RE RJA [2022] WADC 106 | Case summary

MATTER : IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003

RE RJA [2022] WADC 106 | Case summary | Zoe

[53]

On 14 October 2020, the respondent (HT) stabbed the appellant (RJA) twice in the lower back whilst at their local school, where they were students. At the time of the offending, HT was 14 years of age and RJA was 17 years of age.
By an application dated 28 October 2020, RJA's father applied for criminal injuries compensation under the Criminal Injuries Compensation Act 2003 (WA) (Compensation Act) in respect of RJA's injuries arising out of the incident on 14 October 2020 (Compensation Application). The claim was made under s 12(1) of the Compensation Act, for an injury and loss as a consequence of a proved offence.
HT was convicted on his plea of guilty of unlawful wounding contrary to s 301(1) of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) on 4 November 2020: Assessor's Papers, page 72.
By a compensation award made on 2 June 2021, an assessor of criminal injuries compensation (Assessor) awarded RJA $16,126 in respect of a proved offence.
The Assessor provided RJA with a letter dated 2 September 2021, which set out the reasons for his award: RJA's Book of Documents dated 10 May 2022 (BoD), page 8. I will refer to the Assessor's compensation award and reasons for the award collectively as the Assessor's Decision.
RJA appealed the Assessor's Decision by notice dated 22 June 2021: BoD, pages 11 - 13. The principal ground advanced was that the compensation award was 'inadequate'. It was not disputed that the appeal was commenced within time.
This court made orders dated 31 August 2021 to anonymise the names of the parties. In order to preserve the anonymity of the parties, names of places have also been omitted or de-identified.
The hearing of the appeal took place on 29 June 2022. RJA was represented by counsel. The Chief Executive Officer of the Department of Justice (CEO) appeared as amicus curiae and was represented by counsel for the State Solicitor.
In support of the appeal, RJA filed a schedule of loss of earning capacity dated 22 May 2022 and particulars of loss and damage dated 13 July 2022 (Particulars of Loss). RJA also filed an outline of submissions on 19 May 2022 (RJA Submissions). The CEO filed an outline of submissions on 13 May 2022 (CEO Submissions) and brief submissions dated 15 July 2022 (Further CEO Submissions).
For the reasons that follow, I would allow RJA's appeal. I consider that RJA is entitled to an award of compensation of $26,815.17 in total, of which $3,550 relates to future treatment expenses. Payment of the $3,550 for treatment expenses is subject to the satisfaction of s 48 of the Compensation Act.

[108]

Under the heading 'Schooling and Work following the Incident', RJA stated the following:
1. After the incident, I couldn't return to school as I felt extremely scared and embarrassed about the incident.
2. My parents were also very scared and worried about my safety.
3. My parents and I met with the school, and it was agreed that I wouldn't return to the school.
4. At the time of the meeting, I told the school that I was scared and the school offered counselling and support.
5. The school told my family that they would help me with going on to TAFE.
6. I was provided with my Certificates for completing year 12.
7. I was given a Valedictory Certificate.
8. I was also provided with my Year 12 Certificate which recorded that I had obtained by my Certificate II in Construction Pathways.
9. My Year 12 Certificate did record that I didn't achieve my workplace learning program as I didn't return to school and complete my final 2 weeks working with my father.
10. I was also provided with my Certificate II in Construction Pathways and my Certificate of Attainment and Academic Transcript for the course work.
11. Before the incident I intended to go to TAFE in Rockingham and start my Certificate II.
12. After the incident, due to my anxiety and fear of being attacked again I couldn't bring myself to go into Rockingham and go to TAFE.
13. Rockingham is too close to the school the offender's family and to others who I am worried might attack me.
14. I now avoid going anywhere where I might come into contact with the offender, his family or any of their friends.
15. I avoided going out and became socially withdrawn.
16. I could not socialise and became anxious thinking about having to go into Rockingham and attending my TAFE course.
17. I was unable to begin my TAFE course following the incident.
18. My father arranged for me to do some labouring work with a local business who employed Filipino workers.
19. At work, I still feel anxious and vulnerable.
20. I am able to go to work, work and leave and return home.
21. I don't feel comfortable doing anything else.
22. I feel pain and discomfort at work when I perform duties such [as] heavy lifting.
23. It is still my intention to go to TAFE and get some form of trade certificate and start a career.
24. I am sad that I was unable to go straight to TAFE and start my training.
25. I feel like I have put my life on hold after the incident and deal with the psychological impact of it.
26. I hope that the treatment I am currently having will allow to me process what has happened to me.
27. When I do go to TAFE I will need to go to a different campus as I will be unable to go to Rockingham campus.
And under the heading 'Current Condition', RJA stated the following:
1. I am still anxious to leave the house other than to go to work.
2. When I do leave the house I remain very hyper vigilant of where I am going and who might be there.
3. I do not like going anywhere near the school or where the offender's family or friends [may] be.
4. This is difficult because this includes my local area.
5. I am still scared that someone might attack me.
6. I am still very scared of the offender's family.
7. I still don't like socialising and prefer to socialise over social media.
8. I am worried about this as I know it is not normal for someone my age to be so anxious and socially withdrawn.
9. I used to play social basketball, but have stopped because I don't like going out anymore.
10. I also used to really enjoy going fishing with my family which I have also stopped.
11. I am reminded of the incident and think about it often.
12. I have seen a psychiatrist, Dr Frederick Ng, who has provided me with a report in support of my application.
13. At the time of the review with Dr Ng, Bradford Legal arranged for an interpreter to be present to assist with the review.
14. I incurred a report fee for the report of Dr Ng in the sum of $1,980.00.
15. I also incurred a fee for the interpreter to be present.
16. I have provided my general practitioner with a copy of Dr Ng's report.
17. I have been referred for the treatment recommended by Dr Ng.
18. I have been referred to see A Resolution and I have received two sessions.
19. I have found the sessions useful, and I hope to use the strategies they have provided will help me put this incident behind me and move on with my life.
As set out above, RJA's evidence comprised several written statements. Much of that evidence was not controversial. However, RJA did not give oral evidence at the appeal hearing and his evidence was not tested in cross-examination. Notwithstanding these limitations, on the materials provided to the court, I accept that RJA was a witness of truth. I generally accept his evidence, subject to the question of weight. RJA's subjective views, particularly as to his psychological symptoms following the assault, his current condition and his evidence as to his loss of earning capacity, need to be weighed in the usual way against the medical and other evidence that was before the court. In addition to this, RJA's evidence concerning HT's sister and their 'misunderstanding' was disputed. I refer to these matters below.

