A v D [2012] WADC 45 | Case summary

1 This is an appeal from a decision of an assessor of criminal injuries compensation made on 23 September: 'ALD' [2010] WACIC 33 (CIC Decision). As the offences underlying the application for criminal injuries compensation are of a sexual nature against a person who was then a minor, I will adopt the same approach as the assessor and anonomise the references to the applicant and the respondent. The respondent is the maternal grandfather of the applicant.

2 Following a District Court trial, the respondent was found guilty of one count of inciting a child under the age of 13 years to do an indecent act and one count of indecent dealing of a child under the age of 13 years. In each case the complainant was the appellant. The events took place between 12 August 1999 and 12 August 2002. There was a third offence, again against the appellant, on which the respondent was acquitted. At the time of conviction the respondent was aged 72. He was sentenced to a term of imprisonment of 16 months on each count (to be served concurrently).

3 The circumstances of the offending is conveniently summarised in the sentencing remarks of the trial Judge, Williams DCJ:

The complainant's evidence is that on one occasion when she was aged either eight or nine, according to her evidence, your wife; that is, the grandmother of the complainant, was not home, on an occasion when, according to her, you took her into the bathroom.

Initially you were talking to her about what she described as her periods - the medical term would be her menstrual cycle - and that you pulled your pants down, she says, to your ankles and that you showed her your penis and said to her, 'This is what it looks like,' and asked her to touch it so that she would know what it feels like. ...

In relation to count 2, this is on some other and separate occasion when the complainant says that she was aged either 10 or 11. Her evidence is roughly 10; the indictment reads 10 or 11. Count 1 - her words were 'aged eight or nine' so there's a time gap between the two of those. At that time it appeared that you carried out a service providing meals on wheels for elderly persons; that, according to you, she would accompany you - or according to her and yourself, she would accompany you on occasions.

On one particular occasion you were back at the depot carpark. You were in the driver's seat; the complainant was in the passenger seat. According to her evidence, she had jeans and a midriff top on. You were talking to her. You pulled down her pants. You started kissing her on the stomach and subsequently touched her on the vagina. ...

4 The application for criminal injuries compensation was made on 18 August 2010. The assessor allowed the application to be made out of time pursuant to Criminal Injuries Compensation Act 2003 (WA) (CIC Act) s 9 (CIC Decision [2]).

5 The assessor awarded compensation of $34,222 comprising:

6 The notice of appeal was filed 8 September 2010, within the 21 day time limit imposed by CIC Act s 55(3).

7 The essence of the appellant's submissions on the appeal was that the assessor significantly underestimated the compensation awarded for general damages and future economic loss having regard to the emotional and psychiatric problems suffered by the appellant.

8 In hearing this appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the assessor's decision': CIC Act s 56(1). The court is able to determine the appeal 'solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information': CIC Act s 56(1). It is open to for the court to confirm, vary or reverse the assessor's decision, either in whole or in part: CIC Act s 56(2)(b).

9 The appeal is a hearing de novo: Gullelo v Halloran [2008] WADC 145 [5]. Notwithstanding CIC Act s 56(1), it is nonetheless appropriate to have regard to the assessment made by the assessor as a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63 [13]. However, the appellant does not have to demonstrate an error on the part of the assessor in order to succeed: Gullelo [5].

10 The correct approach to adopt in assessing the amount of compensation under the CIC Act 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 CIC Act, and to the jurisdictional limit of the CIC Act: M v J and J v J (Unreported WASC (Scott J); Library No 920598; 19 November 1992); RJE v Bandy (Unreported WASC (Burt J); Library No 1365; 31 May 1974), 3; Re Utting [2011] WADC 10 [6].

11 The respondent was present in court for the hearing of the appeal, though was not represented. At the commencement of the hearing I advised the respondent that at the conclusion of the submissions by counsel for the appellant and the state, I would give him an opportunity to make any submission he wished to make. He then returned to the public gallery.

12 At the conclusion of submissions, I invited the respondent back to the bar table. He made two points. The first was that the appellant is currently living with a man, which in the respondent's view was inconsistent with the position in the psychiatrist's report that she had trouble relating to men.

