Re TCJ - [2024] WADC 48

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE TCJ [2024] WADC 48
CORAM:   BLACK DCJ
HEARD:   28 MARCH 2024
DELIVERED          :   12 JUNE 2024
FILE NO/S:   APP 32 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: TCJ
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R CAPARARO
File Number            :   CIC 1582/2023

Catchwords:

Leave to apply out of time - Quantum of award - Mental and nervous shock - Loss of earning capacity - Basis for calculation under the Criminal Injuries Compensation Act 2003 (WA) - Whether barring order ought be made

Legislation:

Criminal Injuries Compensation Act 2003 (WA)
Criminal Injuries Compensation Regulations 2003 (WA)
Criminal Procedure Act 2003 (WA)
Dog Act 1976 (WA)

Result:

Appeal allowed

Representation:

Counsel:

Appellant	:	Ms S T Hemachandra
Amicus Curiae	:	Ms A Kildea appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Fourlion Legal
Amicus Curiae	:	State Solicitor for Western Australia

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

A v D (1994) 11 WAR 481
AJH v LAM [2018] WADC 126
Bothma v Hildebrand [2019] WADC 92
Cahill v Smith [2015] WADC 148
Dimitrovska v The State of Western Australia [2015] WASCA 162; (2015) 253 A Crim R 407
DR v CD [2018] WADC 148
EB v Ramljak [2021] WADC 134
Hansen v Bolton [2017] WADC 25; (2017) 91 SR (WA) 137
KBR v ADM [2018] WADC 120
Lawless v The Queen (1979) 142 CLR 659
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Martin v Martin [2015] WADC 138
MBP v LKP [2018] WADC 65
P v C [2005] WADC 107
Passaris v The Assessor of Criminal Injuries Compensation (Unreported; WADC, Library No 990151, 1 June 1999)
Re Ates [2022] WADC 108
Re ATS [2019] WADC 76
Re Harvey [2023] WADC 83
Re Hojetzki [2009] WADC 77
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449
Underwood v Underwood [2018] WADC 13
VPAN [2011] WADC 40
WHW v Commissioner of Police [2014] WASCA 153(S)

BLACK DCJ:

Introduction

On 31 July 2013 the appellant, then a 9‑year‑old boy, was savagely attacked by a dog that had escaped its owners' yard. This resulted in the appellant sustaining significant injuries and requiring hospitalisation. The appellant also witnessed his father, who had come to his aid, being mauled and also injured by the dog.
The respondent was not at home at the time but was charged nonetheless with having allowed the attack by the dog to have occurred. She was convicted in the Magistrates Court in her absence on 18 October 2013.
The appellant, now an adult, has largely recovered from the attack but seeks compensation for the physical, psychological and economic impact he asserts was caused by the dog attack.
This is an appeal against a decision of the Criminal Injuries Assessor (Assessor) following a successful claim for compensation by the appellant that relates only to the quantum of the award.

The nature of the appeal

The appeal is brought pursuant to s 55(1) of the Criminal Injuries Compensation Act 2003 (WA) (the Act) and is a hearing de novo.[1] The court may confirm, vary, or reverse the assessor's decision, either in whole or in part.[2] The entirety of the issues and evidence must be considered independently of the decision of the assessor.[3]
[1] Underwood v Underwood [2018] WADC 13 [19] (Gething DCJ) (Underwood).
[2] The Act s 56(2)(b).
[3] See Re ATS [2019] WADC 76[17].
Section 56(1) of the Act provides that the court may decide the application solely on the basis of what was before the Assessor or may receive further evidence and information. Section 56(1) permits the receipt of 'further evidence' and the court is not limited by notions of 'fresh evidence'.[4]
[4] Lawless v The Queen (1979) 142 CLR 659.
The authorities indicate that the court should admit fresh evidence unless there is some reason why it would be unjust to do so.[5]
[5] Re Ates [2022] WADC 108 [8] (Whitby DCJ).

Leave to commence application out of time?

