A v D

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Appeal against adequacy of award

Criminal Injuries Compensation Act 2003, s 6, s 12, s 13, s 17, s 18, s 41, s 56

Amicus Curiae : State Solicitor for Western Australia

A v D (1994) 11 WAR 481

B v W (1989) 6 SR (WA) 79

DNA v Britten (1995) 14 SR (WA) 325

ELK v CFB [2009] WADC 90

Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666

Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)

M v J (Unreported, WASC, Library No 920598, 19 November 1992)

MJN v MAJS (2003) 35 SR (WA) 219

Re Tilbury [2010] WADC 46

S v Neumann (1995) 14 WAR 452

Sunderland [2011] WADC 97

1 CURTHOYS DCJ: The appellant, Ms Krispyn, appeals against an award made by an assessor of criminal injuries compensation on 14 January 2010. The award was made in respect of injuries that Ms Krispyn suffered as a result of an assault on her on 30 September 2006.

2 Frederick Thomas Brennan was convicted in the District Court at Bunbury on 27 March 2007 of one count of assault occasioning bodily harm and one count of stealing a motor vehicle.

3 The assessor awarded a total of $26,417.60 made up as follows:

4 Ms Krispyn is dissatisfied with the decision of the assessor because in her opinion the amount does not reflect the financial, emotional and physical injuries suffered by her. In her letter to the court she states:

The amount offered to me by the assessor does not include all of my loss of income, ongoing medical costs (medication), ongoing pain and suffering including panic and anxiety attacks, sleep problems, ongoing neck and back pain, headache and tinnitus (continuous ringing in ears all of which I still suffer from the assault which has now been nearly 4 years). I also suffer from agoraphobia and have trust issues.

Before the assault I was an outgoing person who loved to dance and enjoy life.

5 One explanation for why Ms Krispyn decided to appeal is that the covering letter sent with the assessor's determination made an arithmetical error and overstated the amount of the award at $52,817.20.

6 I know how easy it is to make arithmetical mistakes. The error reminds us of how careful we need to be when such an error can be a source of such great disappointment to an applicant.

7 The legal principles set out below are from the reasons for decision of her Honour Judge Davis in Sunderland [2011] WADC 97.

8 On the hearing of an appeal against an assessor's decision, I must determine the application afresh without being fettered by the determination of the Assessor: s 56(1) of Criminal Injuries Compensation Act 2003. I may confirm, vary or reverse the assessor's decision, in whole or in part: s 56(2) of the Act.

9 I can determine the claim solely on the evidence and information that was in the possession of the assessor or I may receive further evidence and information: s 56(1) of the Act. The discretion to admit further evidence on an appeal under the Act ought to be exercised without undue restriction, particularly given the beneficial purpose of the Act which is to provide for the payment of compensation to victims of offences: see ELK v CFB [2009] WADC 90 [28]; Re: Tilbury [2010] WADC 46 [3]. Other relevant considerations to the receiving of further evidence and information are that an assessor is not bound by the rules of evidence and that the nature of a determination by an assessor is informal: see s 18 of the Act; Re: Tilbury.

10 In the course of reading the assessor's file in preparation for this appeal it became apparent that no claim was advanced for loss of earning capacity before the assessor. I make no criticism of Ms Krispyn's former solicitors for failing to do so. At the hearing of this appeal, Ms Krispyn asked me to accept some further evidence concerning the impact of the assault on her earnings. I concluded that I should exercise my discretion to receive this further evidence and, accordingly, that evidence, with all of the other material in the possession of the assessor at the time, form the evidence upon which I will determine this appeal.

General principles relevant to the assessment of compensation

11 Compensation is payable for injury or loss in consequence of the commission of an offence, whether proven or alleged.

12 Section 3 of the Act defines 'injury' to include bodily harm and 'mental and nervous shock'. The phrase 'mental or nervous shock' has been construed as including any malfunction of the victim which can be seen to be a consequence of the impact of events constituting the offence, or associated with the commission of the offence, as those events impact on the mind or the nervous system: Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) [5]. Mental and nervous shock includes distress, horror, disgust and other similar adverse mental reactions but does not encompass mere fright, humiliation or anguish: M v J (Unreported, WASC, Library No 920598, 19 November 1992). Something of a more enduring character which may in both the legal sense and common parlance be described as an injury is required: S v Neumann (1995) 14 WAR 452, 461.

