Ward v Davey
[2023] WADC 78
•19 JULY 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WARD -v- DAVEY [2023] WADC 78
CORAM: LEMONIS DCJ
HEARD: 30 MARCH 2023
DELIVERED : 19 JULY 2023
FILE NO/S: APP 50 of 2022
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: ALAN DAVID CRAIG WARD
Appellant
AND
CALEB FRANK DAVEY
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: C F HOLYOAK-ROBERTS
File Number : CIC 2095/2020
Catchwords:
Award of compensation made to respondent as a result of offence of assault occasioning bodily harm committed against him by the appellant - Appellant contends award is manifestly excessive - Extension of time needed to bring both compensation claim and appeal - Critical issue is whether headaches suffered by respondent are attributable to the assault - Availability of inferential reasoning where medical evidence recognises that the assault is a possible cause - Claim for loss of earnings in circumstances where no historical record of relevant earnings - Consideration of difficulties in assessment that then arise
Legislation:
Criminal Injuries Compensation Act 2003 (WA)
Result:
Award varied
Representation:
Counsel:
| Appellant | : | Mr M Tolcon |
| Respondent | : | In person |
| Amicus Curiae | : | Ms S Walsh appeared on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Terry Dobson Legal |
| Respondent | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
A v D (1994) 11 WAR 481
ATB v LA [2021] WADC 64
August v Lynch [2019] WADC 78
Blackwell v Warren [2018] WADC 127
East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis) [2020] WASCA 147
Hansen v Bolton [2017] WADC 25
Houlahan v Pitchen [2009] WASCA 104
Madigan v XYZ [2022] WADC 123
Mallard v Mallard [2022] WADC 71
Mangisi v Boehm [2021] WADC 76
Netline Pty Ltd v QAV Pty Ltd [2022] WASCA 131
Nurovic v Nurovic [2019] WADC 28
Re Jackamarra [2014] WADC 9
Re MJM [2021] WADC 104
Re Sunjich [2022] WADC 66
Savic v Duric [2021] WADC 53
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29
TAW v NJS [2011] WADC 187
Underwood v Underwood [2018] WADC 13
Woodward v Davies [2021] WADC 73
LEMONIS DCJ:
The respondent, Mr Davey, was the victim of a criminal offence committed by the appellant, Mr Ward on 8 August 2017. The offence was that of assault occasioning bodily harm. Mr Ward was convicted of the offence on 1 October 2020 after a trial in the Magistrates Court.
Mr Davey made an application on 17 December 2020 under the Criminal Injuries Compensation Act 2003 (WA) (the Act) for compensation for his injuries and loss suffered as a result of the offence.
By an award made 2 June 2022, the Chief Assessor awarded Mr Davey compensation in the sum of $56,617.35 itemised as follows:[1]
1.$50,000 for injuries;
2.$884 for reports;
3.$607.35 for treatment expenses;
4.$126 for travel expenses; and
5.$5,000 for future treatment expenses for psychological treatment.
[1] Assessor's papers, page 114.
By notice of appeal dated 22 July 2022 and filed 29 July 2022, Mr Ward appeals against the award, contending it is manifestly excessive in all of the circumstances. The appeal is brought to this court pursuant to s 55 of the Act.
At the hearing of the appeal, Mr Ward was represented by counsel, Mr Tolcon. Mr Davey represented himself. The Chief Executive Officer of the Department of Justice appeared as amicus curiae represented by Ms Walsh.
The appeal is primarily directed to the award of $50,000 for injuries. Mr Ward accepts that the other amounts that formed part of the award are appropriate to be awarded to Mr Davey under the Act.
The appeal raises four principal issues.
First, whether Mr Davey should be granted an extension of time to have brought his application for compensation.
Second, whether Mr Ward should be granted an extension of time to bring this appeal.
Third, what compensable injury and loss Mr Davey suffered within the operation of the Act.
Fourth, the appropriate quantum of a compensation award, including whether it should include an amount for loss of earnings.
It is useful to first explain the nature of the appeal and also the statutory regime applicable to awards of criminal compensation.
Nature of the appeal
The appeal is a hearing de novo.[2] On the appeal, I can confirm, vary or reverse the assessor's decision either in whole or in part.[3]
[2] s 56(1) of the Act.
[3] s 56(2)(b) of the Act.
Statutory regime
In ATB v LA,[4] I analysed the nature of a claim for compensation, including a claim for loss of earnings.
[4] ATB v LA [2021] WADC 64 [7] - [21] (ATB).
A person may apply for compensation when they have suffered injury as a consequence of the commission of a proved offence: s 12(1). The compensation is for the injury and any loss suffered. A proved offence is a crime of which a person has been convicted: s 3. Accordingly, in this case, the proved offence is the offence of assault occasioning bodily harm of which Mr Ward has been convicted.
The word 'injury' is defined to include mental and nervous shock: s 3. The phrase is one of a composite character borrowed from the law of tort to refer to mental or emotional harm as opposed to physical injury or bodily harm. The words mental and nervous shock include such results of criminal conduct as distress, horror, and disgust and other similar adverse mental reactions. In assessing whether there is mental or nervous shock, it is necessary to draw a distinction between a mere emotional reaction and something of a more enduring character which may in both the legal sense and in common parlance, be described as an injury.
An award of compensation for mental and nervous shock may only be made in the circumstances set out in s 35(2). These circumstances include that the claimant suffered bodily harm (s 35(2)(a)) or was the person against whom the offence was committed (s 35(2)(b)). Here, Mr Davey suffered bodily harm and was the person against whom the offence was committed by Mr Ward. Accordingly, s 35(2) is satisfied.
For an award of compensation to be made, it is necessary that I am satisfied that the claimed injury and any claimed loss has occurred and did so as a consequence of a proved offence being committed: s 12(3)(a). This conveys that a victim must establish a causal connection between the commission of the offence and the injury and loss for which compensation is sought. Such an approach accords with the general law of causation, particularly as applied in cases of tort, except that foreseeability and remoteness are irrelevant. It need not be the sole cause. It is sufficient if the offending materially contributed to the harm, in the sense that the contribution was not negligible.
In respect of loss, it is defined at s 6(2) to include a number of separate matters, respectively appearing at s 6(2)(a) - s 6(2)(d). The relevant provisions for the purposes of this appeal are s 6(2)(a) ‑ s 6(2)(c), which are defined by reference to the injury suffered, not by reference to the offence committed. Accordingly, a two‑step process is required to establish loss:
1.First, that the victim suffered an injury as a consequence of the offence committed.
2.Second, that loss has occurred as a consequence of that injury.
The definition of loss includes past and future expenses. For past expenses to be recoverable they must have been reasonably incurred by or on behalf of the victim in circumstances which have a nexus to the injury suffered. The expenses must arise directly from the injury, or arise in obtaining a report from a health professional or a counsellor in relation to the injury suffered: s 6(2)(a).
For future expenses to be recoverable, they must be likely to be reasonably incurred by or on behalf of the victim. Again, they must have a nexus to the injury suffered. So, the future expenses must be for treatment the victim is likely to need as a direct consequence of the injury suffered: s 6(2)(b).
The definition of loss also includes loss of earnings. This is defined at s 6(2)(c) as:
loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim; …
(emphasis added)
As can be seen, this definition includes the word direct before consequence, which word does not appear before consequence in s 12(3). The word direct (or directly) appears in the other paragraphs comprising the definition of loss in s 6(2). As I noted in ATB, it is unclear whether the introduction of a qualifying word such as direct in s 6(2) results in there being a higher threshold to establish compensation for loss from injury within the meaning of s 6(2), compared to the requisite threshold to establish compensation for injury from the commission of an offence within the meaning of s 12. In any event, as I explained in ATB, even if it does result in a higher threshold, I consider that threshold would only reach the height of the injury being the substantive (or dominant) cause, as opposed to a material cause.
