SW v BB
[2010] WADC 86
•11 JUNE 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: SW -v- BB [2010] WADC 86
CORAM: SCHOOMBEE DCJ
HEARD: 23 APRIL 2010
DELIVERED : 11 JUNE 2010
FILE NO/S: APP 77 of 2009
MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: SW
Appellant
AND
BB
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram :H L PORTER
File No :CI 836 of 2009
Catchwords:
Criminal Injuries Compensation Act 2003, s 39(1) - No compensation where injury was suffered "when" victim committed a separate offence - "When" means "on the occasion when the separate offence as committed" - "When" requires a casual connection between the injury and the separate offence - Burden of proof on respondent to prove separate offence
Criminal Injuries Compensation Act 2003, s 41(1) - Reduction of compensation by Assessor if just to do so because of behaviour, condition, attitude or disposition of victim - Section 41(1) not applicable to pre-existing physical or mental condition which did not contribute to circumstances of offending - Common law principles apply in assessing contribution by pre-existing medical condition to injury
Legislation:
Criminal Injuries Compensation Act 2003, s 39(1), s 41(1)
Result:
Appeal upheld
Representation:
Counsel:
Appellant: Mr S H Cohen
Respondent: In Person
Amicus Curiae : Ms S Kavanagh on behalf of Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant: Leonard Cohen Legal
Respondent: Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Australian Finance Direct Ltd v Director of Consumer Affairs Victoria (2007) 234 CLR 96
B v W (1989) 6 SR (WA) 79
BAS v The Estate of NAS (Dec) [2000] WASCA 270
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bird v The Commonwealth (1988) 165 CLR 1
BKW v JFO [2003] WADC 274
Brown's Valve Service Pty Ltd v Cristina [1997] 1 VR 536
CKM [2008] WADC 79
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
G & N v R (2006) 48 SR (WA) 301
Gallo v Dawson (1990) 93 ALR 479
Gallo v Dawson (1992) 109 ALR 319
Green v Lee(1996) 17 SR (WA) 93
Grey v Pearson (1857) 6 HL Cas 61
Gullelo v Halloran [2008] WADC 145
Hatfield v Under Secretary for Law, unreported; SCt of WA; Library No 4012; 15 December 1980
KJH v RAM (1996) 16 SR (WA) 133
M v J and J v J, unreported; SCt of WA; Library No 920598; 19 November 1992
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
MJN v MAJS (2003) 35 SR (WA) 219
Purkess v Crittenden (1965) 114 CLR 164
R v Fraser [1975] 2 NSWLR 521
Re Jansen (1996) SR(WA) 216
Re: Richardson [2009] WADC 93
Reed v The Assessor of Criminal Injuries Compensation, unreported; DCt of WA; Library No D970170; 5 June 1997
Repatriation Commission v Vietnam Veterans' Association of Australia Inc (NSW) (2000) 48 NSWLR 548
Richardson [2004] WACIC 28
RJE v Bandy, unreported SCt of WA; Library No 5489; 31 May 1974
S v Neumann (1995) 14 WAR 452
Watts v Rake (1960) 108 CLR 158
Wilson v Peisley (1975) 50 ALJR 207
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
SCHOOMBEE DCJ: SW has appealed against the refusal by the Assessor for Criminal Injuries Compensation to award her compensation for the sexual offending that BB committed against her. The Assessor declined to make an award because SW had been smoking amphetamines together with BB before and also after the sexual offending and the Assessor held that s 39(1) of the Criminal Injuries Compensation Act 2003 ("the Act") was applicable.
Section 39(1) of the Act provides as follows:
"(1)If an assessor is satisfied –
(a)that a person was injured as a consequence of the commission of an offence; and
(b)that the injury was suffered when the person was committing a separate offence,
the assessor must not make a compensation award in favour of that person."
On 27 February 2009 BB pleaded guilty to one charge of penetrating SW's vagina with his penis without her consent, one charge of indecent assault of SW and three charges of supplying a prohibited drug to others. BB also pleaded guilty to a further charge on the same indictment, which was that he had sexually penetrated another female without her consent.
The background facts
The statement provided by SW to the police states that prior to the offending against her, she and her husband occasionally smoked amphetamines every few months. On 23 November 2007 a female friend of SW came to visit her and brought along BB. BB produced a plastic bag with amphetamines and she and BB went to her bedroom and shared two scoops of amphetamine which they smoked from a pipe. SW said in her statement that there was "full‑on smoking" for about half an hour. SW's housemate and the friend then left the house and BB asked to have a shower. SW stated that she and BB may have had another "pop‑eye" (smoking pipe with amphetamines) after BB had his shower in the ensuite bathroom. BB set up an iPod and speaker in the bedroom and SW said in her statement that she knew "something was funny because of the situation – there was music, we were having a pipe, we were on the bed, he had no shirt on".
The situation then developed to sexual offending by BB which occurred without SW's consent. SW said in her statement that she initially responded to his request to kiss him, but then pulled back and said that she did not want to continue. She repeatedly told him to get off her and to stop while he was sucking her breast and pushing her bikini bottoms to one side. She tried to push her ankles together but he pushed her knees apart. SW said that during the sexual offending she was scared and "spinning out". She stated that this was because of "a mixture of the situation and the drugs".
SW further said that when she refused to respond positively to BB's question "do you realise you're mine now?", BB suddenly became angry and his face took on a mean expression. He said "I will terrorise you you've got that? I will terrorise you!" SW stated that BB moved his penis against the inside of her outer lips but it did not penetrate her vagina, perhaps because she was fighting him off. Just prior to this conduct SW told BB with tears in her eyes that she was scared and said: "No, I've told you, please, just get off me. No more. Just get off me, please."
SW stated that the phone then rang and she insisted on answering it. BB got off her and allowed her to answer the phone but tried to push her back onto the bed after that. SW said that she managed to escape and suggested that they have a swim in the pool. In the pool BB again rubbed her hips, thighs and stomach. SW told him to stop. After the swim in the pool SW suggested that they smoke some more amphetamine. She fetched the pipe and smoked what was left in it. She said that she did not really want to smoke but was just trying to fill in time waiting for her husband to come home. When her husband came home she introduced him to BB and she and her husband smoked some amphetamine together.
The statement by SW accords with the material statement of facts relied upon at the sentencing hearing of BB and was available to the Assessor. The Assessor wrote a letter to SW advising her that she intended to refuse the application for compensation because the material available to her indicated that SW had consumed amphetamines with BB on a number of occasions prior to and after the offending and that this was an offence contrary to the Misuse of Drugs Act 1981. SW replied to this letter denying that she had smoked amphetamines prior to the offending and said that she had only taken drugs with BB after the offending.
At the hearing of the appeal counsel for SW conceded that the statement by SW in the letter to the Assessor was incorrect and that SW and BB had been smoking amphetamines together prior to the offending. Counsel for SW said that SW was confused, stressed and under medication at the time that she replied to the Assessor's letter and did not know why she had denied the earlier smoking of amphetamines.
The Assessor wrote to SW on 20 August 2009 declining to make an award of compensation on the basis that SW was committing an offence at the time of the incident when she was injured.
