Re White
[2024] WADC 103
•12 DECEMBER 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE WHITE [2024] WADC 103
CORAM: RITTER DCJ
HEARD: 14 NOVEMBER 2024
DELIVERED : 12 DECEMBER 2024
FILE NO/S: APP 29 of 2024
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: JACK-DALE WHITE
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: C HOLYOAK-ROBERTS
File Number : CIC 1763/2023
Catchwords:
Criminal injuries compensation - Assessment for damages - Appeal on the ground of excessive quantum - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003 (WA)
Result:
Appeal allowed and award reduced
Representation:
Counsel:
| Appellant | : | In person |
| Amicus Curiae | : | Ms T Wilker appeared on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
August v Lynch [2019] WADC 78
Beliti [2006] WADC 11
Cafaro v Macri (Unreported, WADC, Library No 970093, 17 March 1997)
Durnin v Jones [2000] WADC 167
EB v Ramljak [2021] WADC 134
EM v CL [2021] WADC 127
Hicks v Hicks [2004] WADC 260
Johnston v Watts [2024] WADC 62
Mangisi v Boehm [2021] WADC 76
RBF v OSD-S (2004) 36 SR (WA) 61
Re Branch [2024] WADC 41
Re Coad [2023] WADC 9
Re Collard [2018] WADC 1
Re Goodwin [2020] WADC 128
Re Richards [2022] WADC 100
Savic v Duric [2021] WADC 53
Underwood v Underwood [2018] WADC 13
Ward v Davey [2023] WADC 78
Woodward v Davies [2021] WADC 73
RITTER DCJ:
The appeal
By notice of appeal filed on 29 April 2024 the appellant appeals against a decision of the Chief Assessor of Criminal Injuries Compensation (Assessor). The decision was made following an application for compensation made by the respondent on 7 June 2023. The application was made under s 12(1) of the Criminal Injuries Compensation Act 2003 (WA) (the Act). The application was made for injuries and loss arising out of the commission of an offence by the appellant against the respondent. The offence was one of assault occasioning bodily harm. The offence was committed on 2 July 2022. The appellant pleaded guilty to the offence at the Mandurah Magistrates Court on 12 August 2022.
For the offence committed, which was the subject of the application for compensation, the appellant was fined $1,500 which was made payable to the respondent.
On 12 April 2024 the Assessor allowed the application for compensation and awarded the respondent $20,663.50. Although formal reasons were not provided, in a letter dated 12 April 2024, it was particularised that $20,000 was for injuries and $1,059.50 for treatment expenses, less $396 which had previously been paid by the appellant to the respondent in part satisfaction of the order made by the Magistrates Court.[1] That was said in the award to be in addition to the $1,500 fine ordered by the Magistrates Court.
[1] In the letter accompanying the award of compensation it states that the total amount of the award was $20,663.40. This is clearly a typographical error as the sum of the parts of the award set out was $20,663.50. This sum accords with the sum contained in the formal Compensation Award (see Assessor's Papers pages 1 and 61).
The Compensation Award set out the proved offence. It then said, more fully that the Assessor
being satisfied as to the relevant matters as required by sections [sic] 12(3)(a), award Benjamin Sweeny $20,663.50 compensation in respect of that proved offence and order that Benjamin Sweeny be paid that sum. Pursuant to s 45(1)(b) of the Act I order that only $19,000 may be the subject of proceeding under Part 6 of the Act, which amount is in addition to the fine of $1,500 ordered as payable to the applicant by Magistrate V Edwards on 22 August 2022, MH 2180/2022.
There was no order made under s 45(1)(a) of the Act. The part of the Award that referred to Part 6 of the Act was made pursuant to s 45(1)(b) of the Act.
The notice of appeal
As stated, the notice of appeal was filed on 29 April 2024. The single ground of appeal is that: 'the Assessor has failed to give supporting documentation to why the assessed figure of injuries is set a [sic] $20,000'.
From written submissions filed by the appellant, who represented himself in person, and oral submissions provided at the hearing, it is apparent that the appeal is against the quantum of the award of compensation.