Section 9(1) of the Act provides that an application for compensation must be made within three years after the date on which the offence to which it relates was committed. However, s 9(2) provides that an assessor may allow an application to be made after three years if they think it is just to do so and may do so on any condition that they think is just to impose.
The policy behind the time limit was explained by Herron DCJ in Hansen v Bolton:[6]
An assessor may allow an application for compensation to be made after the three-year period if he or she thinks it is just to do so, and may do so on any conditions that the assessor think it is just to impose. The onus is on [the applicant] to explain to the satisfaction of the court the reasons for the delay in bringing the application. …
[6] Hansen v Bolton [2017] WADC 25; (2017) 91 SR (WA) 137 [12].
In the present case, the time for making an application expired on 31 July 2016.[7] The application before this court was made on 23 May 2023.
[7] The offence was committed on 31 July 2013.
The very young age of the applicant at the time the injuries were sustained and the nature of the injury suffered are relevant factors to consider.[8]
[8] See DR v CD [2018] WADC 148 [7]; AJH v LAM [2018] WADC 126 [9] - [10]; KBR v ADM [2018] WADC 120 [64].
On 2 June 2016 the appellant made a compensation claim under the Act which was made within the prescribed period. At that time the matter did not progress.
On 23 May 2023 the appellant resubmitted his application.
On 7 July 2023, the Assessor made an award of compensation to the appellant. The compensation awarded was $18,372, comprising $17,500 to be paid to the appellant and $872 to be paid to St John Ambulance.
The Assessor also made a barring order pursuant to s 45(1)(a) of the Act.
The Assessor did not provide reasons for her decision.
The appellant now appeals against the Assessor's decision in relation to the quantum of the award made. This is on the basis that the Assessor:
did not adequately take into account the psychological injuries which the Appellant has suffered in addition to the physical injuries referred to in his application for Criminal Injuries Compensation, the impact on his education and the financial impact of the injuries suffered.
While the ground is expressed as a failure of the Assessor to adequately have regard to these matters, the Appellant now seeks compensation for heads of damages that were not advanced before the Assessor, namely psychological injuries and economic loss.
In support of these additional claims the appellant seeks to rely on further materials that were not before the Assessor.
While the live issue in this appeal is the quantum of compensation, the court must still first be satisfied that an award of compensation can be made at all.

Should leave to apply for compensation out of time be granted?

The appellant originally applied within time. Further, he was a young child when he suffered the relevant injuries.
These factors, when combined with his limited financial means and lack of family support to enable him to progress his application at an earlier time, provide a compelling basis upon which to grant leave to appeal out of time in all of the circumstances.
This is particularly so where the Assessor proceeded on such a basis and there has been no submission to the contrary put before this court.

The proven offences

The appellant's claim for compensation is based on 'the commission of a proved offence'.[9] The term 'proved offence' is defined to mean 'a crime, misdemeanour or simple offence of which a person has been convicted'.[10]
[9] The Act s 12(1).
[10] The Act s 3.
For proved offences where a plea of guilty was entered it is settled law that:[11]
(a)the offender or claimant for criminal injuries compensation cannot relitigate the facts which led to the proved offence;
(b)a plea of guilty to a criminal charge necessarily involves an admission by the offender of material facts comprising the elements of the offence; and
(c)both a claimant and an offender may introduce evidence and other material in relation to the facts and circumstances to the extent that it is not inconsistent with the two principles above.

Application to the present case

[11] Bothma v Hildebrand [2019] WADC 92 [35] (Gething DCJ); Underwood [55] - [62] (Gething DCJ).

Although the appellant has been unable to obtain a relevant record of conviction nor a transcript of the original proceedings, the evidence is sufficient to readily establish that the respondent was convicted of a charge against s 33D(1) and s 30(2) of the Dog Act 1976 (WA) (Dog Act). There is no party to these proceedings who suggests otherwise and the Assessor also proceeded on such a basis.
In particular, an email from the City of South Perth (21 October 2013) was tendered to confirm that the respondent was prosecuted for a charge against s 33D of the Dog Act and was convicted in her absence pursuant to s 55 of the Criminal Procedure Act 2004 (WA) (CPA).
The appeal is to be determined on the basis of the relevant statements of material facts read onto the record by the prosecution.
The appellant has filed a Statement of Facts and given the matter proceeded in the absence of the accused, these appear to have been the facts relied upon by the prosecutor in support of the conviction.
Further, by means of s 55 of the CPA, a convicting court takes as proved any facts in the statement of material facts (absent evidence to the contrary).

