A v D

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Appeal from award on ground of inadequacy - Extension of time to appeal - Further evidence admitted - Nervous shock psychological symptoms - Causation issues - Future treatment - Turns on own facts

Criminal Injuries Compensation Act 2003

District Court Rules 2005

Amicus Curiae : Mr L D Villiers appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Amicus Curiae : State Solicitor for Western Australia

A v D (1994) 11 WAR 481

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

Chief Executive Officer of the Department of the Attorney General v A (2006) 45 SR (WA) 135

Crumby v Kuru (1995) 13 SR (WA) 331

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

Dos Santos v Dos Santos [2000] WADC 256

Du Boulay v Worrell [2009] QCA 63

Dunne [2013] WACIC 21

ELK v CFB [2009] WADC 90

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

Gallo v Dawson [1992] HCA 44; (1992) 66 ALJR 859

Garton v McCormack [2002] WADC 111; (2002) 30 SR (WA) 307

Gleeson v Lee (1996) 18 SR (WA) 353

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

Hogben v Darcy [2009] WADC 63

JLW v DRH [2004] WADC 214; (2004) 36 SR (WA) 301

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

McDavitt v McDavitt [No 2] [2013] WADC 198

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

Re Tilbury [2010] WADC 46

RJE v Bandy (Unreported, WASC, Library No 5489, 31 May 1974)

S v Neumann (1995) 14 WAR 452

Tobin v Dodd [2004] WASCA 288

1 DAVIS DCJ: Mr Gerard Dunne was the victim of an unlawful wounding committed against him by Calvin McGuire on 1 January 2012.

2 Mr Dunne lodged an application for criminal injuries compensation pursuant to the Criminal Injuries Compensation Act 2003 (the Act). On 6 August 2013 the Chief Assessor made a compensation award in his favour in the sum of $22,642.90.

3 Mr Dunne now appeals from the assessor's decision on the grounds that the award is inadequate.

4 Mr Dunne did not file any appeal immediately following the assessor's award, or otherwise raise an issue with the amount of the award. It was, in fact, Mr McGuire who filed an appeal on 27 August 2013, on the basis that the award to Mr Dunne was excessive.

5 At the time the appeal was filed Mr McGuire was unrepresented. On 12 September 2013 Mr Dunne, also unrepresented at the time, filed a notice of intention to take part in the appeal. This notice followed the standard Form 8 under the District Court Rules 2005. Mr Dunne ticked the box on that form which said 'the respondent will argue the primary court's decision should be upheld on the grounds relied on by the primary court in its decision'. He left unticked the alternatives, including applying for a variation or a cross-appeal of the primary court's decision.

6 A directions hearing took place on 24 September 2013 at which orders were made listing the appeal for hearing on 6 November 2013. (The extracted orders from this hearing are dated 9 July 2013, but that date is plainly an error).

7 Mr Dunne then sought legal advice, engaging his lawyers on 1 October 2013. On 21 October 2013 Mr Dunne's lawyers wrote to this court, with a copy of the letter sent to Mr McGuire, advising (among other things) that:

We intend to seek leave to amend the Respondent's Notice of Intention to request the primary court's decision to be varied to include other grounds not considered by the Office of Criminal Injuries Compensation.

8 At the hearing of Mr McGuire's appeal on 6 November 2013 Mr McGuire attended in person, Mr Dunne was represented by counsel and there was also counsel appearing on behalf of the Chief Executive Officer of the Department of the Attorney General as amicus curiae. Mr Dunne's counsel sought an adjournment of the hearing to enable Mr Dunne to be reviewed by a psychologist, because he was having 'ongoing symptoms that weren't actually considered in the primary court's decision' (ts 3). Mr McGuire asked for an adjournment so that he could obtain legal advice. The matter was adjourned sine die.

9 Mr Dunne's lawyers, after corresponding to Mr McGuire with no response, asked that the matter be re-listed for a directions hearing so that the matter could be progressed. A directions hearing was listed for 5 June 2014, the date being notified to all parties. Mr McGuire did not attend that hearing.

10 The directions hearing was adjourned to 17 June 2014, with the court (Deputy Registrar Hewitt) writing by letter of 5 June 2014 to Mr McGuire advising him of the re-listed directions hearing and that if he failed to appear on that occasion the registrar would consider striking out the appeal for want of prosecution.

11 Mr McGuire did attend the hearing on 17 June 2014, and the matter was adjourned to 15 July 2014.

12 On 8 July 2014 the lawyers for Mr Dunne filed an Amended Notice of Respondent's Intention in which the section of the Form 8 indicating a cross-appeal of the decision of the primary court was ticked and completed. The ground of that cross-appeal was that the award of compensation was manifestly inadequate. In that Amended Notice of Respondent's Intention it was indicated that an extension of time was needed.

13 On 15 July 2014 after Mr McGuire failed to attend the directions hearing, Deputy Registrar Hewitt ordered that Mr McGuire's appeal be struck out and that the 'amended notice of intention and cross-appeal filed 8 July 2014 do stand as the respondent's notice of intention and cross-appeal'. The cross-appeal was listed for hearing on 15 September 2014, with directions made for the preparation and filing of a book of documents and submissions.

14 The matter has since proceeded on the basis that Mr Dunne is the appellant and in the balance of these reasons I will refer to Mr Dunne's cross-appeal as 'the appeal'.

15 An appeal against an award must be commenced within 21 days, but the court has discretion to grant leave to commence an appeal after the expiry of that period if it is just to do so: s 55(4) of the Act.

16 There is some issue as to whether Mr Dunne was required to indicate, by the notice of intention he first filed, that he wished to cross-appeal the assessor's decision. That is because any criminal injuries compensation appeal requires the hearing of the application afresh without being fettered by the determination of the assessor: s 56(1) of the Act. Once Mr McGuire filed his appeal, upon hearing that appeal the court could increase or decrease the award of compensation, even if a cross-appeal was not filed: Dos Santos v Dos Santos [2000] WADC 256 [3].

17 Because there was no immediate appeal by Mr Dunne from the award, however, and given his amended notice of intention and cross-appeal filed on 8 July 2014 it is accepted that leave to commence the appeal is required.

18 The principles applicable to an application for an extension of time within which to bring an appeal under the Act are the same as those applicable generally to an application for an extension of time to appeal from any judgment: see Gleeson v Lee (1996) 18 SR (WA) 353; Chief Executive Officer of the Department of the Attorney General v A (2006) 45 SR (WA) 135 [16] - [18]; Gallo v Dawson [1992] HCA 44; (1992) 66 ALJR 859. The relevant factors to consider are the length of delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice suffered by the respondent. The discretion to extend time should be exercised in favour of an applicant if strict compliance with the time limit would not lead to any injustice, having regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties if the extension of time was granted or refused. Whenever an application is for an extension of time within which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal.

19 The length of the delay in this case and the reason for it has been explained in part by the fact that Mr Dunne was unrepresented and, according to the affidavit of his lawyer, did not understand the orders which were made. That in itself is, in my view, not a sufficient explanation of the delay. An unrepresented party is as much subject to the rules as any other litigant: Tobin v Dodd [2004] WASCA 288 [14]; Du Boulay v Worrell [2009] QCA 63 [69]. If Mr Dunne was dissatisfied with the award of compensation, he should have taken steps accordingly. The Form 8 is self-explanatory.

20 However, I have taken into account that once Mr McGuire lodged his appeal, there was to be a hearing afresh on the issue of whether the award should be increased or decreased. In addition, notice was given by the letter from Mr Dunne's lawyers of 21 October 2013, and again at the hearing of 6 November 2013, of Mr Dunne's intention to raise the inadequacy of the compensation award at the appeal hearing. Strictly speaking, the necessity for Mr Dunne to cross-appeal only arose once Mr McGuire's appeal was struck out.

21 There is no indication that Mr McGuire, as the respondent to Mr Dunne's appeal, would suffer any prejudice if an extension of time were granted. Mr McGuire was put on notice at a reasonably early stage that Mr Dunne would contest the amount of the award as inadequate.

22 In my view, strict compliance with the time limit would not lead to any injustice, having regard to the nature and history of the proceedings and the conduct of the parties. Subject to a consideration of the merits, in these circumstances I consider an extension of time ought to be granted.

23 I turn now to consider the merits of Mr Dunne's appeal.

General principles relevant to the assessment of compensation

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

25 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.

