Robertson v Hopwood
[2018] WADC 66
•25 MAY 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ROBERTSON -v- HOPWOOD [2018] WADC 66
CORAM: JUDGE GILLAN
HEARD: 23 APRIL 2018
DELIVERED : 25 MAY 2018
FILE NO/S: APP 91 of 2015
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: ANDREW JOHN ROBERTSON
Appellant
AND
KEITH HOPWOOD
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: H L PORTER
File Number : CI 428 OF 2014
Catchwords:
Proved offence - Separate offence - Contribution - Nose injury - Post‑traumatic stress disorder - Contribution of non‑compensable stresses - Relevance of findings of magistrate - Conflicting findings of magistrate
Legislation:
Criminal Injuries Compensation Act 2003, s 3, s 12, s 19, s 39, s 41
Result:
Appeal discontinued and cross-appeal allowed
Representation:
Counsel:
| Appellant | : | Ms R A Caparare |
| Respondent | : | Mr T H Offer |
| Amicus Curiae | : | Mr S P Tomasich appeared on behalf of the Chief Executive Officer of the Department of the Attorney-General |
Solicitors:
| Appellant | : | Bradley Bayly Legal |
| Respondent | : | Separovic Injury Lawyers |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Asjes v Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 4169, 3 September 1994)
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
B v W (1989) 6 SR (WA) 79
Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377
Cahill v Smith [2015] WADC 148
Dos Santos v Dos Santos [2000] WADC 256; Nguyen v Assessor of Criminal Injuries Compensation [2000] WADC 221
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Goodall v Lee (Unreported and Unpublished, WADC, SJA 15 of 2017, 1 February 2008)
Gullelo v Halloran [2008] WADC 145
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
M v J (Unreported, WASC, Library No 920598, 19 November 1992)
McDavitt v McDavitt [No 2] [2013] WADC 198
R v Forsythe [1972] 2 NSWLR 951
Re Tilbury [2010] WADC 46
Reed v Reed [2002] WADC 11
RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
S v Neumann (1995) 14 WAR 452
TAW v NJS [2011] WADC 187
Underwood v Underwood [2018] WADC 13
JUDGE GILLAN:
By an application dated 20 March 2013 the respondent sought compensation for injuries and losses he suffered in an incident which occurred on 27 August 2011 at a hotel in Inglewood.
The Criminal Injuries Compensation Assessor (the assessor), by a compensation award dated 6 November 2015, awarded the respondent the sum of $49,041.11 compensation (the award) for the injuries and losses that the assessor was satisfied the respondent had suffered as a consequence of the incident.
The application to the assessor was made pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (the Act), and it relied upon the conviction of the appellant on 13 March 2013 in the Magistrates Court in Perth for the offence of assault occasioning bodily harm to the respondent.
The assessor was satisfied that the respondent had been injured in the commission of a proven offence and the application was therefore properly brought pursuant to s 12 of the Act. In the course of her decision the assessor also considered whether any award should be reduced because, at one stage during the incident, the respondent had head-butted the appellant.
The appellant appealed to this court to reduce the award on the basis that, by reason of the head-butt:
1.the respondent had been engaged in criminal conduct during the course of the incident and so, pursuant to s 39 of the Act, was not entitled to an award of criminal injuries compensation; and
2.further, or in the alternative, any criminal injuries compensation award should be refused or reduced pursuant to s 41 of the Act as a result of the respondent's behaviour (the head-butt) during the incident.
When the appeal came on for hearing, the appellant sought an order that the appeal be discontinued. I granted that order on the morning of the hearing and excused counsel for the appellant from further attendance.
The respondent in this matter had brought a cross-appeal applying for the assessor's decision to be increased on the basis that the allowance 'for general damages; past and future loss of income as well as past and future treatment expenses were too low'. The respondent sought to be paid the maximum award of compensation of $75,000.
The respondent pressed his cross-appeal notwithstanding the discontinuance of the appeal in this matter. While the appellant did not oppose the cross-appeal I did have the benefit of submissions by the amicus curiae.
This cross-appeal raises the following issues:
1.First, did the respondent's conduct, in head-butting the appellant during the course of the incident, have the effect of either:
(a)engaging the operation of s 39 of the Act, thus disentitling the respondent from an award of compensation? or
(b)engaging the operation of s 41 of the Act, thus enlivening a discretion to reduce the amount that would otherwise have been awarded?
