A v D [2011] WADC 97 | Case summary

1 DAVIS DCJ: The appellant, Mr Sunderland, appeals against an award made by the Assessor of Criminal Injuries Compensation on 22 September 2010. The award was made in respect of injuries that Mr Sunderland suffered as a result of an assault on him on 17 January 2004. The assault was reported to police but there was no person charged with any offence.

2 The Assessor awarded a total of $11,900 made up as follows:

3 Mr Sunderland is dissatisfied with the decision of the Assessor because no allowance for loss of earnings was included in the award.

4 Mr Sunderland had, before the assault, been on a disability pension but had supplemented his income by doing some surveying work. He told the Assessor, and confirmed to me during the course of the hearing of this appeal, that he did not have any formal qualifications in this area but had some experience. As outlined in a Victim Impact Statement provided to the Assessor, he claimed that he could no longer undertake that work as a result of the assault because he could not cope with the physical aspects of it. Although the Assessor did not provide written reasons at the time of making the award, in a letter to Mr Sunderland dated 5 August 2010 she advised him that on the medical evidence provided, his current complaints of pain and general malaise were primarily, if not completely, related to conditions other than those arising from the assault. The Assessor was not satisfied that any injury suffered as a consequence of the assault had resulted in any reduction of earning capacity.

The nature of the appeal and the admission of further evidence

5 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_._

6 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.

7 At the hearing of this appeal, Mr Sunderland asked me to accept some further evidence, being a letter dated 9 May 2011 from a surveying company and another letter dated 18 December 2010 from a builder. Mr Sunderland had previously done surveying work for each of these persons. I concluded that I should exercise my discretion to receive this further evidence and, accordingly, those two letters, 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

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

9 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.

10 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. 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.

11 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).

12 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.

13 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.

14 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.

15 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.

16 As no person has been charged with any offence in relation to the assault upon Mr Sunderland, s 17 of the Act applies. In circumstances where no person is charged, but a person suffers injury as a consequence of the commission of an alleged offence, it is necessary that the assessor or court be satisfied, under s 17(4), that the claimed injury and loss occurred as a consequence of the commission of the alleged offence.

17 Initially the Assessor refused Mr Sunderland's application for compensation, notifying Mr Sunderland by a letter dated 6 March 2009 that she was not satisfied that an alleged offence had occurred. Mr Sunderland asked the Assessor to review this decision, providing a statement from a witness, his friend Mr Kern, which corroborated Mr Sunderland's version of the assault. Upon reviewing the matter the Assessor wrote to Mr Sunderland on 19 April 2010 and advised that she was satisfied on the balance of probabilities that he was the victim of an unlawful assault and that she would be making a compensation award.

18 I have reviewed the information on the Assessor's file, including copies of relevant documents from the Scarborough Police Station obtained by the Assessor. The documents include copies of statements taken from Mr Sunderland and Mr Kern, an Incident Report, a Running Sheet and a DVD recording of an interview held by police with a person of interest in relation to the assault. I am satisfied from this information that Mr Sunderland was the victim of an unlawful assault.

19 The circumstances of the assault are that on Friday, 16 January 2004 Mr Sunderland went out with Mr Kern for some drinks at a hotel in Scarborough. Mr Sunderland and Mr Kern left the hotel at about 3.00 am the following morning and walked across the hotel car park to a toilet block. Mr Sunderland went into a toilet cubicle and while he was in there, he heard Mr Kern say words to the effect that there were two big blokes at the door. Mr Sunderland responded with 'so what?' As Mr Sunderland and Mr Kern left the toilet block, they observed a male, described as about 6 foot tall with a solid build, approaching them. He approached Mr Sunderland and his friend in an aggressive manner with both fists up like a boxer, saying words to the effect that he was going to smash him (Mr Sunderland). Mr Sunderland raised his hands in self-defence but this male hit his right eye, knocking Mr Sunderland to the ground. As Mr Sunderland tried to return to his feet, he was struck again in his head and back. Mr Sunderland did not see who was attacking him but believed it might have been a second person.

The injuries and loss claimed as a result of the assault

20 The physical injuries which Mr Sunderland received during this attack, as he described in his statement provided to the police, was bruising and cuts to both eyes, bruising and cuts to his nose and some bruising to his back. He attended his local general practitioner (GP) for treatment later that day, 17 January 2004. He received 10 sutures in total for two lacerations above and below his right eye.

21 In a document submitted to the Assessor entitled 'Victim Impact Statement', Mr Sunderland claimed that he continued to suffer from back and neck pain and some localised headaches above the scarring on his right eye. Mr Sunderland also claimed that:

The pain in his neck and back radiated down his leg into his left foot. On a bad day (which would be on average at least once a fortnight) he said the level of pain would reach 8 or 9/10, and he would not be able to move, twist, bend his neck or lift his arms above his shoulders. This made driving or doing daily chores almost impossible and getting to sleep would be difficult. As a result of the pain and restriction of movement of his back, neck and arms he was unable to cope with the physical aspects of his surveying work.
He was unable to sleep properly due to pain and anxiety and having the attack play over and over in his mind.
He was also having panic attacks and was withdrawn and very depressed, unable to attend any social events as he felt nervous around crowds.
The attack had affected all aspects of his life including his relationship with his wife.
He had been seen by a psychiatrist, Dr K Monick, who had diagnosed and treated him for post traumatic stress. Dr Monick had retired and he was currently being treated by Dr Carter.

22 Before assessing Mr Sunderland's claim for loss of earnings, it is necessary to determine exactly what injuries Mr Sunderland did suffer as a consequence of the assault.

Mr Sunderland's pre-existing medical conditions

23 Mr Sunderland attended a medical practice group and saw, over time, more than one medical practitioner in that practice group concerning his various medical complaints. The records of that medical practice group were subpoenaed by the Assessor and I have reviewed these medical records. When I refer to Mr Sunderland's attendance on his GP, I am referring to Mr Sunderland's attendance on this medical practice group. The particular practitioner who saw Mr Sunderland on each occasion varied from time to time.

24 The medical records for the period before the assault establish that Mr Sunderland suffered from the following pre-existing medical conditions:

Diverticulitis. In an entry of 2 January 2002, a note was made of a 'long history' of this disease.
Sleep apnoea.
Hiatus hernia.
Depression. In a report from the psychiatrist Dr Sanath De Tissera dated 26 April 2005 it was recorded that Mr Sunderland had been treated with various antidepressants over the last ten years without much success.
Neck pain.

25 Before the assault Mr Sunderland was on a disability pension, primarily because of the sleep apnoea, although in one of the medical reports before the Assessor, a report from a psychiatrist Dr Katrina Marshall dated 15 April 2008, it was recorded that he was on that pension because of both the sleep apnoea and diverticulitis.

26 At the hearing of this appeal, Mr Sunderland agreed that he had, before the assault, suffered from both neck and back pain but said that it was never as constant or as aggravating as it became after the assault.

27 In relation to his pre-existing depression it appears from the medical records that his depression was exacerbated as a result of the break down of his marriage in late 2003. The entry in the medical records for 16 September 2003 reads:

Persoanl [sic] time of crisis ... wants something to stop him doing something stupid ... very depressed. Marriage splitting up. Needs sleepers ...

28 The next entry in the medical records dated 16 October 2003 notes that:

Saw MO [another doctor in the medical practice], very depressed, crying

Can't eat or sleep

Marriage split up ...

29 After the assault, when Mr Sunderland saw his GP on 23 January 2004 to have the sutures removed, an entry in the medical notes was made as follows:

Was just recovering after wife leaving him, still cries for no reason, or watching TV etc ...

30 I am unable to accept that, as claimed in Mr Sunderland's Victim Impact Statement, the assault on him affected the relationship with his wife. It had already been affected and he had already separated from his wife before the assault.

Mr Sunderland's medical conditions and treatment after the assault

31 The medical records establish that Dr Rehman saw Mr Sunderland on the day of the assault and examined and treated his wounds, including suturing the lacerations above Mr Sunderland's eye and on his cheek. Mr Sunderland's complaints were of headache and blurry vision, pains over the mid-shoulder blade on bending and a sore neck. On examination of Mr Sunderland, his neck was found to be non-tender. His range of movement was tested and found to be mildly painful on flexion. His back showed no visible bruises or tenderness.

32 On 15 June 2007 Dr Rehman wrote a formal medical report confirming he had treated Mr Sunderland on 17 January 2004 immediately after the assault. He reported that Mr Sunderland's vision was normal. There was no injury to his eye, although his right eye was bruised. The lacerations above and below his right eye were cleaned and sutured. (Dr Rehman refers to the lacerations being over the left eyebrow and below the right lower lid. The photographs produced and on the Assessor's file show the lacerations to be on the right eyebrow and below the right eye, on the cheek.) Mr Sunderland's neck was non-tender and the range of movement was mildly painful on flexion. There were no visible bruises or tenderness on his back. His right knee showed superficial abrasions. His left pinna (ear) showed a few abrasions.

33 Mr Sunderland saw his GP a week later, on 23 January 2004, when he had the sutures removed. At this appointment Mr Sunderland complained of pains in the 'upper back where he was kicked' and on examination he was found to have some soft tissue tenderness around the D6 level (which is the thoracic spine) and the left scapula. It was also recorded that his right knee was sore and that on his face he had bruising under the left eye with some tenderness and swelling of the left temple, but no evidence of fracture. Finally, it was noted that Mr Sunderland was 'just recovering after wife leaving him, still cries for no reason', indicating some continuing depression.

34 The next visit by Mr Sunderland to his GP concerning his injuries received in the assault was on 19 February 2004. The medical records note that Mr Sunderland complained of tenderness in his left little finger, which was painful when knocked. Mr Sunderland complained of pains above the right eyebrow and a headache in the area, and that his neck still felt tight. His neck on examination was found to have mild discomfort with reduced range of movement, but without pain. There is no record of any problems with Mr Sunderland's back recorded in this consultation, either in the nature of complaints by Mr Sunderland or on examination by his GP. There is recorded the fact that Mr Sunderland was feeling depressed, could not do or was not interested in doing anything, was unable to sleep and that he was crying 'as before on trivial reasons'.

35 After this appointment on 19 February 2004, Mr Sunderland attended his doctor's surgery only once on 21 May 2004 because he was feeling unwell with a temperature and a sore throat and he was about to travel abroad on a yacht.

36 He did not see his GP again until 10 months later, on 22 March 2005, when his complaints were of neck pain and a sore throat. The notes also record that Mr Sunderland felt that he had ADHD, for which he wanted help. The exact entry in the medical notes is as follows:

Tender C7 stiff neck.

Trouble concentrating. Feel he has ADHD. Burns his dinner 10x all his life. Wants help. Was assaulted 1 yr ago. Unable to enjoy himself PTSD ...

37 The reference to ADHD is, I find, a reference to Attention Deficit Hyperactivity Disorder. The reference to PTSD is, I find, a reference to Post Traumatic Stress Disorder.

38 Mr Sunderland was referred to a psychiatrist, Dr Sanath De Tissera, who wrote a report dated 26 April 2005. In his report, Dr De Tissera expressly referred to the assault and Mr Sunderland's complaints of trouble going out socially, noting however, that he denied panic attacks and was able to go into crowded places without a problem. Nightmares of the incident were also denied. There was, therefore, no diagnosis of PTSD, although Dr De Tissera suggested that Mr Sunderland see a psychologist. Mr Sunderland's other complaints were then set out, which were symptoms of ADHD which he stated he has had since childhood. These symptoms included forgetfulness, problems with concentration and lack of organisation. Dr De Tissera advised that Mr Sunderland's symptoms were consistent with a DSM-4 diagnosis of ADHD. He had commenced Mr Sunderland on a course of dexamphetamine and had arranged for him to undergo a drug screen and further tests.

39 On 10 June 2005, Mr Sunderland saw his GP again and the medical records note that he was not happy with Dr De Tissera. His GP gave him a referral to another psychiatrist, Dr Monick. Also recorded are Mr Sunderland's complaints of head pain (in the forehead) and neck ache. His GP requested x-rays of his cervical spine and arranged to see Mr Sunderland following the results from those x-rays.

40 A radiology report of 16 June 2005 records the findings following x-rays taken of Mr Sunderland's cervical spine. There were no fractures seen. There was some cervical spondylosis, indicating wear in the cartilage and bones of the neck at the C5/C6 level. There is no medical evidence that this spondylosis is in any way related to the injuries which Mr Sunderland received in the assault.

41 At a follow up appointment with his GP on 30 June 2005 Mr Sunderland was complaining of a right supraorbital headache with the notes recording 'right supraorbital nerve pain tender. Was assaulted there previously'. Mr Sunderland also complained of a pain in his scrotum and pain and tenderness in his penis, for which diagnostic imaging was requested.

42 Mr Sunderland was reviewed again on 15 July 2005 where his recorded complaints were left testicle ache and neck and backache.

43 A few weeks later on 19 August 2005, Mr Sunderland saw his GP again, complaining of an ache in his left groin, worried that he had a hernia. His symptoms included pain when walking, with the pain worse at night. The medical notes also record '6 wk pain - urine OK - Don't lift - Pouring milk hurts'. There was no mention of any symptoms related to Mr Sunderland's back or neck.

44 The medical records include a Progress Report from Dr Monick dated 25 August 2005. This report, which is in a fixed format with details completed in handwriting, advised that Mr Sunderland was seen and assessed for ADHD and prescribed dexamphetamine. The comments were that the patient (Mr Sunderland) had much better focus, concentration and motivation, was able to complete tasks well, completed projects and as Dr Monick recorded, this was 'an excellent result'.