On 4 July 2024 the respondent filed a notice of intention which provided that he would not take part in the appeal. Earlier, on 18 June 2024 the Chief Executive Officer of the Department of Justice (CEO) was given leave to appear as amicus curiae.
Reasons for decision
The Assessor has not provided written reasons for decision. There was some correspondence between a Case Manager for Criminal Injuries Compensation at the Department of Justice and the appellant about whether a request for reasons was being made. However, the appellant did not confirm any request and no reasons have since been provided.
As stated earlier, compensation award in favour of the respondent was accompanied by a letter dated 12 April 2024. Amongst other things the letter set out the award of $20,663.50 in the manner earlier described. That is, $20,000 for injuries, $1,059.50 for treatment expenses less the amount of $396 received subsequent to the order made by the Magistrates Court, leaving the total amount of the award as being $20,663.50.
Submissions and the amicus curiae
As stated, the appellant provided written submissions and oral submissions at the hearing. The amicus provided comprehensive written submissions dated 5 November 2024 and also oral submissions at the hearing. The court is indebted to the written and oral submissions made by the amicus curiae. Submissions of an amicus curiae are particularly important where the respondent to an appeal does not appear, as in this instance, and therefore there is no contradictor before the court.
Principles for determining appeals
Pursuant to s 55(1)(b) of the Act, the appellant as an interested person appeals to the court against the Assessor's decision as to the amount of a compensation award.
Section 56(1) of the Act provides:
On an appeal under section 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information.
As there stated, the appeal before the court is to be determined 'without being fettered by the assessor's decision'. Whilst there are conflicting authorities, the better view in my opinion is that the appeal may and most often should be determined without regard to the Assessor's reasons and instead, the court should independently review the evidence in the determination of the appeal.[2] This necessarily occurs in this appeal where there have been no reasons for decision.
[2] Re Coad [2023] WADC 9 [17]; EM v CL [2021] WADC 127 [11]; EB v Ramljak [2021] WADC 134 [18].
From the terms of the legislation and as confirmed by authority, an appeal under the Act is a hearing de novo.[3] Accordingly, there is no requirement for the appellant to demonstrate error on the part of the Assessor.
[3] Underwood v Underwood [2018] WADC 13 [19]; Re Collard [2018] WADC 1 [30] (Underwood).
Section 56(2) of the Act provides that on an appeal the court may, relevantly, confirm, vary or reverse the assessor's decision, either in whole or in part; and may make any order that an assessor could make under the Act.
Documents before the court
As set out in s 56(1) of the Act, the court may determine an appeal by receiving further evidence and information in addition to that which was in the possession of the assessor. In this appeal, the CEO filed on 27 June 2024, the papers which were before the Assessor in determining the compensation application.
On 2 September 2024 the CEO provided five pages of documents which were before the Assessor but not included in the Assessor's papers. Not included with the documents filed, understandably, was CCTV footage relating to the offence committed and also a Western Australian Police DAV player V9.
It is appropriate to determine the appeal based upon the relevant evidence and information contained in all of the documents before the court including the CCTV footage. I have viewed the CCTV footage which shows the assault committed by the appellant on the respondent.
In addition to the documents which were before the Assessor, the court also obtained the transcript of the hearing before Magistrate Edwards on 12 August 2022. As set out earlier the court, in determining an appeal, can take into account evidence and information that was not before the Assessor. In my opinion it is appropriate to have regard to the transcript of the proceedings on 12 August 2022, to assess the facts as found by the Magistrate as constituting the offence. Neither the appellant nor the CEO objected to the court taking into account the transcript of the proceedings.
Compensation for injury and loss
As stated, the application was made under s 12(1) of the Act. This provides:
A person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered.
Relevantly s 12(3)(a) also provides:
An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied -
(a)if the application is made under subsection (1) - that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence;
Section 3 of the Act defines a proved offence to mean a 'crime, misdemeanour or simple offence of which a person has been convicted'. In this instance the application for compensation was clearly based on a proved offence, as set out earlier. In accordance with s 12(1) of the Act, the application for compensation is for the injury and loss suffered.
Pursuant to s 30(1) of the Act:
On a compensation application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered.
Section 31 of the Act provides that for a single offence the maximum amount of compensation that can be awarded is $75,000.
