RLG v SG - [2010] WADC 132

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: RLG -v- SG [2010] WADC 132

CORAM: BIRMINGHAM QC DCJ

HEARD: 30 JUNE 2010

DELIVERED : 9 SEPTEMBER 2010

FILE NO/S: APP 73 of 2008

BETWEEN: RLG
Appellant
AND
SG
Respondent

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :H L Porter
Citation  :[2005] CI 1038

Catchwords:

Criminal Injuries Compensation Act 2003 - Appeal - Hearing de novo - Sexual assault - Posttraumatic stress disorder

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Appeal allowed - award increased to $50,000

Representation:

Counsel:

Appellant:     Mr K S Pratt
Respondent:     No appearance
Amicus Curiae              :     Mr N T L John

Solicitors:

Appellant:     Trewin Norman & Co
Respondent:     Not applicable
Amicus Curiae              :     State Solicitor for Western Australia

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

A v D (1994) 11 WAR 481
B v B [2004]WASC 6
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
LMC v RJO [2002] WADC 147
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
S v Neumann (1995) 14 WAR 452

BIRMINGHAM QC DCJ: On 15 December 2008 the Assessor for Criminal Injuries Compensation awarded the appellant compensation in the sum of $19,354.90 pursuant to s 30 of the Criminal Injuries Compensation Act 2003 ("the Act") in respect of injuries suffered by her as a consequence of the respondent's unlawful conduct on 25 and 27 March 2002 at Wembley Downs.
By notice of appeal dated 31 December 2008 the appellant says the award was manifestly inadequate.

The factual background

During the period from approximately February 2000 to 15 August 2001 the appellant was in what has been described as physically and psychologically abusive relationship with the respondent. After the relationship ceased for a brief period in August 2001 the appellant applied for but did not maintain an application for a violence restraining order. The relationship resumed in November 2001 until February 2002 when again the appellant terminated the relationship.
On 25 March 2002, the respondent contacted the appellant and told her that he had a video tape of her having sex with another male person. He said that if she didn't agree to have sex with him, he would show the tape to her friends and further post pictures at the primary school attended by her children and inform them that she was working as a prostitute – as then was the case. She therefore arranged to meet him at a unit in Willagee that evening. At the unit he showed her the video tape and then forced her to have sex with him on the living room floor under the threat of him disclosing the contents of the video.
On 27 March 2002, following a further threat of disclosure, the appellant met the respondent at a service station in Glendalough. He was abusive to her before driving her to a car park. The respondent then questioned the appellant about her work as a prostitute and again threatened to expose her actions to her children. He removed his clothing and demanded that she suck his penis and have sex with him. She refused. The respondent then took her hand and placed it on his penis and tried to force her head into his crutch region and require her to suck his penis. The appellant resisted his actions. The respondent then drove the appellant through the car park and upon finding the gates had been locked, dragged her out of the car, forcibly removed her underwear and forcibly penetrated her vagina with his penis. The respondent then turned the appellant around and penetrated her again. At the same time he forced her to touch herself on her vagina. Eventually the respondent let her go. The appellant climbed over the gates to get out of the car park and rang her daughter who came and took her home.
The appellant then reported the respondent's conduct to the police and he was later charged with a number of offences including the offences the subject of the application for compensation.
On 22 February 2005 in the District Court at Perth, the respondent was convicted in relation to a number of offences committed by him against the appellant. Relevantly the offences involved one count of threat with intent to influence committed on 25 March 2002 and two counts of indecent assault, one count of sexual penetration without consent and one count of threat with intent to influence - all committed on 27 March 2002.
Compensation is payable where a person has suffered injuries as a consequence of the commission of a proved offence: s 12(1) and s 12(3) of the Act.
For the purpose of the Act, the offence committed on 25 March 2002 was an unrelated offence to those committed on 27 March 2002. The four offences committed on 27 March at approximately the same time are treated as one group of related offences pursuant to s 33(1) of the Act. At the time the offences were committed the maximum compensation available was $50,000 for the proved offence on 25 March, and $50,000 for the proved related offences that were committed on 27 March 2002. The limit on the amount that may be awarded in respect of each offence is a jurisdictional limitation and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452 at 463.
The appellant says as a result of the offences, in addition to the physical injury suffered, she suffers a depressive disorder, has difficulty sleeping and mixing with other persons and is isolated from her family. The appellant says further, that as a result of her injuries she has been unable to engage in any remunerative employment.

The appeal

Pursuant to s 56(1) of the Act, an appeal from the learned Assessor's decision to this Court is to be determined on the material relied on by the Assessor or such other material as may be admitted into evidence. The appeal proceeds as a hearing de novo – the Court not being fettered by the Assessor's decision. As such no error on the part of the Assessor need be demonstrated: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203 – 204.
The appellant's entitlement to compensation is not dependant upon the offences the subject of the application being the sole cause of the appellant's injury: Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 at 673; S v Neumann (supra) at 463 – 464. It is sufficient that the commission of the offences was a cause of the injury or that some injury occurred as a consequence of the commission of the offences. The question in each case is whether the injury complained of was caused by the relevant offence: B v B [2004] WASC 6 at [30] - [33]. Whether such causal relationship between the appellant's injuries and the proved offences exists or not is a question of fact: Fagan (supra) (at 673); to be resolved as a matter of commonsense: Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 412 ‑ 413.

