B v W

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Appeal from assessor's quantification of compensation for injury - Further evidence allowed on appeal - Alleged offence caused aggravation of pre­existing depression and anxiety

Criminal Injuries Compensation Act 2003

Amicus Curiae : Ms R B Phillips appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Amicus Curiae : State Solicitor for Western Australia

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

Brown's Valve Service Pty Ltd v Cristina [1997] 1 VR 536

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

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

Hogben v Darcy [2009] WADC 63

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

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

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

S v Neumann (1995) 14 WAR 452

SW v BB [2010] WADC 86

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Zumeris v Testa [1972] VicRp 97; [1972] VR 839

1 SCHOOMBEE DCJ: This is an appeal under the Criminal Injuries Compensation Act 2003 (the Act) against the decision by the Assessor of Criminal Injuries Compensation. The grounds of appeal state that the assessor's award of compensation in the amount of $2,389.50 was inadequate.

2 The assessor allowed the sum of $2,000 as compensation for injuries and $389.50 for treatment expenses.

3 Mr Homewood, the appellant, was assaulted by a 14-year-old female who hit him on the right side of his face with an object that Mr Homewood could not identify at the time. Mr Homewood had gone to McDonalds late one evening to buy a hamburger and on leaving the premises was insulted and subsequently assaulted by the 14-year-old girl.

4 Mr Homewood had some previous dealings with the girl. He told the assessor in a statement of effect that he had given the girl some money and food on previous occasions when she had asked for assistance. After a while he had refused to give her any more money and this lead to her becoming abusive whenever he happened to meet her in the street.

5 Mr Homewood suffered a superficial laceration over his right eyebrow about 2 cm in length as a result of the blow on the side of his face. He told the assessor that the wound bled profusely. After arriving back home Mr Homewood called an ambulance and was taken to Peel Health Campus. The wound was dressed, steristrips were applied and he was kept overnight for observation. Mr Homewood said he had a severe headache that evening. X-rays were taken the next day and he was then discharged. He obtained some pain medication from his general practitioner.

6 The assault took place on 23 September 2010 when Mr Homewood was aged 49. At the time of the assault Mr Homewood was travelling in an electric shop rider, also called a gopher. Mr Homewood has been an incomplete tetraplegic as the result of an injury he suffered when he fell into a swimming pool in 1993. He has very little use of his left arm and hand and lacks proper control of his left leg. He only has partial use of his right arm and right leg. At home he uses a wheelchair to get about and can only walk small distances. The incomplete tetraplegia has also caused a problem with depth perception which means that he has difficulty negotiating steps and getting in and out of his wheelchair.

7 In 2001 Mr Homewood suffered a further cervical injury as a result of losing control over a vehicle and colliding into a tree. In 2007 Mr Homewood fell out of his motorised wheelchair and suffered an injury to his right shoulder.

8 Approximately two weeks after the assault Mr Homewood was involved in another accident when he was knocked off his gopher by a motor vehicle exiting an 'Entrance Only' driveway at a shopping centre. He suffered a further injury to his right shoulder and right hip.

9 The only information provided to the assessor regarding ongoing problems arising from the assault was that Mr Homewood still suffered headaches on the right side of his head and that he had taken pain killers in the past for headaches and other symptoms associated with the incomplete tetraplegia. Mr Homewood also told the assessor that after the assault he felt anxious at night times at home and was reluctant to go out on his gopher as he used to do. He was particularly on edge when he saw a group of young people around and worried that the girl and her friends might come to his house. Mr Homewood told the assessor that he found it hard to sleep because the incident played over in his head and he was worried that it could have had a worse outcome.

10 There was no medical evidence placed before the assessor concerning the physical or psychological impact of the assault on Mr Homewood.

11 Pursuant to s 56(1) of the Act an appeal against an assessor's decision is to be decided fresh by the court of appeal and the court may receive further evidence and information.

12 Mr Homewood filed a report by Dr Goodheart, a consultant neurologist, dated 27 March 2012 for purposes of the appeal. Dr Goodheart expressed the opinion that Mr Homewood sustained a flexion extension injury to his cervical spine in the course of the incident. This had lead to soft tissue symptoms and associated muscle contraction headaches. The headaches were likely to persist for the foreseeable future and had caused a 5% loss of function of the cervical spine in addition to the long standing cervical injuries and symptoms that Mr Homewood already suffered from because of his earlier accidents. Dr Goodheart explained that the estimate of 5% included the muscle contraction headaches which resulted from the flexion extension injury to the cervical spine. Dr Goodheart suggested some sessions of physiotherapy or scalp massage to relieve the headaches.

13 Mr Homewood also filed a further affidavit for purposes of the appeal, dated 27 April 2012. He explained that prior to the assault he had suffered from occasional headaches on the left side of his head. However since the assault he continued to suffer right-sided headaches which were different to the headaches that he had suffered from previously. The right-sided headaches started at the base of his neck and went all the way to the front of his head. They occurred three to four times per week, sometimes less. Mr Homewood said he would take Panamax tablets on occasion of suffering these headaches.

14 Mr Homewood also asked the court to take note of the scar that was left crossing his right eyebrow at a 90 degree angle. He said in his affidavit that he was aware of the scar whenever he looked in the mirror and that it was often itchy. I have observed the scar. It forms a thin line at a right angle above the eyebrow but is hardly visible from a distance of a couple of metres. I accept that it would be annoying to Mr Homewood when he looks at himself in the mirror at a close distance.

15 Mr Homewood also provided the court with an undated report by Dr German-Belmont, clinical psychologist, which from its content seems to have been provided less than a year after the assault by the 14-year-old girl. Dr German-Belmont diagnosed Mr Homewood as having developed a severe post traumatic stress disorder after the assault by the 14-year old girl.

16 The report by Dr German-Belmont indicated that Mr Homewood had suffered from a depressive disorder, a severe generalised anxiety disorder, a severe panic disorder with agoraphobia and attention deficit hyperactivity disorder for several years. Dr German-Belmont indicated that the depressive and anxiety disorders developed shortly after Mr Homewood's accident in the swimming pool in 1993, but that he had recovered from these disorders by 1997.

17 Dr German-Belmont said after the motor vehicle accident in 2001, which caused Mr Homewood to return to the use of a wheel chair, the anxiety and depression disorders re-occurred. The panic disorder with agoraphobia and attention deficit hyperactivity disorder developed in 2007 after Mr Homewood fell out of his wheel chair whilst negotiating a difficult passageway.

18 A further report by Dr German-Belmont, dated May 2009, stated that Mr Homewood was in great need of psychological support and therapy.

19 Mr Homewood acknowledged in his affidavit filed for purposes of the appeal that he had previously suffered from depression, particularly after the motor vehicle accident in 2001 and also in 2008 when he realised that he was unable to progress the university studies that he had started because of the pain and spasms in his left arm and his lack of energy. He then sought psychological counselling with Dr German-Belmont and was prescribed antidepressant medication.

20 Mr Homewood stated in his affidavit that his depression improved and he ceased counselling in about 2009. He said at the time of the assault he was not receiving any counselling and was feeling reasonably well psychologically.

21 A progress note by Mr Homewood's general practitioner, Dr Kiran Puttappa, dated 18 August 2010, which was also provided to the court on appeal, indicated that at that time (about one month prior to the assault) Mr Homewood's depression was under control, although he still seemed to be on Lexapro, an antidepressant.

22 Mr Homewood filed a further report by Dr Ng, psychiatrist, dated 28 February 2012, for purposes of the appeal. Dr Ng referred to earlier bouts of depression experienced by Mr Homewood in 1993, 2001 and 2004, but reported that Mr Homewood had told him that in the two years prior to the assault in 2010 he had only been occasionally depressed and could not remember whether he had been on antidepressants. However, Dr Ng also stated that Mr Homewood had told him that his dosage of Lexapro was increased after the assault at McDonalds. It therefore seems that Mr Homewood's depression was under control but still medicated with Lexapro prior to the assault.

23 Dr Ng expressed the opinion that Mr Homewood's depression was significant exacerbated by the assault, but that the depressive symptoms had improved since then.

24 Dr Ng came to the conclusion that Mr Homewood developed an anxiety disorder with some reported symptoms resembling post traumatic stress disorder which was entirely referrable to the assault. Dr Ng indicated that, although the anxiety disorder had improved since the assault, Mr Homewood still suffered residual anxieties about going out at night time and about young people attacking him. Dr Ng noted that Mr Homewood was likely to have some occasional bad dreams about the assault and to remain guarded and hypervigilant when out on his gopher. This would make him feel more restricted and confined to his home. Dr Ng indicated that these anxieties were likely to last for the foreseeable future.

25 Dr Ng recommended that Mr Homewood have four to six sessions of psychotherapy to address the residual depressive symptoms and anxiety stemming from the assault. The cost of each session would be $315.