13 The respondent's statement is evidence from the bar table. It was open to the respondent to have filed an affidavit containing this information in an admissible format. As he did not do so, I decline to take it into account in the assessment. In any event, in his report dated 3 February 2012, Dr Hoffman, a consultant psychiatrist, noted that the appellant had told him that she had been in a relationship with a man for a year, and was sharing a residence with him. Dr Hoffman's opinions clearly take into account this relationship.

14 The second point was that the appellant was a 'dreamer' and probably would only have worked a few hours a day in any event, and would have been happy about that. This is a personal observation. It is one on which I place no weight.

15 The present application relates to more than one offence. The application was required to be made within three years after the date on which the last offence to which it relates was committed: CIC Act s 9(1).

(a) the offences were committed between 12 August 1999 and 12 August 2002, when the appellant was aged between 8 and 12;

17 An assessor may allow a compensation application to be made after the three years if he or she thinks it is just to do so and may do so on any conditions that he or she thinks it is just to impose: CIC Act s 9(2). As I am deciding the decision afresh, I need to exercise this discretion: Hinchcliffe v Hinchcliffe [2010] WADC 78 [24].

18 The appellant filed an affidavit dated 22 March 2012 of Margaret Holwell, a consultant solicitor employed by the appellant's solicitors, dealing with this issue. Ms Holwell annexes a letter to the chief assessor dated 24 June 2010 dealing with the application for leave to extend the time within which the application may be made. This letter refers to the chronology I have set out above. It also contains the following submissions:

(a) the appellant was 14 years old at the time of the conviction;

(b) the offences have had an ongoing psychiatric effect on her, including an adverse effect on her functioning and confidence; and

(c) she had then recently turned 18 (13 August 2009) and had only since then been able to lodge an application in her own right.

19 Given these factors, in my view it is just to extend the time within which the application may be made, and I so order.

20 The appellant seeks leave to adduce further evidence pursuant to CIC Act s 56(1). The evidence she seeks to adduce is two further reports of Dr Hoffman, dated 3 February and 20 March 2012. His report of 30 October 2009 was before the assessor. The two further reports provide an update on the appellant's psychiatric symptoms and the impact of these symptoms on her earning capacity.

21 The general rule appears to be that as the appeal is a fresh hearing, further evidence should be admitted unless there is some reason why it would be unjust to do so, especially given the beneficial purpose of the CIC Act and the informal nature of a hearing before an assessor: TAW v NJS [2011] WADC 187 [17]; Hinchcliffe [9]; Re Tilbury [2010] WADC 46 [3].

22 The two recent reports of Dr Hoffman allow the court to determine the appeal, and decide the matter afresh, on the basis of up to date information. They cover a key period, namely the first two or so years of the appellant's working life. I did not sense that there was any lack of preparation by the appellant's lawyers in the initial application. There is no reason why it would be unjust to admit the evidence. It was for this reason, at the hearing of the appeal I allowed this evidence to be received.

23 As the offences occurred between 12 August 1999 and 12 August 2002, the maximum amount of compensation payable for a single offence is $50,000: CIC Act s 31(1).

24 The maximum in CIC Act s 31(1) is a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463; TAW [21].

25 In the present case, the appellant's injuries are said to be as a consequence of two proven offences. If the two offences are 'unrelated' the compensation must not in aggregate exceed twice the maximum: CIC Act s 34. If these two offences are 'related', the aggregate compensation must not exceed the maximum: CIC Act s 33(2). Offences are 'related' to one another if an assessor is satisfied 'that they were committed at approximately the same time, whether by one person or by 2 or more persons acting in concert' or 'that they are related for any other reason': CIC Act s 33(1).

26 The assessor found that the two offences were unrelated: CIC Decision [2]. He noted that the indictment recited that the first offence was committed between 12 August 1999 and 12 August 2001 and that second offence was committed between 12 August 2000 and 12 August 2002. The assessor concluded that it was impossible to discern exactly the time when the two proved offences occurred. On that basis he was unable to say that the offences were committed at 'approximately the same time'. The assessor considered that this term implied at least some specificity and proximity in time between the events.

27 In the sentencing comments from Williams DCJ, his Honour states that one offence occurred when the appellant was 'roughly 10' and the other 'aged eight or nine'.

28 Like the assessor, I am not satisfied that that the two offences were 'committed at approximately the same time'. The two offences are not related. The maximum compensation I may award is thus $100,000.

29 The term 'injury' is relevantly defined in CIC Act s 3 to mean 'mental and nervous shock'. This phrase contemplates the impact of the offence on the mind or nervous system: Hatfield v Under Secretary for Law (Unreported; WASC (Burt J); Library No 4012; 15 December 1980) 5; KMA [24]. It refers to 'mental or emotional harm as opposed to physical injury or bodily harm': Neumann, 461. It must be of an enduring character so as to amount to an injury, as opposed to a mere emotional reaction: Neumann, 461; KMA [24]. For example, mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress and disgust are seen as compensable: M v J and J v J, KMA [24].

30 In the witness statement she provided with the initial application, the appellant stated that she then had nothing to do with her maternal grandparents. At that time (October 2009), the appellant said that she felt she was 'not exactly normal in my relationships with boys'. She said that 'I can only go so far and then I freak out ... [my] physical body is screaming at me, putting on the brakes'.

31 The appellant describes ongoing feelings of anger, disappointment and betrayal towards the respondent.

32 At the time of the police investigation and trial, the appellant received counselling. Initially this was from a private therapist. Between March 2005 and August 2006 she received counselling from the child protection unit of Princess Margaret Hospital (PMH). This counselling was provided by Maggie Hampton, a senior clinical social worker. Ms Hampton provided a report dated 10 March 2010 that was given to the assessor.

33 When the appellant was first seen by PMH, she had a number of 'intrusive symptoms of trauma and alterations in her relationships with others' as a result of the sexual abuse she experienced. The symptoms were identified as post traumatic stress disorder (PTSD) symptoms, cognitive disturbances, mood disturbances, interpersonal difficulties with peers, interpersonal difficulties with family members and being ostracised by the extended family. Specifically, Ms Hampton observed:

[The appellant] displayed depressive symptoms of feelings of helplessness, hopelessness and had difficulty concentrating, particularly at school. The abuse impacted on [the appellant]'s relationships with her family. She felt isolated and rejected by her family. She felt different to her siblings and was angry with her sister who had expression (sic) concern for their grandfather.

34 The treatment appeared to help the appellant which led Ms Hampton to conclude that:

There was a reduction in trauma symptoms experienced by [the appellant] on conclusion of counselling. [The appellant] addressed what was possible for her to do at 15 years of age. However, ongoing sexual abuse by her maternal grandfather which commenced at an early age had impacted on many areas of her functioning, ie self-concept, self-esteem, her sexuality, academic performance, her relationship with peers and members of her nuclear and extended family. Her ability to trust others was significantly impaired by the abuse and the ongoing denial of the abuse by her maternal grandmother and aunt.

These issues are likely to be triggered again when she is older and in particular if ... begins to form a close relationship with a male. [The appellant] is likely to require therapy to deal with this process.

36 The plaintiff has also been reviewed by Dr Hoffman. Dr Hoffman prepared a report dated 30 October 2009 which was in the materials given to the assessor. As I have noted, he also prepared reports dated 3 February and 20 March 2012, which I have allowed into evidence.

37 In his report dated 30 October 2009, Dr Hoffman records the following relevant symptoms that the appellant reported to him:

(b) difficulties in having male friends and in particular in getting a boyfriend;

(e) chronic low self-esteem and difficulty in maintaining a sense of self;

(h) experiencing flashbacks, initially a few days per week, but reducing to once every one to two months;

(i) frequent nightmares related to the trauma, of the respondent and of males generally;

(i) experiences of 'going into the zone' and staring, suggestive of dissociative episodes;

(m) irritability and anger, in particular towards her parents and little sister; and

(n) impairment of functioning such as motivation, concentration, persistence, pace and social functioning.

38 Dr Hoffman observed the appellant to 'experience dissociative episodes of very short duration on two separate occasions when discussing the abuse during the interview'. He formed the opinion that the appellant met the relevant diagnostic criteria for PTSD of mild to moderate severity and of a chronic (longstanding) nature. He also noted that although she did not then meet the relevant diagnostic criteria for a major depression, she was vulnerable to developing this, which is frequently co-morbid with PTSD. Dr Hoffman further opined that the PTSD was a direct consequence of the sexual abuse by the respondent. He concluded:

In my opinion, [the appellant's] prognosis is guarded. The sexual abuse she suffered at the hands of her maternal grandfather has resulted in the development of a Post-Traumatic Stress Disorder and has had a significant impact upon her functioning particularly interpersonally, socially, as well as in terms of employability, and concentration, persistence and pace.