2.Second, if the respondent is entitled to an award of criminal injuries compensation, is the award inadequate? and
3.Third, if the award is inadequate, what should it be increased to?
Nature of the appeal
An appeal under the Act is a hearing de novo: Gullelo v Halloran [2008] WADC 145 [5].
The court may confirm, vary or reverse the assessor's decision either in whole or in part: s 56(2)(b) the Act. It is open to the court on hearing an appeal to increase or decrease an award of compensation regardless of whether a cross-appeal had been filed: Dos Santos v Dos Santos [2000] WADC 256; Nguyen v Assessor of Criminal Injuries Compensation [2000] WADC 221.
Even though the hearing is a hearing de novo so that the application falls to be determined without fetter by the assessor's decision, it is nonetheless appropriate to have regard to the assessment made by the learned assessor as a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63 [13].
Pursuant to s 56(1) of the Act, the court has a general discretion to 'receive further evidence and information'. There is no need for an application seeking to introduce further evidence to be made before any further evidence is considered: Cahill v Smith [2015] WADC 148 [8] (Wager DCJ).
Further evidence should be received and admitted into evidence on the appeal, unless there is some reason why it would be unjust to do so: Gullelo v Halloren [11] – [13]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9]; Re Tilbury [2010] WADC 46 [3]; TAW v NJS [2011] WADC 187 [17] and Underwood v Underwood [2018] WADC 13 [37].
The maximum compensation available for this application is $75,000: s 31(1) and s 32, s 33 or s 34 of the Act.
Section 39 of the Act operates so that if a person is injured as a consequence of the commission of an offence, but the injury was suffered when the person themselves was committing a separate offence, a compensation award cannot be made in favour of the person in respect of that injury.
There is no requirement in s 39 of the Act that the disentitling offence be causally connected to the offence that causes the applicant's injuries. All that is required is that there is a sufficient temporal connection. Whether there is a sufficient temporal connection is a question of fact and degree: Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29.
Even if s 39 does not apply, so as to totally bar an award of compensation, s 41(b) may nevertheless have some application. Section 41(b) operates so that the assessor, and also this court, has a discretion, if it thinks it is just to do so, to refuse to make a compensation award or to reduce the compensation award, because of any behaviour, condition, attitude or disposition of the applicant for compensation which contributed directly or indirectly to the injury or loss suffered.
The discretion under s 41(b) may be guided by common law principles and the purpose of the Act, which is to award compensation for injuries arising out of the commission of an offence in certain circumstances: McDavitt v McDavitt [No 2] [2013] WADC 198.
Any reduction made to an award of compensation under s 41(b) of the Act must be applied after the jurisdictional maximum is applied: Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377; Reed v Reed [2002] WADC 11.
Section 41(b), unlike s 39, gives the assessor and the court a discretion to reduce the award to reflect the extent that a victim of crime's conduct contributed to his own injury.
Section 41(b) requires consideration of whether the conduct of the victim contributed to the injuries suffered and not the offence.
Turning now to the assessment of compensation, the general principles (limited to those relevant to this appeal) are that:
1.The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463.
2.In fixing the appropriate amount of compensation it is correct to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of injury and loss in the Act and subject also to the jurisdictional limit imposed by the Act: M v J (Unreported, WASC, Library No 920598, 19 November 1992) (Scott J); RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974) (Burt J).
3.In assessing the amount of compensation the award relates solely to the injuries suffered by the applicant as a consequence of the commission of the offence. The award is not a punishment of the offender or an expression of sympathy for any victim: B v W (1989) 6 SR (WA) 79, 89; R v Forsythe [1972] 2 NSWLR 951, 953.
4.Other awards of compensation or damages for personal injuries are of limited utility in assessing an appropriate amount: Asjes v Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 4169, 3 September 1994) (Commissioner Nisbet); TAW v NJS.
5.Bodily harm and mental and nervous shock are within the definition of injury attracting compensation: s 12(1) and s 12(3) of the Act.
6.Mental and nervous shock comprehends any impact on the mind or nervous system by the events in question. There must be more than a mere emotional reaction and there must be something of an enduring character such that it can be described, in both the legal sense and common parlance, as an injury. The term includes distress, horror, disgust and other similar adverse mental reactions but excludes mere fright, humiliation or anguish: Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) (Burt CJ); S v Neumann (469); M v J and J v J.