[120]

Dr Whiting also recorded that RJA received several medications on discharge, including antibiotics (Cefalexin), celecoxib (nonsteroidal anti-inflammatory drug (NSAID)) and pain killers (paracetamol).
On the third page of Dr Whiting's report, were various diagrams of the human body, as well as pictures of the head, hands and feet, in various profiles (including face and side on). Two dots had been placed on an outline of the human body with the dots located in middle-to-lower right-hand part of the back. At the top of the page was the heading, 'please indicate the areas involved', next to which were the hand-written words '2 x puncture wounds, posterior ortho'. In effect, Dr Whiting indicated that RJA had suffered two puncture wounds to the middle-to-lower right side of his back.
RJA was discharged the day following his admission, being 15 October 2020.
In written submissions, RJA stated that he had been left with scarring from his wounds which were a daily reminder of the incident. RJA included two photographs in his BoD allegedly recording the scars on his lower back: BoD, pages 108 - 109. RJA's counsel referred to the photographs during his oral submissions and in describing them, candidly accepted that they were 'not the best quality' (ts 14).
The photographs provided in the BoD were not annexed to an affidavit. RJA did not refer to them in evidence.
On one of the photographs is the following caption: 'Hi I'm [RJA], this is the two stabbed scar on my back.' The image is about 4.5 cm by 6 cm. The image depicts two scars on what appears to be a person's lower back. The scars although visible, are not particularly clear or pronounced.
The second photograph records a person standing in front of a mirror with their shirt above their head showing their back. The image is also about 4.5 cm by 6 cm. I found it very difficult to see the scarring in this photograph.
The CEO referred to the same photographs in its written submissions, but described them as 'photographs, human back, undated, unlabelled': CEO Submissions, par 15(j). Otherwise, the CEO did not make any submissions as to the identity of the person in the photographs or the nature of the scars. In the circumstances, it was not clear to me whether the CEO disputed that the photographs depicted RJA and the scars on his back.
Having regard to the photographs, the label on the first photograph, and the location of the scars on the photographs, I am satisfied, with some hesitation, that they show the scars on RJA's lower back.
RJA's description of his injuries, to which I have referred at [50] - [56] above, is consistent with the medical records and other materials before the court. I am satisfied that RJA sustained the injuries described as a result of the incident on 14 October 2020.
On the evidence before the court, I find that:

[127]

I am writing to you on behalf of my 14 year old Son, HT, in regards to the matter of Criminal Compensation for RJA.

My Husband and I acknowledge that what HT did to RJA was wrong. HT knows this. However, there are circumstances leading up to the incident that I believe you should take into consideration.

My 17 year old Daughter, ST, and RJA both attended the same High School and had been friends over the past 4-5 years. In September this year RJA pulled a knife on ST at school and was suspended for his actions. He convinced ST that he was just "mucking around" and they continued to remain friends. A few days after this knife incident, ST and RJA went down to the local beach as they had done on multiple occasions. They were sitting in ST's car and because ST had a broken leg at the time she spun around in the driver's seat and rested her legs on the middle console. RJA grabbed her legs and pinned them under his legs and proceeded to sexually assault ST. She tried to fight him off but he kept telling her to "Just let me do it". She managed to get out from under his legs and because he refused to get out of her car she had no choice but to drive him home. Once he was at home he sent her a video of himself masturbating to porn videos and also sent a photo of himself masturbating to the videos.

ST didn't tell my Husband or myself about any of the above. She did however confide in a Teacher at school who then contacted me and I went in for a meeting and was told of what had happened. We went to the Kwinana Police Station and made a Statement and then went to the Rockingham Court House and applied for a VRO against RJA. In the meantime ST and I went to the Rockingham Detectives Office and made another Statement and ST was asked more questions about the incident. RJA was arrested not long after and was taken to the Police Station to be interviewed by Detectives. They confiscated his laptop and retrieved the deleted video and photo. He told them that ST asked him to touch her and also asked him to send the video and the photo to her. The end result: the Detective told me that they had to "can the interview due to the difficulty in interviewing with an Interpreter". They also told me that RJA said that he didn't understand that ST was saying "No" (he is Filipino).

As you can imagine, this has been a very stressful time for ST, my Husband and I and our other children but especially for our Son HT. He has been diagnosed with anxiety, depression and Bi-Polar. He has been on medication for all of these for the past 18 months. A week prior to the incident our Dr increased the dosage of HT's Bi-Polar medication. He was already taking 200mg per day and that was doubled to 400mg per day. He was getting sick from the increase so he stopped taking his medication for 4 days prior to the incident with RJA. I usually monitor him and make sure he takes his medication but with everything going on with ST I wasn't as vigilant with him as I should have been.