26 Humiliation or anguish that may be suffered by such things as the reaction of the victim's friends and family, court proceedings or public attention are not injuries suffered as a consequence of the commission of the offence, but matters which have subsequently arisen and are not part of compensable injury: RJE v Bandy (Unreported, WASC, Library No 5489, 31 May 1974); Garton v McCormack [2002] WADC 111; (2002) 30 SR (WA) 307 [15]; McDavitt v McDavitt [No 2] [2013] WADC 198 [141].

27 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. 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.

28 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.

29 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).

30 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.

31 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 offence is a question of fact.

32 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: MJN v MAJS (2003) 35 SR (WA) 219 [51] - [57]; JLW v DRH [2004] WADC 214; (2004) 36 SR (WA) 301 [41]; McDavitt v McDavitt [No 2] [22] - [54].

33 The court must attempt to distinguish between direct 'impact damage' that flows from the offence itself and indirect damage that flows from such things as the reaction of the victim's friends and family, court proceedings or public attention: RJE v Bandy; Garton v McCormack.

34 While I am not fettered by the assessor's decision, it is nonetheless appropriate for me to have regard to the assessment made by the assessor, who is a specialist in the field of criminal injuries compensation: Crumby v Kuru (1995) 13 SR (WA) 331, 333; Hogben v Darcy [2009] WADC 63 [13].

35 The assessor provided written reasons for her assessment, following a request after the filing of Mr McGuire's appeal: see Dunne [2013] WACIC 21.

36 The statement of material facts of the offence was set out in the written reasons as follows:

At about 8.00pm on Friday 31 December 2011 the accused attended the Novatel Vines Golf Resort to celebrate New Years Eve in company with several friends. The event was open to members of the public and approximately 200 were in attendance. The complainant, Gerard DUNNE attended with his wife and two friends.

The accused consumed alcohol throuout [sic] the evening and became intoxicated. The event finished at 00.30 on 1 January 2012 and the accused departed with his sister and witness Mia McGUIRE.

The complainant departed with his wife and friends and walked home along a footpath. The complainant walked past the accused and McGUIRE and exchanged words (non sinister). The accused said something to the complainant who thought that the accused had sworn at him. The complainant turned around and asked the accused if he had just sworn at him.

McGUIRE stepped between the two and informed the complainant that the comments were not directed at him.

The complainant and McGUIRE made physical contact with their arms and the accused became angry and stepped forward striking the complainant to the head with a glass Corona beer bottle.

The initial impact caused the bottle to smash and with the same striking blow, the bottle ran across the face of the complainant causing a deep laceration from the ear to the corner of the mouth. The complainant immediately fell to the ground and the accused stepped forward to further assault the complainant.

McGUIRE stepped in and stopped the accused and they departed the scene immediately. The complainant eventually recovered enough to walk home where he contacted an ambulance and was conveyed to Swan Districts Hospital for treatment. As a result of the assault the complainant received three stitches to the top of the head from the initial bottle impact and six to the face where the smashed bottle cut him.

37 The assessor recorded that she had seen photographs taken at the hospital and other hospital records which confirmed that Mr Dunne had suffered lacerations to his head and face as described in the statement of material facts. Photographs taken about 18 months later were also provided by Mr Dunne, as to which the assessor noted as follows (Dunne [2013] WACIC 21 [9]):

The scar shows up very clearly in the photograph and traverses the whole of the right side of the applicant's face. Stitch marks are also visible and I formed the view that the scar constituted a significant disfigurement. I noted that some eighteen months had passed between the date of the incident and the most recent photograph, and although I accepted that it was possible the scar would fade a little more with time, I was satisfied that it would continue to represent a noticeable disfigurement to the applicant.

38 The assessor had before her a victim impact statement which appeared to have been prepared by Mr Dunne for sentencing purposes and was dated 22 February 2012. He had described his physical injuries and added that he had suffered bruising to his right ear which later became very swollen. He had also suffered bruising to his right hip as a result of falling to the footpath after the assault. He referred to the scar on his face which he saw every morning and he had to be careful when shaving because the scar was sensitive to pressure. It felt tight when he smiled and there was a loss of feeling around it. He said that since the incident he had found concentrating at work or at home difficult and had lapses in his memory leading him to consult his doctor and to seek counselling. Because his work involves visiting hotels, clubs etc he had become anxious attending such places in the course of his duties and wary around people who were apparently intoxicated. He said he felt quite helpless to vindicate himself and angry that he had no control over the situation.

