Rule v Jenkin
[2017] WADC 93
•21 JULY 2017
RULE -v- JENKIN [2017] WADC 93
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 93 | |
| Case No: | APP:35/2016 | 29 MAY 2017 | |
| Coram: | LEVY DCJ | 21/07/17 | |
| PERTH | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Further amounts allowed for medical expenses and past loss of earnings | ||
| PDF Version |
| Parties: | MIKAYLA RAE RULE MICHAEL CRAIG JENKIN |
Catchwords: | Criminal injuries compensation Appeal against failure to make awards for future medical expenses and past loss of earnings New evidence Turns on own facts |
Legislation: | Criminal Injuries Compensation Act 2003 s 3, s 6(2)(b), s 12, s 55(1)(b), s 56(1) |
Case References: | A v D (1994) 11 WAR 481 Gullelo v Halloran [2008] WADC 145 Hogben v Darcy [2009] WADC 63 Rule [2016] WACIC 9 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
MICHAEL CRAIG JENKIN
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : H L PORTER
File No : CI 1650 of 2015
Catchwords:
Criminal injuries compensation - Appeal against failure to make awards for future medical expenses and past loss of earnings - New evidence - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003 s 3, s 6(2)(b), s 12, s 55(1)(b), s 56(1)
Result:
Appeal allowed
Further amounts allowed for medical expenses and past loss of earnings
Representation:
Counsel:
Appellant : Mr D Bayly
Respondent : No appearance
Amicus Curiae : Mr M D Workman appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Bradley Bayly Legal
Respondent : Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
A v D (1994) 11 WAR 481
Gullelo v Halloran [2008] WADC 145
Hogben v Darcy [2009] WADC 63
Rule [2016] WACIC 9
- LEVY DCJ:
Introduction
1 On 10 October 2014, the respondent pleaded guilty and was convicted at Mandurah Magistrates Court of an offence of unlawfully wounding the appellant contrary to s 301 of the Criminal Code (WA) (the offence).
2 At the time of the offence, both the appellant and the respondent were 18 years old. They were friends who had known each other for about six years. The appellant and the respondent had attended a party in Dawesville. In the early hours of 12 July 2014 the appellant was sitting on a wall outside the house at which the party had taken place. The respondent was in possession of a flare gun which he caused to be discharged, 'accidentally' injuring the appellant.
3 The appellant suffered an injury to her upper arm which required her to be admitted to hospital. She remained in hospital for seven days. The injuries sustained by the appellant included a burnt upper left arm, which required an operation to clean and dress the wound, as well as stitches to the wound. The injury left her with a large permanent scar.
4 There is no doubt that the respondent was extremely remorseful for his actions. He visited the appellant in hospital every day and apologised to her for his actions. He also made full admissions in a formal interview with police.
5 By an application dated 13 November 2014, the appellant sought compensation pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA) (the Act).
6 On 18 April 2016, the appellant was awarded compensation in the sum of $18,500 pursuant to s 30 of the Act. The compensation was awarded in respect of injuries and losses suffered by her as a consequence of being unlawfully wounded by the respondent.
7 The learned Assessor of Criminal Injuries (the assessor) declined to award compensation for either past loss of earnings or future medical expenses claimed by the appellant. This appeal is now brought against the refusal to allow those claims.
8 For the reasons that follow, I am satisfied that the appeal should be allowed with respect to the appellant's claim for both past lost earnings and future medical expenses.
Nature of appeals to the District Court against an assessor's decision
9 Pursuant to s 55 (1)(b) of the Act, an interested person may appeal to the District Court as to the amount of a compensation awarded by an assessor. The appeal is a hearing de novo: Gullelo v Halloran [2008] WADC 145 [5].
10 The appellant is not required to demonstrate error on the part of the assessor. Although the court is to determine the application afresh without being fettered by the determination of the assessor (s 56(1)), it is appropriate to have regard to the assessor's reasons for decision: Hogben v Darcy [2009] WADC 63 [13]. The court may confirm, vary or reverse the assessor's decision in whole or in part: s 56(2). The appellant does not have to show error on the part of the assessor in order to succeed on an appeal.
11 The court is required to consider the appeal 'solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information': s 56(1).
History of the appeal
12 On 9 May 2016, the appellant filed a Notice of Appeal against the assessor's award on the single ground that the amount of the award was 'manifestly inadequate'. The Notice of Appeal was filed within the time prescribed by the Act.
13 On 12 May 2016, the State Solicitor for Western Australia entered an appearance on behalf of the Chief Executive Officer of the Department of the Attorney General (CEO) as amicus curiae in the appeal.
14 On 28 June 2016, the appeal was listed for a directions hearing before a registrar of the court. Although the CEO appeared via amicus curiae, neither the appellant nor the respondent made an appearance. It appears from the court records that although the appellant was given notice of the directions hearing, as the respondent's address was unknown, he was not informed of the directions hearing.
