A v D

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Welsh v Kelly [2008] WADC 149

1. By a notice of appeal filed 9 March 2017 the appellant, DR, appealed against an award of criminal injuries compensation made on 16 February 2017 by the Chief Assessor for Criminal Injuries Compensation. The Chief Assessor awarded DR $8,000 plus the cost of a psychiatrist's report prepared by Dr Siva Bala dated 13 February 2014 (Bala report). The Chief Assessor published reasons for her decision on 17 March 2017.[1]
2. DR says that the determination is manifestly inadequate in all of the circumstances of the case and seeks:
   1. To place additional evidence before the court which was not before the Chief Assessor.
   2. A fresh assessment of the claim for:

(i) mental and nervous shock suffered by the appellant;

(iii) past economic loss and future loss of capacity;

1. For the reasons which follow I would allow the appeal. I have assessed the amount of compensation to which DR is entitled at $63,760.00.

1. DR should have brought her application for criminal injuries compensation by 14 April 2010. It was only lodged on 5 March 2015, almost five years after the three year limitation expired.[2]
2. An assessor may allow a compensation application to be made after three years 'if he or she thinks it is just to do so and may do so on any conditions that he or she thinks it is just to impose'.[3]
3. The Chief Assessor granted an extension of time but as I am deciding the matter afresh, I need to exercise this discretion.[4]
4. In my opinion it is just to extend the time within which the application may be made for the following five reasons. Firstly, DR was only 12 years old at the time of the offending against her and says in her statement that she did not understand how to and had not been in a position to deal with the matter as a child. Secondly, DR was still a child when the time expired for lodging the application. Thirdly, the nature of DR's injury, details of which I will come to. Fourthly, the disruption to her living circumstances after the offending, being required to leave Kalumburu and then living in Darwin for a few years before returning to Kununurra where she sought legal advice and made the application. Finally, if I were not to grant leave in circumstances where the Chief Assessor did so, it would be unjust to deprive DR of the compensation already awarded by reason of her having exercised her right of appeal.

1. Section 56(1) of the Criminal Injuries Compensation Act 2003 (WA) (the Act) provides that on appeal the court 'must decide the application to which the decision relates afresh, without being fettered by the assessor's decision'. The court may receive further evidence and information that was not before the assessor.[5] It is open to the court to confirm, vary or reverse the assessor's decision, either in whole or in part.[6] The appellant does not have to demonstrate an error on the part of the assessor in order to succeed.[7]
2. DR carries the burden of proving any injury and loss on the balance of probabilities.[8] To discharge the burden where direct proof is not available the circumstances 'must do more than give rise to conflicting inferences of equal probability so that the choice between them is a mere matter of conjecture'.[9] The strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what is sought to be proved.[10]
3. There are divergent views on this court as to whether it is appropriate to have regard to the assessment of the assessor on appeal. In Crumby v Kuru French DCJ said that:

The amount of the award is essentially a matter for judgment. It is therefore appropriate that I should have regard to the amount assessed by the Assessor. Whilst not regarding myself as being fettered in any way it is still appropriate to take into account the assessment of a specialist tribunal involved in making judgments of this nature.[11]

Crumby v Kuru concerned an appeal under s 41 of the 1985 Act which is in similar terms to s 56(1) of the current Act. Interestingly, s 42 of the 1985 Act allowed the Chief Assessor to refer complex or difficult applications to a District Court Judge, a power that was later repealed. Under the current Act an assessor and a District Court Judge may refer a question of law to the Court of Appeal.[12]

