CAHILL -v- SMITH [2015] WADC 148 (11 December 2015)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

CITATION : CAHILL -v- SMITH [2015] WADC 148

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Appeal alleging inadequacy of award - Turns on own facts

Criminal Injuries Compensation Act 2003

District Court Rules 2005 (WA)

Amicus Curiae : Ms C M Rice 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

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

Gulleo v Halloran [2008] WADC 145

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

Hogben v Darcy [2009] WADC 63

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

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

RGE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)

S v Neumann (1995) 14 WAR 452

1 WAGER DCJ: Mr Cahill appeals the decision of the chief assessor made on 10 December 2014 awarding him $50,238.20 compensation including an approved interim payment of $1,263 for injuries and losses suffered as a result of an offence that occurred on 31 January 2013 being an assault occasioning bodily harm in circumstances of aggravation that Mr Cahill was a person aged over 60 years. Mr Cahill appeals on the grounds that:

He was not notified to attend court decision made in my absence; and

Told - appeal to be fully paid.

2 Mr Cahill is self-represented and orally submits that he takes issue with the decision having been made without a hearing at which he could present his submissions orally pursuant to s 24 Criminal Injuries Compensation Act 2003 (the Act) and he says that the sum awarded was manifestly inadequate pursuant to s 55(1)(b) of the Act.

3 The appeal is a hearing de novo: Gulleo v Halloran [2008] WADC 145 [5]. The court may confirm, vary or reverse the assessor's decision either in whole or in part: s 56(2)(b) of the Act.

4 The application is to be determined without being fettered by the assessor's decision. It is nonetheless appropriate to have regard to the assessment made by the assessor as a specialist tribunal in the field of criminal injury compensation: Hogben v Darcy [2009] WADC 63 [13].

5 On 18 August 2015 Principal Registrar Melville made orders requiring Mr Cahill to file an application by 20 October 2015 for leave to adduce evidence that was not before the assessor if he sought to rely on fresh evidence at the hearing. The order was made pursuant to r 50 of the District Court Rules 2005 (WA).

6 Mr Cahill did not file an application seeking to adduce fresh evidence, however he did file an affidavit dated 18 October 2015 annexing fresh evidence in relation to knee surgery that he seeks to reply upon.

7 This appeal is brought pursuant to s 55 of the Act. Section 56(1) of the Act provides:

The District Court must decide an appeal under s 55 on the evidence and information that was in the possession of the assessor concerned but may admit or receive additional evidence or information.

8 Rule 50 provides for an appeal by way of re-hearing. Section 56 relates to a hearing de novo. Given that the appeal is a hearing de novo and that s 56(1) of the Act applies there is no requirement for Mr Cahill to file an application seeking to adduce fresh evidence because r 50 does not apply. The court receives his affidavit and annexures dated 18 October 2015 as fresh evidence to be considered.

9 Consistent with his statement to police dated 6 February 2013, on 31 January 2013 Mr Cahill was a 63-year-old self-employed man. He went to the assistance of a security officer who he saw chasing a youth who was running from Gilbert's Fresh Market carrying three or five full 2 litre bottles of coke. The security guard was aged about 50 to 60 years. Mr Cahill had seen the youth behaving in an anti-social way in the company of others minutes before. When the youth dropped some bottles the security guard caught up to him and the youth and the security guard started shaping up to each other. Although no blows were thrown Mr Cahill went to back up the security guard. The youth ran away. Moments later the youth swung at Mr Cahill from a half crouched position. As the youth swung Mr Cahill heard and felt the bones crunch in his left upper jaw/cheek area. He felt disorientated and woozy straight away. Mr Cahill said [55]:

As a result of this assault I have a collapsed bone in my left cheek/jaw area due to impact. The collapsed bone is impinging on my jaw muscle. I require an operation to have the bone levered back out [56]. I have trouble sleeping and moving my head without it causing me pain.

10 A victim impact statement signed by Mr Cahill dated August 2013 referred to the fractures on the left side of his face. He also said:

The bottle also hit my upper left shoulder, damaging several ligaments. I had this operated on five to six weeks later. I couldn't have the two operations close together due to the possible risk to my general health. I am still taking very strong painkillers for my arm as it continues to really hurt. If I sleep on my left side my arm becomes inflamed and even more painful.

11 Mr Cahill said that it took six weeks to recover from the concussion, although there is no medical evidence that he suffered concussion. He referred to bouts of memory loss, difficulties sleeping and numerous medical appointments. He referred to confusion, memory and concentration problems, loss of confidence and tinnitus.

12 Ms Bailey by letter dated 8 October 2013 referred to Mr Cahill staying with her and her husband since the assault. She said that he had been going home for two to three days for the last couple of months (referring to mid-2013) but he found it difficult to cope.

