Re Tilbury - [2010] WADC 46

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: RE: TILBURY [2010] WADC 46

CORAM: MARTINO DCJ

HEARD: 22 JANUARY & 19 MARCH 2010

DELIVERED : 20 APRIL 2010

FILE NO/S: APP 34 of 2009

MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003

BETWEEN: ERIC LEE TILBURY
Appellant

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :L V DEMPSEY
File No  :CI 000172 of 2009

Catchwords:

Criminal injuries compensation - Assessment of compensation - Unfitness for work - Admission of further evidence

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Appeal allowed

Representation:

Counsel:

Appellant: Mr G H Lawton
Amicus Curiae : Ms S J Teoh on behalf of Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant: Lawton Lawyers
Amicus Curiae : State Solicitor for Western Australia

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

Chappell v Bowe [2006] WADC 29
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Pollock v Wellington (1996) 15 WAR 1

MARTINO DCJ: The appellant, Mr Tilbury, appeals against an award of compensation made on 14 May 2009 in respect of injuries that he suffered as a result of an assault on him on 10 August 2007. The assault was reported to police but no person was charged in respect of it. The compensation awarded to Mr Tilbury was, in total, $43,628.20. The learned Assessor was not requested to provide reasons for making the award and she did not do so. The Office of Criminal Injuries Compensation sent a copy of the award to Mr Tilbury's solicitors by a letter dated 14 May 2009. In that letter the Office of Criminal Injuries Compensation informed Mr Tilbury's solicitors that the award was made up as follows:
Injuries$27,000.00
Medical report fees  $ 1,045.00
Past (4 months) loss of earnings (net)      $14,667.00
Travel expenses  $     142.00
Medical expenses  $     774.20
TOTAL$43,628.20
In his notice of appeal Mr Tilbury expresses the reason for the appeal:
"The Appellant is dissatisfied with the decision of the Chief Assessor because:
1.the Award made by the Chief Assessor only included 4 months loss of earnings (net); and
2.medical documentation recently obtained provides that the Appellant was unfit to work for 10 months after the alleged offence, accordingly the Appellant believes he should be awarded compensation for 10 months loss of earnings."

The nature of the appeal and the admission of further evidence

The appeal is a fresh hearing of Mr Tilbury's claim for compensation and I am to determine it without being fettered by the Assessor's decision. I can determine the claim solely on the evidence and information that was in the possession of the Assessor or I may receive further evidence and information: s 56(1) Criminal Injuries Compensation Act 2003. The Act does not expressly state the basis upon which the discretion to receive further evidence and information is to be exercised. However the general rule is that when an appeal is a fresh hearing further evidence should be admitted unless there is some reason why it would be unjust to do so: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 per Malcolm CJ at 28 to 30. There is further reason to apply that principle to an appeal under the Criminal Injuries Compensation Act 2003 given the general terms of the discretion to admit further evidence, the beneficial purpose of the Act and the informal nature of a hearing before an assessor: Chappell v Bowe [2006] WADC 29 per Macknay DCJ at [37]. I conclude that I should exercise my discretion to admit further evidence and information by receiving that evidence and information unless there is a reason for me not to do so.

