AA v ARW [2022] WADC 100 | Case summary

AA v ARW [2022] WADC 100 | Case summary | Zoe

[55]

At about 3.10 pm Thursday the 29th of January 2016, the accused was at the front of the Busselton Hospital, on Craig Street, West Busselton.

The accused had been making repeated threats to self-harm and as such, uniformed Police approached the accused to make a decision in regards to the Mental Health Act.

The accused has told Police 'I just want to die' and 'Have you come to use your gun on me?'

Police and a Department of Health Social Worker have all told the accused that she is to come inside for the purposes of a Mental Health Assessment. The accused has remained seated, requiring Police to forcibly escort the accused into the hospital.

The accused has stiffened her body, withdrawing her arms to her chest. Fearing the accused would cause injury, Constable GILBERT has drawn her handcuffs.

Assault Public Officer 1:

The accused has thrown herself to the ground, Sergeant RICHARDS has reached down for the accused who has then bitten him to the left forearm (No puncture).

Assault Public Officer 2:

The Accused has kicked Constable GILBERT causing her to be knocked to the ground. Police managed to handcuff the accused who continued to struggle, kicking at Police then attaching herself to a nearby pole. The accused was removed, then a further officer arrived to assist escorting the accused inside the hospital.

The accused continued to pull against Police, dropping her body weight until she was carried to the doorway. The accused has kicked out her legs, then pushed against the doors in an effort to prevent her from being taken into hospital.

Police were directed to a hospital bed, where they carried the accused who continued to struggle, scream and swear.

The accused was issued a Transport Order to Bunbury Hospital for further mental health assessment. During the transport she tried to run away before being placed in the ambulance, then had to be physically removed from the ambulance at Bunbury.

On Saturday the 30th of January 2016, the accused was released from Hospital and arrested by Police. The accused refused to be interviewed, grabbing paper towels, throwing them on the floor along with plastic cups and cardboard boxes.

She was subsequently charged and bail refused.

As a result of the assault, Sergeant RICHARDS had swelling to his forearm. He had blood tests due to the accused's claims that she was a Hepatitis C carrier.

Constable GILBERT had tenderness and minor swelling to her hand which had been impacted on the kick.

Accused gave the explanation that she kicked one officer and bit the other as she was angry and did not want to go inside.

[58]

Introduction

This Victim Impact Statement recounts what I believe was the trigger event of my current diagnosis of Post-Traumatic Stress Disorder (PTSD), Depression and Anxiety which resulted in my redundancy as a Police Officer and a career that has spanned 22 years since 1980.

Incident

...

Physical and Emotional Impact

As a result of the assault on myself, I had penetrating bite marks on my forearm, which the hospital staff began treating. I was informed that I was required to have mandatory blood tests as MOORE claimed she was a Hepatitis Carrier, hospital records confirm she was High Risk of Hepatitis C.

I was required to have 3 Blood Tests over a 6-month period to ensure that I had not contracted Hepatitis C. I was in shock, which was exasperated when I realised, I had to go home to my Wife and tell her that I had been bitten by a Female carrying Hepatitis C. This rocked me to the core, as I felt that I could not continue my relationship with my wife Alison. My wife at the time was in poor mental health and still finding it increasingly difficult to manage after the loss of our Son, Jonathon in June 2011.

I had been stationed in Perth and Rockingham since March 2012 and had transferred to the Busselton Police Station in August 2015 to reunite with my Wife and provide support to my Family. As I arrived home and informed my wife, she started to cry and be anxious about the event. This made me more upset as I was the sole provider for our family and my wife has not been able to work since our son's death in 2011.

My wife, Alison, told me she could not live without me, and that life would not be worth living without me. I tried to console her about the incident, but she was distraught, and I felt her emotionally pushing me away.

As 6 months passed, I received a negative result. I thought this would has brought me comfort, however I felt no change in my mental state and felt like I had been swallowed by the Earth with no possibility of escape.

My intimate relationship with Alison that we had since 1997 was diminishing as I receded into my own mind to the point where I could not hug her at nights. I found myself being insensitive and short with her as her own Mental Health continued to deteriorate.

At night, I would have dreams of the incident, acquiring Hepatitis C and my Wife taking my family and leaving me alone. I would wake up in cold sweats. I felt a change in myself and slowly other traumatic incidents that I had experienced in my career started to appear in my dreams at night and invading my thoughts during the day.

As the months followed, I felt that I had lost confidence in myself, my ability to make decisions under pressure and provide direction to my staff at the police station. I was unable to provide a guidance on a life decision when my staff came me, this resulted in my responsibilities being undermined and my staff phoning the OIC of the station for advice. This happened on multiple occasions.

On-going Psychological Impact

My family and friends would continuously ask me if I was Ok, I would put on a Front and say everything was Ok, when I knew it was not. I turned to alcohol to Block the thoughts I had during the day and stop the dreams at night, it was a source of comfort.

