Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Coram : CHIEF ASSESSOR OF CRIMINAL INJURIES COMPENSATION

Criminal injuries compensation appeal - Additional evidence - Physical and psychological injury

Criminal Injuries Compensation Act 2003

Amicus Curiae : Ms H Richardson appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Amicus Curiae : State Solicitor for Western Australia

Asjes v Assessor of Criminal Injuries Compensation (Unreported; WADC, Library No 4169, 3 September 1994)

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

BAS v The Estate of NAS [2000] WASCA 270

Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613

CKM [2008] WADC 79

De Florenca v Hayden [2007] WADC 54

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

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

Gullelo v Halloran [2008] WADC 145

Hinchcliffe v Hinchcliffe [2010] WADC 78

Krukiewicz v Hayes [2004] WADC 242

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

Michael v Panetta (1994) 10 SR (WA) 323

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

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Re, Tilbury [2010] WADC 46

Reed v Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 970170)

S v Neumann (1995) 14 WAR 452

SW v BB [2010] WADC 86

TAW v NJS [2011] WADC 187

1 This is an appeal from a decision of the Chief Assessor for Criminal Injuries Compensation awarding the appellant $918 for injuries and loss sustained as a result of an assault and robbery occurring on 5 November 2010 at Victoria Park.

2 As the offender was unknown no person has been charged with the commission of the alleged offence and compensation was awarded pursuant to s 17(2) of the Criminal Injuries Compensation Act 2003 (the Act).

3 The award compromised of $500 for non-pecuniary loss and $418 for treatment expenses.

4 The appeal has been lodged within the permitted time.

5 The appellant seeks to introduce additional evidence, being her affidavit, the reports of Dr Frederick Ng dated 31 January 2012, and Dr Alaster Turner dated 26 March 2012 and receipts for those reports.

6 The court has a general discretion to admit further evidence (s 56(1)) considering the beneficial purpose of the Act and the informal nature of hearings before an assessor, the additional evidence should be received unless there is a reason not to: Re, Tilbury [2010] WADC 46; Hinchcliffe v Hinchcliffe [2010] WADC 78; TAW v NJS [2011] WADC 187.

7 An appeal under the Act is a hearing de novo: Gullelo v Halloran [2008] WADC 145.

8 The court can confirm, vary or reverse the assessor's decision either in whole or in part: s 56(2)(b).

9 Accordingly, it is open to the court at the appeal to increase or decrease the award even if there is no cross-appeal: Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221.

10 The maximum compensation payable under the Act is $75,000 (s 31(1)) which is a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463.

11 The appropriate manner to assess an application is to apply the ordinary principles for assessment of damages, bearing in mind the definition of 'injury' and 'loss' in the Act and award that sum subject to the jurisdictional limit imposed by the Act; 'M' v 'J' (Unreported, WASC, Library No 920598, 19 November 1992) (Scott DCJ).

12 The court must have regard solely to the injury suffered by the applicant in consequence of the commission of the offence and not assess the quantum to punish the offender or to express sympathy for the victim: B v W (1989) 6 SR (WA) 79.

13 Although it is suggested that it is not appropriate to compare other awards because of this court's inability to know that they are comparing like with like (De Florenca v Hayden [2007] WADC 54 [17] (Yeats DCJ); Asjes v Assessor of Criminal Injuries Compensation (Unreported; WADC, Library No 4169, 3 September 1994) (Commissioner Nisbet), I have previously, in TAW v NJS, expressed a preference for the view expressed by his Honour Judge Jackson QC in Michael v Panetta (1994) 10 SR (WA) 323 that:

... To suggest that there is something wrong with the range being referred to before a judge would seem to me to limit the appropriate information available.

... I can see no reason why it is inappropriate for counsel to refer a judge to a range of damages ... (323 - 324)

14 Bodily harm and mental and nervous shock are included within the definition of injury: s 12.

15 'Mental and nervous shock' comprehend any malfunction of the person which can be seen to be consequence on 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.

16 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.

17 It includes distress, horror, disgust and adverse mental reactions but excludes mere fright, humiliation or anguish: S v Neumann (461).

18 The court must attempt to make a distinction between what has been described as impact damage and further damage that may be suffered as a result of reaction or attitude of the victim's friends and family, court proceedings or public attention: Garton v McCormack (2002) 30 SR (WA) 307, 311.

Circumstances leading to the complainant's injury

20 On 4 November 2010 she went to the Burswood Casino and shortly after midnight decided to leave.

21 She was escorted by an elderly male friend and they walked to his vehicle and he then drove to her motor vehicle. When she left his vehicle she walked towards her car carrying her handbag and car keys.

22 Regrettably she was attacked by two unidentified males who tried to pull the handbag from her. During the struggle she fell to the ground, keeping hold of the bag. One of the unknown offenders stepped onto her leg. She screamed as did her elderly friend. The two unknown males were able to obtain possession of the handbag, hand it to another person and decamp from the scene.

23 The appellant immediately reported the matter to security who took her to a medical room, called an ambulance and she was taken to Royal Perth Hospital.

24 I am satisfied on the balance of probabilities that the alleged offence occurred and the appellant has suffered the claimed injury and loss as a consequence: BAS v The Estate of NAS [2000] WASCA 270 [11].

25 In her statement to the police the appellant says she had a graze to the top of her right foot, a graze to her right knee, grazing to her right thigh and grazing to the arm just below her elbow and on the underneath of her arm. She also had bruising and swelling in these areas.

26 In her affidavit she deposes to being shocked and scared and fearing for her safety at the time of the attack. Although taken to Royal Perth Hospital, she discharged herself after two hours as she did not wish to wait any longer for treatment.

27 After the incident she said she was sore, however her condition improved over a two to three-month period. During that time she said she was not able to walk properly.

28 She said that it took around about a month for her skin to heal and repair and says she still suffers intermittent pain in her right knee particularly in cold weather.

29 She has two areas of scarring, being an area on the right knee and two areas on the top of the right foot. The photographs attached to her affidavit show these scars.

30 She deposes that on occasions the scarring does concern her and on other occasions she thinks she is worrying about it for no good reason.

31 She said her anxiety and other symptoms have improved but not resolved over time. In particular she found it difficult to leave her home for a number of months after the assault as she was anxious about being be attacked again, she also says she is anxious whenever she sees young men, as her attackers were young men, and is over vigilant about her own safety.

32 She still suffers on occasions from sleeping difficulties and anxiety and on occasions takes medication for her knee and to assist her sleeping.

33 Dr Chhajed's report of 10 November 2010, which was provided to the assessor, refers to the appellant having abrasions on her right foot, right knee and right thigh, pain in her right leg and suffering difficulty in walking.

34 The appellant was certified as unfit for work for three days and the injury was managed by being inspected, cleaned and dressed by a nurse on 10 November and 12 November.

35 The additional evidence provided to this court includes a medical report from the plastic surgeon Dr Turner dated 26 March 2012 in which he describes the injuries as:

... A deep abrasion to the anterior aspect of her right knee and although this healed without surgical intervention, it has left a permanent scar which would not be improved by surgical revision ...

... A triangular scar over the anterior aspect of the right knee. The transverse length of the upper aspect of the triangle is some 1 1/2 cm in length and the vertical length of the triangular scar is 2 1/2 cm in length. I would assess the permanent disfigurement of this patient's body as a whole excluding head and neck is approximately 3 1/2%.

37 He made no reference to the two scars at the top of the appellant's right foot.

38 Dr Ng's, a psychiatrist, report of 31 January 2012 was also provided to this court.

39 Dr Ng said the appellant developed pathological anxiety, to a moderate extent, and some associated pathological depressive symptoms to a mild extent. He described this as a psychiatric symptom of at least an anxiety disorder not otherwise specified (with some components of the reported anxiety resembling post-traumatic stress disorder) along with associated depressive symptoms.

40 Encouragingly he noted her condition had improved with the passage of time but said she still had ongoing anxiety and symptoms which were persistent to this day.

... As it has now been just over a year since the incident in question and she reportedly continues to report ongoing residue psychiatric symptoms, more likely than not she will have some degree of ongoing residue psychiatric symptoms in the form of an anxiety and being vigilant of her surroundings, fearing young people (especially males) who may be a threat to her especially if they move suddenly in her vicinity into the foreseeable future.

She will be wary and cautious of certain situations such as if there were youths who were males who looked suspicious.

42 He believed she would benefit from six to 12 sessions of psychotherapy to be undertaken once every two to three weeks at a cost of $315 per session, although he reported that there may only be some marginal improvement with the passage of time and the psychotherapy.

43 I am satisfied her anxiety disorder and associated symptoms may in both the legal sense and in common parlance be described as an injury

The previous assault and robbery of 26 April 2009

44 Regrettably, the appellant had also been assaulted and robbed on 26 April 2009 again outside the Burswood Casino.

45 On that occasion she was assaulted by two females and suffered scratches and bruising over her arms and legs and grazes and bleeding on her face and nose.

46 She received an award of $6,607 from the Assessor for Criminal Injuries Compensation on 26 November 2009.

47 The appellant said that at the time of the 2010 assault her health was good and she had recovered completely from the physical injury, anxiety and fears caused by the 2009 assault.

48 Notwithstanding this, Dr Ng said she may have been somewhat predisposed to the onset of her psychiatric condition, as she experienced some anxiety over the previous incident, although he noted she told him her injuries had totally resolved.

49 However Dr Ng was satisfied the most precipitating contributing factors to the onset of her current physical condition was the 2010 incident and its physical sequelae.

50 Ms Richardson, on behalf of the amicus curiae, quite properly drew my attention to some of the medical reports used in the appellant's 2009 criminal injuries application. One of the reports refers to bilateral knee tenderness and the appellant suffering emotional disturbance and anxiety as a result of the assault and being fearful of another assault and another report refers to there being anxiety in her past history.

51 I am satisfied the appellant is an honest and truthful. She deposes in her affidavit that she has recovered completely from the physical injuries and the anxiety and fear caused by the 2009 assault. I accept her affidavit as truthful, she is prepared to disclose to the court matters which are favourable and potentially unfavourable to her. For example, when dealing with her current scarring she is frank and says:

Sometimes my scars bother me because I don't like how it looks and I try to cover it up. Other times I think I'm being silly about it because I'm not that young anymore.

52 I have no hesitation in accepting her evidence both in relation to the scarring and in relation to recovering from the physical injuries and the anxiety and fear caused by the 2009 assault.

53 Section 41 of the Act requires me, as does the ordinary principles of assessing damages in tort, to take into account pre-existing and subsequent injuries: Reed v Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 970170); Krukiewicz v Hayes [2004] WADC 242; SW v BB [2010] WADC 86.

54 There is no evidence of any subsequent injuries and I am satisfied that she had fully recovered from the injuries sustained in 2009 and although she may have had a predisposition for anxiety, the 2010 incident caused her current condition.

55 The onus is on the appellant to prove the 2010 offences contributed contribute material to her injury or loss. She has discharged that onus: Bonnington Castings; Fagan; and MJN v MAJS (227).

56 In any event it would not be possible to disentangle the consequences of her predisposition to anxiety from the consequences of the 2010 offence and the appellant is entitled to compensation for the full injury and loss suffered in the 2010 incident: Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613; Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; CKM [2008] WADC 79.

57 The appellant claims a modest award in respect of future medical expenses on the basis that she will occasionally require the use of analgesic medication and sleeping tablets, and would benefit from the psychotherapy recommended by Dr Ng. It is appropriate to make such an allowance.

58 Proven expenses claimed by the appellant are $418 for ambulance transport and report fees of $1,877.

59 Fortunately the appellant has made a reasonably good recovery from the injuries, both physical and psychological. The scarring to the top of her right foot is relatively small and unlikely to be seen. The scarring, however, above her knee is unsightly.

60 Given the appellant was able to recover completely from the physical injuries, anxiety and fear sustained in the 2009 incident within a relatively brief period of time, I am confident that she will also be able to recover from the psychological injuries sustained in this assault, although I accept it is going to take a little longer and may require the use of psychotherapy.

61 In all the circumstances of the case I award a sum of $7,500 for her injuries.

62 I allow past expense of $2,295 for the report fees and ambulance expenses.

63 I allow the sum of $2,835 for future medical treatment pursuant to s 48 of the Act.

65 Therefore the total compensation I allow is as follows:

Future medical expenses: $2,835 (s 48 to apply)

1. The appeal be allowed.
2. The award of compensation made by the chief assessor dated 13 May 2011 be varied such that:

(a) the amount of compensation awarded to the appellant pursuant to her application under s 17 of the Criminal Injuries Compensation Act 2003 be increased to $9,795;

(b) the appellant be awarded the further sum of $2,835 for the cost, less any relevant rebates, of future expenses incurred in obtaining psychotherapy treatment in accordance with the provisions of s 48 of the Criminal Injuries Compensation Act 2003.