Appeal is rehearing
Pursuant to s 56(1) of the Act an appeal against an Assessor's decision is to be decided afresh by the District Court. This means that the appeal is a rehearing: Gullelo v Halloran [2008] WADC 145 at [5].
Appeal out of time
SW filed the notice of appeal against the decision of the Assessor on 9 October 2009. Pursuant to s 55(3) of the Act an appeal must be commenced within 21 days after the date of the Assessor's decision. The appeal was therefore filed 29 days out of time. The notice of appeal includes an application to extend the time for the filing of the appeal and asks for a ruling that s 39 of the Act does not apply to SW and that an appropriate award for her injury be made to her.
In an affidavit by SW, sworn on 30 November 2009, she states that she has suffered significant psychological effects as a result of the sexual offending on her. After the refusal of her claim by the Assessor, SW says that she became even more depressed and was unable to apply herself to deal with the Assessor's decision. In addition, on about 21 or 22 August 2009 she found out that her two sons, aged 16 and 14, had been sexually abused by their employer over a period of a number of months. SW states that the employer was arrested and charged. The news about the sexual offending on her sons led to her requiring more sedatives and anti-depressant medication and meant that she was even less able to apply her mind to appealing the decision of the Assessor. It was only towards the end of September that SW was able to focus on consulting a lawyer and discussing an appeal against the Assessor's decision.
Section 55(4) of the Act gives this Court a discretion to allow an appeal to be commenced after the 21 days if "it is just to do so".
The authority which is generally referred to in Western Australia for a summary of the factors that a court should take into account in exercising its discretion to allow an extension of time for the filing of an appeal is Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198. In that case Kennedy J listed four factors, being the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondent. Another factor referred to by Franklyn J in the same case at 202 is that the oversight which resulted in the delay was not attributable to the appellant but to his solicitors.
When Esther Investments Pty Ltd v Markalinga Pty Ltd (supra) was decided, O 63 r 4 of the Rules of the Supreme Court 1971 allowed an appeal to be filed within 21 days from the date of the judgment or "within such extended time as the Full Court or the Judge may allow". The Rule therefore allowed for the Court's discretion in general terms.
In Gallo v Dawson (1990) 93 ALR 479 at 480 McHugh J listed the factors that should be taken into account by the High Court in exercising its discretion to extend the time for the filing of an appeal. This decision was based on O 60 r 6 of the High Court Rules which provides that the court or a justice may enlarge the time appointed by the Rules "as the justice of the case may require". McHugh J held that the discretion to extend time was given for the sole purpose of enabling the court to do justice between the parties. This meant that the discretion could only be exercised upon proof based on material submitted by the applicant that strict compliance with the Rules would work an injustice upon him. In order to determine whether the Rules would work an injustice, it was necessary to have regard to the following factors:
1.the history of the proceedings;
2.the conduct of the party;
3.the nature of the litigation;
4.the consequences for the parties of the grant or refusal of an extension of time;
5.the prospects of the appellant succeeding;
6.the fact that upon the expiry of the time for appealing, the respondent had a vested right to retain the judgment.
The decision by McHugh J was upheld on appeal in Gallo v Dawson (1992) 109 ALR 319 per Mason CJ, Brennan, Deane, Toohey and Gaudron JJ.
Although the factors listed in Gallo v Dawson (supra) overlap to a large extent with the factors referred to in Esther Investments Pty Ltd v Markalinga Pty Ltd I propose to apply the factors listed in the former case, as the wording of the High Court Rule is similar to the words used in s 55(4) of the Act.
The history of the proceedings indicates that SW delayed by 29 days before filing the notice of appeal. As regards the conduct of the parties, it is apparent from SW's affidavit that the delay was due to her own inaction and not because of an oversight by her solicitor. However, SW has explained in her affidavit why she did not have the inner resources to deal with seeing a solicitor at the time and her explanation is understandable.
It is also of relevance that the nature of the litigation is an appeal against the refusal of the Assessor to make an award for criminal injuries compensation. The Act is remedial legislation, the purpose of which is to compensate the victim of an offence in some measure for the injury and loss suffered, and should therefore be construed beneficially. If the court does not exercise its discretion to extend the time for filing an appeal, the consequences for SW would be that she would lose all right to compensation which may have a material impact on her ability to obtain closure in respect of the offence. An extension of the time for filing the appeal would clearly also have consequences for BB, as the State may apply to the Chief Assessor for a compensation reimbursement order against BB pursuant to s 50 of the Act, and he currently has a vested right to retain the judgment by the Assessor unless the discretion is exercised in favour of SW. However, the delay of 29 days is not inordinate and is not likely to have caused any procedural prejudice to BB and he has not suggested any such prejudice.
The last question is whether the appeal has any prospect of success. As appears from the remainder of the judgment, the interpretation of s 39(1) of the Act raises difficult issues and despite the existing authorities which are against SW, I am of the view that she does have an arguable case that the interpretation of s 39(1) which has been followed to date should be re-visited.
In light of all these matters, I am of the view that it would be just if an extension of time for the filing of the appeal by SW was granted and I extend the time for the filing of the appeal up to and including 14 October 2009.
Interpretation of s 39(1) of the Act
Counsel for SW submitted that her smoking of amphetamines was about an hour before the sexual offending and that there was therefore a break or hiatus between SW committing the offence of possession of amphetamines and BB committing the sexual offending against her. Counsel for SW further submitted that s 39(1) of the Act should be interpreted beneficially so that it requires a causal connection between the infliction of the injury and the separate offence committed by the victim. Counsel for SW referred to the hypothetical situation of a person stealing an apple in a shop and at the same time being shot by a robber who was shooting randomly at customers in the shop. Counsel submitted that the legislature could not have intended that the victim of the shooting should not receive criminal injuries compensation just because he had been committing a minor and totally unrelated offence at the time.
Counsel for the Chief Executive Officer submitted that the decision by the Assessor was in line with other decisions on s 39(1). Counsel referred to Richardson [2004] WACIC 28 in which Assessor Millar analysed s 39(1) of the Act. The Assessor noted at [11] that the reference to "separate offence" was not restricted to any particular category of offences. Section 3 of the Act defines the word "offence" as meaning "an alleged offence or a proved offence". A "proved offence" as well as an "alleged offence" is defined as meaning "a crime, misdemeanour or simple offence".
Assessor Millar also referred to the extrinsic material which, pursuant to s 19 of the Interpretation Act 1984, may be relied upon in the interpretation of a statutory provision. Assessor Millar explained the history to the introduction of s 39(1) which indicates that the legislature did not intend that the "separate offence" should be restricted to indictable offences. Registrar Millar said the following at [14] and [15] in this regard:
"14.Before its repeal the 1985 Act was subject to the provisions of the Offenders (Legal Action) Act 2000. To the extent that it applied to applications for criminal injuries compensation the Offenders (Legal Action) Act 2000 provided the closest equivalent to what is now reflected in section 39 of the 2003 Act. The Offenders (Legal Action) Act 2000 barred applications for compensation under the 1985 Act where it was shown that a person, referred to in that Act as 'the offender', had suffered injury or loss in the course of criminal conduct. The Offenders (Legal Action) Act 2000, however, restricted the barring of such applications to those where the injury or loss had arisen from the commission of an indictable offence. It also expressly provided exceptions to such barring of applications.
