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[2015] WADC 107
appellant. Appeal allowed. The assessor's award was set aside and an award of $75,000 substituted, being the statutory maximum under s 31(1) of the Criminal Injuries Compensation Act 2003 (WA) ([92]–[93]).
MDC was badly injured in a violent home invasion. The assessor awarded compensation but did not separately allow for lost earning capacity or future psychological treatment. On a fresh assessment, the District Court accepted updated evidence that the assault caused lasting physical and psychological harm and continued to affect MDC's ability to work. It increased the assessed compensation components, including a global sum for earning capacity and an amount for therapy. Because the total exceeded the statutory maximum, the court substituted an award of $75,000.
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MDC appealed a criminal injuries compensation assessment made after three offenders, BLR, AAL and MGB, assaulted him in a home invasion on 20 April 2011. The offenders entered the unit where MDC and two others lived, carrying an axe and a machete. MDC was struck about the head and face and cut across the left forearm. He was also attacked as he tried to escape, and was left seriously injured ([19]).
2 cited instruments linked from this judgment.
The injuries required hospital treatment and surgery. They included lacerations to both hands, a fracture in the right wrist, nerve injury and wounds to the head, arms and chest. The court recorded that, without treatment, the injuries would have significantly compromised the function of MDC's hands ([20]–[21]). He was left with visible scarring, reduced sensitivity and movement in two fingers, and other residual effects ([22]–[23]).
The assessor had awarded $31,213.90, including $28,000 for the injuries. There was no separate award for loss of income or future treatment ([2], [9]). MDC appealed. The District Court admitted additional material, including an affidavit, hospital records, photographs and a supplementary report from psychologist Dr Watts ([10]). Because s 56 required the court to determine the application afresh, Braddock DCJ did not limit the inquiry to whether the assessor had made an error ([11]–[12]).
The court found that MDC had suffered both physical and psychological injury because of the offences. It assessed general damages at $45,000, loss of earning capacity at $50,000 and future psychological treatment costs at $5,000, as well as certain expenses already recognised by the assessor. The component amounts exceeded the statutory maximum, so the award was reduced to $75,000. The assessor's award was set aside and a $75,000 award substituted ([79], [87], [90]–[93]).
A central issue was how to assess MDC's psychological condition given his difficult earlier life and prior hospital presentations. The assessor had considered Dr Watts' first report to be based on an inadequate history and was not satisfied that all symptoms resulted from the assault ([16]). The appeal court had more information, including the pre- and post-offence hospital records and Dr Watts' updated opinion ([48]–[59]).
The judgment set out the applicable causation approach: the offence did not need to be the sole cause of an injury or loss, but it had to materially contribute to it ([30]). On pre-existing conditions, the court distinguished between a condition likely to have affected the claimant independently of the injury and vulnerability that made the claimant more susceptible to the injury. It referred to the need for evidence that could identify the pre-existing condition and its likely future effects with reasonable precision ([62]–[64]).
The court accepted that MDC had earlier difficulties, including substance use, unstable living circumstances and suicidal ideation. But the earlier hospital visits had generally been brief, and MDC had not previously been admitted to a psychiatric ward. After the offence, he had several psychiatric admissions lasting about a week each. Dr Watts described the later admissions as qualitatively different and connected them with the assault ([41]–[54]). The court accepted Dr Watts' diagnosis, recommendations and prognosis ([59]).
Braddock DCJ found that there was no evidence that PTSD had been caused by anything other than the offences ([69]). The judgment describes MDC as a vulnerable young person whose earlier troubles were overwhelmed by the scale and consequences of the trauma ([66]–[68]). This finding supported assessing the ongoing effects of the psychological injury, rather than reducing compensation on the basis that the evidence established an independently disabling pre-existing condition.
The court also found that the $28,000 general damages assessment did not adequately reflect MDC's injuries and their consequences. It considered the pain, inconvenience, distress and disability caused by the physical injuries, the significant and visible arm scarring, the continuing psychological symptoms, and the effects on everyday life ([72]–[79]). It assessed general damages at $45,000 ([79]).
For economic loss, MDC was unemployed when the assault occurred, so there was no straightforward past wage figure to use. However, he had been seeking work and wanted to work in hospitality. The evidence also showed that his injuries first prevented work and his PTSD continued to affect his ability to enter and remain in employment ([82]–[86]). The court considered exact calculation impossible and made a global award, taking account of the period to date and the following two years, likely casual work and travel, and the need for treatment ([87]).
The court treated future treatment as a separate issue. Dr Watts recommended a longer course of therapy, estimated at 20 consultations ([58], [88]). MDC said he wanted private treatment with a practitioner whose approach he trusted. The court did not regard his earlier failure to attend three appointments as showing a permanent refusal of treatment, particularly given the difficulties of the earlier treatment context and the challenging nature of therapy ([77], [89]). It allowed $5,000 ([90]).
The judgment did not purport to create a new statutory test. It applied the Criminal Injuries Compensation Act 2003 (WA) and principles drawn from the authorities cited in the reasons.
