Jones v Macey [2000] WADC 101

Criminal Injuries Compensation Act 1985

Amicus Curiae : Ms C Bathurst appeared on behalf of the Chief Executive Officer of the Ministry of Justice

AMS v Estate of KEG, unreported; DCt of WA; Library No 4577; 23 August 1995

B v S, unreported; SCt of WA; Library No 950223; 10 May 1995

Crumby v Kuru (1975) 13 SR (WA) 331

DNA v Britten (1995) 14 SR (WA) 325

Hatfield v Under Secretary for Law, unreported; SCt of WA; Library No 4012; 15 December 1980

K v P, unreported; SCt of WA; Library No 8909; 12 June 1991

Kilinc v Assessor of Criminal Injuries Compensation, unreported; DCt of WA; Library No 990015; 21 January 1999

M v J and J v J, unreported; SCt of WA; Library No 920598; 19 November 1992

MES v KG (1995) 12 SR (WA) 330

R v Forsythe (1972) 2 NSWLR 951

Ramsay v Watson [1961] HCA 65; (1991) 108 CLR 642

Re Karra (1984) 2 SR (WA) 97

RJE v Bandy, unreported; SCt of WA; Library No 1365; 31 May 1974

1 The appellant appeals against the awards of the Assessor of Criminal Injuries Compensation both dated 15 January 1996 in relation to injuries which were inflicted upon her by the respondent in the commission of two offences against her:

1. Grievous bodily harm on 30 November 1990; and

2. Assault occasioning bodily harm on 5 October 1991.

2 By award order dated 15 January 1996 the assessor awarded the appellant the sum of $6,000 in relation to the offence of unlawfully doing grievous bodily harm committed on 30 November 1990. The Assessor awarded the appellant the sum of $2,500 in relation to the offence of assault occasioning bodily harm committed on 5 October 1991.

Appeals under Criminal Injuries Compensation Act 1985

General principles in the assessment of compensation

3 It is clear from s41(3) of the Act that an appeal is by way of hearing de novo, the Court not being fettered by the determination of the Assessor. Nevertheless, the Assessor is a specialist tribunal and it is appropriate to take into account the amount of the Award Order: Crumby v Kuru (1975) 13 SR (WA) 331 at pp 333-334.

4 Where an applicant seeks compensation in respect of injury or loss suffered in consequence of the commission of an offence for which a person has been convicted, the onus is on the applicant to establish on the balance of probabilities that the claimed loss or injury occurred as a consequence of the offence: Section 7(3) of the Act; Re Carter (1984) 4 SR (WA) 219.

5 The standard of proof in a criminal injuries compensation application is proof on the balance of probabilities. However, clear and cogent proof is required when serious criminal conduct is alleged: AMS v Estate of KEG, unreported; DCt of WA; Library No 4577; 23 August 1995; per Hammond CJDC; MES v KG (1995) 12 SR (WA) 330.

6 In assessing the amount of compensation which should be awarded the Court must have regard solely to the injury actually suffered by the appellant in consequence of the commission of the offence and not the seriousness of the offence. The amount is not to be fixed as punishment of the offender or expression of sympathy for the victim, but as compensation for injury of loss: DNA v Britten (1995) 14 SR (WA) 325; R v Forsythe (1972) 2 NSWLR 951 at p953.

7 It should not be taken from the above that the actual facts of the offence are of no consequence. It is from the facts of the offence that one can make decisions about the credibility and weight of the diagnosis of the medical experts, the likely time during which the appellant will suffer the injury and whether the appellant has behaved in any way that might directly or indirectly contribute to the injury or loss: DNA v Britten (1995) 14 SR (WA) 325 at p327.

8 In determining the credibility and weight to be given to the diagnosis of medical experts, little or no weight can be given to the expert opinion if statements made that form the basis of their opinion cannot be substantiated: Ramsay v Watson [1961] HCA 65; (1991) 108 CLR 642; Kilinc v Assessor of Criminal Injuries Compensation, unreported; DCt of WA; Library No 990015; 21 January 1999; per Wisbey DCJ.

9 The correct approach to adopt in fixing the amount of compensation that should be awarded is to apply the ordinary principles for assessment of damages subject to the jurisdictional limit imposed by the Act: M v J and J v J, unreported; SCt of WA; Library No 920598; 19 November 1992; per Scott J, at pp 11-12.

10 Pursuant to reg 12(1) of the Criminal Injuries Compensation Regulations 1985 there are two different jurisdictional limits in these appeals as follows:

(a) For the offence of grievous bodily harm committed on 30 November 1990 - $20,000 and;

(b) for the assault occasioning bodily harm committed on 5 October 1991 - $50,000."

11 "Injury" is defined to mean bodily harm and includes mental and nervous shock.

12 The phrase "mental and nervous shock" as used in section 3 of the Act, comprehends any malfunction of the person 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 nervous system: Hatfield v Under Secretary for Law, unreported; SCt of WA; Library No 4012; 15 December 1980; per Burt CJ, at p5.