Whether the injury claimed occurred

Compensation is payable where a person has suffered 'injury' as a consequence of the commission of an alleged offence. Bodily harm and mental and nervous shock are included in the definition of 'injury'.[12]
[12] The Act s 3.
In order to claim compensation for mental and nervous shock, the court must be satisfied that the applicant falls within one of the categories in s 35(2) of the Act.
The phrase 'mental and nervous shock' used in the Act includes distress, horror, disgust and other similar adverse mental reactions but excludes fright, humiliation or anguish. What is contemplated by the Act is not a mere emotional reaction but something of a more enduring character which impacts on the mind or the nervous system and which may, in both the legal sense and in common parlance, be described as injury.[13]
[13] Martin v Martin [2015] WADC 138 [85] (Derrick DCJ) (Martin).
More generally, liability for nervous shock specifically requires that the injured party must establish that they have suffered a recognisable psychiatric illness as opposed to mere grief, sorrow, fright or distress.[14] The Act appears broader in scope.
[14] Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449.
The court must attempt to make a distinction between 'direct impact damage' and further damage that may be suffered by such things as the reaction of the victim's family and friends, court proceedings or public attention.[15]
[15] Underwood [118] (Gething DCJ). See also Martin [86] (Derrick DCJ).
In order to make an appropriate award of compensation, sufficient evidence ought to be before the court.[16] Supporting medical evidence from an appropriately qualified medical practitioner is generally required to prove that an injury exists and was caused by the offence.[17]
[16] Passaris v The Assessor of Criminal Injuries Compensation (Unreported; WADC, Library No 990151, 1 June 1999) (Nisbet DCJ).
[17] See Re: Hojetzki [2009] WADC 77 [48] (Sleight DCJ).
As a general proposition, a victim cannot be expected to provide an objective and impartial account of an offence and its consequences in a victim impact statement provided to the court.[18]

Evidence of physical injury

[18] Dimitrovska v The State of Western Australia [2015] WASCA 162; (2015) 253 A Crim R 407 [74] (Martin CJ, McClure P & Hall J agreeing).

The appellant tendered the medical records from Princess Margaret Hospital for Children (PMH) and the Child and Adolescent Health Service in support of the claim for physical injury.
These confirm the following:
(a)The appellant presented with a dog bite to his left arm and sustained multiple wounds.
(b)The appellant was in hospital from 31 July 2013 to 4 August 2013 and underwent debridement, washout and closure of multiple left arm and forearm dog bite wounds.
(c)The specific injuries were a
Vertical 5 cm doge bite to lower lateral third humerus down to bone. 2cm posterolateral to above (no radial nerve involvement, LLC nerve of arm intact, muscle not repaired). Multiple (~5) posterior arm superficial puncture wounds. Multiple (~5) superficial dorsal and volar forearm wounds.
The dog bite is said to have extended to the deep soft tissues with buckling to the underlying dorsal humerus.
The appellant also described the offence and his physical injuries in an affidavit filed by him dated 13 March 2024.
The appellant states that the attack left him with permanent scarring on his arm, and that his scars are less visible now. This is consistent with the photographs tendered in these proceedings.
The appellant said in his affidavit that he had to undergo 'lengthy surgery requiring about 35 stitches'.
The appellant has also referred to these matters in his two victim impact statements dated 20 February 2023 and 18 November 2018 which are largely consistent with the contents of his affidavit.