The facts of the offending
The appellant appeared before the Mandurah Magistrates Court on that day in answer to three charges committed in the vicinity of the Boundary Island Brewery premises in Erskine. Relevantly to the appeal, the charge to which the appellant pleaded guilty was read as being that he 'unlawfully assaulted Benjamin Sweeny and thereby did him bodily harm'.
The facts of that offence were read by the prosecutor as follows:
The next matter, your Honour, the complainant of is Benjamin Sweeney [sic]. Same day, your Honour, at the Boundary Island Brewery premises. Observed by the witness and victim Fry, the approved licence manager, on the CCTV system to still be in the vicinity of the premises. The approved licence manager and another staff member located the accused near to the rear gate where the victim was unloading gas bottles from the vehicle. The victim approached the accused who was - who aggressively approached other staff members, and requested he leave the premises.
The accused grabbed the victim by the left arm and threw him against the fence. He again pushed the victim against the fence a second time, your Honour. The victim's little finger on his left hand was dislocated, and he also sustained a graze into the top of his hand.
At the Magistrates Court hearing, the appellant was represented by counsel. His counsel did not expressly accept the statement of material facts by the prosecutor. However, it was said by the appellant's counsel that he did not wish to excuse, justify or defend the offending behaviour. It was said that the sole cause of the offending behaviour was intoxication. It was also said that the appellant had no recollection of the offending behaviour. It was also said that, 'with regards to the assault occasioning bodily harm, it seems the injury to the victim's hand has come from Mr White'. It was also asserted however that the appellant was approached by the respondent who grabbed him by the shirt. It was then said that the appellant had 'kind of ripped the respondent's hand away and thrown it back with some force, which has hit the fence behind, causing that injury'. It was then said that the appellant accepted he pushed the respondent into the fence.
In sentencing the appellant for the offence of assault occasioning bodily harm, the magistrate simply said:
And in respect of Mr Sweeney [sic], you then grabbed him and threw him against a fence - I think twice - and as a result his finger was dislocated, and he had a graze on his hand, and I've seen some photographs of that injury. So the dislocation and the graze constituted bodily harm which made this assault more serious.
There was some suggestion in the written submissions filed by the appellant that there was a dispute about the facts constituting the offence. However, as explained to the appellant in the submissions of the CEO and also at the hearing, the court must accept the facts of the offending as found by the Magistrate.
As submitted by the CEO, if the compensation application is based upon a proved offence, the parties cannot relitigate the facts of the offending.[4] A plea of guilty to a criminal charge necessarily involves an admission by the offender of material facts comprising the elements of the offence.[5] Therefore a plea of guilty necessarily means that all relevant defences have been conceded as not applying.[6]
[4] Underwood [56].
[5] Underwood [57].
[6] Underwood [57].
Accordingly, for the purposes of deciding the appeal I accept that the facts constituting the offence are those described by the prosecutor and found by the magistrate. In particular the appellant grabbed the respondent by the left arm and threw him against a fence and again did so, in the course of which the respondents' little finger on his left hand was dislocated and he suffered a graze into the top of his hand.
The photographs referred to by the magistrate are in pages 39 - 42 of the Assessor's papers.
For completeness, as mentioned I watched the CCTV footage of the assault. In his written submissions the appellant said that prior to the assault the respondent 'come out of nowhere and approached me I had no choice other than to defend myself to avoid injury he in fact tried to grab me mid-chest or push me away'. In my opinion I cannot have regard to this submission as it is contrary to the facts found by the magistrate as constituting the offence committed. That indicates, and necessitates, that I find that there was no behaviour by the respondent which contributed to his injury to affect the amount of a compensation award that should be made.[7]
[7] See s 41 of the Act.
Section 12(3) of the Act
As set out earlier s 12(3) of the Act provides that a compensation award must not be made unless the court is satisfied that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the offence. 'Satisfied' is defined in s 3 of the Act to mean 'satisfied on the balance of probabilities'. The expression 'as a consequence of' means that there must be a causal relationship or connection between the injury and loss and the commission of the offence.[8]
[8] Re Richards [2022] WADC 100 [55].
'Injury' is defined in s 3 of the Act to mean 'bodily harm, mental and nervous shock, or pregnancy'.
Injuries and medical evidence
There is evidence and information about the physical injuries received by the respondent following the commission of the offence against him. Medical reports were before the Assessor and the court as part of the Assessor's papers. There is also the statement the respondent provided to the police and a victim impact statement prepared by him. Although I now refer to these, the best evidence before the court as to the injuries sustained is that contained in the medical evidence.
The statement to the police says that the appellant pushed the respondent violently against the fence twice. It said that the appellant grabbed the respondents left hand twisting it and pushing it against a fence.
The undated victim impact statement says the respondent is the general manager of Secret Harbour Golf Links and also a part owner of the Boundary Island Brewery. It says the assault has inflicted permanent injuries to the respondent's left little finger. The statement says that after 10 months the injury has caused the respondent to be unable to straighten or make a fist with his left 'middle' finger. (From the medical evidence I will refer to the reference to 'middle' is incorrect and should read left little finger). The statement says there is also a small amount of pain when the finger is knocked and that the respondent is unable to grip a golf club as before. The respondent says golf has been a big part of his work and social life. He says not being able to compete as before injury is frustrating and depressing. The victim impact statement also says the respondent's simple daily life is affected in things such as opening jars, scratching itchy body parts, lifting weights at the gym, lifting any weight including kegs at the brewery and more.
Similar comments are provided in the Criminal Injuries Compensation Application made by the respondent. There are also comments made in that application about loss of earning capacity which will be later referred to.
The medical evidence before the court is in three reports. In my opinion they are fulsomely and accurately summarised in the written submissions provided by the CEO. That summary is as follows:
24.1A report in relation to an x-ray taken of the Respondent's left hand on 12 July 2022 by DAB Radiology in Mandurah, including notes:
(a)'complex fracture middle phalanx of the fifth finger. Numerous shattered bone fragments with displacement noted'; and
(b)the fracture was noted as 'compromising the proximal interphalangeal joint'.
24.2A letter from Dr Jeff Ecker (Hand & Wrist Surgeon) to Dr Prartheesh Anthonypillai (Clinic Doctor) dated 19 July 2022 included statements that:
(a)the problem was an 'unreconstructable comminuted intraarticular impaction fracture of the base and nearly the entire middle phalanx of the left small finger';
(b)described the respondent's left small finger as 'swollen and short';
(c)the injury was 'unreconstructable' two and a half weeks after the injury. If the problem was detected immediately after the 'surgery' (it may be that this word was meant to be 'injury: as based on the evidence it appears the Respondent was treated without surgical intervention) 'it would have been a simpler problem but he still may have had a similar dismal outcome';
(d)the Respondent was to trial an intensive hand therapy program and then evaluate the outcome as the small finger 'is extremely important for grip and function'; and
(e)in the worst outcome, the Respondent would require an amputation through the PIP joint.
24.3A letter from Dr Jeff Ecker (Hand & Wrist Surgeon) to Dr Prartheesh Anthonypillai (Clinic Doctor) dated 27 July 2022 included statements that:
(a)'There has been no significant displacement. The finger is shortened, swollen and there is minimal motion of the distal interphalangeal joint';
(b)the Respondent was advised his finger 'would not be normal';
(c)'the biggest concern is [the Respondent's] inability to make a full fist with the finger (reduced flexion arc)'.
(d)the Respondent 'may or may not be pain-free' at a later date; and
(e)further surgery in the form of fusion may be required at a later date.
24.4The Respondent was referred for further x-rays on 27 July 2022 by Dr Ecker.
(footnotes omitted)
There is no information before the court about the outcome of the further referral for X-rays by Dr Ecker.
I am satisfied based upon all of the evidence that the injuries referred to in the medical reports were caused by the commission of the offence and therefore the respondent is entitled to be compensated for them.
I will do so in relation to general damages later in these reasons.
Medical expenses
As set out earlier, compensation is payable where a person has suffered loss. The definition of loss in s 6(2)(a) of the Act includes expenses actually and reasonably incurred by or on behalf of the victim, that arise directly from, or that arise in obtaining any report from a health professional or a counsellor in relation to, the injuries suffered by the victim.
There was before the Assessor and now before the court evidence of the medical expenses incurred on behalf of the respondent directly arising from the injury suffered by him.
In his compensation application the respondent set out expenses with invoices in support for services provided by Dr Ecker and attendance at the Hand + Upper Limb Centre (HULC), upon referral from Dr Ecker.[9]
[9] Assessor's papers, pages 4 - 7 and 89 - 96.
The expenses itemised by the respondent are accurately set out in the written submissions by the CEO as follows:
28.119 July 2022: gap amount of $141.95, for consultation with Dr Jeff Ecker;
28.227 July 2022: gap amount of $85.75 for consultation with Dr Jeff Ecker;
28.319 July 2022: $111, from HULC for an 'initial consultation' and a 'Lycra/Velcro buddy strap';
28.421 July 2022: $96, from HULC for 'standard 30 minutes';
28.522 July 2022: $169.80, from HULC for 'standard consultation - 15 minutes' and 'hand based resting splint';
28.64 August 2022: $105, from HULC for 'standard 30 minutes';
28.79 August 2022: $75 from HULC for 'Coban Roll (7.5cm wide)' and 'standard consultation - 15 minutes';
28.816 August 2022: $105, from HULC for 'standard 30 minutes';
28.918 August 2022: $65, from HULC for 'standard consultation - 15 minutes';
28.1019 August 2022: $105, from HULC for 'standard 30 minutes';
(footnotes omitted)
The amount of these expenses is $1,059.50. This is the amount which was allowed as treatment expenses by the Assessor.
In my opinion the evidence and information before me establishes that these expenses were actually and reasonably incurred by the respondent directly from the injury suffered by him. Accordingly, the award of compensation should include the amount of $1,059.50.
Any failure to mitigate loss?
The CEO, correctly, submitted that an applicant is obliged to mitigate their loss by obtaining reasonable medical treatment for the injuries caused by an offence.
This includes where symptoms of injury may not have been so extensive if the applicant had pursued treatment.[10]
[10] RBF v OSD-S (2004) 36 SR (WA) 61 [59].
As referred to earlier, Dr Ecker said that if the nature of the injury had been detected earlier it would have been a 'simpler problem'. However, Dr Ecker said that the respondent 'still may have had a similar dismal outcome'. The respondent must have sought medical treatment prior to the X-rays being taken on 12 July 2022. This was 10 days after the assault. There is no other evidence suggesting that the delay was unreasonable, or may have contributed to the extent of the injuries suffered. It has previously been held, and I agree, that where an emergency treatment is not required, the court may find that some delay is reasonably explicable.[11]
[11] Johnston v Watts [2024] WADC 62 [52] (Johnston).
In my opinion on the evidence there is no failure by the respondent to mitigate his loss such that it should limit the quantum of the compensation to be awarded.
Loss of earnings
Section 6(2)(c) of the Act also defines loss as including 'loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim'.
There is no evidence before the court, nor was there before the Assessor, that there had been a loss of earnings prior to the assessment being made by the Assessor.
However, loss of earnings also includes a loss of earning capacity.[12] In his application for compensation the respondent said:
Due to the physical nature of the incident my ability to play golf has declined. This may sound laughable however in the industry playing quality golf with peers helps advance your career as General manager at golf club. Im unable to put a figure on potential earnings. Im looking at exiting the golf industry and General Managers position this year. Over the coming years I expect my income to drop by over $100 000.
[12] Re Branch [2024] WADC 41 [65].
There was no evidence provided with the application or subsequently to substantiate the assertion of this quantum.
To establish a claim for future loss of earnings, generally an applicant for compensation must establish:
(a)that there has been a loss of earning capacity; and
(b)what economic consequences will probably follow from that loss.[13]
[13] Re Branch [65].
That is necessary so that the court can determine, as best as it can, the sum that should be paid to a compensation applicant to put them in the same position as they would have been if the injuries, caused by the offence, had not been sustained.
As submitted by the CEO, it may be accepted that there could be a decline in the respondent's golfing ability because of a reduction in his grip strength and ability to use his left hand. There is also medical evidence, referred to earlier, that there is likely to be permanent damage to the respondent's left hand.
However, this falls short, in my opinion, of establishing a basis upon which the court could make any assessment of loss of earnings. This is because there is no evidence of the earnings that the respondent had or was likely to have, before the injuries suffered, and if so, how the injuries suffered would have an impact upon earning capacity and the loss of earnings likely to occur in the future. The assertion of a loss of $100,000 contained in the respondent's application is, on the evidence, speculative. Certainly, there is no evidence or information before the court to substantiate it.
Due to the above, I am unable to make any allowance for past or future loss in assessing the claim for compensation. The information and evidence before the court about the problems the injury has caused the respondent with respect to playing golf, should and will be taken into account in the assessment of general damages which will be made.
During the hearing the appellant said he had made enquiries and ascertained from others that the respondent still worked in the same position at the Secret Harbour Golf Links. As submitted by counsel for the CEO, there are difficulties in the court taking into account hearsay assertions made by the appellant from the bar table. In any event it is unnecessary to have regard to the information provided. This is because, as I have described, no compensation for past or future economic loss can be made, based on the lack of supporting evidence and information before me.
Psychological injury
I also note that in the application the respondent says that the effects upon his golf from the injury have been frustrating and depressing. However, no evidence as to psychological injury has been provided to the court. As such, the frustration referred to by the respondent is only taken into account in a general way in assessing general damages.
General damages
The assessment of general damages is made according to ordinary tortious principles. They are awarded to compensate for pain and suffering and other non-pecuniary losses.[14] The amount of general damages must be fair and reasonable compensation for the injuries received by a compensation applicant and disabilities caused. This is to be assessed by reference to general ideas of fairness and moderation.[15] In assessing compensation a broad and subjective assessment must be made.[16]
[14] Savic v Duric [2021] WADC 53 [51] (Savic).
[15] Re Richards [68]; Savic [51].
[16] Savic [52].
The amount of general damages must be proportionate to the situation of the particular applicant.[17] The assessment of general damages is necessarily therefore a fact specific exercise. In assessing general damages the court may look at awards of criminal injuries compensation in other appeals to consider what is reasonable. To assist, the CEO brought to my attention a number of cases involving awards of compensation for injuries after a conviction of assault occasioning bodily harm. These were provided in the written submissions of the CEO. Additionally, a letter sent to my associate the day after the hearing of the appeal, with the consent of the appellant, referred to cases where awards of compensation were made when there were injuries to a hand.
[17] Savic [51].
For completeness I note the decisions referred to in the written submissions of the CEO are Johnston, Ward v Davey,[18] Savic, Re Goodwin,[19] Woodward v Davies,[20] August v Lynch,[21] Mangisi v Boehm[22] and Underwood. None of these decisions dealt with injuries to the hand. Accordingly, the letter received the day after the hearing of the appeal, that I have referred to, summarised four decisions which did deal with injuries to hands. These were Hicks v Hicks,[23] Beliti,[24] Durnin v Jones[25] and Cafaro v Macri.[26]
[18] Ward v Davey [2023] WADC 78.
[19] Re Goodwin [2020] WADC 128.
[20] Woodward v Davies [2021] WADC 73.
[21] August v Lynch [2019] WADC 78.
[22] Mangisi v Boehm [2021] WADC 76.
[23] Hicks v Hicks [2004] WADC 260 (Hicks).
[24] Beliti [2006] WADC 11.
[25] Durnin v Jones [2000] WADC 167 (Durnin).
[26] Cafaro v Macri (Unreported, WADC, Library No 970093, 17 March 1997) (Cafaro).
Of the decisions referred to in the written submissions, at the hearing counsel for the CEO mentioned three specifically. It was submitted that these decisions represented something of an outer limit, lower limit and middle range assessment of general damages for injuries as a consequence of an assault occasioning bodily harm. A summary of those three decisions follows.
In Ward v Davey the appellant was convicted of assault occasioning bodily harm following a trial. The respondent suffered from a loose tooth, swollen lip and a bruised and bloody nose as a result of the assault. The respondent had a cerebral shunt which was disrupted by the assault requiring him to have shunt revision surgery.[27] Difficulties since the replacement of the shunt caused the respondent headaches which may not have resolved. The respondent was awarded $40,000 for injuries suffered as a result of the offence and the total award of compensation was $56,031.02.
[27] I understand the purpose of a shunt is to drain fluid from the brain.
In August v Lynch the appellant was convicted of assault occasioning bodily harm for hitting the respondent in the head with a beer bottle and biting her in the middle of her back. The respondent sustained two principal physical injuries, being a blunt force injury to the back of her head leaving bruising and a bite to her neck which caused bleeding. There was also ongoing stress, distress and anxiety as a result of the assault. The respondent was awarded $4,000 for non economic loss.
In Woodward v Davies the respondent committed two offences of assault occasioning bodily harm and two offences of common assault. The appellant suffered from a swollen left eye, a blood nose and the fracture and eventual removal of a tooth due to infection. Additionally, the appellant suffered from distress, discomfort, pain and some social anxiety for a limited period of time after the assault. The appellant was awarded $18,000 for non-pecuniary loss, within a total compensation award of $32,494.75.
With respect to the decisions referred to by the CEO about compensation for injuries to the hand, I note that the compensation awards were made between 1997 and 2004. Therefore, I exercise some caution in taking them into account as decisions involving some broad comparability. This is because the amount of the compensation then awarded would be equivalent to a significantly greater sum now.
However, in Hicks, the victim was assaulted by her husband. The offender hit the victim's left hand once and then again harder with his mobile telephone as her hand lay flat on a table.[28] The injury was a soft tissue injury and no bones were fractured. The victim suffered severe pain for six weeks and was unable to work in her business.[29] The victim was awarded $5,500 for her injuries, with a total award of compensation being $8,741.[30]
[28] Hicks [11] and [19].
[29] Hicks [13], [14] and [19].
[30] Hicks [32].
In Beliti, the victim's wrist was injured during an armed robbery. The victim suffered ongoing pain in the right radial wrist area. This occurred especially after engaging in activity. There was also numbness to the dorsal aspect of the right hand, especially whilst carrying.[31] The victim was likely to continue to experience numbness in her hand and some pain with repetitive movements.[32] The victim also suffered post-traumatic stress disorder, but it was held it was likely this would resolve following additional treatment.[33] The victim was awarded $12,000 in general damages.[34]
[31] Beliti [6.4].
[32] Beliti [7] - [8].
[33] Beliti [6.6] - [6.8].
[34] Beliti [11].
In Durnin, the victim was a police officer who took part in a violent struggle with an offender. The victim suffered a dislocated left shoulder, chipped right thumb bone and minor lacerations and soft tissue injuries.[35] Also, during the incident the offender threatened to kill the victim and other officers.[36] Approximately four months after the offence was committed, the victim's shoulder had recovered but he continued to complain of discomfort in his left thumb and pins and needles in his right hand when riding a motorcycle. The medical evidence was that the victim would continue to suffer pain and disability in his thumb and may develop osteoarthritis in the thumb, and that this was perhaps a result of the dislocation of the shoulder.[37] The victim was severely affected by anxiety following the incident and was awarded $15,000 for his injuries.[38]
[35] Durnin [10], [21], [22] and [42].
[36] Durnin [11] - [14].
[37] Durnin [25].
[38] Durnin [27] - [29], [44] and [54].
In Cafaro, the victim suffered gunshot wounds to the left forearm and right upper arm.[39] The victim continued to suffer a range of complications in his left hand due to the injury more than three years after the commission of the offence.[40] In particular there was hypersensitivity on the palm and poor sensation in all fingertips, likely to be permanent.[41] The victim was righthand dominant. An award of $15,000 was made for the injuries suffered, which did not include compensation for mental health harm.[42]
[39] Cafaro (9).
[40] Cafaro (10).
[41] Cafaro (10) and (12).
[42] Cafaro (11) and (12).
I take these authorities into account in the way in which I have mentioned earlier. That is, they are broadly of assistance in assessing the amount of compensation to be awarded in cases where there have been similar offences against people or injuries to the same parts of the body as the respondent. As stated, however, the assessment of general damages remains a fact specific exercise constituting fair and reasonable compensation for the injuries received by a compensation applicant and the effects upon them. A broad and subjective assessment must be made having regard to general ideas of fairness and moderation.
In assessing the general damages for the respondent, I take into account in particular the following:
(a)the offending against him occurred suddenly and without any provocation. Therefore, I infer there was some shock involved in the respondent suffering injuries from the commission of the offence;
(b)as part of that assessment, I take into account that the respondent was at work and therefore not expecting any type of assault upon him;
(c)the medical evidence and in particular the X-ray results and the reports from Dr Ecker. In particular:
(i)the unreconstructable comminuted intraarticular impaction fracture of the base and nearly the entire middle phalanx of the left little finger;
(ii)the injury being 'unreconstructable' and treated without surgical intervention;
(iii)the respondent had intensive hand therapy;
(iv)there was no significant displacement but the finger was shortened, swollen and there is minimal motion of the distal interphalageal joint;
(v)the respondent's finger would not be normal in the future and he may or may not be pain free at a later date; and
(vi)further surgery in the form of fusion could be required at a later date.
(d)the respondent is right hand dominant and the injury was to his left hand and finger;
(e)the impact of the injury upon the capacity of the respondent to play golf at the level he had prior to the injury. This has been frustrating and depressing, although has not led to any specific psychological injury;
(f)the suffering of the injury by the respondent was clearly painful at the time and thereafter, to the extent mentioned in the victim impact statement; and
(g)there are likely to be continuing effects upon the respondent from the injury caused by the offence. These include the simple daily tasks referred to in the victim impact statement.
Having regard to all of the facts and circumstances in my opinion the appropriate award of compensation for general damages for the injuries and consequences caused by the offence is $15,000.
Barring order
The CEO brought to my attention the issue of whether there ought to be some barring order made under s 45(1) of the Act. As stated, the Assessor made no barring order pursuant to s 45(1)(a) of the Act. However, pursuant to s 45(1)(b) of the Act, it was ordered that only $19,000 of the compensation awarded could be the subject of proceedings under Part 6 of the Act. In the compensation award that amount was said to be in addition to the fine of $1,500 ordered as payable to the respondent by order in the Magistrates Court.
The award did not set out why the amount of $19,000 was selected as being the limit of any proceedings under Part 6 of the Act. The effect was a deduction, from the compensation award, of $1,663.50 from the amount that could be subject to Part 6 proceedings. As indicated, there are no reasons for decision which may have thrown light upon why this was the amount specified. Counsel for the CEO suggested that it may have some relationship to the fine of $1,500 which had been imposed by the Magistrates Court.
Be that as it may, the issue of the amount of $1,663.50 as being excluded from the amount that may be the subject of proceedings under Part 6, did not form part of the notice of appeal. Nor was the issue specifically raised by the appellant in his submissions on the appeal. Further, the CEO could not provide any particular reason for the variation of this amount, or the making of an order under s 45(1)(a) of the Act.
Therefore, in my opinion the amount of compensation to be awarded should remain as being reduced only by the sum of $1,663.50 for the purpose of any proceedings under Part 6 of the Act.
Total compensation and determination of the appeal
In my opinion therefore, the appropriate compensation to be awarded to the respondent is as follows:
General damages $15,000.00 Compensation for the payment of medical expenses $1,059.50 Subtotal $16,059.50 Less other compensation received by court order (s 42 of the Act) $396.00 Total compensation $15,663.50
As indicated above, the amount which may be subject to proceedings under Part 6 of the Act is limited to $14,000. The appellant's liability to pay all of the $1,500 fine imposed by the Magistrate remains.
Because the amount which in my opinion ought to be awarded to the respondent as compensation is less than that awarded by the Assessor, the appeal must be allowed. The Assessor's decision is to be varied, so that the amount of compensation is set as $15,663.50.
Costs
There is no order to be made as to costs. The CEO, or amicus curiae, is not an unsuccessful party against whom a costs order could be made. In any event as I said earlier, the CEO performed a service of great importance to the court in the role of amicus curiae.
Final orders
I will hear from the appellant and the CEO as to the precise orders to be made to reflect my reasons for decision. They should confer to, if possible, reach an agreed set of orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
HM
Associate to Judge Ritter
11 DECEMBER 2024
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