TLACH v Faulkner - [2013] WADC 84

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TLACH -v- FAULKNER [2013] WADC 84

CORAM: SCOTT DCJ

HEARD: 15 MAY 2013

DELIVERED : 31 MAY 2013

FILE NO/S: APP 1 of 2012

MATTER :IN THE MATTER of Part 6 of the Criminal Injuries Compensation Act 2003

BETWEEN: KARLA TLACH
Appellant
AND
GAVIN JOHN FAULKNER
Respondent

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :L V DEMPSEY
Citation  :[2012] WACIC 16

Catchwords:

Criminal injuries compensation - Leave to adduce further evidence and information - Additional psychiatric evidence - Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal allowed

Representation:

Counsel:

Appellant:     Mr R R Cywicki
Respondent:     No appearance
Amicus Curiae              :     Ms M Georgiou appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant:     Simon Walters
Respondent:     Not applicable
Amicus Curiae              :     State Solicitor for Western Australia

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

Chappell v Bowe [2006] WADC 29
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Hinchliffe v Hinchliffe [2010] WADC 78
Krukiewicz v Hayes [2004] WADC 242
M v J and J v J (Unreported WASC, Library No 920598, 19 November 1992
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
MJN v MAJS (2003) 35 SR (WA) 219
Parsons v McWilliam [2002] WADC 62
Purkiss v Crittenden (1965) 114 CLR 164
RT [2006] WADC 185
S v Neumann (1995) 14 WAR 452
Watts v Rake (1960) 108 CLR 158
Wilson v Peisley (1975) 50 ALJR 207

SCOTT DCJ:

Introduction

On 24 June 2011 the appellant made an application seeking compensation for injury and loss as a consequence of an assault committed by the respondent for which the respondent was convicted on his plea of guilty on 20 March 2008.
On 15 December 2011 the assessor awarded the appellant compensation in the sum of $21,620.08 for injuries and losses as made up as follows:
Injuries$18,500.00
Travel expenses  $     365.00
St John Ambulance Australia  $     570.00
Medical expenses  $ 1,360.08
Medical report fees  $     825.00
Total$21,620.08
Pursuant to s 45(1)(b) of the Criminal Injuries Compensation Act 2003 (Act) the assessor ordered that only the sum of $2,250 may be the subject of proceedings under pt 6 of the Act.
By an appeal notice filed 6 January 2012 the appellant appealed the decision of the assessor on the grounds that the assessor failed to award a sum which reflected the pain and suffering which the appellant endured as a result of the commission of the offence.
The respondent filed a notice of intention in person on 2 March 2012 nominating 42 Hampton Street, Karrinyup as his address for service. By that notice the respondent indicated that he intended to take part in the appeal, he would argue that the assessor's decision ought to be upheld on the grounds relied upon by the assessor, applied for the assessor's decision to be varied and cross‑appealed without specifying any grounds.
Self‑evidently a number of the matters which the respondent indicated he would raise are inherently inconsistent.
A directions hearing was held on 6 March 2012 at which the respondent appeared.
Thereafter there have been a number of occasions upon which the matter has been before this court including for the adjournment of dates set for the hearing of the appeal at which the respondent did not appear.
The respondent did not appear at the hearing of this appeal on 14 May 2012. I sighted an affidavit sworn by Joachim Charles Azzopardi to which was annexed correspondence dated 11 May 2013 from Mr Palmer of Osborne Park Process Service setting out the attempts made to effect service on the respondent of confirmation of the date and time for the hearing of the appeal and documents upon which the appellant relied.
In that letter Mr Palmer confirmed that he attended 42 Hampton Street, Karrinyup and spoke with the owner who informed him that the respondent was a previous tenant having moved over 12 months ago and no forwarding details were known for him.
He also confirmed he attended 87 Kitchner Avenue, Alfred Cove being the last address known for the respondent but found no‑one at home and left a note on the front door of the house requesting the respondent to telephone him on his mobile telephone number.
He said the next day an occupant of that address telephoned him and informed him that the respondent no longer resided at the address and she did not know his current address. In addition she said she did not know his current telephone number or his current employment details both of which had changed.
Further, Mr Palmer said he had telephoned the respondent's mother and the respondent's auntie both of whom informed him that the respondent had moved address, changed his telephone number and that his current whereabouts were not known.
Finally, Mr Palmer confirmed having conducted an electoral role search for the respondent but there was no listing.
In the circumstances I was of the view that even though the process server only attempted service of these documents on 8 and 9 May 2013 nothing would be gained by the hearing of the appeal being adjourned given the inquiries which the process server had made.
As a consequence the hearing of this appeal proceeded in the absence of the respondent.