1. Although Crumby v Karu has been followed many times in the District Court,[13] in Re Piggott Bowden DCJ said that in his view it was not appropriate to have regard to the assessment of the assessor but rather to independently review the evidence.[14]
2. For the following four reasons I agree with the opinion expressed by Bowden DCJ and, with respect, disagree with the contrary view expressed in other decisions_._
3. Firstly, the statutory requirement to consider the matter 'afresh' and unfettered is difficult to reconcile in principle with an approach that also has regard to the first instance assessment. Starting from the beginning requires an independent review of the evidence and an assessment which is uninfluenced by and necessarily disregards the assessment of the assessor.
4. Secondly, s 56(1) also requires the appeal be decided by the court 'solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information'. Thus on an appeal where no further evidence or information is admitted, the effect of the word 'solely', particularly coming as it does after the words 'must', 'afresh' and 'without being fettered' is that the Act prohibits a judge having regard to the assessment of the assessor on appeal. An assessment is a conclusion based on 'evidence and information' and is not something in the 'possession of the assessor'.[15] It is difficult to see how or why that prohibition should change on an appeal where 'further evidence and information' is received. Although 'or' is used disjunctively, in my opinion the phrase, 'evidence and information' at the end of the sentence is qualified by and must be read consistently with the whole of the sub-section.[16] The word 'information' has a potentially wide meaning but it must in my opinion be the same meaning as in the balance of the sub-section and consistent with the use of the word elsewhere in the Act including in s 19.[17] In my opinion the assessment of the assessor is neither 'evidence' nor 'information' for the purposes of an appeal.
5. Thirdly, there is no other statutory basis that I can discern which requires or justifies having regard to the assessment of the assessor. Section 56(2)(b) of the Act which says the District Court may 'confirm, vary or reverse the assessor's decision, either in whole or in part' authorises the outcome that follows a fresh assessment under s 56(1). In my opinion s 56(2) does not make the assessor's decision 'evidence or information' for the purposes of s 56(1). Further, s 18 of the Act which says that an assessor 'may inform himself or herself in any manner he or she thinks fit' is an evidentiary and procedural provision that does not affect the task of the court on appeal. Finally, although s 29 gives an assessor a wide general discretion to have regard to 'any factors or circumstances that the assessor thinks relevant', it is difficult to see how an assessment by an assessor is either a factor or circumstance or relevant to a fresh and unfettered consideration.[18]
6. Fourthly, the District Court's decision on appeal is 'not appealable'.[19] In granting final appellate jurisdiction on assessment to the District Court and giving judges the same powers and functions of assessors[20] Parliament imposed the duty and responsibility on this court to exercise the judgment necessary to finally determine both liability and quantum in criminal injuries compensation matters. It seems to me that having regard to the assessment of the assessor puts the cart before the horse and deprives assessors of the guidance they are entitled to expect from this court on assessment of criminal injuries compensation claims.

1. In her reasons for decision the Chief Assessor said she had regard to the following material:

• Director of Public Prosecutions file relating to the prosecution of CD. [21]
• DR's application for compensation together with supporting documents including her signed statement of 16 February 2015.
• Incident reports between December of 2010 and July of 2016 relating to DR's history of minor criminal offending, conflict with her partner and use of cannabis.[22]
• The Bala report and invoice.

1. The Chief Assessor also had two physical Department for Child Protection files and four virtual files relating to DR available to her.[23]
2. DR sought to adduce further evidence on the appeal pursuant to s 56(1) of the Act. As I heard the matter afresh and because there was no reason why it would be unjust to do so and given the generally beneficial purpose of the Act and the informal nature of the hearing,[24] I admitted further evidence being:
   • Department of Child Protection case closure approved outcome reports dated 17 September 2013, 9 November 2013, 14 February 2016 and 22 December 2016 (DCP reports).[25]
   • Written report for the purpose of criminal injuries compensation, prepared by Brenda King, social worker, dated 29 June 2017 (King report).[26]
   • Written report for the purposes of criminal injuries compensation prepared by Robyn Bradbury, clinical psychologist and neuropsychologist, dated 8 October 2018 (Bradbury report).[27]
   • Ms Bradbury's curriculum vitae, letter of instruction and invoice.[28]
   • Family and Domestic Violence Response Team incident reports dated 11/12/2016 and 12/12/2016 (FDV reports).[29]

1. On 14 April 2008 the respondent, CD, pleaded guilty in the District Court at Broome to two charges of sexual penetration of a child under 13, one offence being constituted by cunnilingus and one by penile penetration of the vagina of DR.
2. The circumstances of CD's offending against DR were that in March 2007 DR who was then a 12-year-old girl of slight build and immature development attended a house occupied by a friend of CD in the Kalumburu Aboriginal Community. CD offered and supplied cannabis to DR in return for sexual intercourse.[30] CD took DR into the bedroom of the house where she undressed (DR said he undressed her), keeping only her upper garments on. CD sexually penetrated DR's vagina with his penis. He then penetrated her vagina with his tongue and recommenced penile penetration before withdrawing and ejaculating on the ground. CD was originally charged with two counts of penile penetration but the second count was discontinued on the basis that two charges, one of penile penetration and one of cunnilingus properly reflected the criminality of his offending. CD admitted the above facts of the offending on his plea and he denied forcing DR to have sex (which is what DR claimed). The sentencing judge, McKechnie J, did not find it necessary to resolve that dispute.[31]
3. I am satisfied as the Chief Assessor was that CD's offences against DR are proved.[32] I am also satisfied that that the facts of the offending for the purposes of the appeal are those found by McKechnie J and related above.