In relation to loss of earnings, this includes both past and future loss and includes a reference to loss of earning capacity.[5] As I noted in Madigan v XYZ:[6]
In practical terms, there is likely to be little difference between loss of earnings and loss of earning capacity when a claim is viewed from a historical perspective. So, where the claim looks at what has actually happened from the point in time of the offences to the point in time of the hearing. However, in respect of the assessment of future loss of earnings, that by its very nature considers matters from a prospective perspective, taking account of historical performance, both prior to and post the offending behaviour.
[5] A v D (1994) 11 WAR 481, 495 (Nicholson J). Ipp J agreed with Nicholson J.
[6] Madigan v XYZ [2022] WADC 123 [24] (Madigan).
As to the quantum of an award, the award of compensation for injury and loss is such compensation that the assessor is satisfied is just for the injury and any loss suffered: s 30(1). The maximum amount of compensation which may be awarded for a single offence is $75,000: s 31(1). The maximum is a jurisdictional limit and is not reserved for the worst cases.
The assessment of the appropriate quantum of an award of compensation is to be determined by applying the ordinary principles for assessment of damages, subject to limitations imposed by the Act, in particular the jurisdictional limit. In this respect, as to the approach to an assessment of damages, Newnes JA (with whom Pullin and Miller JJA agreed) said in Houlahan v Pitchen:[7]
The principle to be followed in assessing damages is that the amount of damages must be fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused, having regard to current general ideas of fairness and moderation. The amount must be proportionate to the situation of the particular plaintiff. …
(citations omitted)
[7] Houlahan v Pitchen [2009] WASCA 104 [107].
An award of compensation may be refused or reduced, where the victim's behaviour, condition, attitude or disposition contributes directly or indirectly to their injury: s 41.
A further matter to be considered is whether Mr Davey has taken all reasonable steps to mitigate the loss he has suffered. A failure to take such steps may also result in the refusal or reduction of an award. Consistently with the general application of the principles of mitigation of loss, in order to be satisfied that Mr Davey failed to mitigate, I would need to be satisfied that he acted unreasonably in the steps he took, or did not take, to mitigate his loss.
Further, in my view the assessment as to whether a victim did act unreasonably is carried out by reference to a reasonable person in the circumstances as they existed for that victim.
I turn now to the factual circumstances of the offence the subject of the claim for compensation.
Relevant factual matters
Factual circumstances of the offence
The charge against Mr Ward of assaulting Mr Davey and causing him bodily harm was heard at a trial before learned Magistrate Atkins. The learned magistrate delivered oral reasons on 1 October 2020 convicting Mr Ward of that offence. The learned magistrate then immediately proceeded to sentence Mr Ward.
The underlying circumstances of the offending are as follows. Mr Davey had been at Mr Ward's house installing a new audio system into Mr Ward's motor vehicle. Mr Ward had bought the system himself and engaged Mr Davey's brother's company to install it. Mr Ward was unhappy with the installation and Mr Davey agreed to return the next day with an additional kit that would be fitted at a cost of $20.
Mr Davey returned the following day to complete the installation. Mr Ward remained unhappy with the quality of the work and he refused to pay the $20.
On the findings of the learned magistrate, Mr Ward then went back into his home and Mr Davey followed and knocked on Mr Ward's front door.[8]
[8] Magistrates Court transcript, ts 6.
The learned magistrate sentenced Mr Ward on the basis that Mr Ward then applied force to Mr Davey's face, using the heel of his hand.[9] This caused Mr Davey to suffer a loose tooth, swollen lip and a bruised and bloody nose.[10] As a consequence, Mr Davey attended hospital for treatment in relation to the injuries that he suffered.[11]
[9] Magistrates Court transcript, ts 10.
[10] Magistrates Court transcript, ts 3.
[11] Magistrates Court transcript, ts 14.
The relevant delays and whether extensions of time should be brought
Mr Davey's delay in bringing his application for compensation
A compensation application must be made within three years after the date on which the offence to which it relates was committed: s 9(1) of the Act. The assessor may allow a compensation application to be made after three years if it is just to do so: s 9(2). I may exercise the power of the assessor to extend time: s 56(2).
Mr Davey has the onus of satisfying the court on the balance of probabilities that it is just to extend the time to bring the application.[12] The factors that the court may take into account include:[13]
1.The reasons for and the length of the delay;
2.The extent to which the claim raises an arguable basis for a claim for compensation; and
3.The extent of any prejudice to Mr Ward.
[12] Hansen v Bolton [2017] WADC 25 [12].
[13] Re Jackamarra [2014] WADC 9 [23].
The last date for bringing the compensation claim was 7 August 2020, that being three years after the offence was committed on 8 August 2017. Mr Davey brought the compensation claim on 17 December 2020. It was therefore 4 months and 10 days late.
Mr Davey has explained the reasons for the delay. He said he was advised by police officers that it was best to wait until Mr Ward was found guilty. Mr Davey also said he was unaware of the timeframe for lodging the claim.[14]
[14] Assessor's papers, page 10.
The matters raised by Mr Davey reflect common sense. If he had brought the claim prior to Mr Ward being convicted of the offence, in all likelihood the assessor would have deferred considering the claim until the conclusion of the criminal proceedings. This is because in the circumstances of this case, the assessor would not have been able to determine the claim unless and until Mr Ward was convicted of the offence, or the charge alleging the offence was to be treated as not determined as that concept is defined in s 16. Furthermore, there is no reason to believe that Mr Davey would have been aware of the specific timeframe. In addition, by the time Mr Davey lodged the application, he had an arguable basis for compensation as by then Mr Ward had been convicted of the offence of causing him bodily harm.
I can see no material prejudice to Mr Ward from the timeframe being extended. No doubt, Mr Ward would have hoped the matter was at an end once he was sentenced. However, the prospect of Mr Davey making a claim for compensation for the harm he suffered was fairly obvious. Also, there is nothing to suggest Mr Davey did anything to lead Mr Ward to believe that Mr Davey would not bring such a claim.
Accordingly, for these reasons I consider it is just to extend the time for Mr Davey to bring the claim for compensation. I will grant an extension to 17 December 2020.
I turn now to the grant of an extension of time to Mr Ward to bring this appeal.
Extension of time to bring the appeal
The award was made on 2 June 2022.[15] The appeal must be commenced within 21 days after the date of the decision to make the award: s 55(2). The time for Mr Ward to bring the appeal expired on 23 June 2022. The notice of appeal is dated 22 July 2022 and was filed on 29 July 2022. It was therefore filed 1 month and 6 days late. If it is just to do so, I may allow an appeal to be commenced after the 21 days, and may do so even if the period has already expired at the time the notice of appeal is filed: s 55(4).
[15] Assessor's papers, pages 118 - 120.
In Simonsen v Legge,[16] the Court of Appeal noted that the four major factors to be considered in deciding whether to grant an extension to commence an appeal in that court were as follows, although they are not necessarily exhaustive in each case:
1.The length of the delay.
2.The reasons for the delay.
3.The prospects of the appellant succeeding in the appeal.
4.The extent of any prejudice to the respondent.
[16] Simonsen v Legge [2010] WASCA 238 [8] (Simonsen).
An additional factor is whether the delay is intentional or the result of a bona fide mistake and whether the delay is that of the appellant in person or of their lawyer.
As Gething DCJ noted in Underwood v Underwood,[17] the factors outlined in Simonsen have application to an appeal from a decision of a criminal injuries compensation assessor, so that is, to an appeal of the type that is before me.
[17] Underwood v Underwood [2018] WADC 13 [27] (Underwood).