Appeal/application out of time

By s 56(1) of the Act on an appeal this court must decide the application for compensation afresh.
Pursuant to s 55(3) of the Act an appeal must be commenced within 21 days after the date of the decision but if it is just to do so the court may allow an appeal to be commenced after that period (s 55(4)). Counsel for the appellant sought leave to appeal out of time.
As the decision of the assessor was made on 15 December 2011, 21 days expired on 5 January 2012, one day prior to the notice of appeal being filed.
Counsel for the Chief Executive Officer (CEO) submitted that the notice of appeal was not filed out of time having regard to the provisions of O 3 r 3 of the Rules of the Supreme Court 1971 which provide that when computing time for filing a notice of appeal, the period between 24 December and 15 January shall not be reckoned.
To that end O 6 of the District Court Rules 2005 is relevant with the result that the appeal is not out of time. Even if that was not the case, in the circumstances an extension of time would properly be granted.
The application for compensation was made out of time.
Given that the application is to be heard afresh the court is required to again consider whether an extension of time ought to be granted with respect to the application: Hinchliffe v Hinchliffe [2010] WADC 78 [24]; RT [2006] WADC 185 [35] – [37].
To that end I have considered the reasons advanced for the delay which were made by the appellant and considered by the assessor. I concur with the decision of the assessor. It is appropriate that there be an extension of time for the making of the original application to and including the date it was made and I so ordered.

Leave to admit further evidence and information

In this case the further evidence and information comprised:
(1)the report of Dr N De Felice dated 21 August 2012;
(2)the report of Dr N De Felice dated 2 January 2013;
(3)the affidavits of the appellant sworn 3 May 2013 and 14 May 2013 and annexures;
(4)receipts and invoices for expenses and treatment attached to the appellant's amended particulars of loss and damage dated 14 May 2013.
In Chappell v Bowe [2006] WADC 29 [37] Macknay DCJ said:
Given the general terms of the discretion, the beneficial purpose of the Act ... and the informal nature of a hearing before an Assessor … in my view the discretion to admit further evidence ought be exercised without undue restriction … .
His Honour's view has often been cited with approval in this court and I am in agreement with it.
In this case the appellant wishes to adduce evidence as to her ongoing psychiatric issues supported by the report of Dr De Felice.
The evidence before the assessor included psychiatric material upon which the assessor relied. It is appropriate in my view that I have before me any additional material and expert opinion bearing upon the question of the appellant's psychiatric state. At the hearing of the appeal, pursuant to s 56(1), I granted leave for the admission into evidence of these materials.
During the course of the appeal the appellant gave evidence in which she was cross‑examined by counsel for the CEO and inquiry was made by me of her with respect to a number of matters.

Commission of offence

Attached to her affidavit of 3 May 2013 was a proof of evidence (proof) which the appellant confirmed to be true.
She said in that proof that on the evening of 8 March 2008 (March 2008 incident) she was hosting a dinner party which was attended by several guests including the respondent.
For most of the evening the guests were gathered at the back of the appellant's home under the patio.
During the course of the dinner the appellant said that the respondent became very drunk, rude and abrupt, as a consequence of which the appellant asked him to leave.
She said that the respondent threw a glass at her which smashed just in front of her feet cutting one of her legs. She then walked inside where the respondent threw another glass at her in the kitchen.
The respondent then went to the other side of the kitchen bench and took her purse from a kitchen drawer.
She said that she tried to stop him from taking her purse and he reacted by throwing her into a picture hanging on the wall in the dining area.
She said that the respondent then attempted to smash a large stereo speaker on her friend's head.
The appellant said that she tried to remove the respondent outside the front of the house fearing that he would continue to damage things in her house.
She said that the respondent walked into the garage before leaving her house. At the time one of her guests was in the garage and the respondent spat on her and then went to hit her.
Once out the front of her house the respondent kicked her garage roller door putting a dent in it.
She said that she endeavoured to calm the respondent down so that he would return her purse to her. She said that the respondent walked near a lamppost on her property and she followed him to try to get her purse back.
She said that he then 'went absolutely mad' and pushed her very hard on about three or four occasions towards the front entry of her house.
She said that she was screaming for him to stop and that he was going to hurt her.
She said the respondent then threw her with extreme force into a concrete pillar which was part of her portico. She said that she went through a palm tree back first before turning her body and then struck the concrete pillar with her right side hearing a loud crack and then fell to her face into the pavement.
She said that she felt excruciating pain to her neck and started screaming. Her initial thought was that her neck was broken.
She said that she was very scared, she could not move or stop crying.
Her sister then rang an ambulance. She was suffering from excruciating pain on the right side of her neck, right shoulder and right arm.
As she was being conveyed to Joondalup Hospital in the ambulance she felt very uncomfortable because she was half naked, in wet bathers, covered in sand and dirt in addition to which she was experiencing extreme pain.
She said that she was unable to sleep that night in hospital and was still wet and covered in sand and dirt.
X‑rays of her right shoulder, clavicle and spine revealed that she had a fractured right clavicle.
In addition she had a contusion to the right side of her face, neck strain and a laceration to her lower left leg.
A week after the incident she underwent surgery during the course of which a screw and plate was affixed to her fractured collarbone by way of open reduction and internal fixation.
On 16 March 2009 she underwent surgery for the removal of the plate and screws requiring her to remain in a sling for three days.
In her evidence the appellant said that she first met the respondent in or about February 2007. She said that she at no stage lived with the respondent. She said that she never slept at his home and that he would come to her house. She said that they lived separately.
She said that before the March 2008 incident there were two occasions upon which the respondent assaulted her.
The first occasion was approximately six months after their relationship commenced when he bashed her whilst they were in a car resulting in her suffering multiple bruising.
The second occasion took place about a month after the first during which he smashed a lot of furniture in her home and pushed her.
She said that the respondent was regularly affected by drugs and alcohol. She said that she called police on a few occasions.
She said that she began to feel depressed and ill as a consequence of the respondent's conduct and she saw her then general practitioner, Dr Singh who diagnosed depression and prescribed medication.
She said that Dr Singh subsequently changed her antidepressant medication because she did not like it. He prescribed Valium which she used and which kept her calm.
She said that as a result of those two incidents she suffered with anxiety and felt scared to be around people.
She removed herself socially. In addition she had, beforehand, been a 'fitness freak' going to the gymnasium nearly every day but by the March 2008 incident she had nearly stopped going to the gymnasium.
The assessor had access to the Osborne Adult Community Mental Health Service notes which were before me on the hearing of this appeal. There appears in those notes a history taken on 18 June 2008 in which the appellant is recorded as having suffered from insomnia from 24 October 2006 and depression from 17 May 2006.

Pregnancy

Within weeks of the March 2008 incident the appellant discovered that she was pregnant to the respondent. In her proof she said that discovery caused her great anguish. In her statement provided to the assessor dated 28 March 2011 she said that when she found out that she was pregnant she became really depressed because she did not want to have a baby with the respondent given the way things were between them in addition to which, as she said in evidence, she did not want him in her life.
She said that she received a good deal of advice from family and friends such that she just could not make a decision as to whether to terminate the pregnancy. She made arrangements on two occasions to terminate the pregnancy the last of which was at a cut‑off date which was when she was just over four months pregnant. She did not go through with the termination after she found out from the doctor how the foetus would be removed. She said that this was a very stressful time.

Contact with respondent after incident

The appellant said that after the incident the respondent would come over to her house unannounced and notwithstanding that she told him that she did not want him there, he would continue to come to her home when he pleased.
She said that they would inevitably argue. She said that the period of her pregnancy was the worst time of her life. She said that she felt trapped with the respondent continually coming around to her home.
She said that after the incident she was aware of how violent he could be and she was always scared that if he became violent he could kill her unborn child.
She said that she tried not to antagonise him. She said that she felt manipulated by the respondent and trapped and could not think straight.
She was concerned that in her state of mind she would end up with post‑natal depression and as a consequence Dr Singh sent her to Osborne Park Mental Health Clinic.
She said that after her daughter, Riley was born in October 2008 the respondent continued to come around to her house and she felt powerless to stop him.
She said that since she was assaulted in the March 2008 incident there had been 17 occasions on which she called the police out to her home.
She said in her proof that she sometimes received up to 30 telephone calls a day from the respondent.
She said he stalked her and she did not know how to get him out of her life.
She said that when her daughter was three months old in or about January 2009 she went to Ayers Rock and then to Darwin to try and get away from the respondent however he followed her.
She said that when she was in Darwin in a caravan he trashed the caravan. He did not touch her however she was very scared at what he did and might do.
She called the police and the respondent was made subject to a two year violence restraining order.
That order did not have any effect back in this State. When she returned to Western Australia he continued to come around to her home.
In March 2012 he jumped her fence and gained access to her house. She had engaged a contractor named Adam who was laying slabs for a spa and the respondent assaulted him.
She then obtained another violence restraining order against the respondent. He breached that violence restraining order five times, the last two being by sending her texts.
She said that since the violence restraining order was taken out in March 2012 she has not seen the respondent and that has allowed her to become stronger and clearer in the way forward in dealing with her anxiety.
She said that she did sleep with the respondent a couple of times after the March 2008 incident.
She said that she weakened because of the constant pressure and manipulation applied to her by the respondent and on those occasions she felt angry with herself for complying.