1. Injury is defined in s 3 of the Act to be 'bodily harm, mental and nervous shock, or pregnancy'. There is no evidence DR suffered any physical injury amounting to bodily harm and her application is brought on the sole basis she was the victim against whom the offence was committed and she suffered 'mental and nervous shock' as a consequence of the commission of the offences.[33]
2. 'Mental and nervous shock' contemplates the impact of the offence on the mind or nervous system.[34] In S v Neumann Murray J held that the phrase means 'mental or emotional harm as opposed to physical injury or bodily harm'.[35] It must be of an enduring character so as to amount to an injury in the legal sense and common parlance as opposed to a mere emotional reaction.[36] Some later authorities have attempted to make fine distinctions between fright, humiliation and anguish which have been described as non-compensable emotional reactions and ongoing distress, horror, disgust and other similar adverse mental reactions of a more enduring character which are compensable.[37] In my respectful opinion the focus should be on the enduring nature of the emotion consequent upon impact rather than on what may be an imprecise or subjective characterisation of it that may overlap with other descriptors. Enduring fear, anguish, shame and humiliation may amount to mental and nervous shock and short lived horror and disgust might not. I expect most victims of sexual assault experience all of the above emotions, the real issue is whether any of them persist to such a degree as to amount to injury.
3. In her victim impact statement tendered in CD's sentencing DR said that she felt bad, ashamed, sad and angry about what was done to her. She said she could not sleep at night for thinking of what happened, was ashamed because of what her family and the offender's family would think and said that she wanted to leave the community and did not feel safe there.
4. In his sentencing remarks McKechnie J found that 'the effect on the victims has been severe and likely long-standing. You have damaged them greatly'.[38]
5. In her statement dated 16 February 2015 filed in support of her application, DR recounted the offences and said that she had gone to a friend of CD's house to hang out with the girls and watch TV. DR was encouraged to go in the room with CD by one of her friends. CD took her into a room and she said she did not want to be there and he pushed her against her will (the dispute on the facts which McKechnie J said he did not need to resolve). DR said that CD then licked her all over and felt her breasts. She made no mention of the penile penetration (although had complained about it when she was interviewed by police on 14 April 2007). DR said she was part of a group of girls one of whom went to the police about men in the community giving them cannabis and cigarettes in return for sex.
6. DR described her injuries after the offence as being that she felt scared of CD and 'a bit better after he went to jail'. She said:

I have never been able to talk about what happened to anyone because it makes me ashamed. When I met with the psychiatrist throughout my report I didn't tell him everything and how it made me feel as I was still too ashamed to do so. I am ashamed to talk in front of men.

1. I find that DR has consistently over the years felt ashamed about the offending and does not like talking about it and recounting the details of what happened. This is the likely reason for the absence of detail in some of her accounts of what happened to her.
2. I also find that DR enjoyed living in Kalumburu before the offences but had to leave afterwards and is unable to return there now because CD lives there. She has been shamed and blamed by CD's family and associates in Kalumburu for going to the police. On one occasion in 2014 when she went to Kalumburu and saw CD he offered her cigarettes and money. This made her feel bad and angry. She said 'I think about what happened every day'. She gets scared when she sees drunk men and does not feel comfortable in her own house. She said:

when I hear loud noises I start shaking for no reason. I feel safe with my husband around but he is gone during the day. I never had these feelings before the assault.

1. Dr Sivan Bala, a very experienced psychiatrist, prepared a report based upon a 45 minute interview with DR on 12 February 2014 that was before the Chief Assessor. DR told Dr Bala that she did not wish to discuss the sexual assault as it makes her feel very bad about herself. She said she struggled for two years following the sexual assault because she was scared of the perpetrator but felt a lot better after he was imprisoned and had moved on from the offence. Dr Bala reported that DR said she had no pervasive problems with mood or anxiety and that she slept well and did not experience traumatic memories or flashbacks. She said that she enjoyed life. Dr Bala describes the main issue that DR had at that time was comments made to her by her husband about her being 'old man baked'.[39] I suspect this is an error of transcription or communication as I am satisfied based on DR's statement that what her partner accused her of being was 'old man bait'. The shame associated with this was an ongoing issue between her and her partner and was something she thought about monthly.
2. The only psychometric testing Dr Bala attempted was to ask DR to complete the Beck Depression Inventory and Beck Anxiety Inventory. She only completed the anxiety inventory and scored in the mild to moderate range. Notwithstanding it was only a brief interview, Dr Bala applied the DSM-5[40] and made a diagnosis of cannabis use with no clear mental illness and intermittent problems with her partner. He said DR did not suffer from any mental illness and 'does not appear to suffer with anything that would comprise mental and nervous shock for the purposes of the Act.'[41] He said there did not appear to be any enduring characterological or psychological issues that have affected her following the sexual assault and:

The only issue is the ongoing shame she feels in relation to the sexual assault when it is periodically brought up by her partner when they argue. At these times, she will sometimes feel suicidal, but she says that she has no intent to act out. The current mental state and the level of functioning do not suggest significant psychiatric injury.[42]