In respect of the circumstances pertaining to the delay here, on 10 February 2021 a case manager for the Chief Assessor sent Mr Ward a letter which explained that Mr Davey had brought the claim, invited Mr Ward to make any submissions and also explained that the State may seek to recover from Mr Ward some or all of any award made to Mr Davey.[18]
[18] Assessor's papers, pages 104.
On 2 June 2022 a senior case manager for the Chief Assessor sent Mr Ward an email attaching the award and a covering letter explaining the award and the next steps.[19] The covering letter explained Mr Ward's right of appeal and that the appeal must be lodged within 21 days of the date of the award.
[19] Assessor's papers, pages 118 - 119.
Mr Ward sent an email in response on 2 June 2022 to the email address of the Department of Justice, Criminal Injuries Compensation.[20] In that email, Mr Ward expressed his confusion as to the award, given the incident itself was 'over 4-5 years ago' and the 'matter was dealt with in court'.
[20] Assessor's papers, page 101.
Mr Ward filed an affidavit sworn 19 July 2022 in support of the application for an extension of time to bring the appeal.
In that affidavit, Mr Ward says as follows. He received the initial award in the mail around mid to late June 2022, it confused him and he intended to seek legal advice to explain it to him. Then, around 11 July 2022 Mr Ward's brother informed him that he had received a letter for Mr Ward dated 27 June 2022 from the Chief Assessor of Criminal Injuries Compensation requesting that Mr Ward pay $56,617.35. Mr Ward contacted a lawyer on 12 July 2022 and he instructed the lawyer to file an appeal notice. Mr Ward was unable to effect service of the appeal notice as he did not have Mr Davey's contact details.
As can be seen, there are two relevant areas of delay. First, Mr Ward not seeking legal advice after having received the award and explanatory letter on 2 June 2022. Second, Mr Ward's lawyers not then filing the appeal notice promptly after Mr Ward had instructed them to do so.
Mr Ward's explanation for the first area of delay contradicts the documents. It is clear from the documents that Mr Ward was aware of the award on 2 June 2022, yet in his affidavit he says he became aware of the award around mid to late June 2022. I do accept that in all of the circumstances Mr Ward was confused by the material he had initially received. However, if anything that confusion ought to have compelled him to get legal advice. Instead, Mr Ward only did so once his brother brought to his attention the Chief Assessor's letter seeking payment. Mr Ward then acted promptly. I expect that is because he then realised the award impacted him directly. In respect of the second area of delay, there is no explanation as to why the filing of the appeal notice was delayed, it being filed 10 days after Mr Ward swore his affidavit. On the material, it is not possible for me to discern whether the fault lay with Mr Ward or with his lawyers.
Overall, I do not consider there is a satisfactory explanation for the entirety of the delay, although I am satisfied that Mr Ward was initially unsure as to what to do once he received the award on 2 June 2022.
In terms of the prospects of success, as will become apparent, one of the key areas in dispute is whether the assault has materially contributed to the ongoing headaches from which Mr Davey suffers. The medical evidence regarding Mr Davey's headaches is quite involved and requires careful consideration. I am therefore satisfied the appeal had arguable prospects of resulting in a lower award of compensation.
As to the potential prejudice to Mr Davey, there is prejudice because the delay gives rise to uncertainty on Mr Davey's part as to the amount of compensation to which he is entitled. However, that prejudice would also arise with an appeal filed in time.
Having reflected on all of these matters, I consider it is just to grant an extension of time for Mr Ward to file the appeal. I will grant an extension of time to 29 July 2022.
I turn now to consider the extent of Mr Davey's injuries.
Extent of Mr Davey's injuries
As I have already explained, the specific physical injuries which Mr Davey suffered were a loose tooth, swollen lip and a bruised and bloody nose.
In addition, at the time of the assault, Mr Davey had a cerebral shunt (also known as a VT shunt). This was inserted when Mr Davey was about 15 months old. Mr Davey does not know the reason why the shunt was inserted. The medical evidence suggests it was likely to treat hydrocephalus,[21] which is a condition characterised by abnormal accumulation of cerebrospinal fluid.[22]
[21] Assessor's papers, page 146.
[22] See definition of hydrocephalus in Mosby's dictionary of Medicine, Nursing and Health Professions, 3rd ANZ Edition.
Mr Davey contends the assault disrupted the shunt, resulting in him having shunt revision surgery. Since the assault, Mr Davey has suffered from ongoing headaches which at times are debilitating. The cause of the headaches is a critical aspect of Mr Davey's claim. The headaches have a persistent effect on his way of life and also contribute to the severity of his depression and anxiety.
In Mr Davey's victim impact statement dated 17 December 2021, he describes the circumstances regarding the shunt as follows:[23]
The surgery involved inserting a new VP shunt into my skull and running a surgical tube from my skull to my stomach. This included 28+ stitches which will now be a permanent part of my body. The VP shunt will require ongoing check-ups and adjustments as the shunt is required to control internal pressure within my skull. The initial shunt was in place for 35 years and never needed to be adjusted. I never had any ill effects, headaches or nausea. Since the placement of the new shunt, I have had constant headaches and nausea resulting in the shunt needing to be adjusted 6 times. I am still getting regular headaches and nausea since.
[23] Assessor's papers, page 16.
In terms of Mr Davey's medical treatment, Mr Davey was initially seen in the emergency department at Rockingham General Hospital on 8 August 2017. He then presented to his general medical practitioner, Dr Siziba, on 12 and 13 August 2017. On 13 August 2017, Dr Siziba sent Mr Davey to the emergency department at Rockingham General Hospital for urgent x-rays to assess the shunt, Dr Siziba's assessment being that the shunt looked and felt broken.[24] Mr Davey attended the Rockingham General Hospital emergency department on 13 August 2017 and a CT scan was performed on him. It revealed a disrupted VT shunt. Mr Davey was then transferred to Sir Charles Gairdner Hospital under neurosurgical care.[25]
[24] Assessor's papers, page 160.
[25] Assessor's papers, page 129.
Mr Davey stayed at Sir Charles Gairdner Hospital until 16 August 2017.[26] The discharge summary records VP shunt disruption as the principal diagnosis.[27] It also notes that since the VP shunt was inserted at 15 months of age, there had been no previous VP shunt revisions.
[26] Assessor's papers, pages 121 - 124.
[27] Assessor's papers, page 121.
Mr Davey decided to have elective VP shunt reconnection, which was scheduled for 18 August 2017. He was admitted to Sir Charles Gairdner Hospital on 18 August 2017 where he stayed for seven days.[28] The discharge summary notes that Mr Davey underwent VP shunt revision on 17 August 2017[29] and there were no post operative complications. Presumably there is an error in the recording of the date for surgery and it should correctly be 18 August 2017 (the day of admission), not 17 August 2017. Dr Kern, a consultant neurosurgeon, performed the surgery. The discharge summary also notes that Mr Davey had some persistent headaches and that on adjustment of the programmable valve, the headaches improved. The discharge summary also refers to Mr Davey having had a CT of his head on 22 August 2017 and then states under a heading of clinical information:
34 year old with VP shunt. Adjusted shunt setting yesterday. Pressure headaches.
[28] Assessor's papers, pages 125 - 127.
[29] Assessor's papers, page 125.
Dr Kern reviewed Mr Davey on 19 September 2017 and reported to Dr Siziba by letter typed 4 October 2017.[30] Dr Kern reported that:
1.Following the VP shunt revision on 18 August 2017, Mr Davey experienced low pressure headache symptoms, and the valve was consequently readjusted to a setting of 200 mm of water two weeks prior to the review.
2.Following this adjustment, the low pressure symptoms have resolved and Mr Davey currently experiences headaches in the afternoon but he has not experienced headaches suggestive of raised intracranial pressure such as early morning headaches, nausea, vomiting or lethargy.