Evidence of psychological injury

The documents before the Assessor referred to matters potentially relevant to the existence of a relevant psychological injury in a generalised way.
The appellant obtained a specific report for the purposes of this appeal to address his claim for a contended psychological injury, namely a report from Dr Phil Watts, Adjunct Associate Professor in Clinical Psychology (the Psychological Report).
The materials tendered in the appeal reveal the following:
(a)Initial Assessment Report of the Child and Adolescent Mental Health Service in 2014: the appellant developed night terrors, night‑time wettings and nightmares following the dog attack and noted that his schoolwork had deteriorated.
(b)Integrated Progress Notes: in April 2014 the appellant continued to have nightmares related to the dog bite but by May it was beginning to happen less.
(c)Letter dated 11 June 2014 from a Clinical Nurse Specialist from Child and Adolescent Health Services: the appellant did not require ongoing professional mental health input by that stage.
Dr Watts conducted a clinical interview with the appellant on 30 November 2023 which lasted two hours. He administered the 'Trauma Symptom Inventory, 2^nd Edition (TSI-II)', which he described as a standardised psychological test which helps screen across a number of dimensions.
Dr Watts reported the following:
(a)There were elevations on anxiety, anger, tension reduction behaviour, and reduced self-awareness. This combination tended to fit the description of the impact of the dog attack, namely a large increase in anxiety post-dog attack, finding it difficult to talk about negative experiences, increased anger post‑incident, and using avoidance means to address feelings.
(b)The assessment results showed that there were some significant psychological injuries as a result of the dog attack.
(c)There were insufficient active symptoms related to arousal to diagnose post‑traumatic stress disorder (PTSD) and psychological testing was not showing major depression.
(d)The appellant was likely to continue to have a fear of dogs, caution when in public places, and prone to anxiety to a level greater than previously.
The appellant also described his purported psychological injuries in his affidavits.
The appellant stated that he:
(a)Attended counselling at PMH for treatment with 'post-traumatic stress'. It should be noted however that there is no evidence that he has ever been diagnosed with a post-traumatic stress disorder arising from the dog attack.
(b)Suffered panic attacks, sometimes at school, however, now very rarely suffers from panic attacks.
(c)Suffered severe anxiety and depression, which is ongoing and heightened if he sees a dog. While there is no evidence of any formal diagnosis of anxiety or depression, Dr Watts records that the appellant reported to have struggled with depression in the past and noted the appellant's description of the impact of the dog attack as including an increase in anxiety.
(d)Had nightmares and bad dreams, which were intense for the first couple of weeks after the attack, but do not now occur as often.
(e)Has flashbacks of the incident heightening his anxiety and he experiences flashbacks if he sees a dog resulting in severe stress and anxiety.
(f)Still has problems with sleep and that he suffered from bedwetting at night about two to five times a week in the time period following the attack but this stopped before he commenced high school.
(g)Felt scared to go outside and that the kids at school made fun of his arms. He was worried to go where people could see his scars and tease him. He also observed that he suffered from a general lack of motivation to do anything.
I am satisfied on the materials before me that the appellant suffered from mental and nervous shock, in the sense referred to at s 35 of the Act, immediately following the offence and that this persisted for a time.
While these effects have significantly diminished over time, I am satisfied on the evidence that this injury has endured to a limited extent up to and including at the time of seeing Dr Watt.

Whether the loss claimed occurred

Compensation is payable where a person has suffered 'loss'.[19]
[19] The Act s 12(1).
The meaning of 'loss' includes:
(a)Expenses actually and reasonably incurred by or on behalf of the victim that arise directly from, or in obtaining any report from a health professional or a counsellor in relation to, the injury suffered by the victim;[20]
(b)Expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered (future medical treatment);[21]
(c)Loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim (economic loss);[22] and
(d)Any loss arising from any damage caused as a direct consequence of the commission of the offence to any personal item that was being worn by the victim when he or she suffered the injury.[23]
[20] The Act s 6(2)(a).
[21] The Act s 6(2)(b).
[22] The Act s 6(2)(c).
[23] The Act s 6(2)(d).
The only loss claimed in the application before the Assessor was a claim for $872 for St John Ambulance WA. As this invoice had not been paid the Assessor directed that this amount be paid to St John Ambulance WA. No challenge is made to this aspect of the original compensation award.