HT found out that RJA was allowed to go back to school after the suspension and he was back in classes with ST. ST rang me a few times to tell me that she was scared that RJA would hurt her or even kill her because he got into trouble with his Dad over ST's allegation. I believe that HT snapped as a result of not being on his medication and that is why he hurt RJA.

My Husband has been unwell for most of the year and as a result he hasn't been able to work since April this year. He is a qualified Chef .... I have been laid off at my workplace, .... All Casuals were let go so I haven't been working since August. Things are tough at the moment with both of us out of work. We have had to postpone our Mortgage repayments for 6 months. We have 6 children, 4 of them are living at home with us so it's been a struggle to live week to week. The pressure of Christmas doesn't help.

I hope that you will take into consideration everything that I have told you when you make your decision. Your understanding of our situation is greatly appreciated.

Sincerely

[146]

Similarly, Burrows DCJ in E M v C L [2021] WADC 127 stated at [101] that mental or nervous shock means any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence or associated with the commission of the offence.
Mental or nervous shock is not a mere emotional reaction. In Underwood, Gething DCJ emphasised at [83] that it must be of an enduring character so as to amount to an injury, as opposed to a mere emotional reaction. For example, mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress and disgust are seen as compensable.
Medical evidence from an appropriately qualified medical practitioner will generally be required to prove an injury exists and was caused by the offence. The court will not generally rely on conclusions made by an unqualified person on the basis of medical records without such supporting evidence: Sweetman v Lilley [2021] WADC 74 [14] (Troy DCJ) (Sweetman).
In the present matter, Dr Ng gave evidence that RJA suffered an unspecified trauma-related disorder with some lesser depressive symptoms. Dr Ng's opinion was based in part on a history taken from RJA, an examination of RJA, and from Dr Ng's review of the medical evidence. I accept Dr Ng's opinion. I am satisfied that RJA's unspecified trauma-related disorder falls within the meaning of 'mental and nervous shock' as found in the defined term 'injury' in s 3 of the Compensation Act.
I am also satisfied that RJA's trauma-related disorder was precipitated by the incident. Again, I accept Dr Ng's evidence. I observe that RJA had pre-existing behavioural difficulties. The allegation that RJA had assaulted HT's sister may have caused him some pre-existing stress. That said, in Dr Ng's opinion, the incident was the most significant contributing factor in causing the onset of RJA's psychiatric disorder.
I am also satisfied that RJA's trauma-related disorder falls within the criteria contained in s 35(2) of the Compensation Act, which regulates the circumstances in which an award of compensation for mental and nervous shock may be made. Those circumstances include that the claimant was the person against whom the offence was committed: s 35(2)(b). RJA is entitled to compensation for mental and nervous shock.
Dr Ng recommended that RJA seek and obtain psychological treatment. I deal with this further below.

[166]

In his written submissions, RJA submitted that Dr Ng had recommended that he undergo at least 12 sessions of trauma-specific individual psychotherapy at an approximate cost of $355 per session. He further submitted that as RJA had already undergone two treatment sessions, his claim was limited to 10 sessions, which total $3,550: RJA Submissions, pars 9.1.1 - 9.1.2.
During the appeal hearing, the CEO's counsel submitted that RJA had performed his calculations on the assumption that he would attend therapy provided by a psychiatrist. That assumption appeared to be incorrect, because the two treatment sessions that RJA had attended had been with a psychologist, not a psychiatrist (ts 77). The CEO's counsel further submitted that RJA had not adduced evidence as to the costs of the sessions that he had attended or the cost that a psychologist might charge for the relevant type of treatment (ts 77).
In response, RJA's counsel made a 'concession' stating that RJA was not 'seeking psychiatric treatment' but rather, treatment with a 'psychologist or counsellor' (ts 83). Counsel for RJA accepted that there was no evidence before the court as to the likely cost of that service (ts 83).
In his report, Dr Ng stated relevantly, that RJA required 'ongoing psychiatric treatment ... as a consequence of his currently reported psychiatric symptoms'. Dr Ng stated that RJA would benefit from 'at least 12 sessions of trauma-specific psychotherapy that should occur at least once every 2 to 3 weeks': BoD, page 103. Thereafter, Dr Ng provided the approximate cost if the psychotherapy were to be provided by a psychiatrist, by reference to the rate published in the Australian Medical Association rate for item AM035 session, being $355 per session. In the next line of his report, he stated 'I do not know what psychologists charge for psychotherapy': BoD, page 104.
I accept Dr Ng's evidence and find that RJA requires ongoing treatment for his disorder. Dr Ng was of the opinion that RJA would benefit from at least 12 sessions of psychotherapy. Dr Ng was not prescriptive as to who could treat RJA. It seems to me that that treatment could be provided by a psychiatrist or a psychologist (or other counsellor). Given that Dr Ng recommended 'at least 12 sessions' of trauma-specific psychotherapy, I am satisfied that an award of $3,550 for trauma-specific psychotherapy from an appropriately qualified person is appropriate in the circumstances. Payment of that amount will be subject to the requirements and satisfaction of s 48 of the Compensation Act.
Next, RJA claimed the cost of antidepressant medication for a period of one to three years: RJA Submissions, par 9.1.3. In support of that submission, RJA relied on Dr Ng's report. In response, the CEO referred to Dr Ng's report and submitted, in effect, that Dr Ng did not prescribe RJA any medication (ts 77).
Dr Ng stated in his report that '[i]f the psychotherapy does not assist' with the reported psychiatric symptoms, then the treating doctor 'should consider a trial of antidepressant medication which treats both anxiety and depressive symptoms': BoD, page 104. Dr Ng did not state that RJA required medication. Further, RJA does not mention taking antidepressant medication to date to treat his psychological symptoms in his Impact of Injury Statement. On the materials before the court, I am not satisfied that RJA has taken any such medication or that medication is likely to be required. Given this, I do not make any award in relation to this component of RJA's claim.

