Re ZD (pseudonym initials) - [2024] WADC 42

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE ZD (pseudonym initials) [2024] WADC 42
CORAM:   RITTER DCJ
HEARD:   14 DECEMBER 2023 (FINAL SUPPLEMENTARY SUBMISSIONS FILED 4 APRIL 2024)
DELIVERED          :   7 JUNE 2024
FILE NO/S:   APP 29 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: ZD (pseudonym initials)
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R GUTHRIE
File Number            :   CIC 2079/2022

Catchwords:

Criminal injuries compensation - Appeal against amount awarded - Psychological injuries - Nervous shock

Legislation:

Criminal Injuries Compensation Act 2003 (WA), s 3, s 4, s 12, s 13, s 14, s 15, s 16, s 17, s 30, s 31, s 32, s 33, s 34, s 35, s 55, s 56

Result:

Appeal allowed

Representation:

Counsel:

Appellant	:	Ms M Orellana
Amicus Curiae	:	Ms H M Cowie appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Compo Lawyers WA Pty Ltd
Amicus Curiae	:	State Solicitor for Western Australia

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

A v D (1994) 11 WAR 481
Allianz Australia Insurance Ltd v Kerr [2012] NSWSA 13; (2012) 83 NSWLR 302
BAS v The Estate of NAS (dec) [2000] WASCA 270
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Brocx v Mounsey [2010] WASCA 196
Caldwell v Caldwell [1996] NSWCA 88
Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96
Couper v Alexander [2020] WADC 56
Director of Public Prosecutions (Vic) v Sokaluk [2013] VSCA 48
DR v CD [2018] WADC 148
D'Souza v Barclays Building Services (WA) Pty Ltd [2020] WADC 87
EB v Ramljak [2021] WADC 134
EM v CL [2021] WADC 127
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
GP [2019] WADC 75
Guy v Hampson [2019] WADC 19
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Kittelty v Davies [2011] WADC 1
Klimoski v Water Authority of Western Australia (1989) 5 SR (WA) 148
LS v SL [2023] WADC 8
Lyle v SOC [2009] WASCA 3; (2009) 38 WAR 418
M v J (Unreported, WASC, Library No 920598, 19 November 1992)
Madigan v XYZ [2022] WADC 123
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Martin v Martin [2015] WADC 138
McDavitt v McDavitt [No 2] [2013] WADC 198
Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Nepi v Northern Territory [1997] NTSC 153
New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Nurovic v Nurovic [2019] WADC 28
Penrith City Council v Parks [2004] NSWCA 201
R v Bassi [2021] QCA 250; (2021) 9 QR 522
R v Forde (1986) 19 A Crim R 1
R v Kucma [2005] VSCA 58; (2005) 11 VR 472
R v Nguyen [2015] QCA 205
R v Runjanjic (1991) 56 SASR 114
R v SCZ [2018] QCA 81
R v Whitbread (1995) 78 A Crim R 452
Re AK [2016] WADC 156
Re Butler [2020] WADC 22
Re Coad [2023] WADC 9
Re Collard [2018] WADC 1
Re Harvey [2023] WADC 83
Re RJA [2022] WADC 106
Re Warrek [2019] WADC 50
Richardson v Lawford [2020] WADC 58
S v Neumann (1995) 14 WAR 452
SL (by her next friend NL) [2014] WADC 178
Stocker v Loeper [2001] WASC 176
SW v BB [2010] WADC 86
Tristram‑Howard v Morris Corporation (Aust) Pty Ltd [2023] WADC 60
Trudgett v Commonwealth of Australia [2006] NSWSC 575
Tynan v Minister for Health [2011] WADC 228
Underwood v Underwood [2018] WADC 13
Westrac Equipment Pty Ltd v King [2004] WASCA 188
X v McAllister [2021] WASCA 3; (2021) 57 WAR 187

RITTER DCJ:

Table of Contents

1. The appeal

2. The amicus curiae

3. Applicable principles - appeals

4. The notice of appeal

5. The assessor and future loss of earnings

6. Compensation for future loss of earning capacity

7. Jurisdictional limit

8. Evidence and information

9. Entitlement to compensation under the Act

10. The proved offences

11. The alleged offences

12. Details of the proved offences

(a) 19 October 2020 offence

(b) November 2020 offences

(c) January 2021 offence

(d) 10 February 2021 offence

(e) 8 February 2022 offence

13. Proof of alleged offences

(a) Incident on 19 August 2018 - First incident

(b) Incident on 19 August 2018 - Second incident

(c) Incident on 5 September 2020

(d) Incident on 25 December 2019

14. Alleged offences - overall considerations

15. Jurisdictional limit revisited

16. Injuries suffered by MR as a consequence of the proved and alleged offences

17. Mr Haddad's report about MR

18. Condition (b)

19. Condition (c) - Did ZD suffer an injury?

20. Conclusion on s 35(2) of the Act

21. Compensation and loss of earning capacity

22. Medical expenses

23. Future medical expenses

24. Treatment expenses

25. Barring order

26. Compensation

27. Costs

28. Orders

RITTER DCJ:

The appeal

The appellant, ZD seeks an increase in the amount of compensation awarded in their favour by an Assessor of Criminal Injuries Compensation (the assessor). The application to the assessor had been made under the Criminal Injuries Compensation Act 2003 (WA) (the Act). The award of compensation was made by the assessor on 28 June 2023.
An application to the assessor had also been made by the sibling of ZD, SR, by their next friend and mother, MR. SR's application was determined at the same time as ZD's application.
The award of compensation to ZD was for $20,536.30 and said to be for 'proved offences' and 'alleged offences' by ZF, their father, as a consequence of which MR was injured. The assessor ordered that ZD be paid $17,235.70, Legal Aid Western Australia be paid $2,085.60 and ZD also be paid up to $1,215, subject to the provisions of s 48 of the Act, for psychological counselling.
Additionally, in a letter from a case manager 'for assessor of Criminal Injuries Compensation' dated 28 June 2023 (the assessor's letter) to the solicitors for ZD, it was said that the claim for compensation of ZD had been assessed as follows:

Injuries $15,000.00

Reports $2,085.60

Treatment expenses $2,235.70

Future treatment expenses to a maximum of $1,215.00

SUB TOTAL $20,536.30

Less amount to be paid to Legal Aid Western Australia

$2,085.60

Less future treatment expenses not yet incurred $1,215.00

BALANCE PAYABLE $17,235.70

The assessor's letter explained the assessor had allowed $1,215 for psychological treatment; and was calculated on the basis that ZD would consult with their general practitioner and obtain a mental health care plan so as to claim the appropriate Medicare rebates. The assessor's letter said the allowance was calculated as the 'gap' amount after ZD had processed their accounts through Medicare under a mental health care plan.
The amended notice of appeal dated 19 July 2023 contained a single ground:
The Assessor failed to give sufficient weight to evidence of loss of earning capacity as a consequence of the injuries suffered and make an allowance for future economic loss in the Award of Compensation.
The notice of appeal by SR contained the same ground of appeal. The compensation awarded to SR is set out in the separate reasons for decision in their appeal.
Both the appeals by ZD and SR were heard before me at the same time and common submissions were made about the principles to be applied. The principles to apply in determining the appeal are set out in these reasons. The reasons should be read together with the reasons for decision in the appeal by SR. However, the appeals of ZD and SR must be determined separately, based upon the issues and evidence relevant to the particular appeal.
The applications by ZD and SR for compensation were for mental and nervous shock allegedly suffered, as a consequence of proved offences and alleged offences committed by their father ZF, against their mother, MR. The applications were made pursuant to s 35(2)(c) and/or s 35(2)(e) of the Act. That is, the applications were made on the basis that the appellants had been secondary victims to proved offences and alleged offences committed by the respondent, ZF,[1] against their mother, MR. With respect to the proved offences, s 12(1) of the Act applied. With respect to the alleged offences, s 17(2) of the Act applied.
[1] In the appeal by SR, ZF was given a different anonymised initial, being FR.
The compensation award particularised the proved offences as being:
(a)between 12 November 2020 and 24 November 2020 at Heathridge for which incident he was convicted in the Magistrate Court at Perth on 23 December 2020 of five counts of breach of family violence restraining orders and three counts of breach of protective bail conditions;
(b)on 19 October 2020 at Heathridge for which incident he was convicted in the Magistrates Court at Perth on 23 December 2020 of aggravated assault occasioning bodily harm;
(c)between 24 and 27 January 2021 at Heathridge for which incident he was convicted in the Magistrate Court at Perth on 27 April 2021 of breach of family violence restraining order;
(d)on 10 February 2021 at Heathridge for which incident he was convicted in the Magistrates Court at Perth on 27 April 2021 of breach of family violence restraining order; and
(e)on 8 February 2022 at Heathridge for which incident he was convicted in the Magistrates Court at Perth on 22 March 2022 of breach of violence restraining order and thereby proved offences as defined in the Act were constituted …
The compensation award particularised the alleged offences as being 'incidents which occurred on 15 September 2020, 20 August 2018 and 19 August 2018 and no person has been charged with the commission of the alleged offences'.

The amicus curiae

On the hearing of the appeals Ms Cowie from the State Solicitor's Office appeared to represent the Chief Executive Officer of the Department of Justice, as amicus curiae. Ms Cowie also filed written submissions prior and subsequent to the hearing. The court is indebted to the submissions both in writing and orally made by Ms Cowie. Submissions from an amicus curiae are particularly important when the respondent to the appeal does not participate in an appeal, as in this instance, and therefore there is no contradictor.

Applicable principles - appeals

The following is a summary of the relevant principles for determining the appeals. This summary is informed by the helpful submissions of counsel.
Part VII of the Act legislates about appeals and referrals.
Section 55 of the Act provides that, relevantly, an interested person may appeal to the District Court against an assessor's decision as to the amount of a compensation award. Section 56(1) of the Act provides that:
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 stated in s 55 of the Act, the application is to be determined by the court '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 is to independently review the evidence.[2]
[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] (Underwood); Re Collard [2018] WADC 1 [30].
As set out in s 56(1) of the Act the court 'may receive further evidence and information' as opposed to deciding 'the application to which the decision relates … solely on the evidence and information that was in the possession of the assessor …'.
In the present appeal, ZD sought to rely on evidence and information additional to that before the assessor, as set out below.
The Act does not set out any specific requirement to enable the court to receive further evidence and information in the hearing of an appeal. There is no requirement, for example, to demonstrate that the evidence or information should be only received if it is 'new' or 'fresh' evidence or information. This is consistent with the appeal being a determination afresh, not fettered by the assessor's decision.
Accordingly, although counsel at times referred to the evidence or information which was additional to that before the assessor as being 'fresh evidence', that is something of a misnomer in the context of the Act. My preference is to refer to this evidence as additional evidence or information.
Section 56(2) of the Act provides that on an appeal the District Court may, relevantly, confirm, vary or reverse the assessor's decision, either in whole or in part; and make any order that an assessor could make under the Act.

The notice of appeal

The notice of appeal by ZD contains the single ground quoted above in these reasons.
The appeal ground is cast in the form of the assessor making an error. However, as set out above it is not necessary for the appellant to demonstrate an error on behalf of the assessor. It is the role of the court to determine the application afresh without being fettered by the decision made by the assessor.

The assessor and future loss of earnings

ZD submits on the basis of the assessor's letter it is clear the assessor did not award ZD compensation for future loss of earnings. This is because it was not itemised in the breakdown of the compensation award. Further, this was despite the solicitor for ZD making written submissions about future loss of earnings on 31 October 2022. The amicus submitted that based upon the terms of the letter it would be open to the court to conclude that the assessor did not award the appellant compensation for economic loss.
Although, as I have said, the appeal is a determination of the application de novo and the appellant does not need to point to error in the reasons of the assessor, I accept, on the basis of the letter provided to ZD (and SR) and in the absence of reasons from the assessor to the contrary, the assessor did not make any award of compensation to ZD for future loss of earnings.

