Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Appeal - Whether application should be amended to include alleged offence - Proved offence - Mental and nervous shock - PTSD - Admission of additional evidence - Turns on its own facts

Criminal Injuries Compensation Act 2003 (WA)

Mr C Arnold on behalf of the Chief Executive Officers of the Department of Justice

B v B [2004] WASC 6

B v S (Unreported, WASC, Library No 950223, 10 May 1995)

Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408

Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613

Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666

Gullelo v Halloran [2008] WADC 145

Guy v Hampson [2019] WADC 19

Hinchcliffe v Hinchcliffe [2010] WADC 78

Lyle v Soc [2009] WASCA 3

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

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

Martin v Martin [2015] WADC 138

Re ATS [2017] WADC 92

Re Butler [2020] WADC 22

Re Tilbury [2010] WADC 46

Robinson [2017] WADC 18

S v Neumann (1995) 14 WAR 452

Savic v Duric [2021] WADC 53

Sweetman v Lilley [2021] WADC 74

T v Curnuck [2004] WASC 139

Underwood v Underwood [2018] WADC 13

1. EB was 16 years old in 2013. Her father is JB.
2. On the night of 4 - 5 September 2013, EB was in bed at her family home. It was at this time that the respondents, together with other unidentified men, broke into the house. The unidentified masked men violently assaulted JB.
3. On 25 May 2015, each of the respondents was convicted in the District Court, after pleas of guilty, to using violence or threats to prevent or overcome resistance to robbery, entering or being in the place of another without that person's consent with intent to commit an offence and stealing a motor vehicle (Offences).
4. At the sentencing hearing on 2 June 2015 for the Offences, Keen DCJ sentenced the respondents on the basis of the following facts:

(a) Between approximately midnight and 3.00 am on the night of 4 - 5 September 2013, the respondents went to the family home.

(b) JB was at home with his wife and three children, one of whom was EB.

(c) The fourth respondent, who was known to the family from his previous attendances at the house to collect an alleged debt, went into the house and spoke to JB and other members of the family.

(d) A number of masked men, including some of the respondents, then forced their way into the house. One of the unidentified masked men assaulted JB by punching and kicking him and he received injuries resulting in bodily harm.

(e) Each of the respondents moved through the house, taking various property.

(f) The fourth respondent forced JB to sign vehicle transfer papers, which he did under threat to him and his family.

(g) The respondents left the house with the car and other property.

1. On 20 August 2015, EB made an application for compensation pursuant to the provisions of the Criminal Injuries Compensation Act 2003 (the Act) (original application).
2. On 2 February 2021, the Assessor of Criminal Injuries Compensation (the Assessor) ordered that EB be paid:

1. EB provided the Assessor with her victim impact statement dated 2 June 2015 and a letter from Robin Lillico, psychologist, dated 12 September 2018 (Psychological Report) in support of the original application.
2. On 2 February 2021, the Assessor awarded EB compensation of $27,500 ($25,000 to be paid immediately and $2,500 to be paid when incurred). The Assessor did not provide any reasons for the award.
3. On 23 February 2021, EB filed a Notice of Appeal against the decision of the Assessor on the grounds that the Assessor failed to allow sufficient damages for her psychological injuries.
4. All of the respondents have been served the Notice of Appeal (either by post or in accordance with orders for substituted service). None of the respondents have filed an appearance.

1. This appeal is made pursuant to s 55 of the Act. In hearing this appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the assessor's decision': s 56(1) of the Act. An appeal under the Act is, therefore, a hearing de novo.[1]
2. The court may determine the appeal 'solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information': s 56(1) of the Act.
3. The court should admit further evidence unless there is some reason why it would be unjust to do so.[2]
4. It is open to the court to 'confirm, vary or reverse the assessor's decision, either in whole or in part': s 56(2)(b) of the Act.
5. EB relied upon the following material in support of the appeal:

(c) psychological report of Mr Lillico dated 27 July 2020;

(d) letter dated 29 April 2021 from Mr Cohen, EB's solicitor, to Dr Frederick Ng;

(e) psychiatric report of Dr Frederick Ng dated 4 May 2021;

(f) psychological report of Mr Lillico dated 16 October 2021;

(g) victim impact statement dated 1 December 2021; and

(h) Book of Invoices and Receipts filed 14 December 2021.