26 Dr Ng also suggested that Mr Homewood continue using Lexapro and said 10% of the need for this antidepressant could be attributed to the assault.

27 Pursuant to s 55(3) of the Act an appeal must be commenced within 21 days after the date of the assessor's decision. The assessor's award was handed down on 11 October 2011. The notice of appeal should therefore have been filed at the latest on 1 November 2011. Mr Homewood submitted it to the District Court on 21 November 2011 which was 20 days out of time.

28 Mr Homewood filed an affidavit by his current solicitor, Mr Klein, dated 6 February 2012 to explain the delay. Mr Homewood had received the assistance of Peel Community Legal Services in respect of his application for criminal injuries compensation. After the award was handed down and Mr Homewood was dissatisfied with it, Peel Legal Services indicated that they would not be able to assist him with an appeal. Mr Homewood rang a number of solicitors in his area, but they all advised him that they were either unable to assist him or required payment of fees upfront. As a result of Mr Homewood's financial circumstances he was unable to pay any legal fees upfront. Mr Homewood eventually went to see Stephen Browne Lawyers in South Perth on 17 November 2011 and Mr Klein accepted his instructions to act for him in relation to the appeal.

29 Pursuant to s 55(4) of the Act the District Court may allow an appeal to be commenced after the 21 day period if it is just to do so. As I explained before (see SW v BB [2010] WADC 86 [19]), the factors listed in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, 480 as being applicable to the exercise of a discretion to extend the time for the filing of an appeal should be applied when the discretion under s 55(4) of the Act is exercised. These factors are:

1. the history of the proceedings;
2. the conduct of the party;
3. the nature of the litigation;
4. the consequences for the parties of the grant or refusal of an extension of time;
5. the prospects of the appellant succeeding;
6. the fact that upon the expiry of the time for appealing, the respondent had a vested right to retain the judgment.

30 Applying these factors, it should be noted that the delay in filing the appeal was relatively short and a reasonable explanation has been provided for the delay. It is understandable that Mr Homewood may have had difficulty in finding solicitors who were prepared to deal with what must have appeared to be a small claim regarding criminal injuries compensation.

31 The purpose of the Act is to fairly compensate parties who have suffered injury or loss as the result of a proven or alleged offence and its purpose is therefore beneficial.

32 As Mr Homewood only relies on an alleged and not a proven offence, there is not a respondent whose vested rights will be affected by allowing the extension of time for filing the appeal.

33 On the basis of the further evidence filed for purposes of the appeal the prospects of the appeal succeeding are good.

34 In light of all these factors it is just to allow the appeal to be commenced after the 21 days and I do so.

The law applicable to the assessment of criminal injuries compensation

35 Pursuant to s 17 of the Act a victim who suffers injury as a consequence of the commission of an alleged offence may apply for compensation for the injury and any loss suffered. In this case the 14-year-old girl was not charged with the offence because Mr Homewood was not able to describe her accurately enough for the police to identify her. Mr Homewood told the assessor in his statement of effect that he was frustrated by the fact that he could not identify the girl, although he had previous contact with her. The assessor was nevertheless satisfied that an alleged offence had occurred and that Mr Homewood was entitled to compensation for the injury suffered as a result of the alleged offending. There is no reason to deviate from that conclusion.

36 Counsel acting on behalf of the Chief Executive Officer of the Department of the Attorney General, amicus curiae, referred the court to the police running sheet which indicated that the police had asked Mr Homewood whether he could accurately describe the facial features of the girl so that an identikit could be constructed. The running sheet contained the following entry 'despite have a minor unreported incident previously with the POI states he wouldn't'.

37 The running sheet also indicates that CCTV footage showed a female pushing Mr Homewood's gopher from behind, Mr Homewood getting out of the gopher and taking a step or two in the girl's direction before returning to the gopher and chasing the girl in his gopher for a few seconds. Mr Homewood's gopher then disappears out of sight with the girl following behind. The police note in the running sheet that the assault as described by Mr Homewood is not shown on the CCTV and the girl cannot be identified from the footage.

38 Counsel for the chief executive officer referred the court to s 38 of the Act which provides that a compensation award should not be made if the assessor is of the opinion that the victim of the offence, or alleged offence, did not do any act which he ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence.

39 Apart from the word 'wouldnt' appearing in the police running sheet, there is no indication that Mr Homewood did not attempt to assist the police in identifying the girl as best as he could. Counsel for the executive officer suggested that it was open to the court to question Mr Homewood in this regard, as the court has the same powers as an assessor. However, Mr Homewood stated in his statement of effect provided to the assessor that he was frustrated by the fact that he could not identify the girl and, in my view, it would be quite inappropriate to cross-examine him in that regard. There was no indication from the police that Mr Homewood had indeed been uncooperative and the reference in the running sheet to 'wouldnt' rather than 'couldn't' is likely to be a typographical error, particularly if one takes into account the remainder of the style in which the running sheet is written.

40 The assessor was satisfied that an alleged offence occurred and that Mr Homewood should be entitled to a compensation award in respect of the injuries received as a result of the alleged offence. There is no reason to deviate from these conclusions.

41 Pursuant to s 17(2) a person who suffers injury as a consequence of an alleged offence may apply for compensation for that injury and for any loss also suffered. 'Injury' is defined in s 3 of the Act as 'bodily harm, mental and nervous shock, or pregnancy'.

42 The phrase 'mental and nervous shock' has been construed as including any malfunction of the victim which can be seen to be a consequence of the impact of events constituting the offence, or associated with the commission of the offence, as those events impact on the mind or nervous system: **Hatfield v Under Secretary for Law (**Unreported, WASC, Library No 4012, 15 December 1980)5. Mental and nervous shock includes distress, horror, disgust and other similar adverse mental reactions, but excludes mere fright, humiliation or anguish: M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992) 10 - 11. What is contemplated by the Act is not a mere emotional reaction but something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury: S v Neumann (1995) 14 WAR 452, 461.

43 There is no doubt that the depression and anxiety that Mr Homewood currently suffers from, as well as the post traumatic stress disorder diagnosed by Ms German-Belmont, qualify as 'mental shock' which is compensable.

44 In determining the appropriate amount of compensation the correct approach is to apply the ordinary tortious principles for assessment of damages subject to the jurisdictional limit imposed by the Act: M v J and J v J. In assessing the amount of compensation the court should have regard solely to the injury suffered by the applicant in consequence of the commission of the offence. The amount of compensation is not to be fixed as punishment of the offender or as an expression of sympathy for the victim: B v W (1989) 6 SR (WA) 79, 89.

45 As the appeal is a rehearing, the court of appeal is not bound by the determination of the assessor. However, because the assessor is a specialist tribunal, it is appropriate to take into account the assessor's reasons for making the particular award: Hogben v Darcy [2009] WADC 63 [13].

46 The reports by Dr German-Belmont and Dr Ng, as well as the progress notes by Dr Puttappa make it clear that Mr Homewood suffered from pre-existing depression and, to some extent, also anxiety. The depression appears to have been stabilised just prior to the assault and not to have had a substantial effect on Mr Homewood's general feelings of well-being. The assault exacerbated Mr Homewood's depression, as his dosage of Lexapro was increased after the assault. Accordingly to Dr Ng's report, Mr Homewood's depressive symptoms increased further when he was hit by the motor vehicle about two weeks after the assault. Dr Ng allocated approximately 10% of the need for the continued use of Lexapro to the alleged assault.

47 I accept on the additional evidence before me that the assault on 23 September 2010 increased Mr Homewood's feelings of depression, although his depressive symptoms had improved again by the time that Mr Homewood saw Dr Ng in February 2012. Some allowance should be made for the increased symptoms of depression between September 2010 and February 2012 and also for about 10% of Mr Homewood's ongoing depression.

48 It is also apparent that Mr Homewood suffered to some extent from an anxiety disorder prior to the assault. However, Dr Ng was of the view that the symptoms that Mr Homewood was experiencing when he saw Dr Ng in February 2012 were specifically as a result of the alleged assault. Dr Ng described those symptoms as being of a moderately severe extent.

49 Mr Homewood stated in his affidavit, dated 27 April 2012, that he was still reluctant to leave his home and would only do so if absolutely necessary. Prior to the assault he went to church twice every Sunday, but now he no longer attended those services. Mr Homewood said he also enjoyed going to the Mandurah foreshore to talk to friends who were fishing or prawning. He reported that he had stopped going to the foreshore. Mr Homewood also said he liked going to his local shopping centre to wander around and talk to shopkeepers and friends. Since the assault he had become less social and felt somewhat like a hermit.

50 Mr Homewood stated in his affidavit that he was still easily startled by noises outside his unit and was extra vigilant. Prior to the assault he was not fearful, but now he slept with a large knife next to his bed. Mr Homewood said his insomnia had become worse since the assault and he still suffered from nightmares about the assault. He often ruminated about the incident, particularly if memories of the assault were triggered by sounds or things he had seen on television.

51 I accept that these symptoms of anxiety are solely related to the assault and that Mr Homewood should be entitled for compensation in relation to the anxiety symptoms that are specifically related to the assault.

52 In the law of tort a plaintiff is entitled to all the loss and damage flowing from a personal injury, as long as the defendant's conduct made a material contribution to the injury: March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 514. Where a plaintiff already suffered from a pre-existing physical or mental condition, but was almost certain to have gone through life unaffected by the pre-existing condition, the defendant remains liable for all the loss and damage resulting from the injury: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, 159 - 160, 163; Brown's Valve Service Pty Ltd v Cristina [1997] 1 VR 536, 543 - 544.

53 Where the pre-existing condition is of a type that would have affected the plaintiff irrespective of the injury, the defendant is only liable for the damages resulting from an increase in the condition or the acceleration of the onset of symptomatology from the condition which was brought about by his wrongful act: Watts v Rake, 160 and Zumeris v Testa [1972] VicRp 97; [1972] VR 839, 843. In order to disentangle the effects of the defendant's wrongful act and the effects of the pre-existing condition there must be evidence which establishes with some reasonable measure of precision what the pre-existing condition was and what its future effects, both as to their nature and future development and progress, were likely to be: Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, 168.

54 There is an evidentiary burden on the defendant to adduce evidence that the plaintiff's condition was wholly or partly the result of some pre-existing condition: Watts v Rake (160) and Purkess v Crittenden (168). Where it is not possible to disentangle the effects of the wrongful act on the plaintiff and the future effects of the pre-existing condition, the plaintiff is entitled to all the loss and damage flowing from his current and likely future condition or capacity: Watts v Rake (160).

55 In this case Mr Homewood's pre-existing depression and anxiety had stabilised to such an extent that one can disentangle the effects of the assault on his mental health from the effects of the pre-existing conditions. Prior to the assault Mr Homewood already suffered from depression which required the intake of Lexapro. Dr Ng was of the view that only 10% of the ongoing need for Lexapro could be ascribed to the effects of the assault. Mr Homewood is therefore only entitled to compensation which reflects the 10% increase in the symptoms of his depression brought about by the assault plus some extra compensation for the higher levels of depression experienced for about a year after the assault.

56 With regard to the current symptoms of anxiety or post-traumatic stress syndrome, they are all related to the assault. It does not appear that Mr Homewood's pre-existing anxiety affected him to any substantial extent prior to the assault.

57 In light of the additional evidence before this court the compensation to be awarded to Mr Homewood for his mental health injuries should be re-assessed. The total compensation should reflect the physical pain and suffering experienced by Mr Homewood as a result of the gash received to his forehead, the relatively minor disfiguration caused by the permanent scar, the continuing headaches on the right side of his head three to four times per week, the slight exacerbation of his depression and particularly the development of particular anxiety symptoms.

58 Taking into account all these matters and the medical reports placed before me, I am of the view that Mr Homewood should be entitled to the sum of $20,000 in compensation for his injury.

59 In addition Mr Homewood has incurred losses, which are the costs of the ambulance in the amount of $389.50, the costs of Dr Goodheart's report in the amount of $1,320 and the costs of the medico-legal reports by Dr Ng in the amount of $1,430.

60 The notice of appeal did not specifically ask for an amount to be allocated for future medical expenses. However, because there is evidence before me which indicates that Dr Ng was of the opinion that Mr Homewood should have four to six psycho-therapy sessions at $350 per session, I will make an allowance for future medical expenses.

61 Mr Homewood also stated in his affidavit that he has to pay $5.80 for his antidepressants once a month. The rest is covered under the Healthcare scheme. However, Dr Ng has only assigned 10% of his depression to the assault which means that Mr Homewood should be allowed $0.58 per month over a period of five years which results in $34.80.

62 In all the circumstances it seems fair that a global amount of $2,000 be allowance for future medical expenses that are reasonably incurred as a direct consequence of the injuries suffered by Mr Homewood during the assault.

63 Pursuant to s 48 of the Act the compensation allowed for future medical expenses will not be paid directly to Mr Homewood but will only be paid upon the assessor being provided with evidence that expenses have been reasonably incurred on behalf of Mr Homewood for treatment that he required as a direct consequence of the injuries suffered by him.

64 Accordingly, I make the following compensation award: