Weatherill v Tiakia
[2025] WADC 26
•6 MAY 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WEATHERILL -v- TIAKIA [2025] WADC 26
CORAM: CURWOOD DCJ
HEARD: 21 NOVEMBER 2024
DELIVERED : 6 MAY 2025
FILE NO/S: APP 2 of 2024
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: JARROD CHARLES WEATHERILL
Appellant
AND
TONI NIGEL TIAKIA
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: A V BARTER
File Number : CIC 2274/2023
Catchwords:
Criminal injuries compensation - Appeal against Assessor's decision refusing to make a compensation award - Proven offence and alleged offence - Assessor's decision reversed - Compensation assessed - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003 (WA), s 3, s 12, s 17, s 30, s 39, s 41, s 48, s 55, s 56
Result:
Appeal allowed, Assessor's decision reversed
Compensation assessed
Representation:
Counsel:
| Appellant | : | Mr M A Tedeschi |
| Respondent | : | No appearance |
| Amicus Curiae | : | Ms A H Sanchez-Lawson appeared on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | SJB Legal |
| Respondent | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
August v Lynch [2019] WADC 78
Bothma v Hildebrand [2019] WADC 92
Gullelo v Halloran [2008] WADC 145
Guy v Hampson [2019] WADC 19
KMA v DFS [2010] WADC 6
Lloyd v Small (1996) 16 SR (WA) 111
LS v SL [2023] WADC 8
Mangisi v Boehm [2021] WADC 76
Martin v Martin [2015] WADC 138
Nurovic v Nurovic [2019] WADC 28
Re Application of Ann-Maree Hanratty (1984) 14 A Crim R 36
Re Carter (1984) 4 SR (WA) 219
Re Coad [2023] WADC 9
Re Collard [2018] WADC 1
Re Jackamarra [2014] WADC 9
Re Robinson [2017] WADC 18
Re TLJ [2016] WADC 74
Re ZD (pseudonym initials) [2024] WADC 42
S v Neumann (1995) 14 WAR 452
Savic v Duric [2021] WADC 53
Turner v Dinsdale [2023] WADC 153
Underwood v Underwood [2018] WADC 13
CURWOOD DCJ:
Introduction and overview
The appellant (Mr Weatherill) appeals an Assessor's refusal of his application for criminal injuries compensation for injuries he suffered on 15 September 2021. Mr Weatherill's injuries occurred during a physical fight with the respondent (Mr Tiakia). After a trivial traffic dispute, Mr Tiakia followed Mr Weatherill to his home and assaulted him. Though the physical fight was one incident, it can be divided into two parts.
The first part of the incident unfolded when Mr Tiakia followed Mr Weatherill to his home. While Mr Weatherill was parking his car, Mr Tiakia got out of his own car. He walked up to Mr Weatherill's car, reached through the driver's window, grabbed his shirt and shook him, assaulting him. Mr Tiakia pleaded guilty to aggravated common assault for this part of the incident. I will refer to this as the 'proved offence' so as to be consistent with s 12 of the Criminal Injuries Compensation Act 2003 (WA) (the Act).
After the proved offence occurred, Mr Weatherill got out of his car. He picked up a piece of timber from the ground. He said that shortly after picking up the timber, he dropped it. Mr Tiakia, when he was interviewed by police, denied that Mr Weatherill dropped the timber, instead saying he had to disarm him. I return to this issue later. What is clear, however, is that a physical altercation occurred between the two men on Mr Weatherill's property, in the presence of his two young children, during which Mr Weatherill sustained a serious injury to his left knee. I will refer to the second part of the incident as the 'alleged offence' so as to be consistent with s 17 of the Act. Mr Weatherill says that he suffered physical injuries and a psychological injury consisting of post‑traumatic stress disorder (PTSD), anxiety and depression as a result of the incident.
The Assessor rejected Mr Weatherill's application on two grounds. First, the Assessor found that he did not suffer any 'injury' within the meaning of the Act by reason of the proved offence. Secondly, regarding the alleged offence, the Assessor determined that by picking up the piece of wood, Mr Weatherill was committing a separate offence under s 68 of the Criminal Code (WA) of being armed in public with a dangerous weapon in circumstances likely to cause fear. Consequently, because Mr Weatherill was committing a separate offence at the time of the alleged offence, he was disentitled to compensation under s 39 of the Act.
In my reconsideration of the matter under s 56 of the Act, including fresh evidence adduced for this appeal, I have reached a different view to the Assessor. In summary, I find that Mr Weatherill:
(a)sustained physical and psychological injuries from both the proved offence and the alleged offence;
(b)was not committing a separate offence under s 68 of the Criminal Code of being armed in public with a dangerous weapon by picking up the piece of timber; and
(c)is entitled to compensation under the Act.
For the reasons that follow, Mr Weatherill's appeal should be allowed and the Assessor's decision reversed. Mr Weatherill should recover compensation for the injuries he suffered as a consequence of both of the first and second altercations. I have assessed that compensation in the sum of $44,192, exclusive of future medical expenses.
Nature of the appeal to the District Court
Section 55 of the Act gives a right of appeal to this court against an Assessor's decision to refuse to make a compensation award. By s 56(1) of the Act:
… the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision.
The entirety of the evidence must be reconsidered independently of the Assessor's decision.[1] The appeal is to be heard de novo and it is not necessary for the court to determine an error on the part of the Assessor.[2]
[1] See, for example Re Coad [2023] WADC 9 [10], [17] (Troy DCJ). See also Guy v Hampson [2019] WADC 19 [14] (Bowden DCJ) (Guy).
[2] Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude).
Nature of hearing
In my reconsideration of the matter, I have independently reviewed the evidence, including fresh evidence adduced for this appeal, which I refer to in the next paragraphs. I have not had any regard to the merits of the decision of the Assessor and have only considered the Assessor's decision so as to give context to the submissions made by the parties in the appeal.[3]
[3] This approach is consistent with the approach of Bowden DCJ in Guy [14].
The appellant relies upon the following material in support of the appeal:
1.A book of documents which included:
(a)the appellant's criminal injuries compensation application;
(b)the appellant's police statement dated 30 September 2021 and a witness impact statement dated 13 July 2023;
(c)Western Australian Police (WAPOL) incident report, running sheet and information report;
(d)correspondences between the appellant's solicitor and the Office of Criminal Injuries Compensation;
(e)police brief which includes photographs of the injuries;
(f)medical reports;
(g)loss documentation relating to the claim; and
(h)the Assessor's reasons for dismissing the application, which are contained in a letter from the Assessor to the appellant's lawyer dated 18 December 2023.
2.An affidavit of the appellant sworn 23 October 2024, detailing certain factual matters relating to the proved offence, and the alleged offence and annexing a medical report of Dr James McCue dated 22 October 2024.
The Chief Executive Officer of the Department of Justice, as Amicus Curiae, filed and relied upon a book of documents containing various police records and a transcript of the proceedings in the Joondalup Magistrates Court on 11 February 2022 in respect of the offence which Mr Tiakia pleaded guilty to.
The documents in the appellant's book of documents and the book of documents of the Amicus Curiae were before the Assessor but the appellant's affidavit and the medical report of Dr McCue that I have identified at [10.2] above were not. I granted leave pursuant to s 56(1) of the Act for the appellant to rely upon these documents at the appeal hearing. The affidavit, which I refer to in further detail below, set out the details of what Mr Weatherill says happened during the second altercation, and provides details of his alleged psychological harm following the incident.
Mr Tiakia was served with documents with respect to the appeal but has not participated in the appeal.
Issues for determination on the appeal
The following issues arise for determination on Mr Weatherill's appeal:
1.Did Mr Weatherill suffer injury[4] as a consequence of the commission by Mr Tiakia of the proved offence, namely, the actions of Mr Tiakia in walking onto his property, reaching through Mr Weatherill's car window and shaking him?
2.Did Mr Weatherill suffer injury as a consequence of the commission by Mr Tiakia of an alleged offence within the meaning of s 17, being the physical altercation which occurred between him and Mr Tiakia when Mr Weatherill got out of his car?
3.Was Mr Weatherill committing a separate offence at the time he suffered injury by picking up the piece of timber or initiating the second altercation which led to the alleged offence such as to disentitle him from an award of compensation under s 39 of the Act. Put another way, if he was committing a separate offence does that disentitle him to any award as a victim of the alleged offence?