15.The 2003 Act not only repealed the 1985 Act, but it also removed references to the 1985 Act from the Offenders (Legal Action) Act 2000. With the removal of the applicability of the provisions of the Offenders (Legal Act) Act 2000 to criminal injuries compensation legislation the 2003 Act has introduced section 39. However, unlike the qualifications contained in the Offenders (Legal Action) Act 2000, section 39 makes no similar qualification. The absence of any such qualifications strongly suggests that the legislature, by enacting section 39 in its present form, did not intend the former qualifications to apply."
Assessor Millar further referred to the second reading speech relating to the Bill which preceded the Act and the discussion which followed the second reading speech. Assessor Millar said the following at [17] to [19] in this regard:
"17.In his second reading speech relating to the Bill which became the 2003 Act the Attorney General stated:
'This Bill also prohibits compensation when a person is injured while engaged in criminal conduct.'
18.That particular aspect of the Bill was discussed when the Bill was considered in detail. The Attorney General referred to the defences which were available following the introduction of the Offender's (Legal Action) Act 2000 to criminal injuries compensation legislation. He then stated:
'It was thought, as a matter of public policy, that people injured when committing criminal offences should not recover compensation. The fact is that they have. There was possibly a loophole in the legislation. We have cast this provision to exclude compensation for a person injured as a consequence of being involved in the commission of an offence.'
19.And later he went on to say:
'We have made a policy call here that people should not under any circumstances benefit from criminal activity'."
(The emphasis was added by Assessor Millar.)
Assessor Millar acknowledged that the statements by the then Attorney General suggested that s 39 was only intended to apply where there was a causal relationship between the victim's injury and the victim's separate offence. Assessor Miller referred to the hypothetical scenario of the driver of a motor vehicle who sustains injuries from a missile being thrown at the vehicle when the driver is driving in excess of the speed limit. Assessor Millar said that if the section was given its ordinary grammatical meaning and a causal relationship was not required it "could be contended that such a construction of s 39(1) was unreasonable".
Despite these findings, Assessor Millar came to the conclusion that a causal relationship between the separate offence committed by the victim and the injury was not required, because such a relationship was not evident in the words used in s 39(1)(b). Assessor Millar noted that s 39(1)(a) specifically refers to the injury being "as a consequence of" the offence against the victim while in s 39(1)(b) the only connection between the injury and the separate offence by the victim is contained in the word "when".
This analysis of s 39(1) by Assessor Millar was referred to with approval by Yeats DCJ in Re: Richardson [2009] WADC 93 at [30] ‑ [31]. Yeats DCJ came to the conclusion that s 39(1) did not require any causal connection between the injury suffered by the victim and the separate offence committed by the victim. Her Honour held that the only relationship required was a temporal one. Yeats DCJ also said at [31] that the question whether there was a temporal connection required an assessment of all the facts and circumstances of the case and that generally, if the victim's injury and the separate offence were part of one incident, that would be sufficient to show a temporal connection.
The interpretation of s 39(1) gives rise to some difficult issues. I agree that the plain grammatical wording of s 39(1) does not require a causal relationship between the separate offence and the injury before sanctioning a refusal of compensation and that one would have expected the legislature to use words similar to those appearing in s 39(1)(a) if a causal relationship was required. However, if the word "when" were to be limited to a temporal connection, this would give rise to results which would not only be "unreasonable" as referred to by Assessor Miller, but also irrational. It is not difficult to think of many situations where the commission of the separate offence would be totally unconnected with the infliction of the injury, but would have been committed at the same time and would therefore result in a refusal of criminal injuries compensation. One example is the situation mentioned by Assessor Millar in Richardson (supra) where a victim exceeds the speed limit (or weight limit of his truck) while being injured from a missile being thrown at the vehicle. Another example is that of a victim who receives an injury during a random shooting at a bank and is then found to have been in possession of a small quantity of cannabis at his home (or in his car or on his person) at that time.
The first step in the interpretation of a statute is to determine the grammatical meaning of a word. The New Shorter Oxford Dictionary defines the word "when" as "at the time that; on the occasion that; in the circumstances which". The word "when" is used in everyday language, not only to describe a period of time during which something happened, but also an occasion when something occurred. The plain grammatical meaning of the word "when" as used in s 39(1)(b) can therefore not be said to be limited to "at the time that" or be confined to a temporal connection. At the very least, the word "when" includes the meaning "on the occasion that" the victim committed the separate offence.
In fact applying the grammatical meaning of "on the occasion that" gives rise to a more sensible interpretation than the meaning "at the time that". If the word "when" was read as meaning "on the occasion that", the hypothetical victim who was shot at a bank and had possession of cannabis at his home, would not be denied compensation, because although he was in possession of cannabis at the time when he was injured, there was no connection between his possession of the cannabis and the occasion when he was injured. Yeats DCJ in Richardson may have had this in mind when she said that the question whether there was a temporal connection required an assessment of all the facts and circumstances of the case and that if the victim's offence was part of the same incident, this was sufficient to constitute such a connection.
The interpretation of the word "when" as meaning "on the occasion that", would also deal with the concern by the Chief Executive Officer that too narrow an interpretation of the temporal connection required by s 39(1)(b) would lead to the situation that a victim of an assault who himself had committed an assault immediately prior to the offence on him, would be entitled to claim criminal injuries compensation on the basis that his injury was not suffered at the same time as the assault committed by the victim. Another example mentioned by the Chief Executive Officer was where a burglar had completed the offence of burglary, but was shot by the resident upon fleeing the premises. In each of these situations the separate offence by the victim would have been committed on the occasion that he was injured and criminal injuries compensation would not be available.
However, applying the meaning "on the occasion that" does not deal with the irrational result that a victim who happens to have a small quantity of cannabis on his person while being shot at a bank, would not be eligible for compensation. The victim would still have suffered the injury on the occasion that he was in possession of cannabis. The same irrational result would apply to the driver of a truck who is injured by a missile thrown at him on the occasion that he is driving over the speed limit or his truck is over the permitted weight.
In the last decades the High Court has moved away from a literal or semantic approach to statutory construction and towards a contextual and purposive approach. Although the text of the relevant provision remains the starting point for statutory interpretation, it is important to ascertain the purpose that the provision was meant to achieve in the context of the entire statute and in light of all available resources, including extrinsic materials: Australian Finance Direct Ltd v Director of Consumer Affairs Victoria (2007) 234 CLR 96 at [32] – [41] per Gleeson CJ, Gummow, Hayne and Crennan JJ. The Court should determine the purpose of the provision whether or not the grammatical construction of the words produces an ambiguity. An ambiguity may exist where the intention of the legislature is doubtful, for whatever reason: Repatriation Commission v Vietnam Veterans' Association of Australia Inc (NSW) (2000) 48 NSWLR 548 at 577 – 8.
