1 DAVIS DCJ: In McDavitt v McDavitt [2013] WADC 22, I allowed the appellant's appeal from a decision of the Chief Assessor of Criminal Injuries Compensation refusing the appellant's compensation application because of the provisions of s 39 of the Criminal Injuries Compensation Act 2003 (the Act).

2 My decision in McDavitt v McDavitt (the first decision) was the first stage of the hearing of this appeal. The parties agreed that I should first consider the issue of whether, pursuant to s 39 of the Act, the appellant was disentitled to an award of compensation. After the outcome of my decision on that issue, if I found in favour of the appellant, there would need to be a separate hearing to determine the compensation to which the appellant is entitled under the Act.

3 The adjourned appeal dealing with the second stage of the assessment of the appellant's compensation was heard before me on 30 August 2013.

4 The appeal hearing proceeded on the basis of the medical and other information that was in the possession of the Assessor, however, I also received further evidence and information, as permitted pursuant to s 56(1) of the Act.

5 Briefly, the background to the appellant's claim for compensation was that on 6 January 2007 she and the respondent, who were then married, attended the home of Tracey and Michael Mannix for dinner and drinks. When the females retired to bed, the respondent and Michael Mannix remained out the back of the house, drinking.

6 In the early hours of the next morning, 7 January 2007 at about 2.00 am the appellant woke up and heard the respondent talking with Mr Mannix. The respondent was 'bagging' her and her children. The respondent also indicated to Mr Mannix that the marriage was over: the first decision [46] and [110]. The appellant listened to the respondent for at least 20 minutes, but more likely 30 minutes, before going outside to confront him: the first decision [110]. There was an exchange during which the appellant asked the respondent to pack his things and get out of the house (meaning their matrimonial home). The respondent did not immediately respond. He looked at the appellant and smirked before taking another sip of his beer and stating 'you can't make me': the first decision [50], [51] and [112]. After the respondent's smirk and challenge to her by saying 'you can't make me', the appellant lost control: the first decision [114], [115]. The appellant then slapped the respondent with an open hand to the face, quite forcefully, and then went and sat down on a chair nearby. The respondent got up, ran towards her and punched her to the head twice. The appellant was knocked out of her chair and into a raised garden bed. The respondent then continued to punch her another four times to the head area: the first decision [52], [55].

7 This sequence of events I have outlined, have been referred to as 'the first incident'. The first incident ended when the respondent was dragged away by Mr Mannix and taken to the front of the house.

8 After the first incident, the appellant woke up Tracey Mannix and they both went outside the back of the house. However, the respondent returned to assault the appellant a second time. On this occasion the respondent ran at the appellant, yelling and hit her on the head between six times (according to the appellant's police statement) and eight times (according to Mrs Mannix's police statement): the first decision [59], [60].

9 This sequence of events has been referred to as 'the second incident'.

10 Originally, two charges of aggravated assault occasioning bodily harm were brought against the respondent. After negotiations, the police prosecutor accepted a plea of guilty to one charge only, on the basis that one charge covered both incidents.

11 The chief assessor found, applying s 39 of the Act, that the appellant's injuries were suffered when the appellant was committing a separate offence, that of slapping the respondent.

12 In the first decision, while I agreed that the appellant did commit a 'separate offence' within the meaning of s 39 of the Act, in relation to the first incident, I found that the second incident was separate and distinct from the first incident both in time and in purpose. At the time of the second incident the first incident was over, there was a physical separation of the appellant and respondent, a separation in time, and any criminal conduct on the appellant's part had ended by the time of the second incident: the first decision [123] - [134].

13 I found that in the particular circumstances of the offence committed against the appellant, s 39 of the Act did not apply and that her appeal must be allowed: the first decision [136], [137].

14 While I allowed the appeal, I made the following findings:

Of course, the appellant's involvement and conduct on the night cannot be overlooked. Had the two charges of aggravated assault occasioning bodily harm as originally charged against the respondent been proceeded with, and no plea bargain entertained by the prosecution, I would have found that s 39 applied to the first incident and the appellant would be disentitled to compensation for the injuries she suffered during that first incident. Consistent with my present findings, I would have found that s 39 of the Act would not apply to the second incident and the appellant would be entitled to an award of compensation from the injuries which she can prove to have suffered as a result of the second incident.
This is a situation where s 41 of the Act applies. Section 41 of the Act deals with the consideration of the behaviour of the victim (claimant). It provides as follows:

In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim ... an assessor -

(a) must have regard to any behaviour, condition, attitude or disposition of the victim that contributed, directly or indirectly, to the victim's injury or death; and

(1) refuse to make a compensation award because of that contribution; or

(2) reduce the amount that the Assessor would otherwise have awarded.

In the circumstances as I have found them I do not consider it would be just to refuse to make a compensation award to the appellant, however, it would be just to reduce the amount of compensation awarded to her to take into account her behaviour on the night in relation to the first incident. As I have not heard any evidence on the injuries the appellant did suffer (other than the brief description in the statement of material facts), I do not know whether it is possible to completely distinguish between the injuries which the appellant suffered in each of the two incidents. The amount of any reduction will need to be determined upon hearing further evidence, including medical evidence relating to the appellant's injuries, as well as submissions from each of the parties as to the extent of the reduction which should be made.

General principles relevant to the assessment of compensation

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

16 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; J 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.

17 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.

18 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.

19 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).