15 A further directions hearing was listed in relation to the matter on 8 November 2016. By that time, Bradly Bailey Legal had taken over the conduct of the matter on behalf of the appellant. On 8 November 2016 the court made orders that included that the appellant serve copies of relevant documents upon the respondent including:
(a) the Notice of Appeal;
(b) a Form 8 (Notice of Respondent's Intention); and
(c) the orders made on that date, which included that the 'matter be adjourned to 31 January 2017 at 10:30 am for directions only'.
16 On 3 December 2016, the required documents were served upon the respondent pursuant to the orders made by the court on 8 November 2016.
17 On 20 December 2016, the court received the respondent's Notice of Intention to take part in the appeal. That document, which was dated 13 December 2016, noted that the respondent 'will argue the primary court's decision should be upheld on the grounds relied on by the primary court in its decision'. The notice also included both a postal address and a mobile telephone number for the respondent.
18 On 31 January 2017, a further directions hearing took place at the court. Both the appellant and the CEO were represented. The respondent did not appear. Thereafter there were a number of further directions hearings in relation to the appeal at which both the appellant and the CEO were represented. The respondent did not appear, although it is not clear whether he was informed of these direction hearings.
19 The hearing of the appeal was ultimately listed for 29 May 2017. It should be noted that the file which contained all relevant material upon which the learned assessor made her findings, was made available to me for the purposes of the appeal. That file, which I have carefully considered for the purposes of considering this appeal, includes copies of the appellant's application and documents supplied for the purposes of her original application, as well as documents supplied by the Western Australian Police Service. It also includes:
• numerous medical reports and documents;
• witness statements relating to the offence; and
• a letter from the respondent dated 19 October 2015, in which he offered a further apology to the appellant, further evidenced his remorse.
20 In advance of the hearing date, the court received a number of additional documents filed on behalf of the appellant. Those documents included the following:
(a) The appellant's Book of Documents including:
(i) the appellant's statement (undated);
(ii) a Centrelink Medical Certificate dated 21 April 2014; and
(iii) the appellant's Income Tax returns and Notices of Assessment relating to the years 2014 to 2016.
(b) A document titled 'The Plaintiff's [sic] Criminal Injuries Compensation Amended Appeal Submissions for Hearing Dated 29 May 2017'.
(c) the appellant's affidavit sworn on 29 May 2017.
21 The State Solicitor also filed an outline of submissions on behalf of the CEO.
22 On 29 May 2017, the appeal came on for hearing. The appellant was represented by her counsel Mr D Bayly. Mr M D Workman appeared as amicus curiae on behalf of the CEO. There was no appearance for or by the respondent. It became clear to the court that there was a real likelihood that the respondent had not been informed of the hearing date. Furthermore, neither the appellant nor the CEO had served the various documents referred to in [20] above upon the respondent. Consequently, I ordered that the appeal be adjourned and made further orders, including that:
1. the appellant serve upon the respondent all materials and submissions within 7 days;
2. the respondent within 14 days of receipt of any material served upon him be required to file written notice of his intention to continue to take part in the proceedings and to file any submissions or materials he intended to rely upon; and
3. the respondent was further required to notify the court in writing of any intention he had to either cross-examine the appellant, give sworn evidence or call any further witness, in the absence of which the appeal was to be determined on the papers.
23 The court has since been informed by the appellant that the respondent was served with the required documents at his nominated address (recorded on the Notice of the Respondent's Intention) on or about 30 May 2017. As at the date of this judgement, despite the further attempts by the court to contact the respondent (via email at his last known email address), nothing more has been submitted on his behalf.
24 As noted at [11] above, this court has a discretion to receive further evidence and information on the hearing of an appeal: s 56(1). I am satisfied that it is appropriate to receive the additional material set out at [20] above for the purposes of this appeal. Consequently, in allowing this appeal, I take into account not only the evidence and information that was in the possession of the assessor at the time the application was made, but also the further evidence and information supplied on behalf of the appellant on this appeal.
The merits of the appeal
25 The appellant, whilst not seeking to disturb the main findings of the assessor with respect to the compensation awarded to her with respect to the injury to her upper arm and the psychological impact experienced by her, now seeks further awards to cover:
(a) past loss of earning in the sum of $1,835; and
(b) future medical expenses for the treatment of her scar on her upper arm in the sum of $10,000.
26 In response to the appellant's request for written reasons, on 12 August 2016 the learned assessor delivered her reasons for the award of compensation to the appellant in the sum of $18,500: Rule [2016] WACIC 9. The learned assessor did not award compensation for loss of earnings as the appellant had failed to provide any evidence to support this claim: Rule [16]. Nor did the assessor allow the appellant's claim for future medical expenses.
Claim for future medical treatment
27 In relation to the appellant's claim for future medical treatment relating to the scarring she suffered to the upper arm, the learned assessor concluded that the appellant had failed to satisfy her pursuant to s 48 of the Act that the appellant was likely to incur further expenses for medical treatment to the scar. In this regard, the learned assessor relied upon a report form Dr Vijayasekaran dated 2 February, 2016. In that report, Dr Vijayasekaran says as follows:
She has a difficult problem to fix. She would require an exploration and neurolysis which may improve the Tinel's symptoms however it may actually potentially worsen her symptoms due to the devascularisation of the nerve segment that would be embedded in the scar.