13 Loss is defined to include loss of earnings as a 'direct consequence' of the injury suffered by the victim: s 6(2)(c) of the Act. The Act speaks in terms of lost earnings as opposed to lost earning capacity, however loss of earnings does include loss of earning capacity, both past and future.

14 An injury that results in a loss of or a reduction in a person's ability to earn income will be compensable: see A v D (1994) 11 WAR 481, 489.

15 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 jurisdictional limit imposed by the Act: S v Neumann (462).

16 An assessor must not make a compensation award unless satisfied that the claimed injury and any claimed loss has occurred, and was a 'consequence of the commission of' a proved or alleged offence': see s 12(3)(a), s 13(4)(a), s 16(4)(a) and s 17(4)(a) of the Act.

17 The person seeking compensation must prove the necessary causal relationship between the offence and the claimed injury and loss, on the balance of probabilities: S v Neumann (463 - 464), A v D (489). Whether such causal relationship exists between the claimed injury and loss and the proved or alleged offence is a question of fact.

18 When assessing the amount of an award to be made under the Act, (including an award for loss of earnings), pre-existing and subsequent medical conditions which have contributed, directly or indirectly, to the injury or loss must be taken into account under s 41 of the Act. It is not necessary to prove that the offence is the sole cause of the injury or loss: Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666. However, where a non-compensable condition has contributed to the loss, or at least has or has had a propensity to do so, the person seeking compensation may not be entitled to compensation for the full extent of the injury or loss. Applying common law principles, where the evidence establishes that the non-compensable condition had a propensity to cause the injury or loss and did contribute to the injury or loss, the award of compensation will be reduced to take account of that chance: MJN v MAJS (2003) 35 SR (WA) 219 [51] - [57]. Section 41(2) of the Act specifically provides that an assessor may, if he or she thinks it is just to do so, refuse to make a compensation award or reduce the amount awarded because of the contribution that a non-compensable condition has made to the injury or loss.

19 The amount of compensation is not to be fixed as punishment of the offender or as an expression of sympathy for the victim: B v W (1989) 6 SR (WA) 79, 89; DNA v Britten (1995) 14 SR (WA) 325.

20 The statement of material facts upon which Mr Brennan pleaded guilty are:

In this instance the accused and complainant are known to each other and the accused had been residing at the complainant's address for the previous two weeks.

On Saturday the 30th of September 2006 at about 2:30pm the accused and complainant were at the complainant's residence at 5 Barnsley Street Queens Park.

The complainant went to retrieve her mobile phone from her handbag and noticed it had been removed. She confronted the accused about it and an argument developed, during which the accused alleged the complainant was conspiring to shoot him.

The accused demanded the complainant go to the kitchen sink area and 'cut her wrist'. She refused and fearing for her safety attempted to leave. The accused blocked her path, grabbed her with both hands around the throat and commenced to strangle her, whilst throwing her to the ground. The accused maintained his grip around her throat, whilst attempting to push his thumbs into her larynx as she lay on the floor.

He then released his grip, returned to a standing position and stomped twice on the side of the complainant's head. At the time he was wearing work type boots.

He left the kitchen area and walked towards another room. The complainant took the opportunity to seek assistance and leave the premises, she managed to run to the front door and scream for help. The accused located the complainant, took hold of her feet and attempted to drag her back into the residence, removing her pants in the process. The complainant took hold of an outside railing and resisted his attempts. She was then struck, twice over the head, once to the right side and once to the left with a metal fire poker. This caused her to become dazed, bleed from the head and temporarily lose sight.

When she regained her awareness she realised the accused had left the residence, in her Ford XR8 Motor Vehicle, ..., which had been parked in the driveway.

The complainant attended a neighbour's residence to seek assistance.

Police attended and conducted further inquiries and ascertained her mobile phone, $3,680.00 cash and her vehicle keys had been stolen from her handbag.

As a result of the incident the complainant received stitches to a 6cm wound to her head, numerous lacerations, bruises and contusions to her entire body.

The complainant is 40 years of age, 160cm tall and of slim build. The accused is 27 years of age, 182cm tall and of medium, muscular build.