13 Mr Smith entered a plea of guilty to the offence on 9 September 2013 and was sentenced to a term of imprisonment.

General principles of assessment of compensation

14 Pursuant to s 31(1) of the Act the maximum compensation available is $75,000. This is a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463.

15 I need to fix the appropriate amount of compensation by applying the ordinary tortious principles for assessment of damages subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act: M v J and J v J (Unreported, WASC, (Scott J) Library No 920598, 19 November 1992); RGE v Bandy (Unreported, WASC, (Burt J) Library No 1365, 31 May 1974) [3].

16 I must have regard solely to the injuries suffered by Mr Cahill in consequence of the commission of the offences.

17 Compensation is payable where a person has suffered 'injury' in consequence of the commission of an offence. Bodily harm and mental and nervous shock are included in the definition of 'injury': s 3, s 12(1) of the Act.

18 I must also consider mental and nervous shock. 'Mental and nervous shock' comprehends any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence or offences, or associated with the commission of the offences, as those events impact on the mind or nervous system. It must be more than a mere emotional reaction, being something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury: Hatfield v Under Secretary for Law (Unreported, WASC, (Burt CJ) Library No 4012, 15 December 1980) [5].

19 The offence need not be the sole cause of the injury for a victim to be entitled to compensation: Fagan v The Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673. However, where the evidence establishes that the non-compensable event had a propensity to cause the applicant injury or loss or did contribute to the injury or loss the award of compensation should be reduced to take account of that chance.

20 If it is not possible to disentangle the consequences of non-compensable events from the consequences of compensable events the applicant is entitled to compensation for the full injury and loss suffered if he has established that the compensable offence did contribute materially to his injury or loss: MJM v MAJS (2003) 35 SR (WA) 219 [47] - [52].

21 Accordingly, in order to assess an appropriate award sufficient evidence must be presented to the court.

1. Letter from Dr Ron Hirsch Royal Perth Hospital dated 21 November 2013

Dr Hirsch noted that Mr Cahill was seen in the maxillofacial outpatient department at Royal Perth Hospital on 4 February 2013 when he was referred for management of an injury sustained as a result of the assault.

Radiology showed a depressed fracture of the left zygomatic arch. He was admitted to the hospital on 7 February for surgical correction of the depressed fracture of his left zygomatic arch. This was performed and his post-operative course was uneventful. He was discharged on 8 February. He was seen again on 18 February when it was noted that he was clinically well, his wounds had healed and his sutures were removed. It was documented that his zygomatic arch was stable and in good position.

2. Letter from Dr Gino Caravella, general practitioner dated 20 November 2013

Dr Caravella noted that since his assault and injury on 7 February 2013 Mr Cahill had been distressed and had attended the clinic on approximately 20 occasions for various medical ailments.

He was seen for facial and shoulder pain secondary to injury sustained in the assault and has required surgery and oral analgesia therapy for his problems.

Dr Caravella noted that Mr Cahill had been unable to work since the assault secondary to his physical conditions which had further aggravated his depressive illness. On 20 November 2013 Dr Caravella noted 'he is slowly recovering and will be disabled for some few months yet'.

23 I am satisfied the injury to Mr Cahill's jaw was caused solely by the assault. I am satisfied that Mr Cahill required the maxillofacial surgery outlined by Dr Hirsch and, following discharge from the clinic, continued to require medical assistance for facial pain which required attendance with his general practitioner.

1. Ultrasound report Perth Radiological Clinic dated 12 February 2013

Dr Anuj Patel noted a disruption of the supra supraspinatus tendon with subacromial bursitis and impingement. Mild AC joint degeneration.

2. Letter from Mr Michael Edwards, orthopaedic surgeon dated 6 July 2013

Mr Edwards attended to Mr Cahill's care on 1 March 2013 and performed surgery on the left shoulder on 7 March 2013. Mr Cahill had subsequent appointments on 19 March and 4 July 2013. Mr Edwards noted that at review on 1 March 2013 Mr Cahill had very limited forward elevation to 30 degrees only but passively to 90 degrees. There was weakness of supra supraspinatus tendon. Internal and external rotation was also limited secondary to pain. Mild AC joint degenerative changes were noted.

I am satisfied that Mr Cahill had suffered degeneration prior to the assault. The degeneration was aggravated by the assault. The tear to the shoulder that required surgery was secondary to the assault.

1. Ultrasound Dr Anuj Patel, Perth Radiological Clinic Midland 21 May 2013

Dr Patel stated x-ray both knees, clinical details of chronic worsening knee pain? Found severe degeneration in both knees. No fracture or other findings in relation severe worsening knee pain. Osteoarthritis.

