ZADEH
[2015] WADC 136
•16 NOVEMBER 2015
ZADEH [2015] WADC 136
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 136 | |
| Case No: | APP:100/2014 | 7 AUGUST 2015 | |
| Coram: | SLEIGHT CJDC | 16/11/15 | |
| PERTH | |||
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Award of Assessor set aside and substituted with an award for $75,000 (inclusive of interim payments) | ||
| PDF Version |
| Parties: | ESMAIL ROSTAM ZADEH |
Catchwords: | Appeal Criminal injuries compensation Whether assessment should be remitted back to Assessor Whether assessment should be postponed Disentangling prior injury Award for alleged offence Loss of earning capacity Social security payments Future medical expenses |
Legislation: | Criminal Injuries Compensation Act 2003 (WA) |
Case References: | Allesch v Maunz (2000) 203 CLR 172 Devos v James [2009] WADC 161 Hinchcliffe v Hinchcliffe [2010] WADC 78 JY [2013] WADC 187 McDavitt v McDavitt (No 2) [2013] WADC 198 Purkiss v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Re Brian Charles Gluestein; Ex Parte Anthony [2014] WASC 381 Re Tilbury [2010] WADC 46 S v Neumann (1995) 14 WAR 452 Sal Galofaro v Metropolitan Fire & Emergency Services Appeal Commission & Ors [2005] VSC 356 Sperway Constructions (Syd) (Pty) (1976) 135 CLR 616 VMH by her next friend The Public Trustee v JAB [2014] WADC 47 Waterhouse v Racing Appeals Tribunal [2002] NSWSC 1143 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
and
IN THE MATTER of an Appeal by
- Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : L V DEMPSEY
File No : CI 001441 of 2013
Catchwords:
Appeal - Criminal injuries compensation - Whether assessment should be remitted back to Assessor - Whether assessment should be postponed - Disentangling prior injury - Award for alleged offence - Loss of earning capacity - Social security payments - Future medical expenses
Legislation:
Criminal Injuries Compensation Act 2003 (WA)
Result:
Appeal allowed
Award of Assessor set aside and substituted with an award for $75,000 (inclusive of interim payments)
Representation:
Counsel:
Appellant : Mr D I Connor
Amicus Curiae: Mr E Fearis appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Connor Legal
Amicus Curiae: State Solicitor for Western Australia
Allesch v Maunz (2000) 203 CLR 172
Devos v James [2009] WADC 161
Hinchcliffe v Hinchcliffe [2010] WADC 78
JY [2013] WADC 187
McDavitt v McDavitt (No 2) [2013] WADC 198
Purkiss v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Re Brian Charles Gluestein; Ex Parte Anthony [2014] WASC 381
Re Tilbury [2010] WADC 46
S v Neumann (1995) 14 WAR 452
Sal Galofaro v Metropolitan Fire & Emergency Services Appeal Commission & Ors [2005] VSC 356
Sperway Constructions (Syd) (Pty) (1976) 135 CLR 616
VMH by her next friend The Public Trustee v JAB [2014] WADC 47
Waterhouse v Racing Appeals Tribunal [2002] NSWSC 1143
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
1 SLEIGHT CJDC: The appellant, Mr Zadeh, made an application for compensation under s 17(2) of the Criminal Injuries Compensation Act 2003 (CIC Act) in respect of injuries arising from an alleged assault by two persons on 18 July 2013. No one was charged in relation to the assault as the alleged perpetrators could not be identified. The Assessor of Criminal Injuries Compensation (the Assessor) was satisfied that the claimed injury and loss had occurred and did so as a consequence of the commission of the alleged offence. By a compensation award dated 23 September 2014, the Assessor awarded Mr Zadeh $4,772 (which included an interim payment in the sum of $1,172 for medical expenses) for those injuries and losses in respect of the alleged offence.
2 The appellant, Mr Zadeh, appeals against the award contending that the Assessor made the award prematurely and prior to the claim of Mr Zadeh being ready for assessment.
3 Mr Zadeh seeks the following orders (in the alternative):
(i) An order setting aside the award and remitting the matter back to the Assessor for further assessment;
(ii) Alternatively, an order that the hearing of the appeal be adjourned for one to two years on the basis that Mr Zadeh's psychiatric condition is not sufficiently stabilised to assess his claim;
(iii) Alternatively, subject to the court concluding that on the present material that an assessment of Mr Zadeh's claim is no less than the statutory maximum of $75,000, set aside the existing order and substitute it with an order for the statutory maximum of $75,000.
(iv) Alternatively, set aside the award and reassess Mr Zadeh's claim so as to take into account an injury in the form of a post-traumatic stress disorder.
