TAW v NJS - [2011] WADC 187

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TAW -v- NJS [2011] WADC 187

CORAM: BOWDEN DCJ

HEARD: 12 OCTOBER 2011

DELIVERED : 3 NOVEMBER 2011

FILE NO/S: APP 49 of 2011

MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
IN THE MATTER of an appeal by

BETWEEN: TAW
Appellant
AND
NJS
Respondent

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :L V DEMPSEY
File No  :CI 291 of 2011

Catchwords:

Criminal Injuries Compensation Act 2003 - Appeal - Extension of time within which to appeal - Additional evidence - Physical and psychological injuries - Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Application to extend time within which to appeal granted
Additional evidence received
Appeal allowed
Award of $75,000

Representation:

Counsel:

Appellant:     Mr T Offer
Respondent:     No appearance
Amicus Curiae              :     Ms J N Hook appeared on behalf of the 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):

Asjes v Assessor of Criminal Injuries Compensation (Unreported; WADC, Library No 4169, 3 September 1994)
B v W (1989) 6 SR (WA) 79
Bedetti v Chief Executive Officer [2003] WADC 37
Bonnington Castings Ltd v Wardlaw [1956] AC 613
CKM [2008] WADC 79
CLH v PJW [2007] WADC 157
De Florenca v Hayden [2007] WADC 54
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Gallo v Dawson (1990) 93 ALR 479
Garton v McCormack (2002) 30 SR (WA) 307
Gleeson v Lee (1996) 18 SR (WA) 353
Gullelo v Halloran [2008] WADC 145
Hinchcliffe v Hinchcliffe [2010] WADC 78
JDQ [2010] WADC 93
LMC v RJO [2002] WADC 147
Malec v JC Hutton Pty Ltd (No 2) (1990) 169 CLR 638
Michael v Panetta (1994) 10 SR (WA) 323
MJN v MAJS (2003) 35 SR (WA) 219
Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221
Purkess v Crittenden (1965) 114 CLR 164
RBF v OSD‑S (2004) 36 SR (WA) 61
Re Tilbury [2010] WADC 46
S v Neumann (1995) 14 WAR 452
Wilson v Peisley (1975) 50 ALJR 207

BOWDEN DCJ:

The appeal

This is an appeal from a decision of an assessor of criminal injuries compensation awarding the appellant $37,583 for injuries and loss sustained as a result of an assault upon her on 31 December 2009 at Kenwick.
The offender was convicted of aggravated grievous bodily harm on 1 December 2010.
The award comprised $35,000 for non‑pecuniary loss and $2,583 for medical expenses. No written reasons were requested or provided.

Extension of time within which to appeal

The appellant filed a notice of appeal on 15 July 2011 which is outside of the 21 days allowed by the Criminal Injuries Compensation Act2003 (the Act) to lodge an appeal: s 55(3).
The Act provides that if it is just to do so, the court may grant leave to commence an appeal after the expiration of that period; s 55(4)
In Gallo v Dawson (1990) 93 ALR 479, 480 the High Court held that the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties.
The court said that before the discretion can be exercised in favour of an appellant, it is necessary for the appellant to prove strict compliance with the time limit will work an injustice against them having regard to the history of proceedings, the conduct of the parties, the nature of the litigation and the consequences of the refusal of an application for an extension of time. Consideration must also be given to the prospects of the appellant succeeding in the appeal.
In Gleeson v Lee (1996) 18 SR (WA) 353, Hammond CJDC found there were four factors to be considered in applications of these type including the length of delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice to be suffered by the respondent.
Which ever test is used the result is the same. In this case, the length of the delay is 21 days and although the appellant's affidavit setting out her reasons for the delay is irregular, it may still be used: Rules of the Supreme Court 1971 O 37 r 5(2).
In any event, the court may receive any information or evidence it thinks necessary (s 56(2)(a), s 19(1)(c)) to determine the application.
The appellant says there was a delay because it took her time to locate and instruct a solicitor, bearing in mind her circumstances including the psychological issues she was suffering from .
As the assessor made an order pursuant to s 45(1)(a), barring proceedings in respect of a compensation reimbursement order, the chief executive officer is not able to apply for such an order against the offender and therefore any successful appeal will not prejudice the offender.
The effect of refusing the extension of time application would be that the appellant is unable to appeal the decision relating to her application which was made without legal representation and supported only by medical reports prepared for the prosecution of the offender and medical notes.
In my opinion the justice of the case is such that an extension of time within which to appeal ought be granted.

