//
[2015] WADC 91
General information, not legal advice.
District Court of WA
2015-07-31
Mr J
Original judgment source is linked above.
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CITATION : RE FARMER [2015] WADC 91
MATTER : IN THE MATTER of Part 7 of the
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Witness to an unlawful killing - Post-traumatic stress disorder - Economic loss
Amicus Curiae : Ms Chapman 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 B [2004] WASC 6
B v W (1989) 6 SR (WA) 79
Bedetti v Chief Executive Officer [2003] WADC 37
Blezard v Chief Executive Officer of the Ministry of Justice [2000] WADC 41
BT v BT [2014] WADC 166
Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143
Crumby v Kuru (1995) 13 SR (WA) 331
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 277 ALR 611
Dos Santos v Dos Santos [2000] WADC 256
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Garton v McCormack (2002) 30 SR (WA) 307
Gullelo v Halloran [2008] WADC 145
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
JPG v O'Brien [2002] WADC 232
Krukiewicz v Hayes [2004] WADC 242
LMC by her next friend THE PUBLIC TRUSTEE in and for the State of Western Australia v RJO [2002] WADC 147
M v J & J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
McGlen-McLeod v Galloway [2011] NSWDC 163
MJN v MAJS (2003) 35 SR (WA) 219
MW v CW [2001] WADC 234
Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221
R v Forsythe [1972] 2 NSWLR 951
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
Re Karra (1984) 2 SR (WA) 97
Re Tilbury [2010] WADC 46
Reed v Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 970170, 5 June 1997)
RJE v Bandy (Unreported WASC, Library No 1365, 31 May 1974)
RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)
S v Neumann (1995) 14 WAR 452
SW v BB [2010] WADC 86
TAW v NJS [2011] WADC 187
The State of Western Australia v Callaghan [2014] WASCSR 95
1 The deceased, Mr McMaster, had a violent history and had previously been a high ranking member of the Rebels outlaw motorcycle gang.
2 The offender, Mr Callaghan, was convicted of Mr McMaster's manslaughter and was a life member of the Veterans motorcycle club.
3 The appellant, Mr Farmer, boarded with Mr McMaster and appears to have had a friendly relationship with the deceased and Mr Callaghan.
4 Mr Callaghan and the deceased had a common background in the army and a common interest in motorcycles. They had been friendly but shortly before the incident there had been a confrontation between the deceased and an associate of Mr Callaghan. As a result of this incident the deceased told Mr Farmer that he was going to get Mr Callaghan. It appears the deceased became obsessed with his hatred for Mr Callaghan. Mr Farmer told Mr Callaghan of the threats and advised Mr Callaghan of the deceased's erratic behaviour.
5 On 23 February 2013 the deceased went to Mr Callaghan's house and set fire to his utility and then returned to his home and told Mr Farmer 'It's on, it's on. I've gone ahead with it'.
6 Mr Callaghan saw that his ute was on fire and extinguished it. He did not report the matter to the police, saying 'If somebody does something to you, you don't go running to the cops', however he went to the deceased's house in the early hours of the morning armed with a loaded .22-calibre rifle.
7 When Mr Callaghan went to the rear of the deceased property carrying the rifle at his side, the deceased saw Mr Callaghan and came out of the house and attacked Mr Callaghan with a tomahawk. The deceased ran into the house. Mr Callaghan, who claimed he was frightened that the deceased was going to get a firearm, fired a shot from his rifle which hit and injured the deceased. Mr Callaghan then chased the deceased into his house and fired two other shots into the deceased killing him. Of the three shots fired, one struck the deceased on the upper left thigh, another on the left side of the back and another on the mid back. Mr Farmer was present throughout these events.
8 Mr Callaghan was later acquitted of murder but convicted of manslaughter and sentenced to 8 years' imprisonment.
9 Mr Farmer applied for criminal injuries compensation.
10 On the 10 March 2015 the chief assessor awarded the sum of $22,744.70 compensation for injuries and loss in respect of the offence of manslaughter ordering that $20,244.70 be paid to Mr Farmer with the further sum of $2,500 subject to the provisions of s 48 of the Act.
11 Mr Farmer appeal's against the assessor's decision, essentially on the following grounds:
12 The appeal is a hearing de novo: s 56(1) Criminal Injuries Compensation Act 2003 (the Act): Gullelo v Halloran [2008] WADC 145 [5].
