation to an appeal of this kind - that there be no order as to costs;
2.the amicus curiae is not an unsuccessful party to the appeal and performs a role that would not otherwise be performed;[33] and
3.I am not satisfied there is any basis for making any costs against the amicus curiae.
[33] See WHW v Commissioner of Police [2014] WASCA 153(S) [13].
I will hear from the parties in relation to the final form of the orders and in relation to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AD
Associate to Judge Russell
20 AUGUST 2021