Compensation for future loss of earning capacity

The focus of the appeal therefore is whether, in the circumstances, there ought to be compensation awarded for any future loss of earning capacity suffered by ZD and if so the quantum of the loss and compensation to be awarded.
As submitted by ZD, in assessing the appropriate amount of compensation, the ordinary principles for the assessment of damages should be used, subject to the jurisdictional limit imposed by the Act.[4] The amicus did not submit otherwise.
[4] Underwood [112] - [113]; M v J (Unreported, WASC, Library No 920598, 19 November 1992) 11 - 12 (Scott J).

Jurisdictional limit

Any compensation to be awarded under the appeal is subject to the jurisdictional limits of the Act.[5]
[5] Guy v Hampson [2019] WADC 19 [15].
The jurisdictional limit for an award of compensation is set out in s 31(1) of the Act. This subsection provides:
(1)Subject to sections 32, 33 and 34, the maximum amount that may be awarded in aggregate under sections 30(1) and (3) in favour of one person for a single offence committed on a date in a period set out in the Table to this subsection is set out in the Table opposite that period.
Table

Item Period
(all dates inclusive) Maximum amount

1. 22 January 1971 to
17 October 1976 For an indictable offence: $2 000
For a simple offence: $300

2. 18 October 1976 to
31 December 1982 $7 500

3. 1 January 1983 to
31 December 1985 $15 000

4. 1 January 1986 to
30 June 1991 $20 000

5. 1 July 1991 to the day before the day on which this Act comes into operation $50 000

6. On or after the day on which this Act comes into operation $75 000

In this appeal, because of the dates when the proved offences and alleged offences occurred, item 6 in the table applies. Accordingly, subject to s 32, s 33 and s 34 of the Act, the maximum amount which may be awarded in aggregate under s 30(1) and s 30(3), is $75,000.[6]
[6] In this appeal, s 32 of the Act is not relevant as it is about the maximum payable for a single offence by multiple offenders.
However, the appellant argued that pursuant to s 33 and s 34(2) of the Act, the maximum compensation which could be awarded is $150,000.
Section 33 and s 34 of the Act provide for the maximum amount of compensation which may be awarded for multiple non‑related offences. Section 33(1) contains the relevant definition of when offences are related:
(1)For the purposes of this section, 2 or more offences are related to one another if an assessor is satisfied -
(a)that they were committed at approximately the same time, whether by one person or by 2 or more persons acting in concert; or
(b)that they are related for any other reason.

Section 34(2) of the Act then relevantly provides:
(2)If as a consequence of 2 or more offences committed by one person that are not related offences within the meaning of section 33(1), another person -
(a)suffers injury …
the amounts awarded under section 30(1) and (3) in favour of the person for the injury described in paragraph (a) … must not in aggregate exceed twice the maximum amount that may be awarded for the last one of the offences to be committed.
The appellant's contention that the maximum compensation which may be awarded is $150,000 is contingent on two or more of the proved or alleged offences not being related, as defined. Whether this contention can be established involves a mixed question of fact and law.
That is, it involves an understanding of what, in context, 'related for any other reason' means. Then, given the answer to that question, it needs to be decided whether the proved offences or the alleged offences are included within that meaning.
The question of the meaning of the expression gains no assistance from the extrinsic materials to the Act before the bill was passed,[7] which do not elaborate up on the meaning.
[7] See for example the Explanatory Memorandum, 'Clause Notes' to the Criminal Injuries Compensation Bill 2003 (WA), pages 8 ‑ 9.
There is some case law however which provides assistance. In Stocker v Loeper,[8] the applicant had been sexually abused on multiple occasions. There was a guilty plea by the offender to three representative charges, being two counts of unlawful and indecent dealing and one count of procuring the applicant to unlawfully and indecently deal with him. McKechnie J considered the like provision in the Criminal Injuries (Compensation) Act 1970 (WA). Section 2(a) of that Act limited the compensation available to an applicant where '… the offences are otherwise related to each other …' to the single maximum (then) amount of $7,500. McKechnie J said at [11]:
[8] Stocker v Loeper [2001] WASC 176 (Stocker).
These offences are not 'related' offences within the meaning of the Act. They constitute separate and distinct violations of the applicant by [ZF].
The reasoning in Stocker was cited with approval by the Court of Appeal in X vMcAllister,[9] in deciding a referral on a question of law under the Act. In McAllister there were five occasions of an offender sexually abusing a child over a period of in excess of a year. With respect to s 34 of the Act, the court said:[10]
[9] XvMcAllister [2021] WASCA 3; (2021) 57 WAR 187 (McAllister).
[10] McAllister [21].
It is common ground that:
1.the Compensation Application proceeds on the basis that [ZF] committed sexual acts against the claimant over a period exceeding one year; and
2.insofar as they may be considered 'offences' under the Compensation Act (this being a matter arising from the questions of law in these proceedings), the offences referred to in the Compensation Application are 'unrelated offences' for the purposes of s 34 of the Compensation Act.
This common ground reflects the approach taken by McKechnie J in Stocker v Loeper to multiple counts of sexual offending against a single complainant, which we see no reason to doubt.[11]
[11] See also Stocker; SL (by her next friend NL) [2014] WADC 178 [50].

There is no reason to suppose that the Court of Appeal would advocate a different approach where there are multiple offences which might broadly be described as domestic violence offences, perpetrated by the same offender or alleged offender against the same victim, over time and in the same household. However in each case the issue remains fact specific.
The amicus referred the court to the decision of Re Harvey.[12]
[12] Re Harvey [2023] WADC 83 [147] - [156].
In Re Harvey, Egan DCJ made the following points about s 33 of the Act, the jurisdictional limit and 'related offences':
(a)The maximum compensation that may be awarded is not reserved for a worst-case assessment but is simply a monetary cap.
(b)If the proven and alleged offences are 'related offences' then the maximum amount which can be awarded is that which can be awarded for an injury suffered as a consequence of one offence, namely $75,000.
(c)Two offences which occur on the same day and in the same place, albeit at different times, and causing different injuries have been held not to be related, but instead can be separate and distinct incidents.
(d)However, in the case before his Honour, the claimant did not seek to identify any particular proven and/or alleged incident which led to her injury.
(e)His Honour therefore said the claimant proceeded on the basis that no particular incident caused her injury; rather, her injury arose as a consequence of the aggregate of the behaviour comprising all of the proven and alleged offences.
(f)Given the opinion of a psychologist that the claimant's injury had arisen as a consequence of an abusive relationship and traumatic incidents and traumatic events, his Honour was unable to determine that the claimant's injury was caused by a particular proven offence or alleged offence.
(g)Instead his Honour decided that that all of the proven and alleged offences, in combination, caused the injury to the claimant.
(h)As a result, the proven and alleged offences were in fact related, notwithstanding that each incident did not occur within temporal proximity of each other.
(i)It followed that the monetary limit of the compensation which his Honour decided the court could award for all proven and alleged offences was $75,000.
In LS v SL[13] Sweeney DCJ relevantly said:
[13] LS v SL [2023] WADC 8 [117] - [124].
(a)There is little case law on the meaning of 'related offences'. In DR v CD[14] Quail DCJ regarded two sexual offences occurring within the one incident as being related offences. Schoombee DCJ took a similar approach to two sexual offences occurring within one incident in SW v BB.[15]
[14] DR v CD [2018] WADC 148 [63].
[15] SW v BB [2010] WADC 86 [112].
(b)McKechnie J in Stocker did not, inferentially, consider the mere fact that sexual offences were offences of a similar nature committed over time against the same complainant to be 'related offences'.
(c)In McAllister, also a case of chronic sexual abuse, the Court of Appeal approved McKechnie J's approach in Stocker.
(d)The jurisdictional limit appears to be based on funding considerations, bearing in mind that it is ultimately the taxpayer who funds the compensation. The monetary cap is not a reflection upon the victim, or his or her conduct or even the extent of the injuries suffered.
(e)If the two offences are related, there is no discretion to ignore that relationship based on sympathy for, or the compensatory needs of, the victim.
(f)The words 'related for any other reason' indicates that Parliament contemplated how two offences may be related even though they were not committed at approximately the same time. Interpreted broadly, many offences could be said to be related if the victim in both is the same. The fact that the victim is the same person in both offences cannot, of itself, be sufficient to constitute offences being 'related for any other reason'. Otherwise Parliament would have simply capped the compensation payable for multiple offences against the same person to the maximum for a single offence, without more.
(g)The words 'related for any other reason' have to be given some meaning. They are plainly broad in meaning. The question must be determined on the individual facts at hand and will involve questions of degree.
In my opinion, respectfully, point (g) above is plainly correct. Whether offences are related for 'any other reason' depends not only on the law but the facts of the case before the court. Accordingly my determination of this issue is dealt with later in these reasons.

Evidence and information

In the submissions filed by the amicus there is set out the additional evidence and information relied upon by the appellant and in SR's appeal.
The amicus has also provided a list of the documents contained in the book of documents filed by ZD which were not contained in the assessor's papers produced to the court. However, the amicus noted that it appears that the documents would likely to have been before the assessor and are not therefore additional evidence or information.
In the present appeal in my opinion it is appropriate to take into account all relevant evidence and information including the additional evidence and information. This is just, in my opinion, as the appeal is best determined by having regard to all of the relevant evidence and information.

Entitlement to compensation under the Act

The Act provides for an entitlement to an award of compensation in varying circumstances. As set out above, in the present appeal ZD seeks compensation for mental and nervous shock suffered as a consequence of MR suffering injury as a consequence of the commission of the offences and alleged offences by ZF. Generally, the Act provides that compensation may be awarded when:
(a)a person suffers injury as a consequence of the commission of a proved offence;[16] and
(b)a person suffers injury as a consequence of the commission of an alleged offence[17] but no person is charged with the alleged offence.
[16] Section 12(1) of the Act.
[17] Section 17 of the Act.
Injury is defined in s 3 of the Act to mean 'bodily harm, mental and nervous shock, or pregnancy'.
As stated in the written submissions of the amicus:[18]
It is well accepted that the phrase 'mental or nervous shock' comprehends any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence or offences, or associated with the commission of the offences, as those events impact on the mind or nervous system. It must be more than a mere emotional reaction, being something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury. The term includes distress, horror, disgust and other similar adverse mental reactions but excludes mere fright, humiliation or anguish.
[18] Outline of submissions filed 8 December 2023, par 89.
At the conclusion of these submissions a footnote cited as supporting authorities, Sv Neumann;[19] M v J[20] and Martin v Martin.[21]
[19] S v Neumann (1995) 14 WAR 452, 461 (Murray J).
[20] M v J (10) - (11) (Scott J).
[21] Martin v Martin [2015] WADC 138 [85] (Derrick DCJ) (Martin).
The Act contains limits on the occasions when compensation can be awarded on the basis of mental and nervous shock. These are set out in s 35 of the Act. Relevantly s 35(2) and s 35(3) provide as follows:
(2)An assessor must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence, or for any loss in respect of such shock, unless the assessor is satisfied -
(a)that the victim also suffered bodily harm or became pregnant as a consequence of the commission of the offence; or
(b)that the victim was the person against whom, or against whose property, the offence was committed; or
(c)that a person other than the victim died or suffered injury as a consequence of the offence and the victim was personally present when or immediately after the offence was committed; or
(d)that immediately before the offence was committed the victim was the parent or step-parent of a person who died as a consequence of the commission of the offence; or
(e)that immediately before the offence was committed the victim -
(i)was a close relative of a person who suffered injury or died as a consequence of the commission of the offence; and
(ii)was living with that person.
(3)Despite subsection (2), if an assessor is satisfied -
(a)that a person died or was injured as a consequence of the commission of an offence; and
(b)that the death occurred or the injury was suffered when the person was committing a separate offence,
the assessor must not make a compensation award in favour of a close relative of the person for mental and nervous shock suffered by the close relative as a result of the death or injury.
In the present context ZD is the alleged 'victim' under s 35 of the Act and MR is the person who suffered injury as a result of the commission of the offences and alleged offences.
As set out in the submissions of the amicus, the following are the the preconditions which must be met before the court can make an award of compensation for mental and nervous shock to ZD, as a secondary victim, pursuant to s 35(2) of the Act:
(a)MR, as the primary victim, suffered injury as a consequence of a proved and/or alleged offence (condition (a));
(b)ZD's status is that of a person described in s 35(2)(c) or s 35(2)(e) of the Act (condition (b)); and
(c)ZD suffered mental and nervous shock as a consequence of the offences committed against MR (condition (c)).
Condition (a) is that MR suffered an injury as a consequence of the proved or alleged offences relied upon by ZD.
That is, with respect to s 12 of the Act, that MR has suffered injury as a consequence of the commission of a proved offence; and with respect to s 17 that MR has suffered injury as a consequence of the commission of an alleged offence.
For compensation to be awarded, under s 17 of the Act, ZD must also prove, on balance that the alleged offences occurred (see below).
Condition (b) may be met by either circumstance described above. For s 35(2)(e) to apply, there are two conditions; being that the victim was a close relative of the person who suffered injury or died, and they were living with that person.
A 'close relative' is defined in s 3 of the Act to have the meaning given by s 4 of the Act. In turn, s 4(1) of the Act defines a close relative as including a child of the victim.