The starting point was that compensation is available where a person suffers injury as a consequence of a proved offence ([25]). The Act's definition of injury includes bodily harm and mental and nervous shock ([26]). The judgment stated that mental and nervous shock must be more enduring than ordinary fright or anguish and that s 35(2) required bodily harm as well in the relevant circumstances ([28]). The court also stated that ordinary tortious principles apply to assessment, subject to the Act's definitions and statutory limit ([29]).
For causation, the court applied the material contribution approach stated with reference to Fagan v Crimes Compensation Tribunal and S v Neumann ([30]). For pre-existing conditions, it referred to March v E & M H Stramare Pty Ltd, Brown's Valve Service Pty Ltd v Cristina, Watts v Rake, Zumeris v Testa and Purkess v Crittenden ([62]–[64]). The practical point was that a claimant's earlier difficulties do not automatically justify reducing compensation. The evidence must establish what the earlier condition was and what its likely effects would have been apart from the injury. Where those effects cannot be disentangled with reasonable precision, the judgment said the claimant may be assessed for the loss flowing from the current and likely future condition ([64]).
For loss of earning capacity, the court applied Medlin v State Government Insurance Commission, placing the onus of proving the loss and its financial consequences on the claimant ([80]). It also recognised that a precise wage calculation is not always possible and made a global assessment on the evidence ([81], [87]).
The judgment's application demonstrates how these principles worked on this record. The court accepted a claim for ongoing psychological injury despite earlier mental-health-related difficulties because the evidence showed materially different post-offence presentations and did not establish that the earlier condition would independently have produced the same long-term incapacity ([61]–[69]). It then assessed treatment and earning-capacity loss, but remained bound by the Act's maximum award of $75,000 ([32], [92]).
The decision therefore illustrates an application of the existing principles, rather than a stated alteration to the law. The judgment supplies no subsequent authorities or later treatment of the decision, so it cannot establish from this text how later courts have interpreted it.
At [11], the court explains that the appeal is a fresh determination, and that further evidence may be received. In plain English, the court was able to reassess the claim using the fuller evidence presented at the appeal, rather than simply reviewing the assessor's reasoning for error.
At [12], the court says an appellant need not demonstrate error by the assessor, while still giving due regard to the assessor's specialist role. The practical distinction is that the appeal is not confined to conventional error correction, but the assessor's reasoning remains relevant.
At [30], the court says the offence need not be the only cause of the injury or loss, but must materially contribute. In plain English, a relevant injury may have more than one contributing cause, provided the offence made a material contribution.
At [64], the court addresses what happens when evidence cannot separate the effects of the wrongful act from the likely future effects of a pre-existing condition. It states that the claimant may be assessed for loss flowing from the current and likely future condition. That passage is tied to the evidence and legal authorities discussed in the judgment; it is not a rule that every uncertainty automatically favours a claimant.
At [67], the court concludes that the trauma and its effects overwhelmed MDC's earlier difficulties. It also explains that vulnerability to trauma is not, by itself, proof of a pre-existing condition that would necessarily have affected him in the long term.
At [87], the court makes a global assessment of lost earning capacity. In plain English, it used a reasoned overall estimate because the evidence supported real work-related loss but did not allow a precise calculation.
At [92]–[93], the court applies the statutory maximum. Even though the court's component assessments totalled more than $75,000, the law's cap controlled the final award.
The decision is relevant to the kind of statutory criminal injuries compensation appeal described in the judgment: an appeal under s 56 where the District Court receives further evidence and reassesses the claim afresh ([11]–[12]). Its reasoning may be particularly useful where the appeal evidence fills gaps in the original assessment, as happened with the updated psychological report and fuller hospital records in MDC's case ([10], [48]).
The pre-existing condition discussion is relevant where a claimant had prior psychological, medical or social difficulties, and the decision-maker must assess whether the offence caused a new injury, aggravated an existing condition, or accelerated its effects. The judgment emphasises the need for evidence about both the earlier condition and its likely future consequences apart from the offence ([63]–[68]). Here, the court relied on the contrast between short earlier hospital presentations and longer, qualitatively different post-offence psychiatric admissions ([52]–[54]).
The global economic-loss approach is relevant where a claimant was not working when injured and there is no reliable past-wage calculation, but the evidence may still support impaired earning capacity and a financial consequence ([80]–[87]). The judgment does not say that unemployment removes the need for proof. Rather, it assessed the evidence of work-seeking, physical incapacity, psychological effects and prospects of improvement.
The future-treatment discussion is relevant where professional evidence recommends treatment but past attendance has been incomplete. The judgment considered the reasons for missed appointments, the claimant's later stated willingness and the expert's recommendation before making an award ([77], [88]–[90]). The result is fact-specific and does not establish that non-attendance is irrelevant in every case.
Finally, where compensation components exceed the statutory ceiling, the statutory maximum remains controlling. The judgment reduced the total to $75,000 under s 31(1), regardless of its assessment of individual heads of loss ([32], [91]–[93]).
