Aon Risk Services Australia Ltd v Australia National University

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Application for extension of time - Application made six years out of time - Mother suffering mental and nervous shock arising from death of son - Offender acquitted of wilful murder on ground of unsoundness of mind

Criminal Injuries Compensation Act 2003

Criminal Law (Mentally Impaired Accused) Act 1996

Amicus Curiae : Mr N Barron appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Amicus Curiae : State Solicitor for Western Australia

Aon Risk Services Australia Ltd v Australia National University (2009) 258 ALR 14; [2009] HCA 27

B v B [2004] WASC 6

Bird v The Commonwealth of Australia [1988] HCA 23; (1998) 165 CLR 1

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Clayton v Aust (1993) 9 WAR 364

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

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

Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479

Garton v McCormack (2002) 30 SR (WA) 307

Gleeson v Lee (1996) 18 SR (WA) 353

Hatfield v Under Secretary for Law (Unreported, WASCA, Library No 4012; 15 December 1980) 5

Hinchcliffe v Hinchcliffe [2010] WADC 78

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

McHenry v The State of Western Australia [No 2] [2010] WASCA 71

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

Munsell v The Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 970275, 12 September 1997) 3

Re Jackamarra [2014] WADC 9

Re Karra (1984) 2 SR (WA) 97

Re RT (2006) 47 SR (WA) 197

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

S v Neumann (1995) 14 WAR 452

Smith v The Executive Director of the Department of Conservation and Land Management [1999] WASC 240

SW v BB [2010] WADC 86

TAW v NJS [2011] WADC 187

1 On 29 January 2014, the appellant (Mrs McHenry) made an application (application) to the assessor of criminal injuries compensation (assessor) for criminal injuries compensation pursuant to s 12(1) of the Criminal Injuries Compensation Act 2003 (WA) (Act).

2 The application is in respect of an incident which occurred on or about 5 November 2004.

(a) noted that the application had been brought out of time;

(b) concluded that there was no sufficient explanation as to why Mrs McHenry had not pursued the application with the 'necessary vigour'; and

(c) consequentially, refused to extend the time in which the application could be brought, as it would not have been just to do so.

4 On 11 March 2014, Mrs McHenry filed a notice of appeal against the decision of the assessor in refusing to extend the time in which the application could be brought.

5 The notice of appeal was filed within the time allowed under s 55(3) of the Act.

6 The appellant Mrs McHenry is aged 78 years, her date of birth being 11 November 1935. On 5 November 2004 at Quairading her youngest son, Andrew McHenry, was killed by his brother and Mrs McHenry's other son, Keith McHenry, following an argument between the two of them in which Keith struck Andrew several times to the head with a brick doorstop.

7 On 5 November 2004, Keith was charged with the murder of Andrew. The charge was later upgraded to one of wilful murder and on 16 June 2006 Keith was convicted of wilful murder.

8 An appeal against the conviction on the ground Keith should have been acquitted because he was of unsound mind at the time of the killing was allowed by the Court of Appeal on 28 April 2010 in McHenry v The State of Western Australia [No 2] [2010] WASCA 71. The conviction for wilful murder was set aside and a judgment of acquittal for the offence of wilful murder (alternatively, murder) on account of unsoundness of mind was entered. A custody order pursuant to s 21(a) of the Criminal Law (Mentally Impaired Accused) Act 1996 was made in respect of Keith. Keith remains detained in custody pursuant to that order.

9 In support of her application for criminal injuries compensation, Mrs McHenry filed a statement dated 24 January 2014. She filed a further statement dated 24 January 2014 addressed to the Chief Assessor of Criminal Injuries Compensation addressing the issue of the delay in filing the application for compensation and requesting an extension of time in which to lodge the application pursuant to s 9(2) of the Criminal Injuries Compensation Act 2003 (the Act).

10 An application for compensation under the Act must be made within three years after the date on which the offence to which it relates was committed or, if it relates to more than one offence, the date on which the last of those offences was committed: s 9(1) of the Act.

11 However, an assessor may allow an application for compensation to be made after the three year period if he or she thinks that it is just to do so, and may do so on any conditions that the assessor thinks it is just to impose: s 9(2) of the Act.

12 Given that an appeal is a hearing de novo, the court is required to consider again whether an application should be permitted because the time limit for making the application has expired: Hinchcliffe v Hinchcliffe [2010] WADC 78, [24].