[205]

I am not satisfied that RJA's earning capacity has been diminished by reason of the diagnosed psychological condition. My reasons for this conclusion can be summarised as follows.
First, as set out above, RJA founded his loss of earning capacity claim on the fact that he was unable to attend TAFE because of his psychological injuries. The evidence for that submission rested on RJA's evidence. RJA did not support that submission by reference to medical evidence. Although Dr Ng found that RJA had a psychological condition, RJA's counsel accepted that Dr Ng did not state that RJA was unable to attend TAFE in 2021 or in the future, including 2022 and 2023 (ts 49 - ts 53). In effect, Dr Ng's medical report did not say that RJA's trauma-related disorder has or is likely to preclude him from undertaking a course of study to improve his earning capacity. I also note that Dr Ng did not say that RJA's psychological condition prevented him from or would prevent him from working.
Recognising that there was a shortfall in the evidence, RJA's counsel submitted during the hearing that it might be possible to obtain a further report from Dr Ng (ts 53). At the time, I referred to the 'gap' in the evidence and ruled that the appeal hearing should continue. There was obvious unfairness to HT (although not participating) and the CEO if the hearing were to be adjourned. There were also obvious case management considerations: e.g. parties are entitled to finality. Furthermore, there was no certainty that Dr Ng would provide a further report or what it might say. RJA was not seeking to adduce existing evidence, which had been omitted in error, such as a paid invoice. Instead, RJA was seeking (a) an opportunity to see if an expert would provide the relevant opinion evidence and (b) an opportunity to see if the opinion would support his case. There was no certainty as to the likely outcome. It was possible that there would not be any more evidence for RJA to adduce. The court should not ordinarily adjourn matters, for an unspecified period, so that a party can see whether they can obtain relevant helpful evidence from an expert. Justice would not have been served if an adjournment had been granted.
Secondly, RJA chose not to go to TAFE in Rockingham in 2021. At pars 118 and 119 of his Impact of Injury Statement, RJA stated that:
1. Before the incident I intended to go to TAFE in Rockingham and start my Certificate II.
2. After the incident, due to my anxiety and fear of being attacked again I couldn't bring myself to go into Rockingham and go to TAFE.
RJA's evidence needs to be treated with the caution identified by his Honour, Martin CJ, in Dimitrovska referred above. The fact that RJA chose not to attend TAFE in Rockingham in 2021 does not mean that he was not able to attend TAFE in Rockingham or elsewhere.
Thirdly, RJA did not lead any medical evidence as to his psychological condition in early 2021. RJA's counsel accepted this (ts 50). And RJA did not see Dr Ng until early 2022. In his Impact of Injury Statement, RJA states that the school offered him counselling and offered to assist him with going to TAFE: BoD, Impact of Injury Statement at pars 111 and 112, page 34. RJA did not explain why he did not take advantage of those offers. If RJA was as anxious as he says he was in his statement, then it is difficult to understand why he did not seek counselling or other assistance to prepare him for TAFE.
Fourthly, instead of going to TAFE, RJA's evidence was that he worked as a labourer with a local business: BoD, Impact of Injury Statement at pars 125, page 35. RJA does not state when he commenced working as a labourer or when he ceased. RJA's tax return for the year ended 30 June 2021 records that RJA earned $15,677: BoD, page 128. From this, it may be inferred that RJA spent at least several months working as a labourer, with possibly the majority of that work being performed during the first half of 2021 (recognising that RJA was still at school in the second half of 2020). RJA did not lead any medical evidence to explain why it was that he was able to work as a labourer in 2021, and yet he was not able to attend TAFE.
In his evidence, it appears that RJA's main concern was that he did not want to attend Rockingham TAFE or be seen in Rockingham at all: e.g. BoD, Impact of Injury Statement at pars 119 - 123 and 134, pages 34 - 36. RJA did to lead any evidence as to why he did not, or could not, attend another TAFE. In my view, that is a real difficulty with RJA's claim. In an exchange with the bench, RJA's counsel accepted that the relevant TAFE course was offered at other TAFEs and that there was no evidence why RJA could not to attend a different TAFE campus (ts 48).
Finally, RJA's claim assumes that he would complete his TAFE course in 3.5 years. I have reservations about whether RJA is capable of study. In this regard, RJA did not meet the minimum standard in the online literacy and numeracy assessment (OLNA): BoD, page 125. And, although the school provided RJA with his certificates for completing year 12, RJA's grades for years 11 and 12, particularly English and Maths were generally a C or lower. Counsel for RJA submitted that RJA had met the requirements as a non-school leaver to commence the relevant TAFE course. Those entry requirements focussed on C grades in year 10 English and Maths or equivalent, Certificate I or Certificate II (ts 44). A recent measure of RJA's language difficulties can be seen by his visit to Dr Ng together with an interpreter. That fact tends to reinforce that RJA will face some challenges should he choose to study.
RJA's counsel accepted that RJA had difficulties with reading and writing, part of which was due to Tagalog being the language that was spoken at his home (RJA being from a Filipino family (ts 22)). RJA's counsel also accepted that RJA had pre-existing behavioural difficulties but submitted that that was not uncommon and that it did not preclude him from finishing his education and progressing from high school (ts 49).
Whether RJA is capable of study is relevant to whether he could or would have completed his TAFE course in 3.5 years or longer. Having regard to RJA's background and his studies at school, and his conduct post school in 2021 as recorded in his Impact of Injury Statement, I am not in a position to say whether RJA could or would have completed his TAFE course in 3.5 years. This tends to count against RJA. However, finally resolving this issue is not necessary to my decision.