Physical injuries – symptoms

In her proof the appellant said that due to her injury she is unable to lie on the right side of her body when she is in bed or on the couch.
She said that she is unable to wear bathers with a strap because the scar is sore and it feels like she is touching a nerve.
She said that she is restricted in the way in which she interacts with her daughter. She cannot allow her daughter to pull, jump or lie on the right side of her body.
She said that she stopped exercising for about a year after the incident. She said that she has recently resumed exercising but she would only do about a fifth of what she used to do before the incident.

Psychiatric treatment, medication and progress

In her evidence the appellant said that for a period commencing about three months after she met the respondent she was treated for depression and insomnia by Dr Singh. He prescribed antidepressants, sedatives and anti‑anxiety medication. She said that following the March 2008 incident her depression and insomnia markedly worsened.
She was initially referred by Dr Singh to a psychiatrist at the Osborne Park Clinic, Dr Jansen, and thereafter she saw Dr Devadason.
She saw Dr Devadason every two weeks for the first year and thereafter when required.
She said that she was discharged by Dr Devadason on 17 September 2010 and no further appointments were arranged with her.
She said that Dr Devadason said that her initial concern was a fear of the appellant suffering from post‑natal depression and that once that appeared to have passed, Dr Devadason said that there would not be any need for further appointments to be arranged.
She said that during her pregnancy she was taken off Stilnox and antidepressant medication and was, in lieu, prescribed a low 50 mg dosage of amitriptyline for her anxiety and insomnia and Valium for anxiety.
At the present time she is on a dose of amitriptyline (Quetiapine) (50 mg) each night to sleep and Valium (5 mg) which she takes twice a day.
She said that the Valium comes in a bottle of 30, however the doctor will not give her any repeats. As a consequence she needs to see the doctor for a prescription every three or four weeks. The doctor's fee is $53 and the Valium costs about $5.80 because it is subsidised.

The amitriptyline costs $30 per month. She is prescribed repeats and said that she would need to see the doctor four times a year but generally not at the same time as she would see the doctor for Valium prescriptions.
The Osborne Park Clinic notes detail consultations with the appellant.
On 25 July 2008 there was an initial assessment in which it was noted that she was referred by Dr Singh due to risk factors for post‑natal depression. The relevant background factors which were noted included an unexpected pregnancy which the appellant found out about after she had been assaulted by the respondent (described in the notes as 'her current partner') and in the process fractured her clavicle. The author noted that 'her partner has since expressed remorse and Karla feels that he has changed with the help of counselling'.
In the period during which the appellant saw Dr Jansen and Dr Devadason (until September 2010) the clinic notes reflect ongoing issues between the appellant and the respondent. They needed to be in communication with each other concerning issues of custody and access with their daughter. It is apparent that the appellant had difficulties coping with contact with the respondent and she required assistance in being able to create and maintain boundaries with respect to her contact with him.
The appellant identified her self‑doubt as the reason for her inability to stay strong which enabled the respondent to continue manipulative behaviour towards her.
I am satisfied that after the appellant found out that she was pregnant there was a continuation of some relationship between her and the respondent. That is obvious from the medical notes. Having said that, the relationship was clearly unstable and the appellant's ability to deal with relationship issues and the persistence of the respondent was affected by her depression and anxiety which, I find, resulted in an ongoing vulnerability and susceptibility on her part. I accept that the apprehension that the respondent may resort to violence, coupled with her anxiety and vulnerability were matters which impacted on her ability to prevent unwanted contact with the respondent

Reports from Dr De Felice

In his report of 12 August 2012 Dr De Felice said that the appellant instructed him that there was no family psychiatric history of which she was aware. She told him that she experienced a horrible family life because her father was 'like Hitler' as well as being violent and that she was scared through her early years. She told him that her then boyfriend suicided when she was 24 and that she became quite unwell with depression and had suicidal ideas for which she was treated with antidepressant medications which did not assist her. He said that she told him that with the passage of time she recovered and that by about 30 years of age she felt that she was healed from those issues.
He said that she told him that after the March 2008 incident she felt sick, scared and anxious and felt that the respondent quietly manipulated her saying that he was sorry but not going away. She described that she could not do anything after that incident, she was feeling depressed, she lay on the lounge, she was scared of him but he would jump her fence every day and walk in the back door and she felt she couldn't stop him.
She said that her general practitioner started her on Valium (diazepam) for anxiety taking half a tablet daily and that she also took Stilnox (a sleeping tablet).
He said that the appellant told him that after her daughter was born she was still anxious because the respondent was still around, still stalking her and she did not know how to get him out of her life. She told him that she was a mess for so long but she had to pretend to be strong for her baby's sake and all the while she continued to be troubled by various incidents with the respondent.
He said that the appellant instructed him that since the violence restraining order had been in place (March 2012) she felt that her head was stronger and that she did not feel that she was a 'crazy person' any more. She reported that she still had anxiety whenever the respondent contacted her or she had to have dealings with him for example in the mediation processes concerning their daughter.
He said that she told him that she still needed medication to help with her sleep. She said when she tried not to use it she found it hard to get to sleep. She confirmed that she did not experience post‑natal depression after her daughter's birth in October 2008 but told him that depression was present, she felt she was nothing, she didn't go anywhere or do anything and she had the respondent coming and going. She told him that since the violence restraining order had been in place since March 2012 she was enjoying things more and becoming more interested in things.
Dr De Felice opined that the appellant's psychiatric symptoms subsequent to the March 2008 incident were best labelled as an adjustment disorder with depressed and anxious mood. He said that this was, in his opinion, a response to the stressor of the March 2008 incident and all the other incidents that had since occurred.
Dr De Felice said that he found it impossible to apportion the degree to which her adjustment disorder was related specifically to the March 2008 incident as opposed to all the other incidents concerning the respondent.
He opined that when she has exposure to the respondent or deals with matters related to him he suspects that she will continue to have psychiatric symptoms which might be at least mild in severity. Otherwise he said that she had little in the way of psychiatric symptoms. He estimated her residual psychiatric disability in the order of 5%.
In his report of 2 January 2013 Dr De Felice said that the appellant told him that she tried to avoid thinking about the respondent and tried to avoid talking about him and overall found herself less worried.
She told him that she dated a man for six months however she worried that he would hurt her and she would not let him sleep over and did not trust him.
He said that the appellant told him that she was not as depressed as she had been and had regained her interest in things, for example in her beauty therapy business.
He said that she told him that she did not answer the phone and still did not make plans to go out with people because she was wary of them but she was endeavouring not to be as distant with her friends and that she enjoyed things a lot more. She told him that without the respondent being around for some months she was not as likely to be anxious however she would still have periods when she might become really anxious for a couple of days during which time she would not be able to get off the lounge, wouldn't have a shower and wouldn't be able to do home duties. She said however this had only been on a few occasions in the previous couple of months.
She told him that she was still withdrawn and although she did some exercise she was not back to her normal self.
Dr De Felice confirmed his earlier diagnosis that the appellant suffered from an adjustment disorder with depressed and anxious mood and that that condition was related to the stressor of the March 2008 incident and all the other incidents that since occurred and in response to the fear that it might happen again.
He said that he was in no doubt that the appellant's psychiatric symptoms were related to assaults committed by the respondent and considered it reasonable to say that her adjustment disorder symptoms are primarily related to the March 2008 incident being the figurehead for further incidents that also occurred.
He maintained his opinion that the appellant has been left with a permanent psychiatric disability in the order of 5% related to her adjustment disorder.
As to her future treatment needs Dr De Felice said that the appellant ought to continue with Quetiapine 25 – 50 mg nocte and diazepam 5 mg daily over the next two years or perhaps longer depending on the extent to which the respondent reappears in her life.
He also considered that the appellant would need ongoing input with a psychiatrist however he did note that at the time of his report there was only infrequent contact. His view was that this ongoing input was dependent on the extent to which the appellant was further traumatised by exposure to stalking or any violent behaviour. He considered it reasonable to allow for monthly appointments for 12 months and then further appointments depending on her progress. He said that such appointments in the private sector were in the order of $300 per appointment.
He also considered that the appellant's general practitioner has continued to be central in her ongoing psychiatric care and he considered it appropriate to allow for monthly appointments for two years in this regard but she may need more frequent appointments depending on whether the respondent re‑enters her life.