Application for extension of time to appeal
4 An appeal must be commenced within 21 days of the date of the Assessor's decision: s 55(3) of the CIC Act. The last date for lodging an appeal in this matter was 14 October 2014. The notice of appeal by Mr Zadeh was lodged one day late, being 15 October 2014. The explanation provided for the late lodgement is that the solicitors for Mr Zadeh used a legal practice support company to lodge the documents. Instructions were issued on 13 October 2014 but the legal practice service company took until 15 October 2014 to file the notice of appeal at the registry of the District Court.
5 The court has power to allow an appeal to be commenced out of time if it is satisfied 'it is just to do so'. In the circumstances of this case, I am satisfied that it is just to allow the appeal to commence out of time given that the notice of appeal was lodged only one day late and the explanation given. Accordingly, I give leave for an extension of one day.
Should the matter be remitted back to the Assessor?
6 Mr Zadeh initiated his claim for criminal injuries compensation on advice from the Victim Support Service by lodging an application on 2 August 2013. Included in the application was a claim for two accounts: one from the St John of God Ambulance for $872 and one from the Perth Radiological Centre for $300. On 18 September 2013, the Assessor agreed to pay these two accounts as an interim compensation payment.
7 On 3 February 2014, Mr Zadeh instructed Mr David O'Connor, solicitor, (who was at that time acting for Mr Zadeh in relation to a workers' compensation matter) to act for Mr Zadeh in relation to his claim for criminal injuries compensation. Mr O'Connor apparently took the view that it would be sometime before the criminal injuries compensation claim could be finalised as at the time Mr Zadeh was undergoing psychological counselling arranged by his doctor.
8 In the meantime, at the request of Mr Zadeh, a social worker of the Victim Support Service provided to the Assessor a report dated 18 August 2014 in support of Mr Zadeh's claim. This report stated that Mr Zadeh was suffering ongoing symptoms of anxiety and other related symptoms, had received counselling from the Victim Support Service on two occasions and had also attended a psychologist on referral from his doctor. However, no reports from Mr Zadeh's doctor or the psychologist were attached to the report. On receipt of the report from the Victim Support Service, the Assessor then proceeded to assess Mr Zadeh's claim and made the award dated 23 September 2014.
9 On receipt of the award, Mr David O'Connor, acting for Mr Zadeh, wrote to the Assessor by letter dated 8 October 2014 stating that Mr Zadeh wanted to present further evidence in support of his claim, being a report from his treating psychologist, Ms Sahba Saberi, a report from his general practitioner and possibly a report from a consultant psychiatrist. To enable this to be done the Assessor was requested to set aside the assessment and give leave for Mr Zadeh to present further evidence and submissions. The Assessor rejected this request.
10 It is submitted on behalf of Mr Zadeh that the claim of Mr Zadeh was assessed prematurely. On this appeal Mr Zadeh has sought to rely upon additional medical and financial material, which will be detailed later in this decision.
11 Counsel appearing on behalf of Mr Zadeh submits that the District Court has power to remit the matter back to the Assessor by virtue of s 56(2) of the CIC Act which provides that on hearing an appeal the court has power to make 'any necessary consequential order'.
12 In support of this contention, counsel for Mr Zadeh relied upon the decision of Re Brian Charles Gluestein; Ex Parte Anthony [2014] WASC 381. That case concerned an application under s 36 of the Magistrates Court Act 2004 to the Supreme Court for a review order against a decision of a magistrate. The grounds for making a review order under s 36 are essentially that the magistrate has failed to perform a duty, has acted outside the court's jurisdiction or the decision was an abuse of process: see s 36(1) of the Magistrates Court Act. Section 36(4) lists the court's powers on a review application to be:
(a) order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b) grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c) make any necessary consequential orders.
13 In Re Brian Charles Gluestein; Ex Parte Anthony, at [60] and [61], Beech J held that 'any necessary consequential orders' included a power to remit the matter back to the magistrate. He stated as follows:
60 An order under s 36(4)(c) must be a necessary consequential order, consequential on an order under s 36(4)(a) and (b). To be consequential, the order must follow logically or of necessity from a prior substantive order.
61 A common example of a necessary consequential order is an order remitting the original application for hearing, consequential upon the order setting aside the decision made under a jurisdictional error. The need to remit the original application follows logically from the setting aside of the decision on that application. Another common example is of an injunction restraining a party from taking steps to give effect to a decision made under jurisdictional error, consequential on an order setting aside the decision.
14 In my opinion, this conclusion is unsurprising given the nature of the jurisdiction under an order to review which has similarities to a remedy under a prerogative writ. The application for an order for review is not in the nature of a fresh hearing as is the case of an appeal under the CIC Act. Section 56 of the CIC Act provides:
56. Dealing with appeals
(1) On an appeal under section 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information.