The judgment supplied for this analysis contains no later decisions discussing or applying MDC v BLR. It identifies cases that Braddock DCJ relied on or cited, but those are authorities preceding this 2015 decision, not later treatment of it.
The authorities named in the reasons include Hogben v Darcy on the appeal court's regard for an assessor's specialist reasons ([12]); Fagan v Crimes Compensation Tribunal and S v Neumann on material contribution ([30]); Bedetti v Chief Executive Officer and RBF v OSD-S on reasonable medical treatment ([31]); authorities including Watts v Rake and Purkess v Crittenden on separating injury effects from pre-existing conditions ([63]–[64]); and Medlin on proof of earning-capacity loss ([80]). These references show the legal framework the court applied, not how later courts treated this judgment.
Accordingly, this source supports analysis of the decision's reasoning and outcome, but it does not support conclusions about whether later courts have followed, distinguished, limited or questioned it.
The judgment leaves several matters dependent on evidence and context. It does not specify a formula for converting a claimant's impaired employability into a global economic-loss figure. The court expressly described its $50,000 award as imprecise and tied it to MDC's circumstances, including his work history, current difficulties, likely improvement and anticipated casual work ([83]–[87]).
It also does not set out a general threshold for deciding when prior psychological difficulties amount to a pre-existing condition that should reduce damages. The judgment instead applies the cited principles to the available evidence, particularly the differences between MDC's earlier and later hospital admissions and the absence of evidence that PTSD arose from another cause ([61]–[69]).
The treatment award was based on Dr Watts' recommendation and the court's acceptance that MDC was willing to seek suitable therapy ([77], [88]–[90]). The judgment does not decide how a different record, such as continuing refusal of treatment or conflicting expert evidence, would affect an award.
The court also did not need to determine the appeal grounds separately because it was deciding the matter afresh ([70]). It did not address the separate ground concerning disclosure of MDC's address under District Court Rules 2005, r 22C, in the reasons provided. Nor does the judgment provide later judicial consideration of its approach.
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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CITATION : MDC -v- BLR [2015] WADC 107
MATTER : IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Citation : MDC and BLR & ORS [2015] WACIC 2
Criminal injuries compensation - Quantum of award of damages - Further evidence on appeal - Mental and nervous shock - Post-traumatic stress disorder - Psychiatric injury - Pre-existing condition - Mitigation of loss - Future treatment expenses
Amicus Curiae : Ms Underwood appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Amicus Curiae : State Solicitor for Western Australia
A v D (1994) 11 WAR 481
Bedetti v Chief Executive Officer [2003] WADC 37
Brown's Valve Service Pty Ltd v Cristina [1997] 1 VR 536
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Hogben v Darcy [2009] WADC 63
March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
S v Neumann (1995) 14 WAR 452
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Zumeris v Testa [1972] VicRp 97; [1972] VR 839
1 This is an appeal from a decision of an assessor of criminal injuries compensation made on [2015] WACIC 2 (CIC decision).
2 On 22 January 2015, the assessor awarded MDC the sum of $31,213.90 for injuries and losses suffered on 20 April 2011. On 23 February 2015, the assessor delivered reasons for judgment in writing.
3 MDC made an application for criminal injuries compensation, pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (the Act).
4 A notice of appeal was filed on 10 February 2015 listing the following grounds:
5 The assessor had before her statements from MDC: firstly, a statement made to the police on 27 April 2011 after the incident; secondly, a victim impact statement dated 8 February 2012 prepared for and submitted to the District Court for sentencing of the offenders, plus a copy of a report from Dr Phil Watts dated 28 May 2013. The assessor obtained documents from the Office of the Director of Public Prosecutions (DPP), including the file relating to the prosecution of BLR, AAL and MGB for the offences against MDC and others on 20 April 2011.
6 The medical documents comprised the in-patient records from Dr Ron Hirsch of Royal Perth Hospital, dated 3 March 2012 and documents relating to MDC's contact with the hospital psychiatric services before and since the offences.
7 MDC sought compensation for physical and psychological injuries, loss of earnings, damage to property, and future medical expenses.
8 The assessor allowed certain expenses, including the costs of St John's ambulance for transport on 6 December 2012; the report of Dr Phil Watts, which had previously been made as a preliminary interim payment; personal items damaged, in the sum of $180; and the cost of travel from Melbourne to Perth for surgery in December 2013. No complaint is made about the assessment of these specific items.
9 The assessor did not include in her award any component for loss of income. She noted the fact that MDC was seeking work at the time of the offences and was prevented from pursuing this for a period after. She made no award for future psychological costs or future treatment, pursuant to s 48 of the Act.
10 At the hearing of the appeal, I allowed further evidence consisting of the following:
11 Pursuant to s 56 of the Act, the District Court must decide the application afresh on appeal on the evidence and information that was in the possession of the assessor, but may receive further evidence and information. The District Court is not fettered by the assessor's decision, thus the appeal is determined as a hearing de novo. It is open to the District Court to confirm, vary or reverse the assessor's decision, either in whole or in part: s 56(2)(b) of the Act.