13 The appeal must be decided 'without being fettered by the assessor's decision': s 56(1) the Act. Nonetheless, it is appropriate to have regard to the assessment made by the assessor given that the assessor 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].
14 There is a general discretion to receive and admit further evidence on the appeal: s 56(1) the Act. Further evidence should be admitted unless there is some reason why it would be unjust to do so: Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143 [37]; Re Tilbury [2010] WADC 46 [3]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9].
15 It is open to increase or decrease the compensation award made by the assessor even though no cross appeal has been filed: Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221; Dos Santos v Dos Santos [2000] WADC 256.
16 The maximum compensation that may be awarded for a single offence is $75,000: s 31(1) the Act.
17 The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463.
19 'Injury' is relevantly defined in s 3 of the Act to mean 'bodily harm, mental and nervous shock, or pregnancy'.
20 'Loss' is defined in s 6(2)(b) of the Act to include expenses that are likely to be reasonably incurred by or on behalf of a victim of an offence for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim as a consequence of the offence.
21 In assessing the amount of compensation the focus is solely upon the injuries suffered by the appellant as a consequence of the commission of the offence. Considerations of punishment of the respondents or sympathy for the appellant are completely irrelevant: R v Forsythe [1972] 2 NSWLR 951, 953; B v W (1989) 6 SR (WA) 79, 89.
22 The appropriate amount of compensation must be determined by applying the ordinary tortious principles for the assessment of damages for the 'injury' and 'loss', as defined by the Act, subject to the jurisdictional 'monetary' limit imposed by the Act: RJE v Bandy (Unreported, WASC (Burt J), Library No 1365, 31 May 1974); M v J & J v J (Unreported, WASC (Scott J), Library No 920598, 19 November 1992); A v D (1994) 11 WAR 481, 486 - 487, 31.
23 The onus is on the appellant to establish, on the balance of probabilities, a causal relationship between the commission of the offence and the injury and loss for which compensation is sought: s 3 the Act: S v Neumann 463 - 464.
24 It is not necessary for the appellant to establish that the offence was the sole cause of the alleged injury or loss. It is sufficient for the appellant to establish that the offence materially contributed to any injury or loss: Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673; S v Neumann, 463 - 464.
Psychological report of Ms Sachse of 2 November
25 Ms Sachse is a clinical psychologist. She prepared a report dated 2 November 2014 and had seen Mr Farmer for clinical psychological assessment and intervention appointments.
26 It was her opinion that Mr Farmer was suffering from post-traumatic stress disorder.
27 She detailed how he was suffering from intrusive nightmares and flashbacks, became physically tense and had difficulties regulating his emotions when recounting the events he witnessed, saying that his verbal fluency became impaired and his emotional arousing increased and he entered into a form of disassociated stated when recounting the events.
28 She reported that Mr Farmer described ongoing difficulties sleeping, suffering from horrific nightmares, suffered intrusive thoughts, increased irritability, and feelings of guilt at not intervening earlier, and complained of difficulties with his concentrating and had become hyper-vigilant or gave startled responses to minor events.
29 She noticed there were physical symptoms of Mr Farmer's distress including the grinding of his teeth, wringing of his hands, a rigid body posture, averting his gaze, slow breathing and hyper-ventilating when describing the events.
30 Ms Sachse reported that Mr Farmer would avoid talking about the events which occurred and matters associated with it and had avoided returning to the town where the incident occurred, notwithstanding that his house was located there. She reported that Mr Farmer would also avoid people associated with the event and social functions in general.
31 She proffered the opinion that whereas prior to the incident Mr Farmer had been an outgoing positive person who was future orientated, since the event he had become reclusive, withdrawn, and had a restricted range of activities as a result of the fear and intense arousal associated with the recollection of the traumatic event, and lacked the capacity for joy or happiness in his daily life.
32 She recommended that Mr Farmer be referred to a consulting psychiatrist and said he would be a good candidate to undergo EMDR therapy consisting of two assessment sessions and 10 processing sessions with quarterly sessions per year for medication review.
33 She recommended processing and consolidation therapy of up to 20 sessions with a clinical psychologist, Dr Riseby or herself to cover relapse prevention and other issues associated with the traumatic event.
