Stumpagee v Sampi
[2022] WADC 28
•25 MARCH 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: STUMPAGEE -v- SAMPI [2022] WADC 28
CORAM: BURROWS DCJ
HEARD: 25 FEBRUARY 2022
DELIVERED : 25 MARCH 2022
FILE NO/S: APP 67 of 2021
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: CLINTON STUMPAGEE
Appellant
AND
ZALEMIA JOHN SAMPI
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: R GUTHRIE
File Number : CIC 1257/2021
Catchwords:
Criminal injuries compensation - Proved offence - Whether conduct of claimant contributed to his injuries - Assessment of compensation - Turns on its own facts
Legislation:
Criminal Injuries Compensation Act 2003 (WA), s 12(1), s 12(3)(a), s 41, s 43, s¤45(1)(b), pt 6, s 60, s 52, s 55(1)(b), s 55(3), s 56(1) and s 56(2)
Result:
Appeal allowed
Compensation awarded
Representation:
Counsel:
| Appellant | : | Mr N F Morrissey |
| Respondent | : | No appearance |
| Amicus Curiae | : | Mr E A Heywood on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Patrick J Cannon Co Coburn & Associates Pty |
| Respondent | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
A v D (1994) 11 WAR 481
B v W (1989) 6 SR (WA) 79
Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bodney v Assessor of Criminal Injuries Compensation [2000] WADC 214
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143
CJA v RJC [No 2] [2003] WADC 128
DNA v Britten (1995) 14 SR (WA) 325
Dos Santos v Dos Santos [2000] WADC 256
Fairhead v Quartermaine [2010] WADC 1; (2010) 69 SR (WA) 73
Foote v Draper [2003] WADC 17; (2003) 31 SR (WA) 105
Gullelo v Halloran [2008] WADC 145
Harris v Sycamore [2022] WADC 4
Hinchcliffe v Hinchcliffe [2010] WADC 78
Jones v Macey [2000] WADC 101
KMA v DFS [2010] WADC 6
Lanyon v Northern Territory of Australia [2002] NTSC 6
MBP v LKP [2018] WADC 65
Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221
P v C [2005] WADC 107
Reed v Reed [2002] WADC 11
S v Neumann (1995) 14 WAR 452
Scott v Victims Compensation Fund Corporation [2000] NSWSC 1148
Syme v Roos [2016] WADC 164
Underwood v Underwood [2018] WADC 13
WHW v Commissioner of Police [2014] WASCA 153(S)
BURROWS DCJ:
On 29 June 2021 the appellant made an application under s 12(1) of the Criminal Injuries Compensation Act 2003 (WA) (the Act) in respect of injuries and losses suffered as a result of a proved offence. In this case the proved offence is unlawfully doing grievous bodily harm in respect of which the respondent was convicted and sentenced by Vernon DCJ on 22 July 2019 in the District Court at Broome to a term of 3 years 4 months immediate imprisonment.
Background facts
The appellant and respondent are distant cousins. On the evening of Thursday, 11 October 2018 the two became involved in an escalating argument over alcohol. The following morning, 12 October 2018, the appellant went to the respondent's house in Broome, knocked on his door and called him to come out to fight him. The appellant then went across the road to the driveway of his uncle's home, still calling out for the respondent to fight him. The respondent came out of his house with a metal baseball bat. He held the bat in his right hand hanging down against his body hoping that this would scare the appellant away. The appellant remained where he was. The respondent then held the bat up and told the appellant to stop coming around banging on the door and swearing. The respondent then swung the bat hitting the appellant on the left shin. He immediately swung the bat again hitting the appellant to the left side of the head. He then hit the appellant's shin once more with the bat causing the appellant's leg to break and the bone to protrude through the skin causing a compound fracture. The respondent and his partner then drove the appellant to the Broome Health Campus (BHC) where the respondent admitted to medical staff that he caused the injuries to the appellant. The appellant was transferred from BHC to Royal Perth Hospital (RPH).[1]
[1] Sentencing facts, 22 July 2019, ts 3 - ts 4.
Assessor's decision
The appellant applied for compensation. He was awarded the sum of $35,000. The initial award amount of $40,000 was reduced by 12.5% by the assessor to $35,000.00 for contributory behaviour on behalf of the appellant.[2]
[2] Compensation award dated 20 August 2021 sent undercover of letter to appellant dated 25 August 2021.
The assessor ordered that the appellant be paid nothing and ordered that the State be paid $35,000. This was done with reference to two previous compensation reimbursement orders.[3] Pursuant to an application made under s 50 of the Act, the assessor ordered the sums of $20,000 and $15,000 to be reimbursed to the Department of Justice. The assessor accordingly reduced the amount payable to the appellant pursuant to s 43 of the Act by $35,000. Pursuant to s 45(1)(b) of the Act, the assessor made an order that only $30,000 may be the subject of recovery proceedings against the respondent under pt 6 of the Act.