39 The medical evidence which the assessor had before her included two reports from Mr Dunne's general practitioner, Dr P Jayasuriya. The first report dated 30 November 2012 confirmed that apart from persistent numbness of the right cheek, Mr Dunne had recovered from his physical injuries. The second report dated 19 July 2013 noted that in addition to the physical injuries the applicant had developed symptoms 'diagnostic of post-traumatic stress disorder'. Dr Jayasuriya listed those symptoms as re-experiencing the traumatic event, avoidance of stimuli associated with it, increased symptoms of arousal and impaired functioning in social and work circumstances. Dr Jayasuriya said that Mr Dunne had been referred for counselling but that this process was 'largely unsuccessful as they were unable to establish a beneficial therapeutic relationship'. Dr Jayasuriya had provided counselling himself and as at the date of the report indicated that Mr Dunne had made a satisfactory recovery and required no further treatment.

40 The assessor was also provided with a document which appeared to arise from a work place counselling service which recorded Mr Dunne attended on 2 February 2012 to discuss an episode of memory loss which he felt arose as a consequence of the incident. Mr Dunne also reported that he had not been wanting to exercise as much as before as he felt tired, and he was eating more.

41 Considering all of the materials submitted, including the reports relating to the period of psychological impact suffered and the photographs showing significant and likely permanent residual scarring, the assessor determined compensation in the amount of $22,000, plus additional costs including medical costs and the cost of replacing prescription glasses.

42 At the hearing which took place on 6 November 2013 the argument raised by counsel appearing for Mr Dunne was that he was having ongoing symptoms that were not considered in the assessor's decision (principally relating to his ongoing work as set out in [38]).

43 There is now fresh evidence (i.e. evidence which did not exist at the time of the assessment) which contains further information about Mr Dunne's mental state. I have been asked to receive the following further evidence:

(a) a report from a psychologist, Ms Maya Manning, dated 20 January 2014 (prepared following a clinical interview conducted with Mr Dunne on 17 December 2013);

(b) a further victim impact statement, described as 'Addendum to Victim Impact Statement' from Mr Dunne dated 13 May 2014;

(c) a Job Description Form for Mr Dunne's position as a compliance manager at the Department of Racing, Gaming and Liquor; and

44 I have a discretion to receive further evidence and information: s 56(1) of the Act. That discretion should 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: 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.

45 Accordingly, I have concluded that I should exercise my discretion to receive this further evidence.

46 As argued in the hearing of the appeal before me, the claimed inadequacy in the award, based on the medical evidence from the psychologist, Ms Manning, related to three areas:

(a) the allowance for the psychological component of Mr Dunne's injuries;

(b) future economic loss. It was, however, accepted that Mr Dunne's injuries had not been productive of economic loss. This claim for future economic loss related to the time which Mr Dunne might need to take off work in order to attend treatment as recommended by Ms Manning in her report; and

(c) the costs of future treatment, based on the recommendations in Ms Manning's report that Mr Dunne attend counselling.

The post-traumatic stress ('nervous shock') claim

47 Ms Manning has considerable experience and qualifications in post-traumatic symptomology. She determined Mr Dunne's current symptoms by using a semi structured clinic interview and psychometric tests. She also administered a PTSD Checklist - Civilian (PCL-C), used to measured diagnostic criteria for post-traumatic stress disorder. Her report is very detailed; similar detail is lacking in the report of Dr Jayasuriya. Counsel for the amicus curiae conceded that Ms Manning's report is a very detailed report of an eminent professional in the field.

48 Ms Manning's report set out that Mr Dunne suffers from the following symptoms related to the offence (referred to in Ms Manning's report as 'the trauma'):

(a) avoidance symptoms, specifically efforts to avoid thoughts, feelings or conversations related to the trauma, avoiding activities or situations reminiscent of the trauma, a loss of interest in previously enjoyed activities and feeling distant from other people;

(b) re-experiencing symptoms, specifically repeated disturbing memories, thoughts or images of the trauma and feeling very upset when reminded of it; and

(c) symptoms of increased autonomic (nervous system) arousal, specifically irritability and anger, impeded concentration, feeling watchful or on-guard (hypervigilance). To a lesser extent he also suffers from sleep disturbance.

49 Mr Dunne was also administered the Depression, Anxiety and Stress Scale (DASS-21) which returned scores in the severe range for stress and depression and the moderate range for anxiety.

50 Ms Manning recorded what Mr Dunne reported to her, namely that he experiences disturbing thoughts or memories about the assault usually four or five times a week and becomes upset when similar assaults are reported in the media. He tries not to talk about the assault at work so that people do not ask questions. At times he relives the assault.

51 Ms Manning also recorded that Mr Dunne reported that he tries to avoid licensed premises when he is not at work, has lost interest in activities that he used to enjoy and ceased activities such as personal fitness, walking and jogging and going out to socialise.

52 Mr Dunne also reported difficulties with sleep, reporting waking two or three times a night. He has difficulties concentrating when entering a licensed premises in the course of his work and tends to make a 'beeline' for the office as he perceives this to be the safest area in the premises.

53 I should observe that many of the symptoms I have set out in [50], [51] and [52], which Ms Manning describes as re-experiencing, avoidance and hyper-arousal symptoms, were described by Mr Dunne in his initial victim impact statement which was before the assessor, and some are in his amended victim impact statement (in particular his hypervigilance at work). Of particular note in both statements is the fact that he is reminded daily of the attack when he looks at his face in the morning in the mirror and sees his facial scar.

54 Ms Manning expressed the opinion that Mr Dunne's symptoms meet the criteria for Reaction to Severe Stress as defined by the ICD-10 Classification of Mental and Behavioural Disorders. She also expressed the opinion that given the nature of the timing of Mr Dunne's reported symptoms, the trauma (i.e. the offence) is the primary causal factor and the onset of these symptoms can be directly attributed to the trauma.

55 Ms Manning in her report advised that a reduction of Mr Dunne's symptoms was now unlikely to occur naturally and was more likely to occur after 6 to 12 sessions of psychological intervention. In the meantime, continuing to work is beneficial for Mr Dunne. If his symptoms are left untreated, they are likely to deteriorate under his current work conditions. She went on later to say, however, that 'it is likely that the frequency and intensity of Mr Dunne's post trauma symptoms have peaked'. She also stated that Mr Dunne's prognosis is a moderate chance of significant recovery.

56 I did have some concerns about aspects of Mr Dunne's claim for an increased award relating to his post-traumatic stress (nervous shock) claim.

57 One concern was Mr Dunne's reported avoidance symptoms and issues at work. For example Ms Manning reported that he restricts himself from doing 'walk throughs' of licensed premises as part of his work, and I have already mentioned that he heads straight to the office of licensed premises which he visits. The offence was not committed at licensed premises, however, but occurred on a footpath when Mr Dunne and his wife were walking home. The connection between this and licensed premises is tenuous. However, I am prepared to accept that, since he was struck by an intoxicated person with a beer bottle, the sound of glass might trigger a memory, and that he would be wary of people who are apparently intoxicated. As counsel for Mr Dunne submitted, this is the response of someone who is suffering from psychological trauma.

58 My main concern was that at the time of the award made by the assessor Mr Dunne had completed counselling and had, based on the report from his general practitioner, Dr Jayasuriya, made a satisfactory recovery. From what is set out in Mr Dunne's amended victim impact statement dated 13 May 2014, this situation changed when Mr McGuire lodged his appeal. As Mr Dunne himself stated in his amended victim impact statement:

Upon the acceptance of a Criminal Injury Compensation Award in May [sic] 2013 I thought my dealings and sufferings at the hands of Mr McGuire were over.

However, another 12 months or more has passed and the healing from the injuries he inflicted on me physically and mentally are not diminished. He has chosen to appeal the award granted back then and stolen more of the enjoyment of life and I am, even as I write this, not able to understand why ...

... Mr McGuire's actions in appealing the Criminal Injury Compensation award has caused us to confront him face to face in a courtroom with no outcome arising. He wins again.

59 From these paragraphs in his amended victim impact statement, and given the report from Dr Jayasuriya, it might be inferred that it was the appeal lodged by Mr McGuire which triggered Mr Dunne's psychological symptoms. As I have set out in [26] and [33] above there is a distinction between damage that flows from the offence itself and indirect damage that flows from court proceedings.

60 I have, however, taken into account that the fact that Mr Dunne had ongoing psychological issues (which had not abated) was a matter foreshadowed very early on, starting with the letter from Mr Dunne's lawyers to this court on 21 October 2013, and raised again at the hearing of 6 November 2013.

61 In light of all of the evidence, in particular Ms Manning's report, I find that while at the time of the assessor's decision Mr Dunne's symptoms were able to be controlled with the treatment he received from Dr Jayasuriya, Mr Dunne had not, in fact, made a full recovery. At best, using Dr Jayasuriya's words in his report of 19 July 2013, Mr Dunne's recovery had, at that date, been 'satisfactory'.

62 I am satisfied on the balance of probabilities that Mr Dunne's symptoms have continued at all relevant times, albeit with some improvement following the counselling he received from Dr Jayasuriya. I accept the submissions by counsel for Mr Dunne that he is, in fact, constantly reminded of the offence both by seeing his scar and events at work. I also accept the submissions from Mr Dunne's counsel that to some extent the way in which Mr Dunne coped with the trauma after the offence was by avoidance. This is, in my view, supported by all of the evidence and explains Mr Dunne's reaction following Mr McGuire's appeal.

63 Having said that, I cannot compensate Mr Dunne for any anguish or hurt he has suffered which has arisen from the initiation of the appeal proceedings by Mr McGuire. I therefore do not take into account the matters in Mr Dunne's amended victim impact statement as I have set out in [58].

64 I am, however, satisfied that Mr Dunne's symptoms as set out in Ms Manning's report constitute a continuation of the nervous shock injury he suffered in 'consequence of the commission of' the offence. Accordingly, I have concluded that the award of compensation to Mr Dunne is inadequate.

65 There should be an increase of compensation for Mr Dunne's injuries, to reflect both the physical injuries, including the significant scarring, and the psychological injuries he has suffered as a result of the offence. While the psychological impact of the offence has not severely impaired Mr Dunne's ability to work, and he has not suffered any loss of income as a result, there is no doubt that post-traumatic stress has affected many aspects of his daily life. This psychological impact has been ongoing, and while Mr Dunne's symptoms had peaked by the time of Ms Manning's report two years after the offence, it is likely that these symptoms will continue in the future. Improvement is, however, likely to be achieved with the psychological treatment as recommended by Ms Manning.

66 Taking into account all of the evidence and applying ordinary tortious principles for assessment of damages, I consider the appropriate compensation for the combined physical and psychological injuries which Mr Dunne suffered in consequence of the offence is $50,000.

67 There is no evidence that Mr Dunne will suffer any loss of income as a result of having to undergo treatment for his psychological injuries. There is no evidence that he would not be able to arrange to attend the one hour weekly sessions as recommended, either by arrangement with his employer, or before and after working hours.

68 I decline to make any award for this aspect of the claimed loss.

69 I am satisfied from Ms Manning's report that Mr Dunne ought to undergo counselling as recommended in her report.

70 Ms Manning has set out the cost of the required treatment which would involve 6 to 12 sessions at a cost of $228 per session. In my view, it is reasonable to allow for 12 sessions, at a total cost of $2,736.

71 There will also need to be an allowance for Mr Dunne to visit his general practitioner in order to obtain an appropriate referral, at a cost of $70.

72 I grant leave to appeal out of time pursuant to s 55(4) of the Act. I consider that:

(a) A total award $50,000 is appropriate for pain, suffering and loss of amenity arising from the combined physical and psychological injuries which Mr Dunne suffered in consequence of the offence.

(b) There should be an additional allowance for future treatment of $2,806, based on 12 sessions of psychological counselling and a GP visit. This allowance is subject to s 48 of the Act. The amount allowed for future treatment is not payable to Mr Dunne unless and until the prospective expenses have been reasonably incurred.

73 I vary the final amount of the award accordingly. The amount of compensation assessed for Mr Dunne's injuries will be:

Future Treatment expenses (subject to s 48 of the Act) $2,806.00