1. All of the material (apart from the victim impact statement dated 2 June 2015 and the Psychological Report) was additional evidence which was not before the Assessor. I granted leave, pursuant to s 56(1) of the Act, for EB to rely upon the additional material, being satisfied that it was not unjust to do so.
2. Cases decided in this court differ in their findings as to whether it is appropriate to have regard to the Assessor's assessment of compensation (given the assessment is made by a specialist tribunal in the field).[3]
3. I am of the view that a hearing de novo requires me to consider this appeal without regard to the prior decision of the Assessor. In any event, the assessment of the Assessor is of limited assistance given the additional material sought to be relied upon by EB was not before the Assessor.

1. The following issues arise for determination in the appeal:

(a) Should EB's application for compensation be amended to include a claim under s 17 of the Act?

(b) What are the legal principles governing the application for compensation?

(c) What injuries did EB suffer as a consequence of a proved offence and/or an alleged offence?

(e) Should the barring order of the Assessor, pursuant to s 45 of the Act, be varied?

Amendment of the original application pursuant to s 17 of the Act

1. Section 17 of the Act deals with a circumstance where an alleged offence is committed but no person is charged with the alleged offence. Section 17 of the Act relevantly provides:
   1. Alleged offence: no person charged

(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[.]

1. The expression 'alleged offence' is defined in s 3 of the Act as:

[A] crime, misdemeanour or simple offence for which no person has been convicted[.]

1. The 'alleged offence' is the assault of JB by unidentified masked persons on the night of 4 - 5 September 2013. It would be open to me to find that, given the evidence before me, the alleged offence is that of unlawful assault occasioning bodily harm pursuant to s 317 of the Criminal Code.
2. I must be satisfied on the balance of probabilities that the criminal offence said to constitute the 'alleged offence' was committed against JB.[4]
3. No persons have been charged with the alleged offence and the respondents were not convicted of the alleged offence.
4. In order to find that JB was the victim of an unlawful assault occasioning bodily harm, I must be satisfied, on the balance of probabilities, that JB was assaulted, that he suffered bodily harm as a result of the assault and that the assault was unlawful.
5. Keen DCJ, at the sentencing hearing of the respondents on 2 June 2015, sentenced the respondents on the basis that JB was assaulted by masked co-offenders by punches and kicks which caused him bodily harm. Therefore, I am satisfied on the balance of probabilities that JB was the victim of the alleged offence of unlawful assault occasioning bodily harm.
6. I find that it is open for EB to apply for compensation for injury and loss pursuant to s 17 of the Act as a 'person who suffers injury as a consequence of the commission of the alleged offence'.
7. I am satisfied that the original application should be amended, pursuant to s 19 of the Act, to include an application by EB for compensation pursuant to s 17 of the Act.

Legal principles governing application for compensation

1. EB made the original application pursuant to s 12 of the Act. Section 12(1) of the Act provides:

(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.

1. The term 'proved offence' is defined in s 3 of the Act as:

[A] crime, a misdemeanour or simple offence of which a person has been convicted[.]