[3] CIC 1324/2009 and CIC 3473/2017.
On 14 September 2021 the appellant filed a notice of appeal against the decision of the assessor. The appeal was filed four days out of time. The assessor has not published reasons and no request was made of the assessor to provide written reasons pursuant to s 27(1) of the Act. The sole ground of appeal is the assessor did not give sufficient weight to the injuries sustained by the appellant. In written submissions the appellant sought to extend the ambit of his claim to include loss of earnings and future medical treatment expenses, neither of which were contained in his application for criminal injuries compensation.
There is no challenge to the orders made pursuant to s 43, s 45 and s 50 of the Act as outlined in [4] hereof.
The respondent was served with the notice of appeal on 30 November 2021.[4] The respondent has elected not to take part in the appeal.
[4] Service certificate dated 14 December 2021.
The appeal raises four issues:
1.Whether the appellant should be granted leave to appeal out of time.
2.Whether a compensation order can be made and if so, the appropriate quantum of a compensation award.
3.Whether any behaviour, condition, attitude, or disposition of the appellant contributed directly or indirectly to his injury thereby engaging s 41 of the Act. If it did, whether any compensation award should be refused or reduced.
4.Whether the appellant is entitled to claim costs in the appeal.
Principles governing the appeal
Section 55(1)(b) of the Act gives a right of appeal to this court against an assessor's decision as to the amount of a compensation award. An appeal must be commenced within 21 days after the date of the assessor's decision: s 55(3). If it is just to do so, this court may allow an appeal to be commenced after the 21 days even if the period has expired: s 55(4). The appeal is to be conducted in accordance with the rules of the District Court: s 55(5).
On appeal the court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor, or may receive further evidence and information: s 56(1).
The appeal is a hearing de novo.[5]
[5] Gullelo v Halloran [2008] WADC 145 [5].
The court may exercise any power of an assessor under the Act: s 56(2). The court may confirm, vary or reverse the assessor's decision, either in whole or in part.[6]
[6] Dos Santos v Dos Santos [2000] WADC 256 [3]; Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221 [40].
The appellant does not need to demonstrate to the court that the assessor made any error in order to succeed in the appeal.[7]
[7] Gullelo v Halloran [5].
The appellant's claim is based on a proved offence.
Section 3 of the Act defines 'proved offence' to mean a crime, misdemeanour or simple offence of which a person has been convicted.
The court can only make an award if it is satisfied on the balance of probabilities that the claimed injury and any claimed loss occurred and such injury or loss was as a consequence of the commission of the proved offence: s 12(1). The words 'as a consequence of' require a causal relationship or connection.[8] The causal relationship is a question of fact to be resolved as a matter of common-sense.[9] It is sufficient that, as a matter of ordinary common-sense, the offence should be regarded as having 'materially contributed' to the harm.[10]
[8] Underwood v Underwood [2018] WADC 13 [87].
[9] Bennett v Minister of Community Welfare (1992) 176 CLR 408, 412 - 413.
[10] Bonnington Castings Ltd v Wardlaw [1956] AC 613, 620.
Relevantly 'Injury' is defined to mean bodily harm: s 3.
'Loss' in the case of a victim who is injured means expenses that have been incurred arising from the injury, expenses that are likely to be incurred for treatment of the injury, loss of earnings and loss due to damage to personal items that the victim was wearing at the time of the injury: s 6. Loss of earnings includes loss of earning capacity.[11]
Receipt of further evidence
[11] A v D (1994) 11 WAR 481, 489; KMA v DFS [2010] WADC 6 [27].
The appellant sought leave to adduce further evidence pursuant to s 56(1) of the Act, being:
1.Report of Dr Philip Hardcastle, consultant orthopaedic surgeon, dated 10 February 2022.
2.Supplementary report of Dr Philip Hardcastle dated 15 February 2022.
3.Invoice from Next Health in respect of the preparation of Dr Hardcastle's reports in the sum of $2,640.
4.RPH discharge summaries dated 17 October 2018, 6 May 2019, 13 December 2019, 21 January 2020, 29 January 2020, 24 April 2020 and 26 February 2020.
5.Report of Dr Catherine Norton, orthopaedic consultant to Dr Michael Wren, orthopaedic consultant, dated 14 January 2020.
6.Report of Dr Michael Wren to BHC dated 27 November 2019.
7.Report of Dr Michael Wren to Dr Daniel Meyerkort, orthopaedic consultant, dated 30 October 2019.