34 Ms Sachse said the incident had caused Mr Farmer to become reclusive and emotionally withdrawn, and left him suffering an absence of enjoyment in life. She said he had difficulty perceiving the future in a positive manner and had become a person who was simply going through the motions of life and was disengaged from the community.
35 She noted he was unable to work for two weeks after the incident and that he still suffered from symptoms including lacking concentration, difficulty with short-term memory, intrusive thoughts, recurring flashbacks of the traumatic event, difficulty consolidating new information, increased anxiety, impaired interpersonal skills, hyper-vigilant, disassociation, difficulties trusting other and sleep deprivation due to nightmares all affected his day-to-day life.
36 She noted he was unable to work full-time due to his pre-existing condition of Perthes disease but believed his PTSD symptoms significantly impacted on his capacity to work and that unless there was a successful intervention his condition would soon render him incapable of any employment at all regardless of the impact of the Perthes disease on his current functioning.
37 Ms Sachse noted Mr Farmer was not psychologically minded and had minimal insight into his condition or the psychological process and abdicated responsibility for his improvement to medical specialists. She said that although he was open to treatment he appeared to have little understanding that he needed to make a commitment to attend sessions on a regular basis noting that he was not atypical in his presentation but was similar to a number of gentlemen of his age in his stoical approach to his condition.
38 Significantly she noted the absence of resilience factors, i.e, close family, no life goal sustain him and said he was increasingly losing the things that did sustain him such as employment, friendship, and outdoor activities due to his post-traumatic stress disorder.
39 Ms Sachse thought that with support and treatment Mr Farmer may achieve a reasonable quantity of his life, although he would be somewhat impacted by the traumatic events of witnessing the death of the deceased and subsequently being detained at gunpoint.
40 It was Ms Sachse's opinion that as of November 2014 Mr Farmer's prognosis was for life-long chronic post-traumatic stress disorder with increasing intensity and frequency of symptoms.
41 Dr Proud's is a consultant psychiatrist. His report of 7 May 2015 was not available to the assessor. It is 'further evidence' which should be admitted unless there is some reason why it is unjust to do so. There is no reason why it would be unjust to consider the report of Dr Proud in this appeal.
42 Dr Proud interviewed Mr Farmer on one occasion; he also had Ms Sachse's report of 2 November 2014. He noted an absence of any family history of psychiatric problems or any previous trauma or psychiatric problems but noted that Mr Farmer had Type 2 diabetes hypertension and in the past had surgery on both of his knees and for a fractured right femur.
43 Dr Proud noted that Mr Farmer had significant pain in both hips and lower spine from Perthes disease. He noted Mr Farmer had seen Ms Sachse on three occasions but did not continue to see her and that although his general practitioner (GP) had prescribed antidepressants, Mr Farmer did not take them regularly.
44 Dr Proud also noted that Mr Farmer had developed bruxism (grinding of the teeth), difficulties sleeping, nightmares and flashbacks relating to the incident and continually thought about his whole life history and associations with Mr Master and ruminates over the incident in complete detail. He reported that Mr Farmer became tense upon hearing loud noise and is reminded of the violence he witnessed when he saw mentally or drug affected violent people or bikies.
45 He noted Mr Farmer was on edge and agitated, had an inability to relax or concentrate and suffered from low short-term memory, motivation, energy and libido. He was beset by sad thoughts, and Mr Farmer doubted his own ability to be able to continue working and was thinking of retiring and going on the disability pension.
46 Dr Proud reported that Mr Farmer said he did not go out at night and had minimal social contact. He noted that when Mr Farmer recounted the events it was overly circumstantial and detailed going over and over the events of the day and Mr Farmer was anxious and tense throughout the interviews and made poor eye contact.
47 Clinical testing revealed mild impairment in concentration and short-term memory.
48 Dr Proud believed that Mr Farmer was suffering post-traumatic stress disorder of a moderate severity, chronic and that it was a direct consequence of the actions occurring on 23 February 2013 as a result of which he would not be able to live in Koorda again, would probably retire from the workforce and resume a disability pension noting however that there were other physical health issues involved in that decision.
49 He confirmed that post-traumatic stress disorder was a psychiatric illness and not a normal response to events and was properly classified as mental and nervous shock.