[206]

As set out above, it is necessary for RJA to identify both the earning capacity that has been lost and the economic consequences that flow from that loss. On the materials before the court, I am not satisfied that RJA has lost any earning capacity as a result of the incident on 14 October 2020. My reasons for reaching this conclusion can be summarised as follows.
First, RJA is entitled to be compensated for loss of earning capacity. However, RJA has the onus of proving the lost capacity. Capacity, in this sense, has been equated to a capital asset that has been lost, being the capacity to earn money: Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 18, 7 (Barwick CJ). In the present matter, RJA did not identify the capacity that he had lost, whether permanently or temporarily. In contradistinction to this, RJA pressed his claim on the basis that he lost the opportunity to attend TAFE in 2021, and thereafter, would be delayed in beginning his apprenticeship (e.g. ts 24, ts 33, ts 52, ts 54 and ts 82). RJA did not seek to prove that he was or would be precluded from attending TAFE in the future. In my view, RJA has not demonstrated that his injuries have resulted in a diminution of his earning capacity.
Secondly, the CEO submitted that it was not clear that RJA had suffered an economic loss as a result of his delayed commencement of TAFE in 2021: CEO Submissions, pars 44 - 50. In this regard, it was common ground that RJA had earned income during 2021. During the appeal hearing, RJA's counsel accepted that RJA did not have a loss for 2021 (ts 31). RJA's counsel submitted that RJA's loss only came to the fore once RJA was nearing the end of his apprenticeship (ts 31). This was because, in essence, as RJA became more qualified, it was likely that his rates of pay would increase and eventually exceed those of an unqualified labourer.
In response to this, the CEO submitted that RJA's calculations (referring to his schedule of loss of earning capacity dated 22 May 2022) did not take into account that if he was delayed in commencing his apprenticeship, RJA would receive a higher amount under relevant industry payment awards, because he would be older: CEO's Submissions, par 52. Put another way, as I understood the submission, a delay in attending TAFE needed to properly take into account RJA's earnings at the relevant time (e.g. 2021 and 2022), and those that he would earn if he commenced and completed his course at TAFE as an older person (because of various award rates etc).
On the materials before the court, even if I had accepted that RJA had lost some earning capacity, it is not clear to me that any loss of earning capacity has been productive of financial loss. RJA's counsel accepted that RJA did not have a loss for 2021. And as to 2022, RJA enclosed a payslip from GFC-Geraldton Fishermen's Co-operative Ltd which showed that he had earned gross income of $4,794.62. The payslip was dated 13 February 2022: BoD, page 129. Otherwise, it is not clear that RJA has suffered loss because although RJA included the payslip from GFC- Geraldton Fishermen's Co-operative Ltd, that was more than six months ago. And as to RJA's Particulars of Loss, it was not clear to me whether the calculations there took into account RJA's potential earnings as an older person.
Thirdly, the CEO submitted that if there was a finding that RJA had not demonstrated ongoing diminishment in his earning capacity, then there was a question as to whether RJA could be compensated for economic loss resulting from his lost opportunity to commence TAFE, without any corresponding loss of earning capacity (ts 72). Put another way, the CEO submitted, in effect, that it was not clear whether RJA could be compensated under the Compensation Act if there was a finding that he had not suffered some diminution in his earning capacity; the question was, was it sufficient for RJA to simply show that he had suffered economic loss resulting from the delay in commencing his studies? The CEO referred the court to the following authorities for assistance: ELK v CFB [2009] WADC 90 (Davis DCJ) (ELK); SH v BS [2001] WADC 291 (Yeats DCJ); and Montgomerie v Scott [2011] NSWDC 154.
In ELK, Davis DCJ had to consider whether compensation was payable to a victim that had been the subject of sexual abuse as a young girl. The victim claimed loss of earning capacity on the basis that she had either lost the opportunity or there had been a delay in the opportunity of attending university and achieving a professional career: [84], [106]. Davis DCJ dealt with the claim as a loss of opportunity/loss of chance claim, consistent the principles in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 [107] - [131] (Malec).
Ultimately, Davis DCJ found that the relevant psychological disorder contributed to the victim's delay in attending university but did not take away all of the victim's prospects of studying, and completing university, and improving her earning capacity. Davis DCJ came to that determination after considering the chance that the victim had lost. One material difference in that case involved Davis DCJ's finding that the victim had some permanent psychological disability: [114].
In the present matter, I am not satisfied that I can make an award on a loss of chance basis. This is for several reasons. First, even though RJA's counsel referred to his claim as a loss of opportunity from to time, it was not clear to me that RJA was presenting his claim on the basis of a lost chance. RJA did not appear to make submissions to that effect. He did not address me on the criteria contained in Malec, including some of the assumptions required to engage in the hypothetical exercise required (e.g. when RJA would attend TAFE and the likely prospects of that occurring). Secondly, it has been held in this court that in cases involving loss of a chance, mathematical calculation ought not be undertaken where there are many imponderables (as there are here): ELK [115] referring to JLW v DRH (2004) 36 SR (WA) 301. Thirdly, it is not clear to me that RJA has suffered an economic loss for 2021 or 2022. Fourthly, I have already found that RJA has not suffered a diminution in his earning capacity.
If I had been persuaded that RJA had suffered economic loss that was causally connected to the incident, then as RJA's counsel submitted, it would have been necessary, because of the many assumptions and imponderables, to make an award on a global basis. However, in the absence of a demonstrable loss, no award is possible.