Medical evidence

In support of her application, the appellant relied upon the medical reports of Ms Kostic, a clinical psychologist, and Dr Frederick Ng, a consultant psychiatrist.
The appellant was examined by Ms Kostic in September 2005. Ms Kostic recorded that, on presentation, the appellant was tearful and emotionally distraught. Following testing and assessment, Ms Kostic concluded that the appellant presented with symptoms of post-traumatic stress at a moderate level with depression at a moderate to severe level.
Ms Kostic noted that the appellant was a 42 year old single mother of four children who survived an 18 months physically and psychologically abusive relationship. The appellant had resorted to prostitution in an attempt to save the home she had lived in since her childhood. Ms Kostic considered that the appellant's psychological condition was directly related to her relationship and the crimes perpetrated against her by the respondent. Ms Kostic considered the appellant was unable to work outside her home and whilst, after appropriate treatment, the appellant may be able to manage some part time work, it would necessarily involve avoidance of extensive interaction with the general public.
For the purpose of this appeal, I admitted into evidence three letters of instruction provided to Dr Frederick Ng by the appellant's solicitors. This correspondence supported the materials that had been considered by the learned Assessor and clarified aspects of Dr Ng's opinion.
Dr Ng assessed the appellant on 5 October 2005. In his report of that date, Dr Ng opines that the appellant suffered from a major depressive disorder of a moderate to severe extent and a moderately severe chronic post-traumatic stress disorder. He considered that, given how the appellant's life had changed following the proved offences and the absence of other factors, the onset of her psychiatric conditions were precipitated by the difficulties in the relationship with the respondent including the physical and sexual assaults and the fact that she was driven to prostitution as a result of her indebtedness arising from that relationship. In his opinion, given the extent and the severity of the traumatic situation, the psychiatric conditions could take between two to five years to significantly improve. Dr Ng then considered that the appellant would require antidepressant medication for at least the next two to five years, together with psychotherapy for approximately two years. Dr Ng further considered that the appellant's psychiatric symptoms would prevent her from engaging in any form of paid employment.
It is important to recognise that prior to the offences the appellant had demonstrated a capacity to engage in remunerative employment whilst employed as a "cocktail hostess" – albeit as a prostitute.
Dr Ng reviewed the appellant on 26 July 2007 and reported thereafter. Dr Ng then noted that although had been some improvement, the appellant continued to have pathological depressive and anxiety symptoms and suffered from a chronic moderately severe major depressive disorder. The appellant also had residual symptoms of a chronic moderate to severe post-traumatic stress disorder albeit partially improved. Dr Ng considered that with the passage of time and psychiatric treatment, the appellant's condition would improve. Dr Ng opined that the appellant was in need of psychotherapy either with a consultant psychiatrist or clinical psychologist and would also benefit from antidepressant medication. Dr Ng remained of the view that she was then totally unfit for any form of paid employment.
On 15 October 2008, the appellant's solicitors wrote to Dr Ng for clarification in relation to an aspect in his report to which the learned Assessor had particularly questioned namely, the fact that the appellant had, in her consultations with Ms Kostic and Dr Ng alluded to matters other than the proved offences, including, inter alia, feelings of guilt and other feelings associated with her decision to work as a prostitute. As a consequence, the appellant's solicitor wrote to Dr Ng and specifically requested his advice as to the extent to which [the appellant's] injury as documented by the psychiatrist and psychologist can be said to have been suffered by her as a consequence of the commission of the proved offences in respect of which she claims. The appellant's solicitor further requested Dr Ng's advice on the extent to which the appellant's emotional state would have occurred save if she'd only suffered the sexual assault and if it would be different from that suffered by her, what proportion of the emotional state related to the sexual assault.
In his report of 16 November 2008, Dr Ng addressed the issue as follows:
"that if one was to solely consider the proved offences only, I believe that the psychological impact of these alone would have led to the onset of her diagnosed psychiatric conditions which were mainly the major depressive disorder and chronic post-traumatic stress disorder." [Emphasis added.]
In his opinion, the additional issue of having to work as a prostitute and matters relating to other abuse added to the emotional difficulties that she had experienced. In response to a request to make an allocation or an apportionment, Dr Ng considered that 10 per cent of the appellant's emotional difficulties arose from working as a prostitute, 40 per cent from the other allegations pertaining to other abuse in the relationship, and 50 per cent to the proved offences.
Upon the application for compensation, the Assessor determined that the appropriate award if the applicant was eligible for compensation to the full extent of her condition would be the sum of $62,000.
In determining the final sum to be awarded, the learned Assessor considered that proved offences had contributed to the extent of one quarter of the applicant's psychiatric and psychological condition as diagnosed by Dr Ng and Ms Kostic - a significant part of the appellant's condition being due to non‑compensable factors. Consistent with the apportionment made the learned Assessor awarded the appellant compensation of $15,500 for the injuries said to have been suffered as a consequence of the proved offences.
