Asjes v The Assessor of Criminal Injuries Compensation

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal Injuries Compensation Act 2003 - Appeal - Hearing de novo - Quantum - Future loss of earning capacity

Criminal Injuries Compensation Act 2003, s 17, s 30, s 31, s 55, s 56

Amicus Curiae : State Solicitor for Western Australia

Asjes v The Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 4169, 23 September 1994)

Crumby v Kuru (1995) 13 SR (WA) 331

Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145

Gullelo v Halloran [2008] WADC 145

Hogben v Darcy [2009] WADC 63

S v Neumann (1995) 14 WAR 452

1 BRADDOCK DCJ: On the evening of Sunday, 2 November 2008, at around 7.30 pm, the appellant Stacey Anne Utting, a young woman then aged 26, was waiting outside the Cottesloe Hotel with her boyfriend with the intention of catching a cab home. Whilst Ms Utting was talking with her boyfriend she was struck in the right eye by an egg thrown from a passing motor vehicle, collapsed due to the force of the blow, and was assisted by her boyfriend and others at the scene. She was taken to Sir Charles Gairdner Hospital. Subsequently, she reported the incident to the police. Although enquiries were made, witnesses were unable to give sufficient particulars to enable the police to apprehend the person who threw the egg, and the CCTV footage obtained from the Cottesloe Hotel does not reveal anything sufficient to identify the vehicle or its occupants. Accordingly, no charges were ever laid in relation to the matter.

2 As a result of the blow to her eye, Ms Utting sustained injuries including permanent damage to the sight in her right eye.

3 On 1 September 2010, the Assessor of Criminal Injuries Compensation awarded Ms Utting the sum of $56,515. The award was made pursuant to an application under s 17 of the Criminal Injuries Compensation Act 2003 (the Act). Against this assessment Ms Utting appeals, by notice of appeal filed, within time, on 21 September 2010. The complaint is that the award of compensation for her injuries and loss of earning capacity was 'below the range of a sound award of compensation' and that the assessor was wrong in not awarding compensation in respect of all expenses incurred in obtaining reports required to present her claim.

4 An appeal lies to this court by reason of s 55 of the Act. An appeal is a hearing de novo: Gullelo v Halloran [2008] WADC 145 [5]. The court may, on appeal confirm, vary or reverse the assessor's decision, in whole or in part: s 56(2)(b) of the Act.

5 The court is not fettered by the assessor's decision, and may rely on the evidence and information before the assessor, but may receive further evidence or information. In this instance, the material on appeal comprised the materials before the assessor. Notwithstanding that the application is determined de novo, it is appropriate to have regard, where appropriate, to the assessment of the specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63 [13]; Crumby v Kuru (1995) 13 SR (WA) 331 (332) (French DCJ).

6 Any award under the Act is subject to the maximum compensation payable as set out in s 31(1) of the Act, which is $75,000. This is a jurisdictional limit, not a sum reserved for the worst cases: S v Neumann (1995) 14 WAR 452 (463). Otherwise, the assessment is approached applying ordinary tortious principles for the assessment of damages, subject to the definitions in the Act of the terms 'injury' and 'loss'.

7 In this instance, no person has been charged with any offence in relation to the assault upon the appellant. Section 17 of the Criminal Injuries Compensation Act 2003 applies where no person is charged, but a person suffers injury as a consequence of the commission of an alleged offence. In those circumstances, it is necessary that the assessor or court be satisfied, under s 17(4), that the claimed injury and loss occurred as a consequence of the commission of the alleged offence.

8 On appeal, no issue was taken with the fact that Ms Utting suffered the injuries alleged, in the circumstances alleged, on the night of 2 November 2008, and I find that she suffered injury and loss as a result of the commission of the alleged offence constituted by the throwing of an egg from a moving vehicle which struck her in the eye.

9 The learned assessor made an award of $52,715, comprising $32,000 in relation to her injuries, $20,000 for future economic loss, and $3,800, as a provision for future medical expenses. In addition to this, the learned assessor allowed the sum of $715 for medical report costs on the application, but would have included a further sum of $742.50 for a second report by the time he published his reasons, subject to this appeal. The $3,800 was expressed in the award as being for psychological counselling. This was accepted in the assessor's reasons as being an error. The sum was for future medical expenses.

10 On the hearing of the appeal, no issue was taken with the amounts for future medical expenses at $3,800, or the cost of the reports, totalling $1,557.50, the supporting documents for which have been provided.

11 The question on appeal therefore solely relates to the assessment of the quantum of general damages for the injuries, and the quantum award for the loss of earning capacity. It was accepted by counsel for the appellant that the correct approach had been adopted in relation to the latter.

12 On the night of the incident, Ms Utting was seen in the emergency department of Sir Charles Gairdner Hospital, where it was noted that she had a hyphaema (blood in the eye) and traumatic mydriasis (dilation of the pupil) to the right eye, with moderate periorbital bruising. Her cornea had multiple abrasions. When she was seen three days later in the ophthalmology clinic, her condition had improved, but her visual acuity in the right eye was affected, being 6/9 on the right and 6/5 on the left. She had a residual blood clot in the eye, but no retinal damage was noted. She had further subsequent visits to the eye clinic, and the loss of visual acuity in the right eye improved but did not resolve. She was prescribed Pilocarpine drops for the purpose of reducing the dilation of the pupil in the right eye.

13 Subsequently, Ms Utting was reviewed twice by Dr Ross Agnello, a consultant ophthalmologist. Dr Agnello provided two reports dated respectively 21 January 2010 and 13 April 2010. He found, significantly, that her unaided visual acuities were 6/12 N6 in the right and 6/5 N5 in the left. He was not able to improve the vision in the right eye with corrective lenses and the right pupil was enlarged. It did react to direct light. He also found that there was an element of angle recession, which he estimated it as 25% of the circumference of the drainage angle. He concluded that she had sustained injuries to the right eye being:

14 In his opinion each of these was the direct result of the blunt trauma to her right eye. Further, light sensitivity and visual blur were results from the damage to the pupil. He assessed the condition as being a 50% loss of the central vision in the right eye. She continued to suffer from 'visual floaters' in the eye and was sensitive to glare, the only remedy for which was the use of the drops previously prescribed. He noted that most patients did not continue with this form of treatment, as it tended to be impractical and could over-constrict the pupil and cause headaches and eye ache. He was of the opinion that Ms Utting would require annual opthalmatic reviews.

15 Dr Agnello, in his second report, further considered the effect of the injury, and its impact on her employment prospects. He was of the view that she was moderately incapacitated, in that prolonged reading and computer work were contraindicated because of her symptoms. He did not expect there would be much more than mild improvement over time. In effect, computer and other close work cause her symptoms after a short period of time, which result in her squinting and some blurring of vision. For driving and outside activities, she has to wear dark glasses, because of symptoms caused by glare. There is some disruption to her binocular vision, which causes difficulty in relation to driving and requires her to take extra care.

16 Dr Agnello was of the view that 'angle recession glaucoma' following blunt trauma injury was rare, if the angle recession was less than 180 degrees, which in this case it was. He thought that it was highly unlikely she would develop this condition in future. As to the retinal detachment, he thought the view that it was unlikely that she would ever suffer from detachment requiring surgery. As to cataract injury, his view was that of all the potential ocular complications this was the most likely, but he noted there was no evidence, thus far, of cataract formation, and described it as a possibility later in life that she might develop earlier cataracts in the eye than she otherwise would have done. He confirmed there was no restrictions on her current A class driver's licence. As a result of the glare problems, she experienced some difficulties with some domestic and leisure tasks, and the previously noted difficulties with the computer and other close work.

17 Ms Utting detailed the events in her proof of evidence for the proceedings before the assessor. The event was clearly traumatic, she suffered immediate pain, was required to be in bed for four days and did not work for a week. The experience must have been very frightening. She describes feeling quite depressed about the injury for about six months. She has not returned to the Cottesloe Hotel since. Sensibly, she observed that she probably would not frequent the Cottesloe Hotel now even without the assault, as she described it as being 'for a younger crowd'. She describes the fact that her eyes will be watery if she does not wear her sunglasses, and that she can experience flashes of light in her vision after returning indoors. She has a blind spot on her peripheral vision on her right side, as a result of which she is extra careful when driving. Her right pupil is constantly more dilated than the left, a matter about which she is somewhat self-conscious. She is cautious and does not engage in any activity that would expose her eye to further trauma, even minor trauma. She does not have any particular problems reading, for practical purposes, although she notes some difficulty with smaller print which she did not experience prior to the injury. She was not participating in regular sport before the injury, and she would be reluctant to participate in any sport which caused any risk to her eyes. She is still able to watch television and movies and she has become accustomed to the poor vision in the right eye.

18 Ms Utting was a florist at the time of the offence, and had been so for 10 years. She had handed in her resignation and was about to take up a new job a week later. She took only a week off work, and then completed her notice period with her employer, Code Bloom, before starting work with Décor Design Centre on a full time basis. Her employment with Code Bloom was as a senior florist/all rounder and her duties at the new employment were as administrator/manager of their showroom. She describes herself as being able to perform her duties, but having difficulties reading a computer screen for long periods. She does become fatigued more easily when reading a computer screen for extended periods. In addition to this employment, she also works in a business called 'Sabu Design', a partnership with another woman, which arranges flowers for weddings. This does involve some fine detailed work, in creating flower arrangements, using small wires to hold the various blooms together. She tires when carrying out this work and describes herself as being less efficient than she otherwise would be. To her credit, Ms Utting has continued to pursue all her activities, and to meet her business commitments and her work commitments notwithstanding her injury. She intends to continue in the employment that she has with Décor Design and hopes to pursue her own wedding and function florist business in the future. She thinks that she can still do this, but probably not quite as well as if she had not been injured.

19 I find that Ms Utting suffered a compensable injury to her right eye as described above which has caused her pain, suffering and inconvenience as outlined by her, confirmed by the reports of Dr Agnello as to the damage to the eye and the prognosis. There is no doubt that this is a serious eye injury, which will have long term consequences for Ms Utting in all spheres of life, domestic, social and employment. It is in my view, an injury of a kind which will affect her every day, not only in particular or restricted circumstances. To her credit she has not let it stand in her way to date. The issue on this appeal is the proper reflection of the injury in terms of monetary compensation. Whilst the immediate effects were shocking, frightening and painful, the long term effects are significant, particularly the loss of visual acuity and sensitivity to light. The loss of 50% of the sight in one eye, on a permanent basis, is severe, and there is some risk of early cataract development in that eye.

20 Comparison with the awards of damages for other injuries, under other regimes, such as whiplash in motor vehicle accidents are not really of any assistance in these circumstances, nor generally is a comparison of other awards of compensation or damages a particularly effective means of quantifying damages: Asjes v The Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 4169, 23 September 1994) (Commissioner Nisbet). Ms Utting has to make constant adjustments to cope with her injury. She has to take a special care of her sight and is disadvantaged in bright conditions, as well as in fine work. I find that such a disability is significant in terms of its everyday consequences and there are potential for longer term effects. In my view, an appropriate award for this aspect of the injury is $40,000.

21 As to her earning capacity, there have not, apart from a week off work been any past losses. Whilst she was off work, she was paid and her quantifiable loss is nominal, in the sense that she would have started her new employment, at a higher salary a week earlier, but for the injury. I do not propose to provide a separate component of the award for that sum. However, her future loss of earning capacity arises by way of a restriction upon the range of employment that might be open to her in the future by reason of her injury. This is due to her difficulty with extended work at a computer screen or very close work. In effect, this reduces the range of potential employment available to her on the open market. Under the Act, specifically s 6(2)(c), loss of earnings and loss of earnings capacity is compensable. There is no doubt that injury to her eye is the direct cause of such potential loss of range of employment. This loss is not capable of any precise calculated assessment. I find that it is a loss of a type which clearly has the capacity to produce a financial loss. Where there are too many imponderables to make any precise calculation of damages for loss of earning capacity, the courts have long accepted that a global amount may be awarded: Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145 and see also Setton v Eves [2006] WASCA 3 [7] (McLure JA).

22 Currently, Ms Utting's employment involves a moderate amount of computer work, and a moderate amount of fine work in her occasional private business. With this she manages to cope. However, such a limitation upon her skills is significant, and will undoubtedly continue to be so. It has been recognised as such in the assessor's award of $20,000. Ms Utting is currently 28 years old, and I take into account both the fact that she has been able to cope, to date, whilst experiencing difficulties. But the fact that she will be likely to be active in the labour market for many years in the future and the fact that the need for visual skills of the type described is not likely to diminish, are likely to result in not insignificant economic consequences for her. In those circumstances I would increase the award under this heading to $25,000.

23 I would allow the appeal, and substitute an award of $65,000 plus report fees of $1,557.50 and the sum of $3,800, subject to the provisions of s 48 of the Act, for the cost of any future medical expenses (less rebates).