[215]

The CEO submitted that there was limited utility in comparing awards of compensation or damages for personal injuries due to the inability of appeal courts and tribunals to know that they are comparing like with like: CEO's Submissions, par 26. The CEO supported that submission by reference to Fairhead v Quartermaine [2010] WADC 1; (2010) 69 SR (WA) 73 [14] (Deane DCJ) (Fairhead); De Florenca v Hayden [2007] WADC 54 [16] (Yeats DCJ). However, the CEO also noted that the contrary approach had been adopted in TAW v NJS [2011] WADC 187 [24] (Bowden DCJ) (TAW) and Blackwell v Warren [2018] WADC 127 [34] - [35] (Troy DCJ) (Blackwell).
I observe that recent authorities have preferred the contrary approach to TAW and Blackwell. Both Butler [94(e)] and the cases cited there and Savic [54], contended that it was permissible to have regard to other awards when considering an application for compensation.
The CEO submitted that insofar as the court considered that there might be utility in comparing the present application with others, the most recent published cases of compensation for stab wounds were GW v JW [2019] WADC 15 (Staude DCJ) and JY [2013] WADC 187 (Sleight DCJ).
The CEO also referred to the following cases involving mental and nervous shock and psychological disorders: Harris v Sycamore [2022] WADC 4 (Troy DCJ) (Harris); EB v Ramljak [2021] WADC 134 (Whitby DCJ); Swinford [2021] WADC 82 (Russell DCJ); Sweetman and ATS v Williss [2021] WADC 58 (Goetze DCJ).
RJA agreed that the above cases provided a useful summary of the most recent compensation awards which might assist the court with the assessment of his physical and psychological injuries: RJA's Submissions, par 6.2. RJA also referred to the following cases in his submissions at par 6.4: JDQ [2010] WADC 93 (Staude DCJ); Dunne [2014] WADC 131 (Davis DCJ); Hayward v Hart [2012] WADC 151 (Eaton DCJ) and Perris v Riley [2009] WADC 39 (Stavrianou DCJ).
In his Particulars of Loss, RJA submitted that, as he was still recovering from his physical and psychological injuries, an award of $30,000 would be a reasonable award for non-pecuniary loss: Particulars of Loss, pars 1.14 - 1.15. RJA's counsel made a similar submission during the hearing (ts 22 - ts 23).
I have found that RJA sustained physical injuries on 14 October 2020 as a consequence of the commission of a proved offence. Although the stab wounds had the potential to be very serious given their location to vital organs, ultimately, RJA's physical injuries were reasonably modest. As Dr Whiting reported, RJA's injuries were not of such a nature as to endanger or be likely to endanger, life and were not of such a nature as to cause, or be likely to cause, permanent injury to health. I have also found that RJA suffered psychological harm as a consequence of the commission of a proved offence. Dr Ng's opinion suggests that RJA's prospects are positive, with his condition to improve in the ensuing 12 to 36 months. Given these matters, an appropriate award of compensation for pain and suffering and other non-pecuniary loss is $20,000, being $10,000 for RJA's physical injuries, and $10,000 for his psychological injuries.

[220]

In written submissions par 65, the CEO submitted that RJA had an obligation to obtain reasonable medical treatment in respect of his injuries caused by the offence. The CEO also submitted that RJA had sought limited counselling in circumstances where he had been informed that he required 'a more fulsome treatment plan': CEO Submissions, par 66. In oral submissions, the CEO submitted that RJA only appeared to obtain some counselling after seeing Dr Ng in January 2022, and not immediately after the injury (ts 80).
In response to the CEO's written submissions, RJA's counsel accepted that RJA had only recently attended counselling. However, he submitted that RJA was 'a child at the time of the attack', that he was 'incredibly anxious' as a result of the attack and that 'he's a kid that went through a particularly horrific experience and he's trying to deal with it as best he can' (ts 44 - ts 45). In response to a question from the bench, RJA's counsel accepted that RJA had not given any evidence to explain why he had not obtained counselling at an earlier stage (ts 45).
Turning then to the concept of mitigation, a failure to take reasonable steps may result in the refusal or reduction of an award: ATB v LA [2021] WADC 64 [20] (Lemonis DCJ) (ATB); Re Farmer [2015] WADC 91 [105] (Bowden DCJ). Failure to undergo medical treatment or rehabilitative treatment is a question of mitigation, the onus of which rests on the defendant to show that a plaintiff acted unreasonably in the steps taken to mitigate their loss: see Assessment of Damages for Personal Injury and Death, 5th Edition, 2021, Harold Luntz and Sirko Harder, LexisNexis, [1.12.2]; ATB [20]. I note that Lemonis DCJ in ATB held that the test of whether a victim acted unreasonably, is determined by reference to a reasonable person in the circumstances as they existed for that victim: [20].
I am not satisfied that RJA acted unreasonably by not seeking counselling earlier than when he did. My reasons for this can be stated shortly.
First, I have no doubt that being stabbed at school is a traumatic experience. RJA's evidence was that following the incident at school, he felt anxious, he was scared to leave his home, he was depressed, he did not sleep well, and he was reluctant to socialise. At the time of the incident, he was a 17 year old boy with pre-existing behavioural difficulties: [87] above. It is perhaps not that surprising that a 17 year old boy with pre-existing behavioural difficulties is reluctant to speak to a stranger about his problems. At the very least, it is conduct that is not unexpected.
Secondly, the main thrust of the CEO's submission is that RJA should have had counselling earlier than he did - before he saw Dr Ng in January 2022 (which was for a medico-legal report and not treatment). Although RJA states that he attended two sessions with a counsellor, he does not state when that occurred, other than they occurred post his meeting with Dr Ng in 2022. Put another way, RJA should have had some counselling during the 15 months or more between the date of the incident in October 2020 and when he saw A Resolution earlier in 2022.
This submission seems to assume that RJA knew that he needed counselling prior to meeting with Dr Ng earlier this year. On the evidence before the court, it is not clear when RJA was first advised that he should seek counselling. The earliest evidence appears to be contained in Dr Ng's report, although I note that Dr Ng states that RJA told him that he may have had some type of counselling after the incident, but was vague about it: BoD, page 99. I also note that RJA states in his Impact of Injury Statement at par 111 that his school had also offered him counselling: BoD, page 34.
Thirdly, there is no evidence before the court to the effect that if RJA had had counselling prior to 2022, that that would have reduced the effects of his trauma-related disorder as diagnosed by Dr Ng. Although that is possible, and perhaps even likely, that seems to involve impermissible speculation.
When regard is had to RJA's personal circumstances, and to his Impact of Injury Statement, I am not satisfied that RJA acted unreasonably by not seeking counselling prior to his first session with A Resolution earlier this year. It follows that I am not satisfied that RJA failed to mitigate his loss.