4.Did Mr Weatherill's behaviour, condition, attitude or disposition contribute directly to any injury that he suffered such as to engage the court's discretion to refuse or reduce the amount of compensation under s 41 of the Act?
5.Depending upon the answers to issues 1 and 2, if Mr Weatherill establishes on the balance of probabilities that Mr Tiakia assaulted him during both the proved offence and the alleged offence, should compensation be assessed based on his total injuries without separating the injury for each offence given that factually there was only a single incident?
6.Depending upon the resolution of the earlier issues, what is the appropriate amount of compensation for the injury and loss suffered by Mr Weatherill in consequence of the commission of the proved offence, and to the extent proved, the 'alleged offence'[5] and how should compensation be assessed?
[4] Within the meaning of s 3 of the Act being 'bodily harm (or) mental and nervous shock'.
[5] Within the respective meanings of s 12 and s 17 of the Act.
Before I turn to an analysis of the issues, I will set out the relevant facts.
The first altercation between the men - Mr Tiakia pleads guilty to assault - A proved offence
During the afternoon of 15 September 2021, Mr Weatherill was leaving a medical clinic in Yanchep. In the car with him were his two children then aged 8 and 10. After he pulled onto the road outside the medical clinic, a minor traffic altercation occurred with Mr Tiakia who seemingly thought Mr Weatherill had pulled onto the road when he should not have. The cars pulled up next to each other. There was a verbal altercation. Mr Weatherill stuck his finger up at Mr Tiakia. Mr Weatherill drove to his house and Mr Tiakia followed him.
When they both arrived at Mr Weatherill's house, Mr Tiakia got out of his car and walked up to Mr Weatherill's car. He was still sitting in his car with his children. Mr Tiakia reached in and grabbed Mr Weatherill by his shirt and began to pull him but let go and walked away.
Mr Tiakia made admissions to assaulting Mr Weatherill by reaching into the open window to grab him with the intention of pulling him out of the car. As a result, he was charged with common assault in circumstances of aggravation contrary to s 313(1)(a) of the Criminal Code.
The facts for the 'proved offence' presented to the Joondalup Magistrates Court by the prosecution at sentencing on 11 February 2022 were read as follows:[6]
On Wednesday 15 September 2021 at about 3:30 pm, the accused and the victim were both driving on Beachside Parade, Yanchep and were involved in a minor traffic incident. whereby one vehicle pulled out in front of the other. At the time the victim had his children aged eight and 10 in the vehicle with him. As a result, both males stopped their vehicles, and they had a verbal altercation through their open car windows.
They then continued their journeys with the accused travelling behind the victim on Beachside Parade. The victim turned right onto Firewood Vista and as he did so, he stuck his finger up at the accused. The accused followed the victim a short distance to Tinsel Street, where the victim stopped. The accused approached the victim, who was still sitting in his car. He noticed the children inside the car; however, he was frustrated and angry towards the victim. The accused reached in and grabbed the accused [sic] victim by his clothing and began to pull him.
The accused let go of the victim and walked away. On Tuesday, 19 October '21, the accused was spoken to on body-worn camera by police and stated that he intended to drive home after the verbal altercation. However, the victim stuck his finger up at him, and that was the tipping point. He states he followed the victim home, and when he saw the children in the car, he intended to walk away. However, the victim just kept going verbally at him. The accused made admissions to assaulting the victim by reaching to the open window to grab him with the intention of pulling him out of the car. Victim is 195 cm, solid build, about 85 kg. The accused is 165 cm, solid build, about 95.
[6] Amicus Curiae Book of Documents, page 23.
The facts presented to the court at sentencing represent the facts of the offence to which Mr Tiakia pleaded guilty. Specifically, counsel who was acting for Mr Tiakia, after the facts had been read out to the court, said that those facts were accepted as read.[7]
[7] Amicus Curiae Book of Documents, pages 23 ‑ 24.
In LS v SL,[8] Sweeney DCJ stated:
If witness statements in the prosecution brief contain versions of the facts which differ from the facts presented to the court at sentencing, then the facts presented to the court and made the subject of findings by the sentencing judge represent the facts of the matter, not the witness statement or what may be inferred from them. If additional facts need to be decided for the purposes of the compensation application, then it is appropriate and not improper to make such findings as may be necessary to decide the issues at hand, provided any additional findings do not contradict or undermine the facts found at sentencing, which fall within the principle of res judicata.
[8] LS v SL [2023] WADC 8 [42].
The facts read to the court during sentencing make no reference to the appellant having suffered any injury in the assault. However, as noted from Sweeney DCJ's comments in LS v SL it is appropriate and not improper to make such findings as may be necessary to decide the issues at hand provided any additional findings do not contradict or undermine the facts found at sentencing. One issue which may also be noted from the facts read to the court for sentencing is that Mr Tiakia 'let go of the victim and walked away'.
The statement of facts read to the court during sentencing did not make any mention of a subsequent escalation or continuation of a fight or incident between the two men. However, the WAPOL statement of material facts dated 25 October 2021 includes the following fact which was not read at sentencing for the assault: 'The victim got out of the car and they had another verbal altercation resulting in them both grabbing each other'. I now turn to that issue in the next paragraphs.
The second altercation - Alleged offence whereby Mr Weatherill alleges Mr Tiakia assaults him - What the men each told police and the materials before the Assessor
An entry in the WAPOL running sheet on 15 September 2021 at 15:44:18 records:[9]
Neighbour Jarryd Weatherill [sic] (50) has been assaulted outside AA by a random who pulled up in a white utility ... Jarryd may have dislocated ankle and can't put weight on it ... Caller heard disturbance in garage.
…
[9] Amicus Curiae Book of Documents, page 7.
A further entry on 15 September 2021 at 16:44:18 records:[10]
… Spoke to caller[11] who stated was at beachside medical centre with kids in car when pulled out of parking. Car has come speeding up as he did. Both shouted at each other. Car has followed him to his house. When he has stopped a Maori looking male has pulled him out of car and started abusing him. Caller grabbed piece of wood from his garage and walked towards male. Male rugby tackled him to the ground causing him to twist his knee. Then left in car - possible rego ... Caller taken to hospital ...
[10] Amicus Curiae Book of Documents, page 8.
[11] I infer from the contents of the entry that the caller police are referring to was Mr Weatherill.
Another entry on 17 September 2021 at 08:23:20 records:
… Clr adv he was assaulted from a road rage incident that was reported to police. Clr is wanting to make a statement however is unable to attend the local police stn due to [injury]. Clr is requesting police attend his home address to obtain a statement ...
On 21 September 2021, Mr Weatherill sent an email to the Yanchep Police Station. The email was part of a complaint he had made to police over the incident. In that email, Mr Weatherill states, in part, that:[12]
As I got to my turn of [sic] at firewood he had been right behind me all the way ..and as he made to carry on I saw his break [sic] lights he reversed an came after us ..I turned into buno lane which is the rear of my property.. and he's came speeding after us ..my kids are know [sic] screaming daddy he's coming after us I turned to try calm them.. as I did the guy grabbed me through the open window by the shirt and throat…literally ripped my shirt off me.. I'm trying to defend myself… All I can hear is my kids … Never heard them scream like it… By now the do [sic] is going Insane and I'm on total defensive.. I pushed car door open and as the garage door was open grabbed the first thing a lump of timber to back him off as I'm still in some pain in my back..
I moved up on him lowered the wood as thought better of it… to use it.. but got into a struggle both grabbed each other and at this point I was overpowered he got me down and in the process I ... felt my knee crack…also landed on my hip … I shouted at the guy a couple of time you broke my knee .. he bent over me he had picked up the timber.. but he just said 'good' thankfully he didn't carry on And he jumped in his car sped off…
[12] Amicus Curiae Book of Documents, page 20 also refers to grabbing a lump of timber.
Mr Weatherill also signed a police statement on 30 September 2021. In that statement he said that:[13]
[13] Appellant's Book of Documents, pars 13 - 20, pages 18 - 19.
13I pulled up outside my garage and as I was undoing my seatbelt the male [Mr Tiakia] who had gotten out of his car leaned in and grabbed hold of me and tried pulling me out of the car.
14I managed to get out of the car and I noticed a length of wood on the floor which I picked up to defend myself with.
15I thought better about the wood as I didn't want to hit him with it so I threw it down on the floor.
16We both grabbed hold of each other and scuffled for a couple of minutes pulling and pushing each other.
17At some point the male [Mr Tiakia] turned me and I felt my left knee 'Crack' and I fell to the ground ... .
18The male [Mr Tiakia] picked up the wood that I had dropped and stood over me, threatening me with it still shouting and swearing at me.
19I shouted ... 'You've broken my leg' to which he replied 'Good'.
20The male [Mr Tiakia] then got into his car and drove off at speed.
On 19 October 2021 police visited the home of Mr Tiakia and spoke to him about the incident. The conversation police held with Mr Tiakia was recorded on a body worn camera of one of the officers who visited his home. That body worn camera footage was played in court at the hearing of the appeal. Mr Tiakia said in the body worn camera footage:
He approached … [Weatherill's] car with the intention of confronting him however he saw children in the car so began to walk away. [Weatherill] yelled further abuse at him so he turned around, reached in through the open car window and grabbed … [Weatherill] by his t-shirt. … [Weatherill] opened the back door and a dog comes out which prompted him to let go and leave towards his car. … [Weatherill] got out of the car and put his fists up to fight. He … [Tiakia] did not fight him. … [Weatherill] then picked up a length of 2 x 4, held it over his [Weatherill's] shoulder and charged towards him [Tiakia]. In self‑defence he [Tiakia] grabbed the wood and simultaneously pushed him to the ground. He then took the wood off … [Weatherill] and threw it to the ground. … [Weatherill] then pleaded as he claimed to have twisted his knee. He [Tiakia] left the scene.
In his affidavit sworn 23 October 2024 Mr Weatherill refutes what Mr Tiakia says in the body worn camera footage:[14]
I did not come out of the garage running toward the offender with a piece of wood over my shoulder in a threatening way. The respondent did not grab the wood from me and throw it on the ground and walk back to his vehicle.
…
I also refer to the incident report in the book of documents before the Assessor (page 5) where it is alleged that I grabbed a piece of wood from my garage and approached the Respondent, who looked Maori. The Respondent then rugby tackled me to the ground and as I went down, I twisted my knee. That is not a true account of what happened. I never grabbed a piece of wood from my garage and did not approach the Respondent in the manner described. I was never rugby tackled to the ground.
(emphasis added)
[14] I have construed this statement as being although he grabbed a piece of wood, it was not from the garage.
Mr Weatherill consulted various medical professionals after September 2021. He gave versions of the incident to the doctors which were recorded in medical reports, relevantly:
1.A medical report of Dr Tao Shan Lim dated 24 November 2022 reports that: the '[Appellant's] knee was twisted as the assailant wrestled with him';[15]
2.Dr McCue reported in relation to the part of the incident occurring outside of the vehicle that:[16]
… [the Appellant's] account then differs somewhat from the SoMF. He explained that he opened his car door to leave the vehicle and … suggested that the assault was still occurring as he was exiting the vehicle. I further note that his description is consistent with his Statement to Police dated 30/09/2021.
Mr Weatherill reported that as he exited his car, he said that he noticed a lump of wood on the ground. He stated 'I reached for the lump of wood. I dropped it. I knew I shouldn't do anything stupid'. He explained that at this point in the altercation, 'We both had hold of each other, wrestling. He spun me around with his weight on me, broke my knee. I screamed …'.
[15] Appellant's Book of Documents, pages 24 - 25, report of Dr Tao Shan Lim.
[16] Annexure JCW-1 to the appellant's affidavit, Dr McCue's report dated 18 October 2024, pars 24 - 25.
On 21 October 2021 WAPOL recorded that, in completing its investigation and determining not to charge any person with an offence, Mr Weatherill armed himself with a piece of wood. Mr Tiakia tackled him to disarm and leave the scene. Mr Weatherill was not charged with arming himself at that stage, however, was aware this may occur.
Mr Weatherill's injuries
Mr Weatherill said that, as a result of the first altercation, he suffered scratching and bruising to his shoulder from Mr Tiakia reaching through the car and grabbing him by the shirt. He also contended that as a consequence of the first altercation he also suffered psychiatric injury. I return to this issue later in my reasons.
Dealing first with the shoulder injury, the evidence before me is:
(a)an email sent by the appellant to the Yanchep Police Station on 21 September 2021, when the appellant identified scratches to his neck or shoulder;
(b)the appellant's statement to the police where he referred to attending Joondalup Health Campus where it was confirmed he had bruising to his back and scratches to his neck; and
(c)a photograph taken at Joondalup Health Campus of the injury, which was not provided to the Assessor.
Despite there being no medical evidence that the appellant sustained scratching and bruising to his neck, I am satisfied on the balance of probabilities that the appellant suffered this injury. It is clear from the photograph provided that there was damage sustained to the side of Mr Weatherill's neck. Consistent with the facts of the proved offence I am satisfied that as a result of the offence, Mr Weatherill suffered an injury in the form of bruising to his upper left chest and shoulder. I also find that he fully recovered from those physical injuries.
With respect to the second altercation, or the alleged offence, Mr Weatherill suffered an injury to his left knee being an anterior cruciate ligament tear and associated condition. I deal with the medical evidence produced by Mr Weatherill later in my reasons. He also claims, and I ultimately find, that he suffered psychological injury which would satisfy the definition of mental and nervous shock in s 3 of the Act. I discuss these issues later in my reasons.
Issue 1 - Did Mr Weatherill suffer any injury as a consequence of the first altercation being the proved offence?
Before making an award under s 12 of the Act the court must be satisfied that:
(a)the proved offence occurred;
(b)the claimed injury and any claimed loss has occurred; and
(c)the claimed injury and loss occurred as a consequence of a proved offence.
Section 3 of the Act defines a proved offence as:
A crime, misdemeanour or simple offence of which a person has been convicted.
The appellant was convicted by his own plea of guilty of the offence of common assault, which is a crime.
For the reasons set out in [33] - [35] I find that Mr Weatherill suffered injury being bodily harm as a consequence of the proved offence.
For the reasons set out in [38] - [40], and based upon the description of the facts I have given, I am satisfied that a proved offence has occurred.
Issue 2 - Did an 'alleged offence', being the second altercation, within the meaning of the Criminal Injuries Compensation Act, occur in which the appellant suffered injury?
The resolution of this issue involves a consideration of the following sub‑issues:
(a)the meaning of 'alleged offence' under the Act;
(b)in the context of the factual circumstances of this case whether Mr Tiakia assaulted Mr Weatherill and, whether as a consequence of such assault, Mr Weatherill suffered bodily injury; and
(c)whether at the time of committing any alleged offence Mr Tiakia had any reasonable excuse for engaging in a fight and assaulting Mr Weatherill.
Notwithstanding that no person has been convicted of an offence relating to the second altercation, criminal injuries compensation is capable of being awarded if certain conditions are met. Section 3 of the Act defines 'alleged offence' to mean a crime, misdemeanour or simple offence of which no person has been convicted.
The court must be satisfied that an alleged offence occurred in the manner described by Mr Weatherill and it must be more probable than not that the alleged offending occurred.[17]
[17] Re TLJ [2016] WADC 74 [51] (Goetze DCJ).
An applicant in a criminal injuries compensation application must satisfy the court to the civil standard of proof on the balance of probabilities that a specific act was committed against him or her which would qualify as a crime, misdemeanour or simple offence if the perpetrator had been convicted. Further, with respect to an assault, that each of the elements of the defence of self-defence have been negated on the civil standard.[18]
[18] Re Jackamarra [2014] WADC 9 [13] (Schoombee DCJ); Re Robinson [2017] WADC 18 [17] (Troy DCJ). See also Re Application of Ann-Maree Hanratty (1984) 14 A Crim R 36; Re Carter (1984) 4 SR (WA) 219.
In the present case, Mr Tiakia, despite being served, has not entered an appearance in these proceedings and has not been heard as to his version of the altercation or the surrounding circumstances.
It is a serious matter to make findings that an alleged offender has committed an act in the nature of an offence, particularly when they are not given the opportunity to refute the allegations. As noted, the court must feel an actual persuasion that the offence occurred. A conclusion as to the occurrence of an offence should not be reached without the exercise of caution and unless the evidence survives careful scrutiny and appears precise and not loose and inexact. To discharge the burden, the evidence adduced by Mr Weatherill must do more than give rise to conflicting inferences of equal degree as a probability so that the choice between them is a mere matter of conjecture.[19] An applicant is also required to negate any defences reasonably opened on the evidence.[20]
[19] Martin v Martin [2015] WADC 138 [30] (Derrick DCJ) citing Lloyd v Small (1996) 16 SR (WA) 111 [113] ‑ [114].
