[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Re ZD (pseudonym initials) [2024] WADC 42
Case
[2024] WADC 42
Decision Date
CaseChat Overview and Summary
The case of Re ZD (pseudonym initials) involved an appeal by ZD against the amount of compensation awarded for psychological injuries and nervous shock resulting from the commission of offences by ZF against MR. The legal issues before the court were whether ZD was entitled to compensation under the Criminal Injuries Compensation Act, and if so, the extent of compensation for future loss of earning capacity. The court had to consider the additional evidence and information provided by the appellant and the amicus, and the statutory requirements for awarding compensation for mental and nervous shock. The court found that ZD was entitled to compensation due to the injury suffered as a consequence of the commission of the offences by ZF. The court concluded that the conditions under the Act for awarding compensation for mental and nervous shock were met. The court then assessed the extent of compensation for future loss of earning capacity, noting the inherent difficulties in assessing the future earnings of a child or young person without an established working history. The court decided to award a global or buffer amount for the future loss of earning capacity.
The court's reasoning was based on the evidence presented by MR and the statutory provisions of the Act. The court found MR's evidence credible and reliable, and not questioned by the amicus. The court determined that the jurisdictional limit for compensation was $150,000 due to the existence of multiple offences that were not related for any other reason. The court also found that MR had suffered significant psychological injuries, continuous throat infections, muscle problems, PTSD, and depression as a result of the offences. The court awarded compensation for these injuries and the future loss of earning capacity, taking into account the difficulties in assessing the future earnings of a young person without a working history. The court ordered that the compensation should be paid to ZD.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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 (5th ed, 2021) [6.3.4] - [6.3.5].
Ratio Decidendi
Legal Principle Established
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.