45 In September 2005 there was both an x-ray of Mr Sunderland's pelvis and hip joints, as well as diagnostic imaging, relevant to Mr Sunderland's complaint of a painful left groin. The radiology report advised that the x-rays showed that the sacroiliac joints, the bony pelvis and hip joints were all normal. Another report from Perth Radiological Clinic dated 30 September 2005 reported on a CT scan taken of Mr Sunderland's abdomen. The clinical details recorded in that report were 'Six weeks history of pain radiating into the left testicle and medial left thigh with numbness in the left foot'. The findings were of:

Multiple tiny liver cysts of doubtful significance
Diverticular disease in the descending and sigmoid colon but with no evidence of an inflammatory mass or collection.
Small bilateral direct inguinal hernias.

46 Included in the medical records is a Sir Charles Gairdner Hospital Emergency Medicine Summary reporting that Mr Sunderland presented to the Emergency Department on 23 September 2005 with pain in the left lower limb and posterior upper leg. He stated it was an old injury, with the pain worse today. There was no disease found and Mr Sunderland was discharged.

47 At an appointment on 1 February 2006 Mr Sunderland's recorded complaints were headaches and eye strain 'following an assault 2 yrs ago' with the notation that he had been in Thailand and Cambodia for three months, driving over there, and this had made things worse. On examination Mr Sunderland's scar was still tender and it was suggested he see an optometrist for an eye check. It was noted that Mr Sunderland was going back to Thailand again and wanted PF (Panadeine Forte) tablets 'for back pain'.

48 Dr Monick wrote a Progress Report dated 26 July 2006. This report, like the previous one of 25 August 2005, is in a fixed format with some details completed in handwriting. The report stated that Mr Sunderland was seen and assessed for ADHD and had been prescribed dexamphetamine. The handwritten comments were that Mr Sunderland had had a good year:

Pt has had a good year, but involved in caring for others with problems ++. Neighbour had 2 strokes (Shenton Park) and her husbd in SCGH for medical problems.

Pt has been able to complete projects at home. He is doing a few jobs for friends.

Pt still is experiencing [symptoms] PTSD, phobic of soc. activities with alcohol.

49 On 26 September 2006 Mr Sunderland was seen by his GP again because of pain in his testicles and penis. He was referred to a urologist, Mr Chris Rowling, for a review of this. Mr Sunderland was also recorded as complaining of back pain. The symptoms recorded in the medical notes were:

Pain at upper thoracic spine, long time, no injury.

Rotation is reduced to right.

Tender R of T4.

50 An x-ray of Mr Sunderland's thoracic spine was undertaken on 17 October 2006 and, as reported, showed no abnormality. There was no fracture or bone destruction seen and no problem in vertebral heights or disc spaces.

51 On 5 and 25 October 2006, Mr Sunderland complained again of ongoing back pain. The location of that back pain is not recorded, although in the medical records for the appointment on 5 October 2006, it is recorded as 'Aches neck back.' On 9 November 2006 it was recorded that he was still experiencing pain between his shoulder blades but that he had a normal x-ray.

52 A further complaint of ongoing pain between his shoulder blades was recorded on 14 December 2006 with a notation that Mr Sunderland had been to SCGH (Sir Charles Gairdner Hospital) in 2005 and that no cause had been found for this pain. It appears from the medical records that he saw two doctors from the same practice on 14 December 2006, with a second doctor recording that he had been to Osborne Park Hospital physio and was working on his thoracic spine which was 'getting better'. It was also recorded that Mr Sunderland had had a CT of his lumbar spine done and that he would bring that in.

53 Mr Sunderland was reviewed again on 2 January 2007. The medical records note that Mr Sunderland had brought in all x-rays but none to do with his lumbar spine and an x-ray of the lumbar spine was requested with a note 'backache with L leg pains'.

54 A report relating to the x-ray taken of the lumbar spine on 4 January 2007 recorded findings of normal lumbar alignment and vertebral heights, with all disc spaces preserved. There was no compression or wedge fractures identified and no spondylolisthesis or spondylolysis seen.

55 Dr Rehman saw Mr Sunderland on 22 January 2007 and recorded as follows:

Case of criminal injuries, wants report from 17.1.2004.

Also complains of pains left leg pains, has been investigated, damage in spine has been ruled out, also numbness in the left foot.

Complains of stomach problem with above medication.

Panadol doesn't work, tramal works sometimes only.

Also has been on cefelex for 4 months for a urinary problem, going for cystoscopy.

Multiple other issues, psychiatrist wants GP to dispense medication etcetera.

Management

Counsel re multiple issues ...

56 On the same day, 22 January 2007, there are separate notes made by Dr Chang which record that 'inza [sic] did not help with backache, abd upset: has stopped. MR has given him tramal. Had 3 x physio at OPH with relief for upper thoracic pains'.