The fact that a strict grammatical construction which only allows for a temporal connection would give rise to an irrational result, is enough to raise an ambiguity. It is therefore necessary to look at the relevant section in the context of the whole of the Act, as well as at extrinsic materials which may shed light on the purpose of the section and the Act itself.
Section 19(1)(b) of the Interpretation Act 1984 also allows a reference to extrinsic material where a provision in a statute is ambiguous or obscure or where the ordinary meaning conveyed by the text taking into account its context in the written law and the purpose underlying the written law leads to a result that is manifestly absurd or unreasonable.
When a criminal injuries compensation scheme was first introduced in Western Australia it was said in the second reading speech of the Bill preceding the Criminal Injuries (Compensation) Act 1970 that the Act was aimed at providing compensation for victims of criminal injury where the offender was a person of no substance or where he remained unidentified, died or was for some or other reason beyond the reach of the law (Hansard, 16 September 1970, p 804).
The main purpose of the Act is to provide a benefit to applicants for criminal injuries compensation. The Act is therefore remedial in character and such an act should be construed beneficially: Bird v The Commonwealth (1988) 165 CLR 1 at 9.
As regards the purpose of s 39(1), the following explanation was given for the proposed section in the Explanatory Memorandum to the Bill which preceded the Act:
"This clause provides that an assessor must not make an award if satisfied that the person injured or killed as a consequence of the commission of an offence was committing an offence at the time. The prohibition applies to a claim by the person injured, and to a claim by a close relative of a person who was killed. This is a new provision to prevent persons engaged in criminal conduct claiming compensation."
In the second reading speech the Honourable Jim McGinty, then Attorney General, stated that the Bill prohibited compensation when a person was injured "while engaged in criminal conduct."
In the discussion that followed in the Legislative Assembly the Attorney General was asked whether the proposed s 39(1) was meant to apply in a situation where a child entered the backyard of a bikie seeking a cannabis plant and was subsequently caught, tortured and died. It was in this context that the Attorney General made the following statement which was also quoted by Assessor Miller in his judgement:
"It was thought, as a matter of public policy, that people injured when committing criminal offences should not recover compensation. The fact is that they have. There was possibly a loophole in the legislation. We have cast this provision to exclude compensation for a person injured as a consequence of being involved in the commission of an offence."
The Attorney General explained that in the circumstances raised by the questioner the Assessor would be prohibited from making an award to the parents of the child and said that a firm view had been taken that there should be no benefit "accruing from someone committing a criminal offence." He said that the parents should not be able to make a claim when "the circumstance leading to the person's death was that the person was engaged in a crime". At a later stage the Attorney General said:
"In this matter we will have to wait and see what the experience is. In future, when people consider this matter, they will need to make a policy call. We have made a policy call here that people should not under any circumstances benefit from criminal activity."
There is little doubt that the intention of the legislature was to exclude an award of criminal injuries compensation even if the offence committed by the victim was a relatively small one. This is made clear in the Act itself, as an offence is defined in s 3 to mean "a crime, misdemeanour or simple offence of which a person has been convicted."
However, the statements by the Attorney General also indicate that the legislature had in mind that there should be some connection between the victim's separate offence and the injury. This intention is not only indicated by the reference to compensation being excluded where the injury was "as a consequence of being involved in the commission of an offence", but also by the statements that a victim should not "benefit from" his or her own criminal activity and that compensation would not be available where the circumstance "leading to" the person's death was that the person was engaged in a crime. In the hypothetical examples mentioned earlier, the victim who was hit by a missile while driving over the speed limit would not in any manner "benefit from" his traffic offence, if he was paid compensation for his injury. In the same manner, the victim who had possession of cannabis at his home would not have committed the offence "as part of the circumstances leading to" the shooting at the bank.
The explanation by the Attorney General of how the section would operate shows that the legislature had in mind that the victim's offence would have to be committed as part of the circumstances "leading to" the injury and that the injury would have to be "a consequence of" the offence committed by the victim. The purpose of s 39(1) was to ensure that a victim of a criminal injury did not benefit from his or her own offence, which requires a connection between the victim's offence and the injury which gives rise to the compensation.
Even before the purposive approach was adopted by the High Court, it was an accepted rule of statutory interpretation that where the strictly grammatical and literal meaning of a provision led to some absurdity, the ordinary sense of the word would have to be modified to avoid that absurdity: Grey v Pearson (1857) 6 HL Cas 61 at 106. Pearce and Geddes "Statutory Interpretation in Australia", 6th Ed at [2.4] refer to Grey v Pearson and summarise the so-called "golden rule" as follows:
"It would seem that the 'absurdity' referred to by Lord Wensleydale was an absurdity appearing on the face of the Act from the words that had been used. His Lordship did not contemplate that the court would review the policy underlying the Act and modify the language of the Act if it considered the result to be ‘absurd’. Put shortly, the golden rule contemplated that a mistake had been made in the wording of the Act: President, etc, of Shire of Arapiles v Board of Land and Works (1904) 1 CLR 679 per Griffith CJ at 687."
The explanations given by the then Attorney General when the Bill preceding the Act was introduced indicate that the legislature did not clearly express the purpose of s 39(1). It would be an absurd result and certainly not one contemplated by the then Attorney General, representing the government of the day, that a victim of a criminal injury would be denied compensation where he or she happened to commit an offence at the time of the injury although the offence was totally unconnected to the perpetrator's conduct which caused the injury. It is apparent that the legislature wished to take a "firm view" and did not want anyone "to benefit" from any criminal offence even if it was a small offence, but there is no indication that the legislature wanted to deny a victim criminal injuries compensation just because he or she was committing an offence at that time which had nothing to do with the circumstances which led to the injury.
Having regard to the purpose of s 39(1)(b) as gleaned from the extrinsic material, the word "when" should be read as meaning "on the occasion that the person was committing a separate offence" and a causal connection should be required between the injury and the separate offence.
Causal Connection
The Act provides for civil proceedings, not criminal proceedings: BAS v The Estate of NAS (Dec) [2000] WASCA 270 at [1]. Causation is therefore determined by applying the test applicable in civil law. In tort the question whether the requisite causal connection exists between a particular breach of duty and particular loss or injury is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience: Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6 and March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 515 and 522 – 523. In resolving this question the "but for" test plays an important role. The first step is to ask whether the result would have occurred but for the defendant's conduct. However, the "but for" test is not the exclusive test of causation; value judgments and policy considerations are also relevant: Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 413.
It is further recognised that the "but for" test must be applied subject to certain qualifications. A factor which causes the presence of the plaintiff at the place where and at the time when he or she was injured is not seen as being causally connected in a legal sense with the injury, unless the risk of the accident occurring at that time was greater because of that factor: March v E & M H Stramare Pty Ltd (supra) at 515.
It is not necessary that a defendant's negligent act or omission be the sole cause of the plaintiff's damage. Causation will be established if the relevant act or omission materially contributed to the damage: March v E & M H Stramare Pty Ltd (supra) at 514. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring: Chappel v Hart (supra) at [27].
If this test was applied in the interpretation of s 39(1)(b), a causal connection would be established between the injury and the victim's separate offence whenever the victim's offending made a material contribution to his or her injury. However, the mere fact that the victim was at the place where or at the time when he or she was injured is not a factor which makes a material contribution to the injury.
In the hypothetical examples mentioned earlier, it would depend on the facts of the case whether the injury would not have happened but for the conduct of the victim. If the perpetrator was throwing a missile from a bridge at every passing car, the conduct by the victim in driving above the speed limit would have no causal connection to the injury, as the victim would also have been hit if he was driving within the speed limit. However, if the missile was thrown by an irate parent who resented people driving above the speed limit in suburban streets, the injury would not have occurred but for the victim's separate offence. In such a case the victim's separate offence would also have made a material contribution to his or her injury.
In the example of the victim shot at the bank, his possession of cannabis would have no causal connection to the shooting. He would still have gone to the bank even if he had no cannabis at home or on his person. However, if the victim went to a drug dealer's house to buy heroin and was inadvertently shot at that location, his conduct would be causally related to his injury, because it would not have occurred but for the victim attempting to buy heroin and the risk of the injury occurring would have been greater by reason of the victim being at a place where heroin was sold.
Another example is the one relied upon by counsel for SW, where a victim of a gun shot wound inflicted by a robber shooting randomly at customers at a shop was stealing an apple at the same time. The mere fact that the victim happened to be at the shop does not make a contribution to the injury nor does the fact that the victim was stealing an apple at the time. However, if the victim broke into someone's house in the middle of the night in order to steal and then got shot by the owner of the premises, the offence of stealing would have made a material contribution to the victim's injury.
Burden of proof
The next question is who carries the burden of proving that the injury was suffered when the applicant committed a separate offence. Section 39 of the Act provides that an Assessor must not make a compensation award if he or she is satisfied that:
(a)a person was injured as a consequence of the commission of an offence; and
(b)the injury was suffered when the person was committing a separate offence.
It is established law that the onus is on the applicant to establish, on the balance of probabilities, that a causal relationship existed between the commission of the offence and the injury or loss for which compensation is sought: S v Neumann (1995) 14 WAR 452 at 463 – 464. Once the applicant has proven the offence, his or her injury and a causal relationship between the two, the applicant is entitled to compensation. The second matter of which the Assessor has to be satisfied pursuant to s 39(1)(b) operates like a proviso, because if the Assessor is satisfied that the injury was suffered when the applicant committed a separate offence, the applicant’s right to compensation falls away.
In Vines v Djordjevitch (1955) 91 CLR 512 at 519 – 520 Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ explained the difference between an exclusion and a proviso. Where a statute provides for a complete factual situation which must be found to exist before a person obtains a right under the provision, and in defining the elements of that situation the statute refers to qualifications or exceptions, the latter are appropriately referred to as "exceptions", and the intention of the legislature is generally that a person wishing to rely upon the right carries the burden of proving that the exceptions do not apply. On the other hand, where a statute describes conditions of general application giving rise to a right, but provides for additional facts of a special nature which defeat or exclude the right, the additional facts are appropriately referred to as a "proviso" and the burden of proof is generally on the person wishing to rely on the proviso.
Their Honours summarised the position with regard to a "proviso" as follows:
"But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter." (Citations omitted.)
Counsel for the Executive Officer submitted that the burden of proof should be on the applicant to prove that he or she did not commit a separate offence when the injury was suffered. Counsel referred the Court to Re Jansen (1996) SR(WA) 216 at 224 and Green v Lee (1996) 17 SR (WA) 93 at 97 in which it was held that in order to prove that an alleged offence had been committed the applicant had the onus of proving on a balance of probabilities that the offender would not have been able to rely on a defence, such as accident, if he had defended a charge in relation to the alleged offence. Counsel for the Executive Officer submitted that by analogy it should be held that the applicant carries the burden of proving on a balance of probabilities that he or she was not committing a separate offence when the injury was suffered.
In my view this is not an appropriate analogy. The requirement to prove the absence of a defence is part of proving the factual situation which shows that the perpetrator committed an offence. On the other hand, proof that the applicant committed a separate offence, denies the applicant the right to compensation on the basis that this additional or special matter excludes the application of the general right to compensation. The burden of proving that the applicant committed a separate offence should therefore be on the respondent.
In applications for criminal injuries compensation it is not unusual for the respondent not to place any material before the Assessor or not to appear at a hearing on appeal to the District Court. What seems to be happening in practice is that it is usually the Assessor who raises the possibility that the applicant may have committed a separate offence and generally gives the applicant the opportunity to provide material or make submissions to disprove that possibility. There is no reason why an evidentiary burden should not rest on the applicant once this matter has been raised. But the overall burden of proof is not on the applicant.
The relevance of deciding who carries the overall burden of proof is that if the Assessor is not able to arrive at a conclusion on the material before him or her, the decision will be made against the party who carries the burden of proof. Section 39(1) requires the Assessor to be "satisfied" that a separate offence occurred before he or she may decline to make a compensation award. The way in which this section is formulated indicates that the overall burden of proof cannot be on the applicant. If the Assessor is not able to arrive at a decision, the Assessor will not be satisfied that the applicant committed a separate offence when he or she suffered the injury. In that case the applicant would be entitled to compensation, and the Assessor would not be entitled to refuse it.
Accordingly, the burden of proving that the applicant committed a separate offence when the injury was suffered is on the respondent, but the applicant has an evidentiary burden once the application of this section has been raised by the respondent or the Assessor.
Whether the possession of amphetamines by SW causally contributed to her injury
SW admitted in her statement to the police to smoking amphetamines with BB before the sexual offending when her housemate and friend were still at the house, smoking some more when she was alone with BB and again smoking in his presence after the offending. It appears that the amphetamine that SW smoked was on each occasion supplied by BB. Nevertheless, SW was in possession of the amphetamine while she smoked the pipe.
The separate offence committed by SW is therefore that of possession of prohibited drugs contrary to s 6 of the Misuse of Drugs Act 1981. There is no particular offence of "smoking of prohibited drugs". However, in deciding whether the possession of the amphetamines is causally related to SW's suffering the injury, I have to take into account the circumstances under which the possession of the amphetamines occurred and this was in circumstances where SW was smoking the drug.
The sexual offending occurred on the same occasion as that of SW's smoking of amphetamines. However, SW's smoking of amphetamines was not causally connected with the sexual offences against her. It could be said that but for her smoking of amphetamines she would not have allowed herself to be in the situation where she was alone with BB in her bedroom and responded to his request to kiss him. It could also be argued that the effect of amphetamines on her rational thinking is indicated by her own statement that she was "spinning out". But even if it is accepted that the smoking of amphetamines had affected her ability to think rationally and to control the situation, it is quite a different matter to make a finding that "but for" her smoking of amphetamines, the sexual offending would not have occurred.
Firstly, despite being under the influence of the amphetamine SW made it clear on a number of occasions that she did not want BB's sexual advances to progress. The fact that she had smoked amphetamines therefore had no effect on the sexual penetration occurring without her consent. She was still capable of making it clear that she did not consent. Just prior to the penetration occurring SW told BB: "No, I've told you, please, just get off me. No more. Just get off me, please." Whereas it could be said that the smoking of amphetamines causally contributed to SW allowing herself to be in a situation where she was alone with BB in her bedroom and was kissing him, this does not mean that it causally contributed to her being sexually penetrated without consent.
Secondly, it is far from clear that BB's offending would not have occurred if SW had not smoked amphetamines with him. It should be noted that BB pleaded guilty to another offence of sexual penetration without consent which occurred on a totally different date and place to a different complainant.
Section 39(1)(b) does not apply
In light of the interpretation of s 39(1)(b) as requiring a causal connection between the injury and the offence committed by the victim, I am of the view that the section does not apply and that SW in entitled to an award of compensation for the injury suffered by her. I am satisfied on the available material that SW's separate offence did not causally contribute to her injury. It is therefore not material to the facts of this case whether the burden of proof is on the applicant or the respondent.
Facts relevant to award of compensation for injury
SW is seeking compensation for the mental injury that she has suffered as a result of the sexual assault. In her victim impact statement SW says that prior to the sexual offending she was an outgoing, happy‑go‑lucky person. She got on with everybody and did not hate anybody. After the sexual offending she hates BB, is often angry and expresses her anger with physical actions. She has torn ligaments in her foot because she kicked things in anger. SW says that she has always been an emotional person, but within reason. Since the incident she often cries without reason which makes her family upset. She says that she is afraid to go out to parties or gatherings with friends, because she does not feel safe anymore. She states that she is generally very nervous, has trouble with bladder control and problems with her sexual relationship with her husband. SW says that the sexual assault has affected her whole family, including her five children who are aged from 19 to 11 years. She states that she feels responsible for the difficulties that her children have experienced as a result of her mental injury and she has lost the amenity of doing activities together as a family, like going to the beach or having picnics.
SW relies on a report dated 4 May 2009 prepared by Ms Buktenica, a clinical psychologist with the Sexual Assault Resource Centre. Ms Buktenica advises that SW made contact with SARC on 26 November 2007 and subsequently engaged in regularly counselling but for a few months when she tried to cease counselling. Ms Buktenica is of the view that SW made significant improvement in her psychological wellbeing over the six months to the date of the report.
Ms Buktenica reports that SW suffered from bulimia for many years prior to the offending and had been treated for this in the past. However, SW claimed that she had managed to control this disorder in the year prior to the sexual assault and was no longer vomiting after meals. After the sexual assault SW relapsed and reported vomiting up to six times per day for many months. At the time of the report this had been reduced to vomiting approximately once per week.
Ms Buktenica diagnosed SW with depression, anxiety and an eating disorder. SW experienced nightmares, hypervigilance, anxiety, flashbacks, self‑blame, anger outbursts and avoidant behaviour as a result of the assault. In the first 12 months following the assault, she stayed in bed all day, felt significant anxiety and fear and cried all the time. SW said that she felt scared of men and that this prohibited her from going out socially or taking walks in the evenings.
SW reported that she had not misused alcohol prior to the assault, but started drinking to excess as a strategy to reduce her anxiety and stop the ruminations related to the trauma. She experienced relationship difficulties in her marriage and her children also developed anxiety symptoms and behavioural problems since the assault. Ms Buktenica is of the view that this is likely to be a secondary effect related to SW's compromised coping, excessive drinking and increased mental health issues following the assault. Ms Buktenica states that it is not uncommon for children to develop anxiety and fear symptoms when they perceive a parental figure as being extremely vulnerable or sensing that a parent has been harmed in some way. SW described ongoing guilt and self‑blame for the effect the assault had on her children, because they were over‑protective of her and had difficulties moving on with their own lives.
SW acknowledged that she had suffered from depression prior to the sexual assault and had been on antidepressant medication. However, the dose of antidepressant medication was increased significantly after the assault. Ms Buktenica expressed the opinion that it was not unusual to have psychological disturbances such as depression and an eating disorder escalate significantly as a result of an assault. Ms Buktenica is of the view that SW's description of her current functioning and presentation in the interview supports her claim that the sexual assault has had a profound psychological impact on her functioning.
The report by Dr Wang‑Jet Yee, dated 13 May 2009, states that SW has been on medication for depression and anxiety/insomnia since the incident and has attended private clinical psychology sessions. The report by Dr Dyer, her current medical practitioner, dated 20 April 2010, states that SW is still on antidepressant and tranquiliser drugs and receiving regular counselling from a trained psychologist.
Principles applicable to calculation of compensation for injury or loss
Pursuant to s 12 of the Act a victim who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered. "Injury" is defined in s 3 of the Act as "bodily harm, mental and nervous shock, or pregnancy."
The phrase "mental and nervous shock" has been construed as including any malfunction of the victim which can be seen to be a consequence of the impact of events constituting the offence, or associated with the commission of the offence, as those events impact on the mind or nervous system: Hatfield v Under Secretary for Law, unreported; SCt of WA; Library No 4012; 15 December 1980 at 5. Mental and nervous shock includes distress, horror, disgust and other similar adverse mental reactions, but excludes mere fright, humiliation or anguish: M v J and J v J, unreported; SCt of WA; Library No 920598; 19 November 1992 at 10 – 11. What is contemplated by the Act is not a mere emotional reaction but something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury: S v Neumann at 461.
There is no doubt that the depression, anxiety and eating disorder suffered by SW after the sexual assault is a mental shock which is compensable. However, she is not entitled to compensation for the anxiety and behavioural problems experienced by her children or her reaction to that. The court must make a distinction between direct "impact damage" and further damage that may be suffered by such things as the reaction of the victim's friends and family, court proceedings or public attention: RJE v Bandy, unreported SCt of WA; Library No 5489; 31 May 1974 at 3.
Alcohol abuse which is secondary to a psychiatric disorder caused by the commission of the offence has been held to be encompassed in the phrase "mental and nervous shock": BKW v JFO [2003] WADC 274 at [17] and CKM [2008] WADC 79 at [127]. I agree that alcohol abuse can properly be described as a "malfunction of the victim" which is "a consequence of the impact of events constituting the offence". Even if alcohol abuse does not itself constitute a malfunction, it can be a symptom of a mental disorder such as depression in the same way that insomnia can be a symptom of a mental condition.
In determining the appropriate amount of compensation the correct approach is to apply the ordinary tortious principles for assessment of damages subject to the jurisdictional limit imposed by the Act: M v J and J v J (supra). The court should have regard solely to the injury suffered by the applicant in consequence of the commission of the offence. The amount of compensation is not to be fixed as punishment of the offender or as an expression of sympathy for the victim: B v W (1989) 6 SR (WA) 79 at 89.
Effect of applicant's pre-existing condition
The onus is on the applicant for compensation to establish, on the balance of probabilities, a causal relationship between the commission of the offence and the injury or loss for which compensation is sought: S v Neumann (1995) 14 WAR 452 at 463 – 464. It is not necessary for an applicant to establish that the offence was the sole cause of the injury or loss. It is sufficient if the proved offence materially contributed to any injury or loss: Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 at 673 and S v Neumann (supra) at 463 – 464.