8.Royal Perth Hospital operation reports relating to operation dates 13 October 2018, 11 April 2019, 26 April 2019, 8 October 2019 and 28 November 2019.
9.Undated statement of Christina Stumpagee filed 14 February 2022.
None of these documents were before the assessor.[12]
[12] Affidavit of Thomas James Patrick Cannon sworn 22 February 2022, par 7.
By affidavit dated 22 February 2022 the appellant's solicitor Mr Cannon deposed that he had difficulty locating the appellant in order to have him reviewed by Dr Hardcastle. The initial referral and request for a report was sent to Dr Hardcastle in October 2020. The appellant was eventually interviewed by Telehealth by Dr Hardcastle on 8 February 2022. Earlier attempts to have the appellant reviewed on 21 September 2021 by Mr Wren were unsuccessful because of COVID‑19 issues. The appellant's solicitors, who are based in Victoria, were unable to travel to Western Australia and the Kimberley to assist the appellant in obtaining the orthopaedic review.
The court has a wide discretion to determine the matter solely on the evidence and information in the possession of the assessor or to receive and admit further evidence on the appeal: s 56(1) of the Act.
Further evidence should be admitted unless there is some reason why it would be unjust to do so.[13]
[13] Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143 [37]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9].
In this case there is no reason why it would be unjust to receive the RPH discharge summaries, the report of Dr Norton, the reports of Dr Wren and the operation reports from RPH in this matter. These documents detail the treatment the appellant has received in respect of his injuries and inform Dr Hardcastle's opinion. There is also no reason why it would be unjust to receive Ms Stumpagee's statement. Ms Stumpagee is the sister of the appellant. Her statement contains her observations of the impact of the injuries upon the appellant. Accordingly leave to adduce the additional evidence was granted at the hearing of the appeal.
It is, however, regrettable that the RPH documents were not provided to the assessor when they were clearly available. It is also unfortunate that the review by an orthopaedic surgeon was not facilitated and a report provided when the matter was still before the assessor for consideration. Had these documents been provided to the assessor then they would have likely impacted on his assessment of compensation and an appeal to this court may not have been necessary.
Should the appellant be granted leave to bring the appeal out of time?
The appeal was filed four days out of time on 13 October 2021.
Mr Cannon deposes that he reviewed the letter from the assessor dated 25 August 2021 attaching the compensation order which was dated 20 August 2021.[14] Mr Cannon acted under the misconception that the appeal period ran from 25 August being the date of the letter as opposed to 20 August being the date of the order.
[14] Affidavit sworn 22 February 2022.
The court should grant an extension of time if it is just to do so. The discretion to extend time is given for the sole purpose of enabling the court to justice between the parties.[15]
[15] MBP v LKP [2018] WADC 65 [34] - [36].
In my view the appeal has merit, the delay was short and the reasons for the delay are adequately explained. There is no prejudice occasioned to the respondent by the delay. Leave to appeal out of time is therefore granted.
Whether a compensation order can be made and if so, the appropriate quantum of a compensation award
Injuries
The appellant's injuries included:
(a)comminuted fractures to the left tibia and fibular with two skin breaks to the shin and ankle;
(b)a laceration to the scalp above the left ear;
(c)an undisplaced fracture to the left temporal bone (the skull behind the ear), with ongoing bleeding in the ear canal;
(d)subdural haemorrhaging in the right temporal area (bleeding around the brain);
(e)a fracture to the left orbital floor; and
(f)dislocation of the temporomandibular joint.[16]
[16] Sentencing facts, 22 July 2019, ts 3 - ts 4.
The appellant suffered a subsequent infection. That infection has been ongoing and ultimately chronic. The appellant has developed osteomyelitis in his left lower leg that has become chronic, that is, inflammation or swelling occurring in the bone, and cellulitis.
Treatment
The appellant was initially treated at BHC. The laceration to the right side of his scalp was sutured using staples. He was transferred to RPH on 13 October 2018 by Royal Flying Doctor Service. He was admitted and underwent surgery to insert a left tibial nail and screws for the open fracture.[17] The appellant was discharged, weightbearing using crutches, on 17 October 2018 after having been an inpatient for five days.
[17] Dr Philip Hardcastle's report dated 10 February 2022, pages 1 - 2; RPH discharge summary dated 17 October 2018.
In April 2019 the appellant re‑presented at BHC with a swollen left ankle and ulcer over the screw site. He was flown to RPH where he was admitted on 9 April 2019 and diagnosed with chronic osteomyelitis and non-union of the ankle joint with infection. The RPH discharge summary comments that the appellant 'was lost to follow up' before his presentation at BHC. The appellant underwent surgery to have the tibial nail removed. The site was debrided with three organisms cultured. He was treated as an inpatient with intravenous antibiotic therapy. Further debridement was carried out with staphylococcus epidermidis infection being isolated. The appellant was an inpatient for 28 days until 6 May 2019. Upon discharge three months of antibiotic therapy was arranged at home. According to the discharge summary dated 13 December 2019, only three weeks were completed.
The appellant was again transferred from BHC to RPH on 6 October 2019. The tibial nail was infected. The nail was removed and the bone debrided on 8 October 2019. There was concern about viability of the bone in the area which was noted not to be bleeding on drilling. The appellant was to have a further course of intravenous antibiotic therapy but his attendance on the ward was, according to Dr Wren, infrequent. It was decided that intravenous therapy was unsafe when the appellant was absent from the ward for the majority of time. Oral antibiotic therapy was to commence but did not occur while the appellant was an inpatient and he was not provided any oral antibiotics on discharge.
The appellant was discharged after 17 days on 22 October 2019. He was then seen at Dr Wren's outpatient clinic on 30 October 2019 when a staged procedure to achieve alignment of the tibia and treatment with an ilizarov frame was put in place. An ilizarov frame is a ring like brace applied to the outside of the leg and connected using tensioned wires to the unbroken part of the bone in the leg.[18] A year of antibiotic treatment to eradicate infection was considered necessary. Dr Wren noted that the appellant had good intentions to comply with ongoing treatment on the ward but practical compliance was proving difficult. His social circumstances were recorded as precarious with hostel accommodation in Perth and enquiries were being made for long‑term accommodation in Perth.[19]
[18] Report to orthopaedic surgeon, Mr Daniel Meyerkort, dated 30 October 2019, fellow orthopaedic surgeon, Mr Michael Wren; RPH discharge summary dated 13 December 2019.
The appellant was readmitted to RPH between 28 November and 13 December 2019 for the planned osteotomy (surgical cutting or sectioning of the bone) of the fibula and application of an ilizarov frame which took place on 28 November 2019. Upon discharge the appellant indicated he was willing to stay in Perth for post‑operative follow up and orthopaedic management. He was considered to be a high risk of non‑adherence to intravenous or post‑operative therapy.[20]
[20] RPH discharge summary dated 13 December 2019.
The appellant attended the BHC Emergency Department on 10 January 2020. The presenting history records that he was mobilising on crutches when he slipped and fell. He was transferred to Perth where he was an inpatient at RPH for seven days between 15 January 2020 and 21 January 2020. Infection of the ilizarov frame was noted. The appellant self‑reported non‑compliance with antibiotic therapy.[21]
[21] RPH discharge summary dated 21 January 2020.
The appellant was again hospitalised at RPH for seven days between 23 and 29 January 2020 after falling onto the ilizarov frame. He reported being non‑compliant with antibiotics.[22]
[22] RPH discharge summary dated 29 January 2020.
The appellant was again hospitalised at RPH for five days between 22 and 26 February 2020 on account of ongoing pain in the left tibia. At that time he had no fixed accommodation and was to return to One Arm Point to be 'with family for better compliance with medical treatment'.[23]
[23] RPH discharge summary dated 26 February 2020.
The appellant was again admitted as an inpatient for 12 days between 13 and 24 April 2020 for orthopaedic management of his chronic left tibia osteomyelitis. The RPH discharge summary records '… due to the regional travel restrictions imposed in light of COVID 19, Mr Stumpagee was unable to travel from Broome to One Arm Point community, and was therefore without antibiotic supply'.[24]
[24] RPH discharge summary dated 24 April 2020.
The appellant presented to the BHC Emergency Department on 7 June 2020 with increased swelling and purulent discharge from pin sites of the ilizarov frame. The appellant was subsequently admitted to BHC from 10 ‑ 13 June 2020. The hospital notes record that he realised the importance of antibiotic treatment and was willing to continue it.[25]
[25] BHC Emergency Department continuation notes dated 14 June 2020.
The appellant was seen in the BHC Emergency Department on 14 July 2020 reporting increased pain to his lower left leg. He was not using crutches at this time and had not taken the antibiotic prescribed for over a week.
The BHC Emergency Department notes dated 25 July 2020 record the appellant again presented reporting increased pain to the left leg after hitting the leg with a sign. The ilizarov frame had been in situ for 16 months. The appellant disclosed to hospital staff that he had been sleeping rough, he was homeless and living in an unhygienic environment. His compliance with antibiotics was noted as questionable.[26]
[26] BHC Emergency Department notes dated 25 July 2020.
Dr Hardcastle's evidence is that the ilizarov frame was removed in 2021.