The application to admit additional evidence

The appellant seeks to introduce additional evidence being the medical report of the psychologist, Dr Joffe dated 14 September 2011 and an addendum to that report dated 11 October 2011.
The court has a general discretion to receive and admit further evidence: s 56(1).
Although initially there was a diversion of decisions as to whether a 'strict' or 'wide' approach to that section ought be taken (CLH v PJW [2007] WADC 157) it seems that applying the general rule that when an appeal is a fresh hearing, further evidence should be admitted unless there is some reason why it would be unjust to do so and considering the beneficial purpose of the Act and the informal nature of a hearing before an assessor, the wider view that the additional evidence should be received unless there is a reason not to do so has generally prevailed: Re Tilbury [2010] WADC 46; Hinchcliffe v Hinchcliffe [2010] WADC 78.

Nature of the appeal

An appeal under the Act is a hearing de novo: Gullelo v Halloran [2008] WADC 145.
The court can confirm, vary or reverse the assessor's decision either in whole or in part: s 56(2)(b).
Accordingly, it is open to the court at the appeal to increase or decrease the award even if there is no cross appeal: Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221.

The principles of assessment

The maximum compensation payable under the Act is $75,000 s 31(1) which is a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463.
The appropriate manner to assess an application is to apply the ordinary principles for assessment of damages, bearing in mind the definition of 'injury' and 'loss' in the Act and award that sum subject to the jurisdictional limit imposed by the Act; "M" v "J" (Unreported, WASC, Library No 920598, 19 November 1992) (Scott J).
The court must have regard solely to the injury suffered by the applicant in consequence of the commission of the offence and not assess the quantum to punish the offender or to express sympathy for the victim: B v W (1989) 6 SR (WA) 79.
Although it has been suggested that it is not appropriate to compare other awards because of the inability of appeal courts to know that they are comparing like with like (De Florenca v Hayden [2007] WADC 54 (Yeats DCJ) [17]; Asjes v Assessor of Criminal Injuries Compensation (Unreported; WADC, Library No 4169, 3 September 1994) (Commissioner Nisbet)) I prefer the contra view adopted by his Honour Judge Jackson QC in Michael v Panetta (1994) 10 SR (WA) 323 when he said:
… To suggest that there is something wrong with the range being referred to before a judge would seem to me to limit the appropriate information available.
… I can see no reason why it is inappropriate for counsel to refer a judge to a range of damages … (323 - 324)

Injuries as defined by the Act

Bodily harm and mental and nervous shock are included within the definition of injury: s 12.
The phrase 'mental and nervous shock' comprehends any malfunction of the person which can be seen to be consequence on 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 sense and in common parlance be described as an injury.
It includes distress, horror, disgust and adverse mental reactions but excludes mere fright, humiliation or anguish: S v Neumann (461).
The court must attempt to make a distinction between what has been described as impact damage and further damage that may be suffered as a result of reaction or attitude of the victim's friends and family, court proceedings or public attention: Garton v McCormack (2002) 30 SR (WA) 307, 311.

Circumstances leading to the complainant's injury

The appellant, who is the mother of three children, and the offender were in a de facto relationship. She was born on the 11 April 1989.
By 30 December 2009, the respondent was on bail for a prior assault against the appellant. One of the bail conditions was that he not be within 100 m of the appellant or on any premises within which she resided.
In breach of those bail conditions the offender and appellant spent the night of 30 December 2009 together.
On 31 December 2010, they spent the day together, travelling to Perth, having lunch together, returning to their residence and then at about 4.00 pm going together to the appellant's mother's residence. The offender stayed outside the house as the appellant's mother does not let him into her house.
After leaving that residence they went to a park in Kenwick where they consumed alcohol.
Upon leaving the park and walking towards the Kenwick train station the offender commenced to talk to two girls. When the appellant questioned his behaviour he became angry and took her behind some trees and punched her four or five times to the face, causing her head to hit a fence. Her lip was split and bled. This initial assault is not the subject of any application for criminal injuries compensation before me.
After the initial assault, the two continued to walk towards the train station where a further argument occurred.
That argument caused the appellant to run and hide in nearby bushes. Regrettably the offender found her.
He took her by the right arm and walked her across Albany Highway where he took her behind some bushes and started to punch her, knocking her to the ground and then punched her four or five times to the head. He also jumped on the left side of her face and bit her on the stomach and back.
The appellant says she was then sexually penetrated without her consent.
After the sexual activity, he continued to hit her and dragged her by the hair pulling some of it from the back of her head.
He then kicked her in the stomach.
The appellant then blacked out.
Her next recollection is of waking up in hospital.

