TALBOT
[2012] WADC 154
•1 NOVEMBER 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: TALBOT [2012] WADC 154
CORAM: CURTHOYS DCJ
HEARD: 3 SEPTEMBER 2012
DELIVERED : 1 NOVEMBER 2012
FILE NO/S: APP 25 of 2012
MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
and
IN THE MATTER of an Appeal by
BETWEEN: LISA TALBOT
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram :R GUTHRIE
Citation :[2012] CI 104
Catchwords:
General damages - Reduction of earning perimeter
Legislation:
Nil
Result:
Appeal allowed
Award of $20,000
Representation:
Counsel:
Appellant: Mr K S Pratt
Amicus Curiae : Ms M Georgiou appeared on behalf of the Chief Executive Officer of the Department of Attorney General
Solicitors:
Appellant: Stephen Browne
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Gamser v Nominal Defendant (1977) 136 CLR 145
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)
S v Neumann (1995) 14 WAR 452
CURTHOYS DCJ: This is an appeal from the award of the Assessor of Criminal Injuries Compensation (the assessor) made on 2 April 2012. The award was for injuries suffered by the appellant on 2 December 2010 as a result of an alleged offence committed by a deceased offender (the offender).
These reasons reflect the appellant's submissions, which I largely accept and have adopted for the purposes of this decision.
The offender was charged with a breach of s 6(1)(a) of the Surveillance Devices Act 1998. He died on 18 July 2011 before the charges were dealt with by the court. The charges were dismissed for want of prosecution.
The matters constituted an alleged offence pursuant to s 16(1)(d) of the Criminal Injuries Compensation Act 2003 (the Act).
The assessor was satisfied that the appellant suffered injury and loss as a consequence of the commission of the alleged offence.
The assessor awarded the appellant $3,110 as follows:
Injuries (pain and suffering, loss of enjoyment of life and loss of amenities)
$3,000
Report fees (Dr Paul Tan's fees for producing his medical file)
$110
The appellant appeals the award in respect of general damages and now makes a claim for future loss of earning capacity, future psychiatric treatment expenses and the expense of obtaining the psychiatric medical report prepared in support of this appeal.
The appeal is brought pursuant to s 55(1) of the Act. The hearing of the appeal is de novo – s 56(1).
The only medical evidence before the assessor was the medical file of the appellant's general practitioner, Dr Paul Tan.
I gave leave to the appellant to lead further evidence consisting of an affidavit which sets out in some detail the impact of the offence, group certificates, pay slips, a notice of assessment of income tax evidencing the appellant's earnings, a psychiatric report and supplementary report, both prepared by Dr Frederick Ng, consultant psychiatrist, and an invoice/receipt evidencing the cost of obtaining Dr Ng's reports.
In essence the offence involved the offender secreting a recording device in a toilet that was used by the appellant.
Prior to the events of December 2010 the appellant's medical condition was good. She had suffered a knee injury in September 2009. She had suffered a bout of depression some two years earlier, which she had recovered from. These matters are described in her affidavit.
The appellant submitted to the assessor a fairly brief impact statement. She has now provided an affidavit which provides far more detail as to the impact of the alleged offence.
The appellant suffered a psychological injury. Section 3 of the Act defines 'injury' to include 'mental and nervous shock'.
The phrase 'mental or nervous shock', includes any malfunction on the mind or nervous system which can be seen to be a consequence of the impact of events constituting the offence or associated with the commission of the offence; Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980).
Something more than a mere emotional reaction is required. What is required is 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 (1995) 14 WAR 452, 461 per Murray J.
Dr Frederick Ng, in his report of 6 June 2012, described the appellant's psychological injury as follows:
I believe that as a consequence of the incident in December 2010 of a recording device being found in the bathroom/toilet at her place of work that your client did develop at least an adjustment disorder with mixed anxiety and depressed mood (DSM IV TR).
In the alternative;
some may view the anxiety component to be more significant than an adjustment disorder and would diagnose her with an anxiety disorder not otherwise specified (DSM IV TR) with ongoing residual anxiety which has persisted in spite of the passage of time, although improved.
Some may view that the depressive component was more significant than an adjustment disorder and would instead categorise it as a major depressive episode (DSM IV TR).
Dr Ng describes an improvement in her psychological state in the following terms:
With the passage of time the pathological depressive symptoms have largely improved on antidepressant medication although when she reportedly tries to take herself off the anti-depressant, it is reported that she does feel depressed again.
With respect to the pathological anxiety symptoms, these have also improved with the passage of time but she reports mild/moderate levels of ongoing residual anxiety for example remaining vigilant of recording devices not only in bathrooms and toilets but also anywhere else such as change rooms or when she is generally in public, and being anxious about the scrutiny from others, generally lacking in confidence, being self conscious of her appearance etc as stated in the body of this report.