Medical assessment and treatment following the assault

21 Ms Krispyn attended at Royal Perth Hospital after the assault. A report from Royal Perth Hospital states:

This lady presented to Royal Perth Hospital on the 30.9.06. The history as recorded in the case file is that she had been assaulted. She stated she had been struck on the back of the head. She was complaining of headache, nausea and vomiting.

On examination it was recorded she had a Glascow coma score of 15. There was no focal neurological deficit. There was a 6 cm laceration on the occiput with associated bruising. She was admitted into hospital for observation and bed rest. The laceration was repaired. She was provided with analgesia. A cranial CT scan was performed and this was reported as being normal. The headache gradually improved. She was experiencing some dizziness and this also improved. She was ultimately discharged on the 4.10.06.

22 A report from Kathleen Orr, Ms Krispyn's psychologist, dated 24 August 2007 relevantly states:

She now suffers stress or pressure headaches connected to certain movements of her neck. She has constant ringing in both ears which is very debilitating

...

Ms Krispyn is suffering from Post Traumatic Stress Syndrome. Her serious symptoms have resulted from her involvement in an unprovoked attack on herself at her home, by a male friend who had been staying at her home for over a week. Following the events of the critical incident of 30th September 2006, she is experiencing severe ongoing stress, involving psychological and physical disruption to her life-style which has resulted from the unprovoked near life-threatening attack, and its aftermath.

Ms. Krispyn has Intrusive Symptoms of Post Traumatic Stress Syndrome. Each day she experiences distressing memories of images and thoughts of the traumatising events surrounding her being beaten to within a millimetre of her life by a paranoid man, plus his stealing a large sum of money from her and wrecking her new car. She has frequent flashbacks of her ordeal and as a result is withdrawn, hypervigilent and occasionally angry. In order to cope with her intrusive thoughts, she was prescribed medication and needs to undertake urgent reconstructive counselling.

She has a high state of anxiety and some depression. She has become agoraphobic and she is terrified all of the time. Even a simple phone call can send her into a panic state.

Her cognitions have changed and she expects bad things to happen all the time. She can experience flashbacks at any time and these are debilitating for her.

She finds her sleep disturbance very intrusive as she needs to be rested and alert to care for her young children. She reports being constantly tired and has little enthusiasm for any of her former activities. Nightmares with visions from the attack participate in her dream sequences and are most disturbing. She and the children all sleep together in the lounge room, always prepared to exit the house, through the front door in case of further attack. She also experiences significant mood swings.

She had flashbacks which have slowly diminished in intensity over time since the attack. She does remain hypervigilant and is always planning for safety measures to be in place. She has occasional 4

dreams of the critical incident. Because her sleeping pattern has been disturbed; her dream time has been cut down. Her lack of sleep makes her very tired.

Mood swings, exacerbated with intrusive thoughts which perpetuate her arousal and concern, are ever present. She can become stressed and angry, responding badly to many day to day stressors, she is concerned for her self and her traumatised children. She has no social contact and feels very alone.

23 In summary, Ms Orr notes that Ms Krispyn suffers from ongoing stress. psychological and physical disruption, distressing memories, anger, flashbacks, hypervigilence, withdrawal from society, agoraphobia, panic attacks, sadness, difficulties sleeping (including nightmares), decreased motivation levels, lethargy, irritability, inability to concentrate, fear of being alone, mood swings and difficulty communicating.

24 A report from Ms Krispyn's general practitioner, Dr Sita Mahadevan, dated 23 August 2008, relevantly states:

Susan presented on 13.10.06 reporting that she had gone to Royal Perth Hospital on the 30.09.06 after an assault by someone who was staying with her. She said she stayed in Royal Perth Hospital for 3 days and then had treatment there including CT scan of the brain. She stated she was still having headaches and ringing in the right ear.

On examination she had a 6cm scar over the left parietal occipital area and another 2cm scar over the left occipital. Her neck was tender posteriorly. Neck movements were full range. She had numbness over the right index finger, tenderness over the right hand dorsum. She had a curved lacerated wound over the left thigh not sutured, also scratch marks over the left thigh. Her wounds were dressed and she was advised to attend Dr Ian Mitchell, Ear Nose and Throat surgeon for review.

During subsequent consultations after the initial presentation on the 13.10.06 Susan continued to complain of headaches and ringing in the right ear. She continued to present with these symptoms.

On the 13.09.07 she was assessed to have depression and advised to go for counselling. On the 07.04.08, she said she had seen another Doctor in Forrest Lakes and had been given Prozac for depression and still her neck was painful and had lost her referral for counselling. She was re-referred for counselling.

The patient's relevant history in the past has been of depression due to relationship issues, also a history of taking marijuana, and hypothyroidism for which she is on medication.

She has been undergoing counselling with a psychologist [Kathleen Orr] for her depression.

She has seen Dr Mitchell and otoscopy was normal. He assessed her as having minimal bilateral high tone deafness.

Currently she is taking Oroxine and Prozac.

The patient said previous to this assault she had worked as a receptionist four to five shifts weekly, eight hour shifts for the past three to four years.

Since the accident she had reduced her shifts to three shifts per week.

Subsequently she stopped work as a result of her continued headaches, depression and also tinnitus.

25 Kathleen Orr's report, dated 24 August 2007, recommends further treatment. The reports states that Ms Krispyn requires assistance with counselling session costs and that provision for 20 therapy sessions needs to be included in her claim for compensation. It states that these sessions would involve costs of around $3,500 depending on the practitioner's charges.

26 Ms Krispyn attended on Dr Rita Alvis (psychologist) for treatment. No report has been provided. However, Ms Krispyn's victim impact statement notes that she attended Dr Alvis and that payment is covered by Medicare for up to 12 attendances a year. The assessor did not make provision for further medical expenses. I take it that this was because Ms Krispyn's attendances on Dr Alvis are covered by Medicare.

27 Ms Krispyn suffered from mild depression before the assault. The evidence establishes clearly that the majority of her present symptoms are a direct result of the assault.

28 A report from Peter Woodland, spinal surgeon, dated 29 July 2009 states:

... I saw Susan, now aged 41 in the clinic today, Friday 24th July 2009. Susan told me of her ongoing headache and neck and other related symptoms which are reported to date to the alleged assault, 30th September 2006, and this is now almost 3 years ago.

Susan told me that at the time of the assault she was struck on the back of the head, mainly on the left side by a fire poker. She was then stomped on the left side of her head as she was on the ground. Prior to that she had the assailant try to 'break her neck' and strangle her. She did not lose consciousness. She sustained scalp lacerations. She was transferred directly to RPH. Susan recalls being admitted directly to ICU although I do not have specific details of that in the hospital records. The hospital records indicate that she was admitted on 30th September 2006 and discharged 4th October 2006 under the care of Dr Peter Leman, consultant RPH. Susan reports ongoing symptoms since that time.

She reports headaches, which she relates to her neck radiating to the back of the head and then through the head to the retroorbital region. She reports the variable poor vision associated with those headaches. She reports neck ache and stiffness with a tendency to hold her neck tilted to the left and downwards. She reports 'clunking' in her neck in certain movements. She also reports pain radiation to the right shoulder blade. She also reports tinnitus (ringing in the ears). She says that none of these symptoms were present prior to the assault (30th September 2006). She feels the symptoms are worsening. She has tried exercise programs and previously participated in yoga. She has not had any other formal specific treatments such as chiropractic, physiotherapy or invasive treatments.

She can't take anti-[inflammatory] medications on account of past history of peptic ulceration,

Examination Findings:

Susan is approximately normal weight for height, walking and moving independently and no myelopathic gait disturbance with reasonable standing posture. There is a tendency to hold her neck tilted to the left and downwards - flexed. She can adopt normal posture. There is mid to lower posterior neck tenderness and no muscle spasm. She actually has reasonable movement in flexion, extension, probably no restriction for her age but she did report increased pain. Left and right rotation is restricted by about 20 percent. There is full upper limb movement and I could not fault her upper or lower limb neurology.