I was never a heavy drinker in the past and found myself consuming 2 bottles of wine a night along with Prescription drugs. The dreams, thoughts, initial incident with MOORE and countless other traumatic events felt relentless, I could not escape.

I felt like crawling into a hole, I would sit in the Police Station and only go on the road as a supervisor, allowing the other Police Officers to make the decisions. This made me feel helpless, in consultation with the OIC of the Police Station, I forced myself to rediscover my abilities and skills in my career that had spanned decades. It did not work; I was just going through the motions.

It took me months to get over the feelings of being upset, depressed, helpless, aggressive, and angry, I felt like I was dying inside. I continued to attend several other traumatic incidents, from major road crashes accidents that resulted in fatalities to members of the community completing suicide. I found myself increasingly emotional when I would attend these scenes, this was extremely out of character for me as I never used to show or be open with my emotions publicly. I was a professional Police Officer who could compartmentalise and process the scenes that I had witnessed.

I loved my Job, I loved being a Police Officer and assisting those in our Public that needed help. I joined in September 1980 and had enjoyed and felt purpose in my career until this incident and the subsequent incidents that followed. It was at this time that I started to attend Police health and Safety and speak with Psychiatrist Helen Piirto.

Diagnosis and Redundancy

To my shock, she diagnosed me with PTSD and placed me on prescription medication. I was upset, disappointed, confused and was confronted with the knowledge that my Policing Career was possibly over. I was referred to several Mental health professionals which resulted in receiving counselling and sessions of ERDM from Wayne McIntosh Counselling Psychologist, Bunbury.

This resulted in me accepting a redundancy in November 2018 after being told by the Police Hierarchy that by accepting a redundancy now it was better than accepting nothing later. As the Police Compensation Act was not in place at the time, there was no additional compensation, no pension and no financial security for me or my family, just the door that would see my career end. This absolutely devasted me.

My wife and I decided to move to Ballarat, Victoria and live with our eldest son Luke whilst we found our feet. In Ballarat, I was referred to a local Phycologist and placed on the Australian Disability Pension with my wife as my primary carer and minimal assistance from the NDIS. I was diagnosed with Anxiety and Depression in addition to my on-going PTSD.

I am still very depressed and feel that life has no meaning, I have had extraordinarily little to no improvement in my mental health since the initial incident. In fact, my life has spiralled in a downward direction due to the additional financial stress that my Wife and I must navigate through every day.

I continue to attend Sound Psychiatry every 2 weeks for on-going support. I am currently receiving Transcranial Magnetic Stimulation (TMS) through NeuroCentrix, Noble Park, Melbourne for Anxiety, Depression and PTSD, that involves 30 intensive sessions.

In August I will be attending The Geelong Clinic, Geelong, as an outpatient for a 12-week PTSD treatment Program which involves individual and group therapy exploring PTSD education, anxiety, and anger management, along with drug and alcohol education. My Partner is also invited to attend partner support groups and relationship sessions.

[68]

Mr Richards reported that he has experienced two significant personal traumas in the last eight years including the tragic death of his stepson in an off-road traffic accident in 2011 and the sudden death of his 42-year-old nephew in 2017. In both cases Mr Richards reported that he was very involved in both men's lives offering the guidance and nurturing of a father type role. Mr Richards reported that he undertook the responsibility of arranging funerals and being the emotional supporter for his wife and his nephew's wife and family. A task that Mr Richards took on with pride and as a matter of duty, he now acknowledges that there was limited opportunity for him to grieve his own loss.

As a Police Sergeant Mr Richards reported that it was his duty to guide and inform the newer recruits and less experienced officers in the practice of policing and he acknowledged that at times he would take on the tasks of informing families in an official capacity of the death of their family member, and in a way protect his less experienced colleagues from having to deliver tragic news.

Similarly, in his position as Police Sergeant, it was his role to attend sudden or suspicious deaths, murders, suicide, traffic accidents and misadventures that included significant injuries and or death. Mr Richards reported on several scenes that he attended whereby he witnessed death, with a case involving a 14-year-old boy in a farming accident that had a significant impact on his emotional wellbeing. Mr Richards acknowledged that this incident resonated with him as he recognised the grief in the boy's father that Mr Richards had experienced with the death of his son.

Mr Richards reported that he felt as though he was unable to discuss his feelings with his wife, as although they are close, he didn't want to burden his wife with his own grief. Mr Richards also acknowledged that whilst mental health and the welfare of police officers had improved in the latter years of his service, he still adopted a 'I should be able to handle these situation' type attitude.

There are multiple examples of trauma that Mr Richards has disclosed.

...

