ATB -v- LA [2021] WADC 64 (2 July 2021)

1. The appeal is a hearing de novo.[2] Substantial further evidence was adduced on the appeal to that which was before the assessor. There is a general discretion to receive further evidence on appeal. That discretion should be exercised in favour of receiving the evidence, unless it is unjust to do so.[3] The further evidence sets out in some detail the impact of the offending on ATB. In addition, ATB gave oral evidence at the hearing of the appeal, primarily directed to the reasons she lost her employment during the period of the offending. Given the overall nature of the further evidence, and that the Chief Executive Officer in the role as amicus curiae made extensive submissions directed to it, in my view it is not unjust to receive the evidence and I therefore receive it. As a consequence of that receipt, in my view I do not need to have regard to the assessor's assessment in determining the appeal. Accordingly, I do not need to enter into the debate as to whether or not it is appropriate to have regard to that assessment.[4]
2. On appeal, this court can confirm, vary or reverse the assessor's decision either in whole or in part: s 56(2)(b).
3. It is useful to now describe the statutory regime applicable to ATB's claim and how it is to be applied.

1. A person may apply for compensation when they have suffered injury as a consequence of the commission of a proved offence: s 12(1). The compensation is for the injury and any loss suffered.
2. Relevantly to this case, a proved offence is a crime of which a person has been convicted: s 3.
3. The word 'injury' is defined to include mental and nervous shock: s 3. The phrase is one of a composite character borrowed from the law of tort to refer to mental or emotional harm as opposed to physical injury or bodily harm.[5] The words mental and nervous shock include such results of criminal conduct as distress, horror, and disgust and other similar adverse mental reactions.[6] They do not ordinarily include humiliation.[7] I do not need to consider on this appeal whether they extend to enduring humiliation.[8] In assessing whether there is mental or nervous shock, it is necessary to draw a distinction between a mere emotional reaction and something of a more enduring character which may in both the legal sense and in common parlance, be described as an injury.[9]
4. An award of compensation for mental and nervous shock may only be made in the circumstances set out in s 35(2). These circumstances include that the claimant was the person against whom, or against whose property, the offence was committed: s 35(2)(b). That is the case here.
5. For an award of compensation to be made, it is necessary that I am satisfied that the claimed injury and any claimed loss has occurred and did so as a consequence of a proved offence being committed: s 12(3)(a). This conveys that a victim must establish a causal connection between the commission of the offence and the injury and loss for which compensation is sought.[10] Such an approach accords with the general law of causation, particularly as applied in cases of tort, except that foreseeability and remoteness are irrelevant.[11] It need not be the sole cause.[12] It is sufficient if the offending materially contributed to the harm, in the sense that the contribution was not negligible.[13]
6. In respect of loss, it is defined at s 6(2) to include a number of separate matters, respectively appearing at s 6(2)(a) - s 6(2)(d). The relevant provisions for the purposes of this appeal are s 6(2)(a) - s 6(2)(c), which are defined by reference to the injury suffered, not by reference to the offence committed. Accordingly, to establish loss requires a two-step process:
   1. First, that the victim suffered an injury as a consequence of the offence committed.
   2. Second, that loss has occurred as a consequence of that injury.
7. The definition of loss includes past and future expenses. For past expenses to be recoverable they must have been reasonably incurred by or on behalf of the victim in circumstances which have a nexus to the injury suffered. The expenses must arise directly from the injury, or arise in obtaining a report from a health professional or a counsellor in relation to the injury suffered: s 6(2)(a). For future expenses to be recoverable, they must be likely to be reasonably incurred by or on behalf of the victim. Again, they must have a nexus to the injury suffered. So, the future expenses must be for treatment the victim is likely to need as a direct consequence of the injury suffered: s 6(2)(b).
8. The definition of loss also includes loss of earnings. This is defined at s 6(2)(c) as:

loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim; ...

1. As can be seen, this definition includes the word direct before consequence, which word does not appear before consequence in s 12(3). The word direct (or directly) appears in the other paragraphs comprising the definition of loss in s 6(2). At first blush, it is unclear whether the introduction of a qualifying word such as direct in s 6(2) results in there being a higher threshold to establish compensation for loss from injury within the meaning of s 6(2), compared to the requisite threshold to establish compensation for injury from the commission of an offence within the meaning of s 12. In any event, even if it does result in a higher threshold, I consider that threshold would only reach the height of the injury being the substantive (or dominant) cause, as opposed to a material cause. In my view, it would be contrary to the compensatory purpose of the legislation to require that the injury be the sole cause of loss. That being so, I do not need to resolve whether s 6(2) does impose a higher threshold. This is because I have found that the injuries which ATB suffered as a consequence of the commission of the offences were the substantive cause of ATB losing the established employment which she held during the period of the offending.
2. Loss of earnings includes both past and future loss.[14]
3. As to the quantum of an award, the award of compensation for injury and loss is such compensation that the assessor is satisfied is just for the injury and any loss suffered: s 30(1). The maximum amount of compensation which may be awarded is $75,000: s 31(1). The maximum is a jurisdictional limit and is not reserved for the worst cases.[15] Where two or more offences have been committed and they are related to one another, and the person suffers injury as a consequence of both offences, the aggregate of the award must not exceed the maximum amount that may be awarded for the last of the offences: s 33.
4. The assessment of the appropriate quantum of an award of compensation is to be determined by applying the ordinary principles for assessment of damages, subject to limitations imposed by the Act, in particular the jurisdictional limit.[16] In this respect, as to the approach to an assessment of damages, Newnes JA (with whom Pullin and Miller JJA agreed) said in Houlahan v Pitchen:[17]

The principle to be followed in assessing damages is that the amount of damages must be fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused, having regard to current general ideas of fairness and moderation. The amount must be proportionate to the situation of the particular plaintiff.

(citations omitted)

1. An award of compensation may be refused or reduced, where the victim's behaviour, condition, attitude or disposition contributes directly or indirectly to their injury: s 41.
2. Further, a victim has what is often inaptly described as a duty to take all reasonable steps to mitigate the loss they have suffered.[18] A failure to take such steps may also result in the refusal or reduction of an award. Consistently with the general application of the principles of mitigation of loss, in order to be satisfied that ATB failed to mitigate, I would need to be satisfied that ATB acted unreasonably in the steps she took, or did not take, to mitigate her loss.[19]
3. Further, in my view the assessment as to whether a victim did act unreasonably is carried out by reference to a reasonable person in the circumstances as they existed for that victim.[20] If it were otherwise, the requisite assessment would be an artificial one, conducted in the abstract.

1. At the hearing of the appeal, ATB relied upon the following additional material:

(d) an affidavit of Mr A[21] sworn 30 April 2021.

1. ATB's affidavit sworn 4 May 2021 annexed a psychological report of Ms Jodi Barton dated 18 April 2021[22] and a further report of Ms Barton dated 2 May 2021.[23]
2. Subsequent to the hearing, ATB filed a further affidavit sworn 2 June 2021[24] and supplementary written submissions, directed to ATB's claim for loss of earnings. This material was filed to address a query I raised during the hearing as to the calculation of ATB's claim for loss of earnings.
3. Before turning to the offences committed by LA, it is useful to set out a brief history of ATB's personal antecedents.
4. ATB is now 42 years of age and lives on her own in a State in Australia, which is not Western Australia.[25]
5. ATB married on 31 August 2003 and had two children, the first being born on 27 February 2004 and the second being born on 12 August 2005. As a family they lived in a remote region of Australia, which is outside of Western Australia. Her husband ran his own business.[26]
6. Relevantly, ATB's work history is as follows. In describing ATB's employment, I have anonymised the name of her employers and work colleagues to prevent the possible identification of ATB.
7. In 2006 ATB obtained a job with a mining company as a dispatcher.[27] She remained in this role until 2011 when she was offered a position as a dispatcher at another mining company (Company X) in Western Australia.[28] She took up that role. ATB's contract with Company X commenced on 24 November 2011 and had a 6 month probation period.[29] ATB completed the probation period and thus the role became permanent. She was proud to be an employee of Company X.[30]
8. Unfortunately, because of their geographical separation, the relationship between ATB and her husband broke down and they separated.[31] Their children ultimately went to live with ATB in Western Australia and she engaged an au pair to assist in looking after them.[32]
9. At the end of 2014, ATB commenced the part-time external study of a law degree. She is yet to complete the degree, which she initially expected to complete by the end of 2018.[33]

1. Relevantly, LA committed two offences of which ATB was the victim. He pleaded guilty to the offences. They are therefore proved offences within the meaning of the Act. Before the assessor was the statement of material facts and the sentencing judge's remarks. The following observations regarding the offending are taken from the statement of material facts.
2. The first offence was an offence contrary to s 409(1)(c) of the Criminal Code, being that of gaining a benefit with intent to defraud. The person defrauded was ATB.
3. The offending conduct arose out of a personal relationship between ATB and LA after they had initially met on an online dating application. Shortly after meeting, LA started making requests of ATB to provide him with money. This continued over the period of the offending, being from 29 July 2015 to 13 June 2016. The explanations which LA gave ATB for the requests were not true, thus forming the basis of the intent to defraud. The total amounts paid by ATB exceeded $115,000.
4. The second offence was an offence contrary to s 338A(d) of the Criminal Code, being making threats with intent to compel the doing of an act. The offending conduct occurred between 29 August 2015 and 21 December 2015.
5. The offending conduct arose from ATB confronting LA and asking for the return of the monies that she paid to him. The conduct arose against the context of ATB having sent LA naked images of herself. By a number of SMS messages sent by LA to ATB, LA threatened to send these images to others, including ATB's work colleagues. These messages commenced on 29 August 2015.
6. Furthermore, LA threatened to arrange to have someone burn ATB's house down, including while she and her family were in it, and also made threats to send someone to make sure she did not have a car to drive and promising to ruin her Christmas.
7. LA sent these messages to influence ATB not to make contact with his family or to involve other persons in the arrangement he had made with her and also to compel her to make payments to him.
8. I am satisfied that the two offences are in effect related offences as referred to in s 33 of the Act. Therefore, the maximum award of compensation available is the sum of $75,000.
9. I now move to the impact of the offending on ATB and assess whether she suffered an injury within the meaning of the Act.

What was the impact of the offending on ATB and did she suffer an injury within the meaning of the Act?

1. It is useful to start by setting out in full the learned sentencing judge's remarks in respect of these offences. They are as follows:[34]

On counts 3 and 4, now, this is 110 thousand - 565 thousand dollars. This is someone's entire savings following a matrimonial breakdown, but you've cost this lady those savings. You cost her her job and her life. She was a single mother. She had children at private schools. She's had to take them out of that situation and so your offending has impacted on them.

You took advantage of her. She suffered panic attacks at work and she had to be sent home. You have made threats to burn her house, so she's worried not just for herself but for her children. As I've mentioned, she had to take them from a private school and then she had to watch - they had to watch her crying through the pain and the anguish of receiving text messages from you demanding money. Now, that must be very hurtful for someone to pick up the phone, read what you've said and then burst into tears in front of the children.

So she's lost her job. She wasn't able to focus on her work. She's had to give up her university studies, where she was hoping to get further qualifications. She's now living from week to week and her life is totally destroyed.

1. ATB provided a victim impact statement for the purposes of LA's sentencing.[35] It is dated 4 November 2016. Two compelling statements from the victim impact statement are as follows:

After the first month, I would cry myself to the bank to deposit money, my heart would be palpitating where at points I thought I was going to pass out with the anxiety. To this day when I walk past the bank where I deposited money, my anxiety still rises to make me feel like I am going to vomit. The sickening feeling in my stomach every time my phone beeps that a text message has been received sends chills up my spine to this very day, I have to calm myself down and remind myself that the person is no longer a threat to me.

...

My life from what [it] was in June 2015 has been totally destroyed. I have been financially, emotionally and psychologically ruined through this. At present, I can't see the light at the end of the tunnel. It is a struggle each and every day.

1. Further to the victim impact statement, in ATB's affidavit sworn 16 April 2021, she set out the following matters in respect of the impact of the offending:
   1. In October 2015 she reported the matter to police but was told it was a civil matter and there was nothing the police could do.[36]
   2. On 14 December 2015 she borrowed money from Cash Converters as she had exhausted her money and she was scared that if she stopped paying LA he would hurt her or her family.[37]
   3. On 14 December 2015 she took out a violence restraining order against LA.[38]
   4. It was ultimately served on 26 December 2015.[39]
   5. She did not have many friends and started to withdraw from everything due to shame and embarrassment if anyone found out about what was happening to her.[40]
   6. Over the duration of the offending she started drinking heavily to cope with the shame, guilt, embarrassment and feelings of failure as a parent to her children.[41]
   7. She would leave work to obtain the money that LA demanded.[42] When she returned to work, she was so stressed and anxious, her hands would be shaking, her heart beating fast in case she got into trouble for being gone so long.[43]
   8. As a result of being distracted from the offending, she made some significant mistakes during her shifts at work.[44]
2. It also must be remembered that LA threatened to distribute intimate images of ATB to her work colleagues.
3. In terms of the medical evidence, it is quite limited as to the mental and nervous shock suffered during the period of the offending. In that respect, the material refers to a consultation with a Dr O[45] on 30 October 2015 which identified the reason for the visit as being 'threat by friend, mental health care plan'.[46] The mental health care plan noted predisposing factors as being that ATB 'needs counselling sessions to reassure and coping [mechanisms]'.[47] Further, Dr O referred ATB to a psychologist. ATB did not attend upon the psychologist. I am satisfied that the reference in Dr O's notes to threats being made against ATB is a reference to the conduct of LA. On the material before me, there is no other plausible explanation.
4. Ms Barton in her first report concludes that at the point in time of the report (18 April 2021), it was probable that ATB was experiencing symptoms consistent with post-traumatic stress disorder.[48] I am satisfied from having read the report that the disorder arose from this offending. The report sets out that ATB avoids discussing the offences against her as she experiences ongoing shame, humiliation and disgust when the issue was confronted.[49]
5. The report also says that ATB's responses placed her total symptoms of post-traumatic stress in the severe range with a clinically significant level of impairment as a result, including a significant loss of function, trouble at work and trouble in relationships.[50]
6. Ms Barton's two reports do not go as far as to say that ATB was suffering from post-traumatic stress disorder during the period of the offending.
7. When I have regard to the entirety of the material before me, I am satisfied that ATB suffered mental and nervous shock in that she suffered significant and enduring distress, stress and anxiety as a result of the offences committed against her. Further, whilst Ms Barton does not express the view that the post-traumatic stress disorder was present during the period that the offences were being conducted, that such a disorder is diagnosed approximately 4 years and 8 months after the offending ceased reinforces to my mind the significant mental harm that the offending caused ATB. That is, for the post-traumatic stress disorder to be present at a relatively significant period after the offending ceased, in my view reflects that the impact on ATB's mental health was significant and enduring.
8. I now turn to the next significant issue on this appeal which is whether or not ATB has suffered economic loss as a result of the mental and nervous shock which I have found was caused by the offending.

1. The case as to ATB's economic loss was put by reference to loss of earnings caused by the effect of the offending on her employment and on possible alternate career paths. This was put at cascading levels as follows:

(b) ATB's subsequent employment at another mining company (Company Y) not continuing after the completion of her probation period; and

(c) ATB's pursuit of a career in the legal profession being delayed.

1. As I raised with counsel during the hearing, it seems to me that if I was satisfied that the mental and nervous shock caused ATB to lose her employment at Company X, then it is not necessary for me to consider whether it also had a causative role in respect of the second and third matters which I have just set out. This is because the loss of earnings consequent upon ATB losing her employment with Company X is the sum of $113,000[51] and therefore exceeds the maximum permissible award of $75,000. That being so, the only possible relevance of the matters set out at (b) and (c) of [51] is whether they could support a conclusion that ATB did not mitigate her loss. There is no material before me which suggests ATB acted unreasonably in carrying out her employment at Company Y, or in deferring the pursuit of her law degree. There is therefore no basis upon which I could conclude that ATB did not mitigate her loss in respect of those two matters.
2. In respect of ATB's employment with Company X, ATB was subject to disciplinary action in 2015, prior to the offending. Specifically, in April 2015 ATB was given a final written warning and required to undertake a performance improvement plan.[52] ATB successfully completed that plan. She received a letter from Company X dated 7 October 2015 to that effect, the letter stating:[53]

Over the past six months, you have demonstrated a sound commitment to your role of mine controller and have made an effort to reach the goals and expectations outlined in your Performance Improvement Plan.

As a result, please take this letter as confirmation of the formal completion of your Performance Improvement Plan.

1. However, subsequent to the successful completion of the performance plan, ATB made significant errors in the performance of her role at Company X. This ultimately led to her being given a stand aside notification dated 25 January 2016.[54] That notice set out potential breaches of her employment, said to have occurred over the period 9 January to 19 January 2016. I pause here to observe this occurred during the period of the offending behaviour.
2. The further material provided to the court for this appeal includes an affidavit of Mr A sworn 30 April 2021, who was ATB's direct supervisor. His affidavit attaches a letter dated 10 April 2021 setting out his observation of ATB during the period that ultimately led to ATB resigning her role with Company X.[55] His affidavit confirms the contents of the letter are true and correct.[56] The letter states, amongst other matters:

[ATB] was generally a strong, confident and vibrant person who wore shoes that matched her hair, dressed up on occasions to bring a bit of fun to the workplace, was compassionate and an asset to our team. Towards the end of 2015, I noticed a decline in [ATB's] behaviour where she became withdrawn, anxious, jumpy and sometimes angry.

[ATB] seemed to lose focus on her everyday tasks which she was highly trained in, through the distraction of being on her phone and leaving the office more regularly than she normally would. This led to her making a substantial mistake over one of her shifts.

It was unlike [ATB] to make mistakes that would severely impact the business. My professional relationship with [ATB] was such that she felt extremely comfortable reporting any mistake she made whether small or large to me as soon as this happened. [ATB] owned her stuff ups as she hated to let her team down. I will say [ATB] rarely made mistakes such as the one where she voluntarily decided to 'resign' from the business. It was my understanding that the business would have terminated her but for her resignation.

1. Further, ATB's affidavit sworn 16 April 2021 annexed to it a letter from Ms B, who worked closely with ATB and they had become close friends.[57] Relevantly, Ms B says:

Towards the end of her time as an employee [ATB] seemed to become extremely distracted. ...

After noticing this behaviour happening more consistently, I approached [ATB] and asked whether there was anything I could do or if she wanted to talk. [ATB] was a very independent and self sufficient person who rarely reached out as she felt this would show her to be weak. [ATB] mentioned that she had some personal issues going on and they had been reported to the police, that she had someone who was trying to extort money out of her by saying they would send naked photos of her to [Company X]. She did not share much about the situation to me or anyone within the business.

It is my belief that this 'personal' situation had a direct impact on [ATB's] ability to focus on her everyday tasks, which she was highly skilled in and should be second nature. I started to witness my friend and colleague, who was a strong, confident and caring woman, start to become withdrawn, anxious, and continuously jumpy every time her phone vibrated.

1. Ultimately, ATB resigned from Company X as a result of its investigation into the breaches the subject of the stand aside notification. From what I can ascertain, ATB resigned a short period after 25 January 2016, that being the date of the stand aside notification.[58]
2. An issue that arose initially on this appeal was whether ATB's resignation meant she was not dismissed from her employment and thus could not make a claim for economic loss arising out of the cessation of her employment with Company X. In essence, the possible point was that the loss of ATB's employment arose from her independent decision to resign.
3. On the hearing of the appeal, ATB gave oral evidence regarding the termination of her employment with Company X, which evidence I accept. That evidence was to the effect that the Company X representatives who conducted the investigation into her conduct made clear to ATB that her employment would be terminated. She was offered the option of resigning instead so as not to have a detrimental employment record designating termination. In those circumstances she chose to resign. Accordingly, I am satisfied that, in effect, ATB was dismissed from her role, that dismissal arising as a result of her resignation in circumstances where she was told her employment would otherwise be terminated.[59]
4. The pertinent question therefore is to what extent did the injury which ATB suffered as a consequence of the commission of the offences cause her to lose her employment with Company X.
5. As Mr Olds put it in his helpful written supplementary submissions, if I form the view that ATB's conduct which triggered her being stood aside by Company X was a direct result of her stress and anxiety caused by the offending, and it was inevitable her employment would be terminated as a result of the investigation that was instigated, it is open for me to conclude that the loss of her employment with Company X was caused by the offending.[60]
6. In respect of the relevant chronology of events, as I have described, the offending occurred over the period from 29 July 2015 through to 13 June 2016. The threats to distribute intimate images of ATB commenced on 29 August 2015. They then continued persistently after then.
7. By 7 October 2015, Company X was satisfied that ATB had successfully completed her performance improvement plan. She was a valued and experienced employee. Her work colleagues Mr A and Ms B noticed the significant decline in ATB's performance at work in the period contemporaneous to the offending behaviour. I have held that she suffered significant and enduring stress, distress and anxiety as a result of the offences committed against her. As ATB described in her affidavit sworn 16 April 2021, she withdrew from others and was stressed, anxious and distracted at work. I am satisfied this arose because of the impact of the injuries that I have described.
8. Having regard to the entirety of these matters, I am satisfied that the substantive cause of the significant decline in ATB's performance at work was the stress, distress and anxiety which she suffered as a consequence of the two proved offences committed by LA against her. I am therefore satisfied that such stress, distress and anxiety was the substantive cause of the breaches of employment which ultimately led to ATB resigning her employment at Company X.
9. I am also satisfied that had it not been for such breaches of employment, ATB would have continued in her employment with Company X. In that respect, ATB had been employed in a permanent role since 24 November 2011. While ATB had been the subject of disciplinary action in April 2015, she successfully completed the required performance plan. In assessing the likely longevity of such employment, I also take account that at the time of her resignation, ATB was around 37 years of age, had established employment with Company X and was considering a possible change in career to become a lawyer. Having regard to these matters, I am satisfied that ATB's employment would have continued at least until ATB completed her law degree, which was expected to be by the end of 2018.
10. In summary, I find that:

(a) ATB suffered mental and nervous shock as a result of the offending, in particular enduring stress, distress and anxiety;

(b) the mental and nervous shock was the substantive cause of her conduct which led to her being stood aside by Company X;

(c) it was inevitable that her employment with Company X would be terminated after Company X had investigated that conduct;

(d) ATB resigned to avoid having a termination noted on her employment record; and

(e) ATB would likely have continued in her employment with Company X at least until the end of 2018.

1. Accordingly, I am satisfied that ATB suffered an injury as a consequence of the commission of the proved offences and she lost her employment with Company X as a direct consequence of that injury.

1. Ms Barton's first report refers to ATB having a pre-existing diagnosis of ADHD. That report refers to this resulting in, amongst other matters, reckless or self-destructive behaviour.[61] In Ms Barton's second report, she expressed the view that ATB may have been predisposed to impulsive decision making without considering the long-term consequences of engaging in intimate and/or financial interactions with LA.[62]
2. An issue rightly raised by Mr Olds as amicus curiae is whether ATB's ADHD condition is a relevant contributing factor to her injury. This is a factor to be considered in accordance with s 41 of the Act and may result in the refusal or reduction of an award.
3. However, in my view, this predisposition did not contribute to the injury that ATB has suffered. While the predisposition may explain how it was that ATB sent the intimate images and made significant payments to the benefit of LA, in my view, this is not a contributing factor to either the offending behaviour or to the injury and loss suffered as a consequence. Rather, to use the words of the amicus curiae's written supplementary submissions:[63]

... it was that pre-disposition which presented the offender an opportunity to take advantage of [ATB].

1. Accordingly, I am not satisfied that s 41 is engaged in this case.

1. The question of whether ATB did not take the required steps in mitigation arises by reason of ATB not engaging with the counsellor to whom she was referred by her general practitioner in October 2015.
2. ATB ultimately commenced counselling sessions with Ms Barton on 16 September 2020.[64]
3. Ms Barton in her first report expressed the opinion that if ATB had accessed psychological treatment when she was referred in October 2015, this may have resulted in the prevention of the development of post-traumatic stress disorder symptoms.[65] Ms Barton in her second report expressed the opinion that psychological support may have helped ATB to access earlier assistance from police, manage her fear about not responding to LA's threats and reduce the chronicity of her response to his threats so as to prevent reinforcement of his behaviour.[66]
4. Further, Ms Barton in her first report referred to ATB not speaking about LA's offending 'at all during the early stages of treatment in an effort to avoid shame and humiliation'.[67]
5. As I have set out above, in my view, the assessment of whether a person has mitigated their loss needs to have regard to the personal circumstances of the person at the relevant time. That being so, the relevant question is whether it was unreasonable for a person in ATB's personal circumstances to not participate in counselling.
6. I have set out above at [42] and [43] the distress, anxiety and stress ATB felt as a result of LA's offending. At the time, she was the sole carer for her children, albeit with the aid of an au pair. She had withdrawn from her friends. She feared reprisal from LA. She understandably felt humiliated and reluctant to discuss what had occurred. I am satisfied this reluctance itself arose from her injuries that were caused by the offending behaviour. Further, for ATB to explain to another what LA had done and then explore the reasons why that had happened, in my view would likely result in further distress and humiliation for her.
7. Would it have been desirable for ATB to have participated in professional counselling? In my view, the answer to that question is yes. However, in my view that is not the relevant question; rather the relevant question is was it unreasonable for ATB to not participate in such counselling? That question must be assessed having regard to the totality of the circumstances confronting ATB at the time and their impact on her and her decision making. In my view, this impact, which included ATB fearing harm to herself and her children, was of such significance on ATB and her decision making that it cannot be said that ATB acted unreasonably by not engaging in counselling upon the October 2015 referral. The injuries which ATB suffered were such as to instil in her a fear of openly discussing the offending.
8. In respect of the period since the referral, as Ms Hemachandra points out in her written submissions, ATB sought the assistance of police, persistently sought out employment after resigning from Company X, moved away from Western Australia to distance herself from LA and ultimately engaged with Ms Barton.[68] These are all positive protective steps.
9. It also must be remembered that the injuries which ATB suffered were such as to affect her decision making and to cause her to suffer significant ongoing distress when confronted with possible similar scenarios to the offending behaviour, even if it was walking past a bank.
10. When I have regard to the entirety of the matters which I have set out at [75] - [80], I am not satisfied ATB acted unreasonably by not engaging in counselling following on from the referral in October 2015. I am also not satisfied that ATB acted unreasonably by not seeking out counselling prior to her first session with Ms Barton in September 2020. Accordingly, I am not satisfied that ATB failed to mitigate her loss.

1. In relation to ATB's claim for economic loss, the further affidavit and supplementary submissions she filed after the hearing set out the calculation of her reduced income for the period from the loss of her employment with Company X through to 30 June 2018. After taking into account deductions for income tax, the net effect is that ATB's income over that period was $113,000[69] less than the income she would have received if she had retained employment with Company X. I accept this calculation and assess ATB's loss of earnings in that sum.[70]
2. Self evidently, the loss of earnings exceeds the maximum permitted award of $75,000.

1. The evidence before me demonstrates that:
   1. ATB incurred medical expenses in the sum of $435.30 for treatment obtained prior to this appeal.[71] The expenses relate to six psychological counselling sessions undertaken with Ms Barton.
   2. Ms Barton recommends that ATB engage in future treatment, being a minimum of 12 sessions, however 16 sessions may be required. The estimated cost per session is $260 (excluding GST).[72]
   3. The cost of Ms Barton's reports is $1,210.[73]
2. I am satisfied the expenses referred to at item 1 are reasonable. Further, the incurring of those expenses has the requisite nexus to the injury ATB suffered as a consequence of the offending such as to constitute loss within the meaning of s 6(2). In relation to item 2, I am satisfied that future counselling is reasonable and has the requisite nexus to the offending as required by s 6(2). I will allow such expenses for 14 sessions, being the midpoint of the number of recommended sessions.
3. I am also satisfied that Ms Barton's reports are in relation to ATB's injury and the costs of those reports are reasonable. Accordingly, such costs also fall within the definition of loss.

1. Having regard to all of the matters I have set out above, I propose to make the following award to ATB:
   1. Compensation for injury in the sum of $15,000.
   2. Compensation for loss of earnings in the sum of $54,714.70.
   3. An amount for reimbursement for medical expenses paid by ATB in the sum of $435.30.
   4. An amount for anticipated further expenses in the sum of $3,640.
   5. An amount for the costs of Ms Barton's reports in the sum of $1,210.
2. The total award is therefore the maximum of $75,000.
3. In relation to the costs of the appeal, my initial view is as follows. A costs order should not be made against the Chief Executive Officer, who provided valuable assistance as amicus curiae. In addition, as LA did not participate in the appeal, a costs order should not be made against him. I will hear from the parties on the issue of costs upon the handing down of this decision.

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

[1] Attention deficit hyperactivity disorder.

[2] Section 56(1) of the Criminal Injuries Compensation Act 2003 (WA).

[3] TAW v NJS [2011] WADC 187 [17].

[4] See for example DR v CD [2018] WADC 148 [10] - [16].

[5] The Applicant v Larkin [1976] WAR 199, 201.

[6] M v J (Unreported, WASC, Library No 920598, 19 November 1992) 11 (Scott J).

[8] See for example DR [52] - [55].

[9] S v Neumann (1995) 14 WAR 452, 461; Larkin (201).

[11] Neumann (463) - (464); Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666, 673, 675 (Mason & Wilson JJ); Sideris v Censori [1983] WAR 17, 21.

[12] Neumann (463) - (464); Fagan (673).

[13] See for example the analysis in Lyle v Soc [2009] WASCA 3 [40] regarding causation in negligence.

[17] Houlahan v Pitchen [2009] WASCA 104 [107].

[18] Assessment of Damages for Personal Injury and Death, 4th ed, Luntz (2002) [1.10.1].

[19] Fleming's The Law of Torts, 10th ed, [10.200].

[20] See Fleming's The Law of Torts, 10th ed, [10.200], the cases referred to at footnote 224 and Luntz [1.10.2] - [1.10.4].

[21] For the reasons explained at [28], this name has been anonymised.

[22] Appellant's book, pages 131 - 136; ATB's affidavit sworn 4 May 2021, Annexure AB21.

[23] Appellant's book, pages 138 - 140; ATB's affidavit sworn 4 May 2021, Annexure AB22.

[24] This affidavit was later replaced with a further affidavit sworn 15 June 2021 as the affidavit sworn 2 June 2021 had not been correctly sworn.

[25] ATB's affidavit sworn 16 April 2021, par 5.

[26] ATB's affidavit sworn 16 April 2021, pars 7 - 9.

[27] ATB's affidavit sworn 16 April 2021, par 10.

[28] ATB's affidavit sworn 2 June 2021, Annexure AB24.

[29] ATB's affidavit sworn 2 June 2021, Annexure AB24, pages 4 and 6 of the affidavit.

[30] ATB's affidavit sworn 16 April 2021, par 38.

[31] ATB's affidavit sworn 16 April 2021, par 19.

[32] ATB's affidavit sworn 16 April 2021, pars 21, 39.

[33] ATB's affidavit sworn 16 April 2021, pars 115 - 118.

[34] ts 54 of the sentencing judge's remarks.

[35] Pages 19 - 21 and also pages 33 - 35 of the material before the assessor.

[36] ATB's affidavit sworn 16 April 2021, par 42.

[37] ATB's affidavit sworn 16 April 2021, par 43.

[38] ATB's affidavit sworn 16 April 2021, par 44.

[39] ATB's affidavit sworn 16 April 2021, pars 45 - 46.

[40] ATB's affidavit sworn 16 April 2021, par 49.

[41] ATB's affidavit sworn 16 April 2021, par 58.

[42] ATB's affidavit sworn 16 April 2021, par 65.

[43] ATB's affidavit sworn 16 April 2021, par 66.

[44] ATB's affidavit sworn 16 April 2021, par 67.

[46] Page 73 of the material before the assessor.

[47] Page 84 of the material before the assessor.

[48] Ms Barton's first report, page 5, par 18; appellant's book, page 135.

[49] Ms Barton's first report, page 3, par 8; appellant's book, page 133.

[50] Ms Barton's first report, page 5, par 17; appellant's book, page 135.

[51] ATB's affidavit sworn 2 June 2021 (replaced with an identical further affidavit sworn 15 June 2021), pars 9 - 14; ATB's outline of supplementary submissions dated 14 June 2021. I have rounded the amount down.

[52] ATB's affidavit sworn 16 April 2021, Annexure AB2; appellant's book, pages 21 - 25.

[53] ATB's affidavit sworn 16 April 2021, Annexure AB2; appellant's book, page 26.

[54] ATB's affidavit sworn 16 April 2021, Annexure AB3; appellant's book, pages 28 - 29.

[55] Mr A's letter appears at pages 147 - 148 of the appellant's book.

[57] Ms B's letter appears at pages 35 - 37 of the appellant's book; ATB's affidavit sworn 16 April 2021, Annexure AB5.

[58] ATB then was offered a position with Company Y by letter of 2 March 2016; ATB's affidavit sworn 16 April 2021, Annexure AB6.

[59] I also note that a claim for compensation can still arise from the loss of employment, even where the claimant made their own independent decision to resign - see for example the analysis in Medlin v The State Government Insurance Commission.

[60] Amicus curiae's supplementary submissions dated 17 May 2021, par 24.

[61] Ms Barton's first report, page 5, par 18; appellant's book, page 135.

[62] Ms Barton's second report, page 1, last paragraph; appellant's book, page 138.

[63] Amicus curiae's supplementary submissions, par 57.

[64] ATB's affidavit sworn 18 April 2021, Annexure AB20; appellant's book, page 119.

[65] Ms Barton's first report, pages 5 - 6, par 19; appellant's book, pages 135 - 136.

[66] Ms Barton's second report, page 2, par c; appellant's book, page 139.

[67] Ms Barton's first report, page 5, par 18, Criteria C; appellant's book, page 135.

[68] Appellant's written submissions dated 18 April 2021, pars 49 - 52.

[70] Further, the CEO's counsel in an e-mail to my associate sent 14 June 2021, accepted the substance of the matters set out in the material filed by ATB after the hearing.

[71] Appellant's book, pages 119 - 127.

[72] Ms Barton's second report, page 3, last paragraph; appellant's book, page 140.

[73] ATB's affidavit sworn 4 May 2021, Annexure AB23; appellant's book, page 143.