T v W - [2010] WADC 180

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: T -v- W [2010] WADC 180

CORAM: SLEIGHT DCJ

HEARD: 29 OCTOBER 2010

DELIVERED : 3 DECEMBER 2010

FILE NO/S: APP 19 of 2010

BETWEEN: T
Applicant
AND
W
Respondent

Catchwords:

Criminal injuries compensation appeal - Physical and psychological injuries - Attack by group of persons - Only one person charged - Award divided between proved offence and alleged offences - Turns on its own facts

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Appeal allowed - award increased to $20,809

Representation:

Counsel:

Applicant:     Mr R J Nash
Respondent:     In person
Amicus Curiae              :     Mr N John appeared on behalf of the Chief Executive Officer for the Department of the Attorney General

Solicitors:

Applicant:     GG Legal
Respondent:     Not applicable
Amicus Curiae              :     State Solicitor for Western Australia

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

Gullelo v Halloran [2008] WADC 145
Hatfield v Under Secretary for Law (Unreported, SCt of WA, Library No 4012, 15 December 1980)
M v J and J v J (Unreported, SCt of WA, Library No 920598, 19 November 1992)
PPC v BMS [2006] WADC 43
Re; Tilbury [2010] WADC 46
RJ v Bandy (Unreported, SCt of WA, Library No 1365, 31 May 1974)
S v Neumann (1995) 14 WAR 452

SLEIGHT DCJ: On 22 February 2007 Mr T, then aged 16, was chased and attacked by a group of other young people at the Morley Galleria Shopping Centre. Only one person, a Mr W, was charged. The charge against Mr W was that with intent, he did an act, namely being a part of a group that chased and punched the complainant, which resulted in bodily harm to Mr T. The charge was pursuant to s 304(2)(a) of the Criminal Code. Mr W pleaded guilty to this charge in the Children's Court.
Mr T made a claim for criminal injury compensation under the Criminal Injuries Compensation Act 2003 (the Act). The assessor decided to treat the claim as partly a claim for injuries as a consequence of a proved offence by Mr W, and partly a claim for injuries as a consequence of an alleged offence by unknown other persons. By doing so he achieved an apportionment of liability which has relevance in terms of the chief executor officer's rights of recovery against Mr W. The total award made by the assessor was in the sum of $12,809 compensation. The assessor has not published any reasons for his decision. Mr T appeals against the decision on the grounds that the amount awarded was 'grossly inadequate'.

The law

The appeal under the Criminal Injuries Compensation Act 2003 is a hearing de novo (PPC v BMS [2006] WADC 43, Gullelo v Halloran [2008] WADC 145).
The appeal is pursuant to s 55 of the Act. Section 56 of the Act provides that the District 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.
Further evidence should be admitted on the hearing of the appeal unless there is some reason why it would be unjust to do so: see Re; Tilbury [2010] WADC 46 [3].
The assessment of compensation is to be made in accordance with the ordinary tortious principles for assessment of damages, subject to the limitations imposed by definitions of 'injury' and 'loss' in the Act and subject also to the jurisdictional limit imposed by the Act: see M v J and J v J (Unreported, SCt of WA, Library No 920598, 19 November 1992) (Scott J); RJ v Bandy (Unreported, SCt of WA, Library No 1365, 31 May 1974) 3 (Burt J). Compensation is payable where a person has suffered 'injury' in consequence of the commission of the offence. Section 3 of the Act defines 'injury' as meaning 'bodily harm, mental and nervous shock, or pregnancy'.
The phrase 'mental and nerve shock' comprehends any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence or offences, or associated with the commission of the offences, as those events impact on the mind or nervous system. It must be more than a mere emotional reaction, being something of a more enduring character which may, in both the legal and in common parlance, be described as an injury. The term includes distress, horror, disgust and other similar adverse mental reactions but excludes mere fright, humiliation or anguish: Hatfield v Under Secretary for Law (Unreported, SCt of WA, Library No 4012, 15 December 1980) 5 (Burt CJ); S v Neumann (1995) 14 WAR 452, 461.

Summary of evidence

Mr T in his written police statement dated 23 February 2007 stated that on 22 February 2007 he was seated outside Donut King in the Morley Galleria Shopping Centre with a friend (Mr A). Mr T and his friend were waiting to meet other friends. Mr T noticed a large group of other male persons who were looking and pointing towards him. Mr T and his friend decided to leave the shopping centre via an exit. They were followed by a group, which included Mr W. The group caught up with Mr T and five to 10 people attacked him. Mr T was punched in the face which caused him to feel a bit dizzy. He avoided further blows to the face by blocking the punches and running about in a circle. He saw an alley and ran towards it. He was pursued by three of the group. Eventually two of the pursuers dropped out and Mr T was pursued by one person but was able to escape. Mr T entered a bike shop and there sought assistance. His mother was telephoned who came to the shopping centre and collected Mr T. His mother took him to the Morley Police Station.
Mr T was only able to positively identify two of the persons who chased him, one of whom initially was Mr W.
Mr T describes his injuries in his written police statement as being two cuts, swelling and bruising to the left eye. He also complained of a sore back where he was kicked.
Photographs were taken of Mr T on the day of the attack (before treatment) and also the next day. These photographs show quite severe bruising around the left eye and two deep lacerations above and below the eye.
A medical report from the Swan Health Service dated 23 February 2007 states as follows:
On examination the patient had two lacerations, above and below the right eye . He had a right orbial haematoma. Vision was not impaired. Pupils were equal and reacted.
Lacerations were cleansed and close with steristrips. I gave the patient a head injury advice sheet and advised him to return should he develop any sinister features.
The diagnosis was lacerations periorbital (right).
Although this report refers to right eye injuries, from the photographs it is clearly a left eye injury.
Mr T attended the Kiara Family Practice for further medical treatment on 2 April 2008. Dr Ng in a medical report dated 3 April 2008 stated as follows:
Following the attack, Mr T said that he suffered from headaches and blurred vision for about a week, and pain in his lower back for a month.
While his headaches and back pain have resolved, Mr T still finds that he becomes anxious and very nervous when he sees anyone associated with the youths that attacked him. He says that is unable to go to the Galleria alone, and often makes the 50‑minute walk home from work to avoid the Galleria bus terminal, if he is unable to get a right home. He says that he does not go out much at all any more.
While he is no longer getting flashbacks regarding the assault, he still gets the occasional nightmare about the event.
On examination, there is a 1 cm scar just under the lateral aspect of his left eyebrow, and a 2 cm fading scar on his left cheek.
Photographs lodged at the time of Mr T's application, which was lodged on 15 September 2009, show mild scarring just below the left eyebrow and a redness in the area of the scar on the left cheek.
In a victim impact statement dated 12 June 2007 Mr T stated:
For the first month after it happened I didn't sleep very well. I didn't eat as much as I used to and still don't. I used to have weird nightmares, I was really moody and kept snapping at my mum and little sister. I felt terrible and wanted everything to go away.
I had a lot of bruising and felt a lot of pain. My eyesight was affected for a while. It affected my work because I couldn't do as much. I had to stay inside for about four days because of the sun hurt my eyes.
Mr T also described in the victim impact statement how he felt terrified going anywhere near the Galleria shopping centre. Because he did not go to the Galleria shopping centre as much he tended to stay at home and have less contact with his friends. He stated that 'I don't feel safe anymore and I don't like going anywhere alone'. He also complained of moodiness at home and conflict with his mother and his sister as a result.
Mr T's mother made a statement dated 11 September 2009 in which she stated as follows:
Before the attack my son was a well adjusted boy who enjoyed the company of his peers and was well behaved at home.
Since the assault he has taken to drugs, mainly amphetamines and marijuana, and his addiction reached the stage where he sought treatment from Mission Australia, Youth Withdrawal and Respite Residential Service at 129 Hill Street, East Perth.
…
Since the assault he has lost confidence, gets extremely frustrated and has outbursts of anger for no apparent reasons.
His emotions are completely unpredictable and he goes from a state of depression to anger and has showed a total lack of confidence and pride in himself. He raises his voice at me, my partner and his little sister who is currently 11 years old. He has no patience with anything.
He is ashamed of his physical appearance due to the scarring which has affected him greatly. He has virtually no self-esteem. He does not like to go outside the house by himself, especially to shopping centres.
A report from Mission Australia dated 7 August 2009 confirms that Mr T came to the service for assessment in September 2008. He had recently lost his job due to drug use and he attributed this to the assault in 2007. He entered a detox and respite unit on 9 September 2008 and left, as planned, on 30 September 2008 with successful completion of the programme.
A psychological report dated 3 March 2009 by Mr Timothy Brand stated that Mr T attended psychological treatment at Mr Brand's rooms as from 1 September 2008.
In the report Mr Brand described the symptoms of Mr T as follows:
Mr T described experiences in the first few months after the accident consistent with a diagnosis of Post Traumatic Stress Disorder. He described current symptoms consistent with sub‑clinical Post Traumatic Stress Disorder.
Mr T described recurrent intrusive recollections of the assault, initially occurring frequently, and tailing off to 1-2 times a month currently. These recollections can be triggered by arguments with family, seeing others fighting or arguing at his workplace or by visiting the scene of the assault. Mr T also experienced some uncued recollections of the event. Mr T reported experiencing a number of distressing dreams of the accident, which occur intermittently, and during which he was sufficiently upset to wake up with heart palpitations. When Mr T is reminded of the accident either by intrusive recollection or daily cues, he reacts with physiological symptoms consistent with increased arousal, including tightness in the chest, muscle tension, tingling in his hands and a desire to run.
Mr T also described symptoms of increased arousal stating that he finds it difficult to stay asleep, wakening in the middle of the night 2-3 times a week (mild middle insomnia). He described feeling irritable and more easily annoyed than usual. He has noticed that his anger at simple frustrations has increased markedly, resulting in Mr T smashing items such as the TV remote or DVDs. Mr T reported severe difficulty relaxing and constantly feels on edge. He demonstrated this throughout the assessment, sitting forward in his seat, playing with his hair and fidgeting. When walking in public, Mr T is constantly hypervigilant, looking out for further signs of another assault.
Mr T has attempted to cope with this event predominantly through avoidance strategies. He described attempting to avoid thinking about the assault, staying distracted so that he wouldn't remember the event. He has avoided speaking about the assault due to the distress it causes, and will stop others if they try to bring it up. Mr T has avoided returning to the Morley Galleria by himself, and only briefly visited the shopping centre with a group of friends. He also initially avoided catching any public transport due to the risk of running into the boys involved in the assault. Mr T currently catches public transport, however still avoids buses that involve going to Morley or through the Morley bus port. There was some evidence of psychological numbing, in that the assault still feels "unreal" to Mr T, and he has had significant difficulty getting interested in activities he used to enjoy, such as sport, riding his bike and spending time with friends.
Mr T described his mood as variable, ranging from low to euthymic, and generally anxious.
Mr T was administered by Mr Brand the Davidson structural interview for post‑traumatic stress disorder on 8 September 2008. Mr T's responses met most of the criteria for post traumatic stress disorder. Mr Brand concluded in his report dated 3 March 2009 as follows:
Mr T has engaged well in psychological treatment and has experienced a substantial reduction in PTSD symptomology. Treatment has primarily involved exposure based cognitive therapy to assist Mr T in habituating to his feared memories. Mr T initially experienced significant anxiety upon recollection of the accident, however upon subsequent retellings his anxiety has reduced to very minimal. He describes feeling comfortable to approach the Morley Galleria and believes he could cope with bumping into the boys who assaulted him. He no longer experiences intrusive recollections of the assault. Mr T reports a reduction in his general level of anxiety, and while cautious in public, is no longer hypervigilant. His level of anger has reduced, although he still tends to "snap" from time to time. Treatment also focused on providing cognitive restructuring around Mr T's view of himself as stuck and dependent on others, and increasing his level of pleasant events.
Mr T has experienced a substantial reduction in his PTSD symptoms over the six sessions provided. His mood is still variable and dependant on current stressors. Given the time taken to seek treatment, the speed of recovery and a number of current psychosocial stressors, a relapse of symptoms is possible. I expect Mr T would benefit from another 6 sessions or so to concrete his gains and provide relapse preventions strategies. Additionally, an allowance for 15 further sessions to treat any recurrent PTSD symptomatology in the future would be prudent.
An up-to-date statement signed by Mr T's mother, dated 7 October 2010 states that Mr T 'is suffering depression and anxiety, he is very angry, sad, confused and flips out often'. She complains that her son finds it 'hard to stay in employment because of his anger and insecure issues'.
She further states that he
will be seeing a counsellor in Midland. This was arranged for him through his Employment Pathway representative, and hopefully will have a number of sessions with them.
She goes on to state:
[Mr T] is very down on himself, he has no interest in things he used to do. He used to love to draw, play ice hockey, softball and baseball. He used to make things out of anything he could find. He was always a loving, happy, helpful, energetic child and helped anyone around him. And as his moter [sic] it is very hard to watch him being distroyed [sic] into a sad, depressed, anxious person that has no self esteem or interest in himself or anyone, anything around him.