In this case it is relevant to treatment obtained that the appellant is an Indigenous man who resides mostly at One Arm Point, an Aboriginal community located approximately 200 km north‑east of Broome on the Dampier Peninsular. It is clear from the hospital notes from both BHC and RPH that he has had issues with accommodation and accessing antibiotics from time to time. It is also clear that his compliance with taking his antibiotic medication has been sporadic.
During the hearing of the appeal, I raised the question with the parties as to whether the subsequent conduct of the appellant in not taking antibiotic treatment caused or contributed to the infection and asked for submissions on this point.
The appellant's counsel submits the infection is a result of the injury to the left leg sustained in the assault. That the appellant was hospitalised so extensively from late 2018 to early 2020, is consistent with a person who was in need of, and received, significant treatment for his injuries. Counsel submits at its highest the evidence in the hospital notes shows some non‑compliance from the appellant in following treatment recommendations, but does not establish that the appellant has unreasonably refused treatment or that if he fully complied with all treatment recommendations, he would have avoided infection, non-union of his fracture, deformity and disability.
The amicus pointed to the appellant's sporadic compliance with antibiotic treatment which I have outlined and raised the issue as to whether such conduct could raise the considerations in s 41 of the Act resulting in the reduction of an award of compensation.
In this case I accept the submission of counsel for the appellant.
The appellant is an Indigenous man who resides in a remote community a significant distance away from the nearest hospital in Broome. It is clear that he has on numerous occasions sought out medical treatment for the non‑union of the fracture and when his leg has become infected. This is reflected in the number of hospital admissions from 2018 to 2020 and attendance in 2021 when the ilizarov frame was removed. There is no medical evidence before the court that the appellant's intermittent non‑compliance with antibiotic treatment has contributed to the non‑union of the fracture. Taking into account the personal circumstances of the appellant, namely that he has experienced periods of homelessness and lack of access to antibiotics, I do not consider this to be a case where it could be said there has been a deliberate decision not to follow medial advice such that the considerations under s 41 of the Act came into play.
I am satisfied, having reviewed the hospital notes, that there is no medical evidence linking the cause of infection to the appellant's actions. The infection is causally connected to the initial injury.
I am satisfied the injuries sustained by the appellant to his head and left leg were as a direct result of the assault with the baseball bat by the respondent upon him.
The subsequent infection to the left leg was as a direct consequence of the assault.
What is the appropriate quantum of a compensation award?
The maximum amount of compensation that may be awarded for a single offence is $75,000: s 31(1). The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases.
The correct approach in fixing the appropriate amount of compensation is 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.[27]
[27] S v Neumann (1995) 14 WAR 452, 463.
In assessing the amount of compensation which should be awarded, I must have regard solely to the injury suffered by the appellant in consequence of the commission of the offence, and not to the seriousness of the offence. The amount is not to be fixed as punishment of the respondent. Nor should it represent an expression of sympathy for the appellant.[28]
[28] B v W (1989) 6 SR (WA) 79, 89; DNA v Britten (1995) 14 SR (WA) 325.
In his victim impact statement dated 29 June 2021 the appellant gave evidence that:
1.During the assault from the respondent his left leg opened up and his bone was sticking out.
2.The pain was bad in both his head and his leg.
3.He could not hear because of blood in his ears.
4.When his hands went down for his broken leg the respondent hit him with the baseball bat in the side of left neck and throat and he remained conscious while this occurred.
5.After arriving at BHC he had to wait five to 5 - 6 hours for the Royal Flying Doctor Service transfer.
6.He received about five staples in the left side of his head.
7.His treating doctors put plates in his left leg.
8.He was told he had a fractured skull.
9.He has suffered a lot of pain because of the assault.
Statement of Christina Stumpagee
Ms Stumpagee is the sister of the appellant. She lives at One Arm Point. She states:
•The appellant has had a lot of trouble with his leg.
•He had a frame on it for almost a year and a half. She has witnessed him being in pain.
•Four years on he still limps and is in pain.
•He is unable to go out hunting, getting mud crabs and walking long distances to get good fishing spots.
•He is unable to work on tour groups coming through the Dampier Peninsula that he wanted to do prior to sustaining the injury.
•He is unable to work with the trochus shell collecting at One Arm Point because of his lack of balance and his inability to lift heavy things.
•The appellant is frustrated by his injury and finds it hard to speak for himself.
Reports of Dr Philip Hardcastle
Dr Hardcastle has prepared two reports.[29] He was requested to provide a report by way of letter dated 1 October 2020. At that time the appellant's application for criminal injuries compensation was not before the assessor. The application was filed on 29 June 2021. Dr Hardcastle did not indicate when he spoke to the appellant and to Ms Christina Stumpagee. It seems from the affidavit of Mr Cannon,[30] that the interview with the appellant was conducted on 8 February 2022 following multiple telephone calls to the appellant's extended family in late January and early February 2022 to locate him and to put him in touch with Dr Hardcastle for review.