12 An appellant does not have to demonstrate error on the part of the assessor in order to succeed, but it is appropriate to give due regard to the reasons of the assessor as a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63 [13].
13 The materials for the appeal were presented in two volumes of documents prepared by the solicitors for the appellant, including all the materials from the Office of Criminal Injuries Compensation, which were available to the assessor at the time she made her award, together with the additional more recent documents listed above.
14 I also received in the course of argument from the appellant's counsel a chronology of events. Counsel for the CEO provided a copy of a referral letter to Royal Perth Hospital dated 12 April 2012, and notes from that hospital's Department of Psychiatry relating to outpatient appointments between 30 May 2012 and 4 July 2012.
15 The assessor recounted the circumstances of the offences against MDC, details of MDC's background and the effects of the offences, together with the treatment received by MDC at Royal Perth Hospital immediately for his physical injuries and his subsequent presentation for psychological reasons. She noted that he a traumatic background. She also noted that he had attended for clinical psychological counselling on 6 June 2012 but that he had failed to attend three other appointments.
16 The assessor formed the view that Dr Watts' report was helpful but had proceeded on an inadequate history provided by the patient of his pre-existing psychological issues. She was not satisfied that all of the observed symptoms and conditions documented by Dr Watts were a product of the incident. She was satisfied that 'pre-existing mental health and psychosocial condition' of MDC were significantly exacerbated by the incident and added to by post-traumatic stress disorder symptoms to a significant extent.
17 In assessing damages at $28,000, she said she took into account the claim for compensation for loss of earnings. On the information available she was not satisfied that MDC demonstrated a loss of earnings as a consequence of the incident. She was not satisfied that he demonstrated a loss of earning capacity either. There was no expert evidence in relation to those matters.
18 She declined to make any award for future treatment expenses, noting that Dr Watts had said the applicant resisted attending for such treatment. She said that there was no evidence that MDC had acted on his recommendations since his assessment.
19 The circumstances of the offences were undoubtedly serious, violent and traumatic. On the afternoon of 20 April 2011, the three assailants AAL, MGB and BLR attended at a unit in Wellington Street in Perth where MDC and two others were living. The offenders were armed with a machete and an axe. One of the group knocked on the door, one of the occupants, not MDC, answered the door and the three men then forced their way into the unit. MDC was in a bedroom. He heard noises and voices and got up to see what was going on. As he approached one of the offenders he was punched in the head and face and struck on the left arm with the machete-type weapon. The blow caused a bone-jarring slice across the left forearm. He fell to the floor, putting up his hands to try and protect himself. He felt a blow to the back of his head and then found himself on the floor screaming for help. He crawled across the kitchen floor and felt another blow on the back of his head. He was bashed over the head and lay in a pool of blood on the floor. He tried to leave the premises. He was then further assaulted with something resembling a vacuum cleaner pipe and the machete. There was a noise at the back of the house. The offenders moved to the back of the house, whereupon that MDC ran out of the front door as fast as he could. He went next door and collapsed. The incident did not end then: the perpetrators came outside again and he was again struck and kicked. The offenders then went down the fire escape. MDC called for assistance of an ambulance. His friends assisted him until the ambulance and the police arrived.
20 MDC suffered significant injuries. He was taken to Royal Perth Hospital, and to theatre that evening for exploration and repair of his injuries. His right hand had a laceration to his carpal tunnel as well as through the proximal hypothenar eminence. There was clinically absent nerve function at that point. There were no tendon injuries to his right hand. He had a fracture of the pisiform bone in his right wrist. His left hand had several lacerations over his fingers. He had a very tender, swollen and painful forearm. There were several lacerations to his forehead over his left temple and scalp. Clinically he had a non-functioning frontal branch of his facial nerve on the left side. There was a small ear laceration on the left side and multiple superficial lacerations over his chest and left upper arm. The injuries were of such a nature as to endanger life and without medical treatment the function of his hands would have been significantly compromised.
21 His wounds were cleaned and stitched, the fracture in his wrist was wired, his left forearm was cleaned and facia was removed and it was sutured. Subsequently his wounds healed well and he recovered a full range of movement in his left hand by 24 May 2011. His right hand was showing no ulnar nerve function at that time.
22 He has been left with significant scarring on his left inner forearm, for which he underwent further surgery in December 2013, to improve its appearance. There is also scarring to the left outer arm from elbow to wrist. He still has some lack of sensitivity and movement in his right little and ring fingers. He has a small scar and a bald spot on his head, as well as scarring on his hand and a lump on his right wrist.
23 In addition to the photographs, I was able to view MDC's scarring in court. The scarring to the left arm remains unsightly, significantly so. Otherwise his physical wounds are well healed.