1. The DCP reports reveal that DR was exposed to alcohol abuse and violence as a child and that from when she was 19-years-old she was a victim of domestic violence incidents during the period covered by the reports from April 2013 to December 2016. DR's partner was convicted of a number of offences in relation to her.
2. The FDV reports relate an incident on 11 December 2016 when DR complained to police that her partner assaulted her with a rock and bit her after she told him that she was unable to obtain cannabis for him. On 12 December police took DR to a refuge after her partner allegedly made threats to her on the telephone.
3. The King report was prepared for the purposes of this appeal. Ms King is a social worker with many years' experience as a sexual assault counsellor and she has worked as such in Kununurra since 2007. Although I am not bound by the rules of evidence I am not prepared to have regard to Ms King's opinions concerning DR's psychological injuries. Given her experience I am prepared to have regard to her observations of DR who has attended four counselling sessions of one hour each during May of 2017 with her (DR missed a number of appointments as well). DR presented as shy and was distressed when talking about her childhood and specifically the sexual abuse. She had difficulty making eye contact and reported ongoing shame about the experience. That shame was reinforced by community members and her partner. She appeared to have little hope for the future, an inability to plan and follow through with plans (evidenced by her failure to keep appointments), tiredness, lack of motivation, was withdrawn and habitually sad. She felt empty and frightened, both of her community and being alone. She reported a lack of enjoyment in sex and intimacy, ongoing humiliation and reliance on cannabis as a way of dealing with feelings of despair and shame and anger. She said she used cannabis to 'stop feelings coming out'.[43]
4. Ms Bradbury's report was also prepared for the purposes of this appeal. Ms Bradbury has considerable experience as a registered clinical psychologist specialising in clinical psychology, neuropsychology and psychotherapy. She has been in private practice in Broome since 2008 and her curriculum vitae shows she has decades of clinical and also academic experience. Like Dr Bala her report was based upon a single, albeit two hour interview with DR in Kununurra on 17 September 2018. Ms Bradbury also undertook psychometric testing, administering the revised Impact of Life Events Scale, Experience in a Close Relationship Scale (short form), the Kessler Psychological Distress Scale and the Behaviour Rating Inventory of Executive Function (adult version).
5. Regrettably, the instructions sent to Ms Bradbury conveyed the inaccurate impression that the two offences CD was convicted of in relation to DR were discrete offences occurring on separate occasions.[44] The letter asks separate and confusing questions in relation to the effects of the offence of cunnilingus and the effects of the offence of sexual penetration. I assume the reference to the offence of sexual penetration was meant to be a reference to penile penetration but it is not clear. Both offences were of sexual penetration as cunnilingus is a defined form of penetration. More seriously though the attempt to separately identify the effects of the two offences arising as they did from one episode of conduct was contrived.
6. Despite having the relevant background material and interviewing DR, Ms Bradbury does not appear to have identified this error for herself and her report reads as though DR was a victim of sexual abuse on two discrete occasions. After answering question 4.5 about the psychological harm experienced by DR as a consequence of the cunnilingus, Ms Bradbury said in answer to question 4.6 about the psychological harm experienced in the months after sexual penetration:

Ms DR felt fear for her life and suffered nightmares and flashbacks and extreme anxiety in the months following the Offence of Sexual Penetration. These symptoms further compounded the difficulties she was suffering as a result of the cunnilingus.[45]

1. There are other basic errors in the Bradbury report, for example she says DR had her daughter when she was 16 years old in 2015. In fact she had the child when she was 18 years old in July of 2013.
2. The report says that in the months following the offence of cunnilingus (which I will take to be in the months following the commission of both offences) DR experienced anxiety, fear, panic attacks and irritability. She also had cognitive effects of nightmares, flashbacks, disassociation, difficulty concentrating, mental confusion, with social withdrawal and disorientation. Behaviourally she was restless, apathetic, suffered sleep disturbance and isolated herself from her peer group. Her behaviour was different to before the offences, she lacked ability to understand her reactions and feared loss of control. Physically she was fatigued, nauseous, suffered shaking and headaches.
3. Ms Bradbury said those matters amounted to psychological harm. The harm was continuing as at the time of her examination and the psychological testing indicated that DR is severely clinically depressed and suffers from post-traumatic stress disorder (PTSD). She said the symptoms of PTSD became:

established with associated emotional, cognitive, physical and behavioural problems escalating and compounding with time. The normal progress of social, educational and emotional development was arrested and this resulted in depression and anxiety in addition to the condition of post-traumatic stress disorder.[46]