13 In assessing mental and nervous shock the Court must attempt to make a distinction between direct 'impact damage' and further damage that may be suffered by such things as the reaction of the victim's friends and family, court proceedings or public attention: RJE v Bandy, unreported; SCt of WA; Library No 1365; 31 May 1974, per Burt J; Re Karra (1984) 2 SR (WA) 97.

14 Further, what is contemplated by the Act is not a mere emotional reaction but something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury: B v S, unreported; SCt of WA; Library No 950223; 10 May 1995; per Murray J.

15 The term "mental and nervous shock" includes distress, horror, disgust and other similar adverse mental reactions but excludes mere fright, humiliation or anguish: K v P, unreported; SCt of WA; Library No 8909; 12 June 1991; Rowland J; M v J and J v J; unreported; SCt of WA; Library No 920598; 19 November 1992; per Scott J.

16 The appellant was born on 22 September 1963.

17 A report of the Royal Perth Hospital dated 23 December 1991 is in the following terms:

"This lady presented to Royal Perth Hospital on 3 December 1990 following an alleged assault. The history as stated is that on 30 November 1990 she had been pushed by her ex-boyfriend and had hit her head on a stool or the floor as she had fallen. She was complaining of blurry vision and of feeling nauseated that evening. Over the ensuing days a headache at the right side of the head had become worse.

On examination she was slightly drowsy. There was an area of swelling and bruising at the right back of the skull. Examination of the cranial nerves and peripheral nervous system was normal. Skull x-rays were performed which showed a vertical fracture of the right occiput. A follow up cranial CT scan showed a right extradural haematoma.

She was taken to theatre where a craniotomy and evacuation of clot was performed. Her post-operative course was uneventful and she was discharged home on 13 December 1990. Follow up was to be in the Neurosurgery Clinic at Sir Charles Gairdner Hospital on 13 February 1991.

The consultant neurosurgeon in charge of the case was Mr G Wong and for comments on prognosis and/or disabilities, it would be best to contact him at his private rooms."

18 The appellant in her affidavit in support of the appeal does not state that she attended the follow up appointment at the neurosurgery clinic at Sir Charles Gairdner Hospital on 13 February 1991. There are no further reports from Royal Perth Hospital or from Mr G Wong the consultant neurosurgeon.

19 In a report from Dr S J Dunjey from the Armadale Kelmscott Memorial Hospital dated 8 November 1993 Dr Dunjey said as follows:

"This report is based on records held at the Armadale Kelmscott Hospital. Our records (sic show) that this lady presented on 5 October 1991 arriving at 2055 hours and being discharged at 2230 hours. She was attended to by Dr Davies.

The history given was that this lady was the victim of an assault receiving blows to the head, the right and left arm and grazes to the knees and hands. There had been no significant loss of consciousness. Past medical history included a (sic an) intracerebral haemorrhage some one year previously following a head injury.

On examination she was noted to have marked bruising over both arms and shoulders. No injuries were detected to the chest or abdomen. Examination of her legs revealed grazes on knees. There were two bruises on the back of her head. The neck was normal to examination. Cardiovascular system was normal as with the central nervous system. She was therefore assessed as having bruising to her upper limbs, grazes to her knees and evidence of several blows to the head producing a minor head injury. She was therefore allowed home with a head injury sheet and instructed to return if there were any other problems.

She has not been seen in this department since the time of her accident and you would need to contact either her or her current medical adviser to discover her present condition."

20 On 9 September 1998 the appellant attended on Dr Richard Hester a consultant psychiatrist for a report on her psychological condition related to her attendance at the psychiatric department of the Royal Perth Hospital on numerous occasions.

21 His report is in the following terms:

"Ms Jones attended on 9 September 1998 for a report on her psychological condition related to her attendance at the Royal Perth Hospital on numerous occasions.

She explained the background to me. She came to Australia as a child with her parents who were always moving around. They finally separated twelve years ago. Her father had little influence on her and she has not seen him for many years. She turned to her mother for help and support. She has a good relationship with her older brother and younger sister, although they do not live in Perth.

She went to many different primary schools and then settled at Thornlie High School quite successfully, particularly in Year 11 and 12. She said she joined a peer group and felt slightly more mature, confident and did well enough to get into Curtin University. She did a diploma in teaching over the following three years.

She then went supply teaching and did not get offered a full-time job unfortunately until she was seven months pregnant. She was living with Don at the time. He always pressured her and wanted a son and she finally had a son. She and Don separated on a number of occasions. She recognises it was a mistake being with him and that he hindered her development and she finally left him.

At age 25 she had a relationship with Craig Macey. He moved into her unit and they then rented a house together and he began to hassle and beat her. Her mother returned from England and she left Craig to live with her mother who at that time was in a very distressed state, her second husband having died in England. Judy found herself looking after her mother.

It was during this time that she was physically assaulted by Craig. On the first occasion she was pushed and her head hit against the wall so hard that she developed a subdural haematoma and the brain haemorrhage was evacuated at Royal Perth Hospital on 13 December 1990. Craig was charged with this offence.

On 5 October 1991 they met again at the Maddington Hotel and he took her to the Bickley reservoir and told her that she was going to be killed. He kicked her repeatedly and she felt fearful of her life and pretended to 'pass out'. Craig became afraid and took her to hospital.

She attended Royal Perth Hospital in a depressed, anorexic, anxious state. She tried to treat her suffering by excess alcohol intake. However the attempt to treat the wide variety of psychological symptoms from which she suffered only added to her range of disorder.

In my opinion at that time she suffered from Post Traumatic Stress Disorder as she experienced repeated flashbacks of the incidents, she was unable to organise her life, was treated at Royal Perth Hospital, both as an in-patient and day patient. There were recurrent admissions because of her mental state and some admissions because of her physical state because of the alcoholic complications of liver damage that developed during this time.

The treatment was conducted over two years between 1991 and 1992. She was eventually well enough to tentatively be rehabilitated and has been gradually able to get herself going and work more effectively. She has worked full-time for the last four years but still suffers from residual deficits.

In my opinion her confidence has not returned to her premorbid level. She is hesitant, she sleeps poorly and generally is taking a long time to recover. Her recovery is progressing well but will take some time.

In my opinion the assaults are a direct contributing factor to her decompensation and the illness she suffered."

22 I note that Dr Hester said that the assaults are a direct contributing factor to her decompensation and the illness that she suffered and not that they were the direct cause. It is quite apparent from other medical reports tendered in evidence that she had other problems at that time. In a report from Royal Perth Hospital of 21 March 1995 it is stated that during her treatment it became evident that part of her problems were related to a lack of defined access to her son. She attended until August 1994 and her mood was noted to be significantly affected by access issues. Her mood rose or fell according to the latest development in that area. She was seen on 10 August 1994 and it was noted that she remained absorbed with legal issues.

23 In relation to the grievous bodily harm on 30 November 1990 it is apparent that she spent some time in hospital and then on discharge did not receive any further medical treatment. From a physical point of view she would seem to have made a good recovery from that assault. The assessor allowed the sum of $6,000 in the respect to physical injuries arising out of the grievous bodily harm. In my view that is a reasonable sum bearing in mind that that appellant had no further medical treatment following her discharge from hospital.

24 In respect to the assault occasioning bodily harm the assessor allowed the sum of $2,500. In my view taking into account the post traumatic stress disorder I am of the view that figure is too low. It has to be born in mind that the assessor did not have any evidence of post traumatic stress disorder before him. In respect to injuries arising out of the assault occasioning bodily harm I would allow the sum of $10,000.

25 In respect to the offence of grievous bodily harm there is a claim for loss of earnings based on a period of incapacity from 30 November 1990 until 5 October 1991 being the date of the second offence of assault occasioning bodily harm. According to the appellant she was a checkout operator with Woolworths in Carousel at the time of the offence. It is her evidence that she was unable to return to work. However there is no documentation of her earnings at the time of the offence and no tax returns are placed in evidence. Further in my view the medical evidence does not support a proposition that she was unable to work for the whole of that period. I would not allow anything by way of loss of earnings.

26 The appellant also claimed the sum of $100 being a medical report from Royal Perth Hospital and costs of advertising the appeal in the newspaper in the sum of $492.75. In my view those matters are costs and do not come within the definition of loss in the Act.

27 In relation to the offence of assault occasioning bodily harm the appellant claims loss of earnings from 5 October 1991 to the end of 1994 a period of 168 weeks in the sum of $31,416. Again there is no documentation in respect to this claim. For reasons stated earlier I would not allow any sum under this heading.

28 The appellant also claims the cost of consultation and medical report from Dr Hester in the sum of $300 and the costs of advertising the notice of appeal in the sum of $540. In my view these items are both costs and I do not allow them.

29 The appellant seeks an order for costs against the Chief Executive Officer. Under s41(3)(b) on an appeal the Judge may "award costs against any unsuccessful party and in favour of a successful party". In my view the appellant cannot obtain an order for costs against the Chief Executive Officer. The Chief Executive Officer is not a party to the appeal. Counsel appears amicus curiae by leave in respect to all appeals. In the majority of cases the respondent does not appear and counsel for the Chief Executive Officer assists the Court by testing the evidence. Counsel for the Chief Executive Officer performs a role which would not otherwise be performed. In my view it is not appropriate to award costs against the Chief Executive Officer.

30 In this matter I award the appellant the sum of $6,000 in respect to the offence of grievous bodily harm and $10,000 in respect to the offence of assault occasioning bodily harm, a total of $16,000.

31 I will hear counsel for the appellant on whether or not an order for costs is sought against the respondent.