24 On this appeal, the court may exercise any power of the assessor under the Act, subject to certain exceptions which are for current purposes irrelevant. In deciding the appeal, this court is not bound by rules or practice as to evidence or procedure and may inform itself in any manner it thinks fit: s 18(2).
26 Injury is defined in s 3 of the Act to mean 'bodily harm, mental and nervous shock, or pregnancy'.
27 Loss is defined in s 6(2) of the Act to mean
So far as is presently relevant, expenses incurred by or on behalf of the victim that arise directly from the injury suffered by the victim, and loss of earnings suffered by the victim as a direct consequence of the injuries suffered by the victim.
Loss of earnings includes loss of earning capacity: A v D (1994) 11 WAR 481, 495 - 496.
28 Mental and nervous shock contemplates a more enduring injury than simply fright and anguish, for example. The injury in question needs to be something significant, enduring and detrimental. Section 35(2) provides that the court cannot award compensation for mental and nervous shock unless satisfied that the victim also suffered bodily harm as a result of the commission of the alleged offence. In this instance, clearly, it has been demonstrated that serious physical injuries were caused by the offenders.
29 Ordinary tortious principles apply for the assessment of damages within the context of the definitions in the Act of injury and loss, subject to the jurisdictional limit.
30 It is necessary that a claimant establish, on the balance of probabilities, causation of the injury by the commission of the offence and causation of the loss for which compensation is sought. It does not have to be the sole cause of any injury or loss but it needs to be materially contributing to that injury or loss: Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666; S v Neumann (1995) 14 WAR 452 (463 - 464).
31 An applicant for criminal injuries compensation is obliged to obtain reasonable medical treatment for any injury caused by an alleged offence, and the failure to do so can be taken into account in determining the award: Bedetti v Chief Executive Officer [2003] WADC 37 [11]; RBF v OSD-S [2004] WADC 97.
32 The maximum compensation that may be awarded in favour of a person for a single offence is $75,000: s 31(1). The maximum compensation payable under the Act is a jurisdictional limit and is not to be reserved for the worst of cases: S v Neumann (463).
33 MDC is undisputedly the victim of a proved offence. The perpetrators pleaded guilty and were sentenced in the District Court to significant terms of imprisonment.
34 He is entitled to compensation for any injuries suffered as a consequence of the commission of the offence and also for any loss suffered.
35 There is ample evidence from MDC, and in the police investigations of the circumstances leading to his physical injuries. No suggestion has been made that there was any other explanation for the physical injuries.
36 I have no doubt, on the materials and MDC's own accounts of the offences, that he feared for his life during the incident. This was not an unreasonable fear. The physical assault occurred during a home invasion with bladed weapons which were used upon him and his friends. It would have been an extraordinarily traumatic experience. It would also have been painful, both at that time and during treatment and rehabilitation. MDC described his sense of humiliation and shame in being unable to care for himself whilst in hospital and after his discharge. In my view, there is nothing exaggerated about this reaction, given that he would not have had the use of his hands at all, initially. He was dependent firstly upon nursing staff and then upon his friends and family for all personal care.
37 He was discharged from Royal Perth Hospital on 27 April 2011. He had plastic surgery on 5 December 2013 on the left forearm.
38 He is self-conscious about the scarring on his scalp, he is unable to have his hair cut very short because of sensitivity in his scars. The scars on his arms are itchy at times and obvious. They cause him to be questioned by strangers, and scarring on his left arm provokes the question whether he tried to kill himself. He is self-conscious about the scarring, but nevertheless goes to the gym, the beach and plays sport in short sleeved shirts.
39 He suffers from continuing nightmares about the incident. He described the effects in his statement for the assessor. He feels bad about the strains placed on his family because of his injuries. He is afraid of family members of the offenders and has obtained a restraining order against CJ, the brother of the offender MGB, who publically threatened him.
40 He has moved interstate, where he feels safer than Perth. In Perth he says he 'was panicking all the time'. He feels very emotional about the injuries to his friends. He describes having four admissions to hospital due to feeling suicidal and unable to control his panic. In his affidavit for the purposes of the appeal, he confirms that he remains afraid at times in the street. He says he is constantly on his guard. He would like to leave Australia, as he feels that then there will be no risk that the offenders will find him. He fears their release from custody.
41 He accepts that he had six admissions to hospital prior to the attack. These were admissions to accident and emergency departments in the period when he was aged 15 to 18 years old. At that time he was living on the streets or in temporary accommodation. It would appear he had difficulties, including consuming alcohol to excess and abusing drugs.
42 Since the attack, he has been admitted to hospital on some four occasions each for a period of about one week. He was treated as a voluntary patient, in a psychiatric ward, on each occasion. Prior to the offences he was never admitted to a psychiatric ward. The last time he was so admitted was in December 2012.
43 He had one session of psychological counselling on 6 June 2012. He did not attend three further appointments. His explanation was that when he saw the psychologist, he had to 'replay the attack in his head', which made him feel worse. He did not go back because 'he did not like the treatment'. He accepts that he will eventually need to deal with his trauma. He would like to see a private psychologist of his choice for therapy as recommended by Dr Watts. The hospital notes confirm the non-attendances, and record that he gave other reasons for his absences.