(2) On an appeal under section 55 the District Court may do any or all of the following –
(a) exercise any power of an assessor under this Act, other than a power under section 19(1)(b), 24(1) or 25;
(b) confirm, vary or reverse the assessor's decision, either in whole or in part;
(c) make any order that an assessor could make under this Act;
(d) order an unsuccessful party to the appeal to pay a successful party's costs as set by the Court in accordance with the scale of costs prescribed by the regulations;
(e) refer a question of law that arises in the appeal to the Court of Appeal for determination;
(f) make any necessary consequential order.
16 Counsel for the amicus curiae has referred me to a decision of Schoombee J in Devos v James [2009] WADC 161 where her Honour remitted a matter back to the Assessor. However, in my opinion, that case can be distinguished from the present case. Devos v James concerned a decision of the Assessor not to make an award on the grounds that the claim was based upon an offence arising from the use of a motor vehicle which the Assessor concluded did not come within the terms of the CIC Act. The issue of whether the Assessor could make an award was considered as a preliminary point. Judge Schoombee concluded on the appeal that there was an entitlement under the CIC Act. She concluded at [69]:
Neither party made any submissions in respect of the amount of compensation that would be just and it would be more expedient if the Assessor were to determine the amount of the compensation payable. Pursuant to s 56 of the Act a court may reverse the Assessor's decision and make any necessary consequential order. I see no reason why this would not entitle the Court to refer the assessment of the compensation payable back to the Assessor.
17 The decision in Devos v James has to be considered in the context of s 55(1) of the CIC Act which provides as follows:
55. Appeal lies to District Court
(1) An interested person may appeal to the District Court against an assessor's decision –
(a) to make or to refuse to make a compensation award;
- (b) as to the amount of a compensation award.
19 As I have already mentioned, the de novo appeal must be conducted in relation to 'the decision it relates'. In Devos v James, the de novo decision made by Judge Schoombee related to the liability issue of whether a claim could be made under the Act. In my opinion, this left the court the power to remit the matter back to the Assessor to complete the assessment. In this case before me, the appeal relates to the decision of the amount awarded. In my opinion, this is an appeal under the second category of cases, that is, as to quantum. Accordingly, this court should proceed to assess the quantum entitlement afresh and if the amount awarded is inadequate substitute the court's opinion for it.
Should the assessment be postponed?
20 Counsel for Mr Zadeh relies upon reports of a Dr Terace, psychiatrist, in support of a submission that the assessment should be postponed for a period of at least 12 months to enable Mr Zadeh's psychiatric condition to stabilise. Dr Terace saw Mr Zadeh on 14 January 2014 and concluded in a report dated 28 January 2014 that it was too early to determine the extent of permanent psychiatric impairment. 1
21 Dr Terace reviewed Mr Zadeh on 6 July 2015. In a report dated 20 July 2015, Dr Terace stated that Mr Zadeh had not made in the intervening period since his last report the expected recovery. Dr Terace concluded the prognosis remained guarded.2 Dr Terace concluded Mr Zadeh was likely to sustain residual permanent psychological symptoms as a result of the alleged assault, but he was not able to quantify the extent.3 In relation to the issue of loss of earning capacity, Dr Terace stated that it was too early to determine permanent effects.4
22 The decision of whether the assessment should be postponed must be made in the context of the nature of a claim for criminal injuries compensation. It is well recognised that ordinary principles of tortious assessment of damages apply. However, in my opinion there are some important differences:
1. Section 18(1) of the CIC Act provides that:
An assessor must determine compensation claims expeditiously and informally having regard to the requirements of justice and the Act. (My emphasis)
2. The CIC Act sets a statutory limit of compensation, in this case $75,000;
3. The Assessor does not have power to award costs.
23 Taking these factors into account, in my opinion a different approach is warranted to that normally taken by a court hearing a common law claim for tortious damages, where finalisation of the matter is frequently postponed until a claimant's medical condition is more stabilised. In my opinion, if a similar approach was taken for a claim under the CIC Act, the expressed provision of the Act to deal with matters 'expeditiously' would be defeated. Further, there would be a risk that with postponements the claimant will incur increased legal fees which are not recoverable and therefore the entitlements under the Act will be eroded. Finally, in any event, the nature of the assessment process necessarily takes into account uncertainties and it is not necessarily contrary to the interests of a claimant that the claim is not postponed. For example, a postponement may lead to a situation where the claimant's circumstances change for the better, thus reducing his entitlement.
24 For the above reasons, I conclude, notwithstanding the difficulties of assessment as a result of the uncertainty of Mr Zadeh's prognosis, that I should proceed to assess Mr Zadeh's application for compensation immediately without further postponement.
New material
25 Section 56(1) of the CIC Act, although stating that the application is to be decided afresh solely on the evidence and information in the possession of the Assessor, still gives the court a general discretion to receive further evidence and information. Given that the hearing is in the nature of a hearing de novo, that discretion should be exercised liberally unless there is some good reason for not doing so: Re Tilbury [2010] WADC 46 [3]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9].
26 In this matter, I am satisfied that, in the circumstances where Mr Zadeh complains that his claim was assessed prematurely and before he had presented all of the material in support of his claim, I should exercise my discretion to receive further evidence and information. Further evidence and information provided by Mr Zadeh on the hearing of the appeal is contained in an affidavit sworn by him dated 30 July 2015 which includes as annexures the following reports:
(i) The reports of Dr Terace dated 28 January 2015 and 20 July 2015;
(ii) Letters from Dr Richard Benstead dated 17 March 2014, 23 October 2014 and 29 June 2015;
(iii) Report of Sahba Saberi (psychologist) dated 21 October 2014.
27 The affidavit of Mr Zadeh also sets out details of the alleged offence, Mr Zadeh's general background, his employment history, details of a work cover claim, the effects that he says the alleged offence has had upon him and details of how his earning capacity has been impaired.
General principles
28 The general principles that are applied to claims under the CIC Act were set out in the written submissions filed by the Chief Executive Officer.
29 A person who suffers injury as a consequence of the commission of an alleged offence, where no person is charged with the alleged offence, may apply for compensation for that injury and any loss suffered (see s 17(1) and s 17(2) of the CIC Act). Mental and nervous shock is included in the definition of 'injury': s 3 of the CIC Act. Mental and nervous shock does not include a mere emotional reaction, but must be something of a more enduring character which may in both the legal sense and common parlance be described as an injury: S v Neumann (1995) 14 WAR 452 (461).
30 Loss is defined in s 6(2) of the CIC Act as follows:
6(2) In the case of a victim who is injured, loss means –
(a) expenses actually and reasonably incurred by or on behalf of the victim –
- (i) that arise directly from; or
(ii) that arise in obtaining any report from a health professional or a counsellor in relation to,
the injury suffered by the victim; or
(b) expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim; or
(c) loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim; or
(d) any loss arising from any damage caused as a direct consequence of the commission of the offence to any personal item that was being worn by the victim when he or she suffered the injury.
32 The correct approach to adopt in fixing the appropriate amount of compensation is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act and subject also to the jurisdictional limit imposed by the Act: S v Neumann (462); VMH by her next friend The Public Trustee v JAB [2014] WADC 47 [43].
33 Pursuant to s 17(4)(a) of the CIC Act, an Assessor must not make a compensation award in respect of a compensation application for an alleged offence for which no one was charged unless satisfied that the claimed injury and any claimed loss has occurred, and was a 'consequence of the commission of the alleged offence' (see S v Neumann at 463 – 464 dealing with s 4(1) of the Criminal Injuries (Compensation) Act 1970 where although the wording of that legislation was slightly different, the same sort of causal connection was emphasised).
34 In the matter of JY [2013] WADC 187 [13] - [14], I set out as follows the relevant principles where the claimant had a pre-existing condition:
13. Where a complainant has a pre-existing condition a number of principles must be taken into account:
(a) The onus is on the claimant to prove that the compensable offence did contribute materially to the claimant's injury and loss. However the offence need not be the sole cause of the injury or loss: Bonnington Castings Ltd v Wardlaw [1956] AC 613; Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666.
(b) Compensation will not be awarded if the injury and loss would have occurred in any event due to a pre-existing condition: Smith v Leech Brain & Co Ltd [1962] 2 QB 405. Where it cannot be positively stated that the event (the injury or loss) would have occurred in any event but it remained a probability then the award of compensation must be reduced to take into account that probability.
(c) If it can be proved that the offence has made a pre-existing condition worse by aggravation, or brings on a condition earlier, the assessment of compensation is made on the basis of the worsening or acceleration or both as the case may be: Zumeris v Testa [1972] VR 839.
(d) Where it is not possible to disentangle the consequences of a pre-existing condition and the consequences of the offence, the claimant is entitled to compensation for the full injury and loss if the claimant has establish (sic) that the compensable offence did contribute materially to the claimant's injury or loss: Bonnington Castings Ltd v Wardlaw; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164;MJN v MAJS (2003) 35 SR (WA) 219, 227 (Martino J).