13 The incident on which the application is based occurred on 5 November 2004.

14 The application was filed with the assessor on 29 January 2014, approximately nine years after the incident in question, and six years after the expiration of the time period allowed for the making of an application under the Act in respect of it.

15 The onus is on the appellant to explain to the satisfaction of the court the reasons for the delay in making an application within three years after the commission of the offence: Munsell v The Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 970275, 12 September 1997) 3; Re Jackamarra [2014] WADC 9, [19].

16 There are strong policy reasons for requiring that limitation periods be complied with: Re RT (2006) 47 SR (WA) 197, [30]; Smith v The Executive Director of the Department of Conservation and Land Management [1999] WASC 240, [20 - 21].

17 The time limit is a substantive provision laid down by the Act itself and is not a mere procedural time limit imposed by the rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the applicant is thus no triviality and she must make a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time: Clayton v Aust (1993) 9 WAR 364, 366 (Malcolm CJ, Rowland and Franklyn JJ agreeing); Re RT [31].

18 Merely because the refusal of the application means that the applicant can never litigate his or her claim is not, by itself, enough to warrant an extension of time because if it were, there would be no discretion to be exercised: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 549 ( Toohey and Gummow JJ).

19 In Gleeson v Lee (1996) 18 SR (WA) 353 at 354-355, Chief Judge Hammond held that an application for an extension of time in which to appeal a decision of the assessor should be determined according to the four factors referred to by Kennedy J, in relation to an application for an extension of time to appeal from a judgment, in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198 as, first the length of the delay, secondly the reasons for the delay, thirdly whether there is an arguable case and fourthly the extent of any prejudice to the respondent. He added that in a particular case there may be additional factors. I note that in this case the application for an extension of time is not in relation to an appeal from a decision of the assessor, rather it is an application for an extension of time to make the application for compensation in the first place.

20 In Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, 480 McHugh J considered whether an application for an extension of time in which to file a notice of appeal ought be granted. The applicant relied upon a Rule (O 60 r 6) in the Rules of the High Court (the Rules) which provided that the court may enlarge the time appointed by the Rules for doing an act upon such terms if any as the justice of the case may require. McHugh J said the object of the rule was to ensure that those Rules which fix times for doing acts do not become instruments of injustice and the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. With reference to the specific Rule relied upon McHugh J said the discretion to extend time can only be exercised in favour of an applicant upon proof that strict compliance with the time limit will work an injustice upon the applicant, having regard to:

(d) the consequences for the parties of grant or refusal of the application for an extension of time;

(f) the fact that upon the expiry of the time for appealing, the respondent had a vested right to retain the judgment.

21 As I have noted, the above cases were concerned with applications for an extension of time in which to appeal under procedural rules of the court. In listing the factors which a court should have regard to, McHugh J in Gallo v Dawson was considering the wording of O 60 r 6 of the Rules of the High Court. In determining whether the factors considered as relevant to the exercise of a discretion to extend time in which to appeal in Esther Investments Pty Ltd v Markalinga Pty Ltd and in Gallo are relevant to the exercise of the discretion to extend time pursuant to s 9(2), it is first necessary to consider the wording of the rules of the court there being considered and whether the wording of s 9(2) of the Act 'if he or she thinks it is just to do so', is similar to the wording of O 60 r 6.

22 As I have earlier noted, the time limit provided by s 9(2) is a substantive provision and is not a mere procedural time limit imposed by the rules of a court. Where there is a discretion to extend time in accordance with procedural rules, the discretion might be more readily exercised in favour of an applicant than is the case where the discretion to extend time is stipulated and contained in the Act itself rather than in rules of the court. Further, different considerations will apply in the exercise of a discretion to extend time in which to appeal where there are competing parties in litigation and where a respondent has a vested right to retain the judgment and when in more recent times there has been a greater emphasis on case management of litigation and the elimination of delay: Aon Risk Services Australia Ltd v Australia National University (2009) 258 ALR 14; [2009] HCA 27.

23 In SW v BB [2010] WADC 86 Schoombee DCJ when considering whether to exercise a discretion to extend time to appeal pursuant to s 55(4) of the Act decided to apply the factors listed in Gallo on the basis the wording of O 60 r 6 of the Rules of the High Court was similar to the wording of s 55(4) of the Act. Both s 55(4) and O 60 r 6 of the Rules of the High Court are concerned with the discretion to extend time in which to appeal, rather than with the exercise of a discretion to extend time in which to make the compensation application.