[77]

At the time of that appointment, Mr Richards was having weekly sessions with Mr Eitan Daniel, a psychologist, and was under the care of a psychiatrist. He was taking a number of medications for his symptoms. However, they were not improving with treatment. Those symptoms included decreased concentration, forgetfulness, nightmares, most nights waking up in sweat, waking up in the morning feeling physically sick, anxiety and a shaking hand. He was drinking heavily and reported what I would describe as a socially isolated lifestyle.
Dr Khalid diagnosed Mr Richards as having PTSD and a major depressive disorder. He did not consider that Mr Richards' symptoms would be likely to improve with further treatment, commenting that Mr Richards had undergone all reasonable medical treatment for his conditions. He opined that Mr Richards had reached maximal medical improvement for his conditions. He further opined that Mr Richards was not then fit for work, even in a sedentary role, observing that the likelihood of Mr Richards returning to work even on a casual or part-time basis was 'fairly remote'. He was of the view that Mr Richards' short-term and long-term prognosis for six months, one year and three years was poor.[9]
On 24 February 2021, Mr Richards had an appointment with Dr Arup Dhar, a psychiatrist, on referral from his general practitioner. Dr Dhar noted Mr Richards' history of PTSD 'suffering from trauma when working as a Policeman'. On that occasion, Mr Richards reported ongoing symptoms of anxiety, flashbacks, nightmares, low moods and poor motivation, though not thoughts of self-harm or suicide. Dr Dhar also noted that Mr Richards was then seeing Eitan Daniel, a psychologist, on a weekly basis. In his report to the general practitioner, Dr Dhar made some recommendations as to changes in medication.[10]
On 11 March 2021, Mr Richards had a further appointment with Dr Dhar. Dr Dhar noted that Mr Richards' PTSD symptoms had been reasonably stable since his last appointment some three weeks prior. He continued to report nightmares, hyper vigilance, insomnia, significant anxiety, low moods, decreased enjoyment and poor motivation. He reported some improvement in sleep as a result of a medication change.[11]

[80]

By Appeal Notice filed 5 November 2021, Mr Richards appealed from the Decision. The Appeal Notice was filed within the required 21-day time limit.[14]
On 10 December 2021 the Chief Executive Officer of the Department of Justice (CEO) filed a memorandum of appearance. At a directions hearing on 1 February 2021, the CEO was given leave to appear as amicus curiae.
At the same directions hearing, an order was made removing Ms Moore's name as the respondent to the Appeal. This was because of the order made by the Assessor barring proceedings against her pursuant to CICA pt 6.
The CEO filed comprehensive written submissions on 13 July 2022. Mr Richards filed submissions on 14 July 2022. I have also been provided with a Matter Book.
The Appeal was heard by me on 18 July 2022. Both Mr Richards and counsel for the CEO appeared by audio link at the hearing on 18 July 2022. Among other matters, counsel for the CEO made submissions as to the application of CICA s 42(3) in relation to payments made by RiskCover to Mr Richards. That subsection provides that an assessor, and thus the court, 'must deduct from a compensation award in relation to any loss suffered by a victim any amount that the victim has received, whether under a contract of insurance or otherwise, for the injury or loss'. There is no discretion in CICA s 42(3). The assessor, and hence the court, must deduct the amount required by that subsection.
In the course of preparing reasons for decision, two outstanding issues emerged. The first was that the total amount paid by RiskCover to Mr Richards was not apparent from the materials then before the court. The second was that I had not heard from either Mr Richards or counsel for the CEO on the issue of whether the funding received by Mr Richards pursuant to the National Disability Insurance Scheme (NDIS) fell within the scope of CICA s 42(3). Accordingly, I convened a directions hearing on 9 August 2022 at which both Mr Richards and counsel for the CEO appeared. I made programming orders to facilitate updated information being obtained from RiskCover and further submissions being filed. The CEO filed further submissions on 19 September 2022. Mr Richards filed further submissions on 29 October 2022, along with some correspondence setting out some further information.[15]
In hearing the Appeal, the court 'must decide the application to which the Decision relates afresh, without being fettered by the Assessor's decision'.[16] The appeal is a hearing de novo.[17] I am to treat the Application as if it came before the court for the first time.[18] Mr Richards does not have to demonstrate an error on the part of the Assessor in order to succeed.[19]
In deciding the appeal, the court, like the assessor, is not bound by the rules or practice as to evidence or procedure and may inform itself in any manner it thinks fit.[20]
The court must determine the Appeal 'solely on the evidence and information that was in the possession of the Assessor or may receive further evidence and information'.[21] Mr Richards seeks to rely on some further evidence, being:

[110]