Economic loss and future medical treatment

The appellant now claims for economic loss and future medical treatment.
The fact that economic loss and future medical treatment were not claimed in the application before the Assessor does not prohibit this court from making an award for these losses.[24]
[24]The Act s 19(1)(a) and s 56(2)(a).
As noted above, both economic loss and future medical treatment must occur as a direct consequence of the injury that was suffered.
The appellant's claim for economic loss is particularised by him in the following way:
(a)'If it was not for the anxiety that I suffered because of the dog incident, I believe that when I was old enough, 13 years or in year 8, I saw myself getting a part time job at McDonalds or Hungry Jacks or Coles';
(b)'If I had commenced working at the beginning of 2017 when I turned 13 I believe I would have worked between 10 to 20 hours a week and full time when I finished school in year 10 or 11 or 12';
(c)'I expect that but for the dog attack, I would have worked part time at least 10 hours a week from year 8 all the way to year 10 or 12 when I finished school. I may have worked more hours during school holidays';
(d)'But for the dog attack, if I had finished school in year 10, 11 or 12, I would have commenced full time work';
(e)'During the time that I did not attend school in year 8 and year 9, I was unable to find employment because of my fear of going out of the house in case I was attacked again and being made fun of as a result of my scars';
(f)'The psychological injuries that I suffered have impacted on my ability to work to earn an income';
(g)'I would have been in a position to commence working and earning an income but for the psychological impact of the dog attack which caused me to not want to leave my home in fear of being attacked and also so people would not make fun of my scars'; and
(h)'I believe that I would have worked between 10 to 20 hours of work each week from the time I was in year 8 and actively sought employment once I finished school but for the dog attack'.

The appellant also now claims for future medical expenses. This is based upon the recommendation of Dr Watts that the appellant undertake twelve sessions of Eye Movement Desensitization (EMDR) trauma therapy, with 50-minute appointments charged at $280 per hour to be charged on a pro-rata basis.
Dr Watts considered that this would be highly beneficial to help him settle the active trauma experience.

Causation

General principles

If the appellant has suffered a relevant injury and loss, then the appellant must prove that there is a causal relationship between the commission of the offence and the injury or loss for which the compensation is sought.[25]
[25] See Martin [82] (Derrick DCJ).
The requirement that a causal link be proved raises two key issues:
(a)the extent, if any, to which the appellant's claimed injury and loss was caused or contributed to by a non-compensable event (such as pre-existing physical and psychological injuries); and
(b)the extent, if any, to which the appellant has failed to mitigate his injury or loss.
The determination of whether the requisite causal connection exists is a question of fact to be resolved as a matter of common sense.[26] A sufficient causal connection will be established if, as a matter of ordinary common sense and experience, the offence is regarded as having 'materially contributed' to the injuries or loss.[27]
[26] EB v Ramljak [2021] WADC 134 (Whitby DCJ).
[27] EB v Ramljak.
In this case the issue of whether or not the appellant mitigated his loss does not arise in my view given that he was a young child and unable to act independently of his primary care givers.
Further, the evidence before me does not suggest that a non‑compensable event had a propensity to cause the appellant injury or loss nor did it contribute to the injury or loss.
I am satisfied on the evidence before me that the physical injuries suffered by the appellant were clearly and obviously caused by the dog attack.
When considering whether the dog attack materially contributed to any psychological injuries suffered by the appellant, I have had regard to the medical reports and Dr Watts' report in particular. Dr Watts found that notwithstanding other difficulties faced by the appellant in the past and present, in his opinion there had been some significant psychological injuries as a result of the dog attack that were separate from the family-of-origin issues.
The appellant has also stated that he considers that the attack resulted in psychological issues, including anxiety and depression and that he suffered significant psychological harm as a direct result of the offending.
In assessing the weight to attribute to the appellant's affidavit, I am mindful of the comments expressed in Dimitrovska v The State of Western Australia that a victim cannot be expected to provide an objective and impartial account of an offence and its consequences.[28] Accordingly I attach greater weight to the independent evidence than the account given by the appellant.
[28] Dimitrovska v The State of Western Australia [74] (Martin CJ, McClure P & Hall J agreeing).
I do however consider that the victim's account of the impact of the dog attack upon him both physically and psychologically is plausible and compelling. He was savagely attacked by an out‑of‑control animal, he observed his father attacked by the same dog after coming to his aid and he was then hospitalised for a significant time and carried the physical and mental scars of the attack with him during his early and teenage years.

Causation - Loss

When considering each claim for loss I must be satisfied that the claimed loss occurred as a consequence of the commission of the proved offence.[29]
[29] The Act s 12(3)(a).
In relation to the St John Ambulance expense of $872, the invoice makes plain that this loss was incurred as a consequence of the offence.
The court may also have regard to the tax invoice/receipt for a medical report that appears in the Assessor's Papers at page 240. However, there is no evidence available to indicate what report was produced and whether it was related to the proved offence.

