Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Appeal - Proved offences - Violence - Injury or loss - PTSD - Amount of compensation - Turns on own facts

Ms I Inkster appeared on behalf of the Chief Executive Officer of the Attorney General

Dimitrovska v The State of Western Australia [2015] WASCA 162; (2015) 253 A Crim Reports 407

M-A G [2019] WADC 174

MBP v LKP [2018] WADC 65

Re Dunne [2014] WADC 131

Re Puterangi [2017] WADC 168

1. In the early hours of Sunday, 24 April 2016 the appellant was the victim of an assault that occurred on Smart Street, Mandurah. As a consequence of injuries sustained in the assault the appellant lodged an application for criminal injuries compensation on 19 April 2019. A second application was filed by his solicitors on 25 April 2019.
2. On 4 August 2020 the assessor of criminal injuries compensation awarded the appellant criminal injuries compensation in the sum of $28,127.
3. Subsequently, on 24 September 2020 the appellant's solicitors provided additional information including invoices for medical reports to the assessor. The additional medical information was dated between 4 November 2019 and 18 December 2019 some nine months before the assessment was undertaken. The assessor was prepared to include the cost of reports incurred prior to 4 August 2020 and amended the award accordingly. The assessor did not consider it within his jurisdiction to further reassess the award.
4. Consequently, on 12 October 2020 the assessor issued an amended award in the sum of $31,263. The amended award included an additional $3,136 for reports.
5. The amended award apportioned $29,263 to 'proved offences' and $2,000 to an 'alleged offence'. The assessor also made orders under s 45(1)(b) of the Criminal Injuries Compensation Act 2003 (WA) (CIC Act).
6. The appellant has appealed the amended award on the sole basis that the award was inadequate. The notice of appeal was filed within the required 21 days of the assessor's decision.[1]
7. The hearing of this matter took place before me on 3 May 2021. The appellant was represented. The respondents did not appear. The Chief Executive Officer of the Department of the Attorney General (CEO) who appeared as amicus curiae was represented by the State's solicitor.

1. This is a hearing de novo. I may confirm, vary or reverse the assessor's decision either in whole or in part.[2]
2. A hearing de novo requires the court to consider the application for criminal injuries compensation afresh. Therefore, all issues relating to the claim must be considered.
3. In deciding the appeal the court is not bound by the rules of evidence or procedure and may inform itself in any manner it thinks fit.[3] The court may determine the claim on the basis of the evidence which was before the assessor or may receive further evidence and information.[4]
4. In addition to the materials before the assessor the appellant sought leave to have additional materials placed before the court namely:
   1. Victim impact statement dated 10 September 2020.
   2. Medical report of Dr Eugene Khoo dated 5 November 2019.
   3. Medical report of Dr Rick Lazar dated 17 December 2019.
   4. Medical report of Dr Frederick Ng dated 17 December 2019.
   5. Schedule of report expenses with supporting tax invoices.
   6. Schedule of special damages.
   7. Amended Schedule of future medical expenses.
   8. Schedule of travel.
   9. Schedule of past and future loss of earning capacity.
   10. Email from Australian Taxation Office to Stephen Browne Lawyers dated 14 October 2019 together with enclosures referred to therein.[5]
   11. Email from Centrelink to Stephen Browne Lawyers dated 16 December 2019 together with enclosures referred to therein.
5. The discretion to admit further evidence should be exercised without undue restriction and further evidence admitted unless there is a reason why it would be unjust to do so.[6]
6. No arguments were advanced in respect of this issue. However, it is clear that all of the materials except for the victim impact statement were available prior to the assessor's decision on 4 August 2020. There is no adequate explanation as to why these were not provided to the assessor prior to the 4 August 2020 nor why the victim impact statement could not have been prepared and submitted prior to that time.
7. What is clear is that all of the documentation and reports were sent directly to the appellant's legal representatives. Further the format of the victim impact statement suggests that the appellant's lawyers facilitated its production. The appellant's claim should not be prejudiced because his legal advisers did not submit the materials in a timely way.
8. Given this fact and that I am otherwise satisfied it would not be unjust to admit the proposed materials I have determined that I will receive the material. Accordingly, I have determined the appeal with regard to the materials which were before the assessor and the materials referred to in [11] above.

1. The primary issues that must be determined are:

(a) whether an award of compensation can be made; and

(b) if so the appropriate quantum of a compensation award.

The first issue: can a compensation award be made?

1. Each of the respondents accept that they were involved in assaulting the appellant. Pleas of guilty were entered by:
   1. Cody Wiri Davies on 15 November 2016 for the offence of assault occasioning bodily harm;
   2. Elijah Aoto'a John Leilua on 18 June 2018 for the offence of common assault;
   3. Nol Samuel Kennach on 18 June 2018 for the offence of common assault; and
   4. Jushuan Pago Bishop on 14 October 2016 for the offence of assault occasioning bodily harm.
2. Consequently, a compensation award can be made under s 12(1) CIC Act in respect of a 'proved offence'.
3. A fifth person, JLS, was also charged with assaulting the appellant. That charge, being one of assault occasioning bodily harm, was subsequently dismissed for want of prosecution on 18 June 2018. Accordingly, a compensation award could also be made under s 16(2) CIC Act in respect of an 'alleged offence'.
4. In both cases the making of an award is subject to the court being satisfied that the appellant:
   1. was not injured when committing a separate criminal offence;[7] or
   2. did not contribute directly or indirectly to his injury.[8]
5. In order to determine both of these matters, it is necessary to consider the facts of the assault.

1. On Saturday 23 April 2016 the appellant, his friend Mason Fisher and others went to the Toucan nightclub in Mandurah.
2. At about 1.30 am the appellant and his friend Mason Fisher were standing on the balcony looking down onto the street. There was a man who was very angry and there was a lot of shouting. Mason Fisher made a comment to this man which led to a verbal altercation. As a result, the man entered the nightclub, went upstairs and confronted Mr Fisher. There was a physical altercation between him and Mason Fisher that resulted in both men being evicted from the nightclub. This man is referred to in the appellant's second statement to police as 'Male 2'.
3. During the physical altercation the appellant lost sight of his friend but eventually made his way downstairs where he found Mr Fisher involved in a verbal altercation with two security staff about their behaviour and treatment of him. A third man, whom the appellant referred to as 'Male 1' approached Mr Fisher and repeatedly challenged him to a fight. Mr Fisher repeatedly declined and in doing so pointed at Male 1. Male 1 slapped Mr Fisher's hand away causing it to strike Mr Fisher's girlfriend who was standing nearby. Mr Fisher punched Male 1 who then walked away.
4. The appellant and Mr Fisher were shortly thereafter approached by Male 1 and Male 2. Male 1 struck Mr Fisher and Male 2 punched the appellant. The blow struck the appellant in the mouth causing his tooth to fracture. The appellant then became embroiled in a fight with Male 2 during which Male 2 continued to strike him. The appellant managed to get Male 2 in a headlock but was struck in the head by an unidentified person. As a result he let go of Male 2.
5. The appellant then moved away only to see his friend Mr Fisher being held against a wall by a man referred to as Male 3.
6. There was a verbal exchange that culminated in Male 3 striking Mr Fisher in the face after which others joined in on an assault on Mr Fisher.
7. The appellant grabbed Male 3, in an effort to stop him hitting Mr Fisher but was struck by someone.
8. By this time, Mr Fisher was in a corner and was being struck by a number of people. He ended up in a foetal position on the ground. The appellant tried to use his body to cover Mr Fisher but was dragged away by his shirt and hair whilst being punched. He also received a knee to his face during this time.
9. Eventually the appellant became free. He was dazed and bleeding. He re-joined Mr Fisher who was also injured. The police were called. The appellant and Mr Fisher went to the Peel Health Campus.
10. These facts show that the appellant was the victim of a continuing assault that involved several people. The appellant could not identify those who assaulted him. The respondents however, by their pleas of guilty, accept that they were involved.
11. The material before me does not allow me to determine what act or acts each respondent committed save that the person described as Male 2 is Cody Davies.

Was the appellant the victim of a compensable proven offence?

1. These facts also show that whilst the appellant did himself strike others during the course of the fracas he was acting either in self-defence and/or in defence of another.
2. Accordingly, I am satisfied that the appellant was the victim of a 'proved offence' and that there is no bar to the making of a compensation order given the provisions of s 39 or s 41 CIC Act.

Was the appellant the victim of a compensable alleged offence?

1. I am not satisfied that the appellant was the victim of an alleged offence committed by JLS. The appellant's statement and supplementary statement before me does not disclose any evidence that JLS assaulted the appellant or caused him an injury.
2. JLS is mentioned by name in the appellant's supplementary statement. In that statement the appellant says that when he came outside the nightclub Mr Fisher was speaking to two security staff. In this regard he said:[9]

I recognised one as being either [JLS] or [CLS]. They are brothers and look very similar.

1. It is at this time that Male 1 approached Mr Fisher and challenged him to a fight. The events described above at [24] to [26] then took place.
2. Immediately after the event described at [26] but before those described at [27] the appellant says:[10]

1. There is then no evidence of any assault committed by JLS (or CLS) on the appellant and I am not satisfied that there was an 'alleged offence' committed by him against the appellant.

1. In light of the findings at [34] above, I am able to assess the criminal injuries compensation which is to be paid to the appellant.

1. The legal principles and framework relating to the assessment of compensation in criminal injuries matters are well established and need not be repeated.[11]
2. In short, for an award of compensation to be made, it is necessary that I am satisfied on the balance of probabilities that the claimed injury and any claimed loss has occurred as a consequence of the 'proved offence'. Whether the necessary causal relationship exists is a question of fact.
3. I turn then to the claimed injuries.

1. The appellant, in his victim impact statement, contends that he suffered both physical and psychiatric injuries, as a consequence of the 'proved offence'. He identifies those injuries as follows:
   1. Swollen left eye;
   2. Blood nose;
   3. Fractured and eventual removal of tooth 11;
   4. Post traumatic stress disorder; and
   5. Residual psychiatric symptoms.
2. Dealing first with the physical injuries.

1. The notes of the Peel Health Campus record '[b]roken tooth, swollen LT eye, dry blood on nose'.[12]
2. X-rays were also taken at the hospital which confirmed the absence of any other injury. The appellant was subsequently discharged with Panadol.
3. The appellant then presented to his dentist Dr Khoo on 27 April 2016. He was found to have 'a complicated crown/root fracture of tooth 11'.[13] On 27 April the tooth was deemed unrestorable and 'was endodontically dressed ... for relief pain and temporise [sic] the presenting complaint until such time as Mr Woodward was ready financially to have a dental implant placed'.[14]
4. Subsequent to the consultation on 27 April 2016 the tooth became infected and painful leading to its removal on 19 June 2019.
5. As a consequence of the injury to his tooth the appellant, in his victim impact statement, says he was unable to eat solid food for about two weeks following the assault. Further, for about a month after the assault he spoke with a lisp because the tooth injury made it difficult to pronounce words properly.
6. In his victim impact statement, the appellant says:[15]

I continued to suffer infections which caused me a lot of pain and I was unable to work.

1. There is no material to clarify what is meant by 'continued infections'. Dr Khoo's letter of 5 November 2019 speaks of only two attendances relating to infection[16] and there is no material from any other source about this. Absent any additional information, I cannot be satisfied that there were more than two occasions when the tooth became infected.
2. I am satisfied that the appellant suffered the physical injuries numbered 1-3 in [44] above. Further the tooth injury caused pain for about two weeks and some self-consciousness for about one month. The tooth became infected three years after the assault and was subsequently removed.

1. In his victim impact statement the appellant describes the effect of the assault as including the following:
   1. He felt self-conscious because he spoke with a lisp.
   2. He had recurrent nightmares for many months about being assaulted. He said he still had them occasionally.
   3. He stayed home more often and remains, to this day, more socially withdrawn.
   4. He avoided going to the area of the assault, nightclubs or any place where people could become aggressive or violent. This exists to the current time.
   5. He was anxious when in public and particularly if he saw the offender.
   6. He became hypervigilant whenever out and felt like he had to look over his shoulder.
   7. His self-confidence was affected once his tooth was removed.
   8. He was generally more anxious and worried than before the incident.
   9. He received a Scantek ban and as a result was unable to attend any venue that used this system. Consequently he missed out on 'a lot of concerts'[17] that he wanted to go to.
   10. He feels that the Scantek ban is unfair as he was the victim of the assault.
   11. He gained 30 kg because his eating difficulties caused him to develop unhealthy eating habits and this further affected his self-confidence.
2. At first blush the sequela of the offending would appear to be unexpected given the physical injuries and the nature and extent of the assault committed upon the appellant. In addition, there are aspects of the appellant's victim impact statement that do not bear close scrutiny. Most notably the claim that his weight gain is attributable to his tooth injury. The appellant says he could not eat solid food for two weeks. This he suggests resulted in unhealthy eating patterns which in turn resulted in the weight gain. I cannot accept this as a matter of logic and common sense particularly given that the appellant has also now been engaged in sedentary work as a truck driver for over two years.
3. In any event, as his Honour Chief Justice Martin made clear, a victim cannot be expected to provide an objective and impartial account of an offence and its consequences in a victim impact statement provided to the court.[18]
4. The appellant has however provided a report from Dr Frederick Ng, a consultant psychiatrist. Dr Ng saw the appellant in December 2019 solely for the purposes of a medico-legal report.
5. In his report dated 17 December 2019 Dr Frederick Ng makes the following diagnosis:[19]

Based on the history elicited, the mental state examination, having perused the documentation provided and from my clinical experience, I form the view that your client following the subject incident on 24 April 2016 developed post-traumatic stress disorder (DSM 5) at its worst to a moderate to a moderately severe extent and currently present to a residual extent with ongoing residual psychiatric symptoms as alluded to in the systemic inquiry section of this report and in the body of the rest of this report.

1. Dr Ng also opined that the disclosed family and personal psychiatric history did not materially or significantly contribute to the onset of the post-traumatic stress disorder. He also recommended treatment for the 'ongoing residual symptoms'.
2. There are a number of deficiencies and inconsistencies in Dr Ng's report.
3. First Dr Ng's report reveals that he believed the appellant was assaulted both inside and outside the nightclub. This error distorts the nature and intensity of the assault and therefore the context in which Dr Ng came to consider the symptoms described. There is no explanation for this fundamental misapprehension about the assault. This speaks either to the appellant's reliability or to the quality of Dr Ng's consideration of the information before him. In either case there has been a negative impact on the confidence I have in the conclusions articulated in the report.
4. Next whilst the symptoms set out in the areas of Dr Ng's report entitled 'the Incident' and 'systematic enquiry' largely accord with those referred to by the appellant in his victim impact statement and outlined in [54] above there are some minor inconsistencies. For example, Dr Ng records that the bad dreams have 'resolved' and there were no current sleep difficulties. This is inconsistent with the appellant's claim that he still has the occasional bad dream associated with the assault.
5. More importantly though is that Dr Ng's report does not expose any attempts by him to critically test the information provided by the appellant. For example, he has made no effort to quantify how long the appellant suffered from a lisp and appears to accept without question the correlation between the weight gain and the tooth injury.
6. Dr Ng has accepted that the appellant:[20]

... became avoidant of leaving home, and he avoided going to the pub or any facility where others were potentially or were actually aggressive, violent or intimidating.

...

He now remained socially withdrawn.

He still avoided attending nightclubs.

1. One could reasonably have expected that critical testing of these statements would have revealed that the appellant felt he had been denied the opportunity of attending 'a lot of concerts' because of the Scantek ban. Dr Ng has not therefore considered whether the desire to attend 'a lot of concerts' was consistent with the other information provided.
2. Even more significant is the complete failure by Dr Ng to expose his reasons for concluding:
   1. that the behaviours described by the appellant fulfill the diagnostic criteria for PTSD. In this regard Dr Ng has not provided any information about PTSD nor the diagnostic criteria that must be met.
   2. that the appellant's PTSD was 'at it's worse [sic] to a moderate to a moderately severe extent'. Dr Ng has not provided any information about how long after the assault the condition reached its 'worst' nor how long that state continued.
   3. that the PTSD 'is currently present to a residual extent'.
3. The combined effect of the matters referred to in [61] to [66] above is that I am not persuaded on the balance of probabilities that the appellant has suffered post-traumatic stress disorder as a result of the 'proved offence'.
4. I accept that the events described by the appellant would have been distressing and that for a limited time, he would have experienced some anxieties about going out or encountering the first respondent. I also accept that there may have been some disruption to sleep arising from those anxieties.
5. I accept that there was discomfort and physical pain associated with the appellant's physical injuries and distress, anxiety and some embarrassment attributed to the loss of the tooth and lisp that existed for the short period after the offence.
6. These findings are consistent with the appellant's admission that he did not receive nor feel inclined to receive any psychological treatment for his anxieties and other matters raised. Further and more importantly that he was able to deal with them by discussing his feelings with those close to him. He has also been willing and able to obtain and maintain employment as a fly in fly out worker which involves living in close proximity to people for sustained periods.

1. I will assess the appellant's claim on the basis that I am satisfied on the balance of probabilities that the appellant suffered the following injuries as a result of the offence:
   1. Swollen left eye;
   2. Blood nose; and
   3. Fractured and eventual removal of tooth 11.
2. Further I will assess the claim on the basis that he suffered distress, discomfort and pain and some social anxiety for a reasonable but limited period of time following the assault.

1. The assault caused the appellant significant pain at the time that did not fully resolve until about two to four weeks after the event. The event was also distressing and traumatic. Further he suffered some ongoing anxiety and distress as a consequence of the assault that lasted for a reasonable time thereafter.
2. In addition, the appellant has had further pain associated with the infection to his tooth in 2019 and its subsequent extraction. There will be some further pain associated with the proposed implant treatment.
3. I am therefore satisfied that an amount of $18,000 is an appropriate award for non-pecuniary loss.

1. The appellant has made a claim for past economic loss in the sum of $53,276.65 being the loss of wages and superannuation for the whole of the period from 24 April 2016 to 23 April 2018.[21]
2. The only evidence that any injury sustained on the 24 April 2016 caused any loss of income arises from statements made by the appellant in his victim impact statement wherein he says:[22]

At the time of the assault I was working as a landscaper for I-Dig in Maddington.

At that stage I had been working fulltime for about 1 month until the assault occurred.

Following the assault I was unable to return to work while I was recovering from my injuries and I subsequently lost my job.

I then did work for various friends and family undertaking concreting, ceiling work and any labouring work I could find.

This work was sporadic and I never knew when I would receive work at any one time.

I think on average I was working about three days per week.

...

In or around June 2018 I obtained full-time employment with Jetcrete Oz as a concrete truck driver underground.

I work 12 hours per day on a two week on/one week off swing.

1. The appellant had not been employed by anyone prior to his time with IDIG WA Landscape Contractors Pty Ltd. Further, it is not clear whether the appellant's work with IDIG was a permanent position. The appellant describes his work in the preceding month as 'full-time' but in submissions before the court counsel for the appellant described the position as 'casual work'. It is therefore not clear whether the appellant was employed in a permanent full-time position or a casual position during which he had worked full-time hours.
2. There is also no material from IDIG as to the reasons why the appellant ceased to be employed by them.
3. There is no material before me about why any injuries suffered by the appellant prevented him from being able to fulfill any work requirements at all or for any particular period.
4. Further, given that the appellant did work on average three days per week after this event he had a continuing capacity to work. His failure to work is then not related to his injuries.
5. Absent information addressing these matters I cannot be satisfied to the requisite standard that any injury arising from the 'proved offence' caused any loss of income.

1. The appellant has made a claim for future economic loss on the basis that:
   1. He will require time off work to undergo treatment recommended by Dr Ng to address the residual symptoms of PTSD.
   2. He may require further time off work in the future to deal with the residual symptoms of PTSD.
   3. He will require time off work to undergo treatment to repair his tooth.
2. Given I do not accept that the appellant suffered PTSD no award for future loss can be made on this basis.
3. Further, and in any event, there is no evidence that since obtaining permanent full-time employment the appellant has required time off work to deal with any psychological issues arising from the assault.
4. Whilst he will require treatment for his tooth the appellant's current employment allows him to undertake the treatment during his 'off' week.
5. Accordingly, I am not satisfied that there should be any award for future economic loss.

1. I am satisfied that the appellant has incurred past medical expenses in the total sum of $3,082.25 in accordance with the schedule of special damages dated 5 August 2020.[23]

1. The appellant has now had the damaged tooth removed and an implant is required. In a report dated 17 December 2019 Dr Lazar has provided a quote for this to occur in the sum of $7,000.[24]
2. The implant may also require replacement. Dr Lazar opines implants have been shown to last more than 40 years but that this can vary significantly in individual cases. The crowns associated with the implant may last in the order of 15 to 20 years.
3. The current cost of replacing the crown is $4,500. Given that the appellant is only 23 years old the appellant seeks a total of $2,988 being the current value of replacing the crown three times at 15 year intervals.
4. Given the uncertainties and the probable improvement in treatment it is likely that he will require a replacement implant at least once during his lifetime. I will therefore allow an amount of $1,876.50 being the current value of $4,500 in 15 years time.
5. The appellant has also made a claim for the cost of the 8 - 12 counselling sessions recommended by Dr Ng. Given my finding above I make no award for this. In any event the appellant describes himself as a person who does not engage with any form of counselling or psychological assistance. I could not be satisfied he would undertake such counselling in the event I was satisfied it was needed.
6. I make a total award for future medical expenses in the sum of $8,876.50.

1. There has been some travel cost incurred by the appellant to undergo treatment. Future travel will be required. The distances involved are modest. I therefore make a global award for travel expenses associated with past and future medical treatment in the sum of $150.

1. Loss relevantly includes expenses actually and recently incurred by or on behalf of the victim in obtaining any reports from health professionals or counsellors in relation to the injuries suffered.[25] The appellant has claimed a total of $3,136 and I allow this amount.

1. In summary I assess compensation as comprising:

1. For these reasons I make the following orders:
   1. The appeal is allowed and the decision of the assessor R Capararo made on 12 October 2020 is set aside.
   2. The appellant is entitled to an award of $32,494.75.
   3. Pursuant to s45(1)(b) CIC Act:
      1. only $13,500 may be the subject of proceedings under part 6 of the CIC Act against the first respondent; and
      2. only $1,500 may be the subject of proceedings under part 6 of the CIC Act against each of the second, third and fourth respondents.
2. Pursuant to s 64(3)(c) CIC Act I prohibit publication of any particular of these reasons that is likely to lead members of the public to identify the alleged offender in relation to the alleged offence.

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

[5] Luke Andrew Woodward Tax Returns and PAYG payment summaries 2012 - 2019 inclusive.

[6] MBP v LKP [2018] WADC 65 [7] (Davies DCJ).

[11] See for example Re Puterangi [2017] WADC 168 [88] - [95] (Davis DCJ); M-A G [2019] WADC 174 [32] - [48] (Glancy DCJ); Re Dunne [2014] WADC 131 [26] - [33] (Davis DCJ).

[13] Report of Dr Khoo dated 5 November 2019, Appeal Book page 163.

[14] Report of Dr Khoo dated 5 November 2019, Appeal Book page 163.

[15] Victim impact statement, par 22, Appeal Book page 25.

[17] Victim impact statement par 54, Appeal Book page 30.

[18] Dimitrovska v The State of Western Australia [2015] WASCA 162; (2015) 253 A Crim Reports 407 [74] (Martin CJ, McClure P & Hall J agreeing).

[20] Report Dr NG dated 19 December 2019, Appeal Book page 172 - 173.

[21] At which time he obtained work with Topdrill Pty Ltd.

[22] Victim impact statement dated 10 September 2020, Appeal Book page 33 - 34.