[229]

In the present matter, the CEO supported its submission by reference to a document HT's mother (KT) submitted to the Assessor, which I have referred to at [66] above: CEO's Submissions, par 57. Relevantly, KT informed the Assessor that her daughter [ST] had been sexually assaulted by RJA, and later on the same day, RJA had sent ST a pornographic video and a pornographic photograph of himself. This had led to RJA's arrest and questioning by police.
The CEO also referred to an Online Incident Notification System report made by the principal of the school on 10 September 2020 regarding the disclosure of the incident by a female student to a teacher: CEO's Submissions, par 58. The CEO submitted that that evidence was consistent with the occurrence of the alleged sexual offence. The CEO's written submissions indicated that this document was located in a file produced by the school. While it would have assisted to have read the report, I have not been able to locate a copy of that document in either the Assessor's Papers or the BoD.
RJA seems to refer to the same incident in September 2020 involving ST, however, he describes the incident as a 'misunderstanding': BoD, RJA Impact of Injury Statement, pars 26 - 30. RJA's counsel did not submit otherwise. In the circumstances, I am satisfied that there was an incident in September 2020 involving RJA and ST, though the precise circumstances are disputed.
The CEO also referred to a police incident report at page 81 of the Assessor's Papers, which states that HT's sister was protected from RJA by a Violence Restraining Order: CEO's Submissions, par 59.
I observe that the Police Running Sheet for 29 October 2020, records 'Intel - History between the victim and suspect's sister (VRO) in place': Assessor's Papers, page 69.
The Violence Restraining Order was not before the court. However, it did not appear to be in dispute at the appeal hearing that in September 2020, HT's sister, ST, was protected from RJA by a Violence Restraining Order. RJA's counsel did not submit otherwise. I make that finding accordingly.
I also observe that two witnesses to the incident on 14 October 2020, being LJM and CKRD, made statements which tended to indicate that they were aware of the alleged sexual assault: BoD, pages 46 and 56.
In this regard, LJM stated relevantly that:
1. I followed HT into the deputy's office. As we were walking, HT said 'He's a sick fuck'. I believed he was referring to the alleged sexual assault that his sister had disclosed about RJA.
And CKRD stated relevantly that:
1. I immediately had concerns regarding RJA. I am aware of some family history between the pair.
RJA's counsel referred to their evidence in passing but did not directly address the above matters (ts 8 - ts 9).
The CEO also submitted that at HT's sentencing hearing in March 2021, the court accepted that ST's disclosure of the alleged sexual assault contributed to HT deciding to attack RJA: CEO's Submissions, pars 60 - 62. Having reviewed the transcript of HT's sentencing hearing, I accept the CEO's submission. RJA's counsel did not submit otherwise.
Ultimately, the CEO submitted that it was open to the court to find that RJA's actions were insufficient to justify a reduction in the award of compensation (ts 79). This was because, in essence, RJA's actions were not sufficient to justify HT acting in self-defence or under provocation: CEO's Submissions, par 63.
In written submissions, RJA submitted that whilst HT felt or believed that there was a causative link between his offending and RJA's behaviour (which was denied), RJA did not contribute directly or indirectly to the injury and loss suffered by him: RJA's Submissions, pars 10.1 - 10.2. In oral submissions, RJA's counsel repeated that RJA did not contribute to the injuries he suffered (ts 85).
I observe here that RJA's counsel did not make any submissions as to KT's document mentioned above at [66]. I also observe that RJA's Impact of Injury Statement did not refer to the Violence Restraining Order, or the allegation that RJA had pulled a knife on ST at school and been suspended or that he had sent ST a pornographic video and a pornographic photograph of himself in September 2020.
While I have some misgivings, I am not satisfied that an award to RJA should be reduced under s 41 of the Compensation Act. My reasons for reaching this conclusion can be summarised as follows.
First, RJA is entitled to the presumption of innocence. In Re ATS [2017] WADC 92, Herron DCJ explained at [29] that exactness of proof is required when in a civil proceeding, a question arises whether a crime has been committed. Where criminal conduct is alleged, which is the effect of the allegations against RJA, clear and cogent evidence is required. That evidence is not before the court.
Secondly, in order to conclude that RJA's behaviour contributed directly or indirectly to his injuries, it seems to me that I have to accept KT's version of events, namely, that RJA sexually assaulted ST. Given that I do not have a statement from ST and that RJA strongly denies the 'accusation', and maintains that it was a 'misunderstanding', I am not in a position to make findings about RJA's alleged conduct: BoD, RJA Impact of Injury Statement, par 29.
Thirdly, it is accepted that s 41 of the Compensation Act is stated in terms that are wider than the defences of provocation and self-defence: Underwood [78], [86]. In effect, RJA's behaviour, while not giving rise to a defence of provocation or self-defence, may nonetheless provide a reason to adjust the award under s 41 of the Compensation Act.
In the present matter, RJA admitted that he had had a 'misunderstanding' with ST in September 2020. That limited admission concerned an 'accusation' that ST had made against him. Although not contained in his Impact of Injury Statement, I accept that the 'accusation' refers to the alleged sexual assault. That is apparent from the evidence referred to above and the context of RJA's evidence. It is also apparent from RJA's first statement to the police when he said that he did not know why HT had attacked him, but that it may have been 'revenge because of his sister'.
Section 41(a) is stated in very broad terms, referring to 'any behaviour ...' on the part of the victim. RJA's past behaviour including the imposition of a Violence Restraining Order and his admission of a 'misunderstanding' are relevant to whether he could be said to have contributed, directly or indirectly to his injuries. At the same time, HT's sentencing hearing proceeded on the basis that ST's disclosure of the alleged sexual assault contributed to HT deciding to attack RJA.
Given that RJA accepts that there was an incident involving ST, which he characterises as a 'misunderstanding', and which others (including ST's mother and brother) characterise as sexual assault, and the breadth of s 41(a) of the Compensation Act, there is arguably behaviour on the part of RJA which tends to suggest that he has contributed, directly or indirectly to his injuries. That finding is made without finding RJA at fault or impliedly at fault in respect of the allegations.
That however, is not the end of the matter. Attention must turn to s 41(b) of the Compensation Act, being the second limb. In my view, it would not be just to reduce the amount that the court would otherwise have awarded RJA. My reasons for this conclusion are three-fold. First, the evidentiary finding for the first limb rests in part, on conduct limited to an admission of a 'misunderstanding'. That admission is not an admission of guilt. Secondly, I agree with the learned magistrate's sentencing remarks to the effect that HT was wrong to take 'the law into his own hands': BoD, page 68. The law should not be seen to condone unlawful conduct, which might on one view be the effect of a reduction in the award. Thirdly, it could not be said that HT was acting in self-defence or under provocation. The length of time between the alleged sexual offending and the incident on 14 October 2020, which is about a month or more, mitigates against any suggestion of provocation.
In conclusion, I am not satisfied that s 41 of the Compensation Act has any application in the present circumstances.

[245]

Part 6 of the Compensation Act is titled 'Recovering compensation from offenders'. Self-evidently, that part of the Compensation Act is concerned with recovering compensation from offenders.
Ordinarily, the CEO must make an application under that part of the Compensation Act for a compensation reimbursement order, the effect of which, if ordered by an assessor, is to require the offender to make payment of a nominated amount to the State of Western Australia: s 49 and s 50 of the Compensation Act.
In the present matter, the materials before the court did not appear to include the CEO's application under either s 49 or s 50.
The first point to note about the relevant provisions is that s 55 and s 56 govern appeals under the Compensation Act. It is not possible to commence an appeal by reference to s 45 alone.
The second point to note is that s 56(2)(a) to s 56(2)(c) are stated in wide terms. Giving the text in s 56(2)(a) to s 56(2)(c) their plain and natural meaning, this court may exercise any power of an assessor under the Compensation Act, to confirm, vary or reverse an assessed decision, either in whole or in part and make any award that an assessor could make under the Compensation Act.
Thirdly, the powers given to s 56(2) are to be used in relation to an appeal commenced under s 55 of the Compensation Act.
Fourthly, applications to appeal under s 55(1) and s 55(2) are of two types: those commenced by an interested person and those commenced by the CEO or an offender. Both applications involve an appeal 'against an assessor's decision'.
Fifthly, once an appeal against an assessor's decision has been commenced under s 55, s 56 stipulates that the court must decide the 'application' to which the 'decision' relates afresh, 'without being fettered by the assessor's decision'. As Gething DCJ set out in Savic at [94], that includes the matters contained in pt 4 of the Compensation Act. Part 4 commences with s 29 and concludes with s 45. In this court, the matters contained in pt 4 have historically been considered in an appeal under s 55(1). Troy DCJ came to the same view in Harris at [226] as Gething DCJ in Savic.
Sixthly, the statutory scheme provides broad powers of review, which are not expressly fettered in any way.
Seventhly, the present matter involves an appeal under s 55(1).
Given the above circumstances, it is open for this court to consider afresh what orders should be made under s 45(1), if any. Whether this court should exercise the power given to it under s 45(1) turns on whether it would be 'just to do so'. Given the age of RJA and HT and the circumstances that appear to have led to the incident on 14 October 2020, I do not consider that it is in the interests of justice to recover any part of the compensation award from HT or HT's family. Given this, I would bar proceedings under pt 6 of the Compensation Act.

RE RJA [2022] WADC 106 (30 November 2022)

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