A v D

Criminal injuries compensation appeal - Assessor rejected claim as a result of finding that the applicant failed to do an act she ought reasonably to have done to assist the prosecution of the unknown offenders - Criminal Injuries Compensation Act 2003 s 38

Mr G Cheung on behalf of the Chief Executive Officer of the Department of the Attorney General

A v D (1994) 11 WAR 481

AJC v Lewis (2003) 35 SR (WA) 94

Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649

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

Bedetti v Chief Executive Officer [2003] WADC 37

Briginshaw v Briginshaw [1938] HCA 34

Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143

Craig v The Queen [2018] HCA 13

Curnow v Garnant [2012] WADC 72

Dos Santos v Dos Santos [2000] WADC 256

Edwards [2017] WACIC 34

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

Gabriel v Kyanja [2011] WADC 218

Hinchcliffe v Hinchcliffe [2010] WADC 78

Hogben v Darcy [2009] WADC 63

Krukiewicz v Hayes [2004] WADC 242

Lloyd v Small (1996) 16 SR (WA) 111

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

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

MDC v BLR [2015] WADC 107

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

Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221

Nominal Defendants v Owens (1978) 22 ALR 128

Prideaux v Chief Executive Officer [2000] WADC 247

R v Forsythe [1972] 2 NSWLR 951

Ransford v The Assessor of Criminal Injuries Compensation [2000] WADC 245

Re AK [2016] WADC 156

Re ATS [2017] WADC 92

Re Collard [2018] WADC 1

Re Faengsungnoen [2012] WADC 59

Re Iaria [2018] WADC 22

Re JY [2013] WADC 187

Re Krispyn [2011] WADC 161

Re Sullivan [2017] WADC 17

Re Tilbury [2010] WADC 46

Re Willington [2005] WADC 30

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

S v Neumann (1995) 14 WAR 452

Shepherd v Shepherd [2010] WADC 30

Taiapa (2009) HCA 53

Underwood v Underwood [2018] WADC 13

Wall v Chief Executive Officer [2000] WADC 320

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

Wilson v Peisley (1975) 50 ALJR 207

1. On 4 April 2017 the appellant, CME, applied pursuant to s 17 of the Criminal Injuries Compensation Act 2003 (WA) (the Act) for criminal injuries compensation in respect of injuries she sustained in an alleged assault occurring on 4 July 2015.

1. CME alleges that she was walking across an oval in Albany carrying a pie and a bag of chips when she was approached by two females asking for money.
2. After a brief discussion the assailants knocked the pie out of her hand, punched her in the stomach, grabbed her ponytail, pulled her head up and then punched her on the left side of the face. CME said she then ran away and went back to her friend's place. As a result of this incident she suffered pain and injury.

1. The matter was not reported to the police until 27 April 2016.
2. No person was charged as a result of the incident.
3. On 28 June 2017 the assessor provisionally determined the application and finally determined it on 31 July 2017. The assessor refused the application on the basis that the delay in reporting the matter to the police was not reasonable.
4. CME appeals from this decision. The appeal was lodged within time.

1. CME's grounds of appeal are that:
   1. The learned assessor erred in her application of s 38 of the Act in finding that the applicant/appellant failed to assist investigators.
   2. The learned assessor did not make any compensation award.

1. An appeal under the Act is a hearing de novo. A court may confirm, vary or reverse the assessor's decision either in whole or part.
2. The appeal is to be determined 'without being fettered by the assessor's decision'. It has been said that it is appropriate to have regard to the assessment made by the learned assessor as a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63. I have previously expressed the view, which I still hold, that on an appeal such as this it is not appropriate to have regard to the assessment made by the assessor but rather to independently review the evidence.
3. 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.

1. The court has a wide discretion to determine the matter either solely on the evidence and information in possession of the assessor or 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].
2. In this case the court received further evidence by way of an additional statement of CME dated 24 April 2018, a letter from a Family Violence Prevention officer dated 10 December 2010, CME's application for criminal injuries compensation 10 December 2010, CME's letter in support of that application, four letter's from the Criminal Injuries Compensation Assessor of 28 June 2011, an undated Criminal Injuries Compensation application and a letter from the Criminal Injuries Compensation Assessor of 20 September 2013.
3. The further evidence essentially, although not exclusively, relates to circumstances surrounding the appellant's previous criminal injuries compensation applications.
4. The four compensation awards of 28 June 2011 formed part of the material the assessor considered and is not further evidence. It is already on the file and is material I consider.
5. The assessor's decision is not further evidence, rather, it is a matter of public record: Edwards [2017] WACIC 34.

1. The maximum compensation that may be awarded for a single offence is $75,000: s 31(1) the Act. This is merely a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463.

1. CME is entitled to compensation for any injury suffered as a consequence of the commission of the offence and also for any loss suffered: s 12(1) the Act.
2. 'Injury' is relevantly defined in s 3 of the Act to mean 'bodily harm, mental and nervous shock ... '
3. Mental or nervous shock comprehends an injury impacting on the mind or nervous system of a person causing a malfunction of that person's mind or nervous system. It must be more than a mere emotional reaction, it must be something of more enduring character which can properly be described as an injury. The term includes distress, horror, disgust and other similar adverse mental reactions but excludes mere fright, humiliation or anguish: S v Neumann (461).
4. 'Loss' is defined in s 6(2)(b) of the Act to include economic loss, past medical expenses and future medical expenses that are likely to be reasonably incurred for treatment likely to need as a direct consequence of the injury suffered as a consequence of the offence.
5. Economic loss is a loss of earning capacity and not the loss of earnings: Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649, 658. This requires an examination of the earning capacity that has been lost and the economic consequences which will probably flow from that loss.
6. In assessing the amount of compensation the focus is solely upon the injuries suffered by CME as a consequence of the commission of the offence. Considerations of punishment of the unknown offenders or sympathy for CME is completely irrelevant: R v Forsythe [1972] 2 NSWLR 951, 953; B v W (1989) 6 SR (WA) 79, 89.
7. 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, Library No 1365, 31 May 1974) (Burt J); M v J & J v J (Unreported, WASC, Library No 920598, 19 November 1992) (Scott J); A v D (1994) 11 WAR 481, 486 - 487, 31.

1. The onus is on CME 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 of the Act: S v Neumann (463 - 464).
2. The court is required to examine the extent to which CME's injuries and loss was caused or contributed to by pre-existing physical and psychological injuries and the extent, if any, to which CME has failed to mitigate her injury or loss. A pre-existing condition may lead to a reduction of an award: Wilson v Peisley (1975) 50 ALJR 207, 212 (Stephen J).
3. It is not necessary for CME 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.

1. Whilst I do not consider it appropriate to have regard to the assessment made by the learned assessor, it is appropriate to consider the responses made by CME to some of the queries raised by the assessor.
2. On 28 June 2017 the assessor raised with CME's lawyers the 10 month (approximate) delay in reporting the incident to police. The assessor pointed out that when the police investigated the incident soon thereafter they were unable, due to the passage of time, to view any CCTV footage from the service station that CME said she attended just prior to the incident.
3. Further the police spoke to the person identified by CME as the person she was staying with at the time of the incident, who vaguely recalled CME returning home but could not recall anything which would assist in identifying the alleged offences.
4. The assessor advised that in her preliminary view the delay in reporting prejudiced the investigation as the police were unable to identify and apprehend any of the alleged offenders and invited submissions to be made in this respect.

1. On 4 July 2017 CME's lawyers responded advising that their client was:
   1. not aware that she was eligible to make a claim for criminal injuries compensation in the event that no offender was caught;
   2. was not aware of any information that would assist the police in identifying her perpetrators; and
   3. thought to be of any assistance to the police then she would need the name of the offenders or a clear image/description and as the assault occurred late at night, in the middle of an oval in the dark and she did not recognise the offenders, she was unable to provide such information.
2. They further advised that it was only whilst receiving medical treatment from one of her medical providers that she was advised to consider making an application for criminal injuries compensation to assist funding for future medical treatment. CME then contacted the police.
3. The assessor was also advised that when CME attended the service station which was about 300 m from the incident and on the other side of the road she did not notice anybody and in any event did not think the offenders had come from the service station but rather were just loitering on the oval.
4. Further, CME's lawyers advised that as CEM did not have any detail about the identify or helpful description of the offenders, she was not able to pass any information on to the person she was staying with and therefore that person would not have been able to provide the police with any additional information.
5. The thrust of CEM's reply was to the effect that even if the matter was reported to the police they would not have been able to obtain any more useful information to identify, apprehend or prosecute the offenders.

1. The first issue to consider is whether the court is satisfied on the balance of probabilities that an offence was committed against CME.
2. No person was charged with any offence in relation to the alleged incident. That fact is no bar to CME's claim succeeding if she proves on the balance of probabilities that she sustained compensable injuries as a result of a criminal offence.
3. CME must show that there was an offence committed against her.
4. The evidence establishing the commission of the offence should survive careful scrutiny and be precise, not loose and inexact: Re ATS [2017] WADC 92 (Herron DCJ). The seriousness of the allegation that a crime has been committed necessarily reflects in the evidence required to persuade a court that on the balance of probabilities the crime was committed: Briginshaw v Briginshaw [1938] HCA 34.
5. There must be more than conflicting inferences of equal degrees of probability that an offence was committed so that a choice between them is not just a mere matter of conjecture: Nominal Defendants v Owens (1978) 22 ALR 128; Lloyd v Small (1996) 16 SR (WA) 111.
6. The offence allegedly committed by the unknown assailants is that of unlawful assault occasioning bodily harm.
7. The elements which must be proven are firstly, that CME was assaulted. Secondly, that she suffered bodily harm. Thirdly, that the assault caused that bodily harm and fourthly, the assault was unlawful.
8. There were no witnesses to the assault other than CME and the alleged assailants. I have not had the advantage of assessing CME's demeanour or seeing her give viva voce evidence, however I am satisfied on the balance of probabilities from her statement and amended statement that she was assaulted.
9. An assault is an application of force applied directly or indirectly to a person without their consent. The punching to CME's stomach, her face and the pulling of her hair without her consent, constitutes an assault.
10. I am satisfied on the balance of probabilities that CME suffered bodily harm. Bodily harm is defined by law to be a bodily injury of such a nature as to interfere with health or comfort. I am satisfied that the injury she sustained, essentially a fracture of the orbital floor, interfered with her health or comfort.
11. Thirdly, I am satisfied on the balance of probabilities that the assault, the blow to her face, caused her to suffer the bodily harm being the fracture of the orbital floor.
12. Fourthly, I am satisfied on the balance of probabilities that the assault causing bodily harm was unlawfully. I accept CME's statement that she was literally walking across the park when she was assaulted. There was no authorisation, justification or excuse for the assault. There is no suggestion that self-defence or provocation would apply and I am satisfied that the assault was unlawfully caused.
13. I am also satisfied on the balance of probabilities that at the time the unlawful assault occasioning bodily harm was committed against her CME was not engaged in the commission of any criminal conduct within s 39 of the Act.
14. Having determined those issues, I now turn to examine s 38.

Section 38 of the Criminal Injuries Compensation Act 2003

No award if applicant did not assist investigators.

An assessor must not make a compensation award in favour of a victim ... if the assessor is of the opinion that the victim ... did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence.

1. The aim of the section is to ensure that authorities are not prevented from investigating the factual circumstances of an alleged offence.
2. Section 38 must be considered carefully with a great deal of scrutiny before it acts as a 'guillotine' to extinguish a claim: Hinchcliffe v Hinchcliffe [2010] WADC 78 (Stevenson DCJ).
3. Section 38 of the Act has been subject to two relevant recent decisions by judges of this court being Re Collard [2018] WADC 1 (Goetze DCJ) and Re Iaria [2018] WADC 22 (Davis DCJ).
4. I gratefully adopt the principles espoused by their honours in those cases.
5. The court is required to make a factual determination as to whether there was a failure to do any act or thing and if so, was the failure reasonable taking into account the particular circumstance of the applicant in determining what was reasonable for him to do: AJC v Lewis (2003) 35 SR (WA) 94.
6. An applicant's lack of action is not judged by reference to what a hypothetical reasonable person would have done. The section focuses on the applicant and what 'she' ought reasonably to have done. Ultimately the test is what was objectively reasonable in all the circumstances by reference to what could reasonably be expected of the applicant in her circumstances: Re Iaria [2018] WADC 22; Prideaux v Chief Executive Officer [2000] WADC 247 (Blaxell DCJ).
7. I find that CME's failure to report the incident to police in a timely manner constitutes 'not doing any act or thing'. A failure to report a matter to police in a timely manner is a failure of the type contemplated by s 38: Re Iaria; Re Sullivan [2017] WADC 17 (Eaton DCJ); Re Willington [2005] WADC 30 (Commissioner Stavrianou); Wall v Chief Executive Officer [2000] WADC 320 (O'Sullivan DCJ).
8. That being so it is necessary to ask whether CME ought reasonably to have reported the incident at an earlier date.
9. In Re Iaria Davis DCJ after having extensively reviewed the authorities observed that:

... in each case where it has been held that there has been a failure on the part of the applicant but that s 38 (or its equivalent) did not preclude an award of compensation, there existed one or both of the following factors:

(a) A legitimate fear by the applicant of reprisal by the alleged offender especially where the threat of harm to the applicant was real and imminent. A general fear of an offender is not, on its own, sufficient to justify a failure to report an offence to the police:

(b) Something in the applicant's personal circumstances which demonstrated that the applicant's failure to report or provide assistance to the police was reasonable.

1. There are many cases where a failure to report a matter to police in a timely manner has been found to be a failure to act reasonably within the meaning of s 38, and therefore precluding an award of compensation, there are many cases where the contrary conclusion is reached and compensation has been awarded. The cases are conveniently summarised in Re Iaria and Re Collard [2018] WADC 1.
2. In Re Iaria the alleged offence occurred on 13 June 2014 and the matter was not reported to the police until 10 March 2016. The applicant claimed he was scared that if he spoke out there would be retribution and that he was so affected by the incident he basically shut himself off from the rest of the world for about a year. He claimed the failure to report did not compromise the police investigation as he did not see the assailants and could not identify them.
3. Davis DCJ found that the failure to report was unreasonable and s 38 applied.
4. In Prideaux the applicant was struck by an unknown assailant in February 1993 suffering, amongst other injuries, a fractured cheek bone and fractured teeth.
5. The incident occurred in a lonely dark area. There was no one around. The applicant did not seek medical treatment for around about one week and did not report the matter until June 1999 saying that he knew nobody had witnessed the assault and there was no means by which the offender could be found. Blaxell DCJ, as he then was, found the applicant to be an independent, uncomplaining individual who wore the misadventure as best he could in the way that caused the least possible inconvenience to anybody. In light of his background and experience of life it did not occur to him that the police should have been notified and his Honour found that this was not unreasonable.
6. Davis DCJ observations in Re Iaria referred to above are not, in my view, to be taken as deciding that only applicants those cases fall into one or both of those categories will have their conduct deemed reasonable. Each case must be considered on its own merits. The category of cases whereby s 38 will not preclude an award of compensation are not closed or fixed. Each cases must be considered on its merits.
7. Nevertheless CME says she falls into both categories and therefore her appeal should succeed.
8. CME's supplementary statement dated 24 April 2018, says she grew up in Albany and was a victim of domestic violence from an indigenous Australian partner and suffered repercussions each time she reported the abuse. She says she is familiar with the consequences from the community of making a report of physical or verbal abuse. Further, she says that whilst she did not recognise the offenders, she identified them as indigenous and as her young son and elderly parents reside in Albany she did not want to draw attention to her family or for them to suffer consequences.
9. I note that CME had previously told Ms Manning that she was not fearful of the offenders.
10. I do not accept that CME believed there existed any threat of harm to her or her family or that she had a legitimate fear of reprisals from the alleged offender. At most CME has a generalised fear of unknown offenders which I find was not sufficient to justify a failure to report an offence to the police. It would be unrealistic not to recognise that CME's later statement made shortly before the appeal was heard may be affected by an element of hindsight reasoning: Craig v The Queen [2018] HCA 13.
11. A generalized concern such as that held by CME, even though she has undoubtedly been a victim of personal violence, is not sufficient to justify a failure to report an offence to the police. It is a feature of civilised society that a person can render threats of personal violence ineffective by seeking the help of law enforcement agencies: Taiapa (2009) HCA 53.
12. CME claims that there was nothing the police could do in any event because she was unable to describe any identifying features or make a positive identification or provide anything other than a very generalised description of the assailants.
13. If the incident was reported to the police promptly officers may have been able to obtain, in response to their questions, a more detailed description of some features of the assailants which, although not sufficient to lead to the formal identification of the offenders, may have provided circumstantial identification material that would have assisted the investigation.
14. The failure to report the incident promptly may have deprived the police of the ability to have CME forensically examined and potentially deprived them of the possibility of obtaining the offenders' DNA from the pie, the clothing of CME that covered her stomach when the shorter female punched her, her hair which was grabbed by one of the offenders or the left side of her face which was punched by one of the offenders.
15. As to CME's submission that there was no information the police could have obtained from examining the service station's CCTV as a result of its location in relation to the incident, and CME's belief that the offenders came from the park or approached from a different direction, that fails to recognise that the CCTV footage may have, for example, led to the identification of a vehicle or person in the general area at the time of the incident who may have been able to assist with the police inquiry.
16. As to CME's submission that as she did not have any detail about the offender she did not pass any information onto the person she was staying with. Her statement to the Kwinana Police says 'when I got back there I told her what had happened'. The police spoke to that person on 12 May 2016 who 'vaguely recalled the victim returning home but couldn't recall anything which would assist in identifying a person of interest or lead to further investigative actions'. More information may have been obtained if the person was spoken to closer to the incident.
17. The police also made inquiries of the two service stations operating 24 hours per day at the time of the incident.
18. Inquiries were made of The North Road service station on 10 May 2016 and the police were advised that the original station had been demolished and rebuilt and reopened in September 2015 and all CCTV facilities including the storage were replaced.
19. Inquiries were made of The York road service station, which was thought likely to be the station mentioned in CME's statement, however, they advised that CCTV footage was overwritten after two weeks.
20. The court does not need to determine whether any particular step would have actually resulted in the identification, apprehension or prosecution of the offender: Re Iaria [31].
21. It is not for an applicant to form an opinion about whether anything useful would have come to the police investigation if the alleged offence was reported to the police at an earlier date. The onus on the applicant is to divulge the information to enable the police in the course of their investigations to make whatever assessments regarding the evidence was necessary: Re Iaria [30]; Ransford v The Assessor of Criminal Injuries Compensation [2000] WADC 245 [129] (Deane DCJ).
22. Where an incident has not been reported to the police promptly because the applicant believes the information or lack of it meant there was nothing the police could do, the court is entitled to consider both the appellant's belief and the information she possessed. This is not for the purpose of determining if the police were prejudiced but as part of an examination of all the circumstances relevant to the ultimate question.
23. The ultimate question is not whether police officers were prejudiced in their investigation, but what could reasonably be expected of CME bearing in mind her personal circumstances.

1. CME is currently 33 years of age. She was placed into foster care as a baby. She had been involved in a violent personal relationship for approximately 12 years from the age of 14 which resulted in her being physically abused at least weekly. She was repeatedly sexually abused from the age of eight. She has been the subject of physical assaults from her partner and others and suffered from post-traumatic stress disorder both prior to and subsequent to the incident, the symptoms of which include avoiding memories of the trauma, feeling distant or cut off from people, having strong negative feelings, reduced energy and poor concentration.
2. The information provided when she reported the matter to the police 39 weeks later was all the information that could have been provided if the matter was reported forthwith because she just did not know the identity of the offenders.
3. I reject CMEs submission that she was unaware that she suffered an injury of some significance. She was diagnosed with a fractured eye socket on 9 July 2015. Her statement in support of the application states, 'I have been advised by the medical practitioner that the socket was 'shattered' and was almost the same effect as an impact injury in a car accident'. By 24 July 2015 she was complaining of increased pain and intermittent blurred vision and her statement of injuries dated 2 July 2016 refers to the effects that the injury was having on her daily life. I find she knew shortly after the incident she had suffered a significant injury.
4. I find that CME believed that the information she possessed was insufficient to enable the police to identify the offenders and therefore there was no point in making a report.
5. CMEs statement that she was not aware she was eligible for criminal injuries compensation in the event no offender was caught was just another way of saying that she did not report it to the police because she was not able to provide any information that would have led to the offenders being caught and therefore she could not apply for compensation.
6. CME has received five previous awards of criminal injuries compensation. Some awards involved matters where she reported the offence to the police, identified the offender and the offender was charged and convicted. Other awards occurred where she reported the matter to the police, advised them of identity of the alleged offender but no charges were laid and in other cases awards were made where she did not report the matter to the police, no person was charged but she identified the assailant in her application for compensation. An award was also made in circumstances where it appears she did not report the offence to the police, but an offender was charged and convicted.
7. In view of her past experiences that she has only made compensation claims in circumstances where she was able to identify the offender. Her subjective belief that if she could not identify the offender there was effectively nothing to tell the police and therefore no point in making a report is a belief I find that she genuinely held.
8. CME's failure to report the matter to the police earlier was not, considering all her circumstances, objectively unreasonable and accordingly I find that CME did not do any act which she ought to reasonably have done to assist in the identification, apprehension or prosecution of the person who committed the offence.

1. The medical evidence establishes that CME suffered a left orbital floor fracture which caused numbness to the left side of her face. I am satisfied on the balance of probabilities that was caused by the blow to her face by the unknown assailant.
2. Dr Holland's CT scan of the facial bones and sinus conducted on 9 July 2015 revealed a left side comminuted inferior orbital wall fracture that involved the infraorbital canal and intraorbital fat herniates into the left maxillary antrum.
3. Dr Daudu's report of 10 July 2015 indicates that when he saw CME on 9 July 2015 she complained of pain and numbness to the left side of the face and had noticed blood stained mucus on blowing her nose two or three days after the incident.
4. When reviewed on 16 July 2015 by Mr Wan, there was minimal swelling and ecchymosis, no diplopia although there was some left nerve paraesthesia.
5. When reviewed again on 24 July 2015, CME was suffering from increased pain and had woken that morning with a shooting pain behind her eye and reported intermittent blurred vision.
6. On 21 October 2015, numbness to the left face and intermittent pain on a scale of 10 was 8 reported. CME also complained of pins and needles and stabbing pain around the left orbital rim, shooting to the side of the nose and behind the eyeball. Left infraorbital nerve neuropathic pain was also noted.
7. When reviewed on 3 November 2015 CME was suffering from ongoing pain from cramps and pins and needles under the left globe. The pain was described as level 3 out of 10 throughout the day and it spiked intermittently and on occasions would wake her at night. A mild improvement was noted after taking prescribed medication for one week. The pain was said to be worse when going outside and in bright light.
8. The Fremantle Hospital outpatient clinic assessment of 3 December 2015 indicated that whilst the orbital fracture was being conservatively managed, CME had a recent onset of photophobia associated with her left eye and retrobulbar/ocular pain. Examination showed her visual acuity was intact. It was concluded that she was suffering from neuropathic pain involving the left infraorbital nerve which was being managed with medication.
9. Dr Kalaji's medical report of 28 April 2016 indicates that CME reported suffering from pain and discomfort around the left eye and on occasions her left eye would go blurry when the pain was severe but other than that she had no visual problems.
10. When reviewed on 2 June 2016 it was noted that CME was still having some pain to the left V2 distribution especially when laying on the left side of the face. It was also noted that she had stopped her medication after a short period of time. Examination revealed left V2 numbness to the vermillion part of the lip and intermittent pain to the left orbital rim region with hertels to both the left and the right. She was advised that there was no need for any orbital reconstruction.
11. Associate Professor Gebauer, a clinical associate professor in oral and maxillofacial surgery reviewed CME on 4 October 2016. He noted that CME reported pain of the infraorbital nerve division of the left-hand side of the face involving the skin overlying the eye lid, left cheek, lips and nose. CME described the pain as 4 to 8 in intensity which could last for three to four hours at the higher level of intensity. She described the pain as lingering and constantly throbbing and of sufficient severity to wake her at night and it could be precipitated by cold, exercise and jumping and was localised to the distribution of the nerve.
12. Associate Professor Gebauer noted that CME had no cosmetic deformity and did not have any functioning deformity of movement of vision out of the left eye. In his opinion surgical intervention was not required even though she was suffering from neuropathic pain as a consequence of the injury to the inferior alveolar nerve. In his opinion the injuries could be directly related to blunt trauma to the face.
13. Associate Professor Gebauer recommended CME consider taking medication to assist pain management. He noted CME described the injury as an inconvenience to her ability to exercise and disrupted her sleep patterns. He believed that if the symptoms were optimally treated ie, medication, they may be less likely to occur and CME would only have minor inconvenience to her capacity to work. In light of her neuropathic pain, he suggested she consult a pain specialist who he believed would be likely to prescribe further medication.
14. Associate Professor Gebauer noted CME's reluctance to take medications but repeated his opinion that he believed that medical management may benefit and reduce the severity of her symptoms while recognising that the medication may be life-long.
15. He believed the injury interfered with CME's ability to exercise and could interrupt her sleep patterns and said she suffered from a chronic pain condition which could be debilitating and was precipitated by mobility.
16. He did not consider she was at risk of developing any degenerative changes as a result of her injury and considered that she may suffer a permanent impairment of altered sensation or dysesthesia or hyperaesthesia. Essentially CME suffered a pain problem as a consequence of an injury to the inferior alveolar nerve which supplied sensations to the lower eye lid, cheek, lateral nose and upper lip of the left-hand side of her face.
17. Associate Professor Gebauer reported that the injury affected CME's psychological wellbeing because it triggered thoughts of previous assaults and he believed she was suffering from an untreated, chronic pain symptom which impaired her enjoyment of life.
18. Ms Maya Manning, a clinical psychologist, saw CME on 23 February 2017. Ms Manning noted that CME reported a number of events in her life that may have predisposed her to future psychological problems and that CME found it difficult to differentiate between symptoms arising from previous traumatic incidents in her life and symptoms arising from the incident.
19. Ms Manning was of the opinion that some but not all of CME's currently reported symptoms were associated with the trauma from the incident.
20. The events occurring before the incident, that may have pre-disposed CME to future psychological problems included:
    • Childhood stress related to her adoption and foster care since she was under the age of two years;
    • Being sexually assaulted as a child by a relative and sexually assaulted on a number of other occasions;
    • Being physically assaulted by two females when she was 13 to 14 resulting in a broken nose and fractured ribs and by a male acquaintance who hit her on the head with a bottle in 2010;
    • Her pregnancy in her teenage years;
    • Having her education truncated due to her pregnancy; and
    • Being in relationship between the ages of 14 to 26 years where her partner was severely violent towards her for many years;
21. Ms Manning concludes that given the multiple general traumatic events experienced by CME throughout her life, most of her current symptoms could not be attributed specifically to one particular event but rather resulted from an accumulation of traumatic events, but it was reasonable to say that the current incident would be sufficient on its own to precipitate some symptoms of post-traumatic stress disorder or stress recognition, although not sufficient to precipitate personality changes.
22. Ms Manning concluded that CME met the diagnostic criteria for chronic post-traumatic stress disorder and observed that some, if not all of the symptoms, were associated with the trauma from the incident.
23. Ms Manning reported that CME's current symptoms were causing clinically significant suffering and were damaging to her daily functioning and may have predisposed her to already caused enduring personality change.
24. Having noted that CME's scores were in an extremely severe range for anxiety, depression and stress. Ms Manning also felt that CME displayed and/or reported symptoms that met the criteria for recurrent depressive disorder, and this diagnosis was supported by the lowering of CME's mood, reduction of energy, loss of interest in previously enjoyed activities, poor concentration and disturbed sleep and this caused significant suffering and damage to her daily function.
25. Ms Manning reported that CME experienced physiological symptoms including nausea, upset stomach, tremors, profuse sweating, dizziness, heart palpitations, headaches, breathing issues, pain, clammy hands, reduced energy, sleep disturbance, loss of appetite and a reluctance to be touched.
26. In addition CME suffered cognitive symptoms including re-experiencing the trauma, negative alterations in thought, hypervigilance and a mistrust of people and emotional symptoms including anxiety and nervousness, anger, rage, depression, lowered mood, self-blaming and diminished sense of personal safety, increased alcohol consumption and avoidance of some activities previously pursued.
27. In Ms Manning's opinion the psychological sequence to the incident affected CME's ability to work and study since the event and her ability to work continued to be affected and may be affected in the future.
28. Ms Manning noted that CME had barely worked since the trauma and was currently on Centrelink payments. She noted that CME had been participating in an online course at the time of the incident and studying a diploma in hospitality which she was unable to complete due to the physical pain and lack of concentration.
29. Ms Manning concluded that CME's current psychological, emotional, cognitive and behavioural symptoms were likely to impede her concentration and reduce her general performance and her sleep and anxiety levels.
30. Ms Manning believed that in the short-term CME had a reduced capacity to work but in the long-term her capacity for employment would depend on the response to treatment. In Ms Manning's opinion if CME experienced moderate or better resolution of her symptoms she would be very capable of working but if she experienced ongoing symptoms she would require further intervention alongside a lighter workload.

1. I am satisfied that CME suffered a left sided comminuted, inferior orbital wall fracture involving the infraorbital canal and intraorbital herniates into the left maxillary antrum. I am satisfied this injury was caused directly by the assault upon her by the unknown assailants.
2. Fortunately CME does not have any cosmetic disability nor any functional deformity of movement or vision from her eye.
3. She did not require surgical intervention and is not at a risk of developing degenerative changes.
4. I accept that CME suffers pain to the inferior alveolar nerve which supplies sensation to the lower eyelid, cheek, lateral nose and upper lift of the left hand side of the face and this involves lingering pain of a consistent throbbing character to the skin over the eyelid, left cheek, lips and nose. At times the pain can be intense and can be affected by the weather and mobility.
5. I award $20,000 for the orbital floor fracture and associated neuropathic pain and suffering and its effects.
6. I have previously referred to the psychological symptoms being suffered by CME. At the time of the report CME was displaying, inter alia, symptoms including lowering of mood, reduction of energy, loss of interest in previous activities, poor concentration and disturbed sleep.
7. Ms Manning reported that CME's most recent symptoms include persistent re-experiencing of the incident, avoidance, negative alterations in mood and thoughts and increased arousal which have caused her clinically significant suffering and damage to her daily functions and may have predisposed her to, or already caused, enduring personality change. The frequency of these symptoms is likely to have peaked.
8. Ms Manning found that CME suffered from a recurrent depressive disorder as well as post-traumatic stress disorder.
9. Ms Manning's opinion was that 'some but not all' of CME's current post-traumatic stress disorder symptoms are associated with the alleged offence.
10. Ms Manning's conclusion that it is reasonable to say that the incident's trauma could be sufficient on its own to precipitate some symptoms of post-traumatic stress disorder or stress reaction but not sufficient to precipitate personality changes does not assist because CME was already suffering from post-traumatic stress disorder.
11. Ms Manning reported a number of events, previously referred to, that may have predisposed CME to future psychological problems.
12. CME has suffered from post-traumatic stress disorder since 2010 as a result of the violent relationship with her ex-partner.
13. CME's pre-existing post-traumatic stress disorder must be taken into account in assessing the compensation payable to her.
14. It is of little practical consequence whether the pre-existing post-traumatic stress disorder is taken into account via s 41 which requires the court to have regard to ' ... any condition ... which contributed directly or indirectly to the injury': Krukiewicz v Hayes [2004] WADC 242 (HH Jackson DCJ); Shepherd v Shepherd [2010] WADC 30 (Wager DCJ); Re Krispyn [2011] WADC 161 (Curthoys DCJ); Gabriel v Kyanja [2011] WADC 218 (Scott DCJ); Re Faengsungnoen [2012] WADC 59 (Bowden DCJ); McDavitt v McDavitt [No 2] [2013] WADC 198 (Davis DCJ); or because of ordinary tortious principles relevant to the assessment of damages: Re AK [2016] WADC 156 (Schoombee DCJ); MDC v BLR [2015] WADC 107 (Braddock DCJ); Re JY [2013] WADC 187 (Sleight DCJ); Curnow v Garnant [2012] WADC 72 (Commissioner Gething) or because ultimately the award made under s 30 is an award for 'the injury suffered as a consequence of the commission of the offence' and the pre-existing injury must be considered in determining what injury was a consequence of the offence: Underwood v Underwood [2018] WADC 13 (Gething DCJ).
15. Using any approach CME's pre-existing post-traumatic stress disorder affected her irrespective of this incident and therefore she is only to receive compensation resulting from an increase in the severity of her post-traumatic stress disorder which was caused by the incident: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; MJN v MAJS (2003) 35 SR (WA) 219.
16. Ms Manning noted that CME's situation was very complex and it was very difficult to extricate one traumatic life event from another and that her past traumatic symptoms were currently causing significant suffering and damage to her daily function.
17. As Ms Manning noted 'considering the multiple general traumatic events experienced by CME throughout her lifetime most symptoms cannot be attributed specifically to one particular event but rather as a result of an accumulation of traumatic events'.
18. In relation to differentiating between the impact of previous traumatic events and the incident Ms Manning noted CME's current symptoms included experiencing unwanted memories, dreams, heart palpitations, tremors, sweeting and clammy hands. CME also exhibited avoidance symptoms in relation to people and places and suffered negative alterations to her mood including fear and anger, had trouble remembering parts of the incident, had lost interest in activities, was distant from people, and exhibited hyper arousal symptoms relating to her own security and had difficulty sleeping and the like.
19. Bearing in mind her pre-existing post-traumatic stress disorder and the fact that some but not all of her current symptoms are associated with the alleged offence the appropriate amount to award for CME's post-traumatic stress disorder and recurrent depressive disorder that I am satisfied is mental or nervous shock within the Act and caused by the incident is the sum of $10,000.
20. There is some evidence that CME did not take medication which had been prescribed to her and did not access all professional mental support. The consequence of the failure to obtain reasonable medical treatment ought to be taken into account when making an award of compensation: Bedetti v Chief Executive Officer [2003] WADC 37 [11].
21. I am not satisfied that CME's reluctance to take prescribed medication or access all professional medical support constitutes a failure to obtain reasonable medical treatment and accordingly I am not satisfied that she failed to mitigate her damages.

1. Ms Manning reported that CME's 'current psychological, emotional, cognitive and behavioural symptoms are likely to impede concentration and reduce her general performance' and indicated that in the short-term CME had reduced capacity to work but in the long-term her capacity would depend on her response to treatment.
2. Associate Professor Gebauer reported that if CME took medication and was optimally treated she would have only minor inconvenience in her capacity to work.
3. CME seeks $21,112 for economic loss calculated at 26 weeks of pay as a tourism and travel advisor at $812 net per week essentially based on the incident delaying her entry into the workplace by six months.
4. CME clams that the injury caused her to discontinue a diploma of hospitality management. The evidence established that she was awarded a diploma of travel and tourism on 22 December 2016, those units having been completed on 6 June 2016 and 26 July 2016 respectively and CME as at 31 March 2017 was receiving an Austudy allowance.
5. There is no satisfactory evidence before me of any past working history of CME. I accept that what a worker earned in the past does not always provide an accurate guide to future earnings. However, there is also an absence of any specific evidence from the medical experts to support the claim that the incident caused a six month delay in entering the workforce. There is no evidence to establish that CME has in fact re-entered the workforce. The evidence shows that in March 2017 she was on Austudy allowance and indeed in April of 2018 she described her occupation as student.
6. I am not satisfied from the medical evidence or any past or present working history that CME has suffered economic loss as a result of any loss of earning capacity.

1. I allow CME $3,300 for report expenses as follows:

1. Losses within s 6(2)(b) of the Act include expenses that are likely to be reasonably incurred for future treatment needed as a direct consequence of the injury. The award should specify that amount because s 48 of the Act imposes conditions on the payment for future treatment.
2. CME seeks $5,192.50 for future medical treatment calculated at the cost of 25 sessions from a psychologist at the cost of $241 per session less the Medicare rebate of $832.50.
3. Ms Manning recommended CME consult with her GP for a medication review and for a referral to a psychologist, psychiatrist or other mental health profession.
4. Ms Manning was of the opinion that it is likely that the frequency and intensity of the post-traumatic symptoms have peaked, however, they would not significantly resolve without further professional assistance.
5. Ms Manning recommended further treatment from a clinical psychologist saying 50 sessions over a year would not be unrealistic and ongoing reviews and further sessions may be required.
6. I would allow these expenses.

1. No cost order should be made. The chief executive officer appears as amicus curiae and is not an unsuccessful party to the appeal and it is not appropriate to make a costs order.
2. I therefore allow the appeal and award CME the following:

1. The orders that I make are as follows:
   1. The appeal is allowed.
   2. The award of the assessor refusing the application is set aside.
2. The sum of $38,492.50 is awarded to CME as compensation for injuries and losses in respect of the proved defence.
3. CME be paid:

(ii) Subject to provisions of s 48 of the Act a further sum of $5,192.50.

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