Briginshaw v Briginshaw

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Assessment for damages - Turns on own facts

Criminal Injuries Compensation Act 2003

Ms G M Mullins appeared on behalf of the Chief Executive Officer for the Department of Justice

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Hayman v Cartwright [2018] WASCA 116

Martin v Martin [2015] WADC 138

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

Moncrieff v Bishop [2007] WADC 198

Parsons v McWilliam [2002] WADC 62

Re ATS [2017] WADC 92

Re Hojetzki [2009] WADC 77

Scatchard v R (1987) 27 A Crim R 136

TAW v NJS [2011] WADC 187

1. In circumstances where no-one was charged with any criminal offence, has the appellant, Ms Francesca Warrek, established on the balance of probabilities that she was the victim of a criminal offence on 10 November 2015? If so, is it appropriate to award her an amount in compensation?
2. On 20 April 2018 Ms Warrek applied for criminal injuries compensation. Ms Warrek alleges that on 10 November 2015 her sister, Ms Ernestine Lethbridge, punched her to the face at Ms Lethbridge's home in Kununurra. There was a brief police investigation, but Ms Lethbridge was never charged with any criminal offence. Accordingly s 17 of the Criminal Injuries Compensation Act 2003 (WA) applies. A Criminal Injuries Compensation Assessor reached a preliminary view, based on the available information, that the striking was an accident in the sense described by s 23B of the Criminal Code (Code). Ms Warrek provided further written submissions, but on 7 November 2018 her application was formally refused. The assessor considered that the further submissions were inconsistent with Ms Warrek's witness statement to the police. Ms Warrek appeals against this refusal.
3. Ms Warrek does not have to demonstrate that the assessor erred in order to succeed. Ms Warrek was required to prove to the assessor's satisfaction, on the balance of probabilities, that her sister committed a criminal offence against her and the same applies on this appeal. Ms Warrek must establish, on the balance of probabilities, that she was assaulted by her sister. In doing so it is necessary that she negatives any defences reasonably open. Save as to the lesser standard of proof, she must persuade the court as if she were prosecuting the criminal offence.
4. In this case there is no respondent. The State Solicitor for Western Australia appeared on behalf of the Chief Executive Officer of the Department of Justice in the role of amicus curiae (amicus). I have been greatly assisted by the detailed written submissions filed by the amicus on 7 March 2019, coupled with the oral submissions during the hearing before me on 11 March 2019.
5. The amicus submitted that the principles enunciated by the High Court in the decision of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 are regularly applied in the context of criminal injuries compensation. In terms, the strength of the evidence necessary to establish a fact on the balance of probabilities may vary depending on the seriousness of that which is to be proved. I agree, however, with the observations of Herron DCJ in Re ATS [2017] WADC 92 [30] that there is some doubt as to the extent to which Briginshaw v Briginshaw applies in cases such as this. I am not making a finding that a party to the proceeding committed a criminal offence where that party opposes such a finding. Rather, I am required to have regard to the remedial and beneficial purpose of the Act which is an act to provide for the payment of compensation to victims of offences in some circumstances, and for related matters. As Herron DCJ observed in Re ATS at [31] an application for criminal injuries compensation is not a civil proceeding. The proceedings are not adversarial. An assessor is not bound by rules of practice or evidence: s 18 of the Act. The Briginshaw principle is a rule of evidence.
6. Under s 24 it was open to the assessor to conduct a hearing, with such a hearing governed by s 25 and s 63. In the present case the assessor did not conduct a hearing. Ms Warrek has exercised her right to appeal under s 55. The powers of the District Court on appeal are provided for by s 56. Section 56 (1) permits the court to receive further evidence and information that was not in the possession of the assessor.
7. Again as Herron DCJ noted in Re ATS at [91] this court may not conduct the type of hearing an assessor is empowered to conduct (but in this case did not) under s 25. As his Honour pointed out, the type of hearing the District Court is empowered to conduct under s 56 is of a more limited nature than the type of hearing contemplated by s 25, even though in the present case the assessor dismissed the application on the papers. As his Honour also noted at [104] and [105] this court has the power to receive viva voce evidence but it does not have the power to conduct a hearing as though it was a trial, which an assessor is empowered to conduct pursuant to s 24 and s 25. The appeal is not conducted as an adversarial proceeding.
8. The amicus, correctly it seems to me, raised no objection to my receiving further information from Ms Warrek on the following three topics:
   • The reason for the inconsistency between the account of the assault in her typed witness statement compared to subsequent statements;
   • Whether any physical injury amounting to bodily harm was caused by the punch; and
   • Whether receiving this punch resulted in any mental and nervous shock.

1. The assessor accepted that Ms Lethbridge struck Ms Warrek on 10 November 2015. As the amicus submitted, from an assessment of the evidence there appears to be no doubt that this occurred and so it is open to me to find that there was an assault within the meaning of s 222 of the Code. On 3 December 2015 Ms Warrek provided a witness statement consisting of 26 short paragraphs witnessed by a police officer, Simon Hawes at 12:20 hours on that date. The incident report reveals that Mr Hawes was, 'at the scene' between 11:20 and 12:20 hours. Ms Warrek is adamant that her statement was taken at Kununurra Police Station. Having considered all the documentation in incident report 031215 1120 10492, I am satisfied that the reference to 'at scene' should not be taken literally. This is an instance of the use of a pro forma template without any amendment to reflect the actual realities of the situation. The document reveals that the alleged offence was reported in person at 11:20 hours. In my view the documentation taken as a whole is consistent with Ms Warrek's attendance at the police station at 11:20 hours, with her statement then taken over the next hour.
2. More fundamentally, the brief witness statement described Ms Warrek overhearing an argument between Ms Lethbridge and Ms Lethbridge's adult daughter, Sherie. Ms Warrek then described witnessing a physical struggle whilst Ms Warrek was standing near them. Paragraph 17 reads:

Ernestine swung out with her left fist and struck the right side of my jaw causing immediate pain and discomfort.

1. Police did not obtain any other witness statements. On the materials before me I conclude that Sherie, in particular, initially persuaded Ms Warrek not to make a criminal complaint. Having attended at a hospital on 30 November and 1 December 2015, Ms Warrek decided that she would make a complaint. It is not uncommon for victims of crime not to immediately complain to the authorities. On 4 December 2015 the police decided there was insufficient evidence to charge Ms Lethbridge. The police regarded the incident being an accident with Ms Lethbridge having no intention of assaulting Ms Warrek. The police noted that Kununurra Mental Health were already involved with the family and the matter was more of a 'mental health issue'.
2. Given that Ms Lethbridge was not charged with any offence s 17 is engaged. That section relevantly reads as follows:

(1) This section applies if an alleged offence is committed but no person is charged with the alleged offence.

(2) A person who suffers injury as a consequence of the commission of the alleged offence may apply for compensation for that injury and any loss also suffered.

(4) An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied -

(a) if the application is made under subsection (2) - that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the alleged offence;

(5) If an assessor is satisfied that the person who committed the act or made the omission that constitutes the alleged offence was, at the time of the act or omission, not criminally responsible for it, the alleged offence is to be taken not to have been committed for the purposes of subsection (4) unless the person was not criminally responsible for it by reason of The Criminal Code section 27.

1. As will be seen when I consider the aspect of whether any bodily harm was inflicted, on 3 December 2015 Ms Warrek would have displayed no observable injuries. The police would have had some knowledge of the allegation, in that the incident report reveals that police attended on 10 November 2015 to conduct a welfare check and then spoke to Sherie. Sherie advised them that her mother had accidentally struck Ms Warrek to the face that morning. Having had regard to Ms Warrek's various communications in this matter, I find that she has a tendency to express herself in a way that might be regarded as overly dramatic and, on occasions, inappropriate. In Ms Warrek's written submissions of 5 March 2019 she concluded by observing:

The perpetrator, Ernestine's motive was cruelty, greed and jealousy. My motive was protection, being heard, telling the factual truth, survival and justice.

1. Ms Warrek commenced her written supplementary submissions of 1 November 2018 with, 'Charmaine' (the first name of the assessor) and then continued:

Thank you for your informative and enlightening assessment. I appreciate given the opportunity to respond even if in the end it's an exercise in futility. But hey, I'm used to it.

1. Ms Warrek informed me during the hearing that the police hurried her when she was completing her statement. She wanted to put further information into her statement but Mr Hawes told her not to elaborate. I am satisfied that her subsequent account that this was a deliberate punch as opposed to an accidental blow in the course of Ms Lethbridge's struggle with Sherie, is not a recent invention or fabrication. Rather, it is an account that Ms Warrek would have liked to have given when her statement was taken. In order to expedite the process Mr Hawes assured her that such details were superfluous. I am fortified in that conclusion by the fact that two days earlier the medical notes show that Ms Warrek attended the hospital and asserted that she had been 'king hit.'
2. On two separate occasions Ms Warrek has annotated her original witness statement so as to correct what she considers to be the misleading impression that this was an accidental blow. By those annotations she makes it clear that it was a deliberate blow. These annotations, I am told, would probably have been made during a time when she was discussing with legal aid the possibility of an application for criminal injuries compensation. Further details are also provided in an annexure to the 20 April 2018 application and to the written supplementary submissions of 1 November 2018. Whilst there are some internal inconsistencies, as the amicus pointed out in its written submissions, the only significant inconsistency is the difference between on the one hand the original witness statement at par 17 and on the other hand the subsequent statements. As I have noted, that inconsistency is explicable. During the hearing the amicus did not invite me to reject Ms Warrek's account based on any other inconsistencies.
3. I am satisfied on the balance of probabilities that Ms Lethbridge delivered a single, deliberate blow to Ms Warrek's face. That being the case, the potential defences of accident, an unwilled act and a mistaken but reasonable belief as to the facts; respectively s 23A, s 23B and s 24 of the Code as discussed in Hayman v Cartwright [2018] WASCA 116, do not arise.

1. The incident report reveals that the police investigated an allegation of assault occasioning bodily harm contrary to s 317 of the Code. That alleged offence consists of the following elements. Firstly, that the person said to be the offender was the particular accused. Identity is not an issue. Secondly, that Ms Lethbridge assaulted Ms Warrek. Assault is defined by s 222 of the Code as follows:

A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.

1. As I have noted I find that Ms Lethbridge did assault Ms Warrek. It is the third element that is really in issue here. The third element is that Ms Warrek suffered bodily harm, that is (as defined in s 1 of the Code), 'Bodily injury which interferes with health or comfort'. I adopt and apply the holding of Burt CJ in Scatchard v R (1987) 27 A Crim R 136, 137 that:

While bodily injury can cause the sensation of pain, a sensation of pain in itself does not, of itself and without more require, you to say that there has been a bodily injury.

1. In the event that bodily harm is not established, common assault under s 313 of the Code is an available statutory alternative.
2. The fourth element is that any bodily harm resulted from Ms Lethbridge's assault. The final and fifth element is that the assault was unlawful, that is it was not authorised, justified or excused by law. There is no suggestion here of self-defence. Ms Warrek has established that the assault was not excused on the basis of accident, unwilled act or mistake of fact.
3. I turn to consider what the evidence is of any bodily harm. No photographs were taken of any injuries and there is no suggestion that there was any visible injury as of 3 December 2015. In her witness statement Ms Warwick refers to feeling pain and discomfort and needing to apply ice to her jaw.
4. Medical notes for 30 November 2015 describe an attendance at 13:50 hours. Ms Warrek was able to open her mouth fully and push her jaw from side to side. She had no difficulty eating. She reported being 'tender' in the area of the right lower jaw but there was no visible swelling in that area. No X-ray was required and no medication was required other than Panadol. Ms Warrek re-attended the following day on 1 December 2015, complaining that the pain has worsened since the previous day. On examination Ms Warrek's face was not swollen, no fracture was seen on X-ray and she was non-tender on palpating the inner side of the oral cavity. She was described as an 'essentially long detailed historian'.
5. Moving forward two years, there is a report from a radiologist, Dr Sonja Raven dated, 29 December 2017. That report describes a palpable lump along the right jaw line of benign appearance which was of no clinical concern. Dr Raven noted that Ms Warrek only noticed the lump a week earlier and stated, 'it may be related to a punch one year ago'. I am not satisfied that this lump, observed as it was in late December 2017, is attributable to the punch delivered on 10 November 2015, even though it is in the same area. I am not satisfied that Ms Warrek has established on the balance of probabilities that the punch caused her bodily harm. Accordingly, Ms Warrek has not satisfied me that an offence contrary to s 317 occurred. I am satisfied, however, on the balance of probabilities that Ms Lethbridge assaulted Ms Warrek contrary to s 313.
6. Section 38 of the Criminal Injuries Compensation Act relevantly provides that an assessor must not make a compensation award in favour of a victim if the victim did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence. I am not satisfied that s 38 is enlivened by Ms Warrek's failure to persuade Mr Hawes that the allegation that Ms Lethbridge deliberately punched Ms Warrek should be included in the witness statement. I am quite satisfied that Ms Warrek was not deliberately trying to protect Ms Lethbridge at this stage.

1. Compensation is payable where a person has suffered 'injury' in consequence of the commission of an alleged offence: s 17(2). The maximum amount of compensation that may be awarded for a single offence is $75,000: s 31(1). The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases.
2. The burden is on Ms Warrek to establish, on the balance of probabilities, a causal relationship between the assault and the injury and loss for which compensation is sought: s 3. It is not necessary for Ms Warrek to establish that the assault was the sole cause of any injury or loss. It is sufficient for her to establish that the assault materially contributed to any injury or loss: see Martin v Martin [2015] WADC 138 [83] (Derrick DCJ) and the authorities cited therein.
3. Section 3 defines injury as meaning bodily harm, mental and nervous shock, or pregnancy. Section 35(2)(b) permits a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence, even where the victim has not also suffered bodily harm.
4. The correct approach in fixing the appropriate amount of compensation is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act and the jurisdictional limit. In assessing the amount of compensation which should be awarded I must have regard solely to the injury suffered by Ms Warrek in consequence of the commission of the alleged offence, and not to the seriousness of the offence. The amount is not to be fixed as punishment of the offender although that consideration does not arise here. Nor should it represent an expression of sympathy for the victim.
5. Supporting medical evidence from an appropriately qualified medical practitioner is generally required to prove that an injury exists and was caused by the offence. The Court will not generally rely on conclusions made by an unqualified person on the basis of medical records without such supporting evidence: Re Hojetzki [2009] WADC 77 [48] (Sleight DCJ).
6. Generally a psychiatrist, not a clinical psychologist, should provide a diagnosis of mental disorder. Section 18, however, permits an assessor to inform him/herself as he/she thinks fit and so the question is one of weight rather than admissibility. In Moncrieff v Bishop [2007] WADC 198 [32] - [36] Commissioner Ley accepted that an applicant suffered from post-traumatic stress disorder based on reports from two clinical psychologists, in circumstances where the psychologists' opinions were supported by a general practitioner who stated the applicant's symptoms fulfilled the diagnostic criteria for PTSD found in the DSM IV.
7. Having been assaulted on 10 November 2015, Ms Warrek sought medical attention for her physical injuries on 30 November and 1 December 2015. Then, in a referral letter dated 15 December 2016 a clinical psychologist, Dr Christine Lee-Baw observed that Ms Warrek now suffered from 'severe PTSD,' implicitly as a consequence of the assault. Dr Lee-Baw noted that Ms Warrek left Kununurra in September 2016 and felt that she needed psychotherapy to recover. Another clinical psychologist, Dr Boey Leng Loy, stated in a referral letter dated 4 April 2017 that Ms Warrek felt she has PTSD from an assault, in that she had ongoing issues with sleep, felt depressed, shocked and traumatised and relived the injury all the time. She had no history of mental health issues prior to this incident.
8. A further clinical psychologist, Ms Jenni Byers provided a report on 29 January 2018. She noted that she has seen Ms Warrek on six occasions between 2 November 2017 and 25 January 2018. I note that the treatment was not confined to the after-effects of the assault, in that one session focused on Ms Warrek's childhood experiences and identified a theme of neglect and abandonment that has been relevant at times during her life. During two of the sessions Ms Warrek completed self-report measures which resulted, on each occasion, in a score that fell in the clinically significant range above the cut off for a probable diagnosis for PTSD. This report is the only objective evidence of any mental and nervous shock arising from the assault.
9. Ms Warrek was 63 at the time of the assault and is now aged almost 67. It does seem to me that Ms Warrek's condition as described by Ms Byers needs to be assessed in the context that, as Ms Warrek explained in one undated document (paginated as page 18 in the papers before the assessor), prior to moving to Kununurra she had gone through considerable grief due to her partner, mother and a cat dying. Further, that she was having trouble meeting financial commitments.
10. There is no definitive evidence that Ms Warrek in fact suffers from PTSD. Further, it is unclear whether the assault materially contributed to some or all of her reported symptoms. The phrase 'mental and nervous shock' is not defined in the Act. It has been held to comprehend any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence as those events impact on the mind or nervous system. It must be more than a mere emotional reaction, being something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury. The term includes distress but excludes mere fright, humiliation or anguish: Martin v Martin [85] and the authorities cited therein.
11. I am satisfied that Ms Warrek has suffered compensable distinct psychological harm, amounting to mental or nervous shock for a period of approximately 2 1/2 years. I am not satisfied to the requisite standard that she continues to suffer compensable distinct psychological harm, amounting to mental or nervous shock, given that the last report is dated January 2018.
12. I have had some regard to other assessments involving criminal injury compensation. In so doing I adopt the approach of his Honour Judge Jackson QC in Michael v Panetta (1994) 10 SR (WA) 323, 323 - 324, cited with approval by Bowden DCJ in TAW v NJS [2011] WADC 187 [24]. The task of assessing the appropriate amount of compensation can only be carried out by way of a broad and subjective assessment of what, according to community attitudes, would be regarded as reasonable compensation: R v Fraser [1975] 2 NSWLR 521, 523 (per Wootten J).
13. In assessing the merits of this appeal and having reviewed the available materials together with the new evidence, I regard it as appropriate to allow the appeal to an extent. I have found that Ms Warrek was assaulted and I find that as a consequence she has suffered mental or nervous shock in the sense discussed at [35]. I award Ms Warrek $5,000 in damages for that mental or nervous shock.
14. I accept the submissions of the amicus that there is no evidence before me as to any expenses actually and reasonably incurred by Ms Warrek arising directly from her injury or in obtaining reports relating to her injury. There is no evidence that Ms Warrek's psychological injuries required that she re-locate to Perth, or that any travel to Perth was reasonably incurred in obtaining a report from a health professional or counsellor in relation to such injury. There is no sufficient evidence that Ms Warrek is likely to need any future psychological treatment as a direct consequence of the injury. Although Ms Warrek referred to her injury as having caused a loss of income, there is no material before me substantiating that claim. There is no evidence that Ms Warrek suffered a loss of earning capacity that was productive of financial loss, nor any evidence that might allow the value of any such financial loss to be assessed.

1. The appeal is allowed.
2. I award compensation of $5,000 for the injuries sustained by Ms Warrek.
3. Applying Parsons v McWilliam [2002] WADC 62 [42] it is not appropriate to make any order of costs against Ms Lethbridge when she was not a party in this matter. Nor is it appropriate to make an order against the Chief Executive Officer who has appeared as amicus curiae. There will be no order as to costs.

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