Assessment

Based on the material before me I conclude as follows:
1.On 22 February 2007 Mr T was chased and attacked by a group of youths. He was struck blows to the face and was also kicked in the back.
As a result of the attack he suffered the injuries described in the medical reports detailed above (except the medical report from the Swan Health Service incorrectly states the injuries were to the right eye whereas my finding is that the injuries were to the left eye).
2.Mr T made a good recovery from his physical injuries except that he is left with a small scar below the eyebrow of the left eye and a slight redness to the left cheek area.
3.I accept that as a result of the attack Mr T suffered symptoms of post‑traumatic stress disorder which remained untreated until he sought psychological treatment in September 2008. The psychological symptoms included anxiety attacks when recollecting the incident, and he engaged in avoidance strategies to avoid the Galleria shopping centre and other situations where he feared he might make contact with the persons who attacked him.
4.I am not satisfied that Mr T's drug problems are directly attributable to his psychological symptoms. However I accept they played a contributing part.
5.I find that with treatment from Mr Brand, Mr T experienced a substantial reduction in his post‑traumatic stress disorder symptoms, although he does remain susceptible to relapse. However I place little weight on the further statement of Mr T's mother dated 7 October 2010. It is not supported by any updated psychological report. However, I do accept that Mr T may suffer relapses from time to time and may require future medical treatment.
Taking all factors into account I conclude that an appropriate assessment of damages is $20,000. It is not disputed that there were further expense items to be included which come to $809. Accordingly the total award is $20,809.

Apportionment of liability

As I have mentioned earlier in this decision, the assessor in his award treated the claim for compensation by Mr T as two applications;
1.An application under s 12(1) of the Act in respect of injuries and losses suffered by Mr T as a consequence of a proved offence committed by Mr W.
2.An application under s 17(2) of the Act in respect of injuries and losses suffered by Mr T as a consequence of an alleged offence for which no person has been charged.
The assessor divided the total award of $12,809 between the two applications as follows:
1.$3,000 to the proved offence for which Mr W was convicted.
2.$9,809 to the alleged offence.
Section 12 of the Act provides that a person 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. Under s 12(3) an assessor must not make a compensation award in respect of a compensation application unless 'the claimed injury or any claimed loss has occurred and did so as a consequence of the commission of a proved offence'.
A proved offence means a crime, misdemeanour or simple offence of which a person has been convicted (s 3 of the Act).
Under s 17 of the Act a person who suffers injury as a consequence of the commission of an alleged offence may apply for compensation for that injury and any loss also suffered. Under s 17(4)(a) an assessor must not make a compensation award in respect of an alleged offence unless 'the claimed injury or any claimed loss has occurred and did so as a consequence of the commission of the alleged offence'.
An alleged offence means 'a crime, misdemeanour or simple offence of which no person has been convicted'.
As I have mentioned earlier in this decision, Mr W was convicted in the Children's Court at Midland on 17 May 2007 with an offence of with intent to harm did an act which resulted in bodily harm. The nature of the allegation against Mr W was that he had participated in the attack by being a member of the group that chased Mr T and which led him to being attacked and suffering bodily harm. Mr W who appeared before me on the appeal said that he joined in the initial chase but did not participate in the actual assault on Mr T. The reason for this was that he became involved in an attack on Mr T's friend, a Mr A (Mr A ultimately suffered a fractured jaw).

On the evidence before me I am satisfied that the assessor was correct in treating the application as both an application under s 12 and an application under s 17.
In relation to the application under s 17, I am satisfied from the evidence before me that Mr T did suffer injuries as a consequence of the commission of the alleged offence (being assault occasioning bodily harm) for which no‑one was charged.
In the circumstances I believe that it is appropriate that I apportion liability for the total award I have made between the application under s 12 and the application under s 17.
I am satisfied that Mr W's presence and the offence he committed contributed to the psychological injuries suffered by Mr T. However Mr W was only one person out of a large group of boys. His conduct alone would not have been sufficient to cause the injuries suffered by Mr T. But Mr W did contribute to the injuries by his presence and involvement in the pursuit of Mr T which ultimately lead to the physical attack on Mr T by others. On the evidence of Mr T there was a group of about five or 10 boys who were trying to hit him. I am satisfied that at the time Mr T was struck, Mr W's attention was focused on Mr A.
Taking all these factors into account I conclude that I should apportion liability for the award for the injuries suffered by Mr T as follows:
1.The application under s 12 of the Act for a proved offence by Mr W, the sum of $2,000.
2.The balance of the award under the application pursuant to s 17 of the Act for an alleged offence on 22 February 2007.
Pursuant to s 64(3)(c) of the Act I prohibit publication of any particular of this compensation award that is likely to lead to members of the public to identify the claimant Mr T or the offender Mr W.