Economic loss

Dr Watts notes:
(a)The appellant left school in Year 10, lacked motivation, and did very little up until doing a construction course in 2023. This is likely to have been compounded by a number of different factors, including his socio-economic background and his poor academic ability. It is also likely to have been partly contributed to by the dog attack, his loss of confidence, and increased anxiety.
(b)The impact of the dog attack is compounded with the fact that the appellant had learning difficulties and came from an unstable socio-economic circumstance. The dog attack may have delayed him actively seeking employment but was unlikely to impact future employability.
It is therefore necessary to determine whether the offence 'materially contributed' to the compensable loss suffered by the appellant in this regard and if so, whether there are any non‑compensable events that contributed to the compensable loss and to what extent.
The appellant contends that but for the dog attack, he would have obtained work from the age of 13 and continued working until present. Care must be taken in considering this assertion, particularly having regard to the comments expressed in Dimitrovska v The State of Western Australia referred to above.[30] Further, it would be a relatively unusual event for a 13-year-old living in Australia to commence working even on a casual basis.
[30] Dimitrovska v The State of Western Australia [74].
It is also necessary to consider the impact of the fact that, but for the dog attack, the appellant would have been attending school and potentially may have attended well beyond Year 10.
This is not a case where the court has been presented with detailed submissions and materials in support of a claim for economic loss in the way that is often done in claims for personal injury in other actions.
Section 6(2)(c) of the Act defines 'loss' as a 'loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim'.
The principles upon which compensation is to be assessed are the same of those which apply to an action for damages for personal injury.[31] 'Loss of earnings' means a loss of earning capacity.[32]
[31] A v D (1994) 11 WAR 481, 487 (Pidgeon J).
[32] A v D (489) (Pidgeon J). See also Re Harvey [2023] WADC 83[163].
When a loss of earning capacity is proved, the damages to be assessed are essentially a matter of judgment and often cannot be proved by precise figures.[33] It is the loss of the chance that the person could have worked unaffected by injury but for the commission of the offence that is assessed.[34]
[33] A v D (489) (Pidgeon J). See also Re Harvey [163].
[34] Cahill v Smith [2015] WADC 148 [31] (Wager DCJ).
If no useful figures are available to make a calculation, then it is a matter of judgment.[35] The absence of useful figures does not mean an applicant has failed to prove his or her case.[36] If circumstances may not permit a precise mathematical calculation of economic loss, a global award for economic loss may be appropriate.[37]
[35] MBP v LKP [2018] WADC 65 [51] (Davis DCJ).
[36] MBP v LKP [51] (Davis DCJ).
[37] MBP v LKP [51] (Davis DCJ).
Notably, however, where loss relates to a young person with no work history before the offending, the assessment of the loss of a chance involves the application of the principles in Malec v JC Hutton Pty Ltd.[38] That is:[39]
(a)When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred but cannot now occur is different from its approach to events which allegedly have occurred.
(b)Questions as to the hypothetical effect of physical injury are not commonly susceptible of scientific demonstration or proof.
(c)If the law is to take account of hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring.
(d)The probability may be very high or very low, but unless the chance is so low as to be regarded as speculative, or so high as to be practically certain, the court will take that chance into account in assessing the damages.
(e)Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51% probability of occurring, but to ignore altogether a prediction which has a 49% probability of occurring.
(f)Thus, the court assesses the degree of probability that an event would have occurred and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages to be awarded.
[38] Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. See DR v CD [66] (Quail DCJ).
[39] Malec v JC Hutton Pty Ltd [642] ‑ [643] (Deane, Gaudron & McHugh JJ).
The limited evidence before me combined with the young age of the appellant at the time the injuries were sustained makes a precise calculation of economic loss difficult. Further, the expense and legal work necessary for counsel to accurately calculate such a loss and provide evidence to support is significant. This is in the context of a circumstance where the appellant cannot recover his costs and where the amount of compensation available to him is capped. Further, no claim for economic loss was made to the Assessor and this court is therefore being asked to consider this claim for the first time.
In these circumstances and having considered the further submissions of the parties, I have adopted the permissible approach of making a global award for economic loss rather than endeavouring to calculate the precise economic loss sustained.
I have however had regard to the following in particular:
(a)the appellant's assertion that he would have obtained a part‑time job at McDonalds, Hungry Jacks or Coles while in school. I consider it would have been unlikely that he would have been able to obtain such a job at aged 13 and even if he eventually did it would have been likely to have been or a small number of hours at a low casual rate;
(b)after leaving school, the appellant attempted a tiling course at TAFE and attempted to obtain a job at McDonalds. These were not successful;
(c)in May 2023, the appellant obtained a Certificate III in Civil Construction Plant Operations from Australian Business and Vocational Training;
(d)Dr Watts' description of the appellant having poor academic ability;
(e)The appellant's assertion that he would have finished school in either Year 10, Year 11 or Year 12; and
(f)The appellant's spasmodic attendance record for high school including an 87.7% attendance for semester 2 of Year 11.
Ultimately, I must award compensation in this regard that is just having regard to the injury and loss suffered.[40]
[40] The Act s 30(1).
In the application, the appellant has not made any claims for report expenses. A tax invoice/receipt for a medical report appears in the Assessor's Papers at page 240. However, the receipt states the invoice was paid by the appellant's previous lawyers, Slater & Gordon. If the court finds that the appellant did not pay this invoice, it would not be open to the court to find that the appellant suffered this loss.

Assessment of compensation

The maximum amount of compensation that can be awarded in favour of one person for a single offence is $75,000.[41]
[41] The Act s 31(1).
The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases.[42]
[42] Underwood [112] (Gething DCJ).
I should apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act, and to the jurisdictional limit of the Act.[43]
[43] Underwood [113] (Gething DCJ).
The amount awarded is to be assessed solely on the basis of the injury suffered by the appellant. The amount is not to be fixed as punishment for the respondent as offender or as an expression of sympathy for the victim.[44]
[44] Underwood [115] (Gething DCJ).

Can the court vary an order under section 45(1)?

Given this appeal is a hearing de novo, the court was invited by the intervenor to consider whether it had power to and whether it would be appropriate to reconsider the order made in respect of the appellant by the Assessor under s 45(1)(b).
Having regard to the particular circumstances of this case, namely that:
(a)The offender was not in the country at the time her dog attacked the appellant;
(b)The dog escaped from her house which was secured;
(c)The appellant was required to pay a significant financial penalty in relation to the original attack; and
(d)There was no malice nor any demonstrable fault in relation to the offender's conduct;
I consider that the barring order ought remain. Accordingly, the offender does not become liable in relation to any award of compensation made.

Findings as to quantum

In relation to this appeal and having regard to the further claims for compensation that were not before the assessor I consider that the appeal ought be allowed.
I observe that it is unfortunate and unsatisfactory that matters that significantly impact upon the quantum of a compensation award are only raised for the first time in an appeal. While this is a hearing de novo, the Assessor is generally best placed to consider the appropriate award of compensation and is unable to properly perform their task where significant claims, such as for economic loss, are made for the first time on appeal.
In assessing the general damages award, I have determined this based on both the physical and mental injuries sustained as a consequence of the offence.
In relation to the claim for economic loss, I am satisfied that the appellant suffered a partial loss of earning capacity by reason of the injuries sustained from the offence. I am, however, not satisfied as to the degree of loss claimed. In my view there were many factors impacting upon the appellant's incapacity to obtain work following the dog attack and his physical and psychological injuries contributed only in part to his difficulties in obtaining employment.
I consider an appropriate award to be as follows:
General damages for pain and suffering:  $35,000.00
Loss of earning capacity:   $30,000.00
Past medical expenses made payable directly to St John's
Ambulance WA:   $872.00
Future medical expenses -12 sessions at $280 an hour
(pro rata for a 50 min appointment):   $2,500.00
Reports/disbursements - report of Dr Watts:  $2,750.00
The total award of compensation payable to the appellant is an award of $70,250. A further sum of $872 is made by payable to St Johns Ambulance WA.

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 2003 (WA).
No costs order should be made against the chief executive officer (CEO) because the CEO is not an unsuccessful party to an appeal.[45]
[45] WHW v Commissioner of Police [2014] WASCA 153(S) [11] - [18] (Martin CJ, Buss & Murphy JJA); VPAN [2011] WADC 40 [159]; P v C [2005] WADC 107 [71] - [72].

Orders

The Appeal is allowed.

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