57 On 25 January 2007 Dr Chang saw Mr Sunderland, recording that he had written a script for dexamphetamine tablets and that Mr Sunderland was going overseas next month for three months.

58 On 11 May 2007 Mr Sunderland was seen with abdominal pain. It was recorded that he was on cephalexin for his testicle tenderness and Panadeine Forte for 'left post leg pain'. A script was written for both medications.

59 Mr Sunderland was next seen on 7 June 2007, this time by Dr Rehman, who recorded the following:

Case of assault in 2004.

Has had multiple pains after the assault, not sure if related to assault.

Complains of pains in the left groin going down into the left foot and testicle.

Due to see a urologist, Dr Rawlings, [sic] for the testicular pains, has been earlier advised cystoscopy but patient cancelled the procedure as he was not convinced that the pains are related to his bladder.

Gets relief with hot air directed towards the left testicle.

Gets worsening of pains lasting 2 to 3 days after having sex.

Has been investigated at length but nothing found, wants a surgeon to open him up and have a look inside.

Has had neck physiotherapy which helped the neck pains but not the leg pains.

Had pains over the right eye for which he has seen an optometrist who said his vision was okay.

Requests a medical report to put in a victims of crime application.

Management

Discussed/counselled re treatment options ...

60 In his formal medical report of 15 June 2007, Dr Rehman confirmed that when he saw Mr Sunderland on 7 June 2007 he complained of multiple pains, that he was not sure if they were related to the assault but was wanting to search for some answers. Dr Rehman set out in this report the other matters recorded in the notes he made on 7 June 2007.

61 On 25 July 2007 Dr Monick provided a progress report, in the same form as the previous reports, relating to Mr Sunderland's ADHD treatment. In the comments, as handwritten, Dr Monick mentioned that Mr Sunderland had brought his fiancé to Australia from Thailand and they were getting married in August, and then recorded:

Pt only has some [symptoms] related to an assault and recently noticed [increased] anxiety when picking up friends from hotel. (illegible) did not pursue the assault as he felt afraid of the assailant. Given xanax 0.25 mg (illegible) anxiety.

62 On 21 August 2007, Mr Sunderland saw Dr Chang who recorded Mr Sunderland's complaints of a neck ache 'since last week'. It was noted that Mr Sunderland was unable to flex, but the rest of his neck movements were full. There was some tenderness at the right side of the cervical spine.

63 On 3 October 2007, Dr Chang recorded Mr Sunderland complaining primarily of pain at the scrotal region. There was also a recording of Mr Sunderland experiencing neck ache and being unable to sleep. Dr Chang requested a CT of the cervical spine with a note that Mr Sunderland was experiencing pain at the base of his neck.

64 On 26 October 2007 Mr Sunderland saw Dr Chang again. Dr Chang recorded that Mr Sunderland said he had asked for a CT of the lumbar spine and not the neck. He said he got pain at the lumbar region. Dr Chang had in fact recorded on the last occasion that Mr Sunderland's complaint was of neck ache and not being able to sleep. From the notes it appears that Dr Chang agreed to request radiology of the lumbar spine.

65 The next recorded appointment is on 7 March 2008 with another doctor, Dr Lee. At this consultation Dr Lee recorded Mr Sunderland's complaint of pain going from his left groin down his left leg to his knee which was 'ongoing for several years'. It was also recorded that Mr Sunderland found it uncomfortable to sit. He also complained of painful bilateral wrist, intermittently for one to two years, but with no tingling of fingers. Among other things, it was also recorded that Mr Sunderland was going overseas again for three and a half months.

66 Dr Katrina Marshall, a consultant psychiatrist, provided a report to Mr Sunderland's GP dated 15 April 2008. From that report it is apparent that Mr Sunderland had been referred to Dr Marshall by his GP. Mr Sunderland's presentation to Dr Marshall was of a longstanding history of difficulties since his schooling years with learning new tasks and sustaining attention, struggling academically and in his employment with completing tasks and maintaining focus. Mr Sunderland also gave Dr Marshall a history that he could be very forgetful, impulsive, easily bored, restless and according to him his school reports stated that he was fidgety and distractible. Mr Sunderland also mentioned his other ailments, with Dr Marshall recording in her report that while Mr Sunderland gave a history of an assault in 2004 with some avoidance behaviours as a result and that he claimed that he had PTSD, he did not fulfil all the criteria for that condition. The only diagnosis made was of ADHD, with his symptoms dating back to his early childhood and school years. The only recommendation for treatment was to continue on his dexamphetamine medication and regular reviews.

67 A localised bone scan of Mr Sunderland's spine was undertaken on 22 September 2008. The report of that date records that the clinical notes were 'unexplained back pain with left leg radiation. Assess skeleton'. The findings were that images of blood flow to the anterior and posterior pelvis were considered to be normal and there was no abnormal tissue phase activity identified on the tissue phase images of the cervical, thoracic or lumbar spine. No abnormalities were identified, although there was what was described as evidence of 'trivial' degenerative disease in the thoracic spine and at the lumbosacral junction.

68 The last entry in the medical records is dated 15 July 2009, which does not relate to any matter relevant to this claim.

69 There is a further report from Dr Chris Carter, psychiatrist, dated 15 February 2010. This report is in the form of a letter addressed to Mr Sunderland and states as follows:

This letter is to confirm that I examined you on 9 January 2010.

I found that you have some features of Post Traumatic Stress Disorder (PTSD) following an Assault at Scarborough on 16 January 2004. I found that you ruminate endlessly about the assault and the fact that you have been refused Criminal Injuries Compensation. You do not dream about the event but you avoid situations such as pubs and parties which might remind you of it. You have reduced expectations of enjoyment in the future and you are preoccupied with having your grievance recognised.

These features of PTSD have been sufficient to prevent you getting back to a normal life.

Findings relating to injuries and loss suffered as a consequence of the assault

70 I find that the injuries which Mr Sunderland suffered as a consequence of the assault were:

lacerations above his right eyebrow and on his right cheek requiring 10 sutures, with resultant minor residual scarring;
bruising to both eyes;
a minor abrasion to his left ear;
minor abrasions to his right knee;
soft tissue injury to his neck and upper back (in the thoracic region).

71 I am satisfied that Mr Sunderland also suffered from some symptoms of depression as a consequence of the assault. While Mr Sunderland did have pre-existing depression, from the evidence in the medical records his symptoms of depression were exacerbated immediately after the assault. That exacerbation was, however, not long lived. I find from all of the evidence that after 19 February 2004 he had no complaint of depression.

72 I am not persuaded on the balance of probabilities that Mr Sunderland's problems with his groin, which began in mid-2005, with pain going down his leg and into his left foot is in any way related to or as a consequence of the assault. As recorded in the medical notes of 19 August 2005, that pain had commenced six weeks before, which would take the onset of the pain to early July 2005, some 18 months after the assault. Both the long delay and the nature of the pain indicate that this condition is not a consequence of the assault. Although Mr Sunderland may believe that this pain is related to the neck and back pain he suffered as a result of the assault (as he has set out in his Victim Impact Statement), none of the medical evidence supports his belief. Mr Sunderland has failed to prove, on the balance of probabilities, the necessary causal relationship between the assault and the pains he was experiencing in his groin and down his left leg into his foot.

73 I am also not persuaded on the balance of probabilities that Mr Sunderland suffered any lumbar spine injury as a consequence of the assault. There was no recording of any lumbar back pain arising from the injuries he suffered in the assault when he saw his GP on either 17 or 23 January 2004 or 19 February 2004. While there were complaints of back pain, the medical records show that this was in the area of his upper back, or thoracic spine, between the scapula. For example, as recorded on 23 January 2004 Mr Sunderland reported experiencing pain in the upper back 'where he was kicked'. The injury to his back which Mr Sunderland received in the assault was to the upper back or thoracic region, and not the lower back or lumbar region. The first mention of any lumbar back problem was not until almost three years later, on 14 December 2006. By that time, Mr Sunderland had been experiencing problems with his groin and left leg for almost 18 months. From the medical records of 2 January 2007 this lumbar back ache was said to be associated with the left leg pains experienced by Mr Sunderland. The radiological evidence showed no abnormality in his lumbar spine. There is no evidence from an appropriately qualified medical practitioner that any problem in Mr Sunderland's lumbar back has any causal connection with the assault.

74 On the basis of the medical evidence I am also not satisfied that Mr Sunderland suffered from PTSD as a consequence of the assault. Neither Dr de Tissera nor Dr Katrina Marshall diagnosed PTSD, while each of them diagnosed Mr Sunderland with ADHD. Further, contrary to Mr Sunderland's claim that he was being treated by Dr Monick for PTSD, the reports from Dr Monick do not establish this to my satisfaction. The first two reports provided by Dr Monick to Mr Sunderland's GP mentioned only the treatment of Mr Sunderland's ADHD. While Dr Monick did record in the report of 26 July 2006 that Mr Sunderland was experiencing some PTSD symptoms, Dr Monick made no notation of any diagnosis of PTSD or recommendations for treatment and the only medication noted as prescribed was dexamphetamine for the ADHD. In Dr Monick's report of 25 July 2007, there was mention of symptoms related to the assault and Mr Sunderland's symptoms of PTSD, but what was diagnosed was anxiety, for which Mr Sunderland was prescribed Xanax. There was no diagnosis of PTSD.