7.There are specific heads of loss defined in s 6 of the Act to include:
…
(a)expenses actually and reasonably incurred by or on behalf of the victim -
(i)that arise directly from; or
(ii)that arise in obtaining any report from a health professional or a counsellor in relation to, the injury suffered by the victim; or
(b)expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim; or
(c)loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim; or
(d)any loss arising from any damage caused as a direct consequence of the commission of the offence to any personal item that was being worn by the victim when he or she suffered the injury.
…
8.It is not necessary for the offences which are the subject of the application to be the sole cause of any injuries: Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, 673; S v Neumann.
Circumstances of the offence
The following is my description of the incident as taken from the evidence before me and my review of CCTV footage of the incident.
It is uncontentious that on the day of the incident, the respondent was at the Inglewood Hotel watching a rugby match from about 6.00 pm and that the appellant (who I will refer to as the offender in the balance of this decision) was also there.
It is also uncontentious that the respondent had known the offender for approximately 10 years, as a work colleague and once a friend, but that the two had fallen out before the incident over some work contracts. I make no comment about the role of either of the respondent or the offender in this fallout but there is material to suggest that their work environment was quite toxic.
After the rugby was over, the respondent and his friend, Steve Keady, an off‑duty police officer, walked towards the exit of the hotel, past the dining room area, to meet Mr Keady's partner who was coming to take them home.
The CCTV footage recorded the incident. It shows the respondent and Mr Keady on their way out of the hotel. The respondent's attention was drawn by a call from a woman, Sarah, who he knew and who was the offender's sister. The respondent stopped to talk to Sarah. He spoke to her for less than a minute. There is nothing in the CCTV footage to suggest that the conversation was anything other than amicable and short.
The footage shows that during the conversation, the offender and another man, Clinton Trimby, were standing behind the respondent. At one stage they appeared to be miming some punches and a head‑butt.
As the respondent then turned to leave, he saw the offender and some brief words were exchanged.
The respondent and Clinton Trimby then exchanged some words and Clinton Trimby grabbed the respondent by the arm. It is uncontentious that the respondent did not know Clinton Trimby or his brother, Matthew Trimby who was also there and who played a part in the incident.
The respondent's written statement states that he remembers exchanging words with Clinton Trimby, but did not remember what those words were. His next recollection was being in an ambulance and later at Sir Charles Gairdner Hospital.
The CCTV footage shows that while the words were being exchanged between Clinton Trimby and the respondent, the respondent put his hands up in a gesture of supplication and he started to back away.
Clinton Trimby followed the respondent. Mr Trimby had his finger in the respondent's face while pushing with his body against the respondent's hands. All the while, the respondent was backing away through the door between the front bar and the dining area of the hotel. Mr Keady, Matthew Trimby and the offender followed after.
While he was following the respondent and Clinton Trimby, Mr Keady put his body between them and Matthew Trimby and the offender. Mr Keady held out his arms in an attempt to prevent Matthew Trimby and the offender from becoming involved in the exchange between the respondent and Clinton Trimby.
The CCTV footage shows that once the men were in the dining room area, the respondent pushed Clinton Trimby away from him. Mr Keady then turned his attention to trying to stop Clinton Trimby and his brother Matthew from approaching the respondent, and as he did that the offender stepped around Mr Keady and aggressively approached the respondent.
As the offender approached, the respondent lunged forward with the head-butt which appeared to make, at best, slight contact with the offender.[1] The offender briefly moved backwards and then came forward and grabbed the respondent pulling him about two or so metres along the hallway next to the dining room area.
[1] This was confirmed by the offender to the police when he was interviewed. The offender said words to the effect that an obvious injury to his face had been caused while playing rugby earlier in the day and that the head-butt effected only very light contact.
The offender and the respondent struggled and the respondent was forced to the ground whereupon he was assaulted by the offender who hit him some seven or so times while he was on the ground.
The respondent lost consciousness during the assault.
During the assault, the offender's sister, Sarah, who had followed the men through to the dining room area, was egging the offender on.
The respondent was taken to Sir Charles Gairdner Hospital in an ambulance. I will detail his injuries later.
The trial of the offender
The offender came on for trial on a charge of assault occasioning bodily harm before Magistrate Smith. On 13 March 2012, the learned magistrate, Mr Smith, delivered his reasons for convicting the offender. Those reasons but not the transcript of the entire trial were before the assessor.
Magistrate Smith regarded the CCTV footage as critical in determining the case. He found that the respondent had been in the process of leaving the hotel after speaking with the offender's sister when he was confronted in a reasonably aggressive manner by the offender and his friends.[2] He found the respondent was not provocative in his conversation with the offender's sister and was not seeking any confrontation.[3]
[2] ts 15 Reasons for decision Magistrate Smith 13 March 2012.
[3] ts 16 Reasons for decision Magistrate Smith 13 March 2012.
Two defences were raised by the offender, self-defence and provocation. Magistrate Smith had to consider whether the head-butt delivered by the respondent was a lawful act, because, if it was, this would altogether preclude those defences.
Magistrate Smith reached the conclusion that the respondent's conduct in head-butting the offender was not a lawful act[4] and then went on to consider the defences of self-defence and provocation which had been raised. He found the prosecution had negated the defence of self‑defence beyond a reasonable doubt, because the offender's reaction was 'not about self-defence but was about anger and punishment and retaliation'[5] and that once the respondent had been forced to the ground there was no need for the offender to punch him at all, let alone the seven times that he had done so.
[4] ts 17 Reasons for decision Magistrate Smith 13 March 2012; s 248(5) Criminal Code.
[5] ts 18 Reasons for decision Magistrate Smith 13 March 2012.
Magistrate Smith also considered the defence of provocation and said that while the respondent had, by the head-butt, given the offender some provocation for the assault, he was satisfied beyond a reasonable doubt that the offender had used force which was disproportionate to that provocation[6].
[6] ts 19 – 20 Reasons for decision Magistrate Smith 13 March 2012.
The trial of the respondent
The police also charged the respondent with common assault for the head-butt to the offender.
That trial took place on 7 November 2012 and the respondent was acquitted by Magistrate Bayley. The transcript of Magistrate Bayley's reasons, but not the transcript of the whole of the trial, were before the assessor.
Magistrate Bayley, after restating the evidence of the witnesses and the CCTV footage, found, in summary, that:
1.Sarah, the offender's sister, had initiated the conversation between herself and the respondent, they shook hands and there was some laughter;
2.Clinton and Matthew Trimby were not known to the respondent. The learned magistrate inferred from the offender's mimed head‑butt that the offender had encouraged Clinton Trimby to approach the respondent in an aggressive manner. The offender had put Clinton and Matthew Trimby up to their part in the events;
3.the Trimby brothers and the offender had surrounded the respondent. They were harassing and pursuing him for no good reason;
4.it was clear to the respondent that the offender and the Trimby brothers were mates. The offender was a physically imposing person;
5.it was reasonable for the respondent to believe that it was necessary for him to protect himself from the offender by the head-butt. The offender had brought the head-butt on himself by his behaviour on the night and also the behaviour of Clinton Trimby who was supporting the offender; and
6.the respondent was acting in self-defence and acquitted him of the charge of common assault.
The resolution of the competing findings of the magistrates for the purpose of determining whether s 39 had application
A general principle previously expressed in this court is that, when making a criminal injuries assessment or on an appeal, neither the assessor or the court on appeal should go behind the court record to assess whether or not an offence has been committed: Goodall v Lee (Unreported and Unpublished, WADC, SJA 15 of 2017, 1 February 2008) (Stevenson DCJ). There is good reason for that approach as the trial court has had the very considerable advantage of seeing all of the witnesses, considering all of the evidence and hearing the arguments of counsel before reaching a view on the matter before it.
To do otherwise would be a collateral attack on the decision of the lower court below: Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251.
Faced with what appeared to her to be competing or inconsistent approaches by the magistrates, the assessor formed the view that she should assess the evidence before her and decide the question of whether the respondent had committed an offence for herself.
The assessor did so and decided, on the balance of probabilities, that she was not satisfied that the respondent committed a separate offence when he was injured.[7]
[7] [Par 9 of her reasons.]
I take the view that the assessor reached the correct answer on whether the respondent had committed an offence within s 39, but, for the purpose of making that determination the assessor's approach would not appear to me to have been correct because there were not really competing verdicts.
The question of whether there the respondent had committed an offence was before Magistrate Bayley, and the answer was 'No'.
Magistrate Smith presided over the trial of the offender. He considered if the head-butt was lawful only for the purpose of resolving whether the prosecution had negated the offender's contention that he was acting in self-defence when he assaulted the respondent.
In the trial of the offender, the prosecution had the onus of proving as against the offender that:
1.the head-butt was lawful; or, one of,
2.the offender did not believe or did not have reasonable grounds to believe that there would be a harmful act by the respondent;
3.the offender did not believe that his act was necessary to defend himself from any further harmful act; and
4.the offender's actions in response to that perceived threat were unreasonable.
In the trial of the respondent, the prosecution had the onus of proving as against the respondent that:
1.the head-butt was an unlawful assault ; and, all of,
2.the respondent did not believe or did not have reasonable grounds to believe that there would be a harmful act by the offender;
3.the respondent did not believe that his act was necessary to defend himself from any further harmful act; and
4.the respondent's actions in response to that perceived threat were unreasonable.
As was pointed out by the amicus curiae, in the trial of the offender there was never any onus on the respondent to establish that he was acting in self-defence or to make good the argument that he was acting in self‑defence when he head-butted the appellant.
The issues before each court in each case were clearly different and the respondent was not a party in the trial of the offender. For those reasons, Magistrate Smith's decision should have carried no weight in the determination of whether the respondent was engaged in a criminal act within the meaning of s 39.
Accordingly, I take the view that s 39 has no application in this case in the circumstances where, as here, the respondent had been acquitted.
In reaching that decision, I do acknowledge that matters might be different had the respondent not been charged with common assault. I do not have to decide that point, but, I tend to the view that in that circumstance Magistrate Smith's decision would not have been conclusive as to the issue and the assessor would have had to consider for herself whether the respondent was engaged in a criminal act.
If I am wrong about whether the assessor needed to make a choice between which Magistrates' decisions was correct, I have reviewed the material including the CCTV footage and prefer the decision of Magistrate Bayley was correct.
Turning now to the application of s 41.
Here, the question is somewhat different: the assessor, and in turn this court, 'must have regard to any behaviour, condition, attitude or disposition of [the respondent] that contributed, directly or indirectly, to [the respondent's] injury or death'.
As was rightly pointed out by the amicus curiae, the question for the court is not whether the victim contributed to the offence, but whether the victim contributed to the injury suffered.
As I have said above, if I determine that the respondent did contribute to his own injury, then the assessor and this court has a discretion under s 41(b) to either refuse to make a compensation award or otherwise reduce the compensation award by reason of that contribution.
The assessor considered whether the respondent, in head-butting the offender, had contributed to his injuries. She formed the view that the respondent's actions in this regard were reasonable and in self‑defence and in all the circumstances the assessor was not satisfied that he had contributed to his injuries. The offender had asserted he was angry over the respondent speaking to his sister and allegedly upsetting her. Whilst the assault by the offender over the head-butt may have been more severe as a result of his anger over the respondent's conduct, the assessor was satisfied that it was likely the respondent would have been assaulted by the offender in any case. The assessor was therefore satisfied he was eligible for compensation.[8]
Given that this is a hearing de novo, I have reviewed the CCTV footage and the other material before the assessor. It is to be kept in mind that it was the offender's conduct in striking the respondent while on the ground and not his conduct in forcing the respondent to the ground that was the subject of the prosecution of the offender and which also caused the injuries to respondent.
On my view of the CCTV footage, it was open to the assessor, and I find, that in circumstances where there were three men closing in on him, and in particular where the offender was making a run at him, for the respondent to take some action (the head-butt) was not remarkable and that should not have led to the beating that the offender gave the respondent while on the ground which beating was the cause of the injury.
Accordingly, I concur with the view expressed by the assessor that given that the offender clearly set out as the aggressor, and the excessive nature of the offender's actions after the ineffective head-butt, that in this case the respondent did not contribute to his own injuries.
If I was wrong about that, in any event, I would not have exercised the discretion to reduce the respondent's compensation by reason of that alone. The reaction of the offender was clearly excessive and out of all proportion to the actions of the respondent.
In reaching that conclusion I note the views expressed by Magistrate Smith at the trial of the appellant when he concluded that the appellant's conduct was excessive in response to the head-butt.[9] Magistrate Smith noted that the appellant's evidence was he had lost control when he was striking the respondent.
Assessment of compensation
[8] [Par 9 of the reasons]
[9] ts 18 (13 March 2012).
I take into account that the assessor is very experienced in the assessment of criminal injuries compensation. That said, certain evidence was not provided to her which establishes that the respondent had required further and ongoing surgical treatment for the injuries he had suffered.
The injuries and the respondent's treatment up to a certain point were described by the assessor at pars 21 ‑ 29 of her reasons and can be summarised as:
1.The respondent presented at Sir Charles Gairdner Hospital where it was recorded he had suffered a period of unconsciousness of approximately five minutes after he was hit and that the respondent had swelling and a small laceration above the left eye and onto the left lower eye lid, had a bloody nose (although no septal deviation or haematoma was then noted), had a full range of movement, a small conjunctival haemorrhage of the left eye, and a facial x-ray revealing no obvious facial fractures.
2.The respondent's file at Royal Perth Hospital shows he was admitted on 28 September 2011 after taking an overdose of Diazepam following the discovery that police were considering charging him with assault for the head-butt.
3.A later psychological assessment of the respondent showed that the respondent had suffered a marked decline in his mental health arising in part from:
(a)the offence;
(b)an expectation that, if charged, he did not expect to be treated justly by the courts. He had a longstanding discontent over the sentence imposed on a driver who had caused the death of his sister some 10 years prior; and
(c)worry about the impact on his employment if he was convicted of an assault.
4.The respondent left the hospital against medical advice but his family later brought him back and he remained as an inpatient until 1 October 2011.
5.A report of Dr Ray Cibulskis, the respondent's GP, dated 12 May 2013 reported that the respondent was admitted to the Perth Clinic between 17 and 22 October 2011 and after his discharge was seen by Dr Tannenbaum, a psychiatrist, on 30 November 2011.
6.The respondent remained under treatment from Dr Tannenbaum through to May 2013.
7.Dr Cibulskis' report also said that the respondent had suffered a swelling of the nasal bones with deviated septum to the right, complained of nasal congestion and snoring, depression, poor sleep and reduced appetite, poor memory, anxiety and stress and loss of esteem and interest in activities previously found to be enjoyable. The respondent was tired, with a loss of libido and continued suicidal thoughts. Dr Cibulskis thought the nose injury had caused the respondent significant breathing difficulties and that the respondent was struggling to deal with the impact of the incident, and reported that the respondent had then been referred for septorhinopalsty and bilateral turbinate reduction to alleviate the nasal symptoms.
8.Dr Tannenbaum's report dated 20 February 2013 followed assessment of the respondent on 13 February 2013 after the respondent had been acquitted of the charge of common assault. The respondent was then still reported a number of symptoms which Dr Tannenbaum described as symptoms of post‑traumatic stress disorder (PTSD), namely recurrent nightmares, poor sleep, hyper vigilance, emotional blunting, depression and anxiety. The respondent had reported to Dr Tannenbaum that he had been having major difficulties in his workplace because the offender was still in the workplace and appeared to enjoy workplace support which led to major levels of anxiety in the respondent. The respondent did report that problems in the workplace had begun to improve more recently.
9.Dr Tannenbaum reported that treatment at Perth Clinic and later by him, included prescription of two antidepressants. This treatment had resulted in remission of only some symptoms relating to the emotional trauma the respondent had suffered and there were still ongoing symptoms. Dr Tannenbaum also reported that the respondent's PTSD symptoms were extremely severe when first seen they had since decreased but the respondent remained a risk of relapse. Dr Tannenbaum considered the respondent would continue to require psychiatric treatment approximately five times per year and consultations with a clinical psychologist, would need to continue to take his medication but there was a 30% chance of relapse within a year.
10.Documents from the Subiaco Private Hospital recorded that the respondent was admitted on 8 March 2012 for a septorhinopalsty and bilateral turbinate reduction of the inferior turbinates with Dr He.
11.The respondent had to attend for further treatment to his nose in September 2013 with Dr Randle for which he made a claim of $9,000 but he did not provide the assessor with sufficient material for her to include further treatment with Dr Randle in any award.
When the matter came on for hearing additional material in support of the respondent's claim was before me in the form of a book of additional documents including medical reports and accounts. At the hearing I was handed a schedule of special damages together with some more supported accounts and a schedule of medical report expenses. I received all of this material and have taken it into account in my consideration of this cross appeal.
The additional documents showed:
1.In a report from Dr Greensmith that:
(a)following the surgery with Dr He, the respondent's nose would collapse during deep inspiration through both nostrils and that the respondent had an extensive saddle nasal deformity;
(b)the respondent then sought help with plastic surgeon, Mr Peter Randle in October 2013 and underwent a further revision, open septorhinopalsty. A small graft by Dr Randle to try and provide more tip support for his nose also failed, in Dr Greensmith's opinion;
(c)a third septorhinopalsty was undertaken with Dr Allen, during which ridge cartilage graft was harvested from the respondent's floating rib area, seemed to be successful on the right-hand side but created quite marked tip asymmetry and prominence of the left nasal bridge. These are new problems that have not been present prior to the first two operations; and
(d)as at review the respondent's nose was very obstructed on both sides, particularly on the left hand side of the external valve region, and further internally as well. There was no remaining source of cartilage to use as support grafts and so he recommended a full rib graft rhinoplasty reconstruction to address major functional problems and a major saddle deformity of his nose. Dr Greensmith recommended further surgery using structural grafting to improve nasal symmetry and deviation. This was definitely a medical issue rather than an aesthetic issue.
2.In January 2017 the respondent underwent a complex major graft rhinoplasty to remove the existing nasal skeleton and rebuild the respondent's nose. This went well and the respondent was pleased with the result from both a functional and secondarily from an aesthetic point of view.
3.Prior to the successful surgery by Dr Greensmith:
(a)in June 2014 the respondent had also seen a Mr M Hansen who appears to have been a plastic surgeon, for a review;
(b)in August 2014 another plastic surgeon, Dr C P Kalis, for initial consultations; and
(c)in September 2014 the respondent saw Mr Vijayasekaran, a plastic and reconstructive surgeon.
4.Further, Dr Ray Cibulskis reported in December 2017 that the respondent's severe anxiety, depression and stress relating to the assault and the injuries he sustained had not settled. The respondent had been referred to see another psychiatrist for ongoing management.
5.The schedule of 'Special Damages' prepared by Separovic Injury Lawyers indicates that the total out of pocket expenses suffered by the respondent with respect with respect to the injury, including his travel expenses to and from Melbourne, for the surgery with Dr Greensmith, amount to some $79,623.22, of which the amount paid by the respondent was $64,521.52 after rebates.
6.The medical report expenses schedule again prepared by Separovic Injury Lawyers indicated that there have also been report fees of some $5,340.15.
The assessor did not have the benefit of the material relating to the surgeries after 2013 or Dr Cibulskis' report of December 2017 when she reached her decision in September 2015.
In light of the new material, there are two respects in which I consider the assessor's award to be inadequate.
First, given that the respondent's injuries resulted in the necessity of some four surgeries over a four year period, I consider the award of $26,000 for general compensation to be inadequate. Taking also into account the number of surgeries and the fact that he has ongoing symptoms relating to his PTSD, I would award the respondent, by way of general compensation, the amount of $40,000.
Second, the s 6 losses (out of pocket expenses) awarded by the assessor were well below those incurred. But for the operation of the statutory maximum, I would award the respondent the whole of his out‑of‑pocket expenses associated with his medical treatment. That sum is, together with the report fees, more than $69,000.00.
I note in the award that the assessor made minor deduction for telephone and phone usage while in hospital of some $25.56 and that she also made no allowance for an amount of $9,000 relating to the nose surgery by Dr Randle. She did so on the basis that there was no report from Dr Randle, but, for my purposes the report from Dr Greensmith provided sufficient information for me to reinstate that sum.
I also note that the assessor would have provided for a gross loss of income of $10,445 which was calculated out to be a net of $7,416, for which she allowed half of the wages because she had reached the conclusion that the loss of wages was in part because of other significant non-compensable stressors, such as workplace issues and the fact that the applicant had been charged with an offence.
The assessor had included in her compensation award compensation for only half the cost of the admission to Perth Clinic for the same reason.
In my view, it is unnecessary for me to consider whether or not the assessor was correct to deduct the minor hospital costs, loss of income and the costs associated with the admission to Perth Clinic because my restated award of general damages together with the other s 6 losses will exceed the statutory maximum.
Accordingly, I am prepared to award him compensation in the sum of $75,000 being the statutory maximum and which is made up of the sum of $40,000 in general damages and so much of the losses under s 6(2)(a) to take it up to the statutory maximum.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CDZ
ASSOCIATE TO JUDGE GILLAN
25 MAY 2018
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