3.The VP shunt is in good position with normal sized ventricles that have not altered significantly between the studies, despite the increase in pressure setting of the shunt valve.
4.The most likely scenario is that Mr Davey has hydrocephalus that is very well controlled at his current shunt settings and a much less likely scenario would be that he is no longer shunt dependent.
[30] Assessor's papers, page 146.
Dr Kern reviewed Mr Davey again on 23 August 2018 and reported back to Dr Siziba by letter dated that day.[31] In that letter Dr Kern reports that it is impossible to be certain as whether Mr Davey is truly shunt dependant but a setting of 200 mm H2O is certainly much higher than the average intracranial pressure. In Dr Kern's report, he noted that Mr Davey presented to Sir Charles Gairdner Hospital after an assault which has likely caused a shunt fracture in his neck and he was accumulating CSF (cerebrospinal fluid) around the fractured shunt. The report also noted that Mr Davey underwent shunt revision and post‑operatively required his programmable shunt valve to be set at the highest setting. Dr Kern said that Mr Davey now has no headaches other than when he is running and jumping and they typically resolve within two hours after this.[32]
[31] Assessor's papers, page 130.
[32] Assessor's papers, page 130.
By letter of 2 August 2020 from Dr Siziba to Dr Kern, Dr Siziba referred Mr Davey for assessment in respect of pain and discomfort that he was experiencing.[33] Dr Siziba's letter referred to Mr Davey having cervical pain and posterior head discomfort that goes away two hours or so after waking up, that Mr Davey gets nausea as he wakes up and has a restless sleep due to his pain. I do not appear to have Dr Kern's report of his attendance on Mr Davey in response to Dr Siziba's referral.
[33] Assessor's papers, page 132.
The symptoms of having head pain and nausea upon waking are symptoms that Dr Kern had earlier commented were suggestive of raised intracranial pressure.[34]
[34] See [67(2)] above.
Dr Siziba also asked Dr Knezevic to review Mr Davey, which he did. Dr Knezevic is a consultant neurologist. In Dr Knezevic's report to Dr Siziba of 7 September 2020, he states:[35]
He had a VP shunt inserted at the age of 15 months for reasons which he does not know. The shunt was never revised. Three years ago the shunt disconnected after an assault and he developed low pressure headaches and a subdural hygroma. He had a shunt revision. Initially he experienced low pressure headaches when the shunt was set at 7 cm. The shunt valve pressures were revised several times, until now they were set at 20 cm. He stopped having low pressure headaches, but ever since he has experienced headaches when he goes for a run. He can exercise in the gym but if he runs for more than 2 km he develops an occipitocervical headache which is quite severe so that he now rarely goes for runs. He has also noticed that since the shunt revision that if he sleeps on his right side he wakes up in the morning with an occipital and generalised headache and feels as if he is hungover for several hours before this lifts. This hasn't really changed in the last three years. It has however increased in the last month or two.
…
It is hard to go past these headaches as being shunt related. The shunt is set at 20 cm, which is on the high side and probably is not draining properly. It is curious that he experienced such severe low pressure headache when the shunt was disconnected. He doesn't have slit ventricals to suggest slit ventrical syndrome, but I still feel that these headaches are shunt related.
[35] Assessor's papers, page 137.
Dr Knezevic also reviewed Mr Davey on 26 October 2020. In his letter to Dr Siziba, he referred to Mr Davey reporting that his morning headaches had resolved but he still experiences headaches if he goes for a run of more than 20 minutes. Further, Mr Davey reported that he develops a pressure headache across his occipital region and upper neck which he likens to the headaches he would experience when the shunt connection was broken.[36] Dr Knezevic says that he is not sure that there is anything further that can be done.
[36] Assessor's papers, page 135.
Dr Siziba referred Mr Davey to Mr Mark Lam, a neurosurgeon by letter 16 July 2021. The referring letter stated that Mr Davey has remained with severe headaches if he does anything strenuous or runs.[37] Dr Lam reviewed Mr Davey on 8 October 2021 and reported to Dr Siziba by letter typed 18 October 2021. In his report, Dr Lam stated:[38]
… To me, it sounds like he has a non-compliant ventricle from long‑term shunting and he is very sensitive to pressure changes. I suggest to hold off from any further changes at this stage given he complains about the initial worsening of symptoms until just recently. I will review him again clinically in 2 months to give him more time to adjust to the pressure changes. If he remains well and his headache continues to be improved then we can look into further reducing the programmable valve setting and hopefully get him to a relative stable equilibrium and the more compliant part of the ICP curve.
I explain at the end we may never get him completely headache-free as headache has such multifactorial aetiologies and he had chronic shunting. The biological system also does not behave like a mechanical system. Hopefully we can get him to a relative tolerable symptom state.
…
[37] Assessor's papers, page 140.
[38] Assessor's papers, page 151.
Dr Lam reviewed Mr Davey on 9 December 2021 and reported to Dr Siziba by letter typed 12 December 2021.[39] In that report, Dr Lam says:
… He reports his headache has improved and less severe when he exerts compare to previously.
I have suggested to trial him on a setting of 160mm Hg with his Codman Hakim valve.
I will review him in 2 months' time and depending on his symptoms whether he need further adjustment.
He ask me on behalf his lawyers as he is looking at settling his 'assault' claim and how many further consultations he needs. I frankly explain to him that is unknown and all depends on how many times we need to adjust the shunt setting to reach the state when his headache is least. He ask if that should be completed in 10 consultations and I suspect there is a good chance it will. There is no objective measures or end point and is purely depends on [Mr Davey's] subjective complaint.
…
[39] Assessor's papers, page 153.
Dr Lam also reviewed Mr Davey on 11 February 2022 and reported to Dr Siziba by letter typed 16 February 2022. In his report Dr Lam noted that Mr Davey had told him that the headache and associated nausea had become worse after the shunt had been set to 160 mm Hg, so Dr Lam increased the shunt back up to 170 mm Hg. Dr Lam also expressed the concern that Mr Davey may never be headache free.[40]
[40] Assessor's papers, page 162.
Dr Lam reviewed Mr Davey on 17 March 2022 and reported to Dr Siziba by letter typed 23 March 2022.[41] In his report, Dr Lam notes that Mr Davey reports that his nausea has much improved since the shunt was increased but has not resolved. Dr Lam expressed the view that the shunt is patent[42] given Mr Davey's clinical symptoms correlate with shunt setting.
[41] Assessor's papers, page 163.
[42] Which I understand to mean is unobstructed.
Dr Lam also noted that prior to the alleged assault in 2017, Mr Davey reported being completely asymptomatic and was subsequently found to have a fractured shunt.
Dr Lam also reviewed Mr Davey on 24 February 2023. He reported to Dr Siziba by letter typed 5 March 2023. That report was not before the assessor. At the hearing of the appeal, Mr Davey produced the letter. There is a general discretion to receive further evidence on appeal, which should be exercised in favour of receiving the evidence unless it is unjust to do so.[43] Mr Ward's counsel did not object to my receiving the letter nor did Ms Walsh, counsel for the Chief Executive Officer. In my view, it is not unjust to receive the letter. It provides up to date information regarding Mr Davey's headaches. I therefore receive it.
[43] TAW v NJS [2011] WADC 187 [17] (TAW).
The letter states:
… He tells me he gets headaches with exertion at shunt setting of 190mm Hg, but much less headache during daily activities. At previous setting of 180mm Hg he notices less headache during exertion but more he[a]dache during daily activities.
From his symptoms description, he has very non-compliant ventricles and sensitive to small adjustments with his pressure.
I recommends [sic] the current shunt setting sounds most tolerable for him for the most time of the day and acceptable. I think even we take the risks of exploring the shunt and surgery uneventful, it's most likely he will still be in a similar situation as now. The risks of complications from shunt surgery can be catastrophic and devastating. I think while disappointing, there is a very high likelihood no matter what we do even in best case scenario he will not be completely headache free.
[Mr Davey] understands and accepts the current shunt setting. I have not made any further follow up to see him. He should present to Emergency Department if he develops symptoms of acute shunt failure.
…
The following matters can be distilled from the medical evidence:
1.Upon presenting to hospital following the assault, Mr Davey was diagnosed with VP shunt disruption.
2.Mr Davey presented with pressure headaches.
3.Mr Davey then had shunt revision surgery.
4.Since the shunt revision surgery, Mr Davey has persistently suffered from headaches.
5.Dr Siziba, Mr Davey's general practitioner, has repeatedly referred Mr Davey to medical neuro specialists for assessment and possible treatment in respect of the headaches.
6.Dr Knezevic considers that it is hard to go past these headaches as being shunt related.
7.Dr Lam considers that it sounds like Mr Davey has a non‑compliant ventricle from long-term shunting and he is very sensitive to pressure changes.
8.None of the doctors whose reports are before me have expressed the opinion that the shunt cannot be the cause of the headaches.
9.The predominant way in which the doctors have sought to treat the headaches is by adjusting the pressure settings on the shunt.
10.The changes made to the shunt settings have affected the nature of the headaches and associated nausea.
Findings
It is important to first enunciate the precise basis for Mr Davey's claims regarding the headaches. Mr Davey's claim is not that the assault itself caused the headaches. Rather, Mr Davey's claim is in effect a three‑step process as follows:
1.First, the assault caused a disruption in the shunt.
2.The disruption required Mr Davey to have shunt revision surgery.
3.The material cause of the headaches was initially the disrupted shunt and then the shunt revision as implemented by the surgery.
On the evidence before me, I am satisfied that the assault caused a disruption to the shunt. Dr Siziba examined Mr Davey on two separate days immediately following the assault. As he put it, the shunt looked and felt broken on assessment.[44] Dr Siziba then sent Mr Davey to the emergency department, where he had an urgent CT scan, which revealed a disruption to the shunt. Further, I am also satisfied that the disruption to the shunt was the reason why Mr Davey had shunt revision surgery. On the evidence, the need for the shunt revision surgery clearly arose from the shunt disruption revealed by the CT scan.
[44] Assessor's papers, page 160.
The critical issue pertains to the third matter set out at [81] - are the changes to the shunt, as reflected by its initial disruption and subsequent revision, a material cause of the headaches?
In assessing the cause of Mr Davey's headaches, the medical evidence forms part of the evidence that I must consider. Where the medical evidence does not reach the level of positively stating that the changes to the shunt have caused the headaches, but recognises the possibility that it did, I need to consider whether causation can be inferred in all of the circumstances.
In East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis),[45] the Court of Appeal considered the application of inferential reasoning in circumstances where the medical evidence recognised the possibility an event caused a particular injury, but did not positively conclude that it had caused the injury. Their Honours stated:[46]
[45] East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis) [2020] WASCA 147 (East Metropolitan Health Service).
[46] East Metropolitan Health Service [261] - [264], [269], [271] and [274].
261As French CJ explained in Amaca v Booth, an after‑the‑event inference of causal connection may be reached on the balance of probabilities notwithstanding that the statistical correlation between the first event and the second event indicated, prospectively, no more than a 'mere possibility' that the second event would occur given the first.
262It is in this context (namely, the determination of factual causation) that the relevance of 'possibilities' revealed by the evidence arises for consideration.
263In this regard, it is clear, and there can be no doubt, that mere proof by a plaintiff of the possibility that a defendant's breach caused the plaintiff to suffer harm is insufficient. The court must be satisfied that it is more probable than not that the defendant's breach caused the relevant harm; it is not sufficient to conclude that the breach may have been a cause of the harm.
264At the same time, it is also well‑established that causation may be proved by inference. If direct proof is not available, an inference of causation may be drawn if the circumstantial evidence is sufficiently strong and coherent to support a definite inference to that effect. Before such an inference can be drawn, there must be more than two conflicting inferences of equal probability.
…
269… Only if expert opinion regards an inference of causation as unjustified as a probable inference or as an accepted hypothesis is a court positively precluded from dismissing that inference by reason of the expert evidence.
…
271These observations make clear that in cases where expert evidence is led bearing upon a question of causation, the court must consider, and reason with reference to, the expert evidence led. However, nothing in these observations requires a plaintiff to prove, or a trial judge to find, by reference to expert evidence, the specific mechanism by which one event caused another event.
…
274In circumstances where the aetiology is uncertain, or subject to significant scientific dispute, the courts are not thereby disabled from making decisions as to causation on the balance of probabilities. In this regard, Spigelman CJ cited with approval the following passage from EMI (Australia) Ltd v BES:
'Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be a touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try'.
(footnotes omitted)
Their Honours also noted with approval the following statement of Spigelman CJ in Seltsam Pty Ltd v McGuiness:[47]
Evidence of possibility, including expert evidence of possibility expressed in opinion form and evidence of possibility from epidemiological research or other statistical indicators, is admissible and must be weighed in the balance with other factors, when determining whether or not, on the balance of probabilities, an inference of causation in a specific case could or should be drawn. Where, however, the whole of the evidence does not rise above the level of possibility, either alone or cumulatively, such an inference is not open to be drawn.
[47] Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 [79].
Their Honours concluded:[48]
Evidence of possibility, including epidemiological studies, can therefore be regarded as circumstantial evidence which may, alone or in combination with other evidence, establish causation in a specific case. As in any circumstantial case, an inference as to the probabilities may be drawn from a number of pieces of particular evidence, each piece of which does not itself rise above the level of possibilities.
(footnotes omitted)
[48] East Metropolitan Health Service [280].
Applying the reasoning in East Metropolitan Health Service to this case:
1.I must be satisfied that it is more probable than not that the changes to the shunt are a material cause of the headaches; it is not sufficient to conclude that they may be a material cause of the harm.
2.If direct proof is not available, an inference of causation may be drawn if the circumstantial evidence is sufficiently strong and coherent to support a definite inference to that effect.
3.Mr Davey is not required to prove by reference to expert evidence the specific mechanism by which the changes to the shunt cause the headaches.
4.If the medical evidence is to the effect that changes to the shunt cannot be a possible cause of the headaches, then this would preclude inferential reasoning to the effect those changes have caused the headaches.
5.However, if the medical evidence recognises the possibility that the changes to the shunt have caused the headaches, then I may after examining all the evidence, infer that is the cause of the headaches.
6.Where, however, the whole of the evidence does not rise above the level of possibility, either alone or cumulatively, such an inference is not open to be drawn.
Mr Ward's principal submission regarding Mr Davey's headaches is that the medical reports when taken as a whole do not establish that the assault materially contributed to the ongoing headaches, Mr Ward submitting that it is open on the evidence to find that the ongoing headaches may be caused by factors other than the VP shunt revision surgery.[49] In effect, this submission is that it is merely coincidental that the headaches arose in conjunction with the shunt being disrupted and subsequently revised.
[49] Mr Ward's counsel's written submissions, par 37.
Mr Ward's counsel points in particular to Dr Lam's report typed 18 October 2021 in which Dr Lam expressed the opinion that:
… it sounds like he has a non‑compliant ventricle from long‑term shunting and he is very sensitive to pressure changes.
Dr Lam also noted in that report that headaches have multifactorial aetiologies. However, Dr Lam's report does not go as far as positively stating that the headaches are caused by long-term shunting. Rather, his report raises this as a significant possibility.
Mr Ward's counsel also relies on Dr Kern's report in which he refers to the possibility that Mr Davey is no longer shunt dependent. However, what is said in that report regarding shunt dependency needs to be looked at in totality. Dr Kern wrote:[50]
The most likely scenario is that [Mr Davey] has hydrocephalus that is very well controlled at his current shunt settings. A much less likely scenario would be that he is no longer shunt dependent.
[50] Assessor's papers, page 146.
This makes very clear that Mr Davey no longer being shunt dependent is a very unlikely possibility.
Mr Ward's counsel also points to the medical professionals being satisfied that the VP shunt was successfully repaired and has since surgery functioned normally. I accept that is the case and reflects that the shunt is operating correctly.
Dr Knezevic is of the opinion that it is hard to go past the headaches being shunt‑related and he felt that the headaches are shunt‑related.[51]
[51] Dr Knezevic's report typed 7 September 2020, Assessor's papers, page 137.
Having reflected on the entirety of the medical evidence before me, I am not satisfied that by itself the medical evidence enables a finding that the changes to the shunt, as reflected by its disruption and subsequent revision, materially contribute to the headaches. Also, as Mr Ward's counsel points out, the medical reports were prepared for the purposes of Mr Davey's treatment, not for the purposes of Mr Davey's compensation claim. That being so, the doctors did not have the benefit of considering and commenting on the opinion of their colleagues. And, I do not consider I am able to prefer one particular opinion over another.
However, as the reasons for decision in East Metropolitan Health Service make clear, that is not the end of the matter. I still need to consider whether an inference of causation can and should be drawn.
In my view, the medical evidence clearly recognises the possibility that the headaches are shunt‑related. This is made clear by Dr Knezevic. It is also reflected by the medical practitioners seeking to reduce the severity of the headaches by altering the pressure settings of the shunt. Also, Dr Lam's report does not suggest that the shunt is incapable of being a cause of the headaches.
Further, I consider the following matters are of significance in assessing whether an inference of causation can and should be drawn:
1.Prior to the assault Mr Davey was not suffering any headaches and did not require constant adjustment to the shunt.
2.Post the assault and then shunt review surgery, Mr Davey has been suffering persistently from headaches. That is, there has not been a gradual change over time; rather it has been a persistent and significant problem since the assault.
3.Mr Davey has been repeatedly seeing medical practitioners regarding the headaches for many years post the assault.
4.The medical practitioners have treated him by adjusting the pressure settings of the shunt.
5.Mr Davey has reported that the adjustments in the pressure settings have either positive or negative impacts on the headaches.
These matters reflect a significant and persistent change in Mr Davey's presentation following the assault and the shunt revision surgery. It is not possible to say precisely how it is that the shunt may be causing the headaches. However, consistently with the approach taken in East Metropolitan Health Service, it is not necessary for Mr Davey to establish the specific mechanism by which the shunt is causing the headaches.
When I have regard to the whole of the circumstances, I am satisfied on the balance of probabilities applying inferential reasoning that the shunt disruption and revision have materially contributed to the headaches that have afflicted Mr Davey. The only possible competing inference is that it is merely coincidental that Mr Davey started to suffer the headaches contemporaneously with the shunt disruption and revision. I consider the inference of coincidence is an inference of much lesser probability compared to the inference that the disruption to the shunt and the shunt revision have materially caused the headaches. In that respect, the manifestation of the headaches, not experienced before, has been contemporaneous with the changes to the shunt. They have been persistent ever since, the adjustments to the shunt pressure have affected the headaches and I am satisfied the medical evidence demonstrates the shunt is a possible cause of the headaches. In those overall circumstances, I am of the view that an inference of causation by reason of the shunt changes significantly outweighs an inference of coincidence. I am therefore satisfied the evidence taken as a whole is sufficiently strong and coherent to support a definite inference of such causation.
Accordingly, I am satisfied that the changes to the shunt as a result of the assault materially contribute to the headaches. They are therefore part of the injury for which Mr Davey is to be compensated under the Act.
I turn now to consider whether Mr Davey has also suffered mental and nervous shock.
Mental and nervous shock
The assessor's papers include a report from Mr Maharaj, a treating psychologist.[52]
[52] Mr Maharaj's report dated 13 December 2021, Assessor's papers, pages 154 - 158.
Mr Maharaj's report notes that:
1.Mr Davey has consulted for six sessions of psychotherapy over the period 24 May 2021 to 6 December 2021.
2.Following the assault, Mr Davey has suffered significant mental health difficulties which manifest as anxiety and depression. Mr Maharaj is of the opinion that Mr Davey would meet the criteria of a trauma‑based disorder such as an adjustment disorder.
3.Mr Davey's ongoing pain and significant shift in his lifestyle has exacerbated the mental condition. Mr Maharaj is of the opinion that the constant pain that Mr Davey suffers in his head and neck region is a contributing factor to the mental condition that Mr Davey suffers from.
4.Mr Davey has felt heightened anxiety in public places, he has become more short‑tempered, irritable and has a negative view on life.
Mr Maharaj recommended that Mr Davey undertake at least a further 20 sessions of psychotherapy the cost of which would be $260 per session. Mr Maharaj also recommended six psychiatry sessions at $500 per session.
I am satisfied based on Mr Maharaj's report that Mr Davey suffered and continues to suffer mental and nervous shock as a result of the offence committed against him. In that respect, Mr Maharaj considers there is a direct causative link between the assault (and its ongoing consequences) and the anxiety and depression from which Mr Davey suffers. Mr Maharaj's report sets out a logical connection between these matters and I accept his opinion.
Did Mr Davey not take all reasonable steps in relation to getting treatment for his mental health?
Mr Ward's counsel submits that the amount for mental and nervous shock should be reduced because Mr Davey delayed seeing a psychologist until 24 May 2021, which is approximately 3 years and 9 months following the assault.
As I explained in ATB, the relevant question is not whether it would have been desirable for Mr Davey to have participated in psychological counselling earlier. Rather, the relevant question is whether it was unreasonable for Mr Davey to not have participated in such counselling earlier.[53]
[53] ATB [78].
Further, as the Court of Appeal noted in Netline Pty Ltd v QAV Pty Ltd:[54]
The test of reasonableness which is applied to the steps taken or not taken by the innocent party is not a high standard. … The innocent party will not have acted unreasonably merely because the defendant can suggest other and more beneficial action if it was reasonable for the innocent party to act as it did. … The question whether the innocent party took reasonable steps to mitigate its loss depends upon the facts and circumstances of the particular case. …
(footnotes omitted)
[54] Netline Pty Ltd v QAV Pty Ltd [2022] WASCA 131 [43].
It must be remembered that, usually, a mental health condition by its very nature is such that the person suffering from it does not fully appreciate either that they have it, or the full extent of it. In addition, a person may be quite reluctant to seek professional psychological counselling in circumstances where they have suffered trauma as a result of an assault because to do so exposes them to re‑living the trauma itself.
In my view, both such considerations apply in this case.
Ultimately, Mr Davey sought assistance on 24 May 2021, though it is not apparent on the material before me what prompted him doing so. In my view, there is nothing on the material before me that demonstrates that he realised that he had a significant mental health condition prior to seeking that assistance.
In the circumstances of this case, Mr Davey has been very diligent in continuing to seek medical treatment regarding his headaches. I infer from the manner in which he has approached the treatment of his headaches, that if he had appreciated he had such a significant mental health condition he would have sought treatment earlier.
In all of these circumstances I am not satisfied Mr Davey has not mitigated his loss. Accordingly, I am not satisfied that an award should be reduced as a consequence of the delay in Mr Davey ultimately seeking psychological treatment.