1. The psychometric testing results confirmed Ms Bradbury's clinical opinion that DR is severely clinically depressed, scoring 44 out of 50 on the Kessler scale. Ms Bradbury also said that DR met the criteria under DSM-5 for diagnosis of Depression (DSM-5: 296:30) and Anxiety (DSM-5: 300.00). The report does not elaborate on how the criteria were met.
2. The diagnosis of PTSD was supported by the results of the Impact of Life Events Scale on which DR experienced high levels of avoidance, intrusion and arousal. She also met all of the diagnostic criteria under DSM-5 and those results are detailed in the report. In relation to the re-experiencing, negative cognition and arousal criteria DR demonstrated all of the possible symptoms.
3. Ms Bradbury's opinion about the impact and psychological harm suffered by DR consequent upon the offending differs markedly from Dr Bala's. DR submits that where they differ I should prefer Ms Bradbury's opinion.
4. In cases such as this there are many reasons that might account for experienced clinicians arriving at quite different conclusions. Both opinions are based on only one consultation with DR conducted specifically for the purposes of review. Neither Dr Bala nor Ms Bradbury was a treating practitioner for DR and in that sense Ms King has an observational advantage over both, albeit she is not qualified to diagnose mental illness. These difficulties are aggravated because DR is a reluctant and at times inaccurate historian which substantially complicates diagnosis where her subjective report is essential to understanding her mental health. Also it seems to me that DR has good days and bad days and that her mental health fluctuates. That is a very common experience and makes any diagnosis based upon a single consultation susceptible to error. Finally, diagnosis is itself ultimately subjective and based upon experience and clinical judgement. Reasonable clinicians can each reasonably arrive at different conclusions in matters such as this.
5. Turning to the specifics of this matter, it is clear from the Bala report that DR did not want to speak to him about the offending. She also confirmed that to Ms Bradbury and says so in her statement in support of her application. DR has consistently maintained that she is ashamed to talk about the offending, particularly to men, and is fearful of men. Understandably Dr Bala, who is a man, did not obtain the same detail from DR that Ms Bradbury and Ms King were able to.
6. Ms Bradbury saw DR for a longer period of time and administered more testing than Dr Bala. More importantly though, many of her observations of DR are confirmed by Ms King. Some of her observations accord with Dr Bala's, for example DR's anxiety after the offences and her ongoing shame. Dr Bala's opinion about the severity and impact of those experiences differed though.
7. Notwithstanding the errors in the Bradbury report, I am satisfied on the balance of probabilities that at the time of her presentation to Ms Bradbury and also Ms King, DR suffered from PTSD, depression and anxiety. I am also satisfied that since the offending and still ongoing DR feels shame, fear, low self-esteem and distress (particularly sadness) related to the offending. Subject to being satisfied about causation, DR's anxiety, depression, PTSD, enduring shame, fear, low self-esteem and distress constitute 'mental and nervous shock' for the purposes of the Act and are a compensable injury.
8. There are some aspects of the Bradbury report I cannot accept. Because of the false assumption regarding there being two discrete episodes of offending, I have approached her opinions and particularly the psychometric testing with caution and I do not accept DR's PTSD is as severe as Ms Bradbury maintained. The report also describes DR's level of communication and understanding as reflecting a severe disability. That does not reflect what I saw of DR when she explained her living circumstances to me during the course of the hearing. She is shy and has some cognitive limitations but is not severely disabled.

1. A person who suffers injury 'as a consequence of' the commission of a proven offence may apply for compensation.[47] There must be a causal relationship between the injury and the offence.[48] The onus is on the appellant to prove the link on the balance of probabilities.[49] Whether a causal relationship exists is 'essentially a question of fact, to be resolved as a matter of common sense'.[50] It is sufficient that as a matter of ordinary common sense and experience, the proved offence should be regarded as having materially contributed to the harm, in the sense that the contribution was not negligible.[51] 'The fact that other unconnected events may also have had some relationship with the occurrence is not material if the criminal act was a cause even if not the sole cause'.[52] Where there are non-compensable co-existing causes and the evidence establishes they did contribute to the injury or loss, the award of compensation should be reduced to take account of that chance.[53] On the other hand, if it is not possible to disentangle the consequence of those non-compensable co-existing causes from the consequence of compensable causes, the appellant is entitled to compensation for the full injury and loss suffered provided it is established that the proven offence contributed materially to her injury or loss.[54]
2. On the material before her the Chief Assessor found that DR suffered only limited injury as a consequence of the proved offences. She said that 'the majority of her response to the incident was largely directed to the impact on her of the comments and reactions of people around her'.[55]
3. The Chief Assessor then applied the principle from Garton v McCormack and concluded that such reactions are not compensable under the Act. In that case Yeats DCJ held that:

'humiliation and anguish stemming from the court proceedings and adverse public reaction as well as the appellant's fear arising from the release from custody of the offender do not amount to compensable injury. That is because those matters were not injuries suffered as a consequence of the commission of the offence. They are matters that have arisen subsequently and are no part of the compensable injury'[56]

1. Other decisions in this jurisdiction reflect differences in approach to aggravation of 'mental and nervous shock' and give rise to what might appear to be contradictory outcomes. They were summarised by Schoombee DCJ in Re AK & Ors.[57] Perhaps most similar to this case is KLH v Dennison where Burt CJ held that a rape victim's ongoing anxiety was compensable but her fear of returning to the country town where the offending occurred and where she felt ostracised and afraid of revenge was not as it could not 'be traced' to the compensable mental and nervous shock she suffered.[58]
2. Following her analysis Schoombee DCJ held:

It seems to me that the following conclusions may be drawn from the case law dealing with criminal injuries compensation, 'impact damage' and events subsequent to the offending:

1. humiliation, anguish or fear caused by events subsequent to the offending is not compensable because it does not amount to mental and nervous shock: M v J and J v J (10 - 11);
2. where events subsequent to the offending caused an aggravation of a mental and nervous shock injury arising from the offence, the aggravated injury is compensable, as long as the aggravation is 'directly attributable' or 'can be traced' to the mental and nervous shock suffered as a consequence of the offence;
3. an aggravation of a compensable injury caused by a subsequent event which is unrelated to the offence, such as by a further assault by someone other than the offender, is not compensable because it is not 'impact damage' (and would in any event not be reasonably foreseeable or would amount to a novus actus interveniens under the common law principles of causation);
4. a new separate injury (including a mental and nervous shock) caused by a subsequent unrelated event is not compensable, because it was not suffered 'as a consequence of the offence'.[59]
5. With respect I agree with propositions two to four and would only modify the first to reflect my opinion at [24] above.
6. Thus where a victim suffers mental and nervous shock as a consequence of the commission of an offence and that is aggravated by later experiences such as fear of an offender's impending release, continuing shame because of reminders of the offence (whatever the source) or increased anxiety and stress, those matters, provided they can be 'traced to' the compensable injury are still a consequence of the commission of the offence and are compensable. Conversely where the original offence is not the cause of the injury and the 'mental and nervous shock' has arisen because of an intervening act or a subsequent, albeit related event, such as a court appearance, it is not compensable.
7. Any injuries that DR suffered as a result of being the victim of domestic violence are not compensable in this matter. The DCP reports and FDV reports establish to my satisfaction that DR has been a victim of domestic violence over approximately four years. DR has now left her former partner. What is not clear on the evidence before me is what effect, if any, her experience of domestic violence has had on her psychological condition.
8. DR also has a long history of cannabis abuse. I do not think it is accurate to say as Ms Bradbury does in her report that 'DR has no known medical condition or drug use which could be attributed to these symptoms'.[60] Although there is no evidence before me, the link between cannabis abuse and poor mental health is well established and in my opinion it is possible that some of DR's symptoms are related to her drug use. On the other hand I suspect that DR might maintain that using cannabis alleviates some of her symptoms and emotional distress. In the absence of specific evidence I am not prepared to attempt to disentangle whether cannabis use has aggravated her mental and nervous shock injury.
9. Ms King's observations of the significance of the offending by CD in DR's life are telling. When describing her life and drawing a life line, DR's account was dominated by her experience of CD's sexual abuse of her. She did not indicate any significant life events after CD went to court. That is not the impression she made on Dr Bala but on balance I accept that what Ms King (and Ms Bradbury) recorded is how DR sees herself.
10. There is no doubt that the shame, low self-worth and some of the distress that DR has experienced since the offences has been aggravated by the comments and reactions of people around her including her partner. Those reactions by others started in 2007 and were criticised by McKechnie J in CD's sentencing.[61] Her distress and fear of the accused started after the offending and has continued until today. DR had to leave her home and community as a consequence of CD's offending. Although Burt CJ in KLH was not persuaded on the evidence before him, I am satisfied on balance on the evidence before me that DR's enduring shame, fear, low self-worth and distress can be traced back to CD's offending against her. I am so satisfied notwithstanding that DR had other non-compensable traumatic childhood experiences and was a victim of domestic violence at the hands of her partner. I am also satisfied on balance that those enduring emotions are not separate injuries but symptoms at the heart of what Ms Bradbury has diagnosed as PTSD, anxiety and depression in DR.
11. It is impossible now to disentangle all of the causes of DR's present psychological state and it is not necessary for me to do so as I am satisfied that CD's offending was and is the material and substantive cause. DR's 'mental and nervous shock' has subsisted albeit variably for more than 11 years, is continuing and thus far, untreated.

1. The correct approach to adopt in assessing the amount of compensation under the Act is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act, and to the jurisdictional limit of the Act.[62]
2. The maximum amount of compensation payable in this matter is $75,000.[63] Although there were two offences they are related for the purposes of assessment.[64]

1. I have reviewed the decisions of this court in KBR v ADM[65]; VMH (by her next friend the Public Trustee) v JAB[66] and JMD v GJH[67] which concern some recent awards of general damages following sexual assault.
2. In all of the circumstances of this case I consider an appropriate award of general damages for the injury suffered by DR is $42,000.

1. DR is entitled to compensation for both injury and loss including 'loss of earnings as a direct consequence of the injuries suffered by the appellant'.[68] Loss of earnings includes loss of capacity.[69] Where that loss relates to a young person with no work history before the offending, the assessment of the loss of a chance involves the application of the principles in Malec v JC Hutton Pty Ltd.[70] I have a wide discretion, precision is impossible and there is an element of guesswork involved in the assessment.[71]
2. The only basis advanced for DR's economic loss claim was counsel's submission that DR's schooling was interrupted because of CD's offending and she had consequently lost the chance of completing her education and working. That submission was abandoned after DR explained her educational history in response to questions from me during the course of the appeal hearing. The evidence was not given under oath because I did not think it necessary and I am entitled to proceed 'informally having regard to the requirements of justice'.[72] An assessor is 'not bound by rules or practice as to evidence and procedure and may inform himself or herself in any manner he or she thinks fit'.[73]
3. DR said that after the offences she was no longer able to live in Kalumburu and flew to Darwin to live with her grandmother. Prior to that she attended primary school for years 5, 6 and 7 in Kalumburu. In Darwin she went to high school. Before finishing high school she returned to Kununurra to live with her mother where she did a further two terms at college before finishing her schooling in Year 11.[74]
4. DR told me that she had basic literacy and numeracy skills and she did not want to carry on with any training or other education after her schooling. DR said when was 18 she had her first child, a daughter who is now five years old. She looks after the child and is in receipt of a sole parent pension.[75] DR has no work history.[76]
5. In all of the circumstances I am not satisfied that that DR's injury has been productive of a loss of capacity or past economic loss or loss of a chance and I would make no award for economic loss.

1. Loss under the Act relevantly includes 'expenses that are likely to be reasonably incurred by the appellant for treatment that she is likely to need as a direct consequence of the injuries suffered by her'.[77]
2. The Chief Assessor made no award for future medical expenses and psychological treatment, although that was consistent with the evidence from Dr Bala before her.
3. Ms Bradbury says that DR does not appear to have had any psychological treatment in relation to the mental harm she has suffered. The DCP reports reflect that DR has had parenting programmes but no other counselling.
4. Ms Bradbury's conclusion is a quite different to Dr Bala's and she says DR requires weekly psychological therapy for two years and fortnightly for another two. She recommends an independent review each year.
5. I am satisfied on the balance of probabilities that DR needs psychological treatment. Counselling should focus not only on dealing with the trauma she has suffered, her depression, anxiety and PTSD but also improving the stability of her living environment.
6. Given the history of DR's poor engagement, including with Ms Bradbury and Ms King, I think it unrealistic to expect that she will attend regularly on a weekly basis. It may be that with fortnightly attendance DR will realise the benefits of therapy and might attend more regularly. Subject to s 48 of the Act which deals with how future treatment expenses are to be paid I would be prepared to allow total psychological therapy for one year on a weekly basis (occurring at any time during the four years) and for three years fortnightly. This amounts to $18,840.00.[78]

1. Loss relevantly includes expenses actually and reasonably incurred by or on behalf of a victim in obtaining any report from a health professional or counsellor in relation to the injuries suffered.[79]
2. The Chief Assessor allowed an amount of $1,320.00 for Dr Bala's report. I also allow that amount.
3. The appellant claimed $2,208.80 for the Bradbury report. I allow $1,600. The deduction is because the errors made by Ms Bradbury ought not to have been.
4. I relied on Ms King's observations more heavily than on those of Dr Bala and Ms Bradbury but as the report was provided without cost no claim is made for it.[80]

1. In summary I assess compensation as comprising:

1. Accordingly, I allow the appeal, set aside the award made by the Chief Assessor and substitute an award in favour of DR in the amount of $63,760.00. Any interim payments already made pursuant to s 23 of the Act are to be deducted from the award.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] DJR [2017] WACIC 3.

[2] Criminal Injuries Compensation Act 2003 (WA) s 9(1).

[3] Criminal Injuries Compensation Act 2003 (WA) s 9(2).

[4] Hinchcliffe v Hinchcliffe [2010] WADC 78 [24].

[5] Criminal Injuries Compensation Act 2003 (WA) s 56(1).

[6] Criminal Injuries Compensation Act 2003 (WA) s 56(2)(b).

[7] Gullelo v Halloran [2008] WADC 145.

[8] Criminal Injuries Compensation Act 2003 (WA) s 3; BAS v The Estate of NAS [2000] WASCA 270 [11].

[9] Nominal Defendant v Owens (1978) 22 ALR 128, 132-133; Lloyd v Small (1996) 16 SR (WA) 111.

[10] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362; VMH (by her next friend the Public Trustee) v JAB [2014] WADC 47 [46].

[11] Crumby v Kuru (1995) 13 SR (WA) 331, 333.

[12] Criminal Injuries Compensation Act 2003 (WA) s 56(2)(e) and s 58.

[13] See for example: Burke v Vittorio; Burke v Persall [2008] WADC 169 [34]; Welsh v Kelly [2008] WADC 149 [9]-[10]; Hogben v Darcy [2009] WADC 63 [13]; Selimoski [2012] WADC 30 [17]; JY [2013] WADC 187 [5]; Dunne [2014] WADC 131 [34]; Re Farmer [2015] WADC 91 [13].

[14] Re Piggott [2017] WADC 150 [10]; see also CME [2018] WADC 69 [10].

[15] This is reinforced by s 19 of the Act which deals with the powers of an assessor to 'seek and receive', 'request' and 'obtain' 'information' for the 'purposes of deciding' an application.