Past medical expenses

Attached to the appellant's amended particulars of loss and damage dated 14 May 2013 are the supporting documentation confirming relevant expenditure totalling $5,497.85.

Future medical expenses

The appellant claims the sum of $7,728.72 for future medical expenses. Those expenses are calculated by reference to Dr De Felice's report of 13 January 2013. That sum is calculated as follows:
(a)ongoing reviews with the appellant's general practitioner on a monthly basis for two years at a cost of $100 per consultation equating to $2,265.50 calculated at $23 per week x 98.5 (6% multiplier for two years);
(b)monthly consultations with a psychiatrist for 12 months at a cost of $300 per consultation which equates to $3,509.96 calculated at $69.23 per week x 60.7 (6% multiplier for one year); and
(c)Quetiapine for the next two years at a cost of $80 per month and diazepam at the cost of $5.90 per month which equates to $1,953.26 calculated at $19.83 per week x 98.5 (6% multiplier for two years).
To that end I note that Dr De Felice initially provided the same estimate as to future treatment in his report of 21 August 2012 however since then, apart from the appellant continuing with the medication, she has not consulted with her general practitioner other than for a prescription, or with a psychiatrist.
In her evidence the appellant said that she had not seen a psychiatrist apart from Dr De Felice, since she saw Dr Devadason. She said that she would want to see a psychiatrist when she feels settled and the respondent finally leaves her alone. She said she expected she would see a psychiatrist perhaps three or four times in the next 12 months.
On the appellant's evidence I consider it reasonable to make an allowance for four consultations with a psychiatrist over the next 12 months and over the next two years, consultations with her general practitioner on a monthly basis for the purposes of a review and/or the provision of prescriptions for Quetiapine and diazepam. The appellant's evidence was that the cost incurred for each visit to her general practitioner was $53 and the cost of Quetiapine is $30 per month.
On that basis the appropriate provision for future medical expenses should be as follows:
(a)ongoing review/consultation with her general practitioner on a monthly basis for two years at a cost per consultation, on her evidence, of $53 which equates to $1,204.75 calculated at $12.23 per week x 98.5 (6% multiplier for two years);
(b)four consultations with a psychiatrist over the next 12 months at a cost of $300 per consultation which equates to $1,170.16 calculated at $23.08 per week x 50.7 (6% multiplier for one year);
(c)quetiapine for the next two years at a cost of $30 per month and diazepam at a cost of $5.90 per month for that period which equates to $815.58 calculated at $8.28 per week x 98.5 (6% multiplier for two years).
The total sum allowed for future medical treatment expenses is therefore $3,190.49. The assessor allowed $365 for travelling expenses. I have no further information before me relating to any travelling expenses incurred subsequent to the decision of the assessor. In the circumstances I will allow the sum of $365 for those expenses.