Assessment

I would recommend ongoing conservative treatment. The x-ray and CT scans do indicate disc bulging at the C5/6 and C6/7 levels. However, her neurology is normal therefore I would advocate ongoing conservative treatment. Theoretically she could be assessed by the pain clinic for consideration of treatments such as facet joint injections and rhizotomies. I would not recommend surgical treatment. Because she reports the symptoms are ongoing at 3 years past assault I personally feel it would be unlikely her symptoms would dramatically improve in the long term. They would not necessarily deteriorate however. I have tried to reassure her she would not end up in a wheelchair or be badly disabled. All the symptoms are also in the context of ongoing-litigation. I hope these comments are of help and thanks once again.

29 Ms Krispyn decided not to undergo the treatment because of the risks involved. I do not read Dr Woodland's report as necessarily recommending such treatment - the possibility of such treatment was theoretical.

30 Ms Krispyn did not suffer from any headaches or neck stiffness before the assault. The evidence establishes clearly that her present symptoms are a direct result of the assault.

31 Before the assessor Ms Krispyn's solicitors stated that she suffered the following consequences as a result of the injuries:

(a) persisting symptoms in her back; specifically at C5/6 and C6/7 levels;

(b) persisting headaches and ringing in both ears, making it impossible for her to continue working as a receptionist and consequently, discontinuing work;

(d) nightmares, flashbacks and fear that her home will he invaded, resulting in her being unable to enjoy a good night's sleep;

(e) unable to relax, particularly because simple day to day things (such as the telephone ringing) cause her to panic;

(f) uncomfortable returning to her home, unless she knows somebody is there who can help her if she is at threat;

(g) fear of people, particularly when they come toward her personal space, resulting in decreased social interaction and loss of friendships.

32 I find that the consequences as set out above are the result of the assault.

33 Ms Krispyn's summary of her monetary claim, as presented by her solicitors, by letter dated 13 May 2009, is:

(a) medical expenses (see Table 2 on application form) $ 220.00

(b) medical reports fees (see Table I on application form) $1,320.00

(c) chemist/pharmaceutical expenses - 14 scripts x $4.90 $ 68.60

(d) travelling expenses (see Table 3 on application form) $ 445.55

36 Each of the expenses, other than travelling, is supported by invoices.

37 Ms Krispyn's solicitors' reserved her final position on compensation for non-economic loss pending receipt of Peter Woodland's report. Dr Woodland's report was before the assessor.

38 In my view the allowance of $24,500 made by the assessor for the injuries is adequate compensation for the injuries suffered by Ms Krispyn in the assault.

39 As noted above, because Ms Krispyn's counselling expenses are covered by Medicare, no allowance should be made for future counselling costs. Some allowance should be made for pharmaceutical expenses. Ms Krisypn provided a printed history of scripts from her pharmacist. The referral scripts amount to $50 a year. I allow $100 for future medical expenses.

40 As noted above the expenses total $2,054.15 including medical reports. I allow expenses at this amount.

41 Ms Krispyn failed to declare income from her employment to Centrelink prior to the assault. I have a certificate from Centrelink that states that for the period 20 October 2004 to 8 February 2007 her income was $47,500 over 27 months. Her income over this period was about $2,800 per month, or $33,600 per annum.

42 The fact that Ms Krispyn failed to declare her income to Centrelink when she was in receipt of social security makes me cautious in accepting her uncorroborated evidence about her period of employment subsequent to the assault.

43 Ms Orr's report of 24 August 2007, from a consultation with Ms Krispyn on 30 May 2007, states that Ms Krispyn had been unable to return to work since 30 September 2006. That contrasts with Ms Krispyn's evidence in her victim impact statement that she returned to work for three days a week for some period but then had to discontinue that work. Ms Orr is of the view that in the future Ms Krispyn may be unable to attend work at times. I do not have any evidence as to her recent employment.

44 On the limited evidence available I would allow a global figure of $20,000 for past and future economic loss.

45 Given the way that the case was put before the assessor it is not surprising that she did not make an award for economic loss. She was simply not asked to make such an award.

46 I conclude that Ms Krispyn's award of compensation should be:

1. Non-economic loss $24,500.00
2. Future medical expenses $ 100.00
3. Expenses $ 2,054.15
4. Past loss of earnings (global) $20,000.00

47 I will therefore allow the appeal and substitute an award of $46,654.15.

48 I thank counsel from the State Solicitor for her submissions and for her assistance at the hearing.