50 He believed it likely that Mr Farmer would have permanent residue symptoms of post-traumatic stress disorder for the foreseeable future.
51 Ideally Dr Proud believed that Mr Farmer should be seeing a psychiatrist for 20 sessions at a cost of $300 each, a clinical psychologist for 30 sessions at a cost of $200 each with ongoing care from his GP at a cost of $1,000 per annum for review and medication noting however that it was unlikely that Mr Farmer would take up the offer of extended psychotherapy as he has already demonstrated a reluctance to remain on medication.
52 At the appeal hearing Mr Farmer advised that he did not seek an award for the future treatment cost referred to by Dr Proud in light of his demonstrated non-compliance with other medical specialists.
53 Mr Farmer gave evidence at Mr Callaghan's trial on 28 March 2014. His evidence of what occurred that night needs to be examined in light of what he subsequently told Ms Sachse and Dr Proud.
54 Mr Farmer said that on the night of the fatal shooting the deceased went out and when he returned was very agitated and hyped up saying 'It's fucking on, it's fucking on, I've gone ahead with it'.
55 A short time later whilst Mr Farmer was still seated in the lounge room the dog started barking and the deceased said 'someone's here' and then he heard Mr Callaghan say words to the effect of 'Yeah it's fucking Jimbo, you low life piece of shit, you didn't think I would have the guts to come here, you're going to fucking pay for this.'
56 Mr Farmer then saw Mr Callaghan at the base of the step with a gun. He said the deceased picked up an object, which he later realised was a tomahawk, and charged at Mr Callaghan with the object making a hitting action. Straight after this, Mr Farmer heard the breach of the gun then the deceased made a throwing action and Mr Farmer said he heard the gun discharge.
57 Mr Farmer said that when the gun went off he took off heading towards his bedroom, and the deceased ran passed him but fell back in front of the front door. Mr Farmer said he was inside his bedroom when the second and third shots were fired. Mr Callaghan then walked up to the deceased and pointed the rifle at the deceased. When Mr Farmer asked 'What the fucking hell is going on' Mr Callaghan replied 'This bastard has tried to burn my fucking house down and he has just hit me with an axe.'
58 He said Mr Callaghan was about 2 m away and was angry and talking to the deceased whilst pointing the gun at the deceased. Mr Callaghan told Mr Farmer to ring the police but he was unable to dial the number because he was so shaken. Mr Callaghan then dialled the number.
59 Mr Farmer said he thought Mr Callaghan was going to shoot the deceased again so he said 'Jim please no don't, don't, don't, he's gone Jim.' After the phone call Mr Callaghan held the gun down by his side with the barrel pointing to the ground. Mr Farmer asked Mr Callaghan to put the gun down; however Mr Callaghan refused saying that he did not trust Mr Farmer and would put the gun down when the police arrived. Mr Farmer said Mr Callaghan did not make any threats to him at all (ts 206 - 295).
60 Before an applicant obtains compensation the injury and loss must have occurred as a consequence of the commission of the proved offence: s 12(3)(a) the Act.
61 The amicus curiae points out that whilst Ms Sachse and Mr Proud refer to Mr Farmer suffering from post-traumatic stress disorder, the court must consider whether their conclusion is based on facts which are substantiated by the evidence.
62 An expert's report must fully expose not only the reasons relied upon in reaching their conclusion but identify the assumed facts: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [67] - [70] (Heydon JA); Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 277 ALR 611 [133]:
If the assumed facts are not stated no reasoning process can be stated and the opinion will lack utility. If there is no evidence, called or to be called capable of supporting the assumed facts no reasoning process even if stated will have utility, and even if there are facts both assumed and capable of being supported by the evidence they will lack utility if no reasoning process is stated in each instance a lack of utility results in irrelevance and inadmissibility.
63 A court should exercise caution in determining credibility and the weight to be given to the diagnosis of medical experts if the statements made that form a basis of their opinion can't be substantiated: Blezard v Chief Executive Officer of the Ministry of Justice [2000] WADC 41 [19] citing Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642.
64 The amicus points out that in Ms Sachse's report she notes that Mr Farmer told her 'he was subsequently held at gunpoint by Mr Callaghan' and he was 'splatted in blood, brain matter and other bodily matters of the deceased' (page 2, 3, 7 and 8 of the report) and was detained for approximately 20 minutes before Mr Callaghan decided he was not involved, during which time he wondered if he would die (page 8).