(e) In respect of events which have already occurred the court decides on the balance of probabilities whether a specific event has occurred or not and damages are assessed on an all or nothing approach. However, where it is necessary to assess a hypothetical situation such as whether a claimant's pre-existing condition would in any event have prevented the claimant from working in the future, the court must perform an estimate of the likelihood that the hypothetical situation may occur. If there is a fair chance that the hypothetical situation may occur, the court must evaluate that chance and discount the compensation by the percentage that represents that chance: Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485, 499 – 500. These adjustments for probabilities is relevant to general damages and past and future loss: Wilson v Peisley (1975) 50 ALJR 207, 212 (Stephen J); SW v BB [2010] WADC 86.
14. The submissions of the chief executive officer, who appears on the hearing of the appeal asamicus curiae, suggested that the pre-existing condition of Ms Y could also be taken into account under s 41 of the Act which provides that in deciding whether or not to make a compensation award, or the amount of compensation award, an assessor must have regard to any behaviour, condition, attitude or disposition of the victim that contributed, directly or indirectly to the victims injury. However, for reasons given by the (sic) her Honour Judge Schoombee in SW v BB, I conclude that s 41 has no application and the compensation is assessed applying the ordinary principles of assessing damages as they apply in the law of tort.
35 Since my decision in JY, wherein I expressed the opinion that s 41 of the CIC Act did not apply, there has been further authority in this court to the contrary (see the decision of Davis DCJ in McDavitt v McDavitt (No 2) [2013] WADC 198 [34]. In that case, Davis DCJ referred to the conflicting authorities in this court on the issue and took the view that s 41 of the CIC Act did have application. Rather than revisiting the issue, I conclude that the practical consequences of which interpretation is correct are unlikely to be determinative in most cases, if not all cases. Even if s 41 requires that the court take into account a pre-existing condition, the power to reduce the amount of the award is still discretionary and can only occur if the Assessor concludes 'it is just to do so'. It seems to me that generally an assessment would be guided by common law principles. However, I acknowledge that in cases such as the present case, where there is no respondent, the principles that apply in relation to disentangling the effects of a pre-existing condition are not easy to apply. This is because the principle is based upon the onus of proof. In a contested common law claim the burden lies on the defendant to adduce evidence that the plaintiff's claim was wholly or partly the result of some pre-existing condition. Where the defendant is unable to disentangle the effect of an injury caused by a defendant and the future effect of a pre-existing condition, the claimant is entitled to all the loss and damage flowing from his current and likely future loss of earning capacity because the defendant has failed in fulfilling the onus on the defendant: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 (160). However, as stressed in Purkiss v Crittenden [1965] HCA 34; (1965) 114 CLR 164, the onus of establishing the loss was a consequence of the injury suffered still remains on the claimant. At 168, Barwick CJ, Kitto and Taylor JJ stated:
It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158 was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence (my emphasis).
Material relevant to assessment
(a) General background of Mr Zadeh
36 Mr Zadeh was born on 19 July 1974 in Tehran in the Islamic Republic of Iran. He is currently aged 41. He worked as a chef on a cargo ship which he abandoned at Bunbury and sought asylum in Australia.
37 Mr Zadeh was married in 2004 and was divorced in 2006. He has a daughter who resides with his ex-wife.
38 Mr Zadeh has a good work history since arriving in Western Australia which can be summarised as follows:
1. 2001/2 – employed as a cook at the Sicilian Restaurant in Subiaco.
2. 2002/3 – employed as a cook at the Subiaco Hotel.
3. 2004 unemployed.
4. 2005/7 – Mr Zadeh conducted his own pizza/pasta business.
5 2008/12 – Mr Zadeh worked as an office cleaner (mainly in his own business).
6. On 27 December 2012, Mr Zadeh obtained employment with ISS as a cook/kitchen hand.
7. On 9 January 2013, in the course of his employment with ISS, Mr Zadeh suffered an injury to his left knee while working as a kitchen hand.
8. Mr Zadeh has been largely unemployed since his injury to his knee.
(b) Circumstances of the alleged offence on 18 July 2013
39 The circumstances of the alleged offence are revealed in documents that were before the Assessor. They included signed statements of Mr Zadeh and an independent witness who viewed the incident. I conclude from this material that on 18 July 2013 Mr Zadeh was riding a Suzuki 250 motorcycle along Wanneroo Road in the Perth metropolitan area travelling in a southerly direction near Tuart Hill. A BMW motor vehicle was travelling in the opposite direction and was driven across the median strip in front of Mr Zadeh's motorcycle to effect a U-turn. The vehicle came close to colliding with Mr Zadeh's motorcycle. Mr Zadeh road his motorcycle up alongside the BMW and gestured as if to say 'what are you doing'. The BMW then swerved towards Mr Zadeh's motorcycle. Mr Zadeh accelerated in order to get away from the BMW motor vehicle. The BMW caught up with Mr Zadeh's motorcycle further down the road. A male passenger of the BMW grabbed the wing mirror of the motorcycle and tried to pull it over. Also the male passenger hit Mr Zadeh's helmet a couple of times. At the time both vehicles were travelling at approximately 60 km per hour.