75 In my view, while Mr Sunderland may have been experiencing symptoms of anxiety in mid 2007, those symptoms coincide to a large degree with the other medical problems which he was experiencing at the time, none of which, as I have already found, has been shown to be causally related to the assault. There is no evidence from Dr Monick or any other appropriately qualified medical practitioner that any anxiety from which Mr Sunderland suffered at this time, over three years after the assault, is causally related to the assault. I am not satisfied on the balance of probabilities that any anxiety from which Mr Sunderland has suffered is as a consequence of the assault.

76 I am unable to place any weight on the report of Dr Carter for a number of reasons. First, it is apparent that Dr Carter had seen Mr Sunderland on only one occasion, almost six years after the assault. Secondly, he stated only that Mr Sunderland had 'some features' of PTSD. There is no actual diagnosis of PTSD. Thirdly, Dr Carter did not provide reasons for his finding that the features he described were features of PTSD. Little or no weight can be given to an expert opinion if the basis of the opinion cannot be substantiated: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [69] - [85]; Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370, 389 - 390; Pollock v Wellington (1996) 15 WAR 1, 3 - 4. Fourthly, Dr Carter's finding is based substantially upon Mr Sunderland's grievances about the fact that he had (at the time of writing the report) been refused criminal injuries compensation and was preoccupied with having his grievance recognised. In my view that pre-occupation is related to the process of the application for criminal injuries compensation which, like the stress of subsequent court proceedings or litigation, is non-compensable: Garton v McCormack [2002] WADC 111 [15]; (2002) 30 SR (WA) 307; Duvall v Godfrey Virtue & Co (a firm) [2001] WASCA 163 [30] and [40].

77 As to Mr Sunderland's capacity to work, he claimed in his Victim Impact Statement that the pain in his neck and back had radiated down his leg into his left foot, restricted his ability to move, twist, bend his neck or lift his arms above his shoulders and thus he was unable to cope with the physical aspects of his surveying work. Mr Sunderland has attributed all of his multiple pains to the assault. On the information available to me I am, however, unable to accept that all of his multiple pains relate to the assault or that Mr Sunderland has been incapacitated to the extent or for the period he has claimed, for the following reasons:

The injuries to his neck and upper back suffered in the assault were soft tissue injuries only.
The injuries which Mr Sutherland suffered to his neck and upper back did not radiate down his leg into his left foot. The pain down his leg into his left foot originated from the groin pain he developed in mid-2005. For the reasons I have already given in [72], I am not satisfied there is any causal link between this groin, left leg and left foot pain and the assault.
For the reasons I have already given in [73] I am not satisfied that any subsequent problems which Mr Sunderland has had with his lower back (lumbar spine) were as a consequence of the assault.
The following medical conditions which, as I have found, have not been proved to be as a consequence of the assault, have affected his earning capacity since mid-2005, and continue to do so:

(a) His ADHD, diagnosed in April 2005, the symptoms of which I find, from all of the information, were evident before the assault.

(b) His groin problems, and associated left leg and foot pain, the onset of which occurred in mid-2005. That caused pain when walking, was worse at night and restricted Mr Sunderland's ability to lift.

There is no evidence that any symptoms from his neck and upper back caused by the assault continued beyond mid-2007:

(a) There was some restriction of movement in his thoracic spine recorded on 26 September 2006 where reduced rotation was noted on examination. Relief from his upper back pain was obtained from physiotherapy, as recorded on 14 December 2006 and 22 January 2007 with a note that the thoracic spine was 'getting better'. After this time there is no recorded problem with Mr Sunderland's upper back.

(b) As recorded on 7 June 2007 Mr Sunderland had obtained relief from neck pain with physiotherapy but no relief from the leg pains he was then experiencing.

(c) While at his appointment with his GP on 21 August 2007, there was some restriction recorded in the movement of Mr Sunderland's neck, the problems at that stage with his neck were recorded as having been only 'since last week'. Given the description of this neck pain, as recorded, and Mr Sunderland's pre-existing neck condition, I am not satisfied on the balance of probabilities that any restrictions in his neck from and after 21 August 2007 are causally related to or as a consequence of the assault.

On the medical evidence, by mid-2007 Mr Sunderland's other multiple complaints of pain, which have not been shown to be causally related to the assault, had become his principal focus and cause of his incapacity. As recorded in the medical records of 7 June 2007 and confirmed in the subsequent medical report from Dr Rehman, Mr Sutherland was not sure himself that the multiple pains he was experiencing at the time were related to the assault, contrary to the claim he made to the Assessor in his Victim Impact Statement.

78 Mr Sunderland has relied on the two letters dated 9 May 2011 and 8 December 2010 which I accepted in evidence at the hearing of this appeal, to support his claim for loss of earning capacity. The author of each letter has stated that since the assault in January 2004 he has asked Mr Sunderland to work and he has declined and told the author that he did not think he was able to carry out the physical aspects of the work due to his neck and back pain, or in the case of the second letter, 'due to his injuries'. While Mr Sunderland may believe and has told each of these people that his inability to carry out surveying work relates to the injuries suffered in the assault, for the reasons I have given in [77], I am not satisfied on all of the information and material before me that this is the case.

79 Based on the medical evidence I am satisfied on the balance of probabilities that for a short time, from the date of the assault until 19 February 2004, Mr Sunderland was unable to work while he was recovering from the injuries he suffered in the assault. After 19 February 2004 and based on the matters I have set out in [77] I find that:

From 19 February 2004 until mid-2005, Mr Sunderland suffered only a partial incapacity for work as a consequence of the injuries from the assault.
From mid-2005 to mid-2007, any incapacity which Mr Sunderland had for surveying work was not primarily related to the injuries he suffered as a consequence of the assault. The other non-compensable medical conditions of his ADHD, groin problems (with associated left leg and foot pain) and lumbar back problems caused or materially contributed to that incapacity. Any award of compensation for loss of earnings for this period should be significantly reduced to take into account the material contribution of these non-compensable conditions to that loss.
For the period since mid-2007, Mr Sunderland has failed to establish that his complaints of pain and restriction of movement and any inability to cope with the physical aspects of surveying work are as a consequence of the injuries he suffered in the assault.

80 In my view the allowance of $11,000 made by the Assessor is adequate compensation for the injuries suffered by Mr Sunderland in the assault, as are the allowances for travel and medical expenses, and I will not disturb those assessments.

81 While the Assessor was not satisfied that any injury suffered as a consequence of the assault had resulted in any reduction of earning capacity, I am satisfied that Mr Sunderland did suffer some loss of earning capacity as a consequence of the injuries which he received in the assault. He should be awarded some compensation for past loss only. On the basis of the findings I have made in [79], I will assess Mr Sunderland's claim for loss of earnings on the basis that he was fully unfit for work for one month, and he suffered a partial loss of earning capacity from 19 February 2004 to mid-2007. There should, however, be a reduction of 75% in the award for Mr Sunderland's loss of earning capacity for the period between mid-2005 and mid-2007, by reason of the significant contribution made to that loss by his non-compensable medical conditions.

82 Mr Sunderland produced to the Assessor a copy of his income tax return for the year ending 30 June 2003, together with copies of tax invoices for work he had done between 1 July 2003 and 30 December 2003. These were tax invoices addressed to three separate survey companies or firms for work undertaken by Mr Sunderland.

83 The income tax return shows that during the year ending 30 June 2003, his gross income from drafting and surveying work was $15,187. After deduction of expenses of $10,774, he earned $4,413. This equates to $85 per week. Applying Australian Tax Office tax tables, this falls within the applicable tax free threshold.

84 The tax invoices produced by Mr Sunderland for his earnings between 1 July 2003 and 31 December 2003, a total of 26 weeks, show income earned as follows (the hours worked are not shown; nor is the hourly rate):

85 These invoiced amounts included 10% for GST, so the amount that Mr Sunderland would have received after remitting GST is $3,065. That equates to earnings of $118 per week before deduction of expenses. Assuming that Mr Sunderland's expenses in that 6-month period were in a similar ratio to those in the previous financial year, his expenses over the 6-month period would be approximately 70% of his income. His expenses would therefore equate to $2,145, with a resulting income after deduction of expenses of $920. That equates to weekly earnings to Mr Sunderland, for this 6-month (26 week) period of $35 per week.

86 Based on Mr Sunderland's pre-existing medical conditions and his actual earnings, his earning capacity before the assault was limited and any loss of earning capacity in consequence of the assault is therefore minimal.

87 It is not possible to assess Mr Sunderland's loss precisely. In criminal injuries compensation, the assessment of compensation for loss of earning capacity often cannot be proved by precise figures, and it is a matter of judgment. I am able to award damages on a global basis: A v D (489) and (495 - 496); MJN v MAJS [58].

88 For past loss of earning capacity taking into account Mr Sutherland's net weekly earnings before the assault as set out in [83] and [85], and the other matters I have set out at [79], [81] and [86] I allow a global amount of $4,000.

89 I conclude that Mr Sunderland's award of compensation should be:

90 I will therefore allow the appeal and substitute an award of $15,900.

Injuries Compensation Act 2003

A v D

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