65 In Dr Proud's report Mr Farmer is noted as having told Dr Proud that 'for a while he thought he himself was going to be shot until he realised Mr Callaghan decided that Mr Farmer was not in cahoots with Mr McMaster (page 2).
66 I note that in Mr Farmer's evidence at the trial and in his two police statements he does not refer to being splattered in the brain, blood matter and other bodily matters of the deceased nor does he refer to being held at gun point by Mr Callaghan or believing that he was going to be shot. On the contrary he says that he was never threatened by Mr Callaghan.
67 In Makita (Australia) Pty Ltd v Sprowles Heydon JA (as he then was) opined [35]:
It is common enough in litigation for witnesses with a truthful story to succumb to the temptation of gilding the lily or over-egging the pudding. The test for the trier of fact is to separate the truthful parts from the rest.
68 In McGlen-McLeod v Galloway [2011] NSWDC 163, Gibson DCJ stated:
...the fact that a witness tells a lie or a series of lies or exaggerate is not a basis for rejection of her evidence without careful investigation.
69 In circumstances where Mr Callaghan was armed with a rifle, had discharged three shots which had killed a man, and had declined to put the rifle down when asked by Mr Farmer and had instructed Mr Farmer to ring the police, the use by Mr Farmer of the phrase 'held at gun point' should be given a more liberal than literal interpretation. It seems to me that phrase covers not only the scenario where a gun is actually trained on Mr Farmer but also the scenario described by Mr Farmer in his evidence at the trial.
70 As to Mr Farmer's statement to Ms Sachse and Mr Proud that he was splattered in blood, brain matter and other bodily matters of the deceased, the evidence shows that bloodstains were located on the deceased's face, left ankle and foot and his hands. Saturation bloodstains were located on the deceased's black singlet and shorts. Bloodstains were located in the corner of the lounge room near the door, on the corrugated wall panelling, the door, the carpet and the rear of the two seater lounge. Bloodstains were also located in the bedroom, carpet within that room and a pillow on the bed in that room. Bloodstains were also located on the shirt, black shorts, and thong of Mr Callaghan (Bloodstain Pattern Interpretation report by Sergeant Blaver and Sergeant Spivey, 3 February 2014, prosecution brief page 305 - 326).
71 The deceased was covered in blood, Mr Callaghan had blood on him and there was blood throughout the residence. However, there is no evidence as to whether the police examined Mr Farmer for blood stains or other bodily material. Mr Farmer's police statements and his evidence in court must be viewed in their context. He was responding to questions asked. The focus was on the deceased and Mr Callaghan. He was confined to saying what he saw.
72 I accept that his statements to the experts that he was covered in blood, brain matter and other bodily material are not supported by any of his previous statements or evidence. However, s 18 of the Act requires the proceedings to be determined expeditiously and informally having regard to the requirements of justice. The assessor is not bound by rules of practice as to evidence or procedure but may inform himself in any manner he thinks fit. On appeal this court may exercise similar powers: s 57(2)(a) the Act. In those circumstances, I am not convinced that statements made by Mr Farmer to the experts necessarily need to be established by other evidence in the traditional sense.
73 However, taking matters at their worst for Mr Farmer, even if I found that he did exaggerate it does not cause me to doubt Ms Sachse and Mr Proud's conclusions that he suffered from post-traumatic stress disorder. On any view of the evidence Mr Farmer was present, and witnessed not only the shooting but also Mr McMaster's death. The clear context of both reports is that it was Mr Farmer's presence whilst the shots were fired and his witnessing the death that were the cause of the post-traumatic stress disorder.
74 Mr Farmer's statements to the experts that he was detained while Mr Callaghan decided he was not involved is no more that his expressions that as a matter of practical common sense and survival he was not in a position to go anywhere until the police arrived. In circumstances where the shooting had occurred, and Mr Callaghan was armed with a rifle which he had declined to put down when requested and had issued instructions to Mr Farmer to call the police it is a fairly accurate statement.
75 The statements made to the experts, even if not accurate, do not cause me to doubt the ultimate conclusions of the experts that Mr Farmer suffered post-traumatic stress disorder as a direct result of Mr Callaghan committing the offence.
