Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Appellant subject of two different sets of offences occurring at the same place, but involving different offenders and being approximately a week apart - Relevant claim subject of appeal arises from the first incident - Appellant suffers nervous and mental shock as a result of both incidents - Extent to which, if at all, the compensation award for the offences the subject of the first incident should be reduced because of the second incident - Whether mental and nervous shock from first incident resulted in economic loss - Extent of physical injuries suffered in the first incident

Criminal Injuries Compensation Act 2003 (WA)

Supreme Court Act 1935 (WA)

Mr C Arnold appeared on behalf of the Chief Executive Officer of the Department of Justice

ATB v LA [2021] WADC 64

Blackwell v Warren [2018] WADC 127

DC v State of New South Wales [2016] NSWCA 198

Mallard v Mallard [2022] WADC 71

Mangisi v Boehm [2021] WADC 76

Netline Pty Ltd v QAV Pty Ltd [2022] WASCA 131

Player v Avery [2022] WASCA 147

Pyne v Wilkenfeld (1981) 26 SASR 441

Re MJM [2021] WADC 104

Re Sunjich [2022] WADC 66

Savic v Duric [2021] WADC 53

State Government Insurance Commission v Oakley (1990) 10 MVR 570

State of New South Wales v Skinner [2022] NSWCA 9

TAW v NJS [2011] WADC 187

Underwood v Underwood [2018] WADC 13

Woodward v Davies [2021] WADC 73

1. Mr Madigan was the victim of three criminal offences committed on 25 May 2015 (the first incident) by each of the first and second respondents and Mr Leonard Corbett who I will call the third offender.[1]
2. The first respondent committed the offence of stealing and assault occasioning bodily harm. The second respondent committed the offence of stealing and the third offender also committed the offence of stealing. The offences were all committed as part of one course of conduct carried out at a bottle shop in Mirrabooka. Mr Madigan held an indirect 50% shareholding in the company which owned the bottle shop. He was managing the bottle shop at the time and was the victim of the offence of assault occasioning bodily harm.
3. Mr Madigan made an application dated 17 May 2018 under the Criminal Injuries Compensation Act 2003 (WA) (the Act) for compensation for his injuries and loss. The first and second respondents and the third offender all pleaded guilty to the offences involving them and convictions were recorded. The offences are therefore proved offences within the meaning of the Act.
4. Mr Madigan's claim was for compensation for both physical injuries and mental and nervous shock. The application did not initially make a claim for personal loss of earnings or earning capacity.[2] However, Mr Madigan's claim was later supplemented by a letter from his solicitors dated 29 May 2021[3] which included a claim for past loss of earnings and future loss of earnings.
5. The application was assessed by an assessor who awarded Mr Madigan compensation in the sum of $25,962.50 made up of $25,000 for injuries and $962.50 for reports.[4] The award was made 29 November 2021. The award was accompanied by a letter addressed to Mr Madigan's solicitors, which stated:[5]

No allowance has been made for dental treatment as the Chief Assessor was not satisfied your client suffered dental damage as a result of the incident. A 50% allowance for the report from Dr Ng has been allowed as the report relates to two incidents. No allowance has been made for future treatment as the Chief Assessor is not satisfied your client will incur the expense.

1. The award apportioned $22,962.50 to the offences which the first respondent committed, $2,000 for the offence which the second respondent committed, and $2,000 for the offence which the third offender committed. The assessor barred proceedings for recovery of compensation against the third offender.
2. As can be seen, the apportionments add up to a different amount than the award, the apportionments adding up to $26,962.50 whereas the award was $25,962.50. As I propose to allow the appeal, and therefore will need to adjust the allocations, I do not think anything turns on this.
3. Mr Madigan was also the subject of offences of stealing committed on 1 June 2015 at the same bottle shop (the second incident). These offences became the subject of a separate application for compensation where Mr Madigan was awarded the sum of $8,462.50. Mr Madigan was not physically injured in the commission of the offences committed on 1 June 2015. He did however suffer mental and nervous shock as a result.
4. Mr Madigan now appeals against the amount of the award made in respect of the offences the subject of the first incident. The appeal is brought to this court pursuant to s 55 of the Act.
5. The appeal concerns five principal issues. First, the amount of the compensation award for the injuries Mr Madigan suffered as a consequence of the commission of the offences. Second, whether an award should be made to Mr Madigan for loss of earnings by reason of his mental and nervous shock and if so, in what amount. Third, to what extent an award of compensation to Mr Madigan should be reduced by reason of the mental and nervous shock he suffered as a consequence of the second incident. Fourth, whether an award should be made to Mr Madigan for dental treatment, and if so, in what amount. And, finally, whether Mr Madigan should receive an award for the costs of future psychotherapy treatment.
6. Secondary issues arise in relation to whether Mr Madigan is entitled to claim interest and whether Mr Madigan did not mitigate his loss by not seeking psychological or psychiatric assistance earlier than he in fact did.

1. The appeal is a hearing de novo.[6]
2. At the hearing of the appeal, Mr Madigan was represented by counsel, Mr Morrissey. The first and second respondents did not appear. The Chief Executive Officer of the Department of Justice appeared as amicus curiae and filed written submissions in that capacity.
3. Further evidence was adduced on the appeal to that which was before the assessor. This evidence consisted of two affidavits of Mr Cooper sworn 19 September 2022 and 3 October 2022. Mr Cooper is a solicitor employed by Mr Madigan's solicitors.
4. The first affidavit put into evidence a report from Dr Wendy Gill of Alliance Periodontics and Implant Dentistry regarding Mr Madigan's dental treatment and a further statement of Mr Madigan as to his current circumstances, in particular his working arrangements and capacity.
5. The second affidavit provided revised economic loss calculations, a further statement of Mr Madigan and also a statement of Mr Hurley, who indirectly held the other 50% shareholding in the company which owned the bottle shop.
6. There is a general discretion to receive further evidence on appeal. That discretion should be exercised in favour of receiving the evidence unless it is unjust to do so.[7]
7. The further evidence is of importance to the resolution of the appeal. It refines the nature of the claim for past and future economic loss and provides clarification regarding the cause of those losses. In my view, having regard to the nature of the evidence and also that the Chief Executive Officer has participated in the appeal as amicus curiae, it is not unjust to receive the evidence and I therefore receive it.
8. On the appeal, this court can confirm, vary or reverse the assessor's decision either in whole or in part: s 56(2)(b) of the Act.

1. It is useful at this juncture to explain the statutory regime applicable to Mr Madigan's claim and to this appeal.
2. In ATB v LA,[8] I analysed the nature of a claim for compensation, including a claim for loss of earnings. At [7] - [21] of ATB, I said:
   1. A person may apply for compensation when they have suffered injury as a consequence of the commission of a proved offence: s 12(1). The compensation is for the injury and any loss suffered.
   2. Relevantly to this case, a proved offence is a crime of which a person has been convicted: s 3.
   3. The word 'injury' is defined to include mental and nervous shock: s 3. The phrase is one of a composite character borrowed from the law of tort to refer to mental or emotional harm as opposed to physical injury or bodily harm. The words mental and nervous shock include such results of criminal conduct as distress, horror, and disgust and other similar adverse mental reactions. They do not ordinarily include humiliation. I do not need to consider on this appeal whether they extend to enduring humiliation. In assessing whether there is mental or nervous shock, it is necessary to draw a distinction between a mere emotional reaction and something of a more enduring character which may in both the legal sense and in common parlance, be described as an injury.
   4. An award of compensation for mental and nervous shock may only be made in the circumstances set out in s 35(2). These circumstances include that the claimant was the person against whom, or against whose property, the offence was committed: s 35(2)(b). ...
   5. For an award of compensation to be made, it is necessary that I am satisfied that the claimed injury and any claimed loss has occurred and did so as a consequence of a proved offence being committed: s 12(3)(a). This conveys that a victim must establish a causal connection between the commission of the offence and the injury and loss for which compensation is sought. Such an approach accords with the general law of causation, particularly as applied in cases of tort, except that foreseeability and remoteness are irrelevant. It need not be the sole cause. It is sufficient if the offending materially contributed to the harm, in the sense that the contribution was not negligible.
   6. In respect of loss, it is defined at s 6(2) to include a number of separate matters, respectively appearing at s 6(2)(a) - s 6(2)(d). The relevant provisions for the purposes of this appeal are s 6(2)(a) - s 6(2)(c), which are defined by reference to the injury suffered, not by reference to the offence committed. Accordingly, to establish loss requires a two-step process:
      1. First, that the victim suffered an injury as a consequence of the offence committed.
      2. Second, that loss has occurred as a consequence of that injury.
   7. The definition of loss includes past and future expenses. For past expenses to be recoverable they must have been reasonably incurred by or on behalf of the victim in circumstances which have a nexus to the injury suffered. The expenses must arise directly from the injury, or arise in obtaining a report from a health professional or a counsellor in relation to the injury suffered: s 6(2)(a). For future expenses to be recoverable, they must be likely to be reasonably incurred by or on behalf of the victim. Again, they must have a nexus to the injury suffered. So, the future expenses must be for treatment the victim is likely to need as a direct consequence of the injury suffered: s 6(2)(b).
   8. The definition of loss also includes loss of earnings. This is defined at s 6(2)(c) as:

'loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim; ...'

1. As can be seen, this definition includes the word direct before consequence, which word does not appear before consequence in s 12(3). The word direct (or directly) appears in the other paragraphs comprising the definition of loss in s 6(2). At first blush, it is unclear whether the introduction of a qualifying word such as direct in s 6(2) results in there being a higher threshold to establish compensation for loss from injury within the meaning of s 6(2), compared to the requisite threshold to establish compensation for injury from the commission of an offence within the meaning of s 12. In any event, even if it does result in a higher threshold, I consider that threshold would only reach the height of the injury being the substantive (or dominant) cause, as opposed to a material cause. In my view, it would be contrary to the compensatory purpose of the legislation to require that the injury be the sole cause of loss. ...
2. Loss of earnings includes both past and future loss.
3. As to the quantum of an award, the award of compensation for injury and loss is such compensation that the assessor is satisfied is just for the injury and any loss suffered: s 30(1). The maximum amount of compensation which may be awarded is $75,000: s 31(1). The maximum is a jurisdictional limit and is not reserved for the worst cases. Where two or more offences have been committed and they are related to one another, and the person suffers injury as a consequence of both offences, the aggregate of the award must not exceed the maximum amount that may be awarded for the last of the offences: s 33.
4. The assessment of the appropriate quantum of an award of compensation is to be determined by applying the ordinary principles for assessment of damages, subject to limitations imposed by the Act, in particular the jurisdictional limit. In this respect, as to the approach to an assessment of damages, Newnes JA (with whom Pullin and Miller JJA agreed) said in Houlahan v Pitchen:

'The principle to be followed in assessing damages is that the amount of damages must be fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused, having regard to current general ideas of fairness and moderation. The amount must be proportionate to the situation of the particular plaintiff.'

1. An award of compensation may be refused or reduced, where the victim's behaviour, condition, attitude or disposition contributes directly or indirectly to their injury: s 41.
2. Further, a victim has what is often inaptly described as a duty to take all reasonable steps to mitigate the loss they have suffered. A failure to take such steps may also result in the refusal or reduction of an award. Consistently with the general application of the principles of mitigation of loss, in order to be satisfied that ATB failed to mitigate, I would need to be satisfied that ATB acted unreasonably in the steps she took, or did not take, to mitigate her loss.
3. Further, in my view the assessment as to whether a victim did act unreasonably is carried out by reference to a reasonable person in the circumstances as they existed for that victim. If it were otherwise, the requisite assessment would be an artificial one, conducted in the abstract.

[footnotes from the original text have been omitted]

1. I adopt and apply these reasons in respect of this appeal.
2. There is one additional matter I should add. In the helpful written submissions of Mr Arnold, counsel for the Chief Executive Officer, he refers to the judgment of Nicholson J in A v D,[9] where his Honour concluded that the phrase loss of earnings includes a reference to loss of earning capacity.
3. In practical terms, there is likely to be little difference between loss of earnings and loss of earning capacity when a claim is viewed from a historical perspective. So, where the claim looks at what has actually happened from the point in time of the offences to the point in time of the hearing. However, in respect of the assessment of future loss of earnings, that by its very nature considers matters from a prospective perspective, taking account of historical performance, both prior to and post the offending behaviour.

1. I am satisfied that the offences committed by each of the first and second respondents, and by the third offender, are related offences as referred to in s 33 of the Act. I do not consider that the offences the subject of the second incident are related to the first incident within the meaning of s 33. The only relevant connection is that they occurred at the same bottle shop. Otherwise, there is no connection between them. On this basis, the maximum award of compensation available in respect of all three offences the subject of the first incident is the sum of $75,000.

1. Mr Madigan was born on 12 February 1960. Mr Madigan has extensive experience working in the liquor industry. In the period leading up to May 2014, he had been the regional manager for Pacific Beverages for approximately three and a half years. This role involved him meeting customers at their retail outlets and managing stock in those outlets.
2. In May 2014, Mr Madigan and Mr Hurley, through their respective corporate vehicles, purchased the business of Cellarbrations on Honeywell, which was a bottle shop in Mirrabooka.
3. Mr Madigan's interest was held through Out of the Sky (WA) Pty Ltd and Mr Hurley's interest through Liquor Traders Australia Pty Ltd. Their intention was to build the business up and then purchase another store.
4. Mr Madigan was responsible for the day-to-day management and running of the business. This predominantly involved him working in the store.
5. The offending the subject of the first incident occurred on 25 May 2015, so approximately one year after Mr Madigan had bought into the business. The assessor's papers contain statements of material facts in respect of each of the respondents and also in respect of the third offender. However, the basis upon which each was sentenced is not available. The statements of material facts are explained at pars 24, 25 and 26 of the Chief Executive Officer's submissions. It is preferable to have the sentencing remarks. However, as I will explain it is the assault of Mr Madigan that caused the most significant harm. The first respondent committed the offence of assault occasioning bodily harm, so there can be no dispute as to who assaulted Mr Madigan. Also, the statements of material facts are broadly consistent as to what happened. I am content therefore to proceed by reference to them. They provide as follows.
6. At about 4.15 pm on 25 May 2015, the first respondent and the third offender entered the bottle shop. Mr Madigan was working. The first respondent took a cask of wine in each hand before turning and running from the store. The third offender also took alcoholic items and ran without attempting to pay. Mr Madigan gave chase. The first respondent ran around to the rear of the store, stopped, and placed both casks of wine on the ground. He told Mr Madigan to fuck off before he began bouncing around like he was shadow boxing. He then struck Mr Madigan twice to the face with a closed fist causing Mr Madigan to fall to the ground. The first respondent then picked up the wine and ran off.
7. While this was happening, the second respondent went into the store which was unattended and stole three bottles of bourbon.
8. Mr Madigan was taken to hospital by ambulance.
9. Mr Madigan suffered significant injuries from the first respondent's assault. In Mr Madigan's statement dated 12 November 2021, he described the physical injuries as being:[10]

(b) fractures of the floor of his right eye socket, right cheekbone fracture and nasal bone fracture; and

1. Mr Madigan also said that after three months his eyesight, particularly at night, was not the same and that in 2018, teeth 11 and 12 had to be removed.
2. There are also a number of medical documents which describe the physical injuries that Mr Madigan suffered. I consider the most pertinent documents in my assessment of Mr Madigan's injuries are Dr Zahoor's statement and Dr Vujcich's report. They each assessed Mr Madigan within a relatively short time frame after the assault.
3. Dr Zahoor examined Mr Madigan on 25 May 2015 at 19.17 hours in the Emergency Department at Sir Charles Gairdner hospital. He said in a statement dated 8 September 2015:[11]

1. Swelling and bruising to right upper eye lid, below the right eyeball socket, over the right cheek, and right side of bridge of nose.
2. Small bruise below left eye, and mild right upper lip swelling without any cuts or bleeding.

1. Examination of eyes was unremarkable with normal vision, no pain on eye movements, no double vision, and normal pupillary reactions to light. There was no haematoma of his nose septum, and no loose teeth were felt. He had normal alertness, no other signs of injury to face or other body parts.

Mr Madigan was given pain relief, tetanus immunisation and had CT scan of face.

CT scan showed that Mr Madigan sustained fractures of floor of right eyeball socket with extension into inferior orbital canal, right cheek bone fracture and nasal bone fracture. ...

In my opinion his injuries were of serious nature and needed further specialist follow up, though he is likely to get comp[l]ete recovery. His injuries were not of such a nature as to endanger life or be likely to endanger life ...

1. Dr Vujcich examined Mr Madigan on 27 May 2015, so two days after the assault. Dr Vujcich is an oral and maxillofacial surgeon. Dr Vujcich reported to Mr Madigan's general practitioner that:[12]

On examination he has significant bilateral peri-orbital ecchymosis and several minor lacerations over the right upper lid, nose and right upper lip. Otherwise his ocular function is good with no motility or diplopia issues. His nose is straight. His maxilla is solid and his occlusion looks sound. There is no evidence of zygomatic depression.

On the CT scan done at Sir Charles Gairdner Hospital, there are several minor fractures noted. This includes the right medical orbital wall and right orbital floor, in addition to the external nasal bones. There are some minor fractures through the right hemi-maxilla.

1. Mr Madigan was examined on 2 January 2018 by a dentist, Dr Tan, who reported on her examination in a letter dated 27 March 2018 to Cellarbrations on Honeywell.[13] It is apparent from the material that I have that Mr Madigan was treated by other dental practitioners prior to 2018, however I do not have any material before me from those practitioners.[14]
2. Dr Tan, in her report, refers to Mr Madigan reporting that three of his front teeth (11, 12 and 21) sustained damage in the assault and required extensive dental work to fix them. She expresses the opinion that it is highly probable that the current issues he faces with his upper front teeth cracking and fracturing due to structural weaknesses of the teeth are related to the impact sustained to them from that incident.
3. Mr Madigan was also treated by Dr Gill, a periodontist from 2018 onwards. The appellant's book of documents and Mr Cooper's first affidavit include a number of reports from Dr Gill. Those reports do not identify whether the injuries that Mr Madigan suffered in the commission of the offences were the cause of the dental issues that Dr Gill treated.

1. On 1 June 2015, the second incident occurred at the same bottle shop. The information before me as to the second incident is somewhat sparse. It seems to be most fully described in the report of Dr Ng, the psychiatrist who Mr Madigan ultimately went to see in 2020. In Dr Ng's report[15] he refers to Mr Madigan reporting that on Mr Madigan's first day back at work after the first incident, there was a further incident. Four people barged into the shop, pushed him, threatened to kill him and stole alcohol. Ultimately, Mr Madigan was able to press the panic button. Mr Madigan was not physically injured in the second incident and the compensation award in respect of the second incident describes that the offenders were convicted of the offences of stealing.

1. After the two incidents, Mr Madigan continued to manage the store however found that he could no longer deal with customers on a daily basis and whenever he was confronted by a group of people he became withdrawn and suffered flashbacks.[16]
2. In 2016, Mr Madigan hired a manager for the business and ultimately stepped out of the management side of the business as he could no longer go into the store and deal with customers face-to-face.[17] He then took on a management role with Liquor Barons which was an office-based role.[18]
3. In 2018, the manager appointed to run the store left, and Mr Madigan had to go back in to carry out the day-to-day management of the store.
4. The business was ultimately sold on 1 November 2019. The sale proceeds were used to pay outstanding debts.[19]

1. In assessing the injuries which Mr Madigan suffered as a consequence of the assault, broadly speaking his description of his injuries and Dr Zahoor's assessment of those injuries were consistent.
2. I am satisfied that Dr Zahoor's assessment is accurate subject to one qualification regarding Mr Madigan's teeth. Putting that to one side for the moment, I am satisfied that Mr Madigan suffered the following physical injuries:
   1. Swelling and bruising to right upper eyelid, below the right eyeball socket, over the right cheek, and right side of bridge of nose.
   2. Small bruise below left eye, and mild right upper lip swelling without any cuts or bleeding.
   3. Fractures of floor of right eyeball socket with extension into inferior orbital canal, right cheek bone fracture and nasal bone fracture.