The proved offences

The appellant relies upon the following proved offences committed by ZF against MR:
1.On 19 October 2020 - an offence of impeding another person's normal breathing or blood circulation by ZF applying pressure to the neck of MR. ZF was convicted of this offence on 22 March 2022.
2.In November 2020 - three offences of breaching a Family Violence Restraining Order (FVRO) and three offences of breaching protective bail conditions (PBC), committed by ZF against MR on 21, 22 and 24 November 2020, for which ZF was convicted on 23 December 2020.
3.On 24 - 27 January 2021 - an offence of breaching a FVRO committed by ZF against MR between 24 and 27 January 2021, for which ZF was convicted on 22 March 2022.
4.On 10 February 2021 - an offence of breaching a FVRO committed by ZF against MR on 10 February 2021, for which ZF was convicted on 22 March 2022.
5.On 8 February 2022 - an offence of breaching a FVRO committed by ZF against MR for which ZF was convicted on 22 March 2022.

The alleged offences

ZD also asserts they have suffered injury as a consequence of the following alleged offences:
1.19 August 2018 - an alleged offence of an unlawful assault committed by ZF against MR.
2.19 August 2018 - a second alleged offence of an unlawful assault committed by ZF against MR.
3.5 September 2018 - an alleged threat committed by ZF against MR.
4.September 2018 - an incident in which ZF raised a leather belt to MR, to threaten her, which led to MR being chased by ZF into her bedroom and then strangled by ZF.
5.25 December 2019 - an alleged incident where ZF overdosed in front of MR, who had to call an ambulance for ZF, and then later picked him up from the hospital.
With respect to each proved offence and alleged offence it is necessary to consider the detail of what occurred before determining whether the evidence establishes:
(a)with respect to the alleged offences, whether, on balance they have been proved;
(b)whether MR has suffered an injury in the relevant sense; and
(c)whether ZD suffered mental and nervous shock as a consequence of the commission of the offences and alleged offences against MR.

Details of the proved offences

(a) 19 October 2020 offence

On 22 March 2022 ZF was convicted at the Perth Magistrates Court of one count of unlawfully impeding MR's breathing or blood circulation by applying pressure to her neck on 19 October 2020, contrary to s 298(b) of the Criminal Code.
The amicus points out that there is not before the court the transcript of the proceedings for the proved offences; and nor are the Statements of Material Facts.
However with respect to the 19 October 2020 offence, the amicus also refers to the document entitled 'Narrative of the Information Report for Criminal Injuries Compensation [****** **** ****70]' and says the facts of the offending appears to be set out in that document, as follows:
29.1At about 10.30am on Monday 19 October 2020, [ZF] and MR were having an argument in their master bedroom about [ZF]'s behaviour from the previous night;
29.2The argument escalated and [ZF] pushed MR backward onto the bed, placed both his hands on MR's neck and applied pressure;
29.3[ZF] then placed his right forearm onto MR's throat and applied pressure to the throat for approximately 20 seconds;
29.4MR could not speak and had difficulty breathing. MR turned her head to the side to reduce pressure to her neck.
29.5[ZF] put his forehead to MR's forehead and applied downwards pressure whilst yelling at MR;
29.6[ZF] then stood up and MR sat up on the bed. [ZF] slapped MR multiple times lightly on both sides of the face with both hands and said to MR 'Well Done';
29.7[ZF] left the room. MR went to sit at the bus stop by the house. [ZF] followed MR outside telling her to get back in the house. MR walked across the road to [a] Medical Centre and [ZF] went back into the house;
29.8At about 11.39am, Police attended and spoke with MR at [a] Medical Centre;
29.9At about 12:10pm, Police arrested [ZF]. [ZF] made full admissions in an Audio-Visual Record of Interview. The explanation is recorded as 'she was saying things that set me off'.
The same information report says that MR sought refuge at a medical centre.
MR provided a 'Statement of Effects' to the assessor (MR's statement). Evidence about the facts of the proved and the alleged offences is contained in MR's statement. MR's statement she sets out her family, education and employment background. MR's statement also records how MR met ZF. MR's statement says ZF began suffering from mental illness in 2018 and started using drugs, abusing his medication and mixing his medication with alcohol. This, MR says, caused ZF to become violent towards her.
MR's statement refers specifically to nine incidents. These were each of the five proved offences, and alleged offences occurring on 19 August 2018, (twice) and 5 September 2018.
MR also made statements to the police dated 23 November 2020, 24 November 2020, 7 February 2021 and 10 February 2021. However, these statements do not provide any relevant evidence or information additional to MR's statement.
In MR's statement what is described as incident 4 is the proved offence which occurred on 19 October 2020 at the family home.
MR's statement says ZF had just come out of hospital and had been playing loud music all night and drinking. At about 9.30 am MR asked ZF why he was drinking and she told him she also knew he was taking drugs. ZF became angry and attacked MR. He pushed MR backwards onto the bed and pushed his forearm into her neck. MR feared she was going to pass out. However, ZF let go of her and she managed to escape from the bedroom. ZF followed her and lent forward, pushing his face against hers and began yelling and blaming her for the assault that had just occurred. MR asked ZF to leave the house, but he refused. MR tried to walk away from ZF but he stopped her and slapped her in the face. MR then managed to get away and left the house to attend a medical centre. As she did so she could hear ZF telling her to come back inside. MR feared that if she went back inside she would be physically abused. The police were contacted, and MR understood that ZF was charged and convicted with impeding another person's normal breathing or blood circulation by applying pressure to the neck.
ZD also provided a statement of effects to the assessor (ZD's statement). ZD's statement contains some information about the incidents and injuries suffered by MR.
Generally, ZD says they witnessed ZF physically assaulting MR on many occasions. ZD often saw marks, bruises and cuts on their mother's body. They heard MR scream out for help when ZF was strangling her.
ZD also says that on or about 19 October 2020 there was apparently an incident whilst they were at school. When they came home MR told them that ZF had been arrested. ZD remembered seeing red marks on the neck of MR a few days afterwards and a bruise on MR's neck where MR had said ZF had pushed his forearm into her neck.

(b) November 2020 offences

On 23 December 2020 at the Perth Magistrates Court ZF was convicted of three offences of breaching a FVRO contrary to s 61(1) of the Restraining Orders Act 1997 (WA) and three offences of breaching PBC contrary to s 51(2a) of the Bail Act 1982 (WA). The FVRO and the PBC were made made, in part, for the benefit of MR. The particulars of the breaches by ZF were:
(a)sending MR ten text messages on 21 November 2020;
(b)sending MR a text message on 22 November 2020; and
(c)sending MR three text messages on 24 November 2020.
The amicus makes substantially the same submission about the information before the court with respect to these convictions as for the 19 October 2020 offence.
However there is again before the court a document entitled 'Narrative of the Information Report for Criminal Injuries Compensation (****** **** ***52 and ****** **** ***07)'. This formed part of the papers before the assessor. The document contains what the amicus submits are 'likely to have been the facts admitted on sentence'. The contents of the document are summarised by the amicus as follows:
33.1[ZF] and MR had been separated since October 2020;
33.2On 19 October 2020, [ZF] was charged in relation to an incident where MR was assaulted;
33.3On 20 October 2020, [ZF] was released under protective bail conditions;
33.4On 24 October 2020, [ZF] was served with a Family Violence Restraining Order, the terms of which included that [ZF] was not to communicate or attempt to communicate with MR by any means whatsoever;
33.5On 21 November 2020 at 6.17am, [ZF] sent ten text messages to MR requesting assistance with a medical matter;
33.6On 22 November 2020 at 8:35pm, [ZF] sent a text message to MR apologising for the previous day;
33.7On 24 November 2020 at 10.57am, [ZF] sent three text messages to MR in relation to their shared mortgage and bank account;
33.8On 25 November 2020, [ZF] was arrested. He made full admissions to the offences.

In MR's statement there is information about these offences which are described as incident 5 and incident 6.
MR says the fifth incident occurred on 21 November 2020 at the family home. MR and ZF had by then been separated since October 2020. The FVRO had been taken out by MR against ZF. There were also PBC in place, in favour of MR. A condition of the FVRO was that ZF was not to contact MR through any means. On the day in question ZF texted MR 10 times in a row asking her to help with a medical matter.
The following day ZF texted MR apologising for contacting her the previous day and breaching the FVRO and PBC.
MR said she understood ZF was charged and convicted of two counts of breaching the FVRO and two counts of breaching the PBC.
MR describes incident 6 as occurring on 24 November 2020. ZF texted MR three times that day to ask about their shared mortgage and bank account. This was in breach of the terms of the FVRO and PBC. ZF was charged and convicted for the breaches.

(c) January 2021 offence

On 22 March 2022 ZF was convicted by the Perth Magistrates Court of breaching the FVRO by sending MR six text messages between 24 and 27 January 2021.
Again the amicus points out that neither the transcript of the hearing nor the statement of material facts is before the court. There is however the Narrative of Information Report for Criminal Injuries Compensation (****** **** ***26) which contains a statement of facts 'which are likely to reflect the facts admitted for the purposes of sentencing'. As summarised by the amicus, the document says:
36.1[ZF] was bound by a Family Violence Restraining Order, the terms of which included that [ZF] was not to communicate or attempt to communicate with MR by any means whatsoever;
36.2Between about 4.26am on 24 January 2021 and 10.01am on 27 January 2021, [ZF] sent six text messages to MR asking her to speak with him, requesting money and asking for access to an email account;
36.3On 11 February 2021, [ZF] was arrested and declined to participate in an electronic record of interview.
In MR's statement there is a description of what she calls incident 7. This occurred from 24 ‑ 27 January 2021. MR says ZF texted her six times including asking her to speak to him requesting money and access to an email account. This was again in breach of the FVRO.

(d) 10 February 2021 offence

On 22 March 2022 ZF was convicted by the Perth Magistrates Court of breaching the FVRO by sending MR an email.
The amicus again refers to the WAPOL Information Report for Criminal Injuries Compensation (****** **** ***07), which is summarised as follows:
38.1[ZF] was bound by a Family Violence Restraining Order, the terms of which included that [ZF] was not to communicate or attempt to communicate with MR by any means whatsoever;
38.2On 10 February 2021 at about 9.47am, [ZF] sent an email to MR from his personal email account. In the email [ZF] stated, 'Ok so I literally have nothing to loZe. You can have me put away, I don't care'. [ZF] pleaded with MR to send him $800 as well as requesting she give back his 'exact-science email';
38.3On 11 February 2021, [ZF] was arrested and declined to participate in an electronic record of interview.
MR's statement refers to this offence as incident 8. MR says ZF contacted her via email saying that he had 'nothing to lose'. He requested money and that MR give back his 'exact science email'. This was another breach of the terms of the FVRO and ZF was charged and convicted.

(e) 8 February 2022 offence

On 22 March 2022 ZF was convicted by the Perth Magistrates Court of breaching the FVRO on 8 February 2022.
The WAPOL Information Report for Criminal Injuries Compensation (****** **** ***63) contains what the amicus submits 'is likely to contain the statement of facts relied upon to sentence' ZF and is summarised as follows:
40.1[ZF] was bound by a Family Violence Restraining Order, the terms of which included that [ZF] was not to communicate or attempt to communicate with MR by any means whatsoever;
40.2On 8 February 2022 at about 9.15pm, [ZF] called MR on her mobile number and spoke to her for about 15 minutes;
40.3MR did not disconnect the call as [ZF] told her he was unwell and she was concerned for him;
40.4On 3 March 2022, [ZF] was arrested.
MR's statement refers to this offence as incident 9. MR says that in the evening, ZF called her and they spoke for 15 minutes on the telephone. ZF told MR he was unwell. As MR was worried about his health, she conversed with him. However, this conversation also breached the terms of the FVRO and ZF was charged and convicted.

Proof of alleged offences

With respect to the proof of alleged offences, I gratefully adopt the following summary of the law as set out by Egan DCJ in Re Harvey [104] - [115]:
104Where no conviction has been entered, the applicant for compensation bears the onus of proving the offence: Re Carter (1984) 4 SR (WA) 219 (Hammond DCJ); MES v KG (1995) 12 SR (WA) 330, 331 - 332 (Commissioner Clyne) and Re ATS [2017] WADC 92 [28] (Herron DCJ).
105That includes establishing to the requisite standard that the alleged offender had no defence to the allegation that he or she committed the offence: Green v Lee (1996) 17 SR (WA) 93, 97 (Wisbey DCJ) and Re ATS [2019] WADC 76 [28] (Davis DCJ).
106What is necessary to establish a matter on the balance of probabilities will vary according to the nature of what is sought to be established. In cases where criminal conduct is alleged, clear and cogent evidence will be required: Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297 ‑ 298 (Glass JA).
107Section 17(4)(a) of the CIC Act provides, in effect, that the court must not make a compensation award in respect of a s 17 application unless it is satisfied that the claimed injury and any claimed loss has occurred, and did so as a consequence of the commission of the alleged offence.
108Section 3 of the CIC Act defines the term 'satisfied' as meaning 'satisfied on the balance of probabilities'. The applicant bears the onus of proving, to the civil standard, that an alleged offence has occurred: See Re Robinson [2017] WADC 18 [10] (Troy DCJ); Martin v Martin [2015] WADC 138 [29] (Derrick DCJ); Re Jackamarra [13]; Re RW [2018] WADC 116 [17] (Vernon DCJ).
109Having regard to the definition of 'alleged offence' in s 3 of the CIC Act, this means that the applicant must satisfy the court, on the balance of probabilities 'that a specific act was committed against him or her which would qualify as a crime, misdemeanour or simple offence if the perpetrator had been convicted of it': Re Jackamarra [13].
110The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved; that is particularly so when criminal conduct is alleged: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 170 - 171 (Mason CJ, Brennan, Deane & Gaudron JJ); Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J).
111In the context of criminal injuries compensation, the Briginshaw approach has been applied regularly: Martin v Martin [30]; Re Jackamarra [73] - [74]; Re ATS [29], [141] (Herron DCJ).
112It is a serious matter to find that an alleged offender has committed an act in the nature of an offence, particularly where the alleged offender is not given the opportunity to refute those allegations: Re Jackamarra [71], [75].
113The court must feel an actual persuasion that the offence occurred, and 'such a conclusion should not be reached without the exercise of caution, and unless the evidence survives careful scrutiny and appears precise and not loose and inexact': Re ATS [29], [114] (Herron DCJ). See also Re RW [17].
114To discharge the burden, the evidence adduced by the applicant must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a matter of mere conjecture: Martin v Martin [30].
115Where an application for compensation is made under s 17 of the CIC Act, the court cannot award compensation if it is satisfied that the alleged offender is not criminally responsible for the alleged offence, unless the alleged offender was not criminally responsible due to unsoundness of mind: s 17(5) of the CIC Act; Re Robinson [69] - [70]. Thus, an applicant is also required to negative any defences reasonably open on the evidence: Re Robinson [22].
For each of the alleged offences, it is necessary therefore to consider the information and evidence before the court to assess whether the alleged offences can be established to have occurred on the balance of probabilities. I will consider each alleged offence in turn.

(a) Incident on 19 August 2018 - First incident

MR's statement describes what is called the first incident said to have occurred on 19 August 2018. MR says she got into an argument with ZF about his behaviour, in the family home. ZF became verbally aggressive and then lunged at MR, wrapping his hands around her neck. MR's throat was squeezed, and she began struggling and was unable to breath. ZR eventually let go. The police attended at the scene, but ZF had left. MR said she was too scared to make a full statement to the police.
ZD says that two or three days after 19 August 2018 they saw red marks around their mother's neck.
It is necessary to decide whether ZF committed a known offence by the actions, intentions and circumstances that are proved, on balance, to have occurred.
On balance and for the purposes of the appeal, I am satisfied that the events occurred as set out by MR and as supported to some extent by the information provided by ZD.
Although, as the amicus has submitted, the appellant did not allege a particular offence as having been committed against MR, the actions of ZF to MR constitute an offence under s 313 of the Criminal Code. The elements of this offence are that a person unlawfully assaulted another. 'Assault' is defined, relevantly in s 222 of the Criminal Code, as follows:
A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that person, and the act is called an assault.
The action of ZF to MR satisfy the definition of an assault. Accordingly I find on balance and for the purposes of the appeal that ZF committed the offence of assault against MR on 19 August 2018.

(b) Incident on 19 August 2018 - Second incident

MR's statement refers to a second incident on 19 August 2018, later in the day. MR said after the police had left the family home, ZF was 'DJing' outside the house. MR said ZF had been drinking all afternoon and began verbally abusing her and slapped her to the face. MR was scared of what ZF would do to her next but managed to leave the house. MR went to a nearby McDonalds and called the police. The police spoke to ZF and issued a 24-hour police order.
Based on the information contained in the statement of MR, which I accept, I find on balance and for the purposes of the appeal that ZF committed the offence of assault against MR, for a second time, on 19 August 2018.

(c) Incident on 5 September 2020

MR in her statement described incident 3 as having occurred on 5 September 2020. At that time ZF was being treated for a stomach condition at hospital. After he was discharged, MR was advised that ZF should only be taking medication once a day in the morning. When ZF asked for his medication upon returning home, MR said he could not have it until the morning. ZF became irritated, pointed a pocketknife at MR and said he would 'slice [her] face off'. MR was terrified and so told ZF to leave the house and called the police.
As submitted by the amicus, in their written submissions. The Information Report for Criminal Injuries Compensation (****** **** ***76) makes reference to s 338B of the Criminal Code, which makes it an offence to do anything mentioned in s 338(a) ‑ s 338(e).[22] Section 338 sets out the meaning of a threat and, relevantly, provides a definition in the following terms:
In this Chapter a reference to a threat is a reference to a statement or behaviour that expressly constitutes, or may reasonably be regarded as constituting, a threat to -
(a)kill, injure, endanger or harm any person, whether a particular person or not;
…
[22] Outline of submissions filed 8 December 2023, par 74.
Based on the information contained in the statement of MR, which I accept on balance, I find for the purposes of the appeal, that ZF committed the offence of making a threat to injure MR, contrary to s 338B of the Criminal Code.

(d) Incident on 25 December 2019

According to the statement of MR, ZF collapsed after everyone had gone to bed and then was taken to hospital by an ambulance, after 'drinking heavily all day and taking Xanax'. Additionally ZD in their statement of effects refers to a Christmas Day where ZF overdosed in front of her and she had to call an ambulance for him and then go and pick him up from the hospital.
As indicated in the submissions of the amicus, there is no other evidence before me which could assist in deciding whether Xanax had been prescribed to ZD and whether any offence had been committed by ZD as part of the 25 December 2019 incident.
Based upon the information before me therefore I do not find that, on balance, ZF committed any offence because of the incident on 25 December 2019.

Alleged offences - overall considerations

As identified earlier, to obtain compensation for the alleged offences it is necessary, as a first step, for ZD to prove, on balance, that they occurred. This is to be done in accordance with the principles and process described by Egan DCJ in Re Harvey, as quoted above. I have set out above my findings for the purposes of the appeal.
In this context it is relevant that the amicus did not seek to cross‑examine MR or question her credibility or reliability. I have assessed the evidence and information in the statement from MR to be credible and reliable. It is in consistent with the contemporary documents and as I have just said, not questioned by the amicus.

Jurisdictional limit revisited

Based on the above descriptions of the incidents described by MR, in my opinion, based on the reasoning in Stocker and McAllister, the two alleged assault offences that occurred on 19 August 2018 and the threat committed against MR on 5 September 2018, are not 'related for any other reason'. The same applies to the proved offences described as incident 4, that took place on 19 October 2020. With respect to the incidents described as incidents 5, 6, 7, 8 and 9, in my opinion they are 'related for any other reason'. They are so because each offence involves a breach of the same FVRO and PBC. Thus they are related. However because there are more than one offence and alleged offences that are not, in my opinion, related for any other reason, the jurisdictional limit is $150,000.

Injuries suffered by MR as a consequence of the proved and alleged offences

Following her description of the incidents, MR in her statement described in some detail the effects that the incidents had had on her life. MR said, she:
(a)Had been emotionally traumatised and had significant psychological injuries as a result of the incidents.
(b)Had suffered continuous throat infections as a result of the strangulation. They had become worse over time.
(c)Has ongoing problems with the muscles in her neck and shoulders and often sees a physiotherapist for pain relief.
(d)Suffers, together with her children, from complex post‑traumatic stress disorder (PTSD) and experiences flashbacks of the abuse which cause anxiety to spike.
(e)Fled the family home in September 2018, with her son, to stay at a neighbour's house for three days. This was after ZF threatened he would set fire to the house. ZF also once threatened to cut their dog's head off and said that if MR ever went to tell the police she would get 'shanked' or stabbed.
(f)Feels afraid in her home and is 'paranoid that [ZF] is in my home and will try to hurt me'.
(g)Suffers from recurring nightmares of ZF burning the house down with MR and her children inside; and ZF cutting off the dog's head.
(h)Requires medication to sleep.
(i)Is consumed by self-deprecating thoughts; wondering if she had done something differently or made ZF happier then she and her children would not have gone through this.
(j)Fears the return, as does her children. This is made worse because they feel isolated.
(k)Has changed from being happy and confident to avoiding social settings and lacking self‑esteem.
(l)Now suffers from depression which she had not experienced before the incidents.
(m)Finds it hard to trust people, especially men and do not let them get close to her because of her vulnerability. Accordingly, she has not been able to have any close romantic relationships.
(n)Has financial hardship, which could have been partially alleviated if she had taken a promotion opportunity with her employer. MR said she could not accept this due to the terms of the FVRO and the presence of ZF in the CBD.
Not all of the above describe an 'injury' as defined in the Act, but are included for completeness.
These are also other documents which provide evidence and information about the injuries allegedly suffered by MR, as a consequence of the proved and alleged offences, being:
1.A clinical psychologist report by Mr Jason Haddad about MR dated 24 May 2022.[23]
2.Statements to the police made by MR dated 23 November 2020, 24 November 2020, 7 February 2021 and 10 February 2021.
3.ZD's statement.
[23] This document was not contained within the Book of Documents but was provided to me by counsel for the appellant at the hearing of the appeal without objection by the amicus curiae.