[29] Dated 10 February 2022 and 15 February 2022.
[30] Dated 22 February 2022.
Making an allowance for the fact that the appellant is an Indigenous man who resides in One Arm Point, it is clear that he has not facilitated the provision of an orthopaedic opinion by engaging with his lawyers and an orthopaedic specialist at an earlier time. As I have said earlier in these reasons, it is regrettable that an orthopaedic opinion was not before the assessor. The appellant's actions in his conduct regarding the application does have an impact on his application for costs of the appeal, which I will return to later in these reasons.
Dr Hardcastle notes that the fixator (ilizarov frame) was in place until mid‑2021. Since its removal, the appellant has had ongoing pain, swelling and deformity to his lower left leg with limited physical capacity. He said the CT of the cervical spine did not demonstrate any specific traumatic pathology. The CT report of 13 October showed evidence of a displaced fracture of the left temporal bone involving the external auditory canal and middle ear and a left orbital floor fracture with anterior subluxation of the left mandibular condyle with malocclusion.
The appellant reported to Dr Hardcastle that he is now living by himself at One Arm Point and does not move between communities. He has not worked since the incident. He said he limps and was provided with a splint which he had lost. He takes regular medication for infection, one tablet a day of Resprim Forte and uses Panadol once a week for pain. His physical capacity is limited. He can walk 50 m or more before having to stop for a rest. He can go up and down stairs but is limited. The appellant indicated that he could climb rocks, but it is difficult and he is limited with spear fishing, only being able to do this in shallow water and is limited to the number of fish he can catch when he is hunting, as well as the lifting and carrying of different weights. He described the left ankle as becoming painful and swollen when he walks on it.
In Dr Hardcastle's opinion, despite wearing an external fixator for a protracted period of time after the nail was removed, the appellant has been left with a deformity of his lower limb on the left side, which limits his physical capacity for walking, standing and negotiating any inclines. He also has restricted capacity for carrying weights and doing general physical activities without regular breaks. In terms of capacity to work the appellant indicated to Dr Hardcastle that he would be able to act as a tour guide mud crabbing because the work is performed on a flat surface and is not physical. He doubted whether he would be able to return to do station work and was limited with his hunting.
In Dr Hardcastle's opinion, the level of disability relates to predominantly weightbearing with walking and standing. He considered the appellant to have 25% loss of left lower limb function as a direct result of the injury. This condition limits his capacity for weightbearing for periods of time, restricts his walking and any running and there would be limitations with respect of climbing hills, rocks and other uneven type situations. It would also affect his capacity for carrying reasonably heavy weights.
I accept Dr Hardcastle's assessment in this regard.
Dr Hardcastle noted the photographs provided to him by the appellant showed quite significant swelling in the lower third of the tibia and scarring. I find the photographs are consistent with those observations.
In his second report, Dr Hardcastle opined that the appellant does not require any future treatment apart from the occasional use of medication, likely to be around 10 Panadol tablets per week at a cost of approximately $50 per year. He said the appellant does his own rehabilitation with hunting and fishing, which is appropriate. He is not of the opinion that the appellant will require any further surgery at this stage.
The task of assessing the appropriate amount of compensation can only be carried out by way of a broad and subjective assessment of what, according to community attitudes, would be regarded as reasonable compensation.[31]
[31] Harris v Sycamore [2022] WADC 4 [187] (Troy DCJ).
The following factors persuade me that the award for non‑pecuniary loss was inadequate:
(a)The appellant suffered two fractures to the head, bleeding to the brain and in the ear canal in addition to a serious fracture of the left tibia. The injuries were diverse and serious.
(b)The appellant required five operations on his left tibia between 13 October 2018 and 28 November 2019. He subsequently underwent the removal of the ilizarov frame in 2021.
(c)The appellant required multiple inpatient admissions to both RPH and BHC throughout the period October 2018 to July 2020 in order to rectify the non‑union of the fracture of the left tibia, to insert and remove pins and screws, for the insertion of the ilizarov frame and for treatment for the chronic bone infection.
(d)The appellant was required to wear the ilizarov frame for approximately 18 months.
(e)The appellant continues to suffer with pain and swelling to his lower leg.
(f)The injury has affected his ability to walk on uneven surfaces to climb and run and carry weights. He has a level of disability of 25% loss of the lower limb function as a direct result of the assault.