The injuries sustained

When the appellant came to she was in a critical condition and on life support in intensive care at Royal Perth Hospital where she was intubated and ventilated.
Medical reports by Dr Spiers, Dr Abuhassan, Dr Agrawal, and Dr Sluchniak established she had sustained injuries which include, but are not limited, to the following:
•A severe closed head injury involving a brain contusion.
•Multiple facial lacerations including fractures to the left orbital floor, nasal bone and left maxillary sinus which required open reduction and internal fixation with a metal plate.
•Laceration of the spleen.
•Laceration of the liver.
•Ruptured right tympanic membrane.
•Traumatic pancreatic injury requiring transection laparotomy with distal pancreatectomy.
•Soft tissue swelling of the face, eyelids, lips, front of the neck, right hand, left shoulder and upper arm.
•Bites marks, abrasions and bruises to the thorax.
•Bite marks, abrasions and bruises to the abdomen.
•Bite marks on the chest.
•Bruising of both eyelids.
•Bruise/abrasions on the chest, breasts, upper and lower back, both flanks, right shoulder, right buttock, left elbow, right leg, right hand, right thighs, left thigh and foot, left leg and both upper arms.
•Lacerations on the face, right elbow, right hand and left forearm.
A genital and anal examination was also carried out, the results of which I do not summarise.
A number of the bruises/abrasions were suggestive of having been caused by an object coming into contact with her skin, for example, footwear and some of the injuries to the right buttock were as a result of the forceful application of a linear or cylindrical object.
The injuries were considered to be of such a nature to endanger or to be likely to endanger her life or cause or be likely to cause permanent injury to her health.
The appellant remained in intensive care until 12 January 2010 and was discharged from hospital on 2 February 2010.
She was reviewed prior to discharge by Dr Brown who reported:
[TAW] reports feeling physically well within herself. Although she does report the presence of clinically significant symptoms suggestive of post‑traumatic stress disorder pertaining to the most recent assault by her partner, in the context of a longstanding history of physical, emotional and verbal abuse within this relationship stemming back to her first pregnancy when she was 15 years of age ...
… She currently reports low self efficacy for coping independently and is primarily concerned with returning home to be with her three children ...
In light of her longstanding history of recurrent trauma exposure, lack of reliable forms of social sport and significant stressors associated with parenting and the upcoming legal process, she would likely benefit from ongoing psychological treatment …
After discharge, the appellant continued to experience difficulties and was admitted to Royal Perth again on 8 and 15 of February 2010 with pain to her chest. The hospital notes of the latter admission reveal she was suffering, inter alia, psychological distress in relation to the assault .
In April 2010 the appellant attended the Armadale Hospital because of difficulties with sleeping and anxiety and pains in her chest. At that time she was seen by Dr Patel who made a provisional diagnosis of adjustment disorder and post‑traumatic stress disorder. Although he found that there was no immediate risk issues identified, he referred her to a social worker and for psychological counselling.
In September 2011 the appellant saw Dr Joffe, a clinical psychologist who reviewed her in respect of her claim for criminal injuries compensation.
Dr Joffe described her as clinically dysphoric and depressed.
He referred to the sustained, protracted and violent nature of the attack including the sexual assaults and concluded she had developed quite compelling psychological symptomatology with respect to the following:
1.Post‑traumatic stress disorder, immediate onset chronic.
2.Major depressive disorder, moderate.
3.Panic disorder.
He said she suffered severe and profound historic emotional pain at the time of the physical and sexual assault and reported
Over time this would have on aggregate remained severe during the first few months of her convalescence and would have tapered in the direction of moderate to severe over the last 21 months.
He said she had feelings of acute and intense fear and apprehension at the humiliation and degradation, helplessness, terror and powerlessness at the time of the assault and over the last 20 months she would have lost interest in activities which were formerly pleasurable.
He reported that she felt betrayed, ashamed, sad and despondent, lacked drive, energy and motivation, had lost weight and had intimate thoughts of a suicidal nature.
He said her post‑traumatic symptoms would be characterised by suffering frightening nightmares which would disrupt sleep, having revenge thoughts and dreams, and suffering from hyper vigilance, lack of interest in normal relationships, anxiety, emotional numbness and panic attacks.
He said the appellant possessed feelings of low self‑worth and ugliness, had pessimistic views as to the future, suffered emotional pain and was self‑conscious about her scarring.
He recommended a course of intervention from a clinical psychologist including weekly treatments over a six month period and then a further 10 sessions on an as need basis making a total of 36 treatments at $218 each.
Dr Joffe described the 'physical and sexual assault' as one of the most severe he had seen ( report of 14 September 2011).
Subsequently, in October 2011 Dr Joffe provided an addendum to his report and explained that in his experience, often people are so severely traumatised by events occurring that they were disinclined to pursue psychological intervention even when the symptoms were acutely distressing.
He described this as 'avoidant symptoms' and confirmed the appellant suffered from that symptom.
He said it was clinically impossible to disentangle any prior traumatic exposure into pre‑existing and post‑subject assault impacts.
He said that the exact contribution of pre‑existing trauma might be difficult to disengage.
He pointed out that trauma related fatigue, anxiety, noise sensitivity, fear of spontaneity, sleeplessness and lower stress tolerance would interact with the appellant's demands of motherhood, making that task more complex.
He noted both he and Dr Patel referred to post‑traumatic stress diagnoses and he also referred to the appellant suffering a major depressive disorder whilst Dr Patel had referred to an adjustment order.
Dr Joffe said the terminology between the two of them was marginally different, but both were referring to mood or depressive symptoms in addition to the post‑traumatic stress disorder. He claimed features such as low appetite, low libido, insomnia, low confidence and flat affect must be diagnostically recognised in addition to the extent to which they may be subsumed under the marker of post‑traumatic stress disorder.
He said that what he described as a panic disorder may have been subsumed by Dr Patel in the latter's post‑traumatic stress disorder diagnosis however in his opinion, the appellant's panic disorder was well described and clear.
In her application the appellant details her depression and anger at what had occurred. She reports crying herself to sleep almost every day and says she was unable to inter-react normally with her children for almost three months.
She referred to nightmares and her inability to understand why the assault upon her occurred and her desire for isolation.
She said she had an inability to relate to people in the same manner as she did prior to the incident, and had feelings of insecurity and lack of trust, inability to concentrate and heightened alertness.

