Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Appeal against quantum of award - Turns on own facts

Criminal Injuries Compensation Act 2003 s 30, s 31, s 45(1)(b), s 56(1)

Amicus Curiae : Ms J Berry appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Amicus Curiae : State Solicitor for Western Australia

Hinchcliffe v Hinchcliffe [2010] WADC 78

Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638

Medlin v State Government Insurance Commission (SA) [1995] HCA 5; 182 CLR 1

Re Tilbury [2010] WADC 46

1 This is an appeal from the award of an Assessor of Criminal Injuries Compensation made on 30 March 2016 whereby the respondent was awarded compensation in the sum of $75,000 pursuant to s 30 of the Criminal Injuries Compensation Act 2003 (WA) (the Act).

2 The assessor made an order pursuant to s 45(1)(b) of the Act that only $40,000 of the award be subject to recovery from the appellant. A barring order of this kind is not appealable to this court because it is not a decision in respect of the amount of a compensation award.

3 The compensation was awarded in respect of injuries and losses suffered by the respondent as a result of being 'glassed' by the appellant in the face on 15 July 2010.

4 The appellant was convicted of grievous bodily harm on 3 October 2012 in the District Court. He was sentenced to four years imprisonment which was almost entirely served in custody.

5 On 13 April 2016 the appellant filed a notice of appeal against the decision of the assessor on the grounds of:

(a) 'for only scarring and possible eye damage but not taken into account so why was it mentioned?'; and

(b) 'I have already been punished four years in jail. Now want to add a $40,000 debt on top after having to start from scratch already'.

6 The principles that apply to the assessment of damages in tort apply to the assessment of compensation under the Act, subject to the statutory maximum of $75,000 (s 31). Pursuant to s 56(1) of the Act the appeal is a rehearing of the matter de novo.

7 The court has a general discretion to receive and admit further evidence, which should be admitted unless it would be unjust to do so (s 56(1), Re Tilbury [2010] WADC 46 [3]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9]).

8 The respondent sought to adduce further affidavit evidence, which I have admitted.

9 Based on the findings of the sentencing judge, the facts of the offence were as follows.

10 At about 1:57 am on Thursday 15 July 2010 the appellant was outside the Clink Nightclub at 16 South Terrace, Fremantle. He had been drinking inside the nightclub and, prior to that, at the Newport Hotel. He was heavily intoxicated.

11 The appellant and the respondent were already known to each other on a casual basis.

12 The appellant entered into a verbal altercation with a friend of the respondent, namely Rachel Parker.

13 The respondent criticised the appellant for the manner of his speech towards Ms Parker.

14 A short verbal altercation followed, whereupon the appellant punched the respondent once to the face with a clenched fist.

15 The appellant then walked away, removed a glass bottle from a rubbish bin and smashed it. Thus armed, he walked back towards the respondent.

16 Ms Parker stepped in front of the appellant to prevent access to the respondent. The appellant threw Ms Parker to the ground and proceeded towards the respondent, whereupon he struck him in the face with the broken bottle.

17 The appellant and the respondent fell to the ground. Whilst on top of him, the appellant struck the respondent several times to the face with the broken bottle. The appellant then left the respondent and walked away from the scene.

18 The respondent suffered severe lacerations to his face and left eye and was taken to the emergency department of Fremantle Hospital.

19 On examination, he complained of an absence of vision in his left eye. His blood alcohol concentration was 0.2%. He had multiple facial lacerations as follows:

(i) an 8 cm curved laceration across the glabella region (ie, above his nose) extending to the right side of the nose;

(iii) a 2 cm long flap laceration of the left cheek;

(iv) a 5 cm laceration on the left side of the angle of the mouth;

(viii) a 1 cm superficial laceration of the left shoulder and of the right thumb.

20 The respondent suffered from a complete loss of vision in his left eye which had a dilated non-reactive pupil and a prolapsed iris.

21 The lacerations were temporarily sutured and the respondent was given a tetanus injection and intravenous antibiotics. He was then transferred to Royal Perth Hospital for further management by the plastic surgical and ophthalmological teams.

22 After surgery and recovery in Royal Perth Hospital he was discharged and gradually made a relatively good recovery in all domains. However, he has been left with residual ophthalmic, cosmetic and psychological injuries, to which I now turn.

23 On 26 November 2013 Dr Ross Agnello, ophthalmologist, reported that the respondent had the following residual injuries:

[The respondent] sustained a very serious eye injury and the fact that he retains good vision in this eye attests to the meticulous surgical care undertaken at Royal Perth Hospital and his subsequent management at the Eye Clinic;

He states that although he is still light sensitive, this has improved considerably since the injury and surgical repair.

...

[The respondent] is certainly at risk of future ophthalmic problems, as a result of the injuries sustained. He is at significant risk of developing a cataract in the left eye, earlier than would otherwise have been the case. This would be a direct result of the serious eye injury he sustained. Any cataract surgery to the left eye is also likely to be more complex and with a higher risk of complications than would otherwise be the case.

...

Any of these potential complications could lead to visual loss, further intraocular surgery and a potentially poorer prognosis.

24 In his affidavit the respondent testified that he had discussed his left eye injury with his general practitioner and that there 'is a possibility' that he will be able to have laser surgery on the eye to improve his vision. He said it was 'an option that he [was] interested in exploring in the future'.

25 There is no expert evidence to support this statement, either as to the need for the surgery or when it would occur. I do not intend to give it significant weight. The respondent's blurred vision is currently manageable and does not significantly interfere with normal activities of daily living.

26 In his report of 17 October 2013 Mr Alister Turner, plastic surgeon, described the respondent's scarring as follows:

This man has suffered a shocking attack with a broken bottle which has left him with many very ugly and obvious scars as a permanent reminder of the incident. I would assess the permanent disfigurement in this patient's head and neck as a whole as approximately 25%.

27 Photographs of the respondent's facial injuries have been received in evidence and clearly depict the scars.

28 There is no evidence that the scars are causing the respondent any significant physical impairment. However he testified in his affidavit that:

As the scar tissue has thickened over time ... it [is] becoming tighter and it is disruptive especially when I am chewing.

29 The respondent stated that he and his general practitioner have discussed the possibility of surgery in the future to reduce the size of the scar tissue on the inside of his cheek. He said there is 'a possibility in the future I'll be able to have this re-cut and pulled apart to make it a less problem in my mouth'. There is no expert evidence to support that opinion and I intend to give it minimal weight as it is somewhat speculative.

30 There is no doubt that the respondent has suffered significant cosmetic injuries. Of these, the scar to the right of his mouth is the most obvious and disturbing. It is shaped like a rough, broad crescent. It gives the appearance of a raw smear and it is quite noticeable. It is hairless in the sense that there are no, or at least very few, follicles to be seen.

31 According to the respondent's evidence and the report of the clinical psychologist, Ms Jacqueline Ryan, dated 20 September 2013, he suffers from a number of psychological symptoms as a result of his injuries. I find as follows:

(i) He is subject to bouts of anger and irritability, hypervigilance, anxiety and avoidant behaviour which he did not suffer before the offence. For example, he does not go out as often as he did before and he avoids Fremantle. He has reduced his circle of friends in order to mitigate the risk of being reminded of the offence. His anxiety worsens when he does go out during the evenings.

(iii) He is troubled by his facial injuries, which constantly remind him of the offence. Apart from having to view the scarring whenever he uses a mirror (or sees photographs of himself, I infer), he is occasionally asked about it by other people and therefore obliged to recount the circumstances of the offence.

(iv) Whilst his psychological symptoms have not affected his ability to work, he believes that his increased irritability has made him less tractable and therefore less employable.

32 In Ms Ryan's opinion the respondent was suffering from symptoms consistent with post-traumatic stress disorder (PTSD) when she saw him in September 2013. As I read her report, she reached that conclusion because the respondent found the offence life threatening and because of the abovementioned symptoms. That is eminently believable.

33 In submissions Mr Pratt accepted that the respondent's PTSD was at the lower end of the scale of seriousness having regard to the relatively limited effect that it has on his normal activities of daily living.

34 The appellant made some useful submissions in that respect. He pointed out that, according to Ms Ryan's report, the respondent was not taking any medication when she saw him and, further, he had not commenced any of the 18 counselling sessions she had recommended for him (that is, he had no pressing need of them).

35 As to that, the respondent testified that he intends to undergo treatment with Ms Ryan once his compensation claim has been finalised (ie, 'once I have dealt with this appeal' and can 'move on').

36 As to the longer term prognosis, Ms Ryan stated:

[The respondent] reported that he believes he will never make a full recovery mainly due to the severe nature of the physical injuries from the assault, in particular the facial disfigurement and the 30% loss of vision in his left eye. [The respondent] reported that he feels his personality has been significantly affected as a result of the assault as he has lost trust in people. ...

37 I am not satisfied that the respondent has suffered a 30% loss of vision in his left eye. It therefore remains to be considered whether, and to what extent, that assumption impacted on Ms Ryan's opinion. It must have had some effect because, as I read her report, she considered the permanent physical sequelae of the offence to be important aspects of the aetiology of the PTSD and, hence, the prognosis. Accordingly, I find that the respondent's psychological prognosis is not as severe as Ms Ryan suggested.

38 Subject to that caveat, I accept Ms Ryan's evidence and find that the respondent has suffered PTSD as a result of the offence, that the symptoms are ongoing and will be permanent in the sense they will continue for the foreseeable future. However, in my opinion the psychological injury is only mild because the respondent has been able to cope for some years without the medications that are commonly prescribed for anxiety and depressive-type symptoms, and because he has been able to cope without clinical treatment. I anticipate that the clinical treatment which is to be provided will be beneficial and provide for a reasonably good prognosis.

39 The respondent is aged 25 years. He is a carpenter by trade. His claim for past economic loss is confined to $1,774.24 for lost wages and $182.90 for lost superannuation benefits. The evidence shows that he was able to return to full-time work three weeks after being injured, subject to some limitations. He has worked full-time since, although he has been less effective in the workplace than before the offence, particularly because of his psychological symptoms and his reduced confidence in his vision.

40 Mr Pratt conceded that the respondent cannot prove that he has suffered any substantial loss of future earning capacity. However, he submitted that a sum should be allowed on a global basis because of the prospect that his horizons of employment will be impaired in the future.

41 The appellant submitted that the respondent was again claiming for a 'mere possibility'. There is force in that submission. Pure speculation is no possibility at all (Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638). However, in my view the prospect that the respondent's employment horizons will be affected in the future is not entirely speculative, not because of his inherent unemployability (or any prospect of the same), but rather because of his likely subjective choices and perceptions of suitable employment. In that respect, he has already resigned one employment because of his perception that the symptoms of his PTSD (in particular his irritability) compromised his working relationship with a particular supervisor.

42 Reasonable, subjective limitations self-imposed by an injured person can be taken into account in assessing any injury-related impairment of that person's earning capacity (Medlin v State Government Insurance Commission (SA) [1995] HCA 5; 182 CLR 1).

43 In my opinion the prospect that the plaintiff will reasonably subject himself to self-imposed employment conditions and limitations is real and not speculative, and must be allowed for in a modest way in a global award.

General damages for pain and suffering and loss of amenities of life

44 In my opinion this is the most significant head of damage. Three factors must be considered.

45 First, the respondent was badly injured during the acute phase and was hospitalised for four days.

46 Second, he has suffered a significant and permanent injury in the most cosmetically sensitive area of all, namely his face. He was a young man when he was injured and still is. His facial appearance constantly worries him and contributes to his psychological injuries. He is constantly worried about his appearance.

47 As the appellant pointed out, it is true that the respondent's scarring does not significantly affect him physically, but as he says (and I accept) it has changed his personality for the worse. Further, it could not be denied that it has also changed him objectively in terms of his physical attractiveness.

48 The question of compensating a person for scarring involves value judgments. Quite frankly, some of the respondent's scars (particularly in the area of his forehead and eyebrows) might be disregarded by some people. Nevertheless, even they are a constant reminder to him and bear witness of a humiliating and terrifying assault.

49 The scars on the respondent's lower face are in a different category. From an objective point of view, he was a handsome, carefree young man before the offence. He is now embarrassingly disfigured.

50 I am completely satisfied that the adverse changes in the respondent's personality, and how he interacts with the world, caused by the scarring have and will significantly impact on how he enjoys life in many domains for all of his life.

51 In my view the respondent's economic, ophthalmic and psychological injuries should not attract significant awards. His eye impairment is little more than an irritant at this stage (although he is obliged to wear sunglasses more often than before the offence) and any likely complications (such as premature cataracts) are well in the future. His psychological injuries make him unhappy, but they are not greatly debilitating.

52 Were it not for the scarring, I would only allow a modest award for pain and suffering and loss of amenities for life. But the scarring is cosmetically serious and will permanently inform his psychological health and impair his happiness in numerous domains.

53 In my opinion an appropriate award for lost earning capacity (past and future), pain and suffering and loss of amenities of life should be assessed in the order of $125,000. Without resorting to precise arithmetic, I would say that the lion's share of that award represents the purely cosmetic aspect.

54 There is evidence as to the cost of reports and other matters incurred to date ($5,209.10) and the cost of future psychological care (approximately $4,104). Mr Pratt informed me that the respondent would waive his claim for compensation for future expenses if the award exceeds $75,000 so as to prevent the expenses being quarantined pursuant to s 48(1) of the Act. I accede to that request and award nothing for future expenses.

55 There was some merit in the first ground of appeal, but it has not altered the ultimate outcome.

56 The second ground of appeal is irrelevant because it does not relate to the quantum of the respondent's compensation. I presume it was taken into account by the assessor when he made the barring order which limited the appellant's personal liability to $40,000 instead of $75,000.

57 In my opinion the respondent was entitled to compensation of $75,000 as awarded by the assessor.