40 In an effort to get away from the BMW, Mr Zadeh stopped at an intersection and got off his motorcycle. The BMW pulled around the corner and two male occupants alighted from the vehicle and ran towards Mr Zadeh. One of the occupants tried to kick Mr Zadeh but Mr Zadeh was able to grab his foot and cause the person to fall over. Whilst this was happening the other male person punched Mr Zadeh to the head. The person who had fallen over got up and then the two persons from the BMW continued a joint attack on Mr Zadeh punching and kicking him. One of the persons grabbed Mr Zadeh's helmet and pulled it off. This person then used the helmet to hit Mr Zadeh on the back of the head. The other person continued punching Mr Zadeh. Mr Zadeh eventually fell to the ground and believes he lost consciousness. The two male persons then ran back to the BMW and took off at speed. The independent witness described Mr Zadeh being punched and kicked by two younger men.
(c) Injuries and treatment
41 Mr Zadeh was conveyed by ambulance to Royal Perth Hospital and released later that night. When he presented at the hospital he complained of loss of consciousness for one to two minutes, neck and spinal pain, right wrist pain and drowsiness. He was observed to have multiple bruises. Mr Zadeh was x-rayed and after a period of observation discharged.
42 The following day Mr Zadeh returned to the hospital. He complained of nausea, bouts of vomiting, intermittent dizziness and a mild headache. A CT scan was performed which demonstrated no intracranial injury. Mr Zadeh's nausea improved significantly with medication and he was discharged.
43 Mr Zadeh consulted Dr Richard Benstead. Dr Benstead in a letter to a psychologist, Ms Saberi, stated that Mr Zadeh was experiencing ongoing depression and anxiety following his assault. Dr Benstead prescribed medication and referred Mr Zadeh to Ms Saberi for treatment. In a report dated 21 October 2014, Ms Saberi stated that Mr Zadeh had received seven sessions of psychological treatment for symptoms of post-traumatic stress disorder. The report stated that Mr Zadeh presented with symptoms of 'anxiety, intrusive recollections, hypervigilance, disturbed sleep, suicidal ideations, avoidance behaviour, intense distress and exposure to memories of the assault'. The report stated that the symptoms remained largely unchanged despite treatment.
44 Mr Zadeh was referred by his solicitors to Dr Lawrence Terace on two occasions being 14 January 2015 and 6 July 2015 for a medico-legal report.
45 Dr Terace prepared two written reports dated 28 January 2015 and 20 July 2015. In both reports Dr Terace concluded that Mr Zadeh had suffered a post-traumatic stress disorder arising from the alleged assault offence. This was the same diagnosis given by the psychologist, Ms Saberi. On both attendances with Mr Terace, Mr Zadeh presented with the following symptoms:
· Low grade mood disturbance (on the first appointment Mr Zadeh described suicidal ideation but this disappeared by the second appointment).
· Anxiety symptoms (Mr Zadeh stated that he feared being re-assaulted and was hypervigilant whilst driving and also at home).
· Sleep disturbance (Mr Zadeh complained of suffering nightmares and his sleep was reduced to three to four hours whereas he previously slept eight to nine hours).
· Fatigue.
· Impaired energy and motivation.
· Impaired appetite.
· Impaired concentration and memory disturbances.
· Intrusive images of the alleged assault.
· Heightened sensitivity to noise with exaggerated startle response.
· Irritability.
46 Dr Terace stated in his first report dated 28 January 2015 that he anticipated that with an aggressive combination of pharmacological and psychological therapies, significant improvement would occur within three to six months, and that further significant recovery will take a further 12 to 24 months. However, when Dr Terace saw Mr Zadeh in July 2015, Mr Zadeh had not made the improvement that Dr Terace had anticipated and as a result, Dr Terace concluded that the prognosis was more guarded, given the chronicity of Mr Zadeh's symptoms. Dr Terace expressed the opinion that Mr Zadeh required ongoing aggressive pharmacological and psychological treatment but that it was likely that Mr Zadeh would retain residual psychological and psychiatric symptoms and is less likely than previously predicted to make a complete remission of his symptoms.
47 The medical evidence lodged on behalf of Mr Zadeh is uncontradicted and accordingly I make findings in terms of this evidence.
48 There is mention in a report by the Victim Impact Service submitted to the Assessor that Mr Zadeh suffered depression when he was being held in detention when he first arrived in Australia. However, there is no evidence from any psychologist or psychiatrist as to the nature of Mr Zadeh's mental state at that time and whether it persisted up to the time of the alleged offence. Mr Zadeh's work history up to the time he suffered a knee injury in February 2013 suggests that he was functioning well. In light of the lack of any evidence suggesting that this history of depression is in any way relevant to Mr Zadeh's mental state after the alleged offence, I do not intend to take it into account.
49 Taking into account the description of Mr Zadeh's symptoms and the opinion of Dr Terrace as to the prognosis, I award the sum of $15,000 for non-pecuniary loss.
(d) Loss of earning capacity
50 Mr Zadeh is 41 years of age.
51 Mr Zadeh's gross income in the previous four years prior to the alleged offence was as follows:
2009/10 $19,730
2010/11 $23,434
2011/12 $12,693
2012/13 $21,042
52 The average income therefore over four years is approximately $20,000 gross. Mr Zadeh lodged in support of his claim copies of the notices of assessment issued by the Australian Taxation Office for the financial years ending 30 June 2012 and 30 June 2013. Based upon these notices of assessment, the tax payable by Mr Zadeh on an income of $20,000 gross would be negligible.
53 On 27 December 2012, Mr Zadeh commenced employment with ISS Facility Services Pty Ltd (ISS) on a fly-in fly-out basis, initially working at Pannawonica. Mr Zadeh's gross salary was $60,936.25, plus 9% superannuation (making a total of $66,420.51).
54 On 16 January 2013, Mr Zadeh suffered a knee injury whilst at work. Initially Mr Zadeh returned on light duties but was dismissed. He underwent surgery on his knee on 21 February 2013. In a report dated 24 July 2013 of Professor Khan, who performed an operation on Mr Zadeh's knee, Professor Khan described Mr Zadeh as suffering a residual laxity following the operation with numbness and weakness. Professor Khan expressed the opinion that at that time Mr Zadeh was fit for light duties but not fit for his pre-accident duties. Professor Khan stated the prognosis was good and he believed that in about six months Mr Zadeh would have the full capacity to return to work as a kitchen hand.
55 Mr Zadeh settled his claim for workers' compensation and any claim for common law damages arising from his accident at work on 16 January 2013 on the basis that he be paid a sum of $45,000, together with $10,098 costs.
56 After losing his position of employment, Mr Zadeh registered with Centrelink and has been on Centrelink since.
57 On 1 October 2013, Mr Zadeh signed a statement stating that he was unable to find any work as a kitchen hand due to the problems with his knee. However, this was before the six month period of recovery mentioned by Professor Khan had expired.
58 Dr Terace's initial report dated 28 January 2015 stated that at that time Mr Zadeh's psychiatric symptoms prevented him from working as a kitchen hand even part-time because Dr Terace was concerned about the occupational risks of the psychiatric symptoms experienced by Mr Zadeh. Dr Terace concluded from a psychiatric perspective that Mr Zadeh was not capable of working more than four hours per day. Dr Terace, in his later report dated 20 July 2015, stated that it was likely that Mr Zadeh would be unable to return to work as a kitchen hand for the next 12 to 24 months. Dr Terace also stated in his report dated 20 July 2015 that due to Mr Zadeh's psychiatric symptoms, Mr Zadeh was not capable of working at that time in administrative, clerical or retail roles, was not able to work as a taxi driver and was not able to be employed in positions of employment that required recurrent driving, the handling of dangerous machinery, and the handling of dangerous chemicals. Accordingly, Mr Zadeh's scope for employment over the next 12 to 24 months was extremely limited. Beyond the period of 12 to 24 months, Dr Terace believed that the prognosis for Mr Zadeh was guarded and that Dr Terace had concerns about Mr Zadeh's ability to engage in remunerative employment in the future.
59 I conclude that given the settlement reached by Mr Zadeh following his injury to his knee at work, he should be treated as having been compensated for a full loss of earning capacity up to the end of 2013 which coincides with the end of the period of incapacity identified by Professor Khan.
60 I believe that I ought to then allow the sum of $25,000 per annum for a period of two and a half years from 1 January 2014 for both past and future loss of earnings. This leads to a total of $62,500. Although this period covers both past and future loss, I do not intend to use a discount calculation for future loss because I believe that the figure of $25,000 per annum is a conservative figure in view of the substantial income that Mr Zadeh might be able to earn, but for his psychiatric disabilities, if he was to obtain a contract as a fly-in fly-out worker.
61 Over the period of the past loss (that is from 1 January 2014), it appears from the documentation produced by Mr Zadeh that he received social security payments of $15,548.78 up to 21 September 2015, accruing thereafter at $534.20 per fortnight. As at 16 November 2015, I calculate the total social security received to be $17,685.58.