[20] Re Robinson [22].
However, notwithstanding the need for caution, an applicant's claim does not necessarily need to be corroborated. The relevant question is whether the court is satisfied, in this case, that Mr Weatherill has proven his claim with respect to the alleged offence on the balance of probabilities, having regard to the seriousness of the allegation and in light of the apparent credibility, accuracy and reliability of his evidence. This satisfaction must be achieved on a review of all of the evidence and information available.[21]
[21] Re TLJ [52] - [57].
In the context of the events in dispute, Mr Weatherill in his affidavit refuted what Mr Tiakia said to police in the body worn camera interview. As I have noted, in that interview, Mr Tiakia alleges that Mr Weatherill picked up a length of 2 x 4 timber, held it over his shoulder and charged towards him. Counsel for Mr Weatherill highlighted the point that it was Mr Tiakia who was being the aggressor, who followed Mr Weatherill back to his house and once he was there, it was Mr Tiakia who got out of his car and assaulted Mr Weatherill.
As the matter was argued at the appeal hearing, Mr Weatherill's counsel made clear that what Mr Weatherill was saying in his affidavit was to refute Mr Tiakia's version of what was said to police in the body worn camera interview.
Mr Weatherill argued at the hearing of the appeal that:
1.It is unrealistic to divide what was in effect a single incident into separate and discrete stages and to apply the relevant parts of the Act to those discrete parts. In doing so, there is the risk of disregarding the overriding facts that:
(a)Mr Tiakia followed (or seemingly chased) Mr Weatherill to his home, got out of his car and physically assaulted Mr Weatherill while he was sitting in his car.
(b)Mr Weatherill had with him in his car his two young children and those children were distressed by the events going on.
(c)It was reasonable and understandable for a person in Mr Weatherill's position to get out of his car and pick up a piece of wood to protect himself and his children and to get Mr Tiakia to leave his property;
(d)Mr Tiakia was at all times a trespasser on Mr Weatherill's property, and he was entitled to use reasonable force to get him to leave.
(e)On the totality of the evidence, Mr Tiakia was the aggressor.
(f)In sentencing Mr Tiakia, the magistrate said that he 'overreacted' to being given the finger by Mr Weatherill.
(g)On Mr Weatherill's version, he and Mr Tiakia had grabbed one another whilst near Mr Weatherill's car, which was on his property, and during that grabbing, Mr Tiakia twisted Mr Weatherill causing his knee injury;
(h)WAPOL records disclose that when police first spoke to Mr Tiakia, as recorded in the body worn camera footage, Mr Tiakia intended to drive home after the verbal altercation. However, Mr Weatherill sticking his finger up at him was the 'tipping point', that he followed Mr Weatherill to his house and when he saw the children in the car he intended to walk away but Mr Weatherill kept 'going at him' verbally. Further in the statement he made to the police, Mr Tiakia said that he rugby tackled Mr Weatherill to the ground.[22]
(i)Based on the WAPOL records, Mr Tiakia was reluctant to provide a statement to police and, when taken together, the appellant says that Mr Tiakia's version is unreliable and improbable if not implausible.
[22] Amicus Curiae Book of Documents, page 5.
Mr Weatherill contends that the alleged offence was him being assaulted by Mr Tiakia and, in the course of that assault, him suffering bodily harm such that the alleged offence is an assault contrary to s 317(1) of the Criminal Code.
For the purposes of this appeal, to prove the alleged offence of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code, Mr Weatherill is required to prove on the balance of probabilities that Mr Tiakia unlawfully assaulted him and thereby caused him 'bodily harm'.
The Assessor ultimately made a finding on the materials before her that there was conflicting evidence as to whether Mr Weatherill threw the wood onto the ground or whether Mr Tiakia grabbed the wood from Mr Weatherill and threw it on the ground. Notwithstanding, the Assessor said she was satisfied that Mr Weatherill was in possession of a length of wood. Further, she was satisfied that Mr Weatherill held the piece of wood in circumstances that were likely to cause fear and therefore committed a criminal offence under s 68 of the Criminal Code and thereby was not entitled to compensation by virtue of s 39 of the Act.
The Assessor also considered that Mr Weatherill's behaviour in picking up the piece of wood contributed directly to his injury and that it was just to refuse to make a compensation award because of that contribution by virtue of s 41 of the Act.
During the appeal hearing the appellant and Amicus Curiae made detailed submissions on s 248 (self-defence), s 244 (use of force to prevent home invasion) and s 254 of the Criminal Code, which provides that:
254Place, use of force to prevent entry to and remove people from
(2)It is lawful for a person … who is in peaceable possession of any place, or who is entitled to the control or management of any place, to use such force as is reasonably necessary -
(a)to prevent a person from wrongfully entering the place; or
(b)to remove a person who wrongfully remains on or in the place; or
(c)to remove a person behaving in a disorderly manner on or in the place;
provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the person.
At the appeal hearing and in the written submissions of the Chief Executive Officer as Amicus Curiae, reference was made to the case of Turner v Dinsdale,[23] which considered the operation of s 244 and s 254 in similar circumstances to this case. In Turner, the appellant was refused compensation pursuant to s 39 of the Act because the Assessor considered that he had committed a separate offence under s 68 of the Criminal Code by arming himself with a baseball bat. As the decision in Turner is very similar to this case, I will set out the facts as found by Miocevich DCJ in some detail. In Turner, the respondent had turned up to the appellant's house to confront one of the occupants of the house and had been outside behaving in a loud and aggressive manner for about 10 minutes. The appellant armed himself with a baseball bat. The respondent had also aggressively approached the occupant of a car that had arrived in the driveway and ultimately the respondent shot the appellant in the leg.
[23] Turner v Dinsdale [2023] WADC 153 (Miocevich DCJ) (Turner).
In Turner, the respondent had remained on the roadway and was not inside the appellant's dwelling at the time that the appellant armed himself with a baseball bat. Relevantly, Miocevich DCJ held that the actions of the respondent in going towards the appellant's car in the driveway would constitute him wrongfully entering an associated place.[24]
[24] Turner [55].
In Turner, Miocevich DCJ relevantly held, in summary, that:
1.The appellant was not precluded from compensation, as the offence of arming himself with the baseball bat was authorised under s 244 or s 254.
2.The appellant arming himself with a baseball bat and approaching the respondent, in the circumstances of the case, was a threat to use force and no force was actually used. However, Miocevich DCJ considered that a threatened application of force constitutes a use of force under s 254.
3.His Honour observed that under s 244, there is no requirement that the arming of oneself be reasonable, just that the occupant believes, on reasonable grounds, that arming themselves is reasonable.
4.His Honour also noted that s 244 and s 254 both provide 'lawful authority' as opposed to only a 'lawful purpose or excuse', meaning both sections constitute a defence to a charge under s 68 of the Criminal Code.
5.His Honour concluded in Turner the appellant arming himself was reasonably necessary having regard to the evidence including the respondent's loud and aggressive manner and was necessary to prevent the respondent from entering the property, or to cause him to leave the property.
I respectfully agree with Miocevich DCJ 's reasoning in Turner.
At the hearing of the present appeal, Mr Weatherill's counsel submitted that s 254 and s 255 excused any action of Mr Weatherill picking up the piece of wood and made his actions lawful such that he would not have been convicted, in all the circumstances, for any offence under s 68 of the Criminal Code. Counsel also highlighted that Mr Tiakia was a trespasser, no consent was given to him entering the property and that broader scope for the use of force is given by s 244 of the Criminal Code, in that the defender of a dwelling can use whatever degree of force is believed on reasonable grounds to be necessary. Further, even on the findings made by the Assessor as to the conduct of Mr Weatherill, based upon the untested body worn camera statements of Mr Tiakia, it was lawful for the appellant to use such force as was reasonably necessary in order to defend his possession of the place at which he lived with his children. Further, there is no suggestion that Mr Weatherill caused any 'bodily harm' to Mr Tiakia. I accept the submissions of Mr Weatherill's counsel on this issue.