77 The term 'mental or nervous shock' is wide enough to include any malfunction of the person 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 nervous system. What is required is 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. Stress, horror, disgust and other similar adverse mental reactions are included as mental or nervous shock but mere fright, humiliation or anguish is not sufficient: Hatfield v Under Secretary for Law (Unreported, WASC (Burt CJ), Library No 4012, 15 December 1980), 5; S v Neumann (1995) 14 WAR 452, 461; M v J & J v J (Unreported, WASC (Scott J), Library No 920598, 19 November 1992).
78 Mental and nervous shock does not include the damage that may be suffered by such matters as the reaction of the victim's friends and families to the event, court proceedings or public attention: Re Karra (1984) 2 SR (WA) 97; RJE v Bandy (Unreported WASC (Burt J), Library No 1365, 31 May 1974); Garton v McCormack (2002) 30 SR (WA) 307, 311.
79 Mental and nervous shock is compensable for a 'secondary victim' if that person was present when or immediately after the offence was committed: s 35 the Act.
80 I am satisfied from the reports of Dr Sachse and Dr Proud that Mr Farmer suffered post-traumatic stress disorder which is 'mental or nervous shock' within the meaning of the Act is of an enduring character and something more than mere fright, humiliation or anguish.
81 In view of the permanency of the condition and its effect on his life as related to Dr Sachse and Dr Proud by Mr Farmer and his age, I would award $25,000 for the post-traumatic stress disorder suffered by him.
83 The applicant must establish a loss of earnings by reason of the offence that can be considered to be a direct consequence of the injury. Loss of earning includes loss of earning capacity (s 6(2)(c) the Act): A v D (1994) 11 WAR 481, 489.
84 Often a loss cannot be proven by precise figures; on occasions there are simply too many improbables to be able to make any calculated assessment: MW v CW [2001] WADC 234.
85 The assessment is for the loss of chance that the appellant could have worked unaffected by injury but for the commission of the offence: BT v BT [2014] WADC 166.
86 The evidence before me of economic loss includes the appellant's police statements which say that at the time of the offence he was a machine operator at the Shire of Koorda.
87 Ms Sachse's report of 2 November 2014 states that Mr Farmer was in receipt of a pension and had a chronic and debilitating illness which caused him significant pain and despite that he still on occasions worked overseeing construction sites (at which time he suspended his pension) and kept as active as possible.
88 Ms Sachse report notes that Mr Farmer was at that time working, having suspended his pension in an attempt to keep busy and avoid thinking about the trauma. It further stated that Mr Farmer initially enjoyed returning to work after the incident in an attempt to keep busy and avoid thinking about the trauma but noticed that he became increasingly irritable and spent more time away from workers on site. However, she expected the effect of the PTSD with its increasing irritability and difficulties with concentration would affect his ability to work.
89 Ms Sachse report notes that Mr Farmer holds a very responsible position when he is able to work but is reliant on written notes and found he would go into a daze when he is on the job and needs to remind himself what he needs to do or what he is organising.
90 Ms Sachse noted Mr Farmer had complained of increased irritability and impaired concentration which was impacting negatively on his ability to work. Ms Sachse noted that Mr Farmer was unable to work for two weeks after the incident. She also notes that he was unable to work full-time due to Perthes disease and that his PTSD symptoms were significantly impacting on his capacity to work.
91 Dr Proud's report indicated that Mr Farmer did not think he would be able to continue his job because of mental health reasons since this incident and also because he has significant pain in both his hips and lower spine from Perthes disease. It noted that he was thinking of retiring and going on a disability pension.
92 Dr Proud concluded he will 'probably retire from the workforce and resume the disability pension (there are also physical health issues involved in that decision)'.
93 Section 41 of the Act requires a court when determining the amount of an award, to have regard to any behaviour, condition, attitude or disposition of the applicant which contributed directly or indirectly to the injury or loss suffered by him or her and the court may reduce the amount which he would otherwise be awarded by such a percentage as it is thought just.
94 It is not suggested that there is any behaviour, condition, attitude or disposition of Mr Farmer which led to the commission of the offence.
95 However, a pre-existing injury must be taken into account in assessing the amount to award: Reed v Assessor of Criminal Injuries Compensation (Unreported, WADC (Viol DCJ), Library No 970170, 5 June 1997) 22 - 23; Krukiewicz v Hayes [2004] WADC 242. This is stating no more than the common law position that under the ordinary principle of assessing damages, any pre-existing injury must be considered: SW v BB [2010] WADC 86 [103].
96 The evidence establishes that the applicant suffers from Perthes disease which results in significant pain to both of his hips and lower spine and that even before this incident he was not able to work full-time.
97 If the evidence establishes that non-compensable events have a propensity to cause injury or loss and did contribute to the injury or loss sustained, the award of compensation should be reduced to take account of that chance: MJN v MAJS (2003) 35 SR (WA) 219 [47] - [52]; LMC by her next friend THE PUBLIC TRUSTEE in and for the State of Western Australia v RJO [2002] WADC 147 [20] - [23]; B v B [2004] WASC 6 [33] - [34].
98 If it is not possible to disentangle the consequences of non-compensable events from the consequence of compensable offences, the applicant is entitled to compensation for the full injury and loss suffered if the applicant has established the compensable offence contributed materially to his injury or loss: MJN v MAJS [47] - [52]; TAW v NJS [2011] WADC 187 [84].
99 Mr Farmer has provided PAYG summaries for the period from 1 June 2014 to 10 December 2014 and from 8 April 2015 to 1 May 2015.
100 The incident occurred on 23 February 2013. The PAYG summaries relate to periods after the incident. In my opinion, based on the financial material provided to the court, it is not possible to make a precise calculation of the effect of the PTSD on Mr Farmer's earning capacity. To enable a precise calculation, evidence would be required as to his actual earnings prior to the incident occurring, the length of time he actually worked in previous years and the length of time he was in receipt of disability payments in previous years.
101 However, notwithstanding his pre-existing condition Mr Farmer did have some capacity to earn income from gainful employment prior to the incident.
102 Bearing in mind that the evidence establishes Mr Farmer was not able to work for two weeks after the incident, I am satisfied that there is some residue effects on his working capacity which is impossible to precisely calculate on the evidence and that ought to be reflected by a modest global award for loss of earning capacity.
104 In my opinion the appropriate global assessment for loss of earning capacity, bearing in mind his pre-existing condition is $5,000.
105 The amicus curiae also drew my attention to the obligation on Mr Farmer to obtain reasonable medical treatment in respect of the injuries caused by the offence. The consequence of the failure to do so ought to be taken into account when making an award of compensation: Bedetti v Chief Executive Officer [2003] WADC 37 [11]. The prospect of the appellant taking remedial steps must be taken into account: JPG v O'Brien [2002] WADC 232.
106 The evidence establishes that the incident occurred in February 2013 and in June 2013 the applicant saw a social worker. On 16 May 2014 he was referred by Dr Stephens to Ms Sachse. He saw her on at least three separate occasions and in 2015 saw Mr Proud on one occasion. At some stage the GP prescribing antidepressants thought Mr Farmer was reluctant to take them.
107 In my opinion notwithstanding that the applicant is not good at keeping appointments or taking medication, it cannot be said that he failed to obtain reasonable medical treatment.
108 He is reluctant to see psychologists or psychiatrists, not uncommon amongst males of his age, and believes he can resolve issues without treatment but I am not satisfied that there should be any reduction for any the failure to seek earlier medical treatment or take medication as prescribed.
110 Bearing in mind Ms Sachse's recommendation for future treatment and the estimated cost of EMDT of some $2,870 for eight sessions and her observation that it might be necessary for more sessions, or as few as four or five sessions an allowance of $1,500 for future treatment subject to s 48 of the Act ought be made.
111 I would also allow the sum of $744.70 for the reports of Mr Sachse and the sum of $1,441 for Mr Proud report, making a total of $2,185.70.
112 Accordingly, I would assess the compensation payable to Mr Farmer as follows:
Further treatment expenses to a maximum of $1,500 pursuant to s 48 of the Act
(ii) subject to provisions of s 48 of the Act the further sum of $1,500.
A
D
(1994) 11 WAR 481
(1982) 150 CLR 666
(2001) 52 NSWLR 705
(1961) 108 CLR 642
(2011) 277 ALR 611
(1995) 14 WAR 452