The evidence and information before the Assessor

Mr Tilbury was born on 1 June 1971. At approximately 11.00 pm on Thursday, 9 August 2007 Mr Tilbury went with some work colleagues to Liquid Nite Club in Rockingham. At approximately 3.30 am on Friday, 10 August 2007 he left the night club. He spoke to the doorman for approximately 5 to 10 minutes. There was a fight between two people who Mr Tilbury did not know. He put his hands up to avoid being hit and spoke to them to try to resolve the situation. Mr Tilbury continued speaking to the doorman. He also spoke to a Maori man for a short period.
Mr Tilbury then went to leave and commenced walking down some stairs. As he did so he was struck or pushed from behind, causing him to fall forward and land heavily on his left knee. Mr Tilbury attempted to get back on his feet, but he was kicked to the right side of his face and fell back to the ground. He received several more kicks to his face and head.
The kicking stopped and the person or persons who kicked Mr Tilbury left the immediate area. Mr Tilbury went to a public telephone and dialled 000. While he was waiting for the police to arrive he saw some people who he feared were the people who had assaulted him and so he left and went to his car. He commenced to drive home, but was involved in an accident with a truck on the way.
Mr Tilbury's father took him to the Rockingham Kwinana District Hospital. A cranial CT scan and a CT scan of Mr Tilbury's facial bones were performed. The scans were normal. Mr Tilbury was discharged after a period of observation. On 13 August 2007 Mr Tilbury went to see his general medical practitioner, Dr Ross Jose of the Woodbridge Medical Centre in Cooloongup. When Dr Jose saw him Mr Tilbury was complaining of memory loss and dizziness, had significant bruising especially around his back and had a left subconjunctival haemorrhage. His vision was reduced on the left and was normal on the right. Dr Jose certified Mr Tilbury as being unfit for his work as a chef for one week.
In a letter dated 19 August 2007 the owner of Emma's On The Boardwalk restaurant wrote that Mr Tilbury had just completed a three month trial and was due to commence full time employment at a salary of $55,000.
On 24 August 2007 Mr Tilbury went to the Rockingham Kwinana District Hospital. He was suffering headaches. He had another cranial CT scan performed. It showed no changes since the scan of 10 August. On 3 September 2007 Mr Tilbury returned to see Dr Jose. Mr Tilbury was complaining of poor memory, slow thinking, poor coordination and similar problems. He had started stuttering two days earlier, had developed headaches in the occiput vertex and had increased head pain when he leant forward. His vision in the left eye had recovered. Dr Jose referred Mr Tilbury to Dr Ross Goodheart, a neurologist. Dr Jose saw Mr Tilbury on 13 September. Mr Tilbury was improving slowly.
Dr Goodheart saw Mr Tilbury on 4 October 2007 and he wrote a report on 29 October 2007. Mr Tilbury told Dr Goodheart that in the eight weeks prior to 4 October he had been troubled by a number of symptoms, in particular constant headache in the vertex of the scalp which interfered with his daily activities, poor concentration, short-term memory loss, a tendency to irritability and frustration and problems with coordination. Mr Tilbury told Dr Goodheart that he had sustained a number of burns and scalds due to clumsiness at work.
Dr Goodheart's opinion was that Mr Tilbury was suffering with a component of post‑concussion syndrome which accounted for his symptoms of headache, irritability, poor concentration and coordination difficulty. Dr Goodheart did not think that further medical intervention was appropriate, but he advised Mr Tilbury to pursue a graduated return to full activity. It seemed likely to Dr Goodheart that Mr Tilbury had attempted to increase his hours of work too quickly following the injury.
Mr Tilbury returned for a review by Dr Jose on 10 October 2007. He told Dr Jose that Dr Goodheart wanted him to have two months off for post‑concussion syndrome. He was complaining of poor coordination, excessive tiredness and insomnia. Dr Jose prescribed medication to help Mr Tilbury to sleep and provided a certificate for Mr Tilbury to remain off work for two months.
On 6 November 2007 Mr Tilbury saw Dr Bob Oumo of the Parmelia Medical Centre. On 6 January 2009 Dr Oumo wrote a certificate concerning Mr Tilbury in the following terms:
"This is to certify that I did attend the above named on the 06.11.07, with complaints of assault on the 10.08.07, stated was kicked repeatedly in the head, complaining of poor memory, stuttering, not coping well with day to day activities, had to be laid off work as a result, irritability, poor sleep and very edgy unlike himself."
On 14 January 2008 Mr Tilbury again saw Dr Jose. He stated that he still had paraesthesia of the lower limbs and feet, especially on the right. He continued to complain of vertex headaches and a sore left hand. He stated that his memory was still reduced and was complaining of muscle twitching of the arms and back about twice a week. He also complained of mood swings and pains behind his eyes.
Mr Tilbury saw Dr Jose on 30 January 2008 and requested an MRI scan. Dr Jose referred Mr Tilbury to Dr Goodheart. Dr Jose next saw Mr Tilbury on 26 March 2008. Mr Tilbury said that he was improving and that the MRI was normal. On 25 May 2008 Mr Tilbury told Dr Jose that he always had headaches, had poor memory and mood swings and was having difficulty with feeling aggressive. Dr Jose referred Mr Tilbury for counselling and advised Mr Tilbury to continue taking antidepressant medication.
Dr Jose reviewed Mr Tilbury on 20 October 2008. Mr Tilbury said that he still had headaches often, was taking Panadeine Forte about twice a week and had not yet made a full recovery.
On 21 October 2008 Dr Jose wrote a report which included the following:
"[Mr Tilbury] started a new business in June 2008 which is prospering because of the hard work that Eric is putting into it. This requires Eric flying to the North West and then driving to remote locations with his catering service and I have noticed an improvement in the family dynamics since this new venture commenced."
On 16 January 2009 Dr Jose wrote a report to Mr Tilbury's solicitors which related Mr Tilbury's reports of symptoms and Dr Jose's treatment. That report concluded:
"So in summary, he sustained a significant head and body trauma resulting in post concussion syndrome, was off work for approximately four months and 15 months later we are still experiencing symptoms relating to his assault. It is my view that these symptoms will gradually reduce over the next few months and, by the end of 2009, he should be symptom free."
In addition to his attendances at the Woodbridge Medical Centre to which I have referred Mr Tilbury attended the practice on 3 September 2007, 28 May 2008, 13 August 2008, 15 September 2008 and 21 January 2009.
The documents filed in support of Mr Tilbury's claim for compensation included a document entitled "Witness Impact Statement of Eric Lee Tilbury in Relation to Assault". It was dated 30 January 2009 and was signed by Mr Tilbury. Mr Tilbury said in that statement:
"I have lost one year worth of wages. I was employed prior to the incident and due to start full time work at $55,000 per annum. After the incident Dr Ross Jose gave me 4 months off work which I took, however I was in no state to return to work for 12 months after the incident. I did not bother to get a medical certificate as social security would not pay me a benefit as my wife's fortnightly income was over $1080.00."