44 Before the offences, he was unemployed, was registered with a job service provider and actively seeking work. He had worked in the past for short periods at McDonald's restaurant chain and the BP service station in Broome. He describes himself at the time of the attack as young, fit and healthy with no criminal record and of good intelligence. His wish was to enter the hospitality industry.
45 Since the offence, he has attained a certificate in the responsible service of alcohol, in a classroom situation. He was not able to proceed further with his studies due to an incident with one of the offender's brothers. He was afraid to enter the city area, including Northbridge, where the course was held.
46 Since his relocation interstate, he has worked casually through an agency as a band 'roadie'. He finds that he is physically able to do the work. He has done volunteer work, at the world AIDS conference in 2014, and he has worked voluntarily at the 'good to go to café' obtaining experience as a barista. He finds stress at work difficult to cope with, due to pressure to perform.
47 He accepts that as a teenager he drank to excess.
48 I now have the benefit of an updated report from Dr Watts, and full details of his prior and post injury hospital admissions. Dr Watts reinterviewed MDC on 28 March 2015 and reviewed his original report in light of the additional materials available to him. These included the discharge summaries from the hospitals prior to the attack upon MDC.
49 In his original report, Dr Watts described MDC as a 21 year old man who did not wish to talk about the incident and was in a very aroused state. He exhibited physical as well as behavioural indicators of arousal. When he did begin to discuss the details of what happened, he 'could not stop himself talking about' the very traumatic experience, from start to finish. He became increasingly distressed. Dr Watts described this with extremely high arousal as being associated with a traumatic reaction.
50 Dr Watts described MDC's background, which included significant disruption in his early life, his parents separating at around 7 years of age, his mother disappearing from the scene for several years, then dying not long after she resumed contact with him. His stepfather was violent towards him after his mother died and he ended up, informally, in the care of the Department of Child Protection until he was 16 years of age. From that time onwards, he had survived by himself, living with friends, family, and living in squats. He described this as 'lifestyle instability'.
51 At his first interview, Dr Watts administered psychological tests which had results indicating worrying levels of suicidal ideation. He formed the view that MDC suffered from significant post-traumatic stress disorder, which was affecting him across a variety of both arousal and repression symptoms.
52 In his recent report, Dr Watts contrasted the pre-incident admissions to hospital and the post-incident admissions by reviewing the medical records. The early admissions were predominantly for alcohol intoxication, which may also have included drug abuse. Comments by the medical staff concerned substance abuse, situational crises, limited resources and unavailability of accommodation. There was reference to suicidal ideation, self-harm and anger. After the incident, Dr Watts described the admissions as having a 'qualitative difference'. Prior to the incident, each admission was for a single night, but subsequently they were for periods of one to two weeks. The later discharge summaries speak about behavioural difficulties and make reference to 'borderline personality disorder' or 'acute stress reaction' from the assault. He noted that references to 'personality disorder' only appeared after the incident.
53 In the light of the records, Dr Watts expressed the view that it appeared that alcohol and drug intoxication were a major part of his behavioural difficulties. He also noted that in the literature, it has been considered that borderline personality disorder and post-traumatic stress disorder often manifest in similar ways, resulting in misdiagnosis. In other words, he says that the behaviours are the same, but the causes are different. He says that the subsequent discharge summaries clearly note that MDC was in a very disturbed state with suicidal behaviour, behavioural problems and a preoccupation around the assault. He describes the subsequent admissions as being much more in keeping with a major mental health problem and the diagnoses include references to post-traumatic stress disorder.
54 Dr Watts accepts that MDC had behavioural problems, particularly substance abuse, prior to the assault. Subsequent to the assault, he says there was a massive escalation in the emotional and behavioural difficulties and a high level of disturbance, which affected him at a personality and psychological functioning level.
55 In Dr Watts' opinion, MDC was suffering from the legacy of his disturbed childhood prior to the assault and was angry and unsettled. He refers also to the effect of the diagnosis of HIV, some three to four months before the assault. He describes the assault as having quite a devastating impact upon him.
In my opinion the dynamic is quite significant. When somebody has some pre-existing issues then being subject to trauma, the pre-existing issues reverberated markedly. In other words, [MDC] was more vulnerable from the pre-existing issues so when the assault occurred he was more prone to react.
57 He was also of the opinion that this situation makes it additionally harder to treat MDC because of the severity of the dysfunction. He noted that the diagnosis of HIV was likely to have been distressing, but the very disturbed behaviour was likely to have been a product of the assault, rather than other issues in his life. The later hospital admissions were around the assault not the HIV. He says that one of the problems with post-traumatic stress disorders is that avoidance is a major symptom. He said at some point MDC will need to address the psychological issues rather than avoiding them. Until that time Dr Watts says he will hold a job for a while and when issues trigger the trauma, he will move on.
58 Dr Watts concluded that his reassessment in light of the additional information indicated that MDC shows quite a level of disturbance, because of childhood factors, which have been made significantly worse because of the trauma. He says that it is evident from medical information that MDC is unable to work effectively, but he is driven to attempt to do so. He estimates that ongoing treatment will need to be longer rather than shorter. He had previously advised 20 sessions of therapy at the then rate of $228 per hour.
59 I accept his diagnosis, recommendations and prognosis as being realistic in all the circumstances.
60 I am satisfied MDC suffered physical and psychological injuries as a result of the offences and obtained such appropriate medical treatment as was reasonably available to him at the time.
61 The circumstances in which MDC found himself in the night of the injury would be likely to be very traumatic to anybody. There is no suggestion that he previously had suffered from post-traumatic stress disorder. He had a difficult background as a child and was still a young man at the time of the attack upon him. The evidence of earlier admissions to hospital, indicates some degree of depression, problems with alcohol and possibly other substances. That is very different from the post-offence presentation. I accept Dr Watts' analysis of the discharge summaries in that regard.
62 In the law of tort, a plaintiff is entitled to all the loss and damage flowing from a personal injury, as long as the defendant's act made a material contribution to the injury: March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 514. Where a plaintiff already suffered from a pre-existing physical or mental condition, but was almost certain to have gone through life unaffected by the pre-existing condition, the defendant remains liable for all the loss and damage resulting from the personal injury: Brown's Valve Service Pty Ltd v Cristina [1997] 1 VR 536, 543 - 544.
63 Where the pre-existing condition is of a type that would have affected the plaintiff irrespective of the injury, the defendant is only liable for the damages resulting from an increase in the condition or the acceleration of the onset of symptomatology from the condition which was brought about by his wrongful act: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, 160 and Zumeris v Testa [1972] VicRp 97; [1972] VR 839, 843. In order to disentangle the effects of a defendant's wrongful act and the effects of the pre-existing condition there must be evidence which establishes with some reasonable measure of precision what the pre-existing condition was, and what its future effects, both as to their nature and future development and progress, were likely to be: Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, 168.
64 There is an evidentiary burden on a defendant to adduce evidence that the plaintiff's condition was wholly or partly the result of some pre-existing condition: Watts v Rake (160) and Purkess v Crittenden (168). Where it is not possible to disentangle the effects of the wrongful act on the plaintiff and the future effects of the pre-existing condition, the plaintiff is entitled to all the loss and damage flowing from his current and likely future condition or capacity: Watts v Rake (160).
65 The facts in this case do not in my view require consideration of s 41 of the Act, which involves contributing factors in the behaviour, condition, attitude or disposition of the victim. That is contributing factors to the offence.
66 In my view, MDC prior to the attack was a troubled young man, living in far from ideal circumstances, which had resulted in him indulging in alcohol and drug abuse, and being treated for suicidal ideation. Notwithstanding those matters, he had no admission to hospital longer than a night, had committed no criminal offences, and was living independently in the community. I see no reason to doubt his account that immediately prior to the attack he was functioning well and was happy in the circumstances he found himself to be. His last hospital admission was five months before the incident. Whilst he had not had an ideal start in life, his problems were far from those which he exhibited after the traumatic events on 20 April 2011, which I find have continued to affect him.
67 There is great difficulty in predicting what would have resulted from his upbringing and unstable life in his teenage years without the effects of the incident. There is no evidence to suggest that he would have been seriously incapacitated. In my view, the degree of trauma from the offences and its effects on him are so significant that the traumatic injury overwhelms his earlier troubles. Consistent with the principle that a wrongdoer must take his victim as he finds him, the fact that MDC was vulnerable to the trauma which he suffered does not amount to a pre-existing condition which would necessarily have affected him in the long-term but for the trauma.
68 MDC was a vulnerable young person at the time of the offences who suffered psychological consequences from his experience during the offences, and the sequelae of the physical injuries, including significant scarring.
69 There is no evidence that post-traumatic stress disorder was caused by anything other than the offences.
70 Due to the nature of this appeal, I do not need to deal with the specific grounds of appeal in the manner that would be required in other circumstances.
71 I must now consider afresh the proper award. As I have indicated above, the assessor was not in a position to fully assess the psychological injuries. She drew certain conclusions in the absence of a full picture of the effects of his earlier history.
72 MDC suffered pain, inconvenience, personal distress and disability due to his physical injuries for many months. He is left now with significant scarring on his left arm and some lack of fine movements function in his right hand. This will make some actions more difficult for him, but there is no evidence that it will incapacitate him in any specific employment. The forearm injury and scarring which I have seen is obvious and is a significant compensable injury. There is little prospect for further physical treatment to ameliorate the scarring in an acceptable way. MDC says, and I accept, that he has been told further revision would produce a scar appearing more like a long incision up his forearm, which in his view would be little improvement and would look like the result of a suicide attempt. This would not alleviate his distress about it, rather the opposite. I consider this a realistic and sensible assessment and he does not seek further surgery.
73 His psychological injuries that have continued to interfere with his life to date, and will, in my view, continue to do so.
74 I heard evidence from MDC at the appeal. He impressed me as quite a determined young man, although he was extremely distressed when listening to counsel, and at first, visibly disturbed in the witness box. When he calmed himself, he remained nervous, but was able to express himself clearly and forthrightly. He has moved on considerably from the time of the assessment. He has been employed on a voluntary basis, has made new friends, and played rugby, including being in a successful team. He keeps himself fit.
75 He has plans for the future. He remains stressed and emotional in discussion of the offences and the consequences of them. It is greatly to his credit that he has made the efforts he has, resulting in progress from his condition in 2012.
76 I am satisfied that his account of his difficulties, and the steps that he has taken to overcome them, is honest and accurate.
77 He is willing to and wishes to seek therapy privately, where he is able to consult somebody he trusts in a therapeutic relationship. I do not consider that the notes from Royal Perth Hospital, in 2012, exclude the need for or likelihood of MDC benefitting from appropriate psychological treatment. It is clearly indicated and would be likely to be beneficial, according to Dr Watts. I do not believe that missing three appointments, in the then circumstances, can establish a general and permanent reluctance to access counselling. The reality is that therapy for his condition will be challenging.
78 I assess the situation to be that MDC has made considerable progress, but has further to go in attaining the ability to find full-time employment in the open market and to be fit enough, psychologically, to retain such employment. I consider this to be a direct result of the effects that the offences have had upon his psychological health.
79 In my view, taking all of these considerations into account the award of general damages of $28,000 is inadequate. On the evidence available to me, an award of $45,000 is appropriate.
80 MDC is entitled to compensation for both injury and loss suffered. Such loss includes loss of earnings as a direct consequence of the injury and loss of earning capacity. In the assessment of economic loss a plaintiff carries the onus of proving the loss of earning capacity and the extent to which that loss produces or might produce financial loss: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 18.
81 MDC was not working at the time of the offence, and accordingly could not and has not put forward a calculation of his financial losses from the time of the offence to date. Even where a loss of earnings is proved, damages are to be assessed as a matter of judgment and cannot always be precisely proved.
82 The evidence before me is that MDC was, prior to the alleged offence, seeking work and believed he had prospects of working at the casino. He was 19, said he was happy and in a 'good place'. He was fit and wished to be employed in hospitality.
83 It is clear that to date MDC's employability has been compromised by his injuries, although the cost of this cannot be calculated in lost wages. He is improving, has gained some skills, and is positive about his future. He plans to travel abroad and work in Europe. I expect that he will be able to do this, and to gain casual employment on his travels. He should, eventually, be able, with treatment, to work in a full capacity. It is impossible to say precisely how long this might take.
84 I have the benefit of further evidence, which makes it apparent that MDC will still have difficulty entering the workforce on a commercial basis in the longer term, but that he can expect to improve with therapy and time.
85 I would expect that a 20 year old able-bodied man, but for the accident, would have obtained employment of some kind during the period from 20 April 2011 to the current time.
86 He was completely unable to do so from the offences date for months by reason of his physical injuries. Subsequently, he has been handicapped by his post-traumatic stress disorder.
87 In these circumstances, it is impossible to make a precise assessment of MDC's losses. I consider that a global award should be made to reflect his loss of earning capacity to date and in the next two years, allowing for periods of travel and casual employment. This is somewhat imprecise, but doing the best on a global basis I allow the sum of $50,000, taking into account he has not worked in the last four years, except in brief casual jobs and voluntary roles and requires psychological treatment.
88 Dr Watts provided ample evidence for the necessity of ongoing psychological treatment. He says that he requires estimated 20 consultations. The fee for such a consultation was $228 per hour, in 2013.
89 MDC told me that he would like to do this, if he could have a practitioner similar in approach to Dr Watts. I do not consider it reasonable to conclude that he would not take advantage of such treatment, in future on the basis that over three years ago as a younger man, he failed to keep appointments with a psychologist allocated to him by the hospital.
90 In the light of Dr Watts' recommendations I assess future psychological costs at $5,000.
91 Dr Watts' first account dated 2013 was included with both his reports in the papers provided, but I have subsequently been provided with his recent bill.
$5,000 (s 48)
92 The total amount exceeds $75,000. I accordingly reduce the award to $75,000 in compliance with s 31(1) of the Act.
93 I allow the appeal, set aside the award made by the assessor and substitute an award to MDC of $75,000.
(1995) 182 CLR 1
(1982) 150 CLR 666
(1994) 11 WAR 481
(1991) 171 CLR 506
(1965) 114 CLR 164
(1995) 14 WAR 452
(1960) 108 CLR 158
Appeal allowed. The assessor's award was set aside and an award of $75,000 substituted, being the statutory maximum under s 31(1) of the Criminal Injuries Compensation Act 2003 (WA) ([92]–[93]).