In all of the circumstances, I find that it was reasonable for Mr Weatherill to arm himself with a piece of wood, in the context that Mr Tiakia had already assaulted Mr Weatherill on his property (while he was in his car) in front of his children, and that a use of force was reasonably necessary to get Mr Tiakia to leave his property. Although the sentencing facts refer to 'the accused let go of the victim and walked away', I consider that that form of words is ambiguous and does not, of itself, mean that Mr Tiakia was leaving Mr Weatherill's property.
Further, the statement Mr Tiakia made to police which was captured on body worn camera is inconsistent in my opinion because:
(a)he said his intention was to confront Mr Weatherill; and
(b)that he walked away when he saw the children in the car; yet
(c)returned to assault Mr Weatherill after Mr Weatherill yelled further abuse at him.
Oddly, his statement says that Mr Weatherill opened the back door (presumably of the car) and a dog came out, which caused him to leave towards his car. On Mr Tiakia's version, Mr Weatherill then gets out of his car and Mr Tiakia put his fists up to fight but he did not fight him. Mr Tiakia's version is not consistent with him taking an uninterrupted path to leaving the property on which he was a trespasser.
As I have already noted, the comments in the statement of facts read to the court that Mr Tiakia 'let go of the victim and walked away', are equivocal and do not provide any insight as to how far Mr Tiakia walked away from the car or in what context. The facts as read by the prosecutor at the sentencing hearing do not, in my opinion, preclude further findings being made of what happened next.
Mr Weatherill accepts that he grabbed or picked up a piece of wood from the garage. He also says he threw it down to the floor and thought better of it and then the grappling commenced.
The overall context of those statements is important and I accept the appellant's submissions that, on a full consideration of the facts, it was Mr Tiakia who followed Mr Weatherill to Mr Weatherill's property and was on Mr Weatherill's property when he initiated the assault. Mr Tiakia's reaction to the events was a complete overreaction.
I also place weight on the fact that, for the purposes of this appeal, Mr Weatherill has sworn an affidavit refuting Mr Tiakia's version of events by stating that he did not approach Mr Tiakia in the manner described in the body worn camera footage, namely with the timber over his shoulder, nor was he rugby tackled to the ground.
For the purposes of being persuaded of the events, I accept the version put before the court on behalf of Mr Weatherill. Mr Tiakia was the aggressor, he followed Mr Weatherill onto the property, he got out of his car and he assaulted Mr Weatherill in front of his children. This was one incident and, in my view, cannot be conveniently divided into subsets. What appears clear is that when Mr Weatherill got out of his car, he picked up a piece of wood. However, I find that he put the wood down and a scuffle ensued in the way he described. This was a scuffle which followed on from the earlier assault.
On the balance of probabilities, I find that the physical contact was initiated by Mr Tiakia. Mr Weatherill was acting within his rights to take steps to cause Mr Tiakia to leave his property. Mr Tiakia was seemingly not leaving the property at the time of the scuffle and what occurred was, in my opinion, not a mutual assault. There does not seem to be a basis to conclude that Mr Tiakia was acting in self‑defence, in light of my finding on the balance of probabilities that Mr Weatherill dropped the piece of timber and in the context that Mr Weatherill had lawful authority to use such force as was reasonably necessary to remove Mr Tiakia, who wrongfully remained on his property.
In Turner, Miocevich DCJ relevantly stated the use of s 248 of the Criminal Code as a defence to a charge under s 68 of the Criminal Code was problematic because self‑defence is only a defence to a harmful act committed by an accused.[25] Importantly, a harmful act is not an element of the offence of going armed in public. Mr Tiakia could not have relied upon the defence of self‑defence.
[25] Turner [60].
As I have noted Mr Weatherill suffered physical injury (to his left knee) and, as I will turn, to psychological injury as a consequence of the alleged offence.
For all these reasons I consider that Mr Weatherill has made out his allegation of an offence of assault, which for the reasons I will now turn to, resulted in him receiving injury. Accordingly, I resolve issue 2 on the basis that Mr Weatherill suffered injury as a consequence of the commission by Mr Tiakia of an alleged offence within the meaning of s 17 of the Act.
Did the claimed injury and any claimed loss occur and, if so, did the claimed injury and loss occur as a consequence of the proved offence and the alleged offence?
For the reasons I have given, I find Mr Weatherill has made out his allegation of an assault by Mr Tiakia, which occasioned bodily harm contrary to s 317(1) of the Criminal Code. For the reasons I now turn to, I find this assault resulted in Mr Weatherill receiving injury and loss.
In light of my findings that Mr Weatherill is eligible to seek compensation for both the proved offence and the alleged offence, the exact distinction of what injury occurred as a consequence of each offence is, given my ultimate view on the quantum of compensation, of reduced importance. Nevertheless, I will identify the physical injuries sustained by each. 'Injury' is defined in s 3 of the Act as 'bodily harm, mental and nervous shock, or pregnancy'.
In [33] - [35] above I have set out the physical injuries Mr Weatherill sustained as a consequence of the proved offence.
With respect to the injury Mr Weatherill suffered as a result of the alleged offence, the evidence of that physical injury being amongst other matters an injury to his left knee, includes:
(a)a medical report dated 24 November 2022 from Mr Tao Shan Lim, which details Mr Lim's diagnosis of the injury to Mr Weatherill's left knee as an anterior cruciate ligament tear, a medial meniscus tear and patellofemoral chondropathy;[26]
(b)a number of medical notes pertaining to Mr Weatherill's attendance at the Joondalup Orthopaedic Group with Mr Lim, which comprised telehealth and in-person consultations between 22 December 2021 and 24 November 2023;
(c)consultation notes with Mr Weatherill's GP, Dr Guan Teck Lim, which indicate that Mr Weatherill commenced taking apixaban (an anticoagulant medication) to treat deep vein thrombosis;[27] and
(d)photographs showing Mr Weatherill's left knee in a leg brace.
[26] Appellant's Book of Documents, par 2, page 35.
[27] Appellant's Book of Documents, pages 37 - 44.
As I have already noted, Mr Weatherill claimed he suffered a significant injury to his left knee as a consequence of the alleged offence, as well as a psychological injury. It is also submitted, and I do accept, that from the assault comprising the alleged offence Mr Weatherill suffered bruising to his left torso and hip, which is evidenced by photographs of bruising as reflected in his witness impact statement.[28]
[28] Appellant's Book of Documents, pages 22, 47.
The appellant seemingly does not make any claim in respect of deep vein thrombosis in the statement attached to the compensation application. However, there is evidence of him suffering deep vein thrombosis before the court.
Mr Weatherill also claims psychological injury arising from the broader incident, which includes the alleged offence.
Taking into account all of the evidence, I am satisfied that the knee injury and the bruising to the left torso and hip were caused by the assault comprising the alleged offence.
As to causation of Mr Weatherill's deep vein thrombosis, Dr Guan Teck Lim noted in his consultation notes that the deep vein thrombosis was 'likely provoked from immobility' (following the incident).[29] The appellant also said in his witness impact statement on 13 July 2023 that he 'did not have DVT before I was assaulted'.[30]
[29] Appellant's Book of Documents, page 37.
[30] Appellant's Book of Documents, page 48.
Applying the 'but-for' test I find based upon Dr Lim's opinion that the second assault was a 'but-for' cause of Mr Weatherill's deep vein thrombosis, such as to satisfy the necessary causal connection.
Mental and nervous shock
The definition of 'injury' in the Act includes 'mental and nervous shock'. This phrase contemplates the impact of the offence on the mind or nervous system. There is 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'.[31] In Underwood v Underwood,[32] Gething DCJ gave an example that mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress and disgust are seen as compensable.[33]
[31] S v Neumann (1995) 14 WAR 452, 461.
[32] Underwood v Underwood [2018] WADC 13 (Underwood).
[33] See Underwood [83].
Mr Weatherill alleges as a result of the incident comprising the proved offence and the alleged offence, he suffered an adverse psychiatric reaction comprising of nervous shock. The evidence I have before me in regard to this injury is as follows:
1.The witness impact statement which relevantly provides:
Because of the assault upon me I suffered injury comprising physical and psychological injury as follows -
…
(iv)Psychological injury anxiety and depression;
…
I have been suffering from mental health issues after the assault and have seen my general practitioner regarding anxiety depression and trouble concentrating. o. (sic) I continue to suffer from mental health issues of anxiety and depression. I have been prescribed Fluoxetine which I continue to use.
…
I continue to see my general practitioner to monitor my mental health get prescriptions and to obtain a mental health plan and referral to a clinical psychologist.
2.The following consultation notes by the appellant's general practitioner referring to the alleged nervous shock:
(i)of 28 May 2022, the appellant noted 'anxiety' and 'wants to get onto fluoxetine';[34]
(ii)of 26 November 2022, the appellant 'has increasing anxiety, now post‑traumatic stress disorder (PTSD), compensation noted, will refer to psychiatrist as recommended';[35]
(iii)of 27 May 2023, 'worsening anxiety recently, already self‑increased Fluoxetine to 1.5 tablets daily. Still has some stress from previous assault. Has a psych review organised by lawyer. Hasn't been able to attend. Keen on increasing SSRI. Fluoxetine was increased to 40mg, and his general practitioner discussed him seeing a psychologist and [the appellant] was not quite keen yet. Will review again if needed, suggest maybe can rotate SSRI if not responding to 40mg'.[36]
3.Psychologist report of Dr James McCue dated 18 October 2024, which I will now turn to.
Report of Dr James McCue
[34] Appellant's Book of Documents, page 42.
[35] Appellant's Book of Documents, page 43.
[36] Appellant's Book of Documents, page 45.
Mr Weatherill alleges that as a consequence of the proved offence and the alleged offence he suffered an enduring adverse psychiatric reaction and condition comprising nervous shock, in that he suffered PTSD, anxiety and depression. Dr James McCue is a clinical and forensic psychologist. His report, which was attached to Mr Weatherill's affidavit makes the following observations of Mr Weatherill:
1.With the exception of some periods of anxiety as an adult Mr Weatherill was psychologically healthy and a resilient individual prior to the assault on him.
2.As of October 2024, being some three years after the incident he continues to experience symptoms of PTSD. Immediately following the assault he met the specific criteria of PTSD namely experiencing a traumatic event, intrusive distressing memories and nightmares relating to the assault; avoidance behaviours, including thoughts of assault and avoiding driving near the location where the altercation commenced; negative changes in his cognitions including feelings of guilt and marked alterations in his arousal including hypervigilance and sleep disturbance.
3.He continues to experience some symptoms of PTSD as at October 2024 although the number and severity of his symptoms appears to have lessened with time.
4.The psychological injuries had a limited negative effect on his occupational functioning.
5.The most significant psychological impact of Mr Weatherill's victimisation and subsequent PTSD had been ongoing anxiety over his capacity to protect his children as a result of the assault. The psychologist in his report noted that was a common reaction to trauma, whereby people feel that the world is an unsafe and unpredictable place. Further that Mr Weatherill, who perceived himself to be a stoic and resilient individual, had lost confidence in his ability to protect his children due to him being assaulted in his vehicle and in full view of his children.
As an aside, Dr McCue also said that in his opinion, Mr Weatherill would benefit from psychological treatment to address his unresolved PTSD symptoms, anxiety and symptoms of depression, and would require 12 x 1‑hour sessions with a psychologist, with the current rate for sessions with a psychologist recommended by the Australian Psychological Society is $311 per 50/60-minute session.
An applicant must establish a causal relationship between the commission of the relevant offence and the injury or loss for which compensation is sought. It is not necessary for the applicant, in this case the appellant, to establish that the offence was the sole cause of injury or loss. Rather, it is sufficient to establish that the offence materially contributed to any injury or loss.
If the evidence establishes that a non-compensable event contributed to the appellant's injury or loss, the award of compensation must be reduced to take account of that contribution.
In the present case, I am satisfied that the psychological symptoms described by Dr McCue as PTSD constitute mental and nervous shock within the meaning of the Act.[37] What Mr Weatherill experienced is not a mere emotional reaction but something of a more enduring character, which impacts his mind or the nervous system and is properly described as an injury.
[37] See for example Underwood [84].
The report of Dr McCue made some reference to Mr Weatherill suffering a contribution to his elevated anxiety and depressive symptoms, being the perception that he may no longer be as physically robust and experience some anxiety regarding the longevity of his career due to it being physically demanding. That anxiety, according to the report, is said to be based around a perception of the weakness in his knee[38]. However, reading the report as a whole, the predominant psychological impact arises from the Mr Weatherill's PTSD arising from being followed by the offender, being the respondent, and assaulted in front of his children, then aged 8 and 10 years of age. Further associated with the offence's psychological impact was a loss of confidence in his ability to protect his children due to him being assaulted in his own vehicle in view of them.
[38] Annexure JCW-1 to the appellant's affidavit, Dr McCue's Report, page 12.
I am satisfied on the balance of probabilities that the psychiatric injury being described as PTSD is of a sufficiently enduring character to amount to mental and nervous shock for the purposes of the definition of 'injury' in the Act. Further, I am satisfied on the balance of probabilities that the injuries I have described and the sequalae I have set out occurred 'as a consequence of the commission of an offence', being a proved offence.
Issue 3 - Was Mr Weatherill committing a separate offence at the time that he suffered injury?
Section 39 of the Act precludes an award of compensation where the applicant is committing a separate offence at the time that he or she was injured as a consequence of the commission of an offence which caused injury.
For the reasons I have set out at [42] - [70] above, I find that Mr Weatherill was not committing a separate offence at the time he suffered injury and I find it was lawful for him to arm himself with a piece of timber in all the circumstances. I do not consider Mr Tiakia's version to be credible in the overall context of the incident. I find on the balance of probabilities that Mr Weatherill initially armed himself with a piece of wood and then threw it to the ground. He did not brandish it as a weapon or threaten Mr Tiakia with it.
I find Mr Weatherill was not an aggressor and was permitted by law to take steps or use such force as was reasonably necessary to cause Mr Tiakia, who was wrongfully on his property, to leave his property, provided the force used was not intended or likely to cause death or grievous bodily harm.[39] Similar observations apply to s 244 where an occupant in peaceful possession of a dwelling may use any force or do anything else that the occupant believes, on reasonable grounds to be necessary, to prevent a home invader from committing an offence or make a home invader stop committing an offence in the dwelling or in an associated place. An associated place would include in this case Mr Weatherill's driveway.[40]
[39] Criminal Code, s 254.
[40] Criminal Code, s 244(6).
I accept the version of events of Mr Weatherill as being probable and find on the balance of probabilities that, taking into account a coherence of his version of events with respect to the wood, and his sworn statement for the purposes of this appeal, that he picked up a piece of timber but dropped it. Further, the version put forward by Mr Tiakia to police is not credible.
I am not satisfied on the balance of probabilities that Mr Weatherill was committing an offence being a separate offence within the meaning of s 39 of the Act to disentitle him from compensation.
Issue 4 - Did Mr Weatherill's behaviour, condition, attitude or disposition contribute directly to any injury that he suffered such as to engage the court's discretion to refuse or reduce the amount of compensation under s 41 of the Criminal Injuries Compensation Act?
For the same reasons I have set out in issue 3, I do not consider that Mr Weatherill's behaviour, condition, attitude or disposition was such as to contribute directly to the injuries he suffered so as to engage the court's discretion to refuse or reduce the amount of compensation under s 41 of the Act.
Issue 5 - Is it necessary to differentiate the injury suffered by Mr Weatherill as a consequence of the proved offence and the alleged offence in order to assess compensation?
I do not consider it is necessary to differentiate between the two offences for the injuries suffered.
In the event that I am wrong in this approach, I find that the physical injuries sustained by Mr Weatherill as a consequence of:
1.The proved offence are those set out in [33] - [35].
2.The alleged offence are those set out in [76] - [82], [84] - [91].
I find that the psychological injury occurred as a consequence both of the proved offence and the alleged offence, but, more significantly by the initial assault by Mr Tiakia of Mr Weatherill in front of his children and the events of Mr Tiakia following Mr Weatherill to his home.
For the purposes of assessment as I will turn to, I propose to assess the level of compensation for the totality of injuries that Mr Weatherill suffered as a consequence of the proved offence and the alleged offence.
Issue 6 - What is an appropriate award of compensation for the injury suffered by Mr Weatherill?
As the proved offence occurred on 21 September 2021, the maximum amount of compensation payable is $75,000. This is the maximum amount prescribed by s 31(1) of the Act as a jurisdictional limit. It is not reserved for the worst cases.