The offenders prior assaults on ,and relationship with the appellant

The appellant has been subject to a number of previous assaults and incidents of domestic violence at the hands of the offender.
In so far as the previous assaults by the offender I do not consider that they can be regarded as co‑existing cause of the bodily harm or the nervous shock suffered by the appellant.
Dr Joffe reported ( 14 September 2011):
Available information does not suggest that [prior verbal and intermittent physical violence carried by her partner] had given rise to any acute or florid psychiatric symptomatology prior to this incident.
Dr Joffe specifically concluded that the assault occurring on 31 December 2009 was overwhelmingly traumatic and initiated the panic disorder, post‑traumatic stress disorder and major depression suffered by the applicant and described it as definitive in the current symptom profile and I accept that conclusion.

In any event he said any prior traumatic exposure could not be disentangled into pre‑existing and post‑subject assault impacts, describing that as clinically impossible.

The alleged sexual assault

The appellant's statement refers to being sexually assaulted during the course of the incident.
Although the offender was initially charged with the sexual assaults, those charges were, after consultation with her, withdrawn.
The appellant has not applied under s 16 for compensation for those alleged offences, therefore questions of her not assisting the police in the prosecution of those offences under s 38 of the Act do not come into play.
Clearly, those sexual assaults are correctly described as non‑compensable co‑existing causes.
Where there are non‑compensable co‑existing causes and the evidence establishes they did contribute to the injury or loss, the award of compensation should be reduced to take account of that chance: Wilson v Peisley (1975) 50 ALJR 207; Malec v JC Hutton Pty Ltd (No 2) (1990) 169 CLR 638; MJN v MAJS (2003) 35 SR (WA) 219; LMC v RJO [2002] WADC 147.
If it is not possible to disentangle the consequences of those non‑compensable co‑existing causes from the consequence of compensable causes, the appellant is entitled to compensation for the full injury and loss suffered provided it is established that the compensable offence contributed materially to her injury or loss: Bonnington Castings Ltd v Wardlaw [1956] AC 613; Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666; Purkess v Crittenden (1965) 114 CLR 164; CKM [2008] WADC 79.
The onus is on the appellant to prove the compensable offences did contribute material to her injury or loss. The compensable offences need not be the sole cause of the injury or loss: Bonnington Castings; Fagan; and MJN v MAJS (227).
Clearly the compensable offence did contribute materially to the appellant's injury or loss, of that there is no doubt and as it is not possible to disentangle the consequences of the non‑compensable sexual assaults or any prior traumatic exposure from the consequences of the compensable offence the appellant is entitled to compensation for the full injury and loss suffered.
Dr Joffe's report which I accept describes any attempt at 'disentanglement' as clinically impossible.

Alleged failure to mitigate loss

The failure to obtain reasonable medical treatment in respect of injuries caused by the offence can be taken into account when considering an award of compensation: RBF v OSD‑S (2004) 36 SR (WA) 61; Bedetti v Chief Executive Officer [2003] WADC 37.
After her discharge from hospital it is clear the appellant did not attend appointments offered to her for a psychologist and did not attend some other appointments including with social workers.
For example, when she was discharged from Royal Perth Hospital on 1 February 2010, she was referred for further treatment but did not attend. Correspondence from Armadale Hospital in April and May 2010 confirms that appointments were made for a clinical psychologist but she did not attend.
Dr Joffre's reports that often victims of post‑traumatic stress disorder show signs of 'avoidance' in respect of further treatment (11 October 2011).
Accordingly, I do not consider it appropriate to make any deduction for the failure to attend counselling or make additional appointments.

Cost of future treatment.

Dr Joffe indicates the appellant requires further treatment by way of psychological counselling. However in light of her past failures to attend various appointments I am not satisfied that she is likely to seek that treatment.
Accordingly, I make no award for further treatment expenses.

Will the payment of compensation be likely to benefit the offender

I have also considered whether any payment of compensation to the appellant would be likely to benefit the offender as required by s 36.
There is no evidence from which I could conclude that money paid to the appellant is likely to benefit the offender who is serving a lengthy period of imprisonment.
I make no deduction in this regard.

Behaviour of victim contributing directly or indirectly to the victim's injury

Section 41 effectively provides that in deciding whether to make any award of compensation the court must have regard to any 'behaviour' of the victim that contributed directly or indirectly to the victim's injury and may, if it thinks just to do so, refuse to make an award, or reduce the award which would otherwise be made because of that contribution.
The appellant's statement confirms she was aware of the bail conditions imposed on the offender prohibiting him from being within 100 m of her or on any premises within which she resided.
These protective bail conditions were imposed when the offender was arrested for an assault on the appellant occurring a couple of days before 31 December 2009.
The appellant told the offender he was not supposed to see her however he stayed the night of 30 December 2009 at their residence and they were together all the next day.
Clearly, she knew the bail conditions imposed on the offender and knew that he was in breach of them and had advised him of that fact.
She knew of his propensity to be violent towards her and despite having the protection of the protective bail conditions she allowed him to stay with her on 30 December and went with him to a variety of locations on 31 December prior to the assault occurring.
The nature and degree of the assault carried out upon the appellant on 31 December was of greater ferocity and savagery than any assault previously carried out on her.
However, the Act does require that I take into account any behaviour that may have contributed directly or indirectly to her injury. I consider the appellant's behaviour in accompanying the offender on the night in question in breach of his bail conditions indirectly contributed to her injury. She should have notified the police immediately that he was in breach of bail conditions.
I must then consider the question of whether it is just to either refuse to or reduce the award that I would have otherwise made.
What is 'just' must of course vary from case to case and must take into account the circumstances of each individual case.
Considering the savagery of the attack which placed the appellant in an intensive care unit on life support and left her hospitalised for one month with a closed head injury and multiple facial fractures, a ruptured spleen and liver to name some, but not all of her injuries, and left her with ongoing post‑traumatic stress disorder I do not consider it would be just to either refuse or reduce the award that I have made.
In some circumstances similar behaviour by an appellant may result in a deduction for contributory behaviour in similar quantum to that made in JDQ [2010] WADC 93.
However, the circumstances of this case satisfy me that it is not just to reduce the award.

Assessment

In my opinion compensation for the bodily injuries sustained by the appellant should be assessed in the sum of $55,000.
For the post‑traumatic stress, major depressive and panic disorders which clearly amount to mental and nervous shock I would assess compensation in the amount of $40,000.
I would allow expenses of $2,583 for St John Ambulance, and $1,815 being the cost of Dr Joffe's reports.
As previously stated I would not make an allowance for ongoing psychological assistance as I am not satisfied the appellant will attend such counselling.
There has been no actual loss of income claim and the appellant claims future loss of income on the basis that 'she might still want to work in a bank I'm not to sure at the moment …'.
Their is no evidence of her past work history or when she would return to work, the number of hours to be worked and the rates of pay etc and there is no basis for me to assess any future loss of income.
Therefore, the total I compensation I allow is as follows:
Bodily harm   $55,000
Mental and nervous shock       $40,000
Report fees$ 1,815
St John Ambulance                 $ 2,583
Total$99,398
As the jurisdictional limit on this claim of $75,000, the orders I make are:
1.The appeal be allowed.
2.The award of the assessor dated 3 June 2011 be set aside.
3.The appellant be awarded the sum of $75,000.
There will be no order as to costs.