In the present case SW has established that the sexual offending materially contributed to the psychological conditions that she developed.
However, s 41 of the Act provides that in deciding on the amount of a compensation award the Assessor must have regard to "any behaviour, condition, attitude or disposition" of the victim that contributed, directly or indirectly, to the victim's injury. If the Assessor thinks it just to do so, the Assessor may refuse to make a compensation award or reduce the amount because of the contribution made by the victim.
The full section reads as follows:
"41. Behaviour etc. of victim to be considered
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor –
(a)must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury or death; and
(b)may, if he or she thinks it is just to do so –
(i) refuse to make a compensation award because of that contribution; or
(ii)reduce the amount that the assessor would otherwise have awarded."
SW already suffered from depression and bulimia before the sexual offending. This raises a number of questions, namely, whether the pre‑existing depression and bulimia are "conditions", whether they contributed, directly or indirectly, to the injury, that is the psychological problems experienced by SW after the offending and whether the compensation award should be reduced by an appropriate amount.
It is not immediately apparent on a grammatical reading of s 41 whether it is only meant to target inappropriate behaviour or attitude by the victim at or around the time of offending in the nature of what could be described for want of a better term as "contributory conduct", or whether it is also meant to refer to a pre‑existing medical condition which may have contributed to the injury. The reference to "behaviour" or "attitude" indicates some conduct which is relevant to the offending. The words "condition" and "disposition" are wider in meaning and could include a reference to a pre-existing medical condition.
The section refers to these matters making a contribution to "the victim's injury"; not to "the offence". This gives a wider application to the words "behaviour, condition, attitude or disposition" and could include any such factor which contributes to the injury, even if it was pre‑existing and had nothing to do with the offence.
The relevant definitions of the word "condition" as they appear in the New Shorter Oxford Dictionary are "mental disposition; moral nature; temper" and "a state resulting from a physical or mental illness; sickness, a malady". The first definition is a concept which fits in with "attitude", while the second definition is quite a different concept and could include a pre-existing physical or mental condition.
The word "disposition" is defined relevantly in the New Shorter Oxford Dictionary as "temperament or character esp. as displayed in dealings with others; turn of mind"; and "a frame of mind; a mood". These concepts again fit in with "attitude". However, "disposition" is also defined as "physical constitution of anything; physical condition of the body, state of health" which would include a pre-existing physical or mental condition.
The words "condition" and "disposition" could therefore refer either to a mental disposition such as aggression or temper or they could refer to a physical or mental illness which was pre‑existing.
It does not seem that this section has been judicially considered in the context of a victim's pre‑existing physical or mental condition. In Reed v The Assessor of Criminal Injuries Compensation, unreported; DCt of WA; Library No D970170; 5 June 1997, Viol J considered whether a deduction should be made from compensation awarded to the victim of an assault because he had abused drugs after the offence had occurred. His Honour considered s 25 of the Criminal Injuries Compensation Act 1985, which was the precursor to s 41 and was essentially in the same terms. His Honour came to the conclusion at 21‑22 that the applicant's drug use was secondary to the psychological condition which he developed as a result of the assault and that there was in any event not a sufficient causal link between the drug abuse and the symptoms suffered by the applicant. Viol DCJ held that it was therefore not appropriate to make a deduction from the award of compensation.
The decision in Reed did not deal with the question whether s 41 refers to a pre-existing physical or mental condition, as His Honour came to the conclusion that the drug abuse was secondary to the psychological condition that the victim developed after the offence. In any event, drug abuse would be better described as "behaviour" which contributed to the victim's injury rather than "a condition" which made such a contribution.
Section 41, as it now reads, was first introduced in very similar terms as s 27 in the Criminal Injuries Compensation Act 1982. The 1982 Act was a new Act which replaced the Criminal Injuries (Compensation) Act 1970. The 1982 Act included the words "behaviour, condition, attitude or disposition" of the applicant, whereas the 1970 Act had only referred to the "behaviour" of the applicant in a similar section.
In the second reading speech of the Bill preceding the 1982 Act the Minister said the following about cl 27:
"Clause 27 allows the assessor to apportion responsibility between the victim and the assailant and to reduce the amount of compensation which otherwise he might have awarded by the extent to which the victim himself contributed to his injuries or loss."
The reference in the second reading speech to "apportion responsibility" and "the victim himself contributed" seems to indicate that the legislature had some morally reprehensible conduct at the time of the offending in mind and not a pre-existing condition for which the victim may carry no responsibility. Further, the fact that the reference to "behaviour, condition, attitude or disposition" was an expansion of the word "behaviour" used in the 1970 Act seems to indicate that the section was meant to deal with a victim's conduct relevant to the offence, with what I have described as "contributory conduct", and not with a pre‑existing medical condition which contributes to the injury.
The purpose of the section was to apportion responsibility to the applicant for his or her behaviour, condition (in the sense of mental disposition) attitude or disposition (in the sense of frame of mind or mood), which contributed to the offence and therefore the injury. There is no indication that the section was also meant to apply where a pre-existing medical condition contributed to the injury, but no reprehensible conduct by the victim was involved at the time that the offence was committed.
As the Act is legislation which has a beneficial purpose (see Bird v The Commonwealth (supra) at 9) s 41 should be interpreted to the effect that the words "condition" or "disposition" do not refer to a pre-existing physical or mental illness or disability, but only to a condition or disposition which was relevant to the commission of the offence and therefore contributed to the injury of the victim.
Intoxication by a victim at the time that the offence is committed would qualify as a condition which can be taken into account under s 40 if it was relevant to the commission of offence and therefore contributed to the injury. But long‑standing drug abuse which has contributed to a psychological condition developed by the victim after the offence and which had nothing to do with the commission of the offence, would not be a factor that the assessor must have regard to under s 41.
The contributory effect of a pre‑existing condition should therefore not be dealt with under s 41, but under the ordinary principles of assessing damages as they apply in the law of tort.
In the law of tort a plaintiff is entitled to all the loss and damage flowing from a personal injury, as long as the defendant's act made a material contribution to the injury: March v E & M H Stramare Pty Ltd (supra) at 514. Where a plaintiff already suffered from a pre‑existing physical or mental condition, but was almost certain to have gone through life unaffected by the pre-existing condition, the defendant remains liable for all the loss and damage resulting from the personal injury: Brown's Valve Service Pty Ltd v Cristina [1997] 1 VR 536 at 543 ‑ 544.
Where the pre‑existing condition is of a type that would have affected the plaintiff irrespective of the injury, the defendant is only liable for the damages resulting from an increase in the condition or the acceleration of the onset of symptomatology from the condition which was brought about by his wrongful act: Watts v Rake (1960) 108 CLR 158 at 160 and Zumeris v Testa [1972] VR 839 at 843. In order to disentangle the effects of the defendant's wrongful act and the effects of the pre‑existing condition there must be evidence which establishes with some reasonable measure of precision what the pre‑existing condition was, and what its future effects, both as to their nature and future development and progress, were likely to be: Purkess v Crittenden (1965) 114 CLR 164 at 168.