20 However, 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' an offence: see s 12(3)(a), s 13(4)(a), s 16(4)(a) and s 17(4)(a) of the Act; see also s 30.

21 The applicant for 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.

22 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.

23 If it is possible to do so on the evidence, the assessor is required to attempt to distinguish between the degree of the injury caused by the commission of the compensable offence (or offences) and the degree of the injury caused by the non-compensable offence (or offences): JLW v DRH [2004] WADC 214; (2004) 36 SR (WA) 301; MJN v MAJS (2003) 35 SR (WA) 219; CKM [2008] WADC 79 [139] - [140].

24 It has been said, both at common law and in criminal injuries compensation cases, that if it is not possible to disentangle the consequences of a non-compensable event from the consequences of a compensable event, the applicant is entitled to compensation for the full injury and loss if the applicant has established that the compensable event did contribute materially to the applicant's injury or loss: Fagan v Crimes Compensation Tribunal; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; MJN v MAJS [51]; CKM.

25 However, this principle, as noted by Muller DJC in JLW v DRH [41], is qualified by a line of authorities which say that where non-compensable events contributed to the injury, or had a propensity to do so, the applicant is not necessarily entitled to compensation for the full injury.

26 As stated by Martino DCJ (as he then was) in MJN v MAJS [52]:

Where the evidence establishes that the non-compensable offences had a propensity to cause the applicant's injury or loss and did contribute to the injury or loss the award of compensation will be reduced to take account of that chance: Wilson v Peisley (1975) 50 ALJR 207; Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.

27 In MJN v MAJS [57] his Honour Judge Martino made a reduction of 50% in the award by reason of the non-compensable contributors to the applicant's condition.

28 It was submitted to me during the hearing that in this particular case, if it is not possible to disentangle the consequences of the non-compensable causes from the consequence of the compensable cause, the appellant is entitled to compensation for the full injury and loss suffered provided it is established that the compensable offence (the second incident) contributed materially to her injury or loss. Reliance was placed on Fagan v Crimes Compensation Tribunal; Purkess v Crittenden and CKM.

29 This submission ignores the qualification given to the principle as outlined in MJN v MJAS and JLW v DRH. It also ignores the specific provision of the Act which must be taken into account in this case, s 41.

30 Section 41 specifically provides that an assessor must have regard to any 'behaviour, condition, attitude or disposition' of the victim that contributed, directly or indirectly, to the victim's injury (s 41(a)) and 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 that contribution (s 41(b)).

31 In relation to the appellant's behaviour in this case, even if on the evidence I am not able to disentangle the respective contributions of the first incident and second incident to the appellant's injuries or loss, s 41 requires me to take into account the behaviour of the appellant in relation to the first incident and permits me, in the exercise of my discretion and if it is just to do so, to reduce the award of compensation because of her behaviour. Given the findings I made in the first decision [138] - [140], it is just to make a reduction for the appellant's behaviour in this assessment of damages. The extent of the reduction of the amount awarded because of the appellant's behaviour, is a matter which I will need to determine on all of the evidence.

32 There is another issue in this case arising from the evidence that the appellant suffers from two medical conditions, one pre-existing condition of ankylosing spondylitis and the other diagnosed since the offence, the condition of fibromyalgia. The respondent has argued that each of these conditions has contributed to the injuries suffered by the appellant.

33 There are two lines of authorities in this court as to how to take into account and assess the contribution of pre-existing and subsequent injuries or medical conditions in an application for criminal injuries compensation.

34 One line of authorities (of which there are a number) has stated that pre-existing and subsequent injuries or medical conditions must be taken into account in accordance with s 41 of the Act: Krukiewicz v Hayes [2004] WADC 242 [25] and [26] (HH Jackson DCJ); Shepherd v Shepherd [2010] WADC 30 [27] - [29] (Wager DCJ); Gabrial v Kyanga [2011] WADC 218 [36] (Scott DCJ); Re Faengsungnoen [2012] WADC 59 [53] (Bowden DCJ); Hayward v Hart [2012] WADC 151 [12] and [50] (Eaton DCJ); Re Krispyn [2011] WADC 161 [18] (Curthoys DCJ).

35 These authorities followed earlier authorities dealing with a similar provision under the Criminal Injuries Compensation Act 1985 s 25, in particular Reed v Assessor Criminal Injuries Compensation (Unreported, WADC, Library No 970170, 5 June 1997), 22 - 23 (Viol J).

36 The other line of authorities has applied common law principles. The first of these principles is that if it is not possible to disentangle the causes for an injury, the applicant is entitled to compensation for the full injury and loss: Fagan v Crimes Compensation Tribunal; Purkess v Crittenden. The second principle, taken from Wilson v Peisley (1975) 50 ALJR 207 and Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, is that where the evidence establishes that a non-compensable or pre-existing medical condition had a propensity to cause an applicant's injury or loss and did contribute to the injury or loss, the award of compensation will be reduced to take into account that chance: Vaatuitui v Hall [2005] WADC 240 [32] - [36] (Martino DCJ); SW v BB [2010] WADC 86 (Schoombee DCJ) [103]. The reasoning of her Honour Judge Schoombee in SW v BB was followed by Commissioner Gething in Curnow v Garnant [2012] WADC 72 [65] and Sleight DCJ in JY [2013] WADC 187 [14].