1. The Offences are 'proved offences' for the purposes of the Act.
2. I have also amended the original application to include an application for compensation for injury suffered as a result of an alleged offence pursuant to s 17 of the Act.
3. Compensation is payable where a person has suffered 'injury' in consequence of the commission of a proved offence and/or an alleged offence: s 12(1) and s 17(2) of the Act. 'Injury' is defined in s 3 of the Act to include bodily harm and mental and nervous shock.
4. The phrase 'mental and nervous shock' includes distress, horror, disgust and other similar adverse mental reactions but excludes fright, humiliation or anguish. In order to constitute mental and nervous shock, the injury must be more than a mere emotional reaction, it must have an enduring quality which impacts on the mental state or the nervous system of the person injured.[5]
5. A compensation award cannot be made unless I am satisfied that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence and/or an alleged offence: s 12(3) and s 17(4) of the Act. Section 3 of the Act defines 'satisfied' to mean 'satisfied on the balance of probabilities'.
6. The term 'as a consequence of' requires a causal relationship or connection between the injury and the commission of an offence.[6] The determination of whether the requisite causal connection exists is a question of fact to be resolved as a matter of common sense.[7] A sufficient causal connection will be established if, as a matter of ordinary common sense and experience, the offences are regarded as having 'materially contributed' to the injuries.[8]
7. Section 35(2) of the Act provides that:

(2) An assessor must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence, or for any loss in respect of such shock, unless the assessor is satisfied -

(a) that the victim also suffered bodily harm or became pregnant as a consequence of the commission of the offence; or

(b) that the victim was the person against whom, or against whose property, the offence was committed; or

(c) that a person other than the victim died or suffered injury as a consequence of the offence and the victim was personally present when or immediately after the offence was committed; or

(e) that immediately before the offence was committed the victim -

(i) was a close relative of a person who suffered injury or died as a consequence of the commission of the offence; and

1. In order to claim compensation for mental and nervous shock, I must be satisfied that EB falls within one of the categories in s 35(2) of the Act.
2. EB was personally present either at the time or immediately after the alleged offence and the proved offence were committed against JB. EB was also a close relative of JB (his daughter) and was living with JB immediately before the alleged offence and the proved offence was committed. Therefore, I am not precluded, by virtue of s 35(2)(c) and s 35(2)(e) of the Act, from making a compensation award for any mental and nervous shock suffered by EB as a consequence of the commission of the alleged offence and/or the proved offences.

What injuries did EB suffer as a consequence of a proved offence and/or an alleged offence?

1. EB provided two victim impact statements dated 2 June 2015 and 1 December 2021 respectively. EB also provided a witness statement dated 24 September 2013. In those statements, EB describes what occurred on the night of 4 - 5 September 2013 as follows:

(a) In the early hours of 5 September 2013, EB was at home in her bed. Her sister S entered her room and told her that she could hear loud banging coming from the garage.

(b) EB then got out of bed and rushed with S to her younger brother's room. EB and S looked out of the window and saw masked men in the garage wearing gloves. EB noticed that one of the men was holding her father's iPad.

(c) EB and S then ran to the bedroom of their other sister, J, where she was asleep. They woke her and told her what they had seen.

(d) The children then heard people coming through the front door, and footsteps coming up the stairs. EB ran and shut their hallway door and turned off the light's downstairs. She told her sisters to stay in J's room.

(e) EB then went up the stairs, where she heard angry male voices yelling at her father. She then saw her father and noticed that the men were pushing and shoving him.

(f) She also saw her mother sitting on the ground looking terrified. She describes the scene as though it looked like her parents were being held hostage. She ran back downstairs to tell her sisters what she had seen.

(g) EB then started to dial 000 on her sister's phone, but decided that it was too risky, as she did not know what the repercussions would be for her parents if the men found out the police had been called.

(h) She then called her boyfriend, R, who was in the garage of the home and asked if she should call the police. He told her not to do so, as it would make matters worse.

(i) The sisters then heard the front door open and R and the third respondent came into the hallway where the sisters were hiding. The sisters did not know the third respondent other than that he was the brother of their parents' friend.

(j) The third respondent then told the sisters that their parents owed him money. He said that he was in a club and mentioned a club fine. He reassured the girls that everything was okay, and they should not call the police.

(k) The third respondent then insisted that the sisters come with him to the garage, and EB, S and R followed, while J went back to her bedroom.

(l) When EB entered the garage with her sister and boyfriend, she saw a tall man wearing a mask, and an unmasked man holding a wooden baseball bat. She also saw a woman who was holding items belonging to her mother in a clear storage bag.

(m) While standing in the garage near the doorway, EB saw a number of masked men walking in and out of the house with her family's possessions and putting them in their cars. She also noticed that there were drops of blood on the garage floor.

(n) EB then saw her mother come into the garage, and shortly after saw her father being dragged into the garage. Several of the masked men followed, yelling and pushing her father. Some of the men were holding weapons such as baseball bats.

(o) EB immediately realised that her father had been badly beaten. His clothes were covered in blood. His face was bruised and swollen. He had blood on his face and coming from his nose.

(p) One of the men then forced her father to sign paperwork concerning his car, saying that if he did not, they would take him out to the bush and kill him. The third respondent threatened to take the family to the pines if the car was not signed over.

(r) The men continued to ransack the house. When they eventually left the property, the third respondent threatened that if the police were to be called, they would send people back to their house, that all the women in the family would be raped and her father would be taken to the pines and killed.

(s) After the men left, EB's father went into shock. He kept saying that he was cold and was shivering profusely. He got into his bed.

(t) EB asked her mother to take her father to the hospital, but her parents were worried about the repercussions of doing so - namely, that the men in masks would return. She was worried that if her father went to sleep he would not wake up due to the severity of his injuries.

1. EB says that the events of that night have had the following effects on her:

(a) She suffers from post-traumatic stress disorder (PTSD), depression and anxiety.

(b) This has caused her to become reclusive. She previously socialised with friends regularly, whereas now she avoids leaving her home due to fear and 'hardly sees' her friends.

(c) The previously close-knit relationship she had with her sister and other family members has deteriorated.

(d) Her parents' marriage also suffered as a result of the incident, and they 'would be fighting every day, which upset the whole house'.

(e) She experiences anxiety that the intruders will return and hurt her family, and fears for her family's lives, including her own.

(f) She has vivid nightmares about the incident and has violent dreams in which her family dies regularly. This stops her from being able to sleep properly, and some nights stops her from sleeping altogether.

(g) She has found it difficult to maintain employment due to her anxiety and lack of sleep and is financially dependent on her family and welfare.

(h) She suffers from flashbacks of the incident, loss of appetite, and hair loss. This causes her to feel constantly on-edge, and she finds it difficult to trust others.

(i) It makes her 'sick to [her] stomach' to think of the attack', and angry to see the impact the attack has had (and continues to have) on her father. She says that he is a 'different person' following the incident and has tried to take his own life.

(j) As a result of the incident, her father has found it difficult to maintain steady employment, and the family have faced financial difficulties as a result, including losing the family home.

(k) EB says that she was able to obtain a certificate 3 qualification and gained employment at a childcare centre, but was not able to maintain that work due to her anxiety. EB also says that she had two subsequent jobs which ended due to her becoming sick and stressed out.

1. In summary, the psychological and psychiatric reports provided in support of EB's application for compensation conclude:

(a) According to the psychiatric report of Dr Frederick K F Ng dated 4 May 2021, EB has developed PTSD at its worst to moderately severe extent, which is currently partially treated. Her condition is described by Dr Ng as 'persistent and problematic'.

(b) When describing what caused the onset of EB's PTSD, Dr Ng describes the 'emotional trauma that she experienced as a consequence of the subject incident of home invasion and being verbally threatened as was the rest of her family, and knowing that her father had been physically beaten'.

(c) Dr Ng says that EB's PTSD has 'moderately to severely impaired' EB's capacity to 'engage in general activities of daily living, social interactions, her sense of personal wellbeing and self-esteem and confidence'. She is also described in the report as being 'quite avoidant of leaving home at this time, and had been so since the subject incident', and not fit for employment.

(d) According to the psychological report of Robin Lillico dated 16 October 2021, even after eight years, the psychological distress that EB is experiencing is 'still very severe'.

(e) EB's scores on the relevant psychological test indicate the 'highest scores possible' across all three areas (being depression, anxiety and stress), and 'have not decreased despite three years of therapy'.

(f) Mr Lillico describes EB's psychological injuries as including:

sleep issues, a loss of trust in people, a fear of leaving her home and to always have someone with her when she leaves, not even wanting to leave her bedroom, nightmares, vivid flashbacks, isolating herself from family and friends, not feeling safe anymore, loss of weight and hair falling out, not being able to finish high school, constantly sick, crying, low self-esteem including a feeling of being worthless, lack of energy, jumpy and easily startled, panic attacks, a feeling that the home invasion has destroyed her life, [and] not wanting to meet new people.

1. I am satisfied, on the balance of probabilities, based upon the psychological and psychiatric evidence, that the commission of the alleged offence and the proved offences materially contributed to the mental and nervous shock suffered by EB in the form of PTSD, depression and anxiety.

1. The maximum amount of compensation which may be awarded for injury and loss is $75,000: s 31(1) of the Act.
2. The maximum compensation payable under the Act is a jurisdictional limit and is not an amount which is reserved for the worst cases.[9] Where the application is made in respect of more than one offence, but those offences are related to one another, the amount awarded cannot exceed the jurisdictional limit for a single offence: s 33 of the Act.
3. Offences will be related to one another if they were committed at approximately the same time, whether by one person or multiple persons acting in concert: s 33(1)(a) of the Act.
4. The maximum amount of compensation I may award to EB as a result of the alleged offences and the proved offences, given they occurred at the same time, is $75,000.
5. In fixing the appropriate amount of compensation, I must 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 imposed by the Act.[10]
6. In assessing the amount of compensation to be awarded, it is the injury that was suffered by EB as a consequence of the commission of the proved offences and/or alleged offence to which I must have regard, not to the seriousness of the offences. I must not fix the amount of compensation in order to punish the respondents or to display sympathy for EB.[11]
7. 'Loss' includes expenses that EB has actually and reasonably incurred that arise directly from or in obtaining a report from a health professional in relation to the injuries that EB suffered or expenses that are likely to be reasonably incurred by EB for treatment that she is likely to need as a result of her injuries: s 6(2)(a) of the Act.
8. Loss of earnings and loss of earning capacity are also compensable: s 6(2)(c) of the Act.

1. In relation to EB's psychological injury, I find that the alleged offence and the proved offences materially contributed to EB's PTSD, anxiety and depression. The court therefore intends to award EB, in respect of her psychological injuries, the sum of $25,000.

1. EB does not claim a specified amount for loss of earnings or for loss of earning capacity. EB has not provided any evidence in support of such loss. This is not surprising given EB's age in September 2013.
2. I accept that EB has suffered a loss of earning capacity given the psychiatric evidence of Dr Ng that EB is not currently fit for employment due to her PTSD suffered as a consequence of the alleged offence and the proved offences.
3. It is difficult to assess the economic consequences flowing from EB's loss of earning capacity. EB is qualified to work in childcare but is not able to do so due to her PTSD. However, EB did work in that field for a period of time and she has been receiving Centrelink payments while not employed - these amounts must be offset against any loss of earning capacity.
4. In Re Butler,[12] Wallace DCJ declined to make an award for loss of earning capacity on the basis that there was insufficient evidence to enable the court to properly identify the economic loss that would flow from the loss of earning capacity of the appellant. Re Butler is distinguishable from the case before me as EB was 16 at the time of the offences and was not permanently employed. Nonetheless, any award for loss of earning capacity is imprecise and a matter of impression. In all of the circumstances, I award an amount of $20,000 for loss of earning capacity.

1. EB is claiming the following for future treatment expenses:

(a) 20 sessions of trauma specific individual psychotherapy at $355 per session - total of $7,100;[13] and

(b) $50 - $100 per month for medications (for anxiety and depression) for 1 - 3 years to augment the psychotherapy - total of $3,600.

1. The definition of loss in s 6(2)(e) of the Act includes expenses that are likely to be reasonably incurred by an appellant for future treatment that is required as a direct consequence of the injuries sustained.
2. I am satisfied that the future treatment expenses claimed will be incurred by EB as a direct consequence of the psychological injuries EB sustained as a result of the alleged offence and the proved offences. I award a total amount of $10,700 for future treatment expenses subject to the operation of s 48 of the Act.

1. EB is claiming the cost of the following disbursements:

(b) report of Mr Lillico dated 16.10.21 - $489.00; and

(c) the process server/investigator's fee to locate and serve the four respondents in Appeal 6 of 2021 and Appeal 7 of 2021 - $632.50.

1. I allow the amount of $2,304 for the reports pursuant to s 6(2)(a)(i) of the Act. I do not allow the amount of $632.50 for the process server as it does not fall within the definition of loss in s 6(2) of the Act.

1. In respect of the original application, the Assessor made orders limiting recovery under pt 6 of the Act to the sum of $6,875.00 from each respondent. The combined total of those orders is $27,500.
2. There are conflicting authorities in relation to whether the court, on appeal, has the power to modify a barring order. In Martin v Martin,[14] Derrick DCJ held that the court did not have jurisdiction to vary a barring order because a decision under s 45 of the Act was not a decision to make or refuse a compensation award under s 55(1) of the Act, nor was it a 'necessary consequential order' under s 56(2)(f) of the Act.
3. On the other hand, in Savic v Duric,[15] Gething DCJ held that once there is an appeal from a decision falling within the scope of s 55(1) of the Act, it is open for the court on appeal to consider afresh what order should be made pursuant to s 45(1) of the Act.
4. While I prefer the latter view, it is not necessary to ultimately determine this issue for this reason - I have found that EB suffered her psychological injuries as a result of not only the proved offences, but also the alleged offences. I find that the barring order made by the Assessor in respect of the respondents' role in the proved offences should not be disturbed.

1. The court therefore allows the appeal and awards EB the following:

1. The orders are as follows:
   1. The appeal is allowed.
   2. The sum of $58,004.00 is awarded to the appellant, inclusive of the amount of $10,700.00 which is subject to s 48 of the Criminal Injuries Compensation Act 2003 (WA), as compensation for injuries and losses.
   3. The barring order made by the Assessor that recovery under pt 6 of the Act be limited to the sum of $6,875.00 from each respondent not be disturbed.

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

[1] Gullelo v Halloran [2008] WADC 145 [5].

[2] Re Tilbury [2010] WADC 46 [3]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9].

[3] See for example Robinson [2017] WADC 18 [9] and Underwood v Underwood [2018] WADC 13 [19] as authority for the view that regard should be had to the assessment, as opposed to Sweetman v Lilley [2021] WADC 74 [9] and Guy v Hampson [2019] WADC 19 [14] as authority for the view that it is not appropriate to have regard to the assessment.

[4] Re ATS [2017] WADC 92 [28].

[5] M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992); B v S (Unreported, WASC, Library No 950223, 10 May 1995); S v Neumann (1995) 14 WAR 452 (461); Martin v Martin [2015] WADC 138 [85].

[6] Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673; T v Curnuck [2004] WASC 139 [27]; B v B [2004] WASC 6 [14].

[7] Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 - 413; Fagan v Crimes Compensation Tribunal (673); Underwood v Underwood [87].

[8] Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613, 620; March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515; Lyle v Soc [2009] WASCA 3 [40]; Underwood [87].

[10] Underwood [112] - [113].

[12] Re Butler [2020] WADC 22 [108] - [114].

[13] Dr Ng recommends at least a further 12 sessions and Mr Lillico considers that EB would benefit from up to 20 sessions.

[14] Martin v Martin [2015] WADC 138 [150] - [156].

[15] Savic v Duric [2021] WADC 53 [94].