With regards to correction of the scar, her options include excision of the scar and an approximation of the underlying subcutaneous tissue … Other options include tissue expansion and subcutaneous fat injection. Both of these procedures have questionable success and will potentially place more scars on her arm.
She has asked me how much this will cost approximately. As she is uninsured she would need to factor in costs of approximately $10,000 which will involve potential multiple operations, admission, anaesthetic and theatre fees. She's going to think about what we have discussed however she feels she is unlikely to proceed with scar revision as the success is not predictable.
28 Ultimately, the learned assessor concluded that 'as it was the opinion of Dr Vijayasekaran that treatment was unlikely to be of benefit of [sic] the applicant, [the learned assessor] was not satisfied pursuant to s 48 of the act that it was likely that she would incur expenses for such treatment' (Rule [16]). The appellant submits that the perception formed by Dr Vijayasekaran that the appellant was unlikely to proceed with scar revision was misconceived.
29 I note that in a letter to the assessor dated 13 August 2015, the appellant wrote:
I am no longer comfortable wearing short sleeved clothing as I am very self-conscious of the scar … I have also been referred to a plastic surgeon to seek advice on improving the scar and underlying scar tissue.
I would like to request an interim payment to assist the plastic surgeon fees as I do not have the financial capacity to pay further costs.
30 At par 14 of the appellant's affidavit sworn on 29 May 2017 she unequivocally states that it is and was her intention to have the procedures recommended by Dr Vijayasekaran once she had sufficient funds to do so.
31 On 18 December 2015, the appellant again wrote to the assessor wherein she wrote:
I have decided I will wait for the scar revision treatment and quote until after my application is finalised.
- The inference to be drawn from that letter was that she intended to proceed with the medical procedures after she had:
• received an award of compensation; and
• a quote from Dr Vijayasekaran.
32 The appellant's affidavit is consistent with both the letters she wrote to the assessor referred to at [29] and [31] above. I note that whilst Dr Vijayasekaran expresses the view that there are risks associated with the medical procedures outlined in his report, he neither suggests that they will not be successful nor that the appellant should not proceed with them.
33 Consequently, I am satisfied pursuant to s 6(2)(b) and s 48 of the Act, that it is likely that the appellant will reasonably incur further medical expenses for treatment that she is likely to need as a direct consequence of the injury suffered by her. I am satisfied that this amount is likely to be about $10,000.
Claim for past loss of earnings
34 In order to maintain a claim for compensation for economic loss, the appellant must establish a loss of earnings by reason of the offence, and the loss must be a direct consequence of the injuries she suffered: s 6(2)(c) of the Act. Loss of earnings includes loss of earning capacity: A v D (1994) 11 WAR 481, 489.
35 The appellant frankly concedes that the evidence necessary to make the relevant findings of past loss of earnings was not before the learned assessor at the time of her original application. That deficiency has now been remedied by the provision of:
(a) The appellant's affidavit wherein she deposes that:
(i) she was at the time of the injury working as a childcare worker earning approximately $367 net per week;
(ii) that as a result of the injuries, she was required to take time off work being the period between 12 July 2014 and 31 July 2014, as well as being unable to work for an additional three weeks thereafter; and
(iii) that she lost an estimated $1,835 net in earnings as a result of the injury she suffered.
(b) A medical certificate confirming that she was medically unfit between 21 July 2014 and 31 July 2014.
(c) Her tax returns and notices of assessment for the period between 2014 and 2016 confirming her employment and income as a childcare worker.
36 I am satisfied that the appellant suffered a loss of earnings as a direct consequence of the injury suffered by her as a victim of the offence. I am satisfied that it is reasonable to allow the sum of $1,835 being the equivalent five weeks net earnings.
Conclusion and Final Orders
37 The appeal is allowed. In addition to the learned assessor's original compensation award to the appellant in the amount of $18,500 made with respect to the injuries and losses suffered by her, I order that the following further amounts of compensation be allowed, namely:
• $10,000 for further medical expenses for treatment that she is likely to need as a direct consequence of the injury suffered by her.
• $1,835 for loss of earnings as a direct consequence of the injury suffered by her as a victim of the offence.
Costs
38 It is open to the court to allow costs against an unsuccessful party in favour of the successful party. An award of costs must be made in accordance with the scale of costs prescribed by the Criminal Injuries Compensation Regulations 2003 (WA).
39 In my view, since the respondent did not appear at the hearing of the appeal or any of the directions hearings, and the appeal has ultimately been determined on the papers, it cannot be said that he has contributed in any real way to the costs of the appeal. In the circumstances of this case, it would not be appropriate to award costs against the respondent. Nor should costs be ordered against the CEO who assisted the court via amicus curiae.
Final order
40 The appellant is awarded the total sum of $30,335 (being the amount made up of the original award of $18,500 plus the further awards of $10,000 and $1,835 which are explained at [33] - [37] above).
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