'An assessor must not make a compensation award in respect of a compensation application unless satisfied that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence'.[37] 'Satisfied' means 'satisfied on the balance of probabilities'.[38]
The words 'as a consequence of' require a causal relationship or connection.[39] Whether that causal relationship exists is 'essentially a question of fact, to be resolved as a matter of common sense'.[40] It is sufficient that, as a matter of ordinary common sense and experience, the Assault should be regarded as having 'materially contributed' to the injury, in the sense that it was 'one cause' or 'a cause' of the injury sustained by Mr Richards in the sense that it played 'some part' in contributing to the injury.[41] As Mason and Wilson JJ observed in Fagan, the 'fact that other unconnected events may also have had some relationship to the occurrence is not material if the criminal act was a cause, even if not the sole cause'.[42]
It is readily apparent that by January 2016 when the Assault occurred, Mr Richards had experienced a significant number of traumatic events, both professionally and personally. These are succinctly summarised by Dr Fernbach in the quote at [9]. Interestingly, the Assault does not feature in this summary.
However, for four reasons, I am satisfied on the balance of probabilities that Mr Richards PTSD symptoms were materially contributed to by the Assault.
The first is that on the materials before the court, Mr Richards' first showed symptoms of PTSD in 2016. Although he experienced traumatic events in the past, and was no doubt impacted by them at the time, these events did not give rise to PTSD symptoms. In particular, he was able to continue work as a police officer. There were then three events which, from the reports in evidence, appear to have precipitated the onset of symptoms of PTSD. The first was the Assault in January 2016 ([44], [46]). The second was the death of a young teenage boy shortly prior to the Assault ([44]). The third was attending a coronial inquest in 2018 of a 43-year-old man who died suddenly from an infarct which appears to have brought up memories of the death of his wife's nephew ([7], [9]).
The second is the description of the impact of the Assault in Mr Richards' VIS ([5]). In particular, he describes having to have three blood tests over a six-month period to ensure that he had not contracted Hepatitis C. The impact of the Assault was thus very much present in his mind as a continuing reality over a prolonged period, as opposed to being a distinct event. He describes the impact of this uncertainty on his relationship with his wife. He also describes how he would dream of this incident, acquiring Hepatitis C and his wife leaving him, leading him to wake up in a cold sweat. And:[43]

[113]

The third is the statement provided by Mr Richards' wife, Alison. She described the six-month period during which Mr Richards was required to go through testing for Hepatitis C as being 'a very turbulent period of our lives, placing additional stress on our marriage'. She continues:
1. .... Since the incident with MOORE, he would often wake up at night, in cold sweats, having vision of the incident. I believe the incident was the trigger point and cause for his rapid decline in mental health, but this wouldn't be confirmed until much later.
2. I watched the sole provider and father of my children's Mental Health continue to decline and I was unable to support him as I watched him became withdrawn and reclusive from all aspects of his personal, work, and social life. My partner, Peter, has always been a stoic and religious man and although he would tell me previously about Major Crash incidents or suicides, he carried that burden well. It was shocking to discover that as he continued to attend and investigate other traumatic incidents and major crashes post the incident with MOORE, he would become overly emotional when he returned home. I could see that it was overwhelming him, and I encouraged him to see a psychiatrist.
3. It was at this time he was diagnosed with Post Traumatic Stress Disorder (PTSD) and placed on prescription medication which adversely effected my own mental health. It is my belief that the incident with MOORE was the trigger for his PTSD, as he seemed to be unravelling physically, mentally, not sleeping and having night terrors.
4. I then watched as my Husband was forced to accept a partial redundancy in November 2018, leaving our family with no financial security, pension or compensation for his life dedicated as a public servant. This triggered my anxiety and depression as I did not know how to assist or aid my Husband and he did not know how to assist the family or me.
5. As we now reside in Ballarat with my son, Luke, Peter has been continually receiving Treatment, unable to work, and I, his full-time carer. This incident, was the key that unlocked my Husbands mind, opening the gates to PTSD.
The fourth is the observation by Mr Daniel that it was the Assault which was the 'tipping point' of the onset of PTSD symptoms ([46]). I am prepared to give some weight to his observation as he has been working with Mr Richards on a very regular basis for over three years.
For these four reasons, I am satisfied that the Assault materially contributed to Mr Richards developing PTSD in that, as a matter of common sense and experience, it played some part in contributing to this injury; in my view it was a significant part, on the evidence being the tipping point or catalyst for Mr Richards to begin exhibiting symptoms which were eventually characterised as amounting to PTSD. Accordingly, I am satisfied that the PTSD sustained by Mr Richards was 'as a consequence of' the Assault.

[124]

As to Mr Richards' prognosis, in July 2018, Dr Piirto thought that there was every reason to think that he would return to an operational capacity in the near future.[55] Likewise, in August 2018, Dr Proud thought that he had a good prognosis.[56] In November 2018, Mr Richards took a redundancy package from the police. By October 2019, Dr Fernbach, was of the view that Mr Richards was then unable to work either full-time or part-time in any capacity for three years and that it was likely he would be unable to work at any time in the future. In April 2020, Dr Khalid assessed Mr Richards as having reached maximal medical improvement, that his prognosis is poor and that his PTSD and major depressive disorder are 'unlikely to remit with further treatment'. He assessed the likelihood of Mr Richards returning to work on a casual or part-time basis as 'fairly remote'.[57] Finally, it is apparent from Mr Daniel's report that Mr Richards' recovery will be long and gradual with the reality of short-term declines.
Applying these principles, in my view, an appropriate award of compensation for pain and suffering and other non-pecuniary loss is $35,000.
As to Mr Richards' claim for economic loss, he may claim 'loss of earnings suffered by [him] as a direct consequence of the injury suffered by' him.[58]
The evidence I have summarised at [72] is to the effect that at least since October 2019 Mr Richards has been unable to work due to his PTSD, and that this is likely to continue for the foreseeable future. Prior to leaving the police, he had been on sick leave, and had clearly been struggling with working. I find that his decision in November 2018 to accept a redundancy package was an acceptance of the inevitable, that he was no longer able to work as a police officer.
For present purposes, it is sufficient that I assess damages for economic loss on the basis that as a direct consequence of the injury suffered by him, being his PTSD, he was no longer able to work as a police officer from November 2018 (at which time he was 60 years and 8 months). It is appropriate to assess damages on the basis that he would work until he was 65 (14 March 2023), so a further four years and four months. I am not persuaded on the evidence before the court that Mr Richards would have continued working past the age of 65, at least as a police officer.
As to the quantum of his loss, as the table at [19] indicates, he appears to have continued to receive income from the police in the financial year ending 30 June 2020. It is sufficient to use the net taxable income for the year ending 30 June 2018, his last full year of employment as the baseline, being $81,658. I then deduct the amount he currently receives for his pension, being $17,853 per annum. This leaves $63,805. As set out at [19], it is not clear how the termination payments worked, but is apparent that the gross income received by Mr Richards in the year ending 30 June 2020 was around 75% of his income as a police officer in preceding years. Bringing this all to account, I allow compensation for the three years from 14 March 2020 (so around 75% of the financial year ending 30 June 2020) to 14 March 2023 when he turned 65. This gives an amount of $191,415 (3 x $63,805).
As set out at [18], Mr Richards does not make any claim for medical expenses.
For these reasons, subject to the application of CICA s 42(3), I assess compensation to which Mr Richards is entitled to at $226,415 ($35,000 + $191,415). This is reduced to $75,000, being the statutory maximum, and then by a further $208.65 to bring to account the expenses previously paid (see [18]), giving $74,791.35.

[131]

The question of the interaction between the CICA regime and the statutory regime by which medical expenses of a police officer are otherwise paid was considered by Derrick DCJ in Cooper v Smith.[63] In that case, Mr Smith was convicted of the offence (Offence) of obstructing a public officer, being Mr Cooper, a police officer. Mr Cooper made an application under the CICA for an award of compensation for injuries allegedly suffered by him as a consequence of the commission of the Offence. He was awarded compensation of $6,740. He appealed to the District Court on the basis that this amount was inadequate.
Derrick DCJ considered a preliminary issue, being the impact of CICA s 42(3) on any potential award of compensation. This issue arose because Mr Cooper had received medical treatment for injuries suffered by him as a consequence of the commission of the offence. The total cost of the medical treatment received by Mr Cooper was $70,661.61. This has been paid by the Commissioner of Police pursuant to regulation 1306 of the Police Force Regulations 1979 (WA) (Regulations) and cl 35 of the Western Australian Police Industrial Agreement 2014 (WA) (Agreement). Further, Mr Cooper had, in respect of periods of time for which he was unfit to work as a result of the injuries suffered by him as a consequence of the commission of the Offence, been granted 'leave of absence' pay by the Commissioner pursuant to regulation 1304(1) of the Regulations and cl 33 of the Agreement. The total amount of 'leave of absence' pay paid to Mr Cooper was $32,653.96.[64]
Derrick DCJ reviewed a number of dictionary definitions of the word 'compensation' and concluded that 'the ordinary meaning of the word "compensation" encompasses something that is given to make up for, or to offset, or to make amends for a debt or a loss'. His Honour went on to hold that this definition was consistent with the language used in CICA s 42(3) the other provisions of that Act, as well as the purpose of the CICA set out in Baker (which I have quoted at [80]).[65] Applying this definition, His Honour held that both the medical treatment payments and the leave payments were amounts received by Mr Cooper by way of compensation for the loss and injury the subject of the claim and the CICA. As these amounts exceeded the statutory maximum, Mr Cooper was not entitled to any compensation under the CICA.[66]
It is significant to note that the wording of CICA s 42(3) was amended subsequent to the decisions in Baker and Cooper. At the time of those decisions, the amount to be deducted was 'any amount that the victim or close relative has received by way of compensation or damages, or under a contract of insurance, for the injury or loss'. By an amendment taking effect on 5 December 2018 the words 'by way of compensation or damages, or' were deleted. The amended and current wording is: 'any amount that the victim or close relative has received, whether under a contract of insurance or otherwise, for the injury or loss'. The same amendment was made to CICA s 42(4) dealing with future payments.
The amending legislation was the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018 (WA) (Redress Act), in specifically s 19. As its title suggests, the Redress Act is the enabling legislation for Western Australia to participate in the redress scheme established pursuant the National Redress Scheme for Institutional Child Abuse Act 2018 (Cth). The Redress Act then goes on to deal with the interaction between the National Redress Scheme and the CICA. The amendments to CICA s 42(3) and s 42(4) were not in the initial version of the bill but came about as a result of consideration of the bill by the Legislative Council. The purpose of the amendments to CICA s 42(3) and s 42(4) was succinctly stated by the Attorney-General in the Legislative Assembly when the amended bill returned for consideration. It is:[67]

[133]

Similar decisions to that in Cooper have been made in three subsequent cases involving police officers.
In Blackwell the appellant was a serving police officer who was assaulted in the course of his duties as a public officer.[68] He was entitled to an award of compensation. However, adopting the decision in Cooper the award of compensation was reduced by amounts which the appellant had received from the Commissioner of Police by way of payment of medical expenses and sick leave.[69]
In Re Wakelin the appellant was a serving police officer injured in the course of her employment as a result of an assault by a woman she was trying to restrain.[70] The appellant had received a significant amount by way of sick leave and medical expenses paid by the Commissioner of Police. The primary issue in the appeal was whether this amount exceeded the statutory maximum (as the assessor found) or not (which the appellant contended on appeal). No issue was taken with the proposition that if the appellant 'received sick leave and medical expenses paid by her employer in relation to her injury totalling more than the maximum amount of compensation payable under the Act of $75,000 then applying the reasoning in Baker and Cooper she would be precluded from receiving further compensation'.[71] In the end, further information was received to the effect that the correct figures for sick leave and medical expenses only left a difference of $6,568.73 which might be awarded by way of compensation.[72] Quail DCJ assessed the compensation to which the appellant was entitled to in an amount exceeding the statutory maximum, reduced it to the statutory maximum and then deducted the amounts which the appellant had received by way of sick leave and payment of medical expenses, leaving compensation of $6,568.73.
In Goodwin v Baker the appellant was also a serving police officer.[73] In the period following the injury the subject of the claim, the Commissioner of Police paid the appellant sick leave, as well as an amount of medical expenses on his behalf.[74] On appeal, he sought to argue that there was no overlap between the amounts claimed pursuant to the CICA and the amounts paid by the Commissioner of Police.[75] Levy DCJ followed the approach in Cooper and deducted these amounts from the compensation payable.[76]
A difference in the present case is that Mr Richards is a former police officer. As a former police officer, he is entitled to payments for medical and other expenses from the Commissioner of Police in respect of injuries which he incurred arising out of or in the course of his employment as a police officer under the Former Officers Act. The administration of the Former Officers Act is carried out by RiskCover.
The issue is whether the amounts received by Mr Richards from RiskCover were 'received, whether under a contract of insurance or otherwise, for the injury or loss'. I have already referred to the definitions of 'injury' ([51]) and 'loss' ([67]). As set out at [63], the injury must be one suffered 'as a consequence of the commission of an offence'. The term 'loss' is likewise essentially limited to losses suffered as a direct consequence of the injury suffered. So the phrase 'injury or loss' in CICA s 42(3) means in context the injury or loss suffered as a consequence of the commission of the offence the subject of the claim for compensation under the CICA, in this case being the Assault.
The documents produced from RiskCover include the form by which Mr Richards initiated his claim. It is dated 9 July 2019. It identifies the incident giving rise to the claim as occurring in May 2018 in the 'field' in Busselton. No description of the particular incident is given. I note that the Assault occurred in January 2016. In response to the question - 'What actually happened and what caused the injury' - Mr Richards responds: 'such events as serious/fatal traffic crashes and coronial matters i.e. accidental/natural and suicides'. The injury is identified as 'depression/PTSD'. This description mirrors what Mr Richards has reported to various medical practitioners which I have quoted in this decision.
RiskCover has accepted liability for reasonable medical expenses for a claim of anxiety and depression, with a date of injury or approximate onset of condition of 29 November 2018.[77] As mentioned at [18], this is why Mr Richards has made no claim for medical expenses in the Application.
I have found the Assault to have been the catalyst or tipping point for Mr Richards to being exhibiting symptoms which were eventually characterised as amounting to PTSD ([62]). Accordingly, the scope of the RiskCover claim includes the injury and loss suffered by Mr Richards in the Assault. It follows that, in my view, the amounts received by Mr Richards from RiskCover were received 'for the injury or loss' suffered as a consequence of the Assault. The decision in Baker makes it clear that this conclusion cannot be avoided by Mr Richards only claiming under CICA for loss of income and general damages, and not for payment of medical expenses; the 'notional compensation award [cannot be] split into different elements to which the deductions in s 42 are to be applied differentially'.[78] This conclusion is consistent with the decisions in Cooper, Blackwell, Re Wakelin and Goodwin.
RiskCover has paid $51,601.44 by way of medical expenses up to 16 August 2022. This must be deducted from the amount of compensation to which Mr Richards would otherwise be entitled.
There is then the issue of future payments from RiskCover. By CICA s 42(4), these may, but not must, be deducted:

[160]

because of; on account of (could not see for tears).
Interpreting the word 'for' in CICA s 42(3) to mean 'in respect of or with reference to; regarding; so far as concerns', any degree of overlap between the purpose for which the amount was received and the injury and loss suffered as a consequence of the commission of the offence the subject of the claim for compensation under the CICA is sufficient. I will refer to this as the wide interpretation.
Interpreting the word 'for' in CICA s 42(3) to mean 'because of; on account of' leads to a narrower interpretation. This meaning connotes a requirement for the basis of the entitlement to receive the amount to be that the injury and loss are suffered as a consequence of the commission of the offence the subject of the claim for compensation under the CICA. I will refer to this as the narrow interpretation.
On the wide interpretation, the NDIS payments would be 'for' the injury and losses claimed by Mr Richards as they are in respect of, or with reference to, regarding or concerning the provision of services to assist him to overcome the day to day impacts of his PTSD and associated depressive disorder. I have found (at [62]) that these mental health conditions were an injury suffered as a consequence of the commission of the Assault. The services provided to Mr Richards under his NDIS plan (as set out in [101]) are designed to assist him to overcome the day to day impacts of Mr Richards' PTSD and associated depressive disorder (as set out at [70] and [71]). There is a degree of overlap.
On the narrow interpretation, the NDIS payments would not be 'for' the injury and losses claimed by Mr Richards. This is because his entitlement to these services is not because of or on account of the injury suffered as a consequence of the commission of the Assault. Rather, his entitlement to receive the amounts from NDIS is because of or on account of the fact he is a person under a disability. His entitlement to NDIS funding arises simply because he meets the disability requirements, the reason for him doing so being irrelevant. This is in contrast to Mr Richards' entitlement to receive the amount from RiskCover, which is because of or on account of the injury suffered in the Assault and the consequential loss.
Both interpretations are consistent with the decisions in Cooper, Blackwell, Re Wakelin and Goodwin. In particular, on the narrow interpretation, in each case the entitlement to receive the amount was because of or on account of the injury and loss suffered as a consequence of the commission of the offence the subject of the CICA application.
Perhaps the closest case on point is the decision of Wager DCJ in Re Matthews.[88] The issue in that case was whether amounts received by the appellant by way of an Australian disability support pension fell within CICA s 42(3), albeit prior to its 2018 amendment. Her Honour observed that:[89]

[162]

The observation that there 'is no evidence that it was intended to make up for or to offset or to make amends for a debt or a loss'[90] picks up the definition of 'compensation' adopted by Derrick DCJ in Cooper (quoted at [85] above). The decision in Re Matthews turns on whether an Australian disability support pension constitutes 'compensation'. With the removal of this requirement from CICA s 42(3) the decision in Re Matthews cannot be regarded as authority in favour of either the wide interpretation or the narrow interpretation. However, if the issue arose in the future, the outcome would depend on whether the wide interpretation or narrow interpretation was adopted. On the wide interpretation, there is a degree of overlap between the purpose for which the disability payment was received (the claimant cannot work because of his disabilities) and the injury and loss suffered (which caused any part of the claimants disabilities, it being impermissible to disaggregate the amount received). On the narrow interpretation, as Wager DCJ observes, the claimant's entitlement to the disability pension relates to a person's inability to work as a result of disability. In other words, the claimant's entitlement to the amount received is because of or on account of the fact he is a person with a disability. It is not received because of or on account of the fact that he suffered an injury as a consequence of the commission of an offence to which the CICA applies. (There is, however, an antecedent issue, being the extent to which receipt of a pension reduces the economic loss suffered by a claimant as a consequence of the commission of the offence).
The evident legislative intention behind the removal of the words 'by way of compensation or damages' does not assist either (see [87]). On both interpretations a redress payment made for a sexual assault would be 'for the injury or loss' suffered as a consequence of the commission of the offence comprising that sexual assault. Specifically, on the narrow interpretation, the payment of the redress is because of or on account of the sexual assault which is the subject of both the claim for compensation under the CICA and the claim for compensation under the redress scheme.
Resort to the relevant purpose or object of the relevant provisions in the CICA tends to favour the narrow interpretation. This purpose was identified by the Court of Appeal in Baker to be that 'the victim should exhaust other means of compensation available to him or her before there is any recourse to payment from the public purse'.[91] This purpose was discerned by the Court of Appeal not just from CICA s 42, but also CICA s 21, which requires an application to enforce other remedies before proceeding with an application. It relevantly provides in s 21(1):

[166]

The two types of claim identified are within both interpretations. As to the narrow interpretation, they are amounts to which the applicant is entitled because of or on account of the injury suffered as a consequence of the commission of the offence. The injury would be the basis of the cause of action in CICA s 21(1)(a) and the basis of the claim under the contract of insurance in CICA s 21(1)(b).
The reason why the relevant purpose or object of CICA tends to favour the narrow interpretation is that payments received under NDIS do not relate to any of the 'losses' identified in CICA s 6(2) (quoted at [67]). As set out above ([101] - [106]) the purposes for which NDIS funding may be provided are of a different character than 'compensation' for an injury or loss. Those purposes don't include medical expenses or loss of income. Nor do they include any general amount for pain and suffering and non-pecuniary loss. Rather, the purposes focus on empowering and facilitating a person under a disability to enjoy 'full and effective participation in society on an equal basis with others'. So NDIS funding is not another form of compensation for the types of loss to which may be claimed under the CICA which a claimant is required to exhaust before making an application under that Act.
The point in the preceding paragraph is illustrated in the present case. Mr Richards has received compensation for medical expenses from RiskCover which, consistent with the purpose identified, should be deducted from his CICA compensation. However, the amounts which he has received and will receive from NDIS are axiomatically outside that to which he is entitled from RiskCover (otherwise RiskCover would have paid it as a medical expense). They are also forms of support which do not on their face fit well within in the description in CICA s 6(2) of direct losses or consequences; they have more of an indirect character. NDIS is, in my view, not properly characterised as a source of compensation which a claimant such as Mr Richards should be required to exhaust before recourse from the public purse. The wide interpretation does not respect this distinction; the narrow one does.
For this reason, in my view, the narrow interpretation more closely reflects what the legislature may be taken to have intended. In summary, the phrase 'for the injury or loss' in CICA s 42(3) requires the amount received to have been because of, or on account of, the injury or loss suffered as a consequence of the commission of the offence the subject of the claim for compensation under the CICA.
An example illustrates the common sense behind this conclusion I have reached. Assume A has been impaired by autism spectrum disorder from birth. He has been the recipient of NDIS funding since 2015, at a rate of $40,000 per annum. A small portion of his funding is for occupational support for a generalised anxiety disorder along the lines of that provided to Mr Richards which I have set out at [100]. A is assaulted in 2020. He suffers a broken jaw which requires surgical repair with plates, which leaves him with some long-term pain, discomfort and disfiguration. The assault and its ongoing sequalae aggravate A's generalised anxiety disorder.[92] His assailant is convicted. A makes an application for criminal injuries compensation. Applying the principles which I have set out above, the compensation would include the medical expenses arising directly from the broken jaw and aggravation of the generalised anxiety disorder. Assume that this includes an amount of $10,000 for past and future treatment and rehabilitation for the jaw, and $5,000 for past and future psychological counselling for aggravation to the generalised anxiety disorder. General damages would be likewise limited but say $20,000. Assume there is $20,000 by way of economic loss as A could not work while recovering from surgery for his broken jaw. The hypothetical award of compensation is $55,000.
On the narrow interpretation of 'for the injury or loss' I prefer, NDIS funding is not deducted. The amount received from NDIS is because of or on account of the fact that A is a person with a disability. It is not received because of or on account of the fact that A suffered an injury for which a claim under CICA may be made.
On the wide interpretation, the fact that the NDIS funding includes funding for a service which overlaps with the loss, being support for the generalised anxiety disorder, is sufficient for the entirety of the NDIS funding to be deducted from the award of compensation. As I have said, any degree of overlap is sufficient. The decision in Baker makes it clear that neither the received amount nor the compensation that would otherwise be awarded can be dissected. So A is left without compensation for his past and future psychological counselling, medical treatment, rehabilitation, loss of income and general pain and suffering. These are amounts that cannot be claimed under NDIS, so there is no risk of double-dipping. That does not seem to me to be the result intended by Parliament, nor a just one.
Accordingly, I am of the view that CICA s 42(3) does not require the court to deduct from the amount of compensation to which Mr Richards is otherwise entitled the amount he receives by way of NDIS funding.

AA v ARW

At a glance

Court

Decision date

Source

Judgment (225 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (7)