Assessing an amount of compensation under the Act involves applying the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act and the jurisdictional limit of the Act.
Section 12 of the Act provides that compensation is payable for injury suffered in the commission of an offence.
The general power of an assessor is contained in s 30(1) of the Act which provides that:
On a compensation application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered.
The amount of damages for non-economic loss must be fair and reasonable compensation for the injuries received by the appellant and the disabilities caused, having regard to current general ideas of fairness and moderation. The amount must be proportionate to the particular situation of the respondent.[41]
[41] See, for example, Savic v Duric [2021] WADC 53 [48] - [52] (Gething DCJ).
The assessment of damages for non-pecuniary loss is a discretionary exercise but does not occur in a vacuum. Other cases and decisions of this court are relevant but differ in circumstances. Previous decisions provide limited guidance, but do not serve to inform the court's assessment. I have considered cases which involve residual symptoms of PTSD including Underwood, Nurovic v Nurovic, August v Lynch, Bothma v Hildebrand, Re Collard, Mangisi v Boehm and Re ZD (pseudonym initials).[42]
[42] Nurovic v Nurovic [2019] WADC 28; August v Lynch [2019] WADC 78; Bothma v Hildebrand [2019] WADC 92; Re Collard [2018] WADC 1; Mangisi v Boehm [2021] WADC 76; Re ZD(pseudonym initials) [2024] WADC 42.
Having found that the totality of the incident involving both assaults is compensable and from the two altercations of the proved offence and alleged offence, I find Mr Weatherill suffered the physical injuries described at [33] - [35] and [76] - [82] above and the psychological injuries described at [84] - [91] above. I now turn to an assessment.
There is no material before the court appearing to suggest Mr Weatherill had any relevant pre-existing physical injuries. On the material before the court there is a question of whether the appellant did suffer from some pre-existing psychological injury in that, in his affidavit sworn 23 October 2024 Mr Weatherill states at par 9 that he historically suffered from panic attacks but he addressed those with medication and he had not had any panic attacks for some years before the incident.[43] Specifically, he says:
I recall feeling traumatised and anxious immediately after the events of 15 September 2021. However, over a period of approximately 4 to 5 months I realised that my anxiety was worsening and that caused me to seek the help of Dr Lim on 28 February 2022. I do say that historically I suffered from panic attacks for which I sought help from Dr Lim and to the best of my recollection, I had address those panic attacks with medication and to the best of my recollection those panic attacks had ended between approximately 2 and 4 years before 15 September 2021. By approximately January 2022, recognising the symptoms of a panic attack, I recognised that I was again suffering panic attacks which were becoming more frequent, and therefore I saw Dr Lim for help with my mental health.
…
By 26 November 2022, I was still suffering from anxiety and panic attacks. I thought I should have by then dealt with the events of 15 September 2021, however and particularly whenever I was driving my car with one or both of my children in it, I would relive the events and even more so when I would drive along the route of the events of 15 September 2021. The anxiety would heighten, and I would often, but not always, have a panic attack …
[43] See appellant's affidavit sworn 23 October 2024, par 9(v) (appellant's affidavit).
An applicant is obliged to mitigate his injury by obtaining reasonable medical treatment. In relation to his knee injury, the evidence of the appellant is that he has followed a course of treatment in mitigation of the injury as follows:
1.He consulted Mr Tao Shan Lim at Joondalup Orthopaedic Group on a number of occasions between December 2021 and November 2023 seeking out treatment options.[44]
2.On 31 December 2021, Mr Tao Shan Lim discussed a number of treatment options with the appellant including no intervention (tolerate symptoms), physiotherapy (and custom fit bracing) and surgical treatment.[45] On that date, the appellant indicated to Mr Tao Shan Lim that after careful consideration he wished to proceed with surgical treatment.[46]
3.On 17 June 2022, the appellant informed Mr Tao Shan Lim that due to work commitments he was unable to commit to reconstructive surgery for the rest of 2022 and he was removed from the public waiting list. He was referred to Dr Duncan Sullivan for a sports medicine referral.[47]
4.The appellant did not take up the sports medicine referral and has not seen Dr Sullivan.[48]
5.On 21 November 2022, Mr Tao Shan Lim noted that the appellant did not wish to consider surgical treatment due to his work commitments and that he was aware of any adverse outcome from his decision to decline surgical treatment.[49]
6.In Mr Tao Shan Lim's report dated 24 November 2022 he observed that the appellant was hesitant to consider surgery due to 'concerns regarding time off work and inability to earn an income' as well as 'mental health issues …'.[50]
7.In the appellant's witness impact statement, he stated:[51]
I have not had the surgery recommended … because I cannot afford to take time off work and I have continued to work with the injuries I have suffered. …
[44] Appellant's Book of Documents, page 34 (Report of Mr Tao Shan Lim).
[45] Appellant's Book of Documents, page 27.
[46] Appellant's Book of Documents, page 27.
[47] Appellant's Book of Documents, page 30.
[48] Appellant's Book of Documents, page 32.
[49] Appellant's Book of Documents, pages 32 - 33.
[50] Appellant's Book of Documents, page 35, report of Mr Tao Shan Lim.
[51] Appellant's Book of Documents, page 49
In relation to Mr Weatherill's psychological injury, the evidence relevant to his mitigation of the injury includes:
1.The appellant complained of mental health impacts to his GP, Dr Guan Teck Lim, on various occasions after the incident.[52]
2.The appellant reportedly self-increased his dosage of anxiety management medication, Fluoxetine, and his GP prescribed an increased dosage.[53]
3.The appellant did not attend any form of counselling or attend upon a psychologist other than Dr McCue, which the appellant's solicitors organised for him in 2024.[54]
4.The primary reason for the appellant not attending psychological counselling relates to financial pressures outlined in the appellant's affidavit, which include difficult living arrangements and requirements to travel for work, as well as a lack of comprehensive health insurance.[55]
5.The appellant also stated in his affidavit that the 'very thought of going to a clinical psychologist or the like for treatment frightens and intimidates' him.[56]
[52] Appellant's Book of Documents, pages 42 - 45.
[53] Appellant's Book of Documents, page 45.
[54] Annexure JCW-1 to the appellant's affidavit, Dr McCue's report dated 22 October 2024, par 36.
[55] Appellant's affidavit, pars 7(iii), 9(ii) - (iv), (ix) - (x).
[56] Appellant's affidavit, par 9(xii).
Having considered the physical injuries comprising:
(a)bruising;
(b)the knee injury; and
(c)the psychological injury including symptoms consistent with a diagnosis of post-traumatic stress syndrome disorder;
I find that as a consequence of the proven and alleged offences, Mr Weatherill has suffered 'injury' within the meaning of the Act.
The bruising injury relating to the proven offence appears to have resolved shortly after the incident.
The injury to the appellant's left knee has taken some time to heal.
Mr Weatherill's psychological symptoms including disturbed sleep, loss of trust in others, loss of confidence, panic attacks and anxiety are significant and ongoing.
Taking into account Mr Weatherill's physical and psychological symptoms, I assess $35,000 as an appropriate award for non‑economic loss.
Mr Weatherill also seeks compensation for past economic loss and expenses. Section 6(2) of the Act defines 'loss' to include 'loss of earnings suffered by the victim as a 'direct consequence' of the injury suffered by the victim'. 'Loss of earnings' has been held to include loss of earning capacity.[57] Mr Weatherill's claim for loss of earnings appears to be twofold: a period of time where he could not work immediately following the incident; and income he will lose on the assumption he has reconstructive surgery to his knee.
[57] See, for example, KMA v DFS [2010] WADC 6 [27] (Sweeney DCJ)
The evidence before the court of past economic loss and expenses is as follows:
1.Lost income. Mr Weatherill did not work for a period of two weeks immediately following the incident and later recommenced work on light duties.[58] Mr Weatherill reported to Dr McCue that he required around four rather than two weeks off work and noted he was employed on a casual basis at the time, which meant he was not paid during his absence. In the financial year following the incident, Mr Weatherill's net income was $50,056.12.[59] No specific payslips or other documentary evidence were provided. Doing the best I can on the information provided I will award a sum of $2,000 for lost income.
2.Past medical consultations. Mr Weatherill claims the cost of two consultations with Dr Tao Shan Lim totalling $280 after Medicare rebate.[60] I allow this claim.
3.Travel expenses. Mr Weatherill claims parking expenses totalling $20 being 10 occasions of $2 parking fees.[61] I allow this claim.
4.Medication. Mr Weatherill submitted evidence of the cost of his medication in the form of pharmaceutical receipts and a patient history including apixaban, a blood thinning medication for deep vein thrombosis, and fluoxetine, an anxiety management medication. It appears the blood thinning medication ceased in January 2023 but Mr Weatherill continues to take fluoxetine, which costs about $28 per month. The blood thinning medication was approximately $50 per prescription. I will allow a sum of $962.[62]
[58] Appellant's Book of Documents, page 48; Witness impact statement, par 17.
[59] Appellant's Book of Documents, page 49.
[60] Appellant's Book of Documents, page 10.
[61] Appellant's Book of Documents, pages 9 - 10.
[62] Appellant's Book of Documents, pars 12 - 15, page 48.
The costs of medical reports are recoverable under s 62(2)(b) of the Act insofar as they arise from obtaining any report from a health professional or counsellor in relation to the injury suffered by the victim. Mr Weatherill has claimed $5,060 for a report of Dr McCue, which was before the court, and $660 for a medical report of Dr Lim dated 24 November 2022.[63] I allow these amounts.
[63] Appellant's Book of Documents. page 8.
Mr Weatherill claims $150 for a leg brace he needed, which he bought from Rebel Sport.[64] Mr Weatherill also claims $30 for damage to his shirt which was ripped off during the incident and $30 for obtaining a criminal injury compensation information report evidenced by a receipt from WAPOL. I will allow these claims notwithstanding that no receipt of supporting documentation was received for the shirt.
[64] Appellant's Book of Documents, page 47.
Future loss of earning capacity
In relation to claimed loss of earning capacity, at the time of the incident Mr Weatherill was working for Johns Motor Trimmers in marine motor trimming work and marine canvas upholstery work. He reported that his work involved heavy physical activity and lifting of heavy items.[65]
[65] Witness impact statement, pars 3, 19; Appellant's Book of Documents, pages 47, 49.
Mr Weatherill's witness statement summarised information about gross and net income from his taxation returns in the years 2018 ‑ 2022.[66] In effect:
(a)in 2020, being the year before he was injured, he earned a net income of $37,906;
(b)in 2021 he earned a net income of $50,056; and
(c)in 2022, following his injury, he earned a net income of $53,710.
[66] Witness impact statement, par 21; Appellant's Book of Documents, page 49.
From this description it appears the appellant has not been prevented from working. I also note in the medical note dated 21 November 2022 Mr Tao Shan Lim confirmed that Mr Weatherill 'is able to do his work duties … [and] wears a … knee brace which provides some reassurance'.[67]
[67] Appellant's Book of Documents, page 32.
Dr McCue's opinion with respect to any psychological injury is that the 'psychological injuries appear to have had a limited negative impact on his occupational functioning. … He appears able to undertake his usual duties currently'.[68]
[68] Annexure JCW-1 to appellant's affidavit, Dr McCue's report dated 22 October 2024, par 58.
In these circumstances, I do not make any award for future loss of earning capacity.
Future medical treatment
Mr Weatherill has put evidence before the court of future medical treatment. Mr Lim's medical report dated 24 November 2022 indicates that the appellant requires corrective surgery consisting of a left knee arthroscopy, anterior cruciate ligament reconstruction with an ipsilateral hamstring graft, medial meniscus surgery and chondroplasty.[69] The estimated cost according to Mr Lim including a surgeon, surgical assistant, anaesthetist and hospital fee is $14,721.[70]
[69] Appellant's Book of Documents, page 35.
[70] Appellant's Book of Documents, page 35.
Following surgery, Mr Weatherill will require a rehabilitation treatment program consisting of physiotherapy, hydrotherapy and an exercise program post-surgery. Further, he would not be able to work as a motor trimmer for approximately 6 to 9 months in order to protect his anterior cruciate ligament graft.
Dr McCue in his report said that Mr Weatherill explained to him he attended hospital for his injury and that the treating physician recommended he not have surgery because the surgery could result in future arthritis and his ability to twist could be limited. Further, he continues to experience some weakness in his knee but for the most part does not experience pain and, once he is warm and limber, he is able to walk his dogs around 3 km. He has to take extra care when at work because the nature of his work requires 'pivoting, twisting motions and heavy lifting'.
Under the Act, an applicant is entitled to compensation for expenses that are likely to be reasonably incurred for any treatment the applicant is likely to need as a direct consequence of the injury suffered by the victim.[71] There are two issues to be considered: what treatment the applicant requires; and whether that treatment is required as a direct consequence of the injury.
[71] The Act, s 6(2)(b).
From the available evidence, Mr Weatherill has consulted Mr Lim, an orthopaedic surgeon, and I have referred to some of the contents of Mr Lim's reports earlier in my reasons. The reports of Mr Lim make reference to Mr Weatherill having several treatment options available to him and choosing to move forward with reconstructive surgery but later being unable to commit to the surgery due to work commitments and being removed from a public hospital waiting list.[72] He had been referred to another doctor, Dr Duncan Sullivan, for review for optimisation of function by non-operative means but did not follow up on the referral. At that point, 17 June 2022, it appeared a decision had been made to not pursue reconstructive surgery.
[72] See for example appellant's Book of Documents, pages 27 - 32.
In his report dated 21 November 2022,[73] Mr Lim noted that:
[Mr Weatherill] does not wish to consider reconstructive surgery. He is aware that his anterior cruciate ligament and meniscus deficient knee is likely to have increased progression of osteo-arthritis which may eventually require knee replacement arthroplasty. He is aware he is responsible for any adverse outcome from his decision to decline surgical treatment. He has declined sports medicine assessment …
[73] Appellant's Book of Documents, pages 32 - 33.
It appears that it was only after a request for a further report from his lawyers that Mr Lim formed the opinion that Mr Weatherill required left knee arthroscopy and anterior cruciate ligament reconstruction.
Mr Lim also noted in his report dated 24 November 2022 that:
Whilst the aim of treatment is to return to full pre-injury work duties and hours[74] Mr Weatherill is likely to have some degree of residual symptoms and may have some degree of residual or permanent disability. I am not accredited assessor of permanent disability. If such an assessment is required I recommend referral to an accredited assessor.
[74] The available evidence only allows an inference that he is carrying out pre-injury duties and hours.
In all the circumstances I am not persuaded on the balance of probabilities that the treatment of reconstructive surgery is an expense that is likely to be reasonably incurred by Mr Weatherill. It seems over a period of years Mr Weatherill had not wished to undertake reconstructive surgery for reasons unaffected by the allowance of compensation for the treatment alone, which include concerns about complications from the surgery, concerns regarding time off work, inability to earn an income and mental health issues.[75] Accordingly, I do not make an allowance for future medical treatment of anterior cruciate ligament reconstruction.
[75] Appellant's Book of Documents, pages 30 - 35.
Dr McCue's opinion is that the appellant's psychological treatment needs require at least 12 x 1-hour sessions and that the current rate is $311 per session. In his opinion, this would complement the appellant's current medication regime.
I will make an allowance for future medical treatment in the sum of $3,732 as part of an award of compensation to the appellant and that any amount awarded for that treatment will not be paid to Mr Weatherill until the expense is reasonably incurred and he submits a request to the Chief Assessor in accordance with s 48 of the Act.
In all the circumstances, I make an award as follows:
Non-pecuniary loss/general damages
$35,000.00
Lost income/loss of earning capacity
$2,000.00
Consultations
$280.00
Travel expenses
$20.00
Past medical expenses
$962.00
Medical reports
$5,720.00
Miscellaneous costs
$210.00
Sub-total
$44,192.00
Future medical treatment
$3,732.00
What final orders are appropriate
The appropriate final orders are:
1.The decision of the Assessor is reversed to allow compensation to Mr Weatherill of $44,192.
2.Pursuant to s 48 of the Act, the sum of $3,732 is allowed for future medical treatment.
As is usual, no order for costs should be made against the Chief Executive Officer for its assistance to the court. Otherwise, I will give the appellant leave to apply for any further costs order by filing written submissions within 14 days of publication of these reasons and any further issue can be decided on the papers.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LP
Associate to His Honour Judge Curwood
6 MAY 2025
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