In my opinion, given the correspondence and materials provided to Dr Ng and, in particular, the extent to which the learned Assessor's query was put to him in unequivocal terms by the appellant's solicitors', there is no mandate to find that Dr Ng misunderstood the nature and the extent of the proved offences that led to the appellant's condition when advising as to their cause. The fact that there may have been other factors impacting upon the appellant's condition does not detract from what Dr Ng identified as its primary cause namely the proved offences. Seemingly, the appellant was able to cope notwithstanding the existence of other matters prior to the incidents the subject of proved offences.
Unlike the circumstances prevailing in LMC v RJO [2002] WADC 147 – where her Honour, Judge Yeats at [23] apportioned 50 per cent of the appellant's injuries to unrelated subsequent sexual assaults, the catalyst for this appellant's post-traumatic stress disorder is the proved offences occurring on 27 March. In my opinion, this is not a case where any apportionment should be made. As noted above, it is sufficient that the commission of the offences was a cause of the injury or that some injury occurred as a consequence of the commission of the offences. The question in each case is whether the injury complained of was caused by the relevant offence. Having regard to Dr Ng's evidence, I am satisfied that the proved offences on 27March 2002 were responsible for the diagnosed psychiatric condition suffered by the appellant.
Whilst there were two proved offences for which compensation is available, it is important to note that no distinction is made between the two by Ms Kostic or Dr Ng. It is reasonable to assume that the threat made on 25 March was subsumed and merged with the more serious events that occurred two days later. In such circumstances, I am not satisfied that compensation should be awarded in respect of the first incident and make no award in relation to that offence.
Counsel for the appellant, Mr Pratt, and Mr John, amicus curiae for the CEO, both considered that, having regard to the appellant's injuries, the previously assessed award of $62,000 – exclusive of any allowance for lost earning capacity - was appropriate. On the materials submitted by the appellant I am satisfied that an award in such sum for in respect of the injuries suffered is appropriate and would not interfere with the learned Assessor's assessment.
The appellant further complains that no allowance was made in relation to economic loss said to have been suffered as a consequence of the offences. Pursuant to s 6(2)(c) of the Act, loss includes "loss of earnings suffered by the victim as a direct consequence of the injury" and includes loss of earning capacity: A v D (1994) 11 WAR 481, 489. The assessment is for the loss of the chance that the appellant could have worked unaffected by injury save for the commission of the offences: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643.
It is common ground that prior to and indeed on the night of the second group of offences the appellant had some earning capacity insofar as she was then working as a "cocktail hostess". Both Dr Ng and Ms Kostic considered that as a consequence of her injury the appellant was unfit for any remunerative employment.
The appellant's incapacity to work was a direct consequence of the injury insofar as her psychiatric condition as diagnosed by Dr Ng and Ms Kostic was such that the appellant was unable to work until that condition had resolved.
No direct evidence as to the extent to which the appellant has in fact suffered financial loss was tendered. However, a professional tennis coach, in a letter dated 20 October 2005, stated that the appellant had the capacity and the opportunity to work part time as an assistance coach at $15 per hour. There is no reason to not accept such statement as to the appellant's capacity to undertake such work and its availability. The explanation that the appellant refused the offer due to a lack of confidence in her ability to maintain a steady attitude and focus as a consequence of her recognised state has some force. Whilst other factors impacted upon the appellant's capacity to work - including her role as a mother - it would be wrong to assume in such circumstances that the appellant did not suffer some loss of economic capacity, albeit modest, for at least the period up to 2006 ‑ 2007.
Counsel for the appellant says an allowance in relation to economic loss should also be added to any award in respect of the general damages component in relation to the appellant's physical and psychiatric injury. Subject to any jurisdictional limitation, I would have allowed a modest claim for economic loss in the order of $10,000 calculated on the basis of approximately $2,500 per annum for four years. Such allowance assumes that, save for her injury, the appellant would have been able to work on a part time seasonal basis as an assistant tennis coach or in some other capacity – for at least six months of each year. The fact that the appellant was able to work as a "cocktail hostess" indicates that she was able to manage her other family activities to enable her to be engaged in meaningful employment when it was necessary to do so.
That the appellant did not declare her income, file income tax returns nor advise Centrelink of her employment does not detract from the fact that she had an earning capacity which was affected by the respondent's conduct.
The appellant is further entitled to recompense in relation to the expenses of obtaining the reports from SARC, Dr Ng and Ms Kostic in the sum of $3,102, the cost of consultation with Ms Kostic in the sum of $218.40 and travel expenses of $54.00.
Whilst in my opinion, the appropriate total award of compensation payable to the appellant is the order of $75,374.40; I am confined by s 31(1) of the Act to the jurisdictional limit upon the level of compensation that may be awarded at the time, namely $50,000. I am satisfied that the appropriate award of compensation payable to the appellant in respect of the proved offences is $50,000.
Accordingly, I allow the appeal, set aside the award made by the learned Assessor on 17 February 2009 as in lieu thereof substitute an award in favour of the appellant in the sum of $50,000.