Compensation for injury
In relation to the quantum of compensation for Mr Davey's physical injuries and his mental and nervous shock, Mr Ward's counsel in his written submissions referred me to a number of decisions of this court where the quantum of an award of compensation has been considered. I have had regard to the awards made in those case and also the cases I referred to in Madigan, as well as the award in Madigan itself.[55] I consider I can have regard to these awards as a guide consistent with the views expressed by Bowden DCJ in TAW.[56]
[55] I have considered the awards of compensation made in Blackwell v Warren[2018] WADC 127; Mangisi v Boehm[2021] WADC 76; Re MJM [2021] WADC 104; Woodward v Davies [2021] WADC 73; Savic v Duric[2021] WADC 53; Re Sunjich [2022]WADC 66; Mallard v Mallard [2022] WADC 71; August v Lynch [2019] WADC 78; Underwood and Nurovic v Nurovic [2019] WADC 28.
[56] TAW [24].
As I noted in Madigan,[57] ultimately, it is an intuitive assessment based on the information available so as to arrive at an appropriate amount of compensation for the overall injuries suffered.
[57] Madigan [97].
Here, while the physical injuries initially were not overly significant, they have caused significant and enduring harm, both by way of the persistent headaches that Mr Davey suffers and their impact on his life and also by way of the mental and nervous shock that Mr Davey has suffered and continues to suffer. Bearing in mind these matters, I assess the compensation for Mr Davey's physical injuries and his mental and nervous shock in the sum of $40,000.
Expenses
Medical expenses claim
Mr Davey's initial claim for expenses was for the following amounts:
15.09.2017
CT scan
$315.80
23.08.2018
Consultation with Dr Kern
$176.15
07.09.2020
Consultation with Dr Knezevic
$205.70
26.10.2020
Consultation with Dr Knezevic
$78.00
Mr Davey received an initial award of $733.35 which I understand reflects $607.35 for treatment expenses and $126 for travel expenses.[58] Mr Ward does not dispute the allowance of a claim for $733.35 in respect of the four items set out at [119] and also the travel expenses associated with them.
[58] See Assessor's papers page 120 which refers to the initial award and page 118, which contains the amounts of $607.35 and $126.
Mr Davey also claims for medical reports in the sum of $884 and again Mr Ward does not dispute that item.
Further, Mr Davey claims for additional medical expenses being five consultations with Mr Maharaj at an expense of $87.55 per consultation and one consultation with Mr Maharaj at an expense of $93.75. Further, Mr Davey claims for a consultation with Dr Lam in the sum of $163.65, a consultation in the sum of $60.40 and two further consultations each in the sum of $119.20. These amounts all total $993.95 and should be allowed given the relevant roles that Dr Lam and Mr Maharaj had played in treating Mr Davey as is set out above.
In relation to travelling expenses, Mr Davey claims an additional 688 km at 0.66 cents per km. From what I can ascertain the Chief Assessor had previously allowed travel expenses at 0.50 cents per km. It is not clear to me why the claim amount has been increased to 0.66 cents per km. Given the marginal difference, I will allow the claim at 0.50 cents per km, which therefore equates to $344.
Mr Davey has also claimed the sum of $295 for THC oil. I will allow this claim. Dr Siziba has expressed the view that Mr Davey will likely need ongoing treatment with cannabis oil as Mr Davey states that it definitely works for him.[59]
[59] Assessor's papers, page 160.
Accordingly in respect of expenses, I allow:
1.The sum of $607.35 for treatment expenses the subject of the payment initially made.
2.The sum of $126 for travel expenses the subject of the payment previously made.
3.The sum of $884 for medical reports.
4.The sum of $344 for further travel expenses.
5.The sum of $993.95 for further medical expenses.
6.The sum of $295 for THC oil.
Future treatment
In respect of future treatment, Mr Ward does not dispute the amount of $5,000 awarded. Mr Davey does not seek for this amount to be increased. Given Mr Davey's position, I do not propose to consider whether or not an award greater than $5,000 was appropriate. Mr Davey does however seek that the amount for future expenses can be used by him for either psychological treatment or neurological treatment or services. In the circumstances of the injury that he has suffered, that seems to me eminently sensible. I will allow future treatment expenses to a maximum of $5,000 in respect of either psychological services or neurological services.
Loss of earnings
As a consequence of the injuries suffered by reason of the assault, Mr Davey was unable to work over the period 9 August 2017 - 30 August 2017. He accessed sick and annual leave entitlements during that period. The annual leave entitlements taken total $2,780.72. The sick leave entitlements taken total $583.62. I will allow the claim for loss of annual leave entitlements. Mr Davey took this leave for the purposes of the hospitalisation and treatment that I have referred to above, which clearly arises from the assault and its consequences.
I do not allow the claim for sick leave. On the material before me, I cannot be satisfied that Mr Davey taking this sick leave resulted in him having inadequate sick leave available to use for later illness related absences from work.
Casual work
Mr Davey was at the time of the assault engaged in part‑time work for his brother's business. That part‑time work involved fitting automotive audio accessories.
Mr Davey claims that as a result of the assault, he has not been able to continue with this work. He makes a claim for loss of earnings as a consequence.
Three questions arise in considering this claim. Firstly, whether Mr Davey's mental and nervous shock has affected his capacity to carry out that work. Secondly, if it has, to what extent the mental and nervous shock resulted in a reduction in the work. Thirdly, whether an award of compensation should be made for any loss of earning capacity.
Dealing with the first matter, in Mr Davey's victim impact statement for the purposes of sentencing, he says that he is no longer able to do his part‑time job as an automotive accessory fitter as he is too scared that something like this might happen again.[60]
[60] Assessor's papers, page 16; see also sentencing transcript, ts 14.
As I have already set out, Mr Maharaj says in his report that Mr Davey has suffered significant mental health difficulties which manifest as anxiety and depression. In my view, the assault has resulted in Mr Davey suffering an enduring anxiety. A particular way in which that anxiety manifests itself is that Mr Davey does not put himself in situations similar to the one in which Mr Ward assaulted him. I regard an enduring anxiety of this nature as being mental and nervous shock within the meaning of that phrase in the Act. It is something of an enduring nature or character which can be properly described as an injury.
Turning then to the second and third matters I have identified at [131]. There are three difficulties that I consider arise.
First, on the material before me, there is no reliable historical record of the frequency of the work, or of the remuneration that Mr Davey received. Mr Davey did not include the remuneration in his tax returns.[61] Also, Mr Davey's brother, Mr Mark Davey, did not keep a record of the work as he says Mr Davey was paid direct by the client.[62]
[61] Assessor's papers, page 90, which is a letter from Mr Davey's solicitors stating that he instructed them that he had not previously declared his earnings in relation to casual work undertaken for Mobile Audio Engineering.
[62] Mr Mark Davey's statement dated 3 May 2022 and also 1 December 2022.
The evidence as to extent of the work is in the form of generalised recollections from Mr Mark Davey. Mr Mark Davey described the referral of work to Mr Davey as being on an ad hoc basis.[63] The assessor's papers include a statement made by Mr Mark Davey as part of the prosecution of Mr Ward. In that statement, Mr Mark Davey says that Mr Davey regularly assisted him with the installation of car stereos and that due to the incident, Mr Davey no longer does these installations. Mr Mark Davey also states in a letter dated 9 March 2022[64] as follows. Over the past 10 years Mr Davey has been doing work averaging 8 - 10 hours per month on a contract basis. Mr Mark Davey's current workload (as at 9 March 2022) is such that he could easily offer Mr Davey one job per week on average. The current market rate (as at 9 March 2022) for a contract automotive accessory fitter is $60 - $80 per hour.
[63] Mr Mark Davey's statement dated 3 May 2022 and also 1 December 2022, par 4.
[64] Assessor's papers, page 220.
The second difficulty is that the extent to which Mr Davey would be offered the work in the future cannot be predicted with any certainty.