2. Report of Dr Gino Caravella dated 16 October 2015

Dr Caravella confirmed that Mr Cahill underwent a left total knee replacement for advanced degenerative joint disease on 25 November 2013. He was evaluated by the Sir Charles Gardiner Hospital orthopaedic clinic and was advised to have the knee replaced as a matter of urgency. Dr Caravella noted 'it may well have been done before the right side secondary to the injury he incurred in an assault on 31 January 2013'.

3. Clinical notes (various) imaging results QE2 Medical Centre 1 November 2013

The imaging notes do not refer to any knee operation that would have been performed at an earlier time had Mr Cahill not sustained other injuries. I note the referral to Mr Goonatillake by Dr Gino Caravella is dated 28 May 2013. The referral referred to severe worsening pain in the knees but does not distinguish one knee from the other in terms of priority.

4. Discharge summary Department of Orthopaedic Surgery Sir Charles Gardiner Hospital dated 28 November 2013

Although Dr Caravella noted that the left knee may well have been done before the right knee secondary to the injury there is no evidence of when the left knee surgery would have occurred. I note from the orthopaedic clinic notes that there are no notes to confirm that the left knee operation would have been performed at an earlier time had Mr Cahill not sustained the injury.

On the evidence before me I cannot find that the left knee or the right knee was aggravated as a result of the injuries Mr Cahill sustained in the assault on 31 January 2013.

Medical evidence in relation to depression and other psychological conditions

1. Letter from Dr Gino Caravella, general practitioner dated 20 November 2013

Dr Caravella said 'He has been unable to work since the assault secondary to the above conditions which have further aggravated his depressive illness'.

2. GP Mental Health Care Plan dated 28 January 2014

Dr Caravella noted the present problem being depressive symptoms with a diagnosis of depression. The relevant history is chronic long-standing depression associated with chronic marital disharmony. Physical ill-health and an assault in 2013 causing significant injuries have all aggravated his depression. Current medications of Efexor 300 mg daily, anti-diabetic and anti-hypertensive medication also. The recommended treatment was counselling to alleviate disturbing depressive symptoms with a referral to the Twice Blessed Psychological Clinic.

3. Report of Mr Nathan Barton registered psychologist dated 2 February 2014

Mr Barton noted that Mr Cahill was referred to him by Dr Caravella for clinical interview, the implementation of assessment tools and the design of an intervention plan in relation to depression. Mr Cahill attended two appointments prior to the assault.

On the third appointment with Mr Barton, Mr Cahill advised of the assault and Mr Barton amended his treatment plan to accommodate his psychological reaction to the assault. As at 2 February 2014 Mr Cahill had attended appointments subsequent to the assault on 11 occasions. However, Mr Barton noted that during sessions subsequent to the assault, Mr Cahill was able to remain focused on pre-existing issues unrelated to the assault as well as to report on progress made with other, then current, stressors in his life.

Mr Barton said that following the assault, Mr Cahill presented with a graze to his head and obvious pain from a shoulder injury. His speech, comprehension, thought process and content were observed as being less coherent than during previous sessions. He was generally withdrawn yet cooperative throughout the session. Mr Barton described that this was markedly different to his sessions prior to the assault where his affect had at times been animated and aggressive in tone, when recalling historical events.

Mr Cahill described the circumstances of the assault to Mr Barton. Mr Barton recorded that Mr Cahill told him that a group of boys had assaulted him. In the statement to the police Mr Cahill referred to a group of boys being seen prior to the assault, however referred to only one boy being involved in the assault

On 4 April 2013 Mr Cahill reported personal beliefs that may have been based on paranoia and auditory sensations that may have been auditory hallucinations. He presented with various symptoms that, in Mr Barton's opinion, were consistent with the DSM-V criteria for post-traumatic stress disorder, however Mr Barton, as a registered psychologist, acknowledged that his assessment did not constitute a formal diagnosis. I accept the symptoms that Mr Barton described in relation to the condition suffered by Mr Cahill but I do not proceed on the basis that Mr Cahill is suffering from a diagnosed condition of post-traumatic stress disorder. The relevant conditions that Mr Barton believed were directly related to the assault are:

(b) He rarely achieved a deep sleep and often experienced disturbed sleep due to his recollections of the assault. He had intrusive recollections of the assault.

(c) When reminded of the assault he felt fearful and sweaty and experienced anxiety symptoms following these recollections.

(d) He avoided the area of Gilbert's Fresh Markets and avoided large shops and crowds.

(e) He had difficulty in remembering some details of the assault and had experienced deficits in memory. He felt lethargic and unmotivated.

(f) He began reporting many of the symptoms in November 2013, about 10 months after the assault.

(g) His physical and psychological symptoms have impacted on his ability to seek work.