As to the future, Dr Ng's view is that the appellant will have residual ongoing psychiatric symptoms. Dr Ng's opinion at point 5 on page 12 of his report is:
Ongoing residual psychiatric symptoms … would include your client being very concerned and vigilant of people recording or scrutinising her, being body and self conscious, being particularly concerned in toilets/bathrooms and in public change rooms etc, being somewhat claustrophobic, lacking in confidence generally and socially, being somewhat irritable, not as socially outgoing etc.
The evidence led by the appellant, including her affidavit, her impact statement, Dr Paul Tan's medical file and the psychiatric report of Dr Ng establish on the balance of probabilities that she suffered injury and loss as a consequence of the commission of the alleged offence (s 16(4)(a)).
General damages, including loss of earning capacity
The appellant has suffered a significant psychological injury. It will have a long-lasting impact on her.
Ordinary tortious principles for the assessment of damages will apply, subject to any limitations imposed by the Act: M v J and J v J(Unreported, WASC, Library No 920598, 19 November 1992); RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974), 3.
The statutory maximum that may be awarded for the alleged offence pursuant to s 31 of the Act is $75,000.
In Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 per Deane, Dawson, Toohey and Gaudron JJ [2] the High Court stated:
A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that 'the diminution of ... earning capacity is or may be productive of financial loss' (1) Graham v Baker [1961] HCA 48; (1961) 106 CR 340 at 347, per Dixon CJ, Kitto and Taylor JJ.
The appellant's impact statement sets out her past work history. The appellant explained the difficulties she experienced performing her duties following the alleged offence and, in particular, the difficulties she experienced working in the office.
The appellant also describes the difficulties she encountered in an alternative role in a sales position. She found it unbearable to make 'cold calls' on prospective male customers.
The appellant's work performance deteriorated due to her difficulties, and she was sacked. To her credit, has gone on to secure better paid employment. No claim is made for the appellant's lost earnings during those periods.
Dr Ng, in his report of 6 June 2012, described in some detail the effect the appellant's injuries had on her work capacity. At point 7 of the report on pages 13 and 14 he stated:
Following the incident in question, although she did try to keep working full-time, she became very anxious about using the toilets at work and indeed this generalised to using other public toilets, and she reportedly had to go home to use the toilet and also with the onset of all the other associated psychiatric symptoms that reportedly did arise as reported by her following the said incident.
In his supplementary report of 28 August 2012, Dr Ng expressed his opinion that the appellant will not be suited to work in on‑the‑road jobs where she is required to use public toilets, and she also will not be able to work in occupations where she is required to have contact with unfamiliar men on a one‑to‑one basis.
Apart from those matters the appellant is at risk of suffering relapses of her psychological condition, which may result in periods of incapacity for work.
The appellant is at a potential disadvantage in the open labour market. Should she be forced to seek employment from time to time her loss of range of employment opportunities may result in longer periods of unemployment. The appellant is young and likely to be active within the open labour market for many years. There is a real and not a speculative chance that her loss of perimeter will result in financial loss in the future.
That loss is to be assessed on a global basis. There are too many imponderables to make any precise calculation of damages for loss of future earning capacity. In such circumstances a global amount is to be awarded: Gamser v Nominal Defendant(1977) 136 CLR 145.
I have made a global award for both general damages and loss of future earning capacity of $15,000.
Future treatment expenses
Section 6(2)(b) of the Act includes the following in the definition of loss:
Expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injuries suffered by the victim.
Dr Ng's opinion is that the appellant will benefit from 8 to 10 sessions of psychotherapy to be undertaken once every 3 to 5 weeks. Dr Ng provides a costing of $315.00 per session. The appellant is somewhat reluctant to undergo counselling. It is likely, however, that she will have that treatment in the not too distant future: Appellant's affidavit [53].
Dr Ng also recommends ongoing use of Lexapro anti-depressant medication for the next two to five years. Dr Ng provides a cost of $50 to $100 per month.
An award for future medical expenses of $3,500 is appropriate. An award of future treatment expenses is subject to the provisions of s 48 of the Act.
Medical
The medical report expenses incurred in obtaining the report of Dr Ng was reasonably incurred and was reasonably necessary to properly present the appellant's appeal. The report expense is $1,452.
Section 42(2)
An issue was raised about the application of s 42(2) of the Act but following further written submissions the matter was resolved and I am satisfied that the appellant will not make a claim under other legislation and that I should not make a deduction under s 42(2).
Award
General damages, including
allowance for loss of earnings perimeter $ 15,000
Future treatment expenses $3,500
Report$1,452
Total$19,952
I allow the appeal and award $20,000 to the appellant.
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