Non‑pecuniary loss

Pursuant to the Act compensation is payable where a person has suffered 'injury' in consequence of the commission of a proved offence. Both bodily harm and mental and nervous shock are included in that definition. The phrase 'mental or nervous shock' means more than a mere emotional reaction and means something of a more enduring character which may in both the legal sense and common parlance be described as an injury. The term includes distress, horror, disgust and other similar adverse mental reactions but does not include mere fright, humiliation or anguish: M v J and J v J (Unreported WASC, Library No 920598, 19 November 1992).
The proper approach in fixing the appropriate amount of compensation is to apply the ordinary tortious principles for assessment of damages subject to the limit imposed by the Act: M v J and J v J. That is a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463.
The maximum allowed under the Act in this case is $75,000.
It is not necessary for the offence or offences the subject of the application for compensation to be the sole cause of the injury: Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, 673.
Where the evidence establishes that non‑compensable events had a propensity to cause the applicant injury or loss and did contribute to injury or loss the award of compensation will be reduced to take account of that chance: Wilson v Peisley (1975) 50 ALJR 207; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; MJN v MAJS (2003) 35 SR (WA) 219.
If it is not possible to disentangle the consequences of non‑compensable events from the consequences of compensable events an applicant is entitled to compensation for the full injury and loss suffered if the applicant establishes that the compensable offence did contribute materially to the applicant's injury or loss: Watts v Rake (1960) 108 CLR 158; Purkiss v Crittenden (1965) 114 CLR 164; MJN v MAJS [51].
By s 41 of the Act, in determining the amount of an award the assessor and this court on appeal must have regard to any behaviour, condition, attitude or disposition of an applicant which contributed, directly or indirectly to the injury or loss suffered by her and the amount to which she would otherwise be entitled may be reduced by such a percentage as is thought just.
Pre‑existing and subsequent injuries including a pre‑existing psychiatric illness must be taken into account in accordance with that section: Krukiewicz v Hayes [2004] WADC 242 [25].

Physical injuries

As a result of the March 2008 incident, the appellant sustained the following physical injuries:
(a)a right clavicle fracture;
(b)a contusion to the right side of her face;
(c)a laceration to her leg;
(d)a cervical spine strain.
I am satisfied that she suffered excruciating pain in the incident, she thought that her neck had been broken and she suffered excruciating pain to the right side of her neck, right shoulder and right arm.
I am satisfied that as a result of those injuries:
(a)she cannot lay on the right side of her body when she is in bed or on a couch;
(b)she cannot wear bathers or tops with straps on her right shoulder because the shoulder becomes itchy and she experiences what appears to be nerve pain;
(c)the symptoms adversely impact on the manner in which she interacts with her young daughter as she described.

Mental or nervous shock

I am satisfied that the appellant suffered psychiatric injury in the nature of an adjustment disorder with depressed and anxious mood in the manner described by Dr De Felice and that that condition was materially caused by the 2008 incident.
Before the March 2008 incident the appellant had been treated for depression and insomnia by her general practitioner arising out of the conduct of the respondent and her psychiatric condition after the March 2008 incident was exacerbated by her pregnancy to the respondent and her ongoing contact with him.
I accept that her psychiatric symptomology was aggravated by the respondent's persistence in furthering contact with her such that she found it necessary to call the police on approximately 17 occasions to have him removed from her home in addition to which, notwithstanding that she endeavoured to get away from him he followed her to Darwin and trashed her caravan.
I accept Dr De Felice's opinion expressed in his report of 21 August 2012 that her 'adjustment disorder symptoms are primarily related to that March 2008 incident in that it is the figurehead for the further incidents that also occurred'.
I am satisfied from the evidence of the appellant and Dr De Felice that the extreme violence demonstrated by the respondent in the March 2008 incident resulted in the appellant being vulnerable to his manipulative contact with her which she was unable to properly resist in any forthright way and caused an ongoing apprehension in her of potential violence.
I am satisfied that when the respondent would leave her alone her depression and anxiety would decrease but then would become heightened with further contact with him including contact which was unavoidable because of mediation processes relating to their child.
I accept Dr De Felice's opinion that the 2008 incident was the primary stressor.
Having said that there were, in my view, issues or events which aggravated the psychiatric condition with which the appellant suffered which were not compensable.
The appellant's depression for a significant period prior to the March 2008 incident caused by the nature of their relationship and his persistent contact with her after March 2008 involving breaches of a violence restraining order had a marked impact on her.
In awarding compensation resulting from the offence for which the respondent was convicted, it is appropriate to take these matters into account.
In all the circumstances, the sum of $22,500 represents appropriate compensation for non‑pecuniary loss.

Summary

The appeal will be allowed. The appellant will be awarded compensation against the respondent in the sum of $31,553.24 calculated as follows:
Injuries  $22,500.00
Travel expenses  $     365.00
Past medical expenses (including St John Ambulance
fee and medical report fees)  $ 5,497.75
Future medical expenses  $ 3,190.49
Total  $31,553.24
I would not disturb the order made by the assessor pursuant to s 45(1)(b) that only the sum of $2,250 may be the subject of proceedings under pt 6 of the Act.
As to costs even though the respondent filed a notice of intention to appear he played no part in this appeal. In my view it is not appropriate in those circumstances, to make any award of costs against him: Parsons v McWilliam [2002] WADC 62 [42].