The third difficulty relates to the extent to which the mental and nervous shock has prevented and continues to prevent Mr Davey from doing similar work in the future.
My assessment is that the mental and nervous shock arising from the assault only prohibits Mr Davey from doing similar type work, that is, when he is put in a scenario where he is one‑on‑one with a person unfamiliar to him in an uncontrolled environment. While Mr Mark Davey says in his letter that Mr Davey does not feel safe completing the type of work as it is carried out at the client's house or business, on my assessment, I am not satisfied the anxiety would preclude Mr Davey from carrying out the work at a business. Essentially, my assessment is that the anxiety prevents Mr Davey from carrying out the work in a scenario unfamiliar to him where he is likely to be left in an uncontrolled environment. I am not able to make an assessment as the extent to which the work done at a client's business would involve such a scenario.
It is also not clear whether the overflow work could have been coordinated such that Mr Davey was only allocated the business clients as opposed to personal clients.
In summary, I am satisfied that the mental and nervous shock did reduce Mr Davey's capacity to engage in that work, however I am not satisfied that it prevented him from carrying out the work completely. In that respect, I am not satisfied on the information before me that the anxiety from the assault affected Mr Davey's ability to do the work within clients' businesses, as opposed to at a client's home. I also do not have information before me as to the extent to which historically the work was done at a client's business, compared to at a client's home. And, I am not satisfied on the information before me that the work allocation was not able to have been adjusted such that Mr Davey did more business‑orientated work, compared to work at a client's home.
It is therefore very difficult to assess the extent to which Mr Davey suffered a loss of earning capacity in relation to the carrying out of the casual work.
While there is a degree of intuitive assessment in determining the appropriate compensation for the loss of earning capacity, it is still necessary that I explain my reasons for coming to my conclusion as to the appropriate amount.[65]
[65] Madigan [127].
I award the sum of $5,000 for the loss of earning capacity reflecting a reduced ability to carry out the work post the assault. In arriving at this number, I have used 8 hours per month as reflecting the historical performance, and also the rate of $60 per hour and I have presumed that Mr Davey carried out the work approximately 10 months per year (taking account of leave from his full time job and also public holidays). On this scenario, Mr Davey would have earned approximately $5,000 per year from the work if continued at the historical levels.
I assess that in the initial two years following the assault there would have been a drop off in the work available to Mr Davey, in particular the work to be done at client's homes. However, I am not satisfied on the material before me that there was any loss of earning capacity beyond that initial reduction. In particular, I am not satisfied on the evidence that Mr Davey could not have done installations at clients' businesses, and I am not satisfied that the work allocation could not have been adjusted to prioritise the referral to Mr Davey of business clients.
Two final matters
Two final matters arise for consideration.
The first is whether s 39 of the Act is engaged.
Section 39(1) provides that if an assessor is satisfied that a person suffered the injury when they were committing a separate offence the assessor must not make a compensation award in favour of the person.
The Chief Executive Officer has quite rightly raised this for my consideration as Mr Davey was not declaring the income from the casual work for taxation purposes.[66]
[66] Assessor's papers, page 90.
As the Chief Executive Officer notes in their counsel's careful written submissions, a failure to report income to the Australian Taxation Office may constitute an offence under the applicable taxation legislation.[67]
[67] The Chief Executive Officer's submissions, par 138.
However, any such offence was not being committed at the time that Mr Davey was assaulted. Rather any offence would be committed at the time Mr Davey filed his taxation return in respect of the financial year ended 30 June 2018, that being the financial year which covers the day when the assault occurred, being 8 August 2017. Therefore, in my view, s 39 does not apply.
The second matter that needs to be considered is whether or not s 41 is engaged.
As I noted in Madigan,[68] it seems to be accepted that there are two competing lines of authority as to the scope of operation of s 41, which were helpfully summarised by Gething DCJ in Underwood.[69] His Honour explained:
1.The first line of authority is that s 41 was not intended to deal with pre‑existing injuries and medical conditions. Rather, it is concerned with factors which contribute to the offence, not the consequent injury or loss suffered as a result of the offence. To the extent that there are pre‑existing injuries or medical conditions, these are dealt with by applying ordinary tortious principles.
2.The second line of authority is that pre‑existing and subsequent injuries and medical conditions which have contributed to, or exacerbated, the applicant's injury must be taken into account in accordance with s 41 of the Act. Under this approach, the discretion under s 41(b) of the Act (to, if it is just to do so, refuse to make a compensation award or reduce the compensation award by reason of that contribution) may be guided by common law principles so that an applicant is not awarded compensation for injuries arising otherwise than out of the commission of an offence. This is said to be consistent with the purpose of the Act to provide for the payment of compensation to victims of offences in some, but not all, circumstances.
[68] Madigan [86].
[69] Underwood [127] - [130].
As I also noted in Madigan, s 41:[70]
1.… is concerned with contribution to injury, not contribution to loss.
2.… envisages that the relevant contribution may justify the refusal to make a compensation award or to reduce the amount of such an award. To my mind these factors suggest that the section is directed to matters which might be thought to justify a refusal of compensation or a reduction in compensation.
[70] Madigan [89], [90].
In this case, only the second line of authority set out at [153] could have any application in this appeal. That is because the existence of Mr Davey's shunt would constitute a pre-existing condition.
Even if the second line of authority did apply and s 41 was engaged, in the circumstances of this case, I would not exercise the discretion under s 41 to reduce the award to Mr Davey. In that respect, the usual common law principle is that an offender takes their victim as they find them.[71] That principle is mitigated by the need to make allowance for contingencies that could have affected Mr Davey in any event by reason of the shunt. So, for example, if the pre-existing condition would ultimately have affected Mr Davey in any event, Mr Ward would only be liable for any acceleration of that affect brought about by the assault.[72] In that respect, if I had been satisfied that some of the difficulties with which Mr Davey now presents were likely to have occurred anyway, then I would have reduced the award of compensation either under s 41 or by way of a general reduction to take account of that contingency. However, on the evidence before me, until the assault, the shunt had not resulted in any negative influence in Mr Davey's life, or the need for him to have regular treatment. Therefore, I am not satisfied that if Mr Davey had not been assaulted, the shunt would have still affected Mr Davey in a negative way in any event.
[71] Luntz H and Harder S, Assessment of Damages for Personal Injury and Death (5th ed) [2.5.1].
[72] Luntz [2.5.2].
Accordingly, in my view, even if the second line of authority did apply, I would not exercise the discretion provided for by s 41 to reduce the award of compensation to be made to Mr Davey.
Conclusion
I extend the time for Mr Davey to have brought his application to 17 December 2020. I also extend the time for Mr Ward to bring this appeal to 29 July 2022. I allow Mr Davey:
(a)$40,000 as compensation for his physical injuries and mental and nervous shock;
(b)$2,780.72 for loss of annual leave;
(c)$5,000 for loss of earning capacity;
(c)$1,896.30 for treatment expenses;
(d)$884 for reports;
(e)$470 for travel expenses; and
(f)$5,000 for future treatment expenses, such treatment to be either used for psychological treatment or neurological treatment or services. Mr Davey will need to comply with s 48 of the Act in order to access payment for the expenses of $5,000 for future treatment.
The total is therefore $56,031.02, compared to the previous award of $56,617.35.
Barring order
On the appeal, Mr Ward does not suggest that an order should be made barring recovery proceedings against him under pt 6 of the Act in respect of the award that I have made. I do not make a barring order.
Costs
In relation to costs, in my initial view there should be no order as to costs. While the overall award has been reduced, it is by a very marginal amount. Furthermore, Mr Ward has not been successful in his principal argument that he is not responsible under the Act for the headaches that afflict Mr Davey. I will hear from the parties on costs before making a final determination.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CA
Associate
19 JULY 2023
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