Taking into account these factors, in my view an award of $70,000 is appropriate for an injury of this severity and impact. This amount includes an allowance for the need for Panadol tablets in the future.
Loss of earning capacity
The appellant made no claim for loss of earning capacity in his claim to the assessor. In the submissions filed in support of the appeal, the appellant now claims loss based on the following:
1.A reference in the medical report dated 30 October 2019 of Dr Wren to Dr Meyerkort, which says 'he does some work at the hatchery at One Arm Point and trochus shell collecting. He is hoping that once he recovers to start his own business doing mud crabbing'.
2.The statement of Ms Stumpagee that her brother wanted to work on the tour groups that come through the Dampier Peninsula but was unable to do so because of his leg and that he had been doing work at One Arm Point trochus shell collecting.
3.The comment in Dr Hardcastle's report dated 10 February 2022 that the appellant doubts he would be able to go back and do station work.
There is no reference to employment in Mr Stumpagee's victim impact statement, nor his police statement. The appellant has not produced any evidence of earnings in the form of tax returns or letters from employers confirming that he worked at the One Arm Point turtle hatchery collecting trochus shells or as a station hand. No evidence has been produced of employment available to the appellant conducting tours of the Dampier Peninsula.
The appellant refers to the principles summarised by Gething DCJ in Syme v Roos,[32] that an injured plaintiff must establish both that their injuries have resulted in a diminution of his/her earning capacity and that is productive of financial loss: it is usually convenient to access economic loss by reference to the actual loss of wages which occurs up to the time of trial.
[32] Syme v Roos [2016] WADC 164 [157].
In assessing future loss, what the plaintiff earned in the past provides useful but not determinative guidance about what the plaintiff would have earned if the plaintiff had not been injured. Where there are too many imponderables to make any precise calculation of the damages to be awarded for loss of earning capacity, a global amount may be awarded (citations omitted).[33]
[33] Syme v Roos [158].
In this case, there is no evidence which has been filed to support any claim for loss of earnings. The evidence referred to by the appellant is insufficient to enable the court to make any calculation regarding an award for loss of earning capacity. To do so would be to speculate in the abstract. In this case there should be no award for loss of earning capacity.
Did any behaviour, condition, attitude, or disposition of the appellant contribute directly or indirectly to his injury thereby engaging s 41 of the Act? If it did, should any compensation award be refused or reduced?
In deciding whether or not to make a compensation award, or the amount of a compensation in favour of the victim a court must have regard to any behaviour, condition or attitude or disposition of the victim that contributed, directly or indirectly to the victim's injury: s 41 (a). The court may refuse to make a compensation order because of that contribution or reduce the amount that would have otherwise been awarded: s 41(b)(i) and (ii).
Any reduction made to an award of compensation under s 41 of the Act must be applied after the jurisdictional maximum is applied.[34] Section 41 may be applicable in an appropriate case where the victim's conduct provoked an assault.[35] Whether or not the respondent's behaviour, condition, attitude, or disposition will preclude or reduce any award of compensation is a matter of fact and degree to be determined in light of the particular circumstances.[36]
[34] Reed v Reed [2002] WADC 11 [24] (Deane DCJ); Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377, 381 (Sadleir DCJ).
[35] Harris v Sycamore [2022] WADC 4 [128] (Troy DCJ).
[36] Lanyon v Northern Territory of Australia [2002] NTSC 6 [26]; Bodney v Assessor of Criminal Injuries Compensation [2000] WADC 214 [27] - [29]; Reed [21].
In relation to s 41, the following findings by the sentencing judge are relevant:[37]
He (the appellant) had some argument that he had given you some money for alcohol. But whatever the background of that is, there had been some dispute the night before and there had been some fighting between the two of you the night before about alcohol. And then on the following morning, 12 October 2018, early, at about 8 o'clock, he came over to your house, where you were in bed with your partner, and called you out, so stood outside your house and called you out to fight him.
And there was obviously some swearing going on as well. And then he retreated to the driveway of your uncle's house across the road but was still calling out to you to fight him. And you left the house carrying a metal baseball bat by your side, in the hope that you will scare him, that he would go away. And he didn't, and it appeared to you, I'm told, that he didn't even see the bat, or he didn't pay any attention to it.
You then held the bat up and told the victim to stop coming around and banging on the door and swearing, and then you swung the bat and hit him on his left shin …
[37] Sentencing facts, 22 July 2019, ts 16 -ts 17.
Her Honour then went on to detail the blows struck and the fact that the respondent and his partner drove the appellant to the hospital where he received treatment for his injuries. She then went on to say:[38]
I accept that you wouldn't have attacked him had he not come to your door knocking and calling you out to fight, and that you did take the bat out with you to try and scare the victim away before you hit him. But you didn't wait long to use it. The viciousness of this attacking using the weapon, a metal bat, was completely out of proportion to anything he has done to you.
And I say that even accepting that there was a long history of him calling on you to fight him and wanting to fight you and persisting with that, and that as your counsellor said, everything had been built up over years of this type of behaviour and that you simply lost it.
[38] Sentencing facts, 22 July 2019, ts 6 - ts 7.
It is evident from her Honour's sentencing remarks that she accepted that this was not an isolated incident between the appellant and the respondent. There was a history of violence between them. The New South Wales Supreme Court, dealing with provisions identical to s 41 of the Act, observed that it was appropriate for the tryer of fact to take into account prior occasions of 'mutual physical violence' or 'tit for tat' and in particular, any prior attack by the victim upon the offender when considering the victim's contribution to the injuries sustained. [39]
[39] Scott v Victims Compensation Fund Corporation [2000] NSWSC 1148 [30].
The sentencing facts make it clear that the appellant came over to the respondent's home, knocked on his door and called him out to come and fight him. He then went across the road to the driveway of his uncle's house, still calling out for the respondent to fight him. The respondent left the house with the baseball bat in his hand hanging down against his body, hoping that it would scare the appellant away. The appellant did not leave.
The respondent's action in then swinging the baseball bat and hitting the appellant on the left shin, hitting him with the bat to the side of the head and then hitting him once more to the shin, were a disproportionate response to being called out for a fight.
I am of the view that the appellant's acts in attending the house of the respondent, calling him out to fight and continuing to call him out to fight from across the road, can be described as both antagonistic and provocative. Had the appellant not repeatedly expressed the desire to fight the respondent and having done so remained in the vicinity, the injuries are unlikely to have been sustained.
An adjustment to the compensation award in this case should be made for the appellant's behaviour. I am not satisfied that a discount of 12.5% as made by the assessor, is appropriate. I am of the view that a reduction in the order of 10% in the particular circumstances of this case is appropriate.
Whether the appellant is entitled to claim costs in the appeal
In the appellants written submissions costs were sought in the event the appellant was successful for preparation for the appeal, attendance at the appeal hearing and for preparation of the notice of appeal, totalling in the sum of $980. The cost of the report of Dr Hardcastle in the sum of $2,640 was also sought. The cost of Dr Hardcastle's report is a compensable loss pursuant to s 6(2) of the Act. I order this amount be reimbursed to the appellant's solicitors.
At the hearing of the appeal counsel did not press the claim for costs in the sum of $980. That was an appropriate concession as in this case, as the respondent played no part in the appeal.
It is not appropriate that a costs order should be made against the CEO because the CEO is not an unsuccessful party to the appeal and because counsel for the CEO appears by leave to assist the court and perform a role that would not otherwise be performed.[40]
[40] Fairhead v Quartermaine [2010] WADC 1; (2010) 69 SR (WA) 73 [36] (Deane DCJ); Foote v Draper [2003] WADC 17 [40] (Jackson DCJ); (2003) 31 SR (WA) 105; CJA v RJC [No 2] [2003] WADC 128 [8] (Commissioner Reynolds); Blezard v Chief Executive Officer of the Ministry of Justice (2000) 23 SR (WA) 278, 284 (Jackson DCJ); Jones v Macey [2000] WADC 101 [10] (Williams DCJ); WHW v Commissioner of Police [2014] WASCA 153(S) [11] - [18] (Martin CJ, Buss and Murphy JJA); P v C [2005] WADC 107 [71] - [72] (Commissioner Stavrianou).
Also, in this case it was only after the decision of the assessor that the appellant was reviewed by Dr Hardcastle. The opinion of an orthopaedic surgeon is a difference in evidence that is likely to have impacted on the original assessment. I consider the failure of the appellant to consult an orthopaedic surgeon at a time when it would have been reasonable to do so likely occasioned the appeal. In all the circumstances there should be no order as to costs.
Conclusion and final orders
I find that the decision of the assessor should be varied to increase the amount of compensation to $65,640 as follows:
Loss of earnings
Nil
Non pecuniary loss
Less 10% reduction for contributing behaviour - s 41
$70,000
-$7,000
Total
$63,000
Dr Hardcastle's report fee
$2,640
Total
$65,640
There is no alteration to the reimbursement order made by the assessor in the sum of $35,000 pursuant to s 43 of the Act.
Pursuant to s 45(1)(b) of the Act, I confirm the assessor's order that only $30,000 may be made subject of proceedings under pt 6 of the Act.
There is no order as to costs.
The amount payable to the appellant therefore will be $30,640.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
Associate to Judge Burrows
24 MARCH 2022
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