There is an evidentiary burden on the defendant to adduce evidence that the plaintiff's condition was wholly or partly the result of some pre‑existing condition: Watts v Rake (supra) at 160 and Purkess v Crittenden (supra) at 168. Where it is not possible to disentangle the effects of the wrongful act on the plaintiff and the future effects of the pre‑existing condition, the plaintiff is entitled to all the loss and damage flowing from his current and likely future condition or capacity: Watts v Rake at 160.
In respect of events which have already occurred the court decides on a balance of probabilities whether a specific event has occurred or not and damages are assessed on an all or nothing approach. However, where it is necessary to assess a hypothetical situation such as whether a plaintiff's pre-existing condition would in any event have prevented him from working in the future, the court must perform an estimate of the likelihood that the hypothetical situation may occur. If there is a fair chance that the hypothetical situation may occur, the court must evaluate that chance and discount the damages by the percentage that represents that chance: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 642 ‑ 643 per Deane, Gaudron and McHugh JJ; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 499 - 500. In Wynn the High Court made a 12½ per cent deduction to allow for the possible effect of the pre-existing condition on the plaintiff's future earning capacity as well as for the possibility of the plaintiff taking maternity leave.
A pre-existing condition may lead to a reduction of not only an award for future loss of earning capacity but also for an award of general damages: Wilson v Peisley (1975) 50 ALJR 207 at 212 per Stephen J.
In MJN v MAJS (2003) 35 SR (WA) 219 Martino DCJ applied the principles applicable in the law of tort for assessing whether and to what extent a reduction should be made from the criminal injuries compensation awarded to an applicant where the applicant suffered from a pre-existing mental condition. The applicant was sexually abused by her father and this caused the applicant to develop borderline personality disorder. However, the applicant already suffered from bipolar affective disorder and late luteal phase dysphoric disorder at the time of the offending. His Honour came to the conclusion that a 50 per cent deduction should be made from the award of compensation by reason of the pre-existing mental conditions.
MJN v MAJS was decided under the Criminal Injuries Compensation Act 1970. Section 4(2) of that Act also allowed for a reduction in the compensation awarded to an applicant, but only referred to "behaviour" of the applicant which contributed to the injury and not to "condition". Accordingly, Martino DCJ did not deal with that section.
Assessment of compensation for injury
Although there were two distinct offences committed against SW, sexual penetration without consent and indecent assault, the amount of compensation to be awarded is not dependant upon the number of offences or on the seriousness of the offences, but is to be assessed with regard to the seriousness of the injury suffered by the applicant in consequence of the commission of the offences: KJH v RAM (1996) 16 SR (WA) 133 at 140 and G & N v R (2006) 48 SR (WA) 301 at [8].
The maximum amount of compensation available for the injury arising from the two offences is $75,000, as the two offences are related offences as contemplated by s 33 of the Act.
The task of assessing criminal injuries compensation can only be carried out by way of a broad and largely arbitrary or subjective assessment of what, according to current community standards, would be regarded as reasonable compensation: R v Fraser [1975] 2 NSWLR 521 at 524. A comparison of other awards of compensation is not helpful because each case depends on its own facts.
I take into account that the injury was suffered in November 2007, that SW consulted Dr Yee and a private clinical psychologist immediately after her assault and that according to Dr Dyer she was still depressed, frightened, disturbed and on antidepressant and tranquiliser medication in April 2010, which is two and half years later. Dr Dyer is of the view that SW will require further counselling by a psychologist over the next three to four years, visits to a psychiatrist as well as medication over the next two years. Ms Buktenica diagnosed SW as suffering from depression, anxiety and bulimia in May 2009. The symptomatology that I have previously described indicates that SW was significantly affected by the assault on her.
I allow for the fact that SW is not be compensated for the effect that her mental condition has had on her children, but she is entitled to the loss of the enjoyment of spending positive time together as family and sharing family outings. Given the substantial nature of SW's injury I consider that an award of $30,000 is appropriate.
The question then is whether a deduction should be made from this award on the basis that SW suffered from the pre-existing conditions of depression and bulimia. There is no evidence before me of the extent of the depression that SW suffered prior to the sexual assault other than that she was on anti-depressants. SW says that she was a happy-go-lucky and outgoing person prior to the offending.
As regards the bulimia, SW told Ms Buctenika that this had been under control prior to her assault, that she was no longer vomiting after meals and did not require further treatment at that time.
Without appropriate evidence it is very difficult to make an assessment whether SW's pre‑existing depression has made any contribution to her current psychological symptomatology, such as her anxiety, social withdrawal, isolation, anger outbursts and avoidant behaviour. There is no doubt that the sexual offending substantially aggravated her depression as her medication was significantly increased and she was also placed on tranquillisers. The flashbacks, nightmares and self-blame are clearly not related to any pre‑existing condition.
There is also no evidence that SW's occasional smoking of amphetamines caused her to suffer from any mental condition or has made any contribution to the current symptomatology experienced by her. The misuse of alcohol only started after the sexual offending and was secondary to the psychological problems experienced by SW at that time.
In light of the lack of evidence before me it is not appropriate to make any deduction from the award of compensation for the injury.
Assessment of compensation for future medical expenses
SW has also claimed compensation for the cost of future medical treatment and expenses. Pursuant to s 12 of the Act an applicant is entitled to compensation for the injury and any loss also suffered. "Loss" is defined in s 6 of the Act as including expenses actually and reasonably incurred arising directly from the injury as well as expenses that are likely to be reasonably incurred by the victim for treatment. Section 48 of the Act provides that where a compensation award is made in respect of expenses likely to be incurred in the future, the amount of compensation is not to be paid unless proof is provided to the Chief Assessor that the expenses have been incurred and the Assessor is satisfied that they were incurred reasonably and as a direct consequence of the injury.
The only evidence before me in respect of future treatment expenses is the report by Dr Dyer. He says that it is estimated that SW will require the following future medical treatment:
•Psych Counselling – (assuming private consults)
30 @ $50 = $4,500
Over 3‑4 years
•GP attendance (private) monthly over 2 years – 24 @ $58 = $1,392
•Drugs over 2 years (with Health Care Card) @ $8 = $1,250
Or (private) 200 @ $20 = $2,000
•Psychiatrist (if private) – 10 @ $210 = $2,000
•HBF 2 years $8,000
Dr Dyer specifically notes that the number of attendances and costs suggested by him are only estimates. No explanation was provided for the amount of $8,000 representing "HBF 2 years". Apart from the latter amount I allow compensation for future medical treatment in the amount of $9,892 which represents the other estimated amounts. As indicated earlier, this compensation is not to be paid at this stage, but can only be claimed by SW upon proof that it has been reasonably incurred and as a direct consequence of the injury.
Award of compensation for expenses incurred
SW has also claimed the cost of the report that she obtained from Ms Buctenika in the amount of $700. As this qualifies as an expense actually and reasonably incurred and arises directly from the injury, SW is entitled to compensation in that amount.
Total amount of compensation
The compensation to be awarded to SW is as follows:
Compensation for injury $30,000
Compensation for future treatment $ 9,892
(payable upon proof of it being incurred)
Compensation for expenses incurred $ 700
Total$40,592
25
21
1