37 In light of the two conflicting lines of authorities I invited further written submissions from each of the parties and the amicus curiae. I have had regard to the written submissions filed by each of them after the appeal hearing. The appellant has relied specifically on SW v BB and that the Act can be considered beneficial legislation. The respondent and amicus curiae have submitted that pre-existing and subsequent injuries or medical conditions must be taken into account in accordance with s 41 of the Act.

38 Because of the differences in the two lines of authorities and the desirability of consistency in the interpretation of the Act and decision making in this court, it is necessary for me to give full consideration of the issue, including the reasoning in SW v BB which the appellant has submitted I should follow, with a view to arriving independently at my own conclusion: Undershaft (No 1) Ltd v Commissioner of Taxation [2009] FCA 41; (2009) 175 FCR 150 [68] - [88] (Lindgren J).

39 In SW v BB Schoombee DCJ specifically reviewed s 41 in this context and concluded that the words 'condition' and 'disposition' in s 41 are wide in meaning and could include a reference to a pre-existing medical condition. Her Honour also concluded that as the section refers to these matters making a contribution to 'the victim's injury', this gives a wider application to the words 'behaviour, condition, attitude or disposition' and could include any such factor which contributes to the injury, even if it was pre-existing and had nothing to do with the offence: SW v BB [89] - [94]. Notwithstanding these conclusions, however, Her Honour was of the view that as the Act is legislation which has a beneficial purpose, s 41 should be interpreted to the effect that the words 'condition' or 'disposition' do not refer to a pre-existing physical or mental illness or disability, but only to a condition or disposition which was relevant to the commission of the offence and therefore contributed to the injury of the victim. Her Honour Judge Schoombee concluded that the contributory effect of a pre-existing condition should therefore not be dealt with under s 41, but under the ordinary principles of assessing damages as they apply in the law of tort: SW v BB [101] and [103].

40 SW v BB was the subject of appeal in Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 (Attorney General v Schoombee). Although the issue on appeal was confined to s 39 of the Act, the Court of Appeal made it clear [31] - [33] that the provisions of the Act must be construed in accordance with the well-established rules of statutory construction which require primary regard to be given to the natural and ordinary meaning of the words used in the statute and attention to be given to the evident purpose of the statute, ascertained by reference to the words used.

41 In Attorney General v Schoombee the Court of Appeal made the following observations about construing the Act beneficially:

The District Court judge was also encouraged in her conclusions by her characterisation of the legislation as remedial, with the result that it should be construed beneficially. However, with respect, that approach is not appropriate to the construction of a provision such as s 39 which is plainly intended to exclude the availability of compensation in the cases to which it refers. In a similar legislative context, Spigelman CJ observed in Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668:

With respect to a clause intended to be limiting, it is not appropriate to apply the principle of statutory construction that beneficial legislation should be construed liberally...

In the present proceedings, the Respondent submitted that the purpose was to compensate victims. Even if I were to accept a legislative purpose stated at that level of generality, that would not entail that any ambiguity must be construed in such a way as to maximise compensation... In any event, the very specificity of the provisions of the legislation indicate that the legislative purpose is to provide compensation in accordance with the Act and not otherwise [8] - [10].

(Although Spigelman CJ was in dissent, his reasoning was endorsed by the High Court in Victims Compensation Fund Corp v Brown [2003] HCA 54; (2003) 201 ALR 260.)

Put another way, it is clear from the Act as a whole that it reflects a legislative intention to provide compensation to victims of crime in some but not all circumstances. There are a number of provisions of the Act which limit the circumstances in which compensation is available. In addition to the exclusion of compensation by s 39 of the Act, s 36 provides that compensation must not be awarded if there is a relationship or connection between the offender and victim and that by reason of that relationship, money paid under the award is likely to benefit or advantage the offender. Section 37 of the Act excludes compensation for injuries arising as a consequence of the commission of an offence caused by the use of a motor vehicle in other than limited circumstances. Section 38 of the Act precludes the award of compensation if the claimant did not do what ought reasonably to have been done to assist in the identification, apprehension or prosecution of the offender. In light of these (and other) provisions of the Act, it would be wrong to approach the construction of the Act on the basis that it reflects a legislative intention that every victim of crime should receive compensation under the Act. As it is clear that the legislature has endeavoured to exclude the availability of compensation in some cases, the task of the court is to identify the range of cases in which compensation is not available by reference to the words used by the legislature in the limiting provisions of the Act, without predisposition toward either expanding or restricting the ambit of the exclusionary provision.

42 Accordingly, the fact that the Act may be broadly considered as beneficial legislation does not alter the rules of construction set out in Attorney General v Schoombee which apply when interpreting s 41.

43 Section 41 appears in that part of the Act, pt 4 relating to 'Matters governing compensation awards'. The first provision in pt 4, s 29, gives an assessor a general discretion to 'have regard to any factors or circumstances that the assessor thinks are relevant' in deciding whether or not to make an award or the amount of an award. Section 30 provides that in respect of injury suffered by a victim 'as a consequence of the commission of an offence', an assessor may award 'such compensation that the assessor is satisfied is just for the injury and for any loss also suffered'. The sections which follow each place a limitation or restriction on the making of an award of compensation in certain situations. Section 39 is, of course, one of those sections and there are others as identified in Attorney General v Schoombee [42].

44 In my view_,_ s41 is another limiting provision in pt 4 of the Act. Section 41 evinces an intention that a person seeking compensation may not be entitled to compensation for the full extent of his or her injury if a contribution to the injury is, inter alia, the victim's 'condition' or 'disposition'.

45 The ordinary meaning of the word 'condition' in the Shorter Oxford English Dictionary 6th ed, (2007), includes:

A particular mode of being of a person or thing; a state; circumstances of wealth; social position. A state resulting from a physical or mental illness; sickness, a malady.
Mental disposition; moral nature; temper; personal qualities; ways, morals; behaviour.
Nature, character, quality; a characteristic, an attribute.

46 The ordinary meaning of the word 'disposition' includes:

Physical constitution of anything; physical condition of the body, state of health.

47 There is nothing in s 41 which indicates that the ordinary meanings of the words 'condition' or 'disposition' should in any way be read down or limited, or limited to the same genus as the word 'behaviour' which precedes them. As observed by Geddes RS and Pearce DC in Statutory Interpretation in Australia (6th ed, LexisNexus Butterworths, Chatswood, 2006), par 4.26, 'the courts do not readily use the ejusdem generis rule because its application necessitates a limitation being imposed on words that are otherwise of general application'. A number of authorities have demonstrated a judicial reluctance to impose limitations upon words of a general nature: see Mattinson v Multiplo Incubator Pty Ltd [1997] 1 NSWLR 368, 373, 375 (Mahoney JA); Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113, 413, (Spigelman CJ); Pepper v Attorney General [2008] QCA 207; [2008] 2 Qd R 353 [23] - [32].

48 There is nothing in the section which indicates that the 'behaviour, condition, attitude or disposition' must be relevant to the commission of the offence. The express words of the section refer to the contribution of the 'behaviour, condition, attitude or disposition' to the victim's injury. It does not refer to any behaviour, condition, attitude or disposition which 'in any way precipitated or provoked the offence', an expression subsequently used in s 52(2)(b), as distinct from s 52(2)(c) which mirrors s 41(a).

49 Accordingly s 41(a) requires that in deciding whether or not to make a compensation award, or the amount of a compensation award, the assessor must have regard to a medical condition or disposition (whether it is pre-existing or subsequent, physical or mental) which has contributed to the victim's injury. The words 'condition' or 'disposition' must be given their ordinary meaning. The words are not limited or confined to a condition or disposition which was relevant to the commission of the offence. These words are of wide application and include any such factor which contributes to the injury, even if unrelated to the offence.

50 Such a construction of s 41 does not only give effect to the natural and ordinary meaning of the words, it is consistent with the purpose of the Act 'to provide for the payment of compensation to victims of offence in some circumstances' (italics my emphasis): see also Attorney General v Schoombee [42].

51 For these reasons I consider that I should not follow the construction of s 41 given by her Honour Judge Schoombee in SW v BB: see also Undershaft (No 1) Ltd v Federal Commissioner of Taxation [71].

52 I consider that I should follow the authorities which I have set out above in [34] which have stated that pre-existing and subsequent injuries or medical conditions must be taken into account in accordance with s 41.

53 In considering whether it is just either to refuse to make an award or reduce the amount of the award pursuant to s 41(b), some guidance should be taken from common law principles. For example, it would not be just to refuse or reduce an award of compensation if the offence has caused a previously asymptomatic pre-existing medical condition to become symptomatic, or aggravated the symptoms suffered by a victim from a pre-existing condition. On the other hand, the assessor may exercise the discretion in s 41(b) if he or she is satisfied, as a matter of fact, that not all of the symptoms suffered by a victim are as a result of the criminal conduct of the respondent to a criminal injuries compensation claim. Even if it is not possible to 'disentangle' the symptoms of a non-compensable condition from the injury suffered by a victim as a result of the offence, if the non-compensable condition has contributed to the injury, or had a propensity to do so, the applicant is not necessarily entitled to full compensation.

54 In this case, if the evidence establishes that there is a pre-existing or subsequent medical condition which has contributed to an injury of the appellant, s 41(a) of the Act requires me to take that into account. I am permitted to then reduce the amount that I would otherwise have awarded if I think that it is just to do so.

The claim for compensation in this case and how it will be assessed

55 The injuries for which the appellant is claiming compensation are as follows:

(g) bruising and a subcutaneous haematoma to the left cheek;

56 There is a claim for loss of earnings, medical treatment and report expenses, future treatment and travel expenses.

57 The respondent has submitted that many of the injuries for which the appellant claims compensation can be attributed to the first incident and are thus not compensable following the first decision.

58 I consider it is appropriate to assess the appellant's compensation in the following way.

59 I will first review each of the injuries for which the appellant is claiming compensation and determine, where it is possible to do so, which of the incidents caused the injury.

60 If there is an injury which I find was caused solely by the first incident, or I am not satisfied on the balance of probabilities that there is any causal relationship between that injury and the second incident, that injury will not be taken into account for the purpose of assessment of the appellant's compensation.

61 Where it is not possible to determine whether an injury has resulted solely from the first incident and I am satisfied, on the balance of probabilities, that the injury has been contributed to by the second incident, that injury will be taken into account for the purpose of assessment of the appellant's compensation.

62 I will then assess the compensation for the injuries caused or contributed to by the second incident and any loss consequent upon those injuries. During that assessment I will determine whether any pre-existing or subsequent medical conditions have contributed, directly or indirectly, to the appellant's injuries and, if so, determine what, if any, reduction should be made for that contributory (non-compensable) condition.

63 Finally, I will determine what reduction I should make for the appellant's behaviour at the time of the first incident.

64 According to the statement of material facts for the offence, prepared by police, the injuries suffered by the appellant visible to attending police were a swollen left cheek, a swollen nose, a large lump to her head behind her left ear, bruising to her left upper arm, a large abrasion to her right upper arm, and a large scratch on her left elbow. She also stated to police that she had a sore buttock and knee.

65 The injuries reported to have been suffered by the appellant when she attended Joondalup Health Campus on the morning of 7 January 2007 immediately following the offence, are set out in a medical report dated 12 June 2007 from Dr Simon Kavanagh. The injuries noted by Dr Kavanagh were:

two facial contusions/bruising on her left cheek;
tenderness at the base of the occiput;
bruising over the lateral aspect of her right arm; and
bruising to her right buttock.

66 The first specialist the appellant saw appears to have been a neurologist, Peter L Silbert. There is only one report from Mr Silbert dated 11 March 2009 but in that report he states that he reviewed the appellant on 11 March 2009 having seen her 'a couple of years ago' after the assault, so I have assumed that he saw the appellant in early 2007. The symptoms which Mr Silbert described in his report were:

Left facial pain from where she was punched. This included a subcutaneous haematoma and a tight stretching pain radiating from the right TMJ to the angle of her mouth. Mr Silbert observed that was probably TMJ strain related to left sided jaw problems.
An impaired sense of smell which Mr Silbert suspected reflected impaired olfactory nerve function.

67 On 31 October 2007 the appellant was seen by a rheumatologist, Dr J Edelman, who in a report of the same date reported the following musculoskeletal problems:

(a) Headaches which occurred frequently and could revolve into migraine type of headache.

(b) Constant neck pain in the central lower cervical area with difficulty keeping her head down in one position and it was also uncomfortable at night. In relation to the appellant's neck on examination, Dr Edelman found her tender to palpation along her trapezius muscles with a limitation of neck movement in all directions by about 10%.

(d) Her left elbow had more numbness to it than before - her left elbow had undergone a previous ulna nerve relocation.

(e) Her back was troubling her. Dr Edelman did note that the appellant did have a history of back problems from ankylosing spondylitis but that she 'was coping with this'. He also found her low back movements were reasonable. As I discussed with counsel for the appellant during the appeal hearing, the reference to low back movements would indicate that the back complaint the appellant had at the time related to her lower back.

68 When seen by Dr Edelman the appellant had given up her pre-offence occupation as a result of the psychological problems from the assault. She was, however, doing agency work and coping with 20 hours to 24 hours a week.

69 In Dr Edelman's opinion the appellant's injuries were soft tissue and related to the assault. Purely from the musculoskeletal point of view he stated that she should improve with time.

70 The appellant attended 11 sessions with a clinical psychologist, Ms Natalie Deverneuil between May and December 2007. In a report from Ms Deverneuil dated 31 January 2008, the appellant's reported physical injuries were neuralgia, weeping eye and problems related to her knees. The appellant reported experiencing intense fear and that she felt her life was in danger during the assault. In terms of her psychological injuries, Ms Deverneuil was of the opinion that the appellant met the criteria for post-traumatic stress disorder (PTSD) with the appellant persistently re-experiencing the traumatic event, including nightmares and feelings of panic when exposed to triggers that reminded her of the assault or the respondent. The appellant had withdrawn socially, experienced disturbed sleep, had difficulties in focusing on tasks and exaggerated startled responses (jumping when she heard unexpected noises) and hyper-vigilance. Ms Deverneuil also recorded the appellant was experiencing symptoms of depression including a persistent low mood, disturbance in sleep and decreased appetite, motivation, energy and difficulties concentrating. The appellant was taking 20 mg of Lovan daily to manage her low mood and Temazipine every two to three nights to help with sleep. Following her sessions with Ms Deverneuil, the appellant's symptoms had considerably reduced and Ms Deverneuil was confident that with continued psychological intervention, the appellant would continue to improve.

71 The appellant was also reviewed by a psychiatrist, Dr Frederick Ng on 16 October 2007 and he produced a report of the same date. Dr Ng reported that in terms of the appellant's previous medical history she was diagnosed with ankylosing spondylitis when she was in her 20s and had a left ulna nerve relocated in her left elbow about two years before.

72 In terms of her physical injuries, Dr Ng recorded the appellant had reported that she was bruised from the attack. Her left cheek was bruised as was her right upper arm, her left lower arm, and the base of her skull (occiput). She said she had bruises in her buttock, her leg was bruised but she could not remember which one. She had no fractures but a lump on her left temple after the assault. She said after the incident she had consistent tears running down her left eye which was moist. She felt nauseated and in pain after the assault.

73 Dr Ng specifically asked the appellant at the appointment on 16 October 2007 what her present physical symptoms were (page 7 of his report). She advised she suffered from neuralgia on the left side of her head which was intermittent, had pain in her ear and her throat bilaterally, intermittent neck pain and intermittent right leg pain from the right buttock to the right upper leg. She also reported having fallen on her left elbow during the incident with numbness now on the left arm and left hand, which had not been there before the incident.

74 In terms of her psychiatric state, Dr Ng noted that the appellant did not suffer any psychiatric problems and was not taking any anti-depressants at the time of the assault. Dr Ng recorded that the appellant reported that following the assault she started to feel depressed from about April 2007, partly due to her physical symptoms from the assault. She could not sit properly or sleep properly and felt ashamed at work because she was unable do what she had been used to doing. Her nerves were 'shot'. She felt anxious, stressed and could not think clearly. She also had transient thoughts of suicide but felt better after being placed on anti-depressants. She described her depression as being bad until about September 2007 when she started to feel better.

75 The appellant described having developed middle insomnia, lowered appetite, and an inability to think clearly. She could become easily unsettled, cried a lot and had a diminished capacity to enjoy life. Her motivation and drive generally was diminished to some extent. She dreamt about the incident and the 'evil look' on the respondent's face and had re-occurring dreams about once every two weeks, although these were now diminished in frequency. She reported symptoms of anxiety if she had to go anywhere close to where the respondent lived. She felt socially withdrawn, somewhat jumpy, felt numb and flat in her moods. Everything she looked at in the home reminded her of him and that made her continually anxious and she also remembered the respondent every time she experienced pain.

76 Dr Ng diagnosed both a major depressive episode to a mild to moderate extent and PTSD, also to a mild moderate extent. The passage of time and commencement of anti-depressant medication had improved her psychiatric condition, however, she reported residual anxiety symptoms and residual depressive symptoms. Dr Ng recommended ongoing regular psycho-therapy with her psychologist and continuing with anti-depressant medication for at least the next two to three years. Dr Ng was of the opinion that with further time and treatment as recommended, the appellant's psychiatric condition should continue to improve, however, she would be troubled from some degree of ongoing and residual anxiety and depressive symptoms for as long as she experienced problematic and troublesome physical symptoms, because these would serve as a consistent reminder of the incident.

77 Dr Ng was of the view that the appellant was fit to work three shifts a week but her psychological efficiency at work would be somewhat compromised given her feeling of tiredness and depression, lack of motivation and being socially withdrawn.

78 In June 2008 the appellant was seen by an ENT specialist, Professor Terrence McManus. He wrote a report on 23 June 2008 stating he could find no ENT abnormalities on clinical examination and despite reports provided with the CT scan he did not think there was any underlying sinus disease demonstrated on her x-ray and no ENT treatment was required.

79 The appellant saw a plastic surgeon, Mr Alister Turner on 16 June 2008. In a report of 21 July 2008 Mr Turner reported the appellant had severe bruising and swelling in the left cheek and peri-orbital tissues shown in photographs taken after the incident. She was still complaining of severe neuralgia type pains in her cheek and orbital area. Clinically there was thickening in the soft tissues of the intra-orbital area and left cheek which was evidence of a resolving haematoma. He said there appeared to be asymmetry of the face, with the left orbit more sunken and lying at a lower level than the right side which was suggestive of atrophy and absorption of fatty tissue in the area secondary to trauma. He noted 'I think this asymmetry and the neuralgic pain will not improve significantly with time'.

80 Mr Turner reported subsequently in a report of 3 March 2009 that there appeared to be 'at that time' (the consultation on 16 June 2008) asymmetry of her face with the left eye being at a lower level than the right and slightly more sunken. X-rays were ordered and they came back normal with no evidence of any blow-out fracture or orbital fat entrapment which could have explained the somewhat sunken eye and at a lower level than the other.

81 Mr Turner saw the appellant again on 22 September 2008. In his report of 3 March 2009 he noted she still had thickening and fullness in the left lower cheek and was complaining of neuralgic pain and a tethering like discomfort in the region. Mr Turner was of the view the symptoms in her left cheek had been caused by a bruise and haematoma in the area and that 'could be improved by a procedure to free off the scar tissue over the cheek bone and lift the muscles of the left side of her face to restore symmetry once again'.

82 Dr Edelman saw the appellant again on 4 November 2008, producing a report of the same date. He noted that the appellant had managed to rehabilitate herself reasonably well. She had a new job, however, her symptomology was still present. In his report, Dr Edelman outlined that:

(a) The appellant suffered from headaches as before;

(b) Her neck still troubled her. On examination Dr Edelman noted there was some loss of movement in her neck with tenderness in the musculature;

(c) Her right knee still troubled her. Dr Edelman noted her right knee had been reviewed by an orthopaedic surgeon and she was in need of an arthroscopy;

(d) She suffered from right [sic] facial neuralgia for which Dr Edelman reported she was awaiting surgery; and

(e) She suffered from left arm symptoms as before, and the left elbow was tender.

83 Dr Edelman concluded the appellant still had ongoing musculoskeletal symptoms which should improve but were likely to take a long time to do so.

84 I should observe that although Dr Edelman recorded that the appellant had been seen by an orthopaedic surgeon for her knee, no medical report from that surgeon has been produced.

85 During 2008 the appellant continued treatment with the psychologist Ms Deverneuil, who provided an updated report on 18 December 2008. In that report the Ms Deverneuil stated that the appellant was not experiencing any depression, was engaged in work and beginning to re-engage with friends and activities she used to enjoy. The appellant was still experiencing some symptoms of anxiety or panic attacks when exposed to triggers but was better able to manage her symptoms. She was engaging in healthy coping strategies, including going for walks. Ms Deverneuil noted reduced scores on testing for anxiety, depression and stress but confirmed the appellant was still suffering from PTSD, albeit she was managing her symptoms.

86 The appellant went to see Professor McManus again on 19 June 2009 and he produced a report on 21 October 2009. He recorded having seen a repeat CT para-nasal sinus x-ray and an accompanying report. Professor McManus advised that the appellant continued to experience nasal discomfort and in particular, complained of an altered sense of smell and various facial pains. He did not prescribe any treatment for her because 'my clinical examination and x-ray findings have not shown evidence of any disorder that would require specific treatment'. In relation to the appellant's sense of smell he noted that sense of smell and taste was a subjective sensation and no investigations had shown objective evidence of malfunction. For that reason he was unable to give any indication as to the percentage loss or sense of taste and/or smell. Professor McManus concluded that although the appellant's symptoms had not altered since her previous assessment, detailed investigations including CT scans had not shown evidence of underlying sinus or nasal disease and there was no evidence of any structural changes that may have resulted from the assault.

87 There are two final reports which the appellant produced at the appeal hearing from Dr Ng and Dr Edelman. Both of these reports were obtained following the first decision.

88 Dr Ng saw the appellant on 18 March 2013 and wrote a report of the same date. In that report Dr Ng recorded the appellant's present physical symptoms as intermittent neck discomfort and pain which radiated up to her head. The pain in her head had a 'neuralgia' quality to it. The symptoms radiated to her right ear and her face. She also experienced a burning sensation in her left lower back and discomfort and pain to both of her knees and her upper back. She was, however, able to work despite her physical symptoms.

89 Dr Ng also noted that about four years ago the appellant had been diagnosed with fibromyalgia by a rheumatologist and had symptoms of 'pain' in her 'bones and muscles' and developed some degree of ongoing fatigue. Dr Ng reported the appellant was concerned that her ongoing physical symptoms might reduce her career and that her working hours had been reduced since the accident because of her physical pain. However, as the appellant herself reported, her physical pain may not be entirely attributable to the assault given the diagnosis of fibromyalgia.

90 Dr Ng noted that the appellant had remained taking anti-depressants since he had initially assessed her in 2007, but had ceased seeing her treating psychologist in 2008. In addition to the anti-depressant Lovan, she was taking another style of anti-depressant Tofranil prescribed by her treating rheumatologist for her fibromyalgia.

91 The appellant reported her anxiety being triggered if she saw a car which resembled that of the respondent's. The incident had, she also claimed, affected her trust in men. She said that the second part of the incident when the respondent 'allegedly and suddenly reappeared ('he sneaked up on me') while she was speaking to her female friend and re-assaulted her in front of her friend Tracey made the appellant trust others even less'. The appellant claimed the second incident was particularly traumatic for her because following the first incident she thought it was all over and that the respondent had been taken away and then he suddenly re-appeared and reportedly assaulted her again. As a consequence she said she was always on her guard that anyone could suddenly 'sneak up' on her and assault her. As reported to Dr Ng, the appellant was particularly shocked that the respondent knew she was already injured and yet still came back to attack her. She reported avoiding places where the respondent might be and was anxious that he may come up and surprise her again as he did during the second incident.

92 The appellant had feelings of sadness about how her life had changed. Her sleep was currently abnormal in that she had occasional difficulties initiating sleep and would often wake up in the early hours of the morning. She also experienced nightmares one to two times a week about the respondent threatening her. The appellant was not suicidal but she avoided being in crowded places, had a small circle of friends and did not socialise very widely. She did experience some panic attacks about once a month and had to avoid situations of altercations or violence with patients in the course of her work. She also reported ongoing difficulties with short-term memory.

93 Dr Ng reported that in his opinion the appellant was still experiencing ongoing residual pathological anxiety symptoms to a mild/moderate extent which arose as a manifestation of the PTSD he had previously diagnosed. The depressive component, which he had previously diagnosed, had largely gone into remission.

94 In terms of treatment, he recommended some further sessions of psychotherapy to assist with her anxiety symptoms and that she continue taking anti-depressant medication.

95 Dr Ng was of the opinion that more likely than not, because of the appellant's residual anxiety pertaining specifically to the assault, she would be left with some degree of residual anxiety symptoms into the foreseeable future. Otherwise she was currently fit to work from a psychiatric perspective.

96 Dr Ng also provided an opinion on the extent to which the appellant's psychiatric condition related to the first or second incident, which I will address later in these reasons.

97 Dr Edelman's final report is dated 8 May 2013, the same date that he reviewed the appellant. In terms of her physical symptoms he recorded that the appellant had reported to him:

(b) Neck pain which is consistent, down both sides of her neck which can radiate down her left arm. On examination, Dr Edelman noted there was some loss of movement in her neck;

(d) Continuing problems with her right knee, particularly with difficulty going up and down stairs, crouching and when wearing high heels. On examination it was noted that her knee had crepitus present; and

(e) Her lower back aches quite a lot. Back movements were found on examination to be somewhat decreased.

98 In Dr Edelman's opinion there was very little in the way of treatment which would make any difference to the appellant's physical symptoms after this period of time, and he did not expect her symptoms to subside much more than they had already.

99 Dr Edelman also expressed the view that the appellant's injuries and symptoms were from the assaults and although there was a history of back problems the assault had aggravated that problem. Dr Edelman also expressed an opinion on the contribution which the first and second incidents had made to the appellant's physical symptoms, which I will address later in these reasons.

100 With these medical reports, as well as other evidence from the documents provided to the assessor, I will now review each of the injuries for which the appellant is claiming compensation and determine, where possible, which of the incidents caused the injury.

101 What I have termed the head and facial injuries are those injuries from [55] (a) through to (j).

102 It is conceded by the respondent, in my view properly, that in both the first and second incidents that the appellant was struck to the head and given the lack of description it is not known to what extent some of the injuries are attributable to each incident or a combination of both.

103 The respondent has conceded that the following injuries are compensable:

(g) bruising and a subcutaneous haematoma to the left cheek;

104 There is an issue concerning the following head or facial injuries:

105 I will deal first with the closed head injury and the occiput injury. It is not suggested that the appellant suffered any brain injury and it is clear from the medical evidence (particularly the report of Dr Silbert) that this is the same injury. The base of the occiput is the base of the skull at the back of the head.

106 I am satisfied that this injury arose solely from the first incident and is not compensable. I find this from the following evidence:

(a) The evidence of the appellant that in the first incident the respondent punched her about the head twice. Those punches knocked her out of the chair and into a raised garden bed;

(b) The reported history in the medical report dated 12 June 2007 from of Dr Simon Kavanagh of the Joondalup Health Campus. This report records that the appellant 'stated that she had been struck several times about the head and neck, falling backwards off her chair onto a stone planter box. She did not lose consciousness as a result but did have some nausea following the incident vomiting twice before attending the Emergency Department';

(c) The reported history in the medical report of Dr Ng dated 16 October 2007 in which it is recorded that after the appellant's slap to the respondent and she went and sat down, 'he suddenly got up and came running at her and punched her in the face and she allegedly went flying out of her chair and fell...'. The only mention of a fall in Dr Ng's report relates to the first incident;

(d) The reported history in the medical report of the neurologist Dr Silbert of 11 March 2009 which recorded that when the appellant went backwards her occiput struck the edge of a brick wall;

(e) The reported history in the medical report of Dr Edelman dated 8 May 2013 that on the 'first occasion' (that is, the first incident) 'she unfortunately slapped her former husband and he then struck her and she went to the ground hitting her head and maybe hurting her knee'. Again there is no mention of a fall or going to the ground in the second incident; and

(f) The statement provided to police by Tracey Mannix in which she stated that in the second incident the respondent grabbed the appellant by the hair and after saying 'you deserve this it's been coming for a long time', hit the appellant with his clenched right fist about eight times to her head and face. According to Tracey Mannix the appellant 'stayed on her feet and was cowering away from him' (and therefore she did not fall).

107 It is claimed by the appellant that as a result of the second incident she fell to the ground. This was stated in her statement to police par 19 when she said 'He punched me about 6 times, around the head and I fell down'. In light of the conflicting statement of Tracey Mannix, together with the histories given by the appellant to the doctors as recorded in their reports, in which there is no mention of any fall in the second incident, I am not satisfied that the appellant did fall in the second incident. Even if she did, I am not satisfied that she suffered any further injury as a consequence of falling to the ground.

108 In relation to the nausea, the only mention of this in the medical reports is in the report of Dr Kavanagh dated 12 July 2007. Based on that report I am satisfied that the nausea relates to the occipital head injury which, as I have found, occurred in the first incident. The nausea is therefore non-compensable.

Impaired sense of smell or olfactory sensory injury

109 The claim for impaired sense of smell is problematic in light of the conflicting medical evidence.

110 Professor McManus has twice examined the appellant and carried out detailed investigations including CT para-nasal sinus x-rays, and has concluded that, in relation to sense of smell, no investigations had shown objective evidence of malfunction disease or structural changes that may have resulted from the assault.

111 Dr Silbert has discussed the appellant's impaired sense of smell, suggesting in his report that:

In patients who have a closed head injury (particularly one like she experienced where she went backwards and the occiput struck the edge of a brick wall) the olfactory sensory fibres that are passing through the cryptiform plate get sheared off. She has probably had a partial injury.

112 As I have already found the appellant hit the back of her head when she fell in to the raised garden bed as a result of being knocked out of her chair during the first incident.

113 Without the benefit of hearing from each of the doctors, based on the information in Professor McManus' report and the examination and investigations he has carried out, I prefer his evidence to that of Dr Silbert on this issue of sense of smell. I am thus not satisfied on the balance of probabilities that the appellant has suffered an impaired sense of smell as a result of the assault.

114 Further, even on the medical evidence of Dr Silbert, if the appellant had suffered an impaired sense of smell, this arose solely as a consequence of the first incident and is not compensable.

115 Based on the medical reports this appears to be related to being hit in the face and possibly related to the neuralgia. I am satisfied that the second incident caused or contributed to the appellant's weeping eye and it is compensable.

116 The only medical practitioner to have mentioned the appellant reporting pain in the throat is Dr Ng, the psychiatrist, and only in his first report of 16 October 2009.

117 As there is no other evidence that the respondent grabbed the appellant by the throat or in any way caused an injury to the appellant's throat, or that the appellant complained to any other medical practitioner of a problem with her throat, I am not satisfied on the balance of probabilities that this is in any way causally related to either the first or second incidents.

118 The following injuries I will refer to as the neck injury:

A v D

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (328 paragraphs)

MCDAVITT -v- MCDAVITT [No 2] [2013] WADC 198 (20 December 2013)

Parties

Legislation Cited (2)

Cases Cited (13)