62 I requested supplementary submissions on the issue of whether the amounts received for social security were deductable from the calculation of loss of earning capacity. I adopt the submission I have received from counsel for the Chief Executive Officer:
5. Social security payments received by the Appellant between the date of the alleged offence and the date of the compensation award should be deducted from the amount assessed for loss of earnings. This is due to the definition of 'loss' in s 6(2)(c) of the Criminal Injuries Compensation Act 2003 (WA) (Act) and the Court's power to take into account relevant factors under s 29(1) of the Act.
6. Under s 6(2), 'loss' is relevantly defined as 'loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim'.
7. Once an appellant has established that there is some loss of earnings, they are 'to be compensated by an amount that reflects the financial consequences that follow from the impairment': Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at [6] (Gleeson CJ, Gummow, Kirby and Hayne JJ), applied in Hutchings v Lachlan [2012] WADC 89 at [77].
8. Where an applicant for criminal injuries compensation receives social security payments because they have no employment, the actual financial loss suffered by that person is reduced by the amount paid in social security payments: see CKM [2008] WADC 79 at [165]; Hutchings v Lachlan [2012] WADC 89 at [97], [99].
9. Further, s 17(2B) of the Social Security Act 1991 (Cth) excludes '[a] payment under a law of the Commonwealth, a State or a Territory that provides for the payment of compensation for a criminal injury' from the definition of 'compensation' in that Act. The effect of this is that the Commonwealth cannot require the repayment of some or all of a person's social security payments because of the receipt of 'compensation' by the person under Pt 3.14.
10. Therefore, the amount assessed for loss of earnings for the Appellant should be reduced by the amount he received in social security payments during the relevant period.
63 After deducting the amount of the social security payments from the figure of $62,500 above, the net amount I calculate for past and future loss of earnings is $44,814.22, which I will round off to $45,000.
Past and future medical expenses
64 Mr Zadeh has already been paid an interim payment of $1,172, being a payment for St John Ambulance of $872 and a payment of $300 for an MRI scan.
65 Evidence has been provided in an affidavit filed by Mr Zadeh dated 30 July 2015 of the following further expenses incurred:
Account of Dr Terace dated 28 January 2015 $1,980
Account of Dr Terace dated 20 July 2015 $1,980
Total $3,960
66 No evidence was presented as to other medical expenses incurred.
67 Dr Terace, in his report of 28 January 2015 (confirmed in his report dated 20 July 2015), stated that Mr Zadeh would require the following treatment in the future:
1. General Practitioner consultations monthly for 6 – 12 months (say $600 – $1,200).
2. Clinical Psychologist consultations of 12 – 24 sessions at an estimated cost of $220 per session (say $2,640 – $5,280).
3. Medication of $100 – $200 per month for a minimum of two years (say $2,400 – $4,800).
4. Consultant Psychiatrist sessions weekly or fortnightly for six months, then monthly for a further 18 months (say $4,200 – $8,400 for first six months; and then $5,850 for the monthly sessions for a further 18 months).
68 This produces the following figures:
Low | High | |
| $600 | $1,200 |
| $2,640 | $5,280 |
| $2,400 | $4,800 |
| $10,050 | $14,250 |
| $15,690 | $25,530 |
69 On the basis of these calculations, I believe an appropriate amount for future medical expenses is $20,000.
Summary
70 Based upon the above, the total of an appropriate award is as follows:
1. Non-pecuniary loss $15,000.00
2. Loss of earning capacity $62,500.00
3. Less social security received ($17,685.58)
4. Medical expenses paid ($1,172.00)
5. Dr Terace's accounts $3,960.00
6. Future medical expenses $20,000.00
Total$82,602.42
71 Of course, this amount is in excess of the jurisdictional limit of an award under the CIC Act.
72 Under s 48 of the CIC Act, if the compensation award made in favour of a victim who has suffered an injury includes amounts for future treatment, then such amounts should not be payable until the Assessor is satisfied such an expense is reasonably incurred and evidence of the expense is provided by the applicant.
73 I believe that any adjustment to bring the award below the jurisdictional limit must preserve a reasonable sum for future treatment to ensure Mr Zadeh receives the treatment he requires. Accordingly, I propose to allow $10,000 for future treatment in the amount awarded.
74 Accordingly, I allow the appeal in this matter and substitute the award made by the Assessor for an award of $75,000. Further, given that an interim payment has been made to Mr Zadeh in the sum of $1,172, I order that:
1. $10,000 be allowed for future medical treatment.
2. $63,828 be paid to Mr Zadeh.
1 Page 14 of Dr Terace's report dated 28 January 2015
2 Page 13 of Dr Terace's report dated 20 July 2015
3 Page 14 of Dr Terace's report dated 20 July 2015
4 Page 14 of Dr Terace's report dated 20 July 2015
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