Further evidence and information filed by Mr Tilbury for the hearing of the appeal on 22 January 2010

On 30 October 2009 Mr Tilbury swore an affidavit seeking to adduce additional material for this appeal. He sought to adduce a medical certificate from Dr Michael Chong of the Woodbridge Medical Centre dated 9 June 2009 and medical notes pertaining to his presentation at Fremantle Hospital on 12 and 13 April 2009. Mr Tilbury deposed that he sought to adduce this evidence to show that he was unfit for work from 18 August 2007 until 29 June 2008. He believed that his claim for compensation should be assessed on the basis that he lost 10 months and two weeks worth of earnings.
Mr Tilbury deposed that in the months after he was assaulted he visited Woodbridge Medical Centre on many occasions and on two occasions he was given medical certificates. The first certificate certified that he was unfit to work for one week from 13 August 2007. The second certificate certified that he was unfit to work from 10 October 2007 to 10 December 2007.
Mr Tilbury deposed that he was not able to work for 11 months after the assault. He continued to visit the Woodbridge Medical Centre for medical treatment for injuries relating to the assault but did not request medical certificates as he did not require them at the time. As he was not working he did not require a medical certificate for any employer and his wife's salary exceeded the Centrelink threshold amount of $1,080 so he was unable to claim a benefit from Centrelink. When compiling documents for his claim for Criminal Injuries Compensation he submitted the two medical certificates that were in his possession and set out his circumstances in his witness impact statement. Mr Tilbury failed to submit the medical notes from Fremantle Hospital with his application for Criminal Injuries Compensation because the medical notes were not available at the time. His application for compensation was lodged on 2 February 2009, being a time when he believed that he had fully recovered from the injuries he received in the assault. However on 12 and 13 April 2009 he experienced severe symptoms relating to the head injuries he received in the assault and so he attended Fremantle Hospital.
The certificate from Dr Chong is in the following terms:
"This is to certify that Eric Lee Tilbury was receiving medical treatment from his head injuries suffered from an assault and for the period 10/08/2007 to 29/06/2008 inclusive was unfit to continue his usual occupation.
This certificate was completed on 9 June 2009."
The notes from Fremantle Hospital confirm that Mr Tilbury attended for treatment on 13 and 14 April 2009 and that he reported that he was suffering from headaches.
On 21 January 2010 Mr Tilbury's solicitor Garry Hamilton Lawton swore an affidavit in support of the appeal. Mr Lawton deposed that Mr Tilbury was charged with driving under the influence of alcohol on 10 August 2007. He pleaded not guilty and Mr Lawton acted for him. Dr Goodheart was called as a witness at the hearing of the prosecution. A copy of the transcript of Dr Goodheart's evidence at the hearing of the prosecution was annexed to Mr Lawton's affidavit. In Dr Goodheart's opinion the injuries suffered by Mr Tilbury were consistent with the assault and not with the motor vehicle accident.

Dr Chong's certificate

In his certificate Dr Chong did not explain the basis for his certification not did he provide reasons for it. Expert opinion evidence must be comprehensible and the conclusions reached must be rationally based. A court ought not to act on an opinion, the basis for which is not explained by the witness expressing it – Pollock v Wellington (1996) 15 WAR 1 at 3. In this appeal I am not bound by the rules of evidence – s 18 and s 56 Criminal Injuries Compensation Act 2003. Nevertheless I formed the view that I ought to be careful to act on the certificate when no reasons were provided for it, it was provided almost 12 months after the end of the period for which Mr Tilbury was certified unfit, I had detailed medical evidence in the reports of Dr Goodheart and Dr Jose and it appeared that Dr Jose was the general medical practitioner who had seen Mr Tilbury on most occasions in the period for which Dr Chong certified Mr Tilbury as being unfit. At the hearing of the appeal on 22 January 2010 I raised my concerns with counsel for Mr Tilbury. He asked for an adjournment to seek further evidence. I granted the adjournment and the appeal was later listed for further hearing on 19 March 2010.

Further evidence and information filed by Mr Tilbury for the hearing of the appeal on 19 March 2010

Mr Tilbury swore an affidavit on 18 March 2010. In that affidavit he went into considerably more detail as to the consequences of the assault and he annexed to the affidavit a medical report by Dr Jose dated 15 February 2010 and a medical report by Dr Chong dated 8 March 2010. He also annexed to the affidavit a copy of his income tax return for the year ended 30 June 2009.
Mr Tilbury deposed that following the assault he went to work at Emma's On The Boardwalk on Saturday 11 August 2007 as he did not want to call in sick and put pressure on the rest of the team at work. He found it very difficult to work, suffered from memory loss, coordination problems and clumsiness and burnt himself on a few occasions. After the dinner service at Emma's On The Boardwalk Mr Tilbury felt he could not cope with working and told his boss that he would not be able to work from Sunday, 12 August 2007 to Wednesday, 15 August 2007.
Mr Tilbury saw Dr Jose on 13 August 2007. He returned to work on 16 August 2007, but was not feeling well and arranged to do a reduced shift from 6 pm to 9.30 pm. He found working that reduced shift difficult. He worked the same shifts on 17 and 18 August 2007 but found he was unable to work and became unemployed on 18 August 2007. Mr Tilbury deposed as to the symptoms he suffered in the following months and to his attendance on medical practitioners. On 10 October 2007 Dr Jose gave to Mr Tilbury a certificate that he was unfit for work for two months. Over the next two months his symptoms did not improve. He continued to see Dr Jose and Dr Goodheart. On 20 March 2008 he attempted to return to work at a local bistro, but was unable to cope with the work.
Prior to the assault Mr Tilbury had been taking antidepressant medication. On 28 May 2008 Dr Jose referred him for counselling and increased his antidepressant medication.
In or about June 2008 he commenced a business where he obtains short term contracts to cook for workers in remote areas. He obtained his first job on 29 June 2008 and since then has been able to work part time, but continues to have difficulties. In April 2009 Mr Tilbury suffered extremely severe headache and neck ache which resulted in his attendance at hospital and further tests.
Mr Tilbury also deposed that on 9 June 2009 he attended at Woodbridge Medical Centre and saw Dr Chong as he was unable to see Dr Jose. He explained his medical history to Dr Chong who provided the certificate as to his unfitness for work. At the time that he saw Dr Chong on 9 June 2009 Mr Tilbury forgot that he had gone to work for some days in August 2007. Mr Tilbury continues to suffer headaches.
In his report dated 15 February 2010 Dr Jose recorded Mr Tilbury's attendances on him and records Mr Tilbury's complaints of mood swings, memory loss, continual headaches and low self-esteem. Dr Jose concluded his report with the following paragraph:
"So I would concur that in my opinion Mr Tilbury was unable to work for nearly 11 months following the assault and my observation of Mr Tilbury is that he is not a malingerer and is well motivated to work and that during that time he was simply unable to work because of his symptoms."
In his report dated 8 March 2010 Dr Chong has recorded that his certificate of 9 June 2009 was based upon the history provided to him by Mr Tilbury and his perusal of Mr Tilbury's file. Dr Chong concluded his report:
"On this basis, I concluded that there was no doubt that Mr Tilbury suffered medical symptoms after he was assaulted until 29 June 2008 and that during this period he was unable to continue his usual occupation.
I have since read and concur with another Medical Report by Dr Jose dated 15 February 2010 which clarifies Dr Jose's opinion relating to Mr Tilbury's ability to continue his usual occupation between 10 August 2007 and 29 June 2008."

Conclusion as to appeal

In my view there is no reason not to receive the further evidence and information that Mr Tilbury wishes to adduce and I allow him to do so.
I am now satisfied from the whole of the materials before me, in particular Mr Tilbury's affidavit of 18 March 2009 and the medical reports annexed to that affidavit, that Mr Tilbury was unfit for work until 29 June 2008 and that his claim for compensation should be assessed on that basis.
The period from 10 August 2007 to 29 June 2008 is 46 weeks and 2 days. I am unable to ascertain from the papers precisely how much Mr Tilbury earned for the periods he worked following the accident, and I consider it appropriate to round down the period of 46 weeks and 2 days to 46 weeks to reflect those earnings. In the year ended 30 June 2008 a gross annual income of $55,000 equated to an income net of income tax and the Medicare levy of $43,075, or $828.37 a week. For the period of 46 weeks Mr Tilbury's loss of income was $38,105.02.
I conclude that Mr Tilbury's award of compensation should be:
Injuries$27,000.00
Medical report fees  $ 1,045.00
Past loss of earnings (net)  $38,105.02
Travel expenses  $     142.00
Medical expenses  $     774.20
TOTAL$67,066.22
I allow the appeal and substitute an award of $67,066.22.