It is therefore my concern that, without psychological treatment, she will remain significantly impaired in these domains of functioning for the foreseeable future.

39 As I have noted above, at her second consultation with Dr Hoffman in February 2012, the appellant reported being in a relationship with a man and sharing a house with him. The appellant reported difficulties in completing TAFE studies and with work involving customer service. She repeats many of the symptoms set out above, with increasing symptoms of what Dr Hoffman described as depressive episodes.

40 In his report dated 3 February 2012, Dr Hoffman opined that the appellant continued to meet the diagnostic criteria for PTSD of chronic duration and moderately severe nature. To this he added co-morbid recurrent depressive episodes, 'precipitated and perpetuated by her experience of childhood sexual abuse by' the respondent.

41 Dr Hoffman also added that chronic PTSD and major depressive episodes result in impairment of cognitive functioning particularly in terms of concentration and short term memory. He continues:

This impact has long term implications in terms of study and employment such that patients' suffering from these conditions frequently suffer long term difficulties in maintaining persistence and motivation and struggle to maintain their studies and long-term employment.

In addition, chronic Post Traumatic Stress Disorder and Recurrent Major Depressive Episodes also frequently result in long term impairment in interpersonal and social functioning, which are prerequisites in terms of meeting the criteria for a management role. The recurrent dissociative episodes described and lack of trust as a consequence of the abuse also contribute to impaired functioning in terms of both study and maintaining employment.

In my opinion, in [the appellant]'s case, this is as a direct consequence of the childhood sexual abuse she experienced.

[The appellant]'s prognosis as described in my initial report has not significantly changed.

[The appellant] has maintained a close intimate relationship with her boyfriend for one year. However, the symptoms of depression and post-traumatic stress disorder continue to impact on her ability to maintain relationships and maintain functioning in all domains, and, in my opinion this will be the case for the foreseeable future.

43 It thus appears that, if anything, the appellant's symptoms got worse in the 18 or so months between her two appointments with Dr Hoffman.

44 Dr Hoffman is clear in his opinion that the appellant's PTSD and major depressive episodes are a direct consequence of the childhood sexual abuse that she experienced. The evidence of the plaintiff's childhood sexual abuse falls into the three categories:

(b) the one offence on which the respondent was acquitted; and

45 In relation to the third category, the appellant reported to Dr Hoffman that she had been sexually abused by the respondent for 'as long as I remember'. The assessor refers to a diary maintained by the appellant in which she identified the three instances of abuse the subject of the indictment and three other instances. I agree with the assessor's comment that these instances 'are vague and clearly did not provide sufficient information for charges to be laid in respect of those matters' (CIC Decision [4]).

46 CIC Act s 12(1) provides that a person who suffers injury 'as a consequence of' the commission of a proven offence may apply for compensation. The onus is on the appellant to prove that her injuries are 'as a consequence of' the proven offences: TAW v NJS [2011] WADC 187 [85].

47 The words 'as a consequence of' require a causal relationship or connection: Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, at 673. Whether that causal relationship exists is 'essentially a question of fact, to be resolved as a matter of common sense': Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 - 413; Fagan, 673; RLG v SG [2010] WADC 132 [12]. It is sufficient that, as a matter of ordinary common sense and experience, the proven offences should be regarded as having 'materially contributed' to the harm, in the sense that the contribution was not negligible: Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613, 620; March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515, 522; Lyle v Soc [2009] WASCA 3 [40].

48 In the present case, there are multiple causes of the plaintiff's childhood sexual abuse, and thus of the plaintiff's current psychiatric symptoms. The instances of sexual abuse other than that in the two proven offences may be described as non-compensable co-existing causes: MJN v MAJS (2003) 35 SR (WA) 219 [47] - [52]; TAW [82].

49 'The fact that other unconnected events may also have had some relationship to the occurrence is not material if the criminal act was a cause, even if not the sole cause': Fagan, 673; VPAN [2011] WADC 40 [83]; Fairhead v Quartermaine [2010] WADC 1 [16]. Where there are non-compensable co-existing causes and the evidence establishes they did contribute to the injury or loss, the award of compensation should be reduced to take account of that chance: Malec v JC Hutton Pty Ltd (No 2) [1990] HCA 20; (1990) 169 CLR 638; MJN [50]; TAW [84]. On the other hand, if it is not possible to disentangle the consequences of those non-compensable co-existing causes from the consequence of compensable causes, the appellant is entitled to compensation for the full injury and loss suffered provided it is established that the proven offence contributed materially to her injury or loss: Bonnington Castings, 620; Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, 160; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, 168; MJN [47] - [52]; TAW [84].

50 In the present case, I am satisfied that the appellant's current psychiatric symptoms occurred 'as a consequence of the proven offences', as the proven offences were a cause of those symptoms. In particular, the proven offences appear to have been the offences of which the appellant had the most clear and vivid memory. I am satisfied that they materially contributed to the injuries suffered. The respondent did not seek to try to disentangle the consequences of the proven offences from the other allegations of sexual abuse. Nor, in my view, would it have been possible for him to have done so. I therefore find that the appellant is entitled to compensation for the entirety of her psychiatric injuries.

51 The assessor allowed general damages at $20,000. At the time of this assessment, the appellant's PTSD was chronic, but mild to moderate. It is now moderate. Further, the depressive episodes that Dr Hoffman thought the appellant was vulnerable to in his first report, had eventuated by the time of his second report. There seems to have been a marked increase in the psychiatric symptoms and consequent impairment being experienced by the appellant. Further, Dr Hoffman's prognosis continued to be 'guarded'.

52 In this context, I consider that an award of general damages of $20,000 is inadequate. On the evidence available to me, an award of $50,000 would be more appropriate.

53 The appellant is entitled to compensation for both injury and 'loss' suffered. By CIC Act s 6(2), 'loss' relevantly includes 'loss of earnings as a direct consequence of the injury suffered by the appellant'. Loss of earnings includes loss of earning capacity: A v D (1994) 11 WAR 481 at 489; KMA v DFS [2010] WADC 6 [27].

54 In assessing economic loss for the purposes of the common law generally, a plaintiff carries the onus of proving loss of earning capacity and the extent to which that loss produces, or might produce, financial loss: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 18; Montemaggiori v Wilson [2011] WASCA 177, [30]. If the plaintiff can establish that her 'pursuit of gainful employment is interrupted or affected because of the negligent infliction of physical injury', she 'is 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, 143 [6].

55 Where loss of earning is proved, the damages to be assessed are essentially a matter of judgment and often cannot be proven by precise figures: A v D, at 489.

56 In the present appeal, the evidence of Dr Hoffman is that the appellant:

(a) has a work history limited to casual employment for up to 20 hours a week;

(b) even as a casual employee, struggled to complete a five hour shift due to tiredness and poor concentration;

(d) in workplaces involving customer interaction, finds speaking to unfamiliar people as threatening, leading to hyper-vigilance and irritability;

(d) preferred a job as a cleaner, which did not require customer service;

(e) had work related issues and impairments consistent with a PTSD diagnosis; and

(f) will not be able to work more than 20 hours a week for the foreseeable future 'due to her chronically impaired work functioning'.

57 The assessor made an award of $10,000 as a global award. However, the assessor's decision was based on Dr Hoffman's report of 30 October 2009 which only dealt in general terms with the impact of the appellant's injuries on her future work prospects. At the date of Dr Hoffman's first report, the appellant was working part time and was studying at TAFE.

58 I have the benefit of two later reports of Dr Hoffman that document two years of work history. They present a considerably more pessimistic picture than the earlier reports of the impact of the plaintiff's psychiatric symptoms on her earning capacity.

59 There is no evidence contrary to that of Dr Hoffman. I accept his evidence that the appellant will not be able to work more than 20 hours a week for the foreseeable future. I accept also that she will struggle working in any position that will involve customer contact.

60 Dr Hoffman also notes that the appellant's attempts to undertake TAFE courses on two occasions have not been successful. He comments that the appellant's ongoing difficulties in terms of employment and study 'are as a direct consequence of the childhood abuse she experienced, and are further exacerbated by the intermittent depressive episodes which are as a direct consequence of the abuse'.

61 I find that the appellant has lost half her earning capacity for the foreseeable future. I also find that the appellant has suffered a significant impairment to her capacity to gain a vocational education so as to increase her earning capacity from that of a cleaner or shop assistant, and provide a stable basis for long term employment.

62 I have made, below, a significant allowance for future psychological and psychiatric treatment. Given how well the appellant responded to the counselling with PMH, it may be that her ability to study and engage with people in a work environment improves.

63 The evidence before me is that the appellant did reasonably well at high school and was able to obtain at least part time work fairly soon after leaving school. I am satisfied that, if she were not suffering from PTSD and the depressive episodes, it is likely that she would have been working full time on at least the adult minimum wage, or perhaps working part time and studying to position herself to earn more than this in the future.

64 As a broad reference point, the adult minimum wage is currently $589.30 gross and $528.30 net, per week. Fifty percent of the net amount is $264.15. The appellant is currently aged 21. I assume that the appellant would have otherwise worked through to 65, some 44 years. The 44 year multiplier is 827. $264.15 by 827 is $218,452.

65 There are too many contingencies to make a precise award of damages. I consider that $10,000 is a manifestly inadequate award on the information I now have available to me. I consider a global award of $50,000 is an appropriate award for the plaintiff's loss of earning capacity in the present case.

66 By CIC Act s 6(2)(b), 'loss' relevantly includes 'expenses that are likely to be reasonably incurred by the appellant for treatment that she is likely to need as a direct consequence of the injuries suffered by her'.

67 The assessor made no award for future psychiatric treatment, though this was consistent with the evidence from Dr Hoffman then before the assessor.

68 As I have noted, in his subsequent report dated 3 February 2012, Dr Hoffman observes an increase in depressive symptoms. He now states that the appellant requires review by a consultant psychiatrist approximately every three weeks for a year in order to assess her regarding use of antidepressant medication. The AMA recommends a fee of $350 per hour for a consultant psychiatrist.

69 In my view, the appellant would benefit from, and is likely to need, future psychiatric treatment as recommended by Dr Hoffman.

70 There was no evidence before me as to the amount of the rebate ordinarily payable by Medicare for psychiatric services. The publicly available information suggests that it is minimal. I make no allowance for it. I note that in administering CIC Act s 48, the chief assessor only pays for the 'gap'.

71 I allow a session every three weeks for a year (17 sessions) at $350 per session, totalling $5,950.

72 The assessor awarded 30 sessions of future psychological treatment at a net cost of $85 per session after a Medicare rebate (CIC Decision par [15]).

73 In Dr Hoffman's opinion the appellant requires 40 sessions with a clinical psychologist. The Australian Psychological Society recommends a fee of approximately $210 per hour.

74 In my view, the appellant would benefit from, and is likely to need, future treatment by a psychologist as recommended by Dr Hoffman.

75 I am not satisfied on the information before me that the appellant will be entitled to any rebate from Medicare for psychological services. This is because of the uncertain and discretionary nature of the GP Mental Health Plan initiative of Medicare (at least on the publicly available information).

76 I allow 40 sessions at $210 per session, totalling $8,400.

77 I therefore award $14,350 pursuant to CIC Act s 48.

78 By CIC Act s 6(2)(a), 'loss' relevantly includes 'expenses actually and reasonably incurred that ... arose in obtaining any report from a health professional or counsellor in relation to the injury suffered'.

79 The assessor allowed an amount of $1,672 for Dr Hoffman's report of 30 October 2009. I also allow than amount.

80 The appellant claimed $1,108 for Dr Hoffman's subsequent reports. I allow that amount.

81 On appeal, the court may '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': CIC Act s 56(2)(d). Pursuant to Criminal Injuries Compensation Regulations 2003 (WA) reg 5, where a successful party is represented by a legal practitioner, a maximum amount of $180 may be awarded for preparation and a maximum of $180 may be awarded for each day of the hearing.

82 The appellant claimed legal costs at the maximum, $360.

83 Regulation 5 also allows a successful party to claim expenses reasonably and properly incurred. The appellant claims $88 fees for service of process. Any costs awarded would be payable by the respondent.

84 The respondent took minimal part in the appeal. His involvement did not add to the work which the appellant would have otherwise had to undertake. I do not consider it appropriate to make an award of costs against the respondent.

85 In summary, I assess compensation at $117,500 comprising:

86 As this amount exceeds $100,000, I reduce it to $100,000 in compliance with CIC Act s 31(1).

87 Accordingly, I allow the appeal, set aside the award made by the assessor and in lieu thereof substitute an award in favour of the appellant in the sum of $100,000.

Injuries Compensations Act 2003

Injuries Compensation Act 2003

Injuries Compensation Regulations 2003

A v D

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