25 Mr Cahill was actively engaged in sessions and completed the out-of-session work set for cognitive behaviour therapy.

26 Mr Barton's assessment, as at 2 February 2014, was that Mr Cahill required further counselling on an ongoing basis. His physical injuries had limited his capacity for work and Mr Barton considered his psychological condition further reduced his capacity to work at that time. Mr Barton's assessment was that Mr Cahill's capacity to work was very limited to the point of total incapacitation.

27 Mr Barton's view was that Mr Cahill's condition had not resolved and it had not stabilised as at 2 February 2014. At that date Mr Cahill's depression and anxiety were severe and his stress level was moderate.

28 Based on the report before me I accept that Mr Cahill will require ongoing future treatment. Mr Cahill has not claimed the cost of Mr Barton's services and there is no evidence before me in relation to any cost to Mr Cahill. Although I accept that ongoing psychological treatment is a future treatment need for Mr Cahill I cannot make an order in respect of the cost of future treatment because I do not have evidence of an expense likely to be reasonably incurred: s 6(2)(b) of the Act.

29 I accept that Mr Cahill suffered from depression prior to the assault. He had attended an appointment with Mr Barton just prior to the assault in relation to that condition. I find that the conditions set out in (a) to (g) are symptoms caused by the assault for which compensation should be awarded.

30 Compensation is payable where a person has suffered loss 'as defined': s 6 and s 12(1) of the Act.

31 To prove economic loss an applicant must establish a loss of earnings by reason of the offence, and the loss must be a direct consequence of the injury. Loss of earnings includes loss of earning capacity: s 6(2)(c) of the Act: A v D (1994) 11 WAR 481, 489. However, the damages to be assessed are essentially a matter of judgment and cannot be proved by precise figures: A v D (489). It is the loss of the chance that the person could have worked unaffected by injury but for the commission of the offence that is assessed.

1. Centrelink medical certificate (for period 31 January 2013 to 30 March 2013) dated 19 February 2013

The diagnosis is fractured zygoma and left shoulder tendon tear. The symptoms recorded are 'Painful left facial bones. Pain to move all directions'.

2. Centrelink medical certificate (for period 30 May 2013 to 15 July 2013) undated

The diagnosis is left rotator cuff required surgery. The symptoms are pain and restricted left shoulder.

3. Centrelink medical certificate (for period 1 July 2013 to 12 November 2013) dated 12 August 2013

The diagnosis is depression, diabetes Type 2, osteoarthritis knees and shoulder. The condition is long term in respect of depression and osteoarthritis and lifelong in respect of diabetes Type 2. The symptoms are moderate risk suicide, severe pain with prognosis being moderate.

4. Mr Cahill's letter to the assessor dated 24 February 2014

Mr Cahill stated that he is a sole contractor who is self-employed. His only income since the date of injury had been Newstart payments from Centrelink.

The total gross income recorded was $15,036. The taxable income was $8,150. Following non-refundable tax offsets the taxable income was $1,993.20. The income was attributable to bricklaying services.

The total gross income was $36,092. The net income was $24,555. The net income from working attributable to bricklaying services was $9,761.

33 Mr Cahill is now 65 years old. The assault occurred when he was 63. At that time he had long term pre-existing conditions of osteoarthritis in the shoulder and knees, diabetes Type 2 and he suffered from depression. I accept that he was able to work at that time and that as a result of the assault he sustained injuries that required surgery in respect of the fractured left zygoma arch and in respect of the left shoulder. I also accept that he has suffered psychological conditions that have aggravated his depression since the time of the assault as outlined by Mr Barton.

34 Given that Mr Cahill's work as a bricklayer was physical work the conditions that he suffered from prior to the assault would have impacted on his ability to work in future years. I find it is likely he would have reduced or stopped working as a bricklayer in a matter of years. I have regard to the assessment made by the assessor mindful of the assessor's experience in the field of criminal injury compensation. A sum of $26,250 for loss of income is the appropriate sum.

35 The interim payment made to Mr Cahill $1,263 is not in dispute. At the time of making the application the cost of Mr Barton's report of $550, the additional treatment expenses of $713.20 and travel expenses of $225 remained outstanding. These sums have been properly included in the compensation order that was made by the assessor. There is no challenge to these sums.

36 For the reasons I have outlined I consider that compensation for injuries sustained being the left fractured zygoma arch, the left shoulder, being mindful of the pre-existing condition, and the aggravation of the pre-existing condition of depression are matters for which compensation should be awarded.

37 In applying tortious principles and being mindful of the assessor's experience in a specialist tribunal I consider the assessment for injuries of $22,500 to be the appropriate sum. Accordingly the award made by the assessor is the appropriate award and I confirm that award. I make the order as follows: