1 On 28 May 2011 at about 6.15 pm the appellant, Mr Townend, was home reading the newspaper. Also in the house were three children aged 8, 10 and 11 (two of the children were Mr Townend's daughters). Three men, including the first respondent, Mr John McAlindon, forced their way into the house. There had been a history of animosity between Mr McAlindon and Mr Townend. After the three men forced their way into the house, an altercation occurred between Mr Townend and Mr McAlindon and eventually the other two male intruders joined Mr McAlindon in an assault on Mr Townend (the incident).

2 Mr Townend made a claim for criminal injuries compensation. In his application he claimed that he had suffered physical injuries in the form of bruising and swelling to his back and behind his right ear. Mr Townend also claimed that he suffered post-traumatic stress disorder as a result of the attack on him. His claim for criminal injuries compensation included a claim for loss of earning capacity arising from the alleged post-traumatic stress disorder.

3 On 27 April 2016, the Chief Assessor of the Office of Criminal Injuries Compensation awarded Mr Townend the sum of $24,601 made up as follows:

4 Mr Townend appeals against this assessment on the grounds that the Chief Assessor failed to give sufficient weight to the evidence of psychological trauma and failed to give consideration to any economic loss.

5 The respondents chose not to participate in this appeal.

6 Pursuant to s 56 of Criminal Injuries Compensation Act 2003 (WA) (the Act), the District Court must decide the application on appeal afresh on the evidence and information that was in the possession of the Assessor but may receive further evidence and information. The District Court is not fettered by the Assessor's decision. However, it is appropriate to take into account the Assessor's reasons in making judgments regarding the making and the amount of the award (see Crumby v Kuru (1995) 13 SR (WA) 331, 333 (French DCJ)).

7 The appellant, Mr Townend, presented additional documentation on the hearing of the appeal. This additional documentation consisted of the following:

Income tax returns and notices of assessment for the financial years ending 30 June 2007 to 30 June 2011;
Payment summaries from the Australian Taxation Office from 2007 to 2013;
A facsimile from the Department of Human Services to CLP Legal (Mr Townend's legal representatives) dated 19 September 2016 containing Centrelink claim history and payment information;
Records from the Sir Charles Gairdner Hospital; and
An affidavit of the appellant, Mr Townend, sworn 6 January 2017.

8 The hearing of this appeal initially came before his Honour Judge Parry on 11 January 2017, who after hearing submissions, reserved his decision. The parties to the appeal were subsequently informed that Judge Parry had decided that he ought to recuse himself from deciding the appeal because a critical issue on the appeal was a challenge to the Chief Assessor's conclusion not to attach any weight to a conclusion in a report of a psychiatrist, Dr Fred Ng, dated 28 October 2014 that Mr Townend had suffered a loss of earning capacity due to post-traumatic stress disorder arising from the offence committed on 28 May 2011. His Honour Judge Parry had previously been the Deputy President of the State Administrative Tribunal and in that capacity had judicial associations with Dr Fred Ng, who provided professional advice to the Tribunal on guardianship matters. After his Honour Judge Parry had decided to recuse himself, the parties indicated they had no objection to the appeal being heard by me on the papers, which were to include a transcript of the short hearing of the appeal before his Honour Judge Parry on 11 January 2017.

9 The respondents were convicted after trial by a judge and jury in the District Court on 29 November 2012 of aggravated burglary and aggravated assault occasioning bodily harm arising from the incident on 28 May 2011. The application made by the applicant was pursuant to s 12 of the Act, which provides for compensation where a proved offence has been committed. A proved offence is an offence of which a person has been convicted. The trial judge was his Honour Judge O'Neal who made detailed remarks concerning the circumstances of the offending. From these detailed sentencing remarks and also information from the police obtained by the Chief Assessor, I make the following findings as to the circumstances of the offending:

The sister of the first respondent, Mr McAlindon, was in a relationship with the appellant for many years but the relationship ended in 2006. There were two children of the relationship who I will describe as T R and E. I will describe the sister of the first respondent in this decision as J.
In May 2011, J had custody of their two children but their childcare arrangements allowed Mr Townend to have the children every second weekend and every Wednesday night.
In April 2011, there was an incident at the house of J. Mr McAlindon, who was visiting the house, threw a piece of glass at the child E. She slipped over on the floor. She claimed to her father, Mr Townend, on the telephone that night that Mr McAlindon pulled his pants down and placed his buttocks in her face.
Mr Townend in text messages with Mr McAlindon demanded that he stay away from his daughter and apologise to her. Also, as a result of the incident, the Department of Child Protection became involved and an interview was scheduled for 30 May 2011 with the child E.
On 28 May 2011, Mr McAlindon with friends went to the Brooklands Tavern for lunch. Mr McAlindon consumed a considerable quantity of alcohol. The Brooklands Tavern is located near where Mr Townend lived. That same day at about 3 o'clock Mr Townend went to shops near the Brooklands Tavern. Whilst walking back home from the shops Mr Townend passed the Brooklands Tavern and was confronted by Mr McAlindon who called him a dog (this being a reference to being an informer to the Department of Child Protection). The ex-partner of Mr Townend was also at the Brooklands Tavern that day. She came outside and persuaded Mr McAlindon to calm down.
Later that day, the two respondents and a third male person went to the house of Mr Townend. All three intended to enter the house and assault Mr Townend. Mr McAlindon was drunk at the time and had his shirt off. Mr McAlindon pounded on the front door of the house. The child T R observed her uncle, Mr McAlindon, outside and locked the front door. The child told Mr McAlindon to go away. He replied 'get fucked' and began banging and kicking on the door. The child T R leaned on the door to try and prevent the men from entering the house.
The three men then went to an entrance door from the garage into the house. The 10-year-old child was standing near it trying to hold it closed. Mr Townend yelled at the intruders, stating that they were to leave and that he had children in the house.
The door suddenly came open and Mr McAlindon came through swinging punches. One of these punches struck Mr Townend on the side of his face. The other two men then entered the house.
Mr Townend struck back and fell to the ground with Mr McAlindon. While struggling on the ground, Mr Townend was kicked in the ear at one point. At one point the second respondent, Mr Yusuf, jumped on Mr Townend's back, kicking him, causing a fairly large bruise on Mr Townend's back. Both Mr Yusuf and the third person were kicking at Mr Townend as he was on the ground and trying to pull him off Mr McAlindon.
At some point either Mr Yusuf or the other third person dragged or pushed away the 8-year-old child.
Whilst Mr Townend was on the ground with Mr McAlindon face down, Mr Townend was trying to bang Mr McAlindon's face into the floor. Mr Townend then grabbed Mr McAlindon by the pants and hair and threw him through a doorway. Once all three men realised the level of resistance that Mr Townend was able to offer their enthusiasm flagged and all three left.
As a result of the assault, Mr Townend suffered cuts and bruises and abrasions. These included bruising to his back and right ear.

10 The police file obtained by the Chief Assessor indicates that there had been ongoing tensions between Mr Townend and J and also after the incident between Mr Townend and a later partner Ms T. These are relevant because Mr Townend will need to establish a causal link between the incident and the post-traumatic stress disorder which he claims he suffered and which he alleges led to him suffering a loss of earning capacity.

11 As far back as 21 August 2006, Mr Townend's ex-partner obtained a violence restraining order against Mr Townend and complained to police that Mr Townend had breached the order by sending abusive text messages relating to a dispute over access to their children.

12 On 22 April 2011, Mr Townend reported to police damage to his house. There is nothing on the police file which indicates who caused the damage.

13 On 25 July 2011, Mr Townend reported damage to his car while it was parked at his address. Mr Townend believed that the damage had been caused by someone connected to J.

14 On 31 August 2011, Mr Townend reported damage to the windows of his house.

15 On 13 December 2011, Mr Townend breached a violent restraining order by attending his daughter's graduation ceremony at a primary school. Mr Townend was subsequently convicted of two counts of breaching a violence restraining order arising from the incident.

16 On 19 January 2012, a further dispute occurred between Mr Townend and J over access and police were called. Mr Townend was subsequently convicted of two counts of assault and breach of a violence restraining order.

17 On 2 January 2013, Mr Townend was involved in an incident with another female partner, Ms T. Police attended the scene and Ms T was charged with assault.

18 On 3 July 2013, the police again attended a further incident involving Mr Townend and his partner Ms T. The police incident report describes Ms T as coming off drugs and being aggressive. She was issued with a police order.

19 On 25 September 2013, the police again attended Mr Townend's house at his request due to an alleged assault by Ms T. It was alleged that Ms T had hit Mr Townend with a hard object.

20 In support of the application Mr Townend relies upon two victim impact statements dated 1 December 2014 and 22 January 2015.

21 In the first statement dated 1 December 2014, Mr Townend states that he felt very distressed over the fear the incident had caused his children and the feeling he had failed to protect them. He also alluded to other stressors in his life, including a protracted Family Court proceeding with J over the custody of the children. He claimed the children were under pressure from their mother not to give evidence against Mr McAlindon. He also stated his wife obtained an interim restraining order against him which created difficulties, innuendos and tension. Eventually the restraining order was not granted. For a period there were tensions between J and the oldest daughter and eventually the oldest daughter came to live with Mr Townend. Mr Townend stated that he no longer socialised, had experienced sexual difficulties, believed the incident caused the breakup of the relationship he was in at the time and caused him to enter into a subsequent unsatisfactory relationship. Mr Townend also stated that he had not worked for three years due to his inability to focus on anything and his low opinion of himself.

22 In the second victim impact statement dated 22 January 2015, Mr Townend stated that he had suffered two chest pain episodes in August 2011 and April 2012, which he believed were due to the stress caused from the home invasion and assault. He also stated that he had recurrent thoughts of the home invasion including 'that the offenders will attack me, now they have been released from prison'.

23 Mr Townend also filed in support of the appeal an affidavit sworn by him on 6 January 2017 (referred to earlier in this decision). In this affidavit Mr Townend stated that he was born on 27 April 1966 (and therefore is 51 years of age). He states that after the incident he lost all confidence in his ability to talk to people, concentrate and suffered anxiety and depression. He said he was terrified of living at home where the incident took place. He questioned his ability as a father because he was unable to protect his children from witnessing such an incident. He stated that after the incident he could not sleep. He stated he was terrified by every noise that he heard around the house. He stated that some days he struggled to get out of bed. He said that he was diagnosed with post-traumatic stress disorder and was placed on medication. Due to the medication he said he was unable to drive.

24 Mr Townend stated in his affidavit that at the time of the incident he was working for Kert Pty Ltd as managing director. He had just been approached by an investor to open a company to implement the NBN rollout.

25 Mr Townend also stated in his affidavit that he tried to carry on work after the incident but after two months he could not focus and he had to stop work. He stated that having survived on savings for approximately two to three months after the incident, he then had no choice but to claim Centrelink payments. He stated that he was still taking antidepressants and suffering from nightmares in relation to the incident. He stated that he struggled to function day to day.

26 The following medical evidence was presented to the Chief Assessor in support of the application for criminal injuries compensation:

(a) The Royal Perth Hospital records which indicate that on 8 August 2011 Mr Townend presented himself at the Emergency Department of the hospital at 2.30 pm complaining of chest pain which had started in the left arm. He was given some medication in the form of aspirin, GTN spray and morphine and then discharged himself against medical advice. The hospital records raised the query as to whether his condition was anxiety related.

(b) An unsigned report of Dr James Fellows-Smith, psychiatrist, dated 27 February 2012 which states as follows:

In 2003 I diagnosed Post Traumatic Stress Disorder following a home invasion in Fremantle. Mr Townend represents with re-traumatisation having had his home invaded by [J's] brother John and two of his friends after the discovery of sexual assault on the younger girl allegedly by her brother. Mr Townend presented as agitated with insomnia and loss of weight. He was preoccupied with murderous rage thoughts and in some pain with his left knee which he dislocated the day before. I took the liberty of prescribing cipromil 10mg mane and I shall review him as an outpatient.

(c) On 6 March 2012, Dr James Fellows-Smith sent a report in support of a request by Mr Townend for an early release of superannuation investments to continue with ethical treatment. The report stated:

I note that there has been an exacerbation due to re-traumatisation by home invasion the subject of ongoing criminal prosecution of a relative. He now harbours murderous rage to this person and a (sic) he has found a rapport it's reasonable that he continue with psychotherapy and pharmaco therapy with myself for the foreseeable future.

(d) On 3 April 2012, Dr Francis Akinyemi issued a medical certificate stating that Mr Townend was on medication and under specialist care for post-traumatic stress disorder.

(e) On 9 April 2012, Mr Townend was taken by ambulance to the Emergency Department of the Armadale Kelmscott Hospital suffering from a left-sided chest pain. The pain was resolved by aspirin and GTN spray. According to the hospital record, the pain came on suddenly while he was at the police station. The principal diagnosis was suspected cardiac disease. However, a Perth radiological clinic report states that there was no evidence of cardiac disease.

(f) Mr Townend was referred to a psychologist, Joanne Robinson, who in a report dated 27 August 2013 stated as follows:

Richard as you are aware has been seeing psychiatrist James Fellow Smith (sic) and has recently decided that he doesn't want to take medications as he feels that he has been numbed to the point he doesn't feel and that he needs someone to listen to his problems and help him solve them.

Due to the acute nature of his symptoms and the ongoing nature of the associated stress I explained to him that it might be likely that he will need to consider taking medication as well as therapy.

The initial session focused on explaining why he is experiencing the symptoms that he is using brain therapy and psycho education, Richard spoke about feeling relieved as he felt that someone understood. Also I began to address the extreme helplessness by focusing on a future that can occur for him and involve his children away from all the current drama et cetera.

Our sessions will continue to help Richard keep his symptoms under control, develop stronger emotional resilience and enabling more stability and a better sense of safety to redevelop in his life.

I will use Trauma Therapy, Cognitive Therapy, and brain Therapy and Emotional Resilience training.

Ms Robinson also provided notes of the treatment sessions. Some of the sessional notes mention conflict between Mr Townend and his new partner Ms T in 2013, including that Mr Townend could not go home due to a violence restraining order his partner had taken out against him. Also his anger issues related in part to the allegation of Mr McAlindon's behaviour with his daughter. He was also distressed about the mental health of his eldest daughter.

(g) On 28 October 2014, Dr Frederick Ng, psychiatrist, issued a medico-legal psychiatric report. In this report Dr Ng detailed his instructions. These instructions included a description of the allegations that:

Mr McAlindon had acted inappropriately towards Mr Townend's daughter;
That Mr Townend had been targeted by Mr McAlindon's friends who had, since Mr McAlindon had received a term of imprisonment, smashed the windows of Mr Townend's house and had slashed the tyres of his car; and
A description of the incident of 28 May 2011.

Based on the history elicited, the mental status examination, having perused your documentation and from my clinical experience, I am satisfied that your client:

- Did previously have a diagnosis of post traumatic stress disorder diagnosed many years in the past and which in time, reportedly did go into total remission.

- That following the assault the basis of this claim which occurred in May 2011, he did develop pathological anxiety and pathological depressive symptoms consistent with the diagnosis of post traumatic stress disorder. At its worst, this condition was to a moderate to moderately severe extent and with the passage of time since the assault has somewhat improved but currently remains problematic and he has ongoing residual anxiety and residual depressive symptoms.

At the time and following the assault he feared for his safety and that of his daughter and other children. Thereafter he experienced recurrent and intrusive thoughts of the incident, as well as recurrent nightmares about the incident and also of being in danger, witnessed by his children in the dreams. He lost his capacity to enjoy life, developed cognitive difficulties such as difficulties with memory and concentration, became socially withdrawn, became hypervigilant of his surroundings fearing that the offender or his associates may assault your client or his family again, along with the other symptoms as stated in the body of his report.

The reported psychiatric symptoms caused your client clinically significant distress and contributed to impairments in general, social and occupational functioning.

(b) Employment;

Immediately following the assault the basis of this claim and for at least 12 to 18 months thereafter, your client's capacity to engage in employment would have been totally impaired, although he did try to work on for about two months after the incident but found that he had difficulties with his thinking and his concentration and could not persist beyond two months.

Currently, your client's capacity to engage in employment is totally impaired.

(c) Relationships; and

Immediately following the assault the basis of this claim and for at least 12 to 18 months thereafter, your client's capacity to engage in relationship in the general sense would have been moderately to moderately severely impaired.

Currently, your client's capacity to engage in the above parameter remains between mildly to moderately impaired. Having ongoing difficulties (as an example) with irritability and impatience has caused some strained in his relationship with his current partner and also would have caused similar difficulties with his children, with his friendships and acquaintances.

(d) Personal wellbeing, self esteem and confidence

Immediately following the assault the basis of this claim and for at least 12 to 18 months thereafter, your client's sense of personal well-being, self-esteem and confidence would have been moderately to moderately severely impaired.

Currently, your client's sense of personal well-being, self-esteem and confidence remains between mildly to moderately impaired.

The prognosis and any other comments you may wish to make

With the psychiatric treatment as recommended and with the further passage of 12 to 24 months there may be some degree of psychiatric improvement.

However, given the persistence of and the problematic nature of the ongoing psychiatric symptoms arising since the incident of May 2011, and the associated functional impairment, more likely than not and in spite of any further psychiatric improvement, I would expect him to have some degree of ongoing residual psychiatric impairment due to the ongoing residual psychiatric symptoms, and into the foreseeable future.

29 The decision of the Chief Assessor refers to other medical evidence relating to treatment received by Mr Townend for neck pain in 2014 to 2016. The Chief Assessor concluded that this was not related to the incident. I need not detail this evidence as this conclusion has not been challenged in the submissions lodged by Mr Townend on the hearing of the appeal.

30 The affidavit of Mr Townend sworn 6 January 2017 sets out Mr Townend's employment history. In the 10 years prior to the incident Mr Townend was employed in a variety of business management roles. These were as follows:

2000 to 2003 Branch Manager of James Hardie windows
- 2005 to 2006 Kalgoorlie Branch Manager of Chubb Fire & Security
- 2007 to 2008 General Manager of Sayers Sports Supplies in Leeds, United Kingdom
- 2008 to 2009 Sales and Marketing Manager for The Higher Guys
2009 to 2011 State Manager of Infratel Networks (Telco)
2011 Managing Director of Kert Pty Ltd

31 The financial records of Mr Townend lodged in support of the appeal demonstrate a significant loss of income after the incident. Below is a table setting out the income details between 1 July 2006 through to 30 June 2013:

Sherrin Hire Pty Ltd/Husqvarna Construction Products Australia Pty Ltd/Concrete Equipment Services Pty Ltd

Concrete Equipment Services Pty Ltd/Infratel Networks Pty Ltd

32 The principal contention on this appeal is the contention that an allowance should be included in the award for loss of earning capacity, whereas the Chief Assessor in her reasons for decision expressly excluded any allowance for loss of earnings. The reasons given by the Chief Assessor for not including any allowance for loss of earning capacity are set out in her decision as follows:

With respect to the claim for loss of earning, I was provided with copies of the applicant's taxation assessments for the tax years ending 30 June 2009, 2010 and 2011, but not the returns. I note the incident occurred at the end of the 2011 tax year. No further taxation, income or other financial documents were received. No information was provided about the Centrelink benefits the applicant received, nor for any earnings of any kind since the end of June 2011. It appeared that the applicant had continued to work after the incident, possibly till April 2012 when there is reference in the medical notes of a medical certificate provided to the Department of Human Services (aka Centrelink). No information was received as to the nature of work done or earnings achieved in that period. In particular, no information was provided about the alleged business the applicant indicated that he intended to commence, and nothing from which his expected net earnings from it might be estimated. It appeared that the applicant had been certified unfit for work from approximately April 2012 until August 2013 when his GP's opinion was that he could work. Further, it appeared that in this period he had been required to take on full-time care of at least one of his children because of the ongoing conflict within the family arising in part because of the events the subject of the application. Any inability to work because of the applicant's need to care for his children is not compensable, even if such domestic responsibilities arose in the context of the proved offence the subject of the application. Compensation for loss of earning is limited to loss suffered as a direct consequence of the injury sustained in the incident.
Having considered all the material available I was not satisfied that the applicant had demonstrated a loss of earning capable of being quantified, suffered as a direct consequence of the injury sustained in the incident. In addition it was my opinion that his capacity to work was influenced by many non-compensable stressors and the information available to me was not sufficient to enable me to make any proper estimate of the contribution, if any, of this incident to any loss of earnings.
With respect to his psychological injury, I note that the applicant sought assistance between February 2012 and December 2013 for the psychological impact of the incident and of family and other issues arising in that period. He had not persisted with the treatment offered by Dr Fellows-Smith or by Ms Robinson and had failed to keep a number of appointments with each of them. It appeared that he had had no intervention with respect to any psychological condition since the end of 2013. I was satisfied that in that period he had had an exacerbation of a pre-existing post traumatic stress disorder which had been in remission at the time of the incident and was not then interfering with his daily functioning. I was also satisfied that that exacerbation had been significantly contributed to by the other non-compensable stressors which have been described in these reasons. I did not accept Dr Ng's conclusion based on the single interview in October 2014 that the applicant was disabled from work as a consequence of the incident and that disability prevailed at the time of that interview. Further, on the balance of the medical evidence available I was not satisfied that the applicant's neck pain treated in 2014 to 2016 was suffered as a consequence of the incident in May 2011. Doing the best that I could on the evidence available it appeared to me that the applicant suffered a degenerative condition of his neck and no specialist opinion in any of the material to which I have referred indicated that this had been caused by or contributed to by the incident in May 2011. Further, the applicant had suffered other significant head injuries and it did not appear that any specialist had had the opportunity of considering the cumulative effect of the various occasions on which the applicant had suffered head trauma.
In the application the applicant included a list of medication purchased by him between January 2013 and December 2014 from a pharmacy in Gosnells. This list included medication for erectile dysfunction, pain relief and the anti-depressant Avanza. The anti-depressant medication had cost a total of $13.90. I took this amount into account in determining compensation for the applicant's injury rather than making a specific order for treatment expenses. I was not satisfied that it was likely that the applicant was going to require further medication for his psychological condition, and in any event it was clear on the material provided to me that he objected to consumption of medication. With respect to the applicant's claim to have suffered erectile dysfunction as a consequence of the incident, the medical notes established that this was a pre-existing condition and I was not satisfied the evidence established there had been any exacerbation of the condition as a consequence of the incident. Although the applicant had failed to take up the available treatment for his psychological condition, I made provision in the compensation award for gap expenses for such treatment should the applicant wish to undergo it.
On the basis of all of the information available I determined that the appropriate compensation for the soft tissue injury and the psychological impact I was satisfied the applicant had suffered in the incident was the sum of $22,000. As set out above, I made no award for compensation for loss of earnings. The applicant had incurred the sum of $1,496 for the report of Dr Ng, and I included that amount and made a compensation award of $24,061.

33 Compensation is payable when a person has suffered 'injury and any loss' in consequence of the commission of an offence. Section 12 of the Act relevantly provides as follows:

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

(2) ...

(3) 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 (1) - that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence;

34 The standard of proof on an applicant in a criminal injuries compensation application is proof on the balance of probabilities (see Jones v Macey [2000] WADC 101).

35 The normal tort principles of causation apply to a claim for compensation under the Act. The causal connection requires the applicant to establish that his or her injuries and loss were caused or materially contributed by the offender's wrongful conduct. Generally speaking this can be established if it appears the injuries and loss would have occurred 'but for' the offending conduct. However, causation is not limited to the 'but for' test. Causation is to be determined by a value judgment involving notions of common-sense: March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506.

36 It is not necessary that the offence be the sole cause of the injuries. In Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666 the question of causation arose in the context of s 3(1) of the Criminal Injuries Compensation Act 1972 (Vic), which made compensable an injury which occurred 'by or as a result of the criminal act of the offender'. Mason and Wilson JJ said (673):

There is no basis in the context of the Act itself for regarding the words as having a narrow operation. The words are ordinary English words carrying no special or technical meaning. All that is required is a causal relationship; both the word 'by' and the phrase 'as a result of' indicate a causal connection. Whether that relationship exists or not is primarily a question of fact. The fact that other unconnected events may also have had some relationship to the occurrence is not material if the criminal act was a cause, even if not the sole cause. The only requirement is that the injury is caused 'by or as a result of ' a criminal act.

37 However, the issue that needs to be considered in this case is whether, even if the incident is said to have caused the injury or loss claimed by the applicant, other contributing factors (such as other incidents) should be taken into account in the award of compensation.

38 When the evidence establishes that non-compensable incidents have a propensity to cause the applicant's injury or loss and did contribute to the injury or loss, the award of compensation will be reduced to take into account that chance: Wilson v Peisley (1975) 50 ALJR 207; Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.

39 In Malec v JC Hutton Pty Ltd, the High Court considered the circumstances where a plaintiff was not working and the question arose as to whether his earning capacity had been destroyed in consequence of the defendant's negligence. The High Court stressed that earning capacity can only be assessed by asking the question: what award would the plaintiff have been able to earn if he had not been tortiously injured? This involves taking into account the chance that the earning capacity may have been reduced by other non-compensable events if the plaintiff had not been injured as result of the negligence of the defendant. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded (see Brennan & Dawson JJ at [1]; Deane, Gaudron & McHugh JJ at [7]): Zadeh [2015] WADC 136 [34]; MJN v MAJS (2003) 35 SR (WA) 219, 227).

40 If it is not possible to disentangle the consequences of non-compensable events from the consequences of a compensable event, the applicant is entitled to compensation for the full injury and loss if the applicant has established that the compensable event did contribute materially to the applicant's injury or loss: Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; Zadeh [34].

41 In assessing the amount of compensation to be awarded for loss of income, consideration needs to be given to the effect of s 41 of the Act which provides as follows:

In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor -

(a) must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury or death; and

(b) may, if he or she thinks it is just to do so -

(i) refuse to make a compensation award because of that contribution; or

(ii) reduce the amount that the assessor would otherwise have awarded.

42 The application of s 41 of the Act has been the subject of differing judicial opinions. In McDavitt v McDavitt [No 2] [2013] WADC 198, Davis DCJ said that s 41 was applicable in relation to a pre-existing medical condition. However, she stated that some guidance should be taken from common law principles as to the application of the section [53]. In SW v BB [2010] WADC 86, Schoombee DCJ expressed the opinion that s 41 did not apply to pre-existing conditions but common law principles applied. In Zadeh, I expressed the opinion that I did not think that in practical terms the differing views were likely to lead to a different result. Under the section the power was discretionary and was to be exercised if the Assessor concludes 'it is just to do so'. I concluded that what is 'just' would be driven by consideration of common law principles.

43 In McDavitt v McDavitt [No 2], Davis DCJ also expressed the view at [25] that even if you were unable to disentangle injuries caused by the compensable act from the non-compensable acts, then the principal that the claimant is entitled to full compensation is qualified by a line of authorities which say where non-compensable events contribute to the injury, or had a propensity to do so, the applicant is not necessarily entitled to compensation for the full injury. Her Honour in reaching her conclusion relied upon the decision of Muller DCJ in JLW v DRA [2004] WADC 214; (2004) 36 SR (WA) 301 who at [41] stated as follows:

Where, as in this case, the applicant's injury was caused or contributed to by a continuing chain of sexual abuse, part of which is compensable and part not, the question of causation becomes extremely significant. The onus is on the applicant to establish on the balance of probabilities that the claimed injury or loss occurred as a consequence of the offences or alleged offences that are deemed to be compensable. Re Carter (1984) 4 SR (WA) 219; S v Neumann (s_upra_). It is significant that an applicant is entitled to compensation even though the offences which are the subject of the application are not the sole cause of the injury. Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666 at 673; S v Neumann (supra) at 463-464. This principle, however, is qualified by a line of authorities which say that where non-compensable events contributed to the injury, or had a propensity to do so, the applicant is not necessarily entitled to compensation for the full injury. MJN v MAJS [2003] WACC 9 at [47]-[52].

44 With due respect to Davis DCJ, I take a different view to the conclusion she reached. The qualification that Muller DCJ made in JLW v DRA was a qualification to the principle that the offences which are the subject of the application need not be the sole cause of the injury suffered by the claimant. It was not a qualification to the principles applicable where it is not possible to disentangle non-compensable acts from compensable acts. If the non-compensable acts cannot be disentangled, to reduce the compensation to take into account non-compensable acts would be an arbitrary task and would mean that the legal principle that the claimant is entitled to full compensation would have no effect.

45 Mental and nervous shock are included in the definition of 'injury' in s 3 of the Act.

46 The phrase 'mental and nervous shock' is borrowed from the Law of Torts and refers to mental or emotional harm as opposed to physical injury or bodily harm. 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 (see S v Neumann (1995) 14 WAR 452, 461 (Murray J)).

47 The meaning of the word 'loss' is defined in s 6 of the Act, which relevantly provides in relation to the issue of loss of earnings as follows:

In the case of a victim who is injured, loss means -

(c) loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim;

48 The expression 'direct consequence' in the definition is to be compared with the wording in s 12. For convenience sake I will refer to s 12 as the 'liability section' and s 6 as the 'compensation section'. I believe that it is significant that the word 'direct' is not included in the liability section. In Kaplan v Lee-Archer [2007] VSCA 42; (2007) 15 VR 405, the Court of Appeal considered the wording in the Sentencing Act 1991 (Vic) which provided for compensation to be awarded for any injury 'as a direct result of the offence'. In that case, Buchanan JA (with whom Vincent JA agreed) stated as follows [25]:

In a scheme of compensation which was designed to be a cheap and expeditious remedy tacked on to a criminal trial, in my view the introduction of the adjective "direct" is intended to exclude those results which are but tenuously related to crimes in that their contribution is a minor factor in the production of the injury. Examples of injuries which, in my view, are not the direct result of crimes are where the crime is merely part of the background, one of a large number of circumstances, and by no means prominent, which produces the injury, or where there is another, supervening cause which overshadows the commission of the crime.

49 Nettle JA took a slightly different approach stating [56]:

I have therefore come to the view that when the draftsman of s 85B chose the expression 'as a direct result of the offence' he or she had in mind the sense in which the expression was used in relation to the injury in Fagan, which is to say an injury that is judged as a matter of fact, according to common sense and experience, to have been caused by the offence.

50 The position taken by Buchanan JA in Kaplan v Lee-Archer was endorsed by the Court of Appeal in Queensland in the decision of R v Foster [2008] QCA 90.

51 In my opinion, the fact that the liability clause (s 12 of the Act) does not include the adjective 'direct' puts the causation issue beyond doubt in Western Australia and the guiding principle is as stated in Fagan.

52 The question which then arises is what should be the interpretation of the expression 'direct consequence' in the compensation clause. At common law the measure of damages under tort principles is generally limited by the concept of reasonable foreseeability. Under these tort principles an act which may be the direct cause of injury may be too remote to be found liable for the consequence (see Kaplan v Lee-Archer [28]). It is important to note that 'reasonable foreseeability' is not in itself a test of causation; rather it marks the limits beyond which a wrongdoer will not be held responsible for damages: Chapman v Hearse [1961] HCA 46. However, some actions in tort are treated differently, for example an action in deceit. In an action in deceit the normal tortious measure of damages disappears and the claimant is entitled to recover consequential losses (see McGregor on Damages 19th edition 47-022). This means that recovery can be had for losses that are consequential albeit that they might not be reasonably foreseeable. In Fagan, Brennan J at [11] left open the question of interpretation whether liability went beyond 'reasonable foreseeability' even though the legislation in that case did not use the adjective 'direct'.

53 I conclude that the use of the expression 'direct consequence' in s 6 of the Act should be interpreted as having the effect of not limiting liability to the tortious principle of reasonable foreseeability.

54 In assessing the amount of compensation which should be awarded, the court must have regard solely to the injury actually suffered by the appellant in consequence of the commission of the offence and not the seriousness of the offence. The amount is not to be fixed as punishment of the offender or expression of sympathy for the injury, but as compensation for the injury or loss: DNA v Britten (1995) 14 SR (WA) 325; R v Forsythe [1972] 2 NSWLR 951, (953), Jones v Macey.

55 It should not be taken from the above that the actual facts of the offence are of no consequence. It is from the facts of the offence that one can make decisions about the credibility and weight of the diagnosis of the medical experts, the likely time during which the appellant will suffer the injury and whether the appellant has behaved in any way that might directly or indirectly contribute to the injury or loss: DNA v Britten (327).

56 In determining the credibility and weight to be given to the diagnosis of medical experts, little or no weight can be given to the expert opinion if statements made that form the basis of their opinion cannot be substantiated: Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642; Jones v Macey.

57 In this matter I have reached the same conclusion as the Chief Assessor that Mr Townend suffered a traumatic stress disorder as a result of the incident. This injury was an exacerbation of a pre-existing asymptomatic traumatic stress disorder.

58 I also conclude that on the balance of probabilities Mr Townend has suffered a loss of earnings as a result of the incident. I reach this conclusion on the basis of the following:

Even though Mr Townend had a pre-existing asymptomatic post-traumatic stress condition, he had remained quite functional in the workplace and was earning a good income up until the incident. The loss of employment and a drop in income coincided with the occurrence of the incident.
Taking into account the nature of the attack on Mr Townend and the finding that he suffered a traumatic stress disorder, it is not unexpected that there would be a period of time when Mr Townend might suffer a loss of his ability to work and thereby suffer a loss of income. At the time of the incident Mr Townend was a vulnerable person in that he had previously suffered from post-traumatic stress disorder. I accept the medical evidence that the incident caused an exacerbation of this.
I do not believe that the opinion expressed by Dr Ng that Mr Townend has suffered a loss of earning capacity should be dismissed on the basis that Dr Ng had only seen Mr Townend on one occasion. The opinion was predicated on the findings of Dr James Fellows-Smith, a psychiatrist who had been treating Mr Townend for a number of years both before and after the incident and who had concluded Mr Townend had suffered an exacerbation of a post-traumatic stress disorder.

59 The Chief Assessor was not prepared to allow any loss in the form of loss of earnings because in her opinion Mr Townend's capacity to work was influenced by many non-compensable stressors and the information available to the Chief Assessor was not sufficient to enable her to make any proper estimate of the contribution, if any, of the incident to any loss of earnings. However, the Chief Assessor did not have financial information which showed a substantial drop in income coinciding with the occurrence of the incident. In my opinion, it is significant that although tensions between Mr Townend and his partner dated back to at least 2006, Mr Townend had been able to earn a regular income from that time up to the incident. Further, given the nature of the mental injury suffered by Mr Townend as a result of the incident, in my opinion the other incidents referred to earlier in this decision after 28 May 2011 (the date of the incident) were likely to hinder the recovery of Mr Townend and perpetuate the disabilities he suffered as a result of the incident. In my opinion, the contribution of these other stressors in Mr Townend's life after the incident cannot be disentangled from the incident which I conclude was the substantial and material contributor to the loss of earnings. Accordingly, applying the principles in Purkess v Crittenden, Mr Townend should recover the full loss that the incident contributed to materially.

60 The next question for me to consider is the quantum that should be allowed for the loss of income.

61 Dr Ng in his report stated that except for a two month period immediately after the incident, Mr Townend's capacity to engage in employment was totally impaired for 12 to 18 months thereafter. However, he then went on to say that as at the time of the consultation (28 October 2014), Mr Townend's capacity to engage in employment was totally impaired. In other words, the loss of earning capacity had continued for a period of over three years. However, I have only been provided with details of the loss of earnings over the two financial years immediately after the incident.

62 Based upon the net income figures for 2010-2011, I conclude Mr Townend, but for his injuries, would have earned approximately $50,000 per annum in the next two years after the incident.

63 I calculate the loss of income suffered by Mr Townend as a result of the incident over the two year period after the incident as follows:

Two years' loss of income up to 30 June 2013 $100,000

Less income received from Centrelink in 2011-2012 $8,724

Less income received from Centrelink in 2012-2013 $13,854

64 In addition to the loss of income suffered by Mr Townend as a result of the incident, I accept that but for the jurisdictional limit he would be entitled to the additional $24,601 awarded by the Chief Assessor.

65 Based upon the above, the award that should be made to Mr Townend exceeds the jurisdictional limit and accordingly the award must be limited to $75,000.

66 Accordingly I will allow the appeal and substitute the award to the sum of $75,000. I will hear from counsel as to the terms of the final order.

Injuries Compensation Act 1972

Injuries Compensation Act 2003

Chapman v Hearse

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (132 paragraphs)

TOWNEND -v- McALINDON [2017] WADC 63 (11 May 2017)

Parties

Legislation Cited (2)

Cases Cited (8)