24 The wording in s 9(2) and s 55(4) is similar. Section 9(2) contains the wording 'if he or she thinks it is just to do so' and s 55(4) contains the wording 'it is just to do so ... may allow an appeal'. Although the wording in each section is similar, in my view different considerations apply when deciding whether to exercise a discretion to extend time pursuant to s 55(4) rather than pursuant to s 9(2). As Schoombee DCJ in SW v BB observed, the factors listed in Gallo overlap to a large extent with the factors referred to in Esther Investments Pty Ltd. The factors listed in Gallo and Esther Investments Pty Ltd are more appropriate factors to consider when deciding whether to extend the time in which to appeal under s 55(4) than in considering whether to extend time under s 9(2) in which to make a compensation application.

25 In my view some of the factors identified in Gallo and Esther Investments Pty Ltd have no relevance to the exercise of a discretion under s 9(2). In particular, factors such as the history of the proceedings, the nature of the litigation and the fact that a respondent has a vested right to retain the judgment, are not in my view relevant considerations in the exercise of a discretion under s 9(2). In Mrs McHenry's case given there are no relevant proceedings or litigation, given she has not been granted an extension of time in which to make the application, and there are no parties and no respondent with a vested right to retain the benefit of the judgment or the benefit of the assessor's refusal to extend time in which to make the compensation application.

26 Therefore such considerations do not govern the exercise of the discretion to grant an extension of time to make a compensation application under the Act. Further, the strength of the claim will, generally, only be material to the exercise of the discretion in hopeless or vexatious claims: Re RT, [33] (Goetze DCJ).

27 In considering whether to grant an extension of time in which to make the application, the overriding consideration pursuant to s 9(2) is whether it is just to do so (emphasis added).

28 In her statement dated 24 January 2014 addressed to the chief assessor, Mrs McHenry says she was unaware she could make a claim for criminal injuries compensation arising from the offence committed against her son Andrew until August 2013, after her sister and daughter arranged for her to obtain legal advice, when she spoke to lawyers following which the current application was made.

29 A threshold issue arises as to what is a relevant event from which the three year period commences and in which the application must be made. Section 9(1)(a) of the Act reads:

(1) A compensation application must be made within 3 years after the date on which

30 'Offence' is defined in s 3 as meaning 'an alleged offence or a proved offence'. 'Alleged offence' is defined as meaning 'a crime, misdemeanour or simple offence of which no person has been convicted'. 'Proved offence' is defined as meaning 'a crime, misdemeanour or simple offence of which a person has been convicted'.

31 Following the decision of the Court of Appeal in McHenry v The State of Western Australia [No 2] in which Keith was acquitted of the offence of wilful murder on the grounds of unsoundness of mind, no person has been convicted of a crime. Therefore, the relevant offence for the purposes of s 9(1)(a) is an 'alleged offence' as defined in s 3. It might be argued, until the decision of the Court of Appeal was delivered there was no 'offence', so that the three year period in which compensation application was required to be made did not expire until three years after 28 April 2010, that is on 28 April 2013. However, s 9(1)(a) refers to the date on which an offence, to which the compensation application relates, was committed. That is, when the offence was committed. In my view, s 9(1)(a), correctly construed, means that the relevant three year time period commences from the time when the incident occurred rather than from the time when the defined offence is proved by a judgment of conviction, or as the case may be, a judgment of acquittal. The expression 'the offence ... was committed' means when the incident which gives rise to an offence was committed rather than when a court by a judgment determines an offence was committed.

32 Although an application for compensation must be made within three years from the date an offence was committed, it would normally be the case that the application cannot be finally determined until after there has been a relevant judgment of conviction or acquittal so as to establish the basis upon which compensation can be claimed in accordance with pt 2 div 2 of the Act. In this case, Mrs McHenry's application is made pursuant to s 14, that is, where a person is found not guilty of a crime on account of unsoundness of mind. Therefore, although she was required to file or make the application by no later than 4 November 2007, she was obviously unable to proceed with the application pursuant to s 14 until after the judgment of the Court of Appeal.

33 As I have explained above the overriding consideration pursuant to s 9(2) of the Act in deciding whether an extension of time ought to be granted is whether it is just to do so. In deciding whether it is just to grant an extension of time in which to bring the application, although I have found some of the factors considered in Esther Investments Pty Ltd and Gallo are irrelevant to the exercise of the discretion under s 9(2), I have regard to the following factors.

The history of and background to the proposed application / length of the delay

34 Mrs McHenry rightly concedes the length of the delay in making the application, of approximately six years and two months, is considerable but submits that delay should be viewed in the context of the Court of Appeal delivering its judgment on 28 April 2010 and Mrs McHenry not being able to proceed with her application until after that time. When viewed in that light, it is submitted the delay is not as substantial.

35 It is further submitted the delay in bringing the application is explained by the nature of the injury suffered by Mrs McHenry for which she claims compensation. In her statement filed in support of her application, Mrs McHenry explains the incident had a significant impact upon her causing her to become socially withdrawn, lack motivation and suffer feelings of guilt, anger, embarrassment and shame. She was overwhelmed with grief.

36 Mrs McHenry was not seen by a doctor until after she consulted solicitors in August 2013 who referred her to a psychiatrist Dr Ng who reviewed her on 26 November 2013 and provided a report to the solicitors of the same date. Dr Ng describes her, after she found out one son had been murdered by another son, as being in shock and disbelief and not being able to think.

37 Although he was unable to formally diagnose the psychiatric condition, Dr Ng concluded Mrs McHenry had suffered a severe grief reaction which because of ongoing symptoms had become prolonged and abnormal. He expressed the view that Mrs McHenry's sense of personal wellbeing, self-esteem and self-confidence had been moderately severely impaired for two to five years after the incident and currently remained impaired.

38 I accept Mrs McHenry was traumatised by the death of her son Andrew which was compounded by learning that he was killed by her other son Keith. I accept that because of the trauma suffered by her, her ability to cope with her grief, to make reasoned decisions and to be motivated to seek legal advice regarding the possibility of a claim for compensation was impaired for up to five years, which largely explains the substantial delay in bringing the application and for failing to bring the application within the three year time period, that is, by no later than 4 November 2007. Although Mrs McHenry does not in her statement say so, I infer from her description of the symptoms suffered by her and their impact upon her day-to-day life, and from Dr Ng's opinion, that until the initial severity of her impairment receded, Mrs McHenry was not well enough to make the application for compensation. Although there remains a further substantial delay from the time her condition improved until she took any action, I am satisfied, having regard to Dr Ng's opinion, that because Mrs McHenry remains impaired, the further delay before the application was made is understandable and is not unreasonable.

The conduct of the parties / the reasons for the delay

39 I have largely dealt with this factor when considering the history of the matter. In short, I am satisfied the delay was caused by the nature of the trauma and injury suffered by Mrs McHenry, for which she claims compensation, which impaired her ability to make properly reasoned decisions and to seek legal advice regarding any entitlement to claim compensation. The fact that Mrs McHenry was unaware of a right to make a claim for compensation is not by itself and without more a sufficient basis upon which a discretion being exercised in her favour: Re Jackamarra. However, the nature of Mrs McHenry's medical condition and the consequences of the symptoms suffered by her distinguishes her circumstances from those of a person simply being unaware of a right to make a claim for compensation. She was too unwell to give thought to whether she might have an entitlement to compensation and whether to seek advice in relation to the matter.

40 Once she sought advice from solicitors they quickly arranged for her to be reviewed by a psychiatrist Dr Ng. Clearly, until medical evidence as to Mrs McHenry's medical condition was obtained, a decision as to whether to make a compensation application could not be made. The application for compensation was made soon after Dr Ng's medical report was received. There is nothing in the conduct of Mrs McHenry which disentitles her to proceed with her application for compensation.

41 The introductory words to the Criminal Injuries Compensation Act provide it is 'An act to provide for the payment to victims of offences in some circumstances, and for related matters'. The Act is remedial in character and should be construed beneficially: Bird v The Commonwealth of Australia [1988] HCA 23; (1998) 165 CLR 1.

42 In my view the remedial purpose of the Act, construed beneficially, supports a conclusion that in order to do what is just the discretion to grant an extension of time should be exercised in favour of Mrs McHenry.

The consequences for the parties of the grant or refusal of an extension of time / the extent of any prejudice to the respondent

43 There is no respondent to this application. Counsel appeared on behalf of the chief executive officer as amicus curiae. The chief executive officer is not a party to the appeal.

44 Further, because Keith was acquitted of the offence of wilful murder on the grounds of unsoundness of mind, there is no right of recovery against Keith under s 49 of the Act for any compensation awarded to Mrs McHenry as he was not convicted of an offence. Keith was not served with a copy of the application for compensation. Therefore the only party who will suffer consequences or prejudice if an extension of time is refused is Mrs McHenry. The only consequence of a grant of an extension of time and an award of compensation is that pursuant to s 46 of the Act the Consolidated Account is charged with payment of any award of compensation.

45 Therefore this factor has limited relevance in my consideration of whether to grant Mrs McHenry an extension of time, but to the extent it is relevant, it leans in favour of an extension of time being granted.

The proposed prospects of the compensation application succeeding

46 In considering this factor, I am required to consider whether if an extension of time was granted, Mrs McHenry would succeed in establishing an entitlement to an award of compensation. In order to establish an entitlement to compensation, Mrs McHenry must prove she has suffered 'injury' in consequence of the commission of an offence. Bodily harm and mental and nervous shock are included in the definition of 'injury' in s 3 and s 14(2) of the Act.

47 The phrase 'mental or nervous shock', comprehends any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence or offences, or associated with the commission of the offences, as those events impact on the mind or nervous system. It must be more than a mere emotional reaction, being something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury. The term includes distress, horror, disgust and other similar adverse mental reactions but excludes mere fright, humiliation or anguish: Hatfield v Under Secretary for Law (Unreported, WASCA, Library No 4012; 15 December 1980) 5; S v Neumann (1995) 14 WAR 452, 461; M v J and J v J (Unreported, WASCA, Library No 920598; 19 November 1992).

48 In assessing mental and nervous shock the Court must attempt to make a distinction between direct 'impact damage' and further damage that may be suffered by such things as the reaction of the victim's friends and family, court proceedings or public attention: Re Karra (1984) 2 SR (WA) 97; RJE v Bandy (Unreported, WASCA, Library No 1365; 31 May 1974); Garton v McCormack (2002) 30 SR (WA) 307, 311.

49 An award of compensation for mental and nervous shock cannot be made to a secondary victim unless they were personally present when or immediately after the offence was committed or, alternatively if, immediately before the offence was committed the applicant for compensation was the parent or step-parent of a person who died as a result of the commission of the offence or was a close relative of a person who suffered injury or died as a consequence of the commission of the offence and was living with that person: s 35 of the Act.

50 In order for an applicant to be entitled to compensation it is not necessary for the offences which are the subject of the application to be the sole cause of the injury: Fagan v The Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673; S v Neumann (463 - 464); B v B [2004] WASC 6 [30].

51 If it is not possible to disentangle the consequences of non-compensable events from the consequences of compensable offences the applicant is entitled to compensation for the full injury and loss suffered if the applicant has established that the compensable offences did contribute materially to the applicant's injury or loss: MJN v MAJS (2003) 35 SR (WA) 219 [47] - [52]; TAW v NJS [2011] WADC 187 [84].

52 I have earlier outlined Mrs McHenry's description of the impact on her of learning one of her sons had been murdered by another of her sons and Dr Ng's diagnosis of her condition. Ms McHenry is a secondary victim for the purposes of s 35 being a parent of the person who died as a result of the commission of an offence as defined in s 3, relevantly an 'alleged offence.' In my view, the evidence establishes Mrs McHenry has suffered injury being mental and nervous shock as a consequence of the commission of an offence. I accept Dr Ng's opinion that Mrs McHenry's personal wellbeing, self-esteem and self-confidence was moderately to severely impaired for at least two to five years and currently remains impaired and that Mrs McHenry has suffered a severe grief reaction which has become prolonged and abnormal. In my view Mrs McHenry has suffered more than a mere emotional reaction to the incident in which one of her son's was killed by another son and the enduring character of her condition including the ongoing impairment of her personal wellbeing, self-esteem and self-confidence satisfies the meaning of 'mental or nervous shock'.

53 Further, I am satisfied the enduring or ongoing impairment suffered by Mrs McHenry is the consequence of the impact of the incident in which her son Andrew was killed which has caused trauma to Mrs McHenry's mind or nervous system. In his report of 26 November 2013 Dr Ng expresses the opinion that Mrs McHenry's symptoms were caused by the death of her son and also by the fact that the alleged murderer was her other son. By s 35(2)(d) of the Act an assessor must not make a compensation award for mental and nervous shock unless the victim was the parent of a person who died as a consequence of the commission of the offence. Therefore a parent who suffers mental and nervous shock as a consequence of their child committing an offence by unlawfully killing another is not entitled to an award of compensation. Therefore to the extent Mrs McHenry may have suffered mental and nervous shock as a result of learning her son Keith caused her son Andrew's death, that is a non-compensable event which does not entitle Mrs McHenry to compensation.

54 I am satisfied the event which principally and materially contributed to and caused Mrs McHenry's mental and nervous shock is the death of her son rather than her other son being the cause of the death. Further, to the extent that learning it was her son Keith who caused the death of Andrew has contributed to her medical condition, it is not possible to disentangle the consequences of that fact from the consequences of the death of Andrew to the mental and nervous shock suffered by Mrs McHenry. I am therefore satisfied Mrs McHenry is entitled to an award of compensation to the full extent to which she has suffered mental and nervous shock notwithstanding that the fact her other son caused the death may have contributed to her condition.

55 Therefore Mrs McHenry will succeed in her application for compensation if I were to grant an extension of time.

Will an injustice be suffered if an extension of time is refused

56 This factor must be considered by reference to my finding that Mrs McHenry has suffered mental and nervous shock caused by the death of her son Andrew, and that her medical condition explains the reason for the delay in making the compensation application. To adopt the language of McHugh J in Gallo I am satisfied Mrs McHenry has proved that strict compliance with the time limit imposed by s 9(2), in the context of remedial legislation which must be construed beneficially, will work an injustice upon her which would be contrary to the wording in s 9(2).

57 I conclude in all of those circumstances, including the fact that the Court of Appeal in McHenry v The State of Western Australia (No 2) did not deliver its decision until 28 April 2010, before which Mrs McHenry could not have proceeded with her application for compensation had she commenced the application in time, and in which context I accept the delay must be viewed so that the significance of the delay is lessened, it is just to grant an extension of time. I therefore allow the application for an extension of time in which to make the compensation application and grant an extension of time to 24 January 2014.

58 As I have previously outlined, Mrs McHenry makes a claim for compensation on the basis she has suffered mental and nervous shock. I have already summarised Mrs McHenry's statement regarding the impact upon her of the death of one son caused by another son. She also states that the incident continues to have an impact on her causing her to frequently cry and continually feel sad. She is sad for the loss of Andrew but also sad for Keith. The incident has split her family. Her sleep continues to be interfered with and her levels of motivation remain impaired.

59 I accept the circumstances in which her son Andrew was killed by her son Keith have had a traumatic impact upon Mrs McHenry which has severely interfered with her enjoyment of life and her ability to function on the same level on a day-to-day basis as she previously functioned. I accept the trauma of the incident has caused Mrs McHenry difficulties in coping with her day-to-day normal living activities and will continue to do so into the future. I am satisfied the nature of Mrs McHenry's condition satisfies the definition of 'injury' and that she has suffered mental or nervous shock as a consequence of the incident in which her son Andrew was killed.

60 In my view a reasonable award of compensation pursuant to s 30 is $17,500.

61 Mrs McHenry also claims the sum of $1,600 for psycho-therapy being the cost to her after deduction of the Medicare rebate. The claim is based upon the recommendation of Dr Ng that Mrs McHenry would benefit from at least 14 to 20 sessions of psycho-therapy which would occur at least once every two to four weeks. The sum of $1,600 is based upon 20 sessions of psycho-therapy.

62 In my view it is reasonable to allow for 15 sessions of psycho-therapy. The cost to Mrs McHenry over and above the Medicare rebate is $80 per session, that is, $1,200 and I award her that sum in respect of future medical expenses.

63 Pursuant to s 6(2)(a)(ii) of the Act Mrs McHenry also claims the sum of $1,474 for the report fee of Dr Ng. In my view the sum claimed is reasonable and I therefore allow it.

64 In his written submissions, Mrs McHenry's counsel made a claim for expenses pursuant to reg 5 of the Criminal Injuries Compensation Regulations 2013. However, he abandoned that claim during the hearing. Accordingly, I make no award in respect of expenses.

65 I therefore award Mrs McHenry compensation as follows: