Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Citation : [2011] WACIC 20

Appeal allowed - Components for injury and travel expenses increased

Amicus Curiae : Mr T A Repper appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Amicus Curiae : State Solicitor for Western Australia

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

Hogben v Darcy [2009] WADC 63

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

S v Neumann (1995) 14 WAR 452

1 EATON DCJ: On 30 January 2010 Bevan Jbez Hart was charged in the Bunbury Magistrates Court with two offences, the first alleging that he unlawfully assaulted Merika Stephanie Hayward and thereby did her bodily harm and the second alleging that he unlawfully wounded her in circumstances of aggravation. Both were said to have been committed on 23 December 2009 at Collie.

2 On 31 May 2010 in the Bunbury Magistrates Court the prosecution discontinued the unlawful wounding charge. The remaining charge was listed for trial. On 23 June 2010 Mr Hart entered a plea of guilty to that charge and was dealt with in the Bunbury Magistrates Court on the following day.

3 The facts outlined by the prosecutor before the magistrate were that about 9.10 pm on 23 December 2009 Mr Hart attended 7 Cunningham Crescent, Collie in company with his partner. The latter became involved in an altercation with Ms Hayward and they began to fight. Mr Hart ran up and kicked Ms Hayward to the head. She was brought to her knees. A bystander used a garden fork to protect her from Mr Hart. She got to her feet and retreated to her home. She went inside and locked the door then contacted the police. A few days later Mr Hart surrendered to the Collie Police Station and was interviewed about that and other matters. The magistrate dealt with Mr Hart for that and another offence. For the offence committed on 23 December 2009 he was sentenced to three months imprisonment.

4 On 23 May 2011 Ms Hayward applied for criminal injuries compensation arising out of the assault upon her on 23 December 2009.

5 On 18 August 2011 the Chief Assessor of Criminal Injuries Compensation awarded Ms Hayward the sum of $10,621 in compensation for her injuries and loss in respect of the offence of assault occasioning bodily harm on 23 December 2009 at Collie. The award was made up as follows:

6 In a letter of 18 August 2011 addressed to Ms Hayward's solicitors, the Chief Assessor of Criminal Injuries Compensation explained that the provision for future psychological treatment had been made on the basis that the applicant, upon referral by a general practitioner, would be entitled to a medical rebate of $115 for 12 50 minute sessions per year with a clinical psychologist. The recommended rate for such treatment was said to be $200 leaving a gap cost to the applicant of $85 per session. Provision had been made for six sessions to a total of $510.

7 By letter of 22 August 2011 Ms Hayward's solicitors requested written reasons for the award. The chief assessor provided those written reasons on 2 September 2011.

8 On 7 September 2011 Ms Hayward lodged an appeal against the award, the ground being that it was insufficient.

9 Before me, counsel for Ms Hayward made it plain that there was no quibble with the amounts allowed by the assessor for reports or future psychological treatment. The applicant's complaint is as to the inadequacy of the amount allowed for 'injury' and that allowed for travel expenses.

10 Section 12 of the Criminal Injuries Compensation Act 2003 (the Act) provides that 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 suffered. An assessor is not to make a compensation order under that section unless satisfied that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the proved offence.

11 According to s 31 of the Act the maximum amount that may be awarded in aggregate in favour of one person for a single offence is $75,000.

12 By s 41 of the Act, in deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, an assessor must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury and may, if he or she thinks it just to do so, refuse to make a compensation order because of that contribution or reduce the amount that the assessor would otherwise have awarded.

13 Section 55 of the Act provides that an interested person may appeal to this Court against an assessor's decision to make or refuse to make a compensation award or as to the amount of a compensation award. Such an appeal is to be conducted in accordance with the rules of this Court. The court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information. On such an appeal the court may confirm, vary or reverse the assessor's decision either in whole or part and make any order that an assessor could make.

14 Notwithstanding the foregoing reference to the assessor's decision it is appropriate that I have regard to the assessment made by the chief assessor because of her status as a specialist tribunal in the field of criminal injuries compensation (Hogben v Darcy [2009] WADC 63 [13]).

15 As to the maximum compensation payable I note that it is merely a jurisdictional limit and not reserved for the worst cases (S v Neumann (1995) 14 WAR 452, 463).

16 I accept that the correct approach to adopt in fixing an award of compensation is to apply ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act and, of course, the jurisdictional limit. I must be careful to ensure that any compensation awarded on appeal is for injuries suffered by the applicant in consequence of the commission of the offence on 23 December 2009. The Act defines 'injury' to mean bodily harm, mental and nervous shock, or pregnancy.

17 Among the materials before the chief assessor was a typewritten statement by the appellant dated 24 December 2009. She said that on 23 December 2009, friends came to her house for drinks on the verandah between 2 and 3 pm. She continued drinking until about 6 pm when she showered and put her child to bed. At about 10 pm, she went back outside and could see the offender and his partner, Stacey Ugle, talking on a vacant block next door. She went back inside because she did not want to speak to them. While she was washing dishes, she heard Stacey Ugle's voice getting louder and more aggressive. She went outside to see what was happening. She found that the offender and Stacey Ugle were then in her property and that the offender was encouraging Stacey Ugle to fight her. She said that she told Stacey Ugle to 'fuck off' twice. Instead, Stacey Ugle came at her in an aggressive manner. As she did, Ms Hayward pushed her away. Stacey Ugle came at her again and they began to wrestle. While that happened, Ms Hayward was aware that the offender was running towards her with something in his right hand. She was backing towards her verandah while struggling with Stacey Ugle when the offender hit her with a machete on the right shoulder. The force of the blow caused her to fall over a chair on the verandah. She fell on her back with Stacey Ugle on top of her, holding and twisting her necklace. She saw the offender standing over her, swinging his right arm, and she felt three blows to her right shin. She managed to free herself from Stacey Ugle and was lying on the floor near the doorway when the offender kicked her in the face above her right eye. The struggle with Stacey Ugle continued. The offender kicked her again to the right temple. Ms Hayward's friend Esme got involved, trying to protect her. The offender, she said, continued to wield the machete, lunging in a stabbing motion, underneath Esme's arm. Ms Hayward managed to grab the blade and pulled it from him. She and Esme then managed to shut the door and lock it. Once safe inside, they called 000 and waited for police to arrive.

18 In his written statement, Constable McLetchie said that he arrived at Ms Hayward's home at about 9.10 pm on 23 December 2009. He spoke with her. She had an injured right eye which was bruised and swollen. She also had bleeding cuts on her left hand. She showed him a machete that was inside her home.

19 Constable Fitzsimmons, in his statement, also saw Ms Hayward when he arrived at her home on that evening. He described her as having bruising over her right eye and cuts to her fingers which were bleeding. She was distressed and appeared to be in pain. He told her to go to the hospital. He seized the machete.

20 Among the papers is a letter from Dr Afolabi of the Collie Medical Group dated 7 October 2010, some 10 months after the incident. He reported seeing Ms Hayward on 23 December 2010. Clearly he was mistaken and meant 2009. He reported that she presented, complaining of having been assaulted and of dizziness with blurry vision and poor focusing. He said that she was examined and found to have mild left subconjunctiva swelling and haemorrhage. Her vision and eye movement were normal. He prescribed analgesics and recommended bed rest. As of 7 October 2010, he said, she was still complaining of recurrent dizziness with blurry vision and recurrent thought and flashbacks of the assault. As noted by the chief assessor, the doctor referred to a phobia of staying alone in a room, describing it, incorrectly, as agoraphobia, which is, in fact, a fear of being in open or crowded places.

21 So far as Ms Hayward's condition on the night in question was concerned, I accept the contemporaneous evidence of the police officers to the effect that her right eye was bruised and swollen and that she was bleeding from cuts to the fingers of her left hand.

22 The chief assessor made reference to the offender's sentencing for the offence of assault occasioning bodily harm. She said:

From the sentencing transcript it is clear that the plea of guilty to the offence of assault occasioning bodily harm was entered on a limited basis, that the offender had, whilst armed with the machete, kicked the applicant to the head. I accepted that in the melee the applicant may have been struck with the machete, however the offender was sentenced on the basis that there was no deliberate blow by the offender with it.

23 I have some concerns about the passage just quoted. The sentencing took place in the Bunbury Magistrates Court on 24 June 2010. The offender was represented by Mr Joubert. The facts outlined by the prosecutor were as follows:

At sometime around 9.10 pm on Wednesday, 23 December 2009 the accused attended at 7 Cunningham Crescent, Collie. At that time he was with a co-offender who was his partner. An altercation resulted between his partner and the victim and they began to fight. The accused went over to where the two people were fighting. The victim at that time had the co-offender on top of her. The accused has run up and has kicked the victim to the head. The victim then managed to get to her knees and a witness has helped to keep the accused away from her by using a garden fork. The victim has then got up on her feet and backed into her house. The accused followed with the co-offender. The victim and the witness went into the house and locked the door to stop the accused from entering. They then contacted police. At about 11.15 am on 27 January the accused handed himself in to the Collie Police Station. He was interviewed and made some admissions in relation to what had occurred. They are the facts on that matter, Ma'am.

24 The magistrate asked as to the assault and was told that it was the kick to the head. She asked as to the injuries sustained and was told:

It was basically a kick to the head error which resulted in an injury to the eye, Ma'am. Quite a substantial black eye, swelling and also reddening of the eye itself. Some bleeding around the white of the eye.

25 No reference was made by the prosecutor to the offender wielding a machete or striking Ms Hayward with it. In fact, during the whole sentencing process, no reference was made to the presence of a machete or its use or, for that matter, any injuries that might have been suffered by reason of its use. Neither the prosecutor, nor defence counsel, nor the Magistrate, in her sentencing remarks, made any reference to the presence of a machete.

26 There can be no doubt that was put before the Magistrate was a version of events that had been agreed as between the prosecutor and defence counsel. That is clear because, in reciting the facts before the Magistrate, defence counsel mistakenly thought that the prosecutor had suggested that his client, the offender, had entered Ms Hayward's home. He interjected:

Your Honour, that's not the agreed facts from yesterday. Mr Hart never went into the house.

The prosecutor replied that he had never suggested that he did. Mr Joubert withdrew, apologising for his misunderstanding.

27 It is not uncommon for prosecutors and defence counsel, prior to sentencing, to reach agreement about the basis upon which the facts of a given offence might be put before a magistrate. The facts so recited pursuant to such an agreement, may not necessarily be a fully accurate account of what happened at the time the offence was committed.

28 The chief assessor observed that the plea by the offender to the offence of assault occasioning bodily harm was made 'on a limited basis'. It was not, as the chief assessor said, a plea proffered on the basis that he had, whilst armed with a machete, kicked Ms Hayward to the head. In fact, in the sentencing proceedings, there was no reference at all to a machete. The chief assessor said that the offender was sentenced on the basis that there was no deliberate blow by him with the machete. That was not so. He was sentenced on the basis that he was not armed in any way.

29 The chief assessor accepted as a matter of fact that 'in the melee' the offender 'may have been struck by the machete'.

30 By s 18 of the Act, an assessor must determine compensation applications expeditiously and informally having regard to the requirements of justice and of the Act. In deciding a compensation application, an assessor is not bound by rules or practice as to evidence or procedure but may inform himself or herself in any manner he or she thinks fit.

31 It is necessary when determining a compensation application to have regard not only to the offence proved, but to the circumstances in which the offence was committed. That involves arriving at findings of fact from the materials available. In that exercise, an assessor is certainly not bound by agreements reached between a prosecutor and defence counsel prior to the sentencing of an offender as to the factual basis upon which the sentence is to be imposed.

32 In sentencing the offender, the Magistrate said:

You are before me today in respect of two charges, the first of which is an assault occasioning bodily harm which you committed on 23 December last year, and in the course of that assault you kicked Ms Hayward to the head and I think your partner was also involved in the assault upon Ms Hayward and, as a result of the combined assault upon her, she suffered an injury to the left eye and bruising above her right eye.

The Magistrate, in passing those remarks, had the benefit of an outline of the facts by the prosecution and comments as to sentencing as well as a plea in mitigation by defence counsel.

33 The police took a number of statements from those at Ms Hayward's home when they arrived in response to the 000 call. Shanola Marie Blurton said that she was seated on the front verandah and saw Stacey Ugle walking up to the house behaving aggressively. It was she who shortly after, picked up a pitch fork so that she could defend herself and others. The offender, she said, was holding a machete. She said that she threw the pitch fork at him in an attempt to stop him from attacking Ms Hayward. She noted that the offender had a machete in his right hand. She said:

When I looked up moments later I saw Bevan step back and kick Merika to the right side of the head with what I would describe as a drop kick. It looked as though Bevan had kicked Merika very hard as her head shot backwards. I was trying to pull Merika away from Stacey and Bevan and was trying to shield my face away. I looked up and saw that Merika had hold of the blade of the machete. I'm not really sure what happened for the machete to get so close to Merika. I saw that Merika managed to pull the machete out of Bevan's hand. I managed to pull Stacey from Merika and Bevan pulled Stacey outside.

34 Danielle Irene Cockie said that when the offender and Stacey Ugle arrived, Shanola Blurton told Stacey Ugle to go home because she was drunk. She refused to do so.

I saw that Bevan was holding a machete in his hand, however I'm not sure which hand. Bevan was swinging the machete from side to side in front of his body. He was swinging in at Merika and came within an arm's length from hitting her with it. I stepped back a bit from the scene as I was holding Merika's baby, Phillip John Ugle, who is 20 months old. Shanola and I were yelling and screaming at Bevan to get the fuck out of the house. Bevan booted Merika three times to the side of her head. By booted I mean that he kicked her. It seemed that Bevan kicked her very hard.

Merika had Stacey by the hair and Stacey had Merika by her necklaces around her throat. Bevan stood over the top of Stacey. He had the machete still in his right hand but he had the blade coming out the bottom of his fist so he could stab down at Merika. He made more than 10 stabbing motions toward Merika but none of them hit her. I don't know why.

Bevan came past Stacey into the house and kicked Merika. I saw him clearly kick her as I was about 1 metre away just behind him. He kicked her once to the head and two times to the ribs. During this Merika was screaming at them both to get out of her house. Shanola appeared with a short garden pitch fork. She thrust it towards Bevan as he was still swinging the machete around. He just stood there so Shanola threw it at him but it missed. I went past Bevan into the house and they shut the door on Bevan. We went into the kitchen and Bevan came into the kitchen. He walked up to Merika. He had his arm pulled back with the machete out in front of him and pushed it towards Merika. He was about 15 centimetres away from Merika at the time and was trying to stab her with it. The only reason he didn't stab her was because she jumped back from it. She grabbed the machete by the blade and they started fighting over it. Merika managed to rip it from him and she started to swing it towards him to get him out. We shut the door when he went out. Merika then called the police.

38 Those accounts, along with the statements of the police officers involved, and the photographs taken by Constable McLetchie described, with some variations, the combined attack on Ms Hayward and how she suffered injuries not only to the face but also to her hands.

39 I conclude, as a matter of fact, that during his assault upon Ms Hayward, the offender was armed with a machete which he used as a weapon against her. I accept, as a matter of fact, that she managed to get hold of the blade and take it from him. In doing so, she suffered injuries to her hand. I accept that he also kicked her in the face above the right eye and to the right temple.

Based on the applicant's own statement, although she alleges that Stacey had approached her aggressively on her own property, it was clear that there was bad blood between them before the incident and the applicant struck Stacey first by pushing her away.

That passage appears to have regard to s 41 of the Act which provides that in deciding whether or not to make a compensation order, or the amount of a compensation order, in favour of a victim, an assessor must have regard to any behaviour, condition, attitude or disposition of the victim that contributed, directly or indirectly, to the victim's injury and may, if he or she thinks it is just to do so, refuse to make a compensation award because of that contribution or reduce the amount that the assessor would otherwise have awarded.

41 I accept that Ms Hayward, on the afternoon and evening in question, had friends around two days before Christmas on her verandah. I accept that when the offender and Ms Ugle arrived they were uninvited, drunk and aggressive. The chief assessor appears to have placed some stock in the proposition that 'the applicant struck Stacey first by pushing her away'. It is apparent that the offender and Stacey Ugle were aggressive when outside Ms Hayward's property and became more so when they entered. They did so without permission. Ms Hayward was entitled to ask them to leave. She did so in clear terms. They refused to do so. Ms Ugle came aggressively towards her. Ms Hayward was, in my view, entitled to resist the unauthorised and aggressive intrusion of Stacey Ugle and the offender. To suggest that in doing so she 'struck the first blow' and that her behaviour contributed directly or indirectly to her injury is, in my view, entirely inappropriate.

42 The chief assessor's comment, quoted above, has resonance in another context. It appears that, when interviewed by Douglas Hatchett, a clinical psychologist from Bunbury who prepared a psychological report dated 6 November 2010, Ms Hayward mentioned to him that there had been some family feuding around Collie and that she had been taking the role of peacemaker. Responding to that comment, the chief assessor said:

I note that the applicant's behaviour towards Ms Ugle on the night of the incident when she saw her at the front of her property could not be described in any sense as peacemaking with respect to the ongoing conflict.

43 The reference to the role of peacemaker in Mr Hatchett's report is under the heading 'Historical Presentation'. My appreciation of what was said to Mr Hatchett was that, by way of context, Ms Hayward described feuding in the town of Collie and described her role in that general context as one of being a peacemaker as opposed to being partisan. I do not regard the comment as amounting to a claim that on the night in question, she was casting herself in the role of peacemaker. Clearly, she was defending herself from an aggressive and drunken intrusion by Stacey Ugle and the offender.

Despite having received some counselling, Ms Hayward is still suffering at an extreme level from the consequences associated with the attack against her. The attack was sustained for some duration, included two attackers including an armed male attacker, was in the realms of her own home, witnessed by her son, and due to cultural and family dynamics, Ms Hayward feels honour bound for the benefit of her son (and presumably the risk of continuing feuds) to continue living in close proximity with those who attacked her. However, the fact that they behaved as though they did nothing wrong, causes Ms Hayward great anguish as she feels invalidated by their actions. Moreover, Ms Hayward feels abandoned by her son's family as they rallied around to protect the attackers and have not emphasised or sympathised with Ms Hayward in any way contributing to her feeling isolated and abandoned by those she thought loved and cared about her.

45 Mr Hatchett's finding was that Ms Hayward was, as at the date of his report, 6 November 2010, 'still suffering at an extreme level from the consequences associated with the attack against her'. The chief assessor appears to disagree with that conclusion, suggesting that Ms Hayward's 'condition' was contributed to by a number of significant but non-compensable issues, the main feature being the conflict with Ms Ugle arising from an ongoing family feud. The chief assessor's conclusion seems to run counter to the psychologist's expert conclusion that Ms Hayward was still suffering at an extreme level from the consequences associated with the attack against her. It is true that Ms Hayward cannot be compensated for the responses of her family to the incident, for her feelings of injustice, for the response of the local community or for the impact of having to remain in close proximity with Ms Ugle.

46 The chief assessor said that no aspect of the conduct of Ms Ugle was compensable on Ms Hayward's application. In my view, in arriving at an award of compensation, an assessor, in order to have regard to the injuries suffered by a victim as a consequence of the commission of an offence, must have regard to the circumstances in which the offence was committed. The circumstances of the offence against Ms Hayward were that she was under attack from Ms Ugle and defending herself from that attack when she was attacked by the offender who was armed, with a weapon and who struck her with it. The offence committed by the offender was committed in that context. It is, in my view, impossible and inappropriate to excise the role of Ms Ugle from that context. It was very much the case that Ms Ugle and the offender were acting in concert. For reasons best known to the police officers in attendance on the night in question, Ms Ugle, it seems, was not charged with any offence arising out of her attack upon Ms Hayward. That is a function of the exercise of the discretion of the officer concerned.

47 The chief assessor discounted the compensation awarded to Ms Hayward

to take account of the significant extent to which it was caused by the conduct of Ms Ugle, both on the day in question, before and since the incident in the context of an ongoing family dispute, together with the impact on the applicant of the pressure arising from the requirement to maintain her home in Collie and contact with the offender's family.

Ms Hayward did not seek to be compensated for any injury suffered by her as a consequence of the commission of an offence by Ms Ugle. The chief assessor was satisfied that Ms Hayward had suffered physical injuries which had healed without ongoing problems and that she suffered mental and nervous shock. The chief assessor concluded that the injuries suffered by Ms Hayward were 'to a significant extent' caused by the conduct of Ms Ugle. She took the view that 'no aspect of the conduct of Ms Ugle was compensable on this application'.

48 Section 3 of the Act defines 'injury' to include bodily harm and 'mental and nervous shock'. The phrase 'mental and nervous shock' has been construed as including any malfunction of the victim which can be seen to be a consequence of the impact of events constituting the offence, or associated with the commission of the offence, as those events impact on the mind or the nervous system: Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980). Mental and nervous shock includes distress, horror, disgust and other similar adverse mental reactions but does not encompass mere fright, humiliation or anguish: M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992). An applicant for compensation must prove the necessary causal relationship between the offence and the claimed injury and loss, on the balance of probabilities. Whether such causal relationship exists between the claimed injury and loss and the proved or alleged offence is a question of fact.

49 In my view there is a clear causal relationship between the conduct of the offender when committing the offence and the injuries suffered to both the head and hand of the applicant. The latter was demonstrably caused by the applicant defending herself against an attack by the offender with the machete and wresting it from his grasp. The applicant is not to be compensated for any physical injury inflicted upon her by Ms Ugle. In terms of mental and nervous shock, however, it is very much the case that the offender and Ms Ugle acted in concert with the offender, being armed, presenting as far more dangerous than Ms Ugle. That danger, for the applicant, was exacerbated by the fact that she was, from the outset, struggling with Ms Ugle who had attacked her at the instigation of the offender. It was wrong, in my view, of the chief assessor, with respect to her, to conclude that no aspect of the conduct of Ms Ugle was compensable on Ms Hayward's application. Ms Ugle's conduct was inextricably part of the context of the offence of assault occasioning bodily harm committed by the offender.

50 In my view, a proper award of damages for the injuries suffered by the applicant consequent upon the offence committed is, taking into account Ms Hayward's pre-existing depression, $23,000.

51 Finally, the chief assessor said that she was satisfied that the applicant had incurred travelling expenses to travel to Bunbury for the assessment with Mr Hatchett. She included the sum of $200 compensation for those expenses. The Act defines the term 'loss' to include expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injuries suffered by the victim as well as expenses actually incurred. The chief assessor appears to have compensated Ms Hayward only for her incurred travelling expenses relating to her assessment by Mr Hatchett and the need to travel to Bunbury for that purpose. She noted that Mr Hatchett had indicated that between 12 and 18 sessions of counselling would likely be required to treat the condition suffered by Ms Hayward. She said that she had made provision for gap expenses likely to be incurred for six counselling sessions reflecting the extent to which she was satisfied that the condition arose as a consequence of the proved offence. I propose to allow travel expenses both already incurred and to be incurred in the sum of $750.

52 In my view, with respect to the chief assessor, it was wrong to discount the award made to Ms Hayward in the manner and for the reasons enunciated by her. The result of the error is that the award made to Ms Hayward was quite inadequate. I allow the appeal and propose the following orders:

1. The appeal be allowed.
2. The award of compensation made by the chief assessor dated 18 August 2011 be varied as follows:

53 The total amount of the award is therefore $26,171, the sum of $510 being subject to s 48 of the Act.