1. In relation to the dental injuries, Dr Zahoor in his report says that 'no loose teeth were felt'.
2. The blows struck by the first respondent to Mr Madigan's face were sufficient to cause the multiple fractures that I have described. Those fractures were to areas associated with the front of his face, so the floor of Mr Madigan's right eyeball socket, his right cheek and nasal bone. Also, the blows caused swelling and bruising to similar areas and swelling to his right upper lip.[20]
3. Dr Tan in her report describes the injuries to the teeth that she treated as being upper front teeth cracking and fracturing due to structural weakness. She refers to the affected teeth as being right central incisor (11) and right lateral incisor (12). She was of the opinion that it is highly probable that this cracking and fracturing was caused by an impact. She assumed that impact was from the assault.
4. There are two issues I need to resolve regarding the asserted injury to Mr Madigan's front teeth, being teeth 11 and 12:
   1. Were those teeth impacted in the assault carried out by the first respondent?
   2. If they were, was that the cause of the cracking and fracturing described by Dr Tan?
5. In relation to the first issue, Mr Madigan says he suffered injuries to his front teeth in the assault. Further, his front teeth are within the overall area of the other injuries that he suffered, which were predominantly on the right side of the front of his face. Also, for there to be swelling to his lip, it is most likely there was contact between the first respondent's fist and that area of the lip. And to have caused such extensive injuries, the blow or blows must have been of some force.
6. Having regard to these matters overall, I am satisfied that Mr Madigan's front teeth on the right side of his face were impacted by the blow or blows which caused the other injuries.
7. As Dr Tan describes it, teeth 11 and 12 had cracking and fracturing consistent with an impact. On the evidence before me, Mr Madigan was not assaulted on any other occasion prior to visiting Dr Tan on 2 January 2018. I therefore am satisfied that the assault by the first respondent caused the fracturing and cracking of Mr Madigan's teeth 11 and 12.

Did Mr Madigan also suffer mental and nervous shock?

1. For an award for mental and nervous shock to be available, at least one of the criteria prescribed by s 35(2) of the Act must be satisfied. In respect of the offences committed by the first respondent, Mr Madigan was the person against whom the offences were committed[21] and also suffered bodily harm from the assault.[22] Accordingly, s 35(2)(a) and s 35(2)(b) are satisfied. In respect of the offence committed by the second respondent, Mr Madigan was the person against whom the offence was committed.[23] Accordingly, s 35(2)(b) is satisfied.
2. Dr Ng is a consultant psychiatrist. Dr Ng met with Mr Madigan on 21 July 2020 and assessed him. Dr Ng provided a report to Mr Madigan's solicitors that day.[24]
3. Dr Ng in his report sets out that the effect of the first incident on Mr Madigan included that he became very security conscious, hypervigilant of his surroundings and remained frightened of the offenders from the first incident.
4. Dr Ng was of the opinion that:

(a) following the first incident, Mr Madigan developed post-traumatic stress disorder at its worst to a moderate extent;

(b) at the time of the second incident, the post-traumatic stress disorder was still present and was exacerbated by the second incident;

(c) the most significant contributing factors in materially precipitating the onset of the post-traumatic stress disorder was the physical and emotional trauma directly arising as a consequence of the first incident;

(d) the pre-existing post-trauma anxiety symptoms from the first incident were at least moderately exacerbated by the second incident; and

(e) the first incident resulted in Mr Madigan being unable to work in customer service.

1. Dr Ng was also of the opinion that Mr Madigan would benefit from at least 12 to 16 sessions of trauma-specific individual psychotherapy every two to four weeks, the cost of which is approximately $355 per session if provided by a psychiatrist. Dr Ng apportioned a requirement for the psychiatric treatment as 55% due to the first incident and 45% due to the second incident.

Non-medical evidence in relation to mental and nervous shock

1. I have also received non-medical evidence as to the mental health impact of the assault on Mr Madigan. This is explained in statements from Mr Madigan and also from Mr Hurley.
2. In my view, the impact on Mr Madigan of the assault the subject of the first incident is best described by Mr Hurley. To use Mr Hurley's words, he has known Mr Madigan for a long time. In Mr Hurley's statement dated 3 October 2022, he describes how Mr Madigan carried out the day-to-day running of the business and was very good with interacting and dealing with customers, clients and suppliers. Mr Hurley also says that following the assault, Mr Madigan was a different person, became very introverted and lost all of his confidence and good-natured vibe. Mr Hurley states that after the assault Mr Madigan could not face the public and was a shattered man and could not run the store anymore.
3. The last two paragraphs of Mr Hurley's statement are quite compelling. They state:

After speaking to Peter about his issues following the assault, it was clear that he didn't want to be there anymore due to his fear and anxiety and we agreed to sell the business.

The overarching reason for selling the business was because of the psychological toll caused by the belting that he got.

1. Mr Madigan, in his further statement dated 3 October 2022, says that the assault changed his ability to cope, deal and interact with certain customers and operate an effective business. As a result, he felt unable to feel safe and comfortable in his business and it caused him significant difficulty as a business owner. He said he did not want to sell the business and tried everything to make it work after the assault. Ultimately, he realised with time following the assault that the restrictions caused by his anxiety would not allow him to effectively run the business and he decided to list it for sale due to his anxiety and the ongoing stresses associated with his condition following the assault.[25]
2. Mr Madigan also says in his statement dated 12 November 2021 that, following the first incident, he became hypervigilant of his surroundings, suffered recurrent bad dreams for at least 12 months and still has bad dreams from time to time. In addition, he has flashbacks from the first incident and also has difficulty sleeping.
3. The overwhelming effect of these statements from Mr Hurley and Mr Madigan is that it was the anxiety caused by the assault the subject of the first incident which was the substantive cause of the sale of the business.
4. Further, as I have explained earlier, Mr Madigan's prior role required him to meet and interact with customers at their retail outlets and manage stock in those outlets. The impact of the first incident as described by Mr Madigan and Mr Hurley in their statements would similarly impact his ability to fulfil that prior role. This is consistent with Dr Ng's opinion that the first incident resulted in Mr Madigan being unable to work in customer service.

1. Having regard to the totality of the matters I have set out at [56] - [67], I am satisfied that Mr Madigan suffered significant and enduring distress, stress and anxiety as well as post-traumatic stress disorder as a result of the commission of the three offences comprising the first incident. I consider this predominantly arose from the commission of the assault carried out by the first respondent on Mr Madigan.
2. I am also satisfied that:
   1. The substantive cause of Mr Madigan's decision to sell the business was the nervous and mental shock suffered by reason of the commission of the offences comprising the first incident.
   2. Mr Madigan is not presently able to carry out the work duties that he carried out prior to buying the business.
   3. The mental and nervous shock suffered from the first incident is the substantive cause of his not being able to do so.

Extent of the injury caused by the offences and the relevance of the second offence

1. An issue arose on the appeal as to the extent to which, if at all, the commission of the offences the subject of the second incident affects the amount of compensation to be awarded to Mr Madigan.
2. This issue raises two separate, yet interrelated, concepts. First, to what extent the harm suffered from the two incidents needs to be, or can be, disentangled. Second, whether s 41 of the Act is engaged by reason of the injuries Mr Madigan suffered as a result of the offending the subject of the second incident.
3. In addition, as I will come to explain, the approach to be taken differs depending on the head of compensation that is engaged. So relevantly in this case, when considering an award for compensation generally, considering an award for loss of earning capacity and considering an award for future medical expenses.
4. Mr Madigan's physical injuries were caused solely by the offences committed by the first respondent as part of the first incident. Further, the offences committed in the first incident resulted in Mr Madigan suffering post-traumatic stress disorder as well as enduring distress, stress and anxiety. Moreover, this condition made him more vulnerable to further harm if there was a subsequent incident, which there was.
5. The offences the subject of the first and second incidents occurred at the same bottle shop. However, they involve different offenders and were about a week apart. In my view they are therefore unrelated within the meaning of the Act. The offences the subject of the second incident have at least moderately exacerbated Mr Madigan's post-trauma anxiety symptoms arising from the first incident.
6. Mr Madigan's counsel raised whether the harm caused to Mr Madigan from the two separate incidents fell within the concept of divisible and indivisible loss as discussed by Basten JA in State of New South Wales v Skinner.[26]
7. His Honour's analysis referred to the decision in DC v State of New South Wales,[27] in particular the analysis undertaken by her Honour Ward JA (as her Honour then was) at [355] - [357].
8. As Basten JA explained in Skinner:[28]

DC ... involved a question as to the liability of the State for psychiatric injury suffered by two sisters as a result of abuse by their stepfather. The liability of the State applied only with respect to harm caused after the abuse had been reported. Self-evidently harm was caused by ongoing abuse before any report was made.

1. Basten JA also observed that the extent to which the principles considered in DC are generally applicable is not entirely clear.[29]
2. In the circumstances of DC, Ward JA held that there was a real chance that the claimants would have developed similar symptoms of post-traumatic stress disorder irrespective of the defendant's negligence and accordingly the award should be reduced to reflect this.[30]
3. This appeal does however present a different factual scenario to that under consideration in DC. Here, I am looking at the harm caused by the first incident, which by itself resulted in Mr Madigan suffering mental and nervous shock, which was then exacerbated by the second incident.
4. It seems to me that the circumstances of this case more aptly fall into the second category as described by Malcolm CJ in State Government Insurance Commission v Oakley:[31]

... where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence ...

1. This category encompasses cases where the first accident increases a person's vulnerability to further harm. This includes the scenario where a subsequent accident increases the harm caused by the first accident, but the subsequent accident does not itself arise from the first accident.[32] In such circumstances the claimant is not entitled to the full value of the overall harm caused by both accidents. Instead, a claimant is entitled to damages reflecting that the increased vulnerability to (or risk of) harm has materialised. So, in the example given in Luntz,[33] where a person loses one eye in a first accident, they are then vulnerable to total blindness if they lose a second eye. If that does eventuate, the person is not then entitled to damages for total blindness from the first wrongdoer, because the total blindness does not arise from the first accident. Rather, the person is entitled to damages reflecting that they have lost one eye in the first accident and that the consequential risk of total blindness has materialised.
2. Here, the injury which Mr Madigan suffered is the mental harm that I have described, together with the increased vulnerability to further mental harm. That increased vulnerability itself has been realised by reason of the second incident. Accordingly, on this analysis, the offending the subject of the second incident is not a reason to reduce the award given to Mr Madigan by reason of the first incident. Instead, the offending the subject of the second incident means that the risk of increased vulnerability has been realised and thus the harm from the first incident increased.[34] As I have said, this does not however mean that Mr Madigan is entitled on this appeal for compensation for the entirety of the second incident. The award on this appeal only reflects that the risk of further harm has been realised.
3. The next question is whether s 41 of the Act is engaged by reason of the mental and nervous shock sustained in the second incident.
4. Section 41 provides that an award of compensation may be refused or reduced, where the victim's behaviour, condition, attitude or disposition contributes directly or indirectly to their injury.
5. It seems to be accepted that there are two competing lines of authority as to the scope of its operation. These were helpfully summarised by Gething DCJ in Underwood v Underwood,[35] his Honour noting that:
   1. The first line of authority is that s 41 was not intended to deal with pre-existing injuries and medical conditions. Rather, it is concerned with factors which contribute to the offence, not the consequent injury or loss suffered as a result of the offence. To the extent that there are pre-existing injuries or medical conditions, these are dealt with by applying ordinary tortious principles.
   2. The second line of authority is that pre-existing and subsequent injuries and medical conditions which have contributed to, or exacerbated, the applicant's injury must be taken into account in accordance with s 41 of the Act. Under this approach, the discretion under s 41(b) of the Act (to, if it is just to do so, refuse to make a compensation award or reduce the compensation award by reason of that contribution) may be guided by common law principles so that an applicant is not awarded compensation for injuries arising otherwise than out of the commission of an offence. This is said to be consistent with the purpose of the Act to provide for the payment of compensation to victims of offences in some, but not all, circumstances.
6. It is only the second line of authority which could possibly apply in the present circumstances.
7. There are two things I would say about s 41.
8. First, it is concerned with contribution to injury, not contribution to loss.
9. Second, the section envisages that the relevant contribution may justify the refusal to make a compensation award or to reduce the amount of such an award. To my mind these factors suggest that the section is directed to matters which might be thought to justify a refusal of compensation or a reduction in compensation.
10. In the circumstances of this case, by reason of the offences the subject of the first incident, Mr Madigan suffered physical harm and mental and nervous shock. The mental and nervous shock increased his vulnerability to, or put another way, his risk of, further mental and nervous shock. That risk was ultimately realised by reason of the commission of the offences the subject of the second incident. To the extent the realisation of the risk is recognised in an award of damages, it is because the offending the subject of the first incident is regarded as having caused it.
11. I have real difficulty in coming to the view that the nervous and mental shock resulting from the second incident can be said to contribute, directly or indirectly, to Mr Madigan's nervous and mental shock caused by the first set of offending. The injury from the first set of offending remains the same - mental and nervous shock with increased vulnerability to further mental and nervous shock. The offences the subject of the second incident do not contribute to that injury, rather they result in the increased vulnerability from the first incident being realised.
12. However, I do not need to resolve whether s 41 applies to the circumstances in this case. Assuming it does apply, I would not in any event exercise the discretion to refuse compensation, or reduce the amount of compensation, for Mr Madigan's mental and nervous shock. The discretion to do so is prefaced with the words 'it is just to do so'. In the circumstances of this case, the severity of the subsequent nervous and mental shock is increased because of the nervous and mental shock arising from the first incident. In my view, this is not a just basis warranting a reduction in compensation, or a refusal to award it.
13. I will consider the significance of the second incident again when I come to consider an award for economic loss, future psychotherapy treatment and also the application of s 42.
14. I turn now to the relevant heads of compensation sought by Mr Madigan in this appeal.

1. In relation to the quantum of compensation for Mr Madigan's physical injuries and mental and nervous shock, the parties have referred me to a number of decisions of this court where the quantum of a compensation award has been considered.[36] I consider I can have regard to these awards as a guide consistent with the views expressed by Bowden DCJ in TAW v NJS.[37]
2. Ultimately, it is an intuitive assessment based on the information available so as to arrive at an appropriate amount of compensation for the overall injuries suffered. I assess the compensation for Mr Madigan's physical injuries and his mental and nervous shock in the sum of $35,000.

1. Mr Madigan's claim for dental expenses is in respect of the entirety of an invoice from Alliance Periodontics in the total sum of $9,329 which covers the period from 20 March 2018 to 7 April 2021.[38]
2. On the evidence before me, I am only satisfied that the assault caused the injuries to teeth 11 and 12. Dr Tan removed these teeth in January 2018.[39] The costs of doing so were $304, which I will allow.[40] Mr Madigan then had a denture for aesthetic reasons. Dr Tan was of the opinion that a more permanent solution was the insertion of implants.[41] Dr Tan referred Mr Madigan to Dr Gill for this and other treatment.
3. From having reviewed Alliance Periodontics' invoice and Dr Gill's reports to Dr Tan, Dr Gill inserted the implants for teeth 11 and 12 and also undertook extensive additional dental work. The implant placement procedure itself was carried out on 5 October 2018.[42] The total cost was $5,300.[43] Dr Gill explained in her letter of 16 September 2022 that a bone graft was required prior to implant placement. The invoice provides for an amount of $380 on 3 May 2018 for grafting as well as $120 for treatment under anaesthetic on that day. I will allow these additional amounts. It may well be that the balance of the claims in the invoice are related to the implants, however given Mr Madigan has a history of dental issues, I am not able to assess that on the evidence before me.
4. Mr Madigan also makes a claim for the replacement of these implants in the future, however, on the evidence before me, I am not able to assess the likelihood of that being necessary. In that respect, Dr Gill in her letter of 16 September 2022[44] uses language of 'if there is a requirement for implant replacement' which reflects it is not certain and there is not sufficient evidence before me to allow for an assessment of that prospect. Therefore, I do not allow that claim.
5. The Chief Executive Officer quite rightly raises the issue as to whether Mr Madigan's delay in seeking treatment may have affected his injuries, or an earlier intervention may have allowed for the possibility of less costly intervention.
6. Dr Tan was of the view that teeth 11 and 12 had cracking and fracturing due to structural weakness, which I have held was caused by the first respondent's assault of Mr Madigan.
7. Given that the teeth were removed because of structural weakness caused by the assault, I am satisfied that the delay would not contribute to this weakness. Further, I have only allowed for those expenses directly related to the removal of teeth 11 and 12 and the insertion of implants. I am satisfied that the delay would not have increased these expenses, as the need and extent of that work arose from the structural weakness in the teeth. I therefore do not propose to make any deduction to the dental expenses I have allowed.
8. I allow a total of $6,104 for Mr Madigan's past dental expenses.

1. Dr Ng has recommended that Mr Madigan would benefit from at least 12 to 16 sessions of trauma-specific psychotherapy and he estimates the costs of these sessions is $355 per session if conducted by a psychiatrist. He attributes the proportionality for the need for the sessions as 55% due to the first incident and 45% due to the second incident.
2. Dr Ng also speaks of anti-depressant medication if the psychotherapy sessions do not assist with addressing the ongoing symptoms or if they worsen.[45]
3. In my view, it is appropriate that Mr Madigan receive an award of compensation in respect of undertaking psychotherapy as recommended by Dr Ng. I am satisfied they meet the requirements in s 6(2)(b) of the Act as being likely to be reasonably incurred by Mr Madigan for treatment that he is likely to need as a direct consequence of his mental and nervous shock. On the evidence before me, Mr Madigan's mental and nervous shock is significant and enduring. Dr Ng's report is the first time Mr Madigan has received professional advice as to how to address the consequences of that harm. Mr Madigan wishes to engage in that therapy, which is to be expected given the ongoing nature of his mental harm. I am therefore satisfied that Mr Madigan is likely to engage in the therapy suggested by Dr Ng.
4. Allowing for the midpoint of 14 sessions and apportioning the need for such sessions in the 55%:45% ratio that Dr Ng has, I will allow $2,730 for such sessions. The payment of this is subject to s 48(1) of the Act, which requires that the Chief Assessor is satisfied the expenses have been incurred before payment is made. The apportionment between the two incidents sufficiently deals with any issues that might arise under s 41.
5. It is difficult to make an assessment in respect of the claim for anti-depressant medication because its need is very much dependent upon the effectiveness of the psychotherapy treatment. I therefore am not satisfied the medication is likely to be needed and I do not make an allowance for it.
6. Dr Ng's report cost $1,925. As the report covers both the first and second incidents, I will allow half of the cost of the report, being $962.50.

1. The claim for loss of earning capacity has its complications because at the time of the offending Mr Madigan was only one year into the operation of the business. Up until then, his earning capacity was reflected by being an employee for others.
2. As I will come to explain, in my view I need to assess the claim by reference to the period prior to and post the sale of the business.
3. Mr Madigan's claim for loss of earnings was initially put on Mr Madigan's behalf by reference to his average earnings for the financial years ended 30 June 2012 to 30 June 2015, which is reflected by the table below:

Average net weekly earnings excluding allowances

1. The difficulty with the approach taken on behalf of Mr Madigan to the claim for loss of earning capacity is that it does not take account of the changed circumstances arising from the acquisition of the business. In particular:

(a) in Mr Madigan's impact of injury statement[46] Mr Madigan stated that his wage from the business was approximately $80,000 per year;

(b) Mr Madigan's case is put on the basis that if it were not for his nervous and mental shock suffered in the first incident, he would have continued in the business; and

(c) on the information before me, there was no evidence that the business was profitable, and I am not able to predict whether it would have become profitable in the future.

1. In respect of the period then following the offending, Mr Madigan's earnings were as follows:

Average net weekly earnings excluding allowances

$90,441.00 including allowances of $1,000 for matters such as earnings, tips, director's fees

$77,339.00 including allowances of $1,891 for work related travel expenses

1. In respect of the 2016, 2017 and 2018 financial years, the break down between the income earned from the business and otherwise is as follows:

1. After the sale of the business, Mr Madigan worked as a truck driver for approximately 15 months but became particularly anxious when he came across aggressive, violent or intimidating people. He therefore ceased that work and started working part-time in a bottle shop however, due to his anxiety, stopped working there and then started as a general manager at a container deposit scheme company.[47] Mr Madigan currently works doing administrative work at Liquor Barons.[48] In the further statement of Mr Madigan annexed to Mr Cooper's affidavit sworn 19 September 2022, Mr Madigan says he now works on a casual basis, the majority of work is in an office, he earns $40 per hour and usually works 30 hours per week.
2. Mr Madigan's move to truck driving work is reflected by his substantially reduced income for the financial year ended 30 June 2019. However, even so, at the point in time of the sale of the business, he still retained the ability to earn an income by working in the liquor industry, albeit not in the role he previously held. It is that ability that reflects his earning capacity, not his actual income in a truck driving role.
3. As can be seen from the financial information set out in the table at [117], post the offending the subject of the first incident through to the sale of the business, Mr Madigan did not suffer any loss of earning capacity. This is because he earned a salary in excess of what he expected to earn from the business itself, and he also retained the capacity to earn a supplemental income. In addition, where necessary he was compensated for the use of his car for work-related purposes.
4. However, I consider the position is different post the sale of the business.
5. At the point in time of the offending the subject of the first incident, there were two mutually exclusive income streams available to Mr Madigan. They were:

(a) first, while he retained the business, to earn a salary from the business as well as to earn an additional income elsewhere; and

(b) second, on a sale of the business, to return to the type of work that he carried out prior to buying it.

1. The nervous and mental shock suffered as a result of the first incident caused Mr Madigan to sell the business. Self-evidently, the first possible income stream is therefore not available. The second possible income stream is not available because of his reduced capacity to engage in such work by reason of the nervous and mental shock suffered from the first incident. Accordingly, he was and remains deprived of both of these potential income streams and in that sense, he does suffer a loss of earning capacity post the sale of the business.
2. However, while there is presently a reduced earning capacity, the psychotherapy recommended by Dr Ng is designed to alleviate the post-traumatic stress disorder and consequentially remove or substantially reduce the impediment to Mr Madigan earning a similar level of salary to that which he earned before acquiring the business. I have allowed Mr Madigan the costs of that therapy and he therefore has the financial capacity to engage in it. In making that assessment, I have held that it is likely that Mr Madigan will complete the recommended treatment.
3. Once he does so, then his mental and nervous shock is expected to reduce. Dr Ng in his report says that with the psychiatric treatment, some degree of psychiatric improvement is expected to occur, although Mr Madigan will be left with some degree of persistent and residual psychiatric symptoms. I am satisfied that the therapy is therefore likely to assist Mr Madigan to engage in work that has a greater similarity to that which he did before, or at least, broaden the work options available to him.
4. Dr Ng suggests this therapy take place every two to four weeks and that Mr Madigan engage in 12 to 16 sessions. Allowing for the midpoint of these two suggestions, the therapy would be expected to be completed within 42 weeks, so if it commenced shortly after delivery of these reasons, by November 2023. I also assess that a further period of six months would enable the benefits of that therapy to be 'bedded down'.
5. There is a degree of intuitive assessment in determining the appropriate compensation for the loss of earning capacity post the sale of the business. However, it is still necessary that I explain my reasons for coming to my conclusion as to the appropriate amount.[49] In my view an assessment needs to recognise that it was the mental and nervous shock from the first incident which caused Mr Madigan to sell the business and also resulted in him not being able to then engage in his pre-business work activities.
6. It seems to me that the most reliable guide as to Mr Madigan's earning capacity post sale is that reflected by his income for the financial years ended 30 June 2020 and 30 June 2021, as I have before me his income tax returns for those years.[50] While Mr Madigan has said his income has now reduced to $1,200 per week, that is a gross figure. Also, it is not clear to me why his income has reduced significantly compared to the income earned during the year ended 30 June 2021. I therefore do not consider a gross figure of $1,200 per week is a reliable guide to his earning capacity. The average of his net weekly income for the financial years ended 30 June 2020 and 30 June 2021 is $1,222 per week. Once he completes the anticipated treatment, I am satisfied he will have the capacity to earn an income in excess of this.
7. I also consider the most reliable guide for Mr Madigan's capacity had it not been for this offending is broadly based on a salary of $100,000 per annum, which is a broad assessment of his earning prior to his purchase, and during the operation, of the business. I have not included his car allowances as they appear to arise from his need to use his car for work purposes. For example, in Mr Madigan's income tax return for the financial year ended 30 June 2014, his car allowance was $14,666 and his claimed work-related car expenses were $14,503. Also, there is no suggestion on the evidence that Mr Madigan needs to use his car extensively in his current working arrangements.
8. From Mr Madigan's income tax return for the financial year ended 30 June 2014, a salary of $100,000 equates to net weekly earnings of $1,358 per week, although that is only a guide as I do not have any information as to the applicable tax rates over the period post the sale of the business.
9. Taking account of all of these matters, I assess there is a loss of earning capacity equating to around $7,000 per year, reflecting $136 per week. I assess that loss of earning capacity predominantly arises in respect of the period from the sale of the business in November 2018, through to May 2024, that being six months after the completion of the anticipated psychotherapy. I also assess that the benefits from the psychotherapy are likely to be progressive, thus having the capacity to increase Mr Madigan's earning capacity during the period it is engaged.
10. As I have said, there is a degree of intuitive assessment in this, bearing in mind the numerous different factors I have recounted.
11. I consider the sum of $30,000 is appropriate for Mr Madigan's loss of earning capacity and I will allow that sum.

1. A claim was also made on Mr Madigan's behalf for interest pursuant to s 32 of the Supreme Court Act 1935 (WA). Section 32 of the Supreme Court Act applies in this court by reason of s 34 of the Supreme Court Act and s 57(1) of the District Court of Western Australia Act 1969 (WA).
2. Section 32 commences with the words:

In any proceedings for the recovery of any money ...

1. As can be seen, s 32 refers to proceedings for recovery of any money. In my view, this picks up the original proceedings for such recovery.
2. Moreover, the powers on appeal conferred by s 56(2) of the Act are directed to providing a judge of this court with the same powers as the assessor. In particular, the power to confirm, vary or reverse the assessor's decision, in whole or in part.[51] An assessor has no power to award interest on a claim pursuant to s 32.
3. Having regard to these matters, in my view, s 32, when read together with the Act, does not apply to an appeal to this court under the Act. If it were otherwise, an assessor could not award interest on a claim, yet a judge hearing an appeal could. There is no legislative rationale that justifies such an inconsistent result.
4. I therefore do not allow a claim for interest.

Potential reduction of award for not engaging in appropriate mitigation

1. The next matter I need to consider is whether the award of compensation to Mr Madigan to the extent it arises from his nervous and mental shock should be reduced because he has not mitigated his loss. In essence, the applicable principle is that an innocent party cannot recover loss that could have been avoided by the taking of reasonable steps.[52]
2. This question arises because of a comment made by Dr Ng in his report that:[53]

[Mr Madigan] recalled that his friend had suggested that he have some psychotherapy following the subject incident.

He had not been treated with any psychotropic medications following the first and second subject incidents.

1. Here, the suggestion that Mr Madigan engage in such counselling came from a friend, not from anyone with any medical expertise. Additionally, conditions such as post-traumatic stress disorder are such that often, until they are properly diagnosed, the person suffering the condition does not quite appreciate the significance of getting such professional assistance, whether by way of therapy or medication. Also, Dr Ng's recommendation is that the taking of medication be considered if the therapy fails, not before.
2. Having regard to these matters, I am not satisfied that Mr Madigan acted unreasonably by not undertaking psychotherapy upon his friend's recommendation. Accordingly, I am not satisfied Mr Madigan has not mitigated his loss.

Is a deduction from the award required because of the award of compensation in respect to the second set of offending?

1. Section 42(3) of the Act provides:

An assessor must deduct from a compensation award in relation to any injury or loss suffered by a victim, or a close relative of a deceased victim, any amount that the victim or close relative has received, whether under a contract of insurance or otherwise, for the injury or loss.

1. As I have explained, Mr Madigan has received an award of $8,462.50 in respect of the second incident.
2. However, I do not regard that as being an award for the injury or loss the subject of this appeal for the following reasons:
   1. In respect of Mr Madigan's injuries, I have assessed the compensation by reference to the mental and nervous shock suffered as a result of the first incident and the vulnerability for future harm that created.
   2. In respect of Mr Madigan's claim for future medical treatment, I have only allowed this to the extent it is necessary to address the mental and nervous shock associated with the first incident, using Dr Ng's apportionment between the two incidents.
   3. In respect of Mr Madigan's loss of earning capacity, I have allowed compensation for that loss because I am satisfied that the first incident was the substantive cause of that loss.
3. Furthermore, on the limited information before me, I am not able to assess whether the assessor dealing with the claim the subject of the second incident awarded any compensation which overlaps with the compensation the subject of this appeal.
4. Accordingly, I do not consider that s 42 is engaged here.

(a) $35,000 as compensation for his physical injuries and mental and nervous shock;

(e) $30,000 for loss of earning capacity post the sale of the business.

1. This totals $74,796.50. I increase the award to that amount. As I have said, Mr Madigan will need to comply with s 48 of the Act in order to access payment for the expenses of $2,730 for future psychotherapy treatment.

1. In respect of the apportionment of the award between the respondents and the third offender, I will not alter the apportionment of $2,000 to the third offender as he is not a respondent to the appeal. The barring order in respect of that apportionment of $2,000 remains in place.
2. Otherwise, the award I have made arises predominantly out of the offences committed by the first respondent. He assaulted Mr Madigan, which was the cause of Mr Madigan's physical injuries and the predominant cause of his mental and nervous shock. Also, the second respondent played an even lesser role than the third offender, entering the store opportunistically after the others had run and Mr Madigan given chase. I will therefore retain the apportionment of $2,000 to the second respondent. The balance of $70,796.50 is apportioned to the first respondent.

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

[1] Mr Leonard Corbett was initially named as the third respondent on the Notice of Appeal. By order made 11 March 2022, the Notice of Appeal was amended to delete the reference to him.

[2] Appellant's book of documents, page 20.

[3] Appellant's book of documents, pages 50 - 62.

[4] Appellant's book of documents, pages 1 and 63.

[5] Appellant's book of documents, pages 63 - 64.

[7] TAW v NJS [2011] WADC 187 [17].

[8] ATB v LA [2021] WADC 64 (ATB).

[9] A v D (1994) 11 WAR 481, page 495. Ipp J agreed with Nicholson J.

[10] Appellant's book of documents pages 41 - 43; Mr Madigan's impact of injury statement, pars 28 - 43.

[11] Appellant's book of documents, page 75.

[12] Appellant's book of documents, page 76.

[13] Appellant's book of documents, page 90.

[14] Dr Tan's report sets out that Mr Madigan had advised her that he required root canal and crowns to repair teeth 11, 12 and 21.

[15] Appellant's book of documents, pages 95 - 108.

[16] Appellant's book of documents, page 44; Mr Madigan's statement dated 12 November 2021, pars 57 - 63.

[17] Mr Madigan's first statement, pars 64 - 71.

[18] Mr Madigan's first statement, par 72.

[19] Mr Madigan's statement dated 3 October 2022, par 31.

[20] Appellant's book of documents, page 74 (Emergency Department notes depicting where the injuries were).

[24] Appellant's book of documents, pages 95 - 108.

[25] Mr Madigan's statement dated 3 October 2022, pars 37 - 41.

[26] State of New South Wales v Skinner [2022] NSWCA 9 (Skinner) [120] - [122].

[27] DC v State of New South Wales [2016] NSWCA 198 (DC).

[31] State Government Insurance Commission v Oakley (1990) 10 MVR 570, 573.

[32] See Pyne v Wilkenfeld (1981) 26 SASR 441, 442. See also Luntz H, Assessment of damages for personal injury and death (5th ed, 2021) (Luntz) [2.8.2 and 2.8.4].

[35] Underwood v Underwood [2018] WADC 13 [127] - [130].

[36] Blackwell v Warren [2018] WADC 127 [16], [32], [34] - [35], [38]; Mangisi v Boehm [2021] WADC 76 [10], [23], [34]; Re MJM [2021] WADC 104 [61], [82], [86]; Woodward v Davies [2021] WADC 73 [44], [53], [73]; Savic v Duric [2021] WADC 53 [3], [4], [43], [44], [53], [55] - [58]; Re Sunjich [2022] WADC 66 [27] - [28], [90], [106]; Mallard v Mallard [2022] WADC 71.

[37] TAW v NJS [24]. See also Blackwell v Warren [34] - [35].

[38] Appellant's book of documents, pages 112 - 113.

[39] Appellant's book of documents, page 90.

[40] Appellant's books of documents, page 33.

[41] Appellant's book of documents, page 90.

[42] Appellant's book of documents, page 93.

[43] Appellant's book of documents entries for 5 October 2018, page 112.

[44] Mr Cooper's affidavit sworn 19 September 2022, Annexure CSC-1.

[45] Appellant's book of documents, page 107.

[47] Appellant's book of documents, page 100.

[48] Statement attached at Annexure CSC-2 to affidavit of Christopher Cooper sworn 19 September 2022, page 5.

[49] See Player v Avery [2022] WASCA 147.

[50] Appellant's book of documents pages 221 - 242.

[52] Netline Pty Ltd v QAV Pty Ltd [2022] WASCA 131 [42].

[53] Appellant's book of documents, page 102.