Mr Haddad's report about MR

The report of Mr Haddad sets out each of the incidents as reported to him and then provides his assessment. Mr Haddad said he met with MR on 16 May 2022 and had viewed an information report from the police dated 7 April 2022. This report mentioned incidents between 3 January 2021 and 27 January 2021. Mr Haddad also viewed a statement of support from a friend of MR, CF.[24]
[24] Anonymised initials.
Mr Haddad said in his opinion MR has worsened in her mental health as a result of the cumulative effects of the incidents. Mr Haddad said that over the latter years of their relationship, MR had lived in fear of how ZF would behave and respond towards her and their children. Mr Haddad said the emotional and physical abuse suffered by MR resulted in a decline in her overall wellbeing.
Mr Haddad said that MR also suffered repeated throat infections as a result of the strangulations she endured. He reported that at various times MR also had pain in her neck and shoulders from the assaults.
Mr Haddad also said that for the duration of the incidents, MR reported psychological injuries of low mood on most of every day, feeling hopeless about her life and doubting her future; experienced flashbacks of the assaults; hypervigilance to and anxiousness about the noise around her; being more isolated from others than she used to be; and a significant change in sleep patterns and the quality of her sleep including having nightmares about what ZF might do to her.

Mr Haddad said that MR had remained anxious and hypervigilant, tired and withdrawn.
Mr Haddad also said that MR 'would meet' the DSM-5[25] criteria for persistent depressive disorder with anxious distress. This diagnosis was based upon the reported length of her symptoms, being for more than two years, and her presentation during interview.
[25] American Psychiatric Association, 'Diagnostic and Statistical Manual of Mental Disorders DSM‑5' (5^th ed, 2013).
Mr Haddad also said MR suffered from an excess of mental and nervous shock as a result of the incidents.
The opinion of Mr Haddad was that the cumulative effect of years of emotional and physical abuse led to MR's present psychological condition. He said there did not appear to be any other factors beside the incidents listed which led to her poor mental health. MR was taking medication for anxiety and low mood. Mr Haddad also referred to MR having received counselling in the past and re-engaging again with counselling in 2022.
The amicus submitted that, generally, diagnoses of mental disorders should be made by a psychiatrist, rather than a clinical psychologist. It was also submitted that having regard to s 18 of the Act, if a psychologist rather than a psychiatrist provides an opinion on a medical matter such as the diagnosis of a mental disorder, a relevant question when assessing the evidence is whether any weight should be attached to the psychologist's evidence.[26]
[26] Re Warrek [2019] WADC 50 [31].
With respect, in my opinion, that submission over-simplifies the position about the receipt of and weight to be given by a court to evidence from a psychologist.
BAS v The Estate of NAS (dec)[27] involved an application for compensation under the Criminal Injuries (Compensation) Act 1970 (WA). The Court of Appeal allowed an appeal against the dismissal of the application by a judge of the District Court. One of the grounds of appeal was that the judge had not taken into account all of the evidence in making his decision. The evidence had included a report from Mr Cohen, a clinical psychologist. Mr Cohen's report set out the symptoms which the appellant had described to him and concluded that they disclosed PTSD and clinical depression.[28] The court said Mr Cohen reported the appellant had completed the Beck Depression Inventory and the Impact of Events Scale. These tests indicated a woman who was clinically depressed[29] and who was severely affected on a day‑to‑day basis by sexual assault.
[27] BAS v The Estate of NAS (dec) [2000] WASCA 270; cited by the amicus curiae.
[28] BAS v The Estate of NAS (dec) [20].
[29] BAS v The Estate of NAS (dec) [21].
The Court of Appeal said the report of Mr Cohen had not been objected to at the hearing and Mr Cohen was not required to attend for cross‑examination.[30] The court also said Mr Cohen's evidence generally should be treated as expert opinion supporting the appellant's claim that she had suffered serious sexual abuse over a long period. The court said it was an opinion formed not just upon what the appellant told Mr Cohen but upon the results of the clinical tests he conducted. The court emphasised there was no challenge to the validity of the tests. It was not suggested the tests were unreliable or inappropriate or they lacked acceptance in the field. The Court of Appeal said Mr Cohen's conclusions were not contradicted by other evidence. The Court of Appeal said the judge was not entitled to ignore Mr Cohen's evidence as his Honour had appeared to have done. The court concluded that on the face of it 'Mr Cohen's opinion was important evidence probative of the appellant's case and it therefore demanded consideration in the adjudication of her application'.[31]
[30] BAS v The Estate of NAS (dec) [30].
[31] BAS v The Estate of NAS (dec) [42].
The decision is therefore authority for the proposition that the evidence of a psychologist can and sometimes must be taken into account as important evidence, in the assessment of a criminal injuries compensation claim.
A decision which is consistent with this proportion in R v Bassi.[32] Bassi was an appeal against sentencing where counsel at first instance had sought to tender a report by a psychologist. The sentencing judge refused the tender on the basis that the psychologist could not diagnose Attention Deficit Hyperactivity Disorder and depression. The Court of Appeal considered in some detail the issue of the acceptance by a court of opinions expressed by a psychologist as opposed to a psychiatrist. The court made the following points:[33]
[32] R v Bassi [2021] QCA 250; (2021) 9 QR 522 (Bassi).
[33] Bassi [55] - [66].
(a)The admissibility of expert opinion evidence about a person's mental state was controversial until 1965, when it was decided that medical evidence could be led to show that a witness had a mental illness affecting the reliability of the evidence given by that witness.
(b)In an English case, in 1981, it was decided that the evidence of a psychologist, who had 'no medical qualifications' was not medical evidence, and was not admissible.
(c)This kind of a priori determination about the admissibility of evidence of psychologists as experts has been followed in Australia in decisions such as Klimoski v Water Authority of Western Australia[34] and R v Kucma.[35]
(d)However, evidence of a diagnosis by a psychologist has also been admitted in numerous cases, including in Queensland. The court cited: Trudgett v Commonwealth of Australia,[36] (PTSD); R v SCZ,[37] (PTSD and major depressive disorder); R v Nguyen,[38] (untreated major depressive disorder); R v Runjanjic,[39] (battered woman syndrome); R v Forde,[40] (neurotic personality); Caldwell v Caldwell,[41] (PTSD); and Director of Public Prosecutions (Vic) v Sokaluk,[42] (autism spectrum disorder).
(e)The question of whether evidence of a psychologist's diagnosis is admissible as expert evidence has to be decided on a case‑by‑case basis and, in general, it will not be open for a judge to conclude that evidence of that kind is inadmissible just because it is to be given by a psychologist rather than by a psychiatrist.
(f)The admissibility of the evidence will depend entirely upon the result of the application of the established principles for the determination of the admissibility of expert evidence and the admissibility of such evidence is a question of fact.
(g)In support of this contention, the court cited Nepi v Northern Territory[43] and R v Whitbread.[44] In Whitbread, Hampel J after referring to several reference works which demonstrated an overlap between the fields of study of psychologists and psychiatrists, said:[45]
It is, I think, common knowledge and experience that some psychologists have a greater knowledge and qualifications in the science which is concerned with the mental states and processes of the mind than some psychiatrists. Once the question of medical treatment of mental illness is put to one side there is no reason why a psychologist may not be just as qualified or better qualified than a psychiatrist to express opinions about mental states and processes. ...
[34] Klimoski v Water Authority of Western Australia (1989) 5 SR (WA) 148.
[35] R v Kucma [2005] VSCA 58; (2005) 11 VR 472.
[36] Trudgett v Commonwealth of Australia [2006] NSWSC 575 (Bell J).
[37] R v SCZ [2018] QCA 81 (Morrison & Philippides JJA; Davis J).
[38] R v Nguyen [2015] QCA 205 (Fraser & Gotterson JJA; Dalton J).
[39] R v Runjanjic (1991) 56 SASR 114 (King CJ, Legoe & Bollen JJ).
[40] R v Forde (1986) 19 A Crim R 1.
[41] Caldwell v Caldwell [1996] NSWCA 88.
[42] Director of Public Prosecutions (Vic) v Sokaluk [2013] VSCA 48.
[43] Nepi v Northern Territory [1997] NTSC 153.
[44] R v Whitbread (1995) 78 A Crim R 452 (Whitbread).
[45] R v Whitbread (460) - (461).
The issue of the admissibility of evidence from psychologists was also discussed in a presentation on 15 November 2022 to a Legalwise Criminal CLE by Judge Smith, a Judge Administrator of the District Court of Queensland. His Honour referred to a reservation by one judge, about the ability of psychologists as distinct from psychiatrists, to diagnose mental health conditions. However, Judge Smith said that 'the issue was put to bed' in Bassi.[46] Judge Smith also referred to other decisions of the Court of Appeal in Queensland[47] which had admitted psychologists' reports, which said that a person had symptoms consistent with PTSD and a major depressive disorder.[48]
[46] R v Bassi [39].
[47] R v Bassi [43] - [44].
[48] R v SCZ; R v Nguyen.
There is also the publication of the speaking notes of Justice Burns of the Supreme Court of Queensland from a presentation to a Criminal Law Continuing Professional Development Seminar on 24 April 2022, entitled 'The Use of Psychiatric and Psychological Evidence on Sentence'. The speaking notes said:[49]
10.A view has sometimes been expressed that psychologists are not qualified to express a diagnostic opinion about an offender's mental state because that requires the expression of a medical opinion: see, e.g., R v MacKenney (1981) 76 Cr App R 271, 274‑275; Klimoski v Water Authority of Western Australia (1989) 5 SR (WA) 148; R v Kucma (2005) 11 VR 472, [26]. On the other hand, there are numerous case where diagnostic evidence from psychologists has been received: see, eg (e.g., R v Nguyen [2015] QCA 205; R v SCZ [2018] QCA 81). There is however no longer any room for debate because the Court of Appeal recently affirmed that the admissibility of such evidence will depend entirely on an application of the established principles for the determination of the admissibility of expert evidence: R v Bassi [2021] QCA 250, [61]. Those principles are well-known: Clark v Ryan (1960) 103 CLR 486, 491; Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705, [85]. As such, the 'question whether evidence of a psychologist's diagnosis is admissible as expert evidence has to be decided on a case-by-case basis and, in general, it will not be open for a judge to conclude that evidence of that kind is inadmissible just because it is to be given by a psychologist rather than by a psychiatrist': R v Bassi [2021] QCA 250, [61].
11.Of course, to be admissible, there must be an opinion expressed within the witness' specialised field of knowledge. A psychologist who churns out what in reality is not much more than a statement of the offender's antecedents expresses no admissible opinion at all.
12.In the same vein, where the relevant expert opinion is based on, or substantially on, the offender's own account without any supporting evidence, caution may be required: R v Peisley (1990) 54 A Crim R 42, 52; R v Qutami (2001) 127 A Crim R 369, [58]‑[59]; R v Palu (2002) 134 A Crim R 174, [40]-[42]. As a general proposition, the weight given to such opinions could be significantly eroded unless supported by clinical testing or other evidence independent of the offender. …
[49] Burns J, 'The Use of Psychiatric and Psychological Evidence on Sentence' (Criminal Law Continuing Professional Development Seminar, 24 April 2022), pars 10 - 12.
In my opinion consistently with the decision of the Court of Appeal in BAS v The Estate of NAS (dec), the issue of the admissibility of evidence by a psychologist in a criminal injuries compensation appeal should be dealt with in line with the general principles outlined in Bassi and as discussed in the papers just referred to.[50]
[50] And see also the reasons of Egan DCJ in Re Harvey [186].
In the present case Mr Haddad's report said he had worked as a clinical psychologist for 14 years. He has degrees of BA Hons and an MA in clinical psychology. Mr Haddad is also registered with the Psychologists Board of Australia and Australian Psychology Society.
Mr Haddad's report said that he was working in a private capacity with teenagers and adults 'across the spectrum' and had previously worked for a number of years in the public sector in Western Australia.
It is clear and not surprising that the report was based in part on information received from MR about, for example, the incidents of which Mr Haddad was informed.
In the section of his report headed 'Assessments', Mr Haddad referred to a mental status exam, the Beck Anxiety Inventory, the Beck Depression Inventory-II and a PTSD checklist contained in DSM-5.
Mr Haddad said that the Beck Anxiety Inventory score of MR had a severe level of anxiety.
Mr Haddad said the Beck Depression Inventory-II indicated a severe level of depression for MR.
With respect to the PTSD checklist, Mr Haddad said the score indicated that MR would be likely to meet the threshold of a diagnosis of PTSD however he said further clinical review and investigation would need to confirm that diagnosis.
Mr Haddad said in his report that he was asked whether in his opinion MR suffered from or suffers from mental and nervous shock as required under the Act. Mr Haddad said MR would meet the DSM‑5 criteria for persistent depressive disorder with anxious distress.
Mr Haddad also referred to the report from MR that she had not suffered mental health difficulties prior to the incidents in question, apart from a grief related depression experienced in her mid-teenage years after her father's death.
Mr Haddad also gave his opinion on MR's psychological injuries as a result of the incidents.
In my opinion, given the qualifications and experience of Mr Haddad and the stated basis of his opinions, including by reference to the tests I have referred to, I should receive and give weight to the opinions expressed in his report about MR.
Accordingly based upon that evidence and also the evidence from MR herself and quoted above, I am satisfied that she has suffered mental or nervous shock, as defined in the Act.[51]
[51] S v Neumann (461); M v J (10) ‑ (11) (Scott J); Martin [85].
In my opinion, it is immaterial that it cannot be established which of the injuries that MR has suffered or her mental or nervous shock, is caused by specific incidents and offences in which she was the victim. It is unrealistic to expect that such correspondence can be proved. In cases of ongoing physical, emotional or sexual abuse, which manifests in offences for which a respondent has been convicted and offences for which a respondent has not been convicted, the injuries suffered as a consequence of the offences are likely to be from a combination or accumulation from the offending against the victim.
For the reasons set out above, I find that MR suffered, as the primary victim, an injury as a consequence of offences or alleged offences. Condition (a), referred to above, has been met.

Condition (b)

As set out earlier, for this condition to be established, ZD must prove they have the status described in either s 34(2)(c) or s 34(2)(e).
It is necessary only to refer to s 34(2)(e).
Immediately before the offences and alleged offences were committed ZD and SR were the children of MR and therefore close relatives of MR as defined in s 4(1)(c) of the Act. Additionally, the materials as a whole establish that ZD and SR were both living with MR in the family home at the relevant time.
As a consequence condition (b) has been met.

Condition (c) - Did ZD suffer an injury?

The next issue to determine is condition (c) above; that is whether ZD suffered from mental and nervous shock as a consequence of the proved and alleged offences committed against MR.
An applicant must establish a causal relationship between the commission of the relevant offences and the injury or loss for which compensation is sought.[52]
[52] S v Neumann [463]; Re AK [2016] WADC 156 [71]; Martin [82].
It is therefore sufficient for an applicant to establish as a matter of ordinary common sense and experience that the proved offences and the alleged offences materially contributed to any injury or loss. An offence or alleged offence in question need not be the sole cause of injury.[53]
[53] EB v Ramljak [36]; March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515; Lyle v SOC [2009] WASCA 3 [40]; (2009) 38 WAR 418; Underwood [87]; S v Neumann (463), (464); Martin [83].
The determination of whether a requisite causal connection exists is a question of fact to be resolved as a matter of common sense.[54] This is consistent with the assessment of damages in torts.
[54] Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412, 413; Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673; Underwood; EB v Ramljak [136].
As submitted by the amicus, the offence or the alleged offence which are the subject of the application do not need to be the sole cause of an injury to be compensable. If it is not possible to disentangle the consequences of a non‑compensable event from the consequences of a compensable event, it is sufficient for an applicant to establish, as a matter of ordinary common sense and experience, that the offence and the alleged offence materially contributed to any injury or loss.[55]
[55] EB v Ramljak [36]; March v E & MH Stramare Pty Ltd (515); Lyle v SOC [40]; Underwood [87]; S v Neumann (463) - (464); Martin.
The statement of ZD refers in some detail to his experiences living in a household where ZF engaged in an erratic and violent way towards ZD, his sibling and mother ZD said in or around 2018, the environment at home became worse because ZF became physically violent and abusive. ZD describes witnessing assaults of MR by ZF and the injuries suffered by MR because of these assaults, or seeing them after being told about assaults by MR. ZD described in detail the behaviour engaged in by ZD over the relevant period.
ZD described in his statement, in detail, the effect of the incidents, as follows:
49.The incidents have greatly impacted my life. I have been emotionally traumatised and have suffered significant psychological injuries as a result of the incidents.
50.I have become extremely depressed and anxious. I am currently taking Anxiety medication called Propranolol.
51.I have PTSD and I cannot go to certain places or see or hear certain things.
52.I have memory loss due to depression, lack of concentration and disinterest in life which greatly affected my school and work.
53.I have been in and out of Therapy since year nine (9).
54.I had a 'chill out card' from school when I was in year ten (10) so I could leave class due to anxiety and I was always upset or crying.
55.I had trouble staying in classes, I would often go to School late or was skipping classes. My grades also dropped drastically in year ten (10).
56.I began cutting myself because I could not cope with all the mental pain I felt.
57.I had a lot of suicidal thoughts and I have tried to kill myself.
58.I was so depressed and suicidal that I did not think I was going to live past the age of fifteen (15). I was crying almost every day and night.
59.My anxiety was so bad that I would have panic attacks almost every day. My anxiety has also come back now and when I go out clubbing or with my friends I sometimes physically throw up.
60.I was not eating because I felt sick all the time and I had developed an eating disorder. I only started getting better the last two (2) years.
61.I find it difficult to sleep at night and I have nightmares. I have been taking sleeping medication called Melatonin to sleep and I cannot sleep without it. I have been taking the medication since year ten (10).
62.The trauma and depression have caused me to dissociate. I used to do it a lot when I was in year nine (9) and year ten (10).
63.It is less frequent now, but it happens while I am driving, when I go out with friends to places or when I have panic attacks.
64.The trauma caused by the incidents have suppressed memories and traumatic events and I have trouble remembering things that have happened.
65.I have been struggling to deal with all the trauma that Toby has caused me and this has affected my relationships and friendships in my life.
66.I am mentally and physically exhausted and drained from the incidents that have occurred and from the ongoing incidents.

ZD, in these paragraphs describes effects that are, at least in part, injuries under the Act.
Mr Haddad, in his report, said that ZD had suffered from mental and nervous shock as a result of the incidents he listed.[56]
[56] These were the incidents of the offending and alleged offending of which evidence and information has been given to the court, as set out above.
I have earlier referred to the issue of Mr Haddad as a psychologist giving evidence to the court. For the reasons earlier expressed I give weight to the opinion of Mr Haddad. Mr Haddad's opinions are relevant to the issues of the injury suffered by ZD and the causation issue. In his first report about ZD Mr Haddad says that he carried out assessments by way of the Beck Anxiety Inventory and the Beck Depression Inventory. ZD's score under those inventories indicated a severe level of anxiety and a moderate level of depression, respectively. With respect to a diagnosis for PTSD pursuant to DSM5, Mr Haddad opined that ZD would be likely to meet the threshold for a diagnosis of PTSD but further clinical review and investigation would need to occur to confirm PTSD as a primary diagnosis.
Mr Haddad said that ZD's mental health difficulties developed across their formative years when they lived in an environment of family domestic abuse. He also said that ZD has experienced poor mental health as a result of the cumulative effects of the incidents witnessed and experienced, as detailed in ZD's statement. These are the incidents comprising the offences and alleged offences. In response to a question from the solicitors for ZD about the psychological conditions that are attributable to the incidents of witnessing domestic violence as described, Mr Haddad said that ZD's mental health difficulties were 'undoubtedly' as a result of witnessing domestic violence across the duration of their life. Mr Haddad said that even prior to ZF becoming consistently violent he was reported to be emotionally denigrating of ZD and the other family members. This is also referred to in ZD's statement.
It was also reported by Mr Haddad that ZD was likely to have a genetic vulnerability to some form of mental health condition based upon ZF's mental health issues. Mr Haddad also said that ZD was unlikely to have developed resilience like the 'next child' might. They did not grow up in an emotionally safe home due to ZF's behaviour and had not as a result developed emotional coping tools as a child and a young person. Mr Haddad said that ZD also internalised their fear and manifested this psychologically, for example, through the development of an eating disorder.
I am satisfied, on balance, on the basis of the evidence identified that ZD suffered injury as a consequence of the offending and alleged offending, in the terms described above. This is because, on the basis of the evidence, I am satisfied the proved offences and unproven offences materially contributed to ZD's mental health conditions. These conditions are, I find, 'mental and nervous shock' within the meaning of that expression, as set out earlier. Therefore, ZD has a compensable 'injury' under the Act.
The following documents are relevant to these issues:
(a)ZD's mental health care plan dated 13 March 2019 in which the referring general practitioner makes a diagnosis of mixed anxiety, depression and adjustment disorder.
(b)ZD's patient health summary from a medical centre, including a document dated 3 March 2021 which says ZD suffered from mixed anxiety and depression.
(c)The Head Space records of ZD for the period 30 March 2020 to 10 December 2021 which contain a number of entries about mental health conditions between 5 November 2020 and 10 December 2021.
(d)ZD's statement dated 27 June 2022.
(e)A report from Mr Haddad dated 4 July 2022.
(f)A supplementary report by Mr Haddad dated 23 October 2023, in response to questions asked by the solicitors for ZD.
In assessing compensation, the court needs to consider whether the claimed injury or loss was caused or contributed to by any pre‑existing physical or psychological injuries and the extent to which the claimant may have failed to mitigate their loss.
However s 41 of the Act also provides that in determining the amount of an award of compensation the court must have regard to, relevantly, any condition or disposition of an applicant which contributed, directly or indirectly, to the injuries suffered by an applicant and reduce the amount which would otherwise be awarded by such percentage as is thought just.
As the touchstone of any reduction of the amount to be awarded under s 41 is what is 'just', any reduction involves the exercise by the court of a discretion.[57]
[57] McDavitt v McDavitt [No 2] [2013] WADC 198 [53].
Although there are conflicting decisions as to the meaning of s 41 of the Act, in my opinion the preferable construction of s 41, consistent with the language used, is that where pre‑existing injuries and medical conditions have contributed to or exacerbated the injury of an applicant, that must be taken into account.[58] Having done so, however, the court may, not must exercise a discretion under s 41 to reduce the amount of compensation that would otherwise have been awarded.
[58] Underwood [128]; McDavitt v McDavitt[No 2] [34].
As set out above, Mr Haddad said ZD was likely to have a genetic vulnerability to some form of mental health condition, based upon ZF's mental health issues and ZD's mental health difficulties were developed across their formative years when they lived in an environment of family domestic violence. Accordingly ZD was unlikely to have developed resilience and had a lack of emotional tools as a result of not growing up in an emotionally safe home. Mr Haddad does not comment on the degree to which these factors may have contributed to ZD's injury. It may be that this would be a difficult bordering on and impossible exercise.
The amicus did not submit that there was other evidence available on this issue or that the court should receive other evidence on the issue.
In all of the circumstances, I am not satisfied that I should exercise my discretion to reduce the amount which I would otherwise award to ZD, under s 41 of the Act. This is because at least, as a matter of discretion, I do not think it would be just to reduce the amount which would otherwise be awarded to ZD in circumstances where it was ZF's actions which caused the environment of family domestic violence, so that ZD could not grow up in an emotionally safe home, or that ZD may have a genetic disposition to having mental health problems, because their father is ZF.

Conclusion on s 35(2) of the Act

Based upon the above analysis the court may award compensation to ZD, because of the injury of their mental and nervous shock. This is because of the proof of conditions (a), (b) and (c), identified above.
As set out earlier, the main issue now is to decide whether and to what extent ZD should be compensated for future loss of earning capacity.

Compensation and loss of earning capacity

To re-state, due to the injury suffered by ZD as a consequence of the offences and alleged offences, they are entitled to an award of compensation. The award of compensation can include payments for losses that include any past and future loss of earnings, past medical expenses and future medical treatment.[59]
[59] Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 16; Tynan v Minister for Health [2011] WADC 228. Section 6(2)(c) of the Act in defining loss says that it includes 'loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim …'.
The expression 'loss of earnings' has been held to include a loss of earning capacity.[60]
[60] See Medlin v The State Government Insurance Commission (16) cited above (McHugh J) and Kittelty v Davies [2011] WADC 1 [228] (Kittelty) and A v D (1994) 11 WAR 481, 495 (Nicholson & Ipp JJ agreeing).
Also as stated by Lemonis DCJ (as his Honour then was) in Madigan v XYZ:[61]
However, in respect of the assessment of future loss of earnings, that by its very nature considers matters from a prospective perspective, taking account of historical performance, both prior to and post the offending behaviour.
[61] Madigan v XYZ [2022] WADC 123 [24].
As stated in Husher v Husher,[62] it is only possible to assess the sum that should be paid to an applicant to put them in the same position as they would have been if an injury had not been sustained, after there has been identification of both the capacity that has been lost and the economic consequences that will probably follow from the loss. In doing that analysis, what a claimant earned in the past may provide useful guidance about what they would have earned if they have not been injured.[63]
[62] Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, 143 [7].
[63] See Husher v Husher [8]; Kittely [229].
Accordingly, there are inherent difficulties in assessing the future loss of earnings of children or young people who do not have an established working history. This applies to the appellant. ZD was born on 25 March 2004. The offending and alleged offending occurred between August 2019 and February 2022. That is, when ZD was aged between 15 and 17 years old. ZD is now only 19 years old, nearly 20. The author of Assessment of Damages for Personal Injury and Death[64] (Luntz) makes the following relevant points:
(a)It can be extraordinarily difficult to estimate what the future earnings of children would have been if they had not been injured.
(b)Future loss of earning capacity is usually calculated by using, amongst other matters, the estimated lost earnings in a certain period and the estimated number of years that the applicant would have worked but for the injury.
(c)However in many cases in which the plaintiff is a child or otherwise has had no or insufficient pre‑injury employment history, the court does not enter into such calculations, but award instead what is called a global, buffer or cushion in which it attempts to place a value directly on the future loss of earning capacity.
(d)However a court is neither required nor permitted to make a 'buffer' award where a more precise calculation of the future loss of earning capacity is possible or no loss has been established. Any buffer which is awarded must have a rational basis.
[64] Luntz H, Assessment of Damages for Personal Injury and Death (5^th ed, 2021) [6.3.4] - [6.3.5].
In a footnote to the last point made the cases cited included Westrac Equipment Pty Ltd v King[65] in which the Court of Appeal of Western Australia said a trial judge had awarded a global amount of damages without adequate reasoning.
[65] Westrac Equipment Pty Ltd v King [2004] WASCA 188 [29] - [30].
The authors of Luntz also cite the decision of New South Wales v Moss.[66] In that case, Heydon JA said: '… the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum'.
[66] New South Wales v Moss [2000] NSWCA 133 [72]; (2000) 54 NSWLR 536 (Heydon JA).
In the decision of the Court of Appeal of New South Wales in Chen by her tutor Huang v Kmart Australia Ltd,[67] the court decided an appeal against an award of damages to a 6-year-old child in a negligence action. The primary judge awarded a buffer sum of $5,000 for future economic loss, from a form of loss of earning capacity. On appeal it was argued that the amount allowed was too low. However the court said there was no dispute that an award of future economic loss could be made by way of a buffer,[68] citing Penrith City Council v Parks.[69]
[67] Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96.
[68] Chen by her tutor Huang v Kmart Australia Ltd [44].
[69] Penrith City Council v Parks [2004] NSWCA 201 [5], [10], [58].
The Court of Appeal also said:[70]
… Neither the primary judge's assessment nor any alternative figure is capable of reasoned explanation as to why that figure, or some other figure, should be adopted. It is a matter of intuition. No error of reasoning on the part of the primary judge is demonstrated. Being a matter of intuition, or guesswork, the scope for appellate intervention is limited …
[70] Chen by her tutor Huang v Kmart Australia Ltd [51].
The court decided that although the trial judge's award of $5,000 for future economic loss was low, it was not outside a reasonable range so as to connote error.[71]
[71] See also Allianz Australia Insurance Ltd v Kerr [2012] NSWSA 13; (2012) 83 NSWLR 302 and reference to an article by Ger C, 'Coulda, shoulda, woulda' Assessing Lost Earning Capacity in Children, Precedent (Sydney, NSW) (Issue 124, September 2014).
The amicus referred to the case of EB v Ramljak where Whitby DCJ awarded an amount of $20,000 for loss of earning capacity when the appellant was 16 years old at the time of the offences and not permanently employed. The appellant had not provided any evidence to support loss of earnings or earning capacity. Her Honour considered that any award for loss of earning capacity would be imprecise and a matter of impression.[72]
[72] EB v Ramljak [53] - [56].
Counsel for ZD argued their compensation in total should be $150,000.
Relevantly, ZD's statement refers to their difficulties in schooling. As reported to Mr Haddad, ZD experienced some social difficulties at school, including bullying, which led to some school absenteeism. However Mr Haddad in his report dated 23 October 2023 said that school records 'indicate a steady decline in [their] attendance, most notably from Semester 2 of 2017'. That being the case, as submitted by the amicus, these absentees could not have been as a consequence of the later offences and alleged offences.
ZD completed their Year 12 studies in 2021. Their grades were an 'A' in English, an 'A' in Health Studies and 'C' in Mathematics Essential. ZD also received a Certificate II in Business, Certificate II in Population Health, Certificate II in Hospitality and was awarded a Year 12 merit certificate.
As reported by Mr Haddad, in addition to the schooling engaged in by ZD in Year 12, they also maintained casual employment at a fast‑food outlet.
In his supplementary report Mr Haddad said the psychological injuries suffered by ZD have had an impact upon their school attendance and performance and the psychological injuries have slowed down ZD's academic progress.
The solicitors for ZD also provided what was called an Assessment of Economic Loss Report. This was prepared by Mr Andrew Hook and dated 14 November 2023. Mr Hook is described as being a vocational counsellor, labour market researcher and rehabilitation consultant. His qualifications, relevantly, are a BSC (Rehabilitation Counselling) and a Diploma in Management. Mr Hook is also a WorkCover approved RTW coordinator.
The amicus did not make submissions to suggest I should question the admissibility or weight of Mr Hook's report.
In preparing his report Mr Hook said he conducted an assessment interview with ZD via Zoom and had regard to the reports of Mr Haddad.
Mr Hook said ZD was currently demonstrating a capacity to work full‑time hours and that the impact of the incidents would appear to be for the most part temporary and started to stabilise in early 2022. Mr Hook said the impact upon ZD of the offences and alleged offences appeared likely to be a three to four-year delay in their entry into employment as a physiotherapist. Mr Hook said the difference in earning between ZD's current work and an entry level physiotherapist was approximately $670 per week. Mr Hook said the impact on earnings, resulting from a delay in seeking employment as a qualified physiotherapist was likely to be at least $35,000 per year for three to four years.
Mr Hook said that ZD had been interested in pursuing a career as a physiotherapist before they suffered injury. However, because they did not study ATAR subjects at school, ZD was unable to study physiotherapy at a university and had to consider vocational education courses. Instead ZD then completed a Certificate III in Allied Health Assistance and a Certificate IV in Allied Health Assistance (Physiotherapy). On graduating with those qualifications in December 2022, ZD secured employment as a personal care attendant with a community care provider.
However, Mr Hook at page 21 of his report says that ZD
reported [they retain] the goal of enrolling in a Bachelor of Science (Physiotherapy)'. Mr Hook then said that if not for the injury ZD is of the opinion [they] would be studying at university, ideally a Bachelor of Science (Physiotherapy) and/or an undergraduate degree that would have allowed [them] to transfer to [their] occupational goal of becoming a physiotherapist. As a result of [their] injury [ZD] has been delayed in starting university study. At a minimum by not obtaining an ATAR at high school, [their] enrolment has been delayed by at least three years. Best case scenario is [ZD] is accepted into a uni-ready enabling programme in March 2024. Best case scenario would see [ZD] commencing university study in March 2025.
It is on this basis that Mr Hook provides his opinion that there has been a delay in commencing university study because of the impact on ZD of their injury. It is also on this basis that Mr Hook states the impact on the earnings of ZD resulting from the delay in being able to seek employment as a qualified physiotherapist, is likely to be at least $35,000 for three to four years. Mr Hook says he has not 'attempted to quantify the impact over the course of [their] career of entering the field of physiotherapy 3 - 4 years later than [they] might have had the incidents not occurred'. Mr Hook also refers to the 'financial impact of cost of training'. Mr Hook says that as a consequence of their injuries, ZD has completed three additional courses they may not have needed to complete in order to reach their occupational goal of being a physiotherapist. However Mr Hook said he is unable to quantify these costs.
With respect, Mr Hook's opinions are based upon a number of assumptions and in part upon taking at face value ZD's assessment of what they could and would have done but for the injury.
Mr Hook's report does not, for example, consider the possibilities of ZD not gaining the school marks, if ATAR subjects were taken, to have been accepted into and then passing a physiotherapy course and gaining employment in that field, if they had not suffered injury as a consequence of the proved and alleged offences. Further, Mr Hook does in his report refer to other future contingencies. As stated by, for example, Newnes JA in Brocx v Mounsey[73] and Burrows DCJ in Tristram‑Howard v Morris Corporation (Aust) Pty Ltd,[74] the usual adverse contingencies which are taken into account as having the potential to effect future earning capacity are sickness, accident, unemployment and industrial disputes. In Brocx, Newnes JA said:[75]
In Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485, 497, the High Court described the four factors, apart from death, that were relevant in calculating contingencies as sickness, accident, unemployment and industrial disputes. The court observed that not all contingencies are adverse and that any positive considerations (such as advancement in employment) are also to be taken into account. The court pointed out that contingencies are to be considered in terms of their likely impact on the earning capacity of the injured person concerned, not by reference to the workforce generally.
[73] Brocx v Mounsey [2010] WASCA 196.
[74] Tristram‑Howard v Morris Corporation (Aust) Pty Ltd [2023] WADC 60 [334] (Tristram-Howard).
[75] Brocx v Mounsey [61].
In Tristram‑Howard, Burrows DCJ also referred to the reasons of Gething DCJ in D'Souza v Barclays Building Services (WA) Pty Ltd[76] where his Honour had said:
… Where there are too many imponderables to make any precise calculation of the damages to be awarded for the loss of earning capacity a global amount may be awarded.
(footnotes omitted)
[76] D'Souza v Barclays Building Services (WA) Pty Ltd [2020] WADC 87 [618].

In my opinion, due to the intrinsic difficulties in assessing the future loss of earnings of a young person without a significant work history and the limitations of the report from Mr Hook, as evidence supporting a calculable future loss of earning capacity, it is not reasonably possible to calculate the loss of earning capacity suffered by ZD as a consequence of their injury of mental and nervous shock. I am satisfied however that the injury has caused some loss of earning capacity, because of an impact upon the ability of ZD to enrol in and pass ATAR school subjects and enrol into and pass university examinations. But, due to the limitations of the evidence I think I can only award 'global' or 'buffer' damages as referred to above. In undertaking that somewhat intuitive exercise, in my opinion the appropriate compensation for future loss of earning capacity for ZD is $20,000.
As there was no other complaint by the appellant about the compensation awarded by the assessor, in my opinion $20,000 should be added to the compensation awarded by the assessor.

Medical expenses

With respect to medical expenses, the definition of loss includes expenses actually and reasonably incurred by or on behalf of a victim that arise directly from obtaining any report from a health professional or counsellor in relation to the injuries suffered by the victim.[77]
[77] Section 6(2)(a) of the Act.
The medical expenses of ZD are set out in par 171 the written submissions of the amicus. The list includes an ambulance attendance fee of $1,006, incurred on 7 August 2021 and $1,848 for the vocational report of Mr Hook.
The information provided by the solicitors for ZD in their letter to the Chief Assessor about the amount claimed for the ambulance attendance was that the applicant suffered a panic attack and an ambulance was called by a friend.
As noted by the amicus there are no records before the court other than the invoice which prove the reason for the ambulance attendance or the outcome of that attendance. In those circumstances the court cannot be satisfied that the expense of the calling of the ambulance arose from the injury suffered by ZD. There is no evidence or information before the court that can establish that the alleged panic attack suffered by ZD was causally linked to the injury suffered by ZD.
With respect to the report of Mr Hook, the amicus submits that the report does not fall within the definition of 'loss' in s 62 of the Act, as it is not a report by a health professional or counsellor in relation to the injuries suffered by ZD. Also, the amicus submits the cost of the report does not constitute a loss of earnings but rather is evidence provided in support of a quantum for loss. In those circumstances it was contended the court cannot award compensation for the cost of the report. I accept these submissions on behalf of the amicus.
However it is appropriate to award compensation for the other amounts referred to in par 171 of the written submissions of the amicus that were incurred for compensable recovery under the Act. These are:
(a)The cost of obtaining clinical notes and reports from Black Swan Health Ltd in the amount of $72.60, paid for by the Legal Aid Commission of Western Australia (Legal Aid);
(b)The cost of obtaining medical records from a medical group in the amount of $99 paid by Legal Aid;
(c)The additional medical records from a medical group in the amount of $100;
(d)The cost of obtaining the psychology report of Mr Haddad in the amount of $1,914, paid by Legal Aid;
(e)The cost of obtaining the supplementary report of Mr Haddad in the amount of $660; and
(f)Obtaining Melotin/melatonin/circadin dispensed on 26 August 2020 ($42.99), 9 December 2020 ($35.99), 5 January 2021 ($35.99), 4 March 2021 ($41.99), 26 May 2021 ($41.99), 3 July 2021 ($41.99), 20 July 2021 ($41.99), 18 August 2021 ($41.99) and 17 November 2021 ($41.99); which together total $366.91.
ZD also claims travel expenses for travel of 54 km from Heathridge to Perth on 27 June 2022 to attend their assessment with Mr Haddad. It is also appropriate to award compensation for that expense. The quantification of the compensation can be by way of reference to the general amount allowed for travel, per kilometre by the Australian Taxation Office. In 2021 - 2022 that rate was $0.72 per kilometre; in this case being $39.60.
The total of the travel costs and the above expenses and report costs is $3,212.51. As noted, a total of $2,085.60 of this amount was paid by Legal Aid. Therefore there should be an order made that this amount be repaid to Legal Aid.

Future medical expenses

In their written submission, ZD claims, in accordance with recommendations made by Mr Haddad, future medical expenses in the sum of $5,600, for 20 sessions with a clinical psychologist at $280 per session.
Supplementary submissions were requested by me on a number of issues related to this claim. These were:
(i)Whether, if Mr Haddad's report was provided in July 2022 it could be relied on now with respect to this issue and if so on what basis.
(ii)Information on how many if any of the sessions referred to in Mr Haddad's report have been engaged in to date by ZD.
(iii)Whether for the amount claimed of $5,600, the calculation of loss should take into account possible Medicare rebates as referred to in the case manage letter; and
(iv)With respect to the award made by the assessor on 28 June 2023 and an allowance of $1,215 to ZD, whether any of this amount has been expended and if so when and for what reason.
The solicitors for the appellant and the amicus provided submissions in response. The submissions of the amicus were limited to issues (i) and (iii).
In the response to the first issue by the appellant's solicitors, the qualifications and experience of Mr Haddad was reiterated. It was noted that although the reports of Mr Haddad were now over 18 months old, and this was not an insignificant period of time, the court could still give weight to the views expressed by Mr Haddad on the need for future psychological treatment. The appellant's solicitors informed me, without objection by the amicus, that ZD has recently participated in some counselling sessions dealing with a range of issues not including the incidents of family domestic violence for which they applied for criminal injuries compensation. ZD's solicitors noted that Mr Haddad in his report dated 4 July 2022 recommended ZD undergo a significant amount of counselling sessions. These were 16 to 20 sessions. It was submitted that further counselling is likely required as ZD has undergone a limited amount of counselling sessions since ZD was assessed by Mr Haddad.
The amicus did not submit that I should not now rely upon Mr Haddad's reports, even though they were provided in July 2022. However the amicus noted that the rate recommended by the Australian Psychological Society (APS) has increased since the date of Mr Haddad's reports. The amicus informed me that the APS website now states that 'the APS national schedule of recommended fees 2023 ‑ 2024 has the standard 46 to 60 minute consultation fee at $300'.
Whilst there is limited evidence upon whether ZD now requires the treatment referred to by Mr Haddad in his report dated July 2022, on balance I am prepared to accept that this treatment is required, as submitted by the appellant's solicitors. In my opinion however it would be appropriate to use the fee rate of $300 as referred to by the amicus, even though this rate was not referred to by the appellant in their submissions. Accordingly in my opinion the amount of the 16 ‑ 20 sessions recommended by Mr Haddad is prima facie compensable in the amount of $6,000.
With respect to the second issue of whether any of the sessions referred to in Mr Haddad's report had been engaged in to date by ZD, I was informed by the appellant's solicitors, without objection by the amicus, that ZD had undertaken approximately 20 sessions of counselling before the report of Mr Haddad dated 4 July 2022. I was also informed that ZD had recently engaged with a sexual assault resource centre in Subiaco where they were being treated for various health issues unrelated to the application for criminal injuries compensation. Accordingly there have been none of the sessions referred to in Mr Haddad's report engaged in by ZD to date which would require a 'deduction' from the 20 sessions recommended by Mr Haddad.
With respect to the third issue, the solicitors for ZD informed me that if ZD was to obtain a mental health care claim by their general practitioner, this would provide for 10 sessions of psychotherapy per year at the rate of $280 per session to be rebated in full by Medicare. I am prepared to infer that this would also apply to the amount of $300 referred to above. The solicitors for ZD also informed me that the amount awarded to an applicant for future medical treatment is retained by the Office of Criminal Injuries Compensation on trust and released on production of invoices and/or receipts for treatment. I was informed that it is the usual conduct that the Office of Criminal Injuries Compensation will only reduce payments for medical treatment after deduction of any Medicare rebate and private health contribution. I was also informed that the amount awarded for future medical treatment is held in trust for up to 10 years and the relevant Medicare rebate may change during this period. It was therefore respectfully submitted that the award of damages for future medical expenses should not be subject to deduction of the Medicare rebate.
In my opinion, however, any allowance for future medical expenses should only compensate an appellant for the expenses which can be proved to be likely to be incurred on the balance of probabilities. In my opinion it would be wrong in principle to allow compensation for future medical expenses when on the balance of probabilities it is likely that there will be a Medicare rebate for the appellant.
As submitted by the amicus, Medicare rebates are regularly taken into account by the court when awarding compensation for future medical treatment.[78]
[78] Section 6(2)(b), s 12(1), s 17(2) and s 35(2) of the Act.
The amicus referred to five cases as recent examples of this approach, being Richardson v Lawford,[79] Couper v Alexander,[80] Re Butler,[81] GP[82] and Nurovic v Nurovic.[83]
[79] Richardson v Lawford [2020] WADC 58.
[80] Couper v Alexander [2020] WADC 56.
[81] Re Butler [2020] WADC 22.
[82] GP [2019] WADC 75.
[83] Nurovic v Nurovic [2019] WADC 28.
The amicus also cited decisions of the court which did not consider Medicare rebates when awarding an amount of compensation for future medical treatment, including Re Coad, Madigan v XYZ, JB v Ramljak and Re RJA.[84]
[84] Re RJA [2022] WADC 106.
In my opinion, however, the preferable approach is that outlined above earlier.
As submitted by the amicus, s 48 of the Act conditions the payment of compensation for future treatment so that future medical treatment expenses are not paid unless and until proof that they had been incurred is provided to the assessor.
With respect to the fourth issue, of $1,215 awarded by the assessor, there has not been any claim made as yet on the allowance. Therefore there is no reason to discount the amount of $3,000 which I have decided would be otherwise appropriate to award to ZD for future medical expenses. Accordingly in my opinion the compensation to be awarded to ZD for future medical expenses should be the amount of $3,000.

Treatment expenses

The other amount in the award by the assessor of $2,235.70 for treatment expenses has not been questioned by the appellant or the amicus. Accordingly in my opinion it is appropriate to also include this amount in the award of compensation.

Barring order

The amicus drew to my attention that the assessor had made a barring order under s 45(1) of the Act. The amicus submitted that I may wish to consider whether the making of the barring order was appropriate. However the appellant did not make any submissions on this issue. In those circumstances I do not think it appropriate to review the order made.

Compensation

For the reasons set out above, in my opinion the appeal should be allowed, the compensation awarded by the assessor set aside, and the award of compensation to be made to ZD should be as follows:

(a)

Injuries

$15,000.00

(b)

Future loss of earnings

$20,000.00

(c)

Future treatment expenses, to a maximum of

$3,000.00

(d)

Past treatment expenses

$2,235.70

(e)

Cost of reports and travel and Melatonin/Circadin

$3,212.51

$43,448.21

There will, as referred to above, also be an order that the appellant pay to the Legal Aid Commission of Western Australia, the sum of $2,085.60. This should be done within 14 days of the date when the award of compensation, for item (e) above is received by or on behalf of the appellant.

Costs

As submitted by the amicus, there should be no order for costs to be made under s 56(2)(d) of the Act, as there has been no 'unsuccessful party' to this appeal. The amicus does not fall within this description. The amicus is not a party to the appeal, and could not, in any event, be described as 'unsuccessful'.

Orders

The appellant and amicus curiae should confer and provide a minute of orders to reflect my reasons.

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

Injuries	$15,000.00
Reports	$2,085.60
Treatment expenses	$2,235.70
Future treatment expenses to a maximum of	$1,215.00
SUB TOTAL	$20,536.30
Less amount to be paid to Legal Aid Western Australia	$2,085.60
Less future treatment expenses not yet incurred	$1,215.00
BALANCE PAYABLE	$17,235.70

Item	Period (all dates inclusive)	Maximum amount
1.	22 January 1971 to 17 October 1976	For an indictable offence: $2 000 For a simple offence: $300
2.	18 October 1976 to 31 December 1982	$7 500
3.	1 January 1983 to 31 December 1985	$15 000
4.	1 January 1986 to 30 June 1991	$20 000
5.	1 July 1991 to the day before the day on which this Act comes into operation	$50 000
6.	On or after the day on which this Act comes into operation	$75 000

(a)	Injuries	$15,000.00
(b)	Future loss of earnings	$20,000.00
(c)	Future treatment expenses, to a maximum of	$3,000.00
(d)	Past treatment expenses	$2,235.70
(e)	Cost of reports and travel and Melatonin/Circadin	$3,212.51
$43,448.21