[16] The meaning of the phrase is to be derived from its context. See Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation [1971] HCA 17; (1971) 45 ALJR 280, 283; Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207 [30].

[17] Applying the approach to statutory interpretation from Federal Commissioner of Taxation v Applegate (1979) 38 FLR 1; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.

[18] Criminal Injuries Compensation Act 2003 (WA) s 56(2)(a) extends this power to a judge on appeal.

[19] Criminal Injuries Compensation Act 2003 (WA) s 57.

[20] Criminal Injuries Compensation Act 2003 (WA) s 56(2)(a).

[21] This was produced on the appeal as an archive box containing numerous files. Counsel for the appellant and amicus were asked to identify which documents the court should have regard to and after the appeal advised by agreement that all relevant documents were reproduced in the Appeal Book 9 October 2018, exhibit 2 in the appeal (email correspondence MFI 1).

[22] Counsel for the appellant and amicus advised the court after the hearing of the appeal that all of the relevant offence report documents for determination of the appeal were included in the appeal exhibits (email correspondence MFI 1).

[23] Letter from the Office of Criminal Injuries Compensation to the Civil Case Management Officer, District Court dated 27 April 2017.

[24] Re Tilbury [2010] WADC 46 [3]; TAW v NJS [2011] WADC 187 [17]; Underwood v Underwood [2018] WADC 13 [37].

[25] Annexures H, I, J and K in Appeal Book 9 October 2018, exhibit 2.

[29] Originally part of the DCP files available to the Chief Assessor and tendered by agreement between counsel for the appellant and amicus after the hearing of the appeal, exhibit 6.

[30] The amicus quite properly has not raised s 39 or s 41 of the Act as potentially affecting or preventing a compensation award being made.

[31] Sentencing Transcript, The State of Western Australia v CD, District Court of Western Australia, 18 April 2008, 117.

[32] Criminal Injuries Compensation Act 2003 (WA) s 12.

[33] Criminal Injuries Compensation Act 2003 (WA) s 35(2)(b).

[34] Hatfield v Under Secretary for Law (Unreported, WASC, Library 4012; 15 December 1980) 5.

[35] S v Neumann (1995) 14 WAR 452, 461; see also The Applicant v Larkin (1976) WAR 199, 201.

[36] S v Neumann, 461; KMA v DFS [2010] WADC 6.

[37] M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992); KMA v DFS [24].

[38] Sentencing Transcript, The State of Western Australia v CD, District Court of Western Australia, 18 April 2008, 118.

[40] American Psychiatric Association, DSM-5: Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition).

[47] Criminal Injuries Compensation Act 2003 s 12(1).

[48] Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666, 673; Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [21].

[50] Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 - 413; Fagan v The Crimes Compensation Tribunal (673); RLG v SG [2010] WADC 132 [12].

[51] Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613, 620; March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515 and 522; Lyle v Soc [2009] WASCA 3 [40].

[52] Fagan (673); VPAN [2011] WADC 40 [83].

[53] Malec v JC Hutton Proprietary Limited [1990] HCA 20; (1990) 169 CLR 638; TAW v NJS [84].

[54] Bonnington Castings Limited v Wardlaw (620); Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, 160; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, 168; TAW v NJS [85].

[56] Garton v McCormack [2002] WADC 111 [15].

[57] Re AK & Ors [2016] WADC 156 [213] - [221].

[58] KLH v Dennison (Unreported, WASC, Library No 5172, 6 December 1983).

[61] Sentencing Transcript, The State of Western Australia v CD, District Court of Western Australia, 18 April 2008, 118.

[62] M v J and J v J; RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974) 3; Re Utting [2011] WADC 10 [6].

[63] Criminal Injuries Compensation Act 2003 (WA) s 31(1).

[64] Criminal Injuries Compensation Act 2003 (WA) s 33.

[65] KBR v ADM [2018] WADC 120.

[66] VMH (by her next friend the Public Trustee) v JAB [2014] WADC 47.

[67] JMD v GJH [2012] WADC 124.

[68] Criminal Injuries Compensation Act 2003 (WA) s 6(2).

[69] A v D (1994) 11 WAR 481, 489; KMA v DFS [2010] WADC 6 [27].

[70] Malec v JC Hutton Pty Ltd (638), (642-643).

[71] Rosniak v Government Insurance Office (1997) 41 NSWLR 608, 627 - 628.

[72] Criminal Injuries Compensation Act 2003 (WA) s 18(1).

[73] Criminal Injuries Compensation Act 2003 (WA) s 18(2).

[74] District Court appeal hearing transcript 41.

[75] District Court appeal hearing transcript 39 - 47.

[76] District Court appeal hearing transcript 40.

[77] Criminal Injuries Compensation Act 2003 (WA) s 6(2)(b).

[78] Calculated based on Ms Bradbury's costings by agreement between counsel for the appellant and amicus following request by the court (email correspondence exhibit 7).

[79] Criminal Injuries Compensation Act 2003 (WA) s 6(2)(a).