S v Neumann

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal Injuries Compensation Act 2003 - Appeal - Extension of time to appeal - Assault - Physical and mental harm - Reduction of compensation for breach of violence restraining order - Turns on own facts

Criminal Injuries Compensation Act 2003

Application to extend time within which to appeal granted

Amicus Curiae : Ms R Young appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Amicus Curiae : State Solicitor for Western Australia

S v Neumann (1995) 14 WAR 452

1 This is an appeal from a decision of an Assessor of Criminal Injuries Compensation awarding the appellant $12,088 by way of compensation for injuries and loss suffered as a result of an assault upon her on 18 August 2004 at Walpole for which the offender was convicted on 9 December 2004. The award comprised the sum of $12,000 by way of compensation for non-pecuniary loss and $88 for the cost of a medical report. No written reasons were provided.

2 The appeal was lodged out of time and accordingly the appellant has also made application for an extension of time. This application was supported by an affidavit sworn on 19 May 2010 in which the appellant deposed to various steps taken by her following the handing down of the award to ascertain the whereabouts of, and obtain a copy of, her statement to police following the assault. She understood that her statement was not before the Assessor when he made the award. This was the reason for the appeal. She was concerned that the award was based on the offender's police statement rather than her account.

3 The principal considerations in determining whether it is just to grant an extension of time are the length of time involved, the reasons for delay, the merits of the proposed appeal and the prejudice that may be suffered by other parties. I ruled that time should be extended on the basis that the appellant had given a reasonable explanation of her reasons for delay (which was not unduly lengthy) and on the basis that there was no prejudice occasioned to any party by the delay.

4 In this case the Assessor made an order as part of the award barring any proceedings against the offender for recovery of the award pursuant to Pt 5 of the Criminal Injuries Compensation Act 2003 ("the Act"). For this reason the offender was removed as a party to the appeal by an order made by his Honour Judge Bowden in Albany on 19 April 2010, although a further order was made at that time (pursuant to s 19(2)(b) and s 56(2)(a) of the Act) requiring a notice to be served on the offender to appear at the hearing of the appeal.

5 I was informed by counsel for the Chief Executive Officer as amicus curiae that a notice was served by post at the offender's last known address but returned "no longer at this address". Electoral roll searches were unsuccessful. I took the view that, notwithstanding the relevance of the offender's evidence in respect of certain matters pertaining to the appeal, it was not in the interests of justice that the hearing should be postponed or that any further attempts be made to locate him.

6 The information before the Assessor was as follows:

(a) the appellant's application form dated 17 April 2010 annexing a statement by the appellant dated the same date giving reasons for the late lodgement of the application;

(b) a letter from the appellant to her former solicitors date stamped 16 May 2007;

(c) a victim impact statement by the appellant (undated, but stated to be made three years after the assault);

(d) copy medical report of Dr Sharon Jackson dated 1 December 2004 to Denmark Police;

(e) copy report of Dr Jackson dated 22 November 2005 annexing clinical practice notes;

(f) copy statement Senior Constable Richard Stephen Mirco (unsigned and undated);

(h) copy of Complaint dated 1 September 2004 pursuant to the Justices Act 1902 against the offender alleging assault, breach of a violence restraining order and unlawful damage and a statement of material facts in respect of each complaint;

(i) copy letter of Dr Jacqui Dodds, senior social worker and counsellor, Great Southern Mental Health Service, to the appellant's former solicitors dated 27 November 2006;

(j) copy letter of Dr Neil Cock, consultant psychiatrist, Great Southern Mental Health Service, to Dr Bill Plozza, Denmark Medical Centre, dated 14 September 2004;

(k) copy letter of Dr Dodds to Dr Plozza dated 26 August 2004; and

(l) Integrated Progress Notes of clinical attendances from 25 August 2004 to 24 November (redacted to delete some entries).

7 For the purposes of the appeal the appellant sought to adduce further evidence in the form of the following documents:

(a) letter "To Whom It May Concern" by Rev Karen Urquhart, parish priest of St George's Anglican Church Denmark, dated 5 July 2009;

(b) report of Ms Ainslie Bayley, clinical psychologist, dated 14 October 2009; and

(c) copy letter "To Whom It May Concern" by the father of the appellant's daughter, dated 11 August 2009.

8 I took the view that these documents should be received on the basis that the appeal is a fresh hearing and the Court is empowered by s 56(1) of the Act to receive further evidence and information.

9 The appellant was invited to give evidence on oath and was questioned by counsel for the Chief Executive Officer and the Court.

10 The appellant was born on 23 February 1960 and from an early age was exposed to domestic violence within the family, including physical and sexual abuse by her father who apparently suffered from mental illness. At school she was a good student but experienced chronic bullying and experienced feelings of despair and worthlessness. At an early age she began drinking alcohol and taking her father's medication. Her social relationships were poor.

11 When she left school she worked in a market garden. Her early sexual relationships were characterised by physical abuse and domination by her partners. She experienced a chronic eating disorder at age 19 for which she was hospitalised for three months at age 21. At that age she was also abducted and raped. Subsequently she commenced using heroin and barbiturates to which she became addicted. She was hospitalised for extended periods for suicidal ideation and self-harm. She was abducted and raped again whilst recovering from an attempted overdose.

12 The psychologist, Ainslie Bayley, to whom the appellant recounted this history, observed:

"A pervasive theme of [the appellant's] experiences of abuse is of not being believed/invalidated upon seeking help, feeling to blame, of submitting and placating her abusers and adopting avoidant coping strategies such as drug and alcohol misuse, minimisation and withdrawal."

13 When she was about 32 she met the father of her daughter who was aged 12 at the date of assault and would now be about 18 years of age. For three years prior to the assault the appellant was running a café in Denmark. She developed a relationship with the offender about 2½ years prior to the assault. The relationship was a difficult one and there were a number of episodes of domestic violence which occurred prior to the assault in question, the most serious being in July 2003 when the appellant was held hostage and assaulted by the offender over a period of two days. She was subsequently committed to a psychiatric ward at Sir Charles Gairdner Hospital for about two weeks. There is reference in the medical reports of the appellant being diagnosed with Bipolar Affective Disorder and Borderline Personality Disorder. The appellant disputed that she was or had been bipolar, but said the offender was.

14 The appellant described her relationship with the offender as being "on and off". There had been an earlier assault for which the police had been called. She had asked that he not be charged because she thought he needed mental health care rather than imprisonment.

15 On 31 May 2004, about seven weeks prior to the assault in question, the appellant obtained a violence restraining order against the offender. He obtained a similar order against her. This followed an incident in which the appellant said that the offender had pushed her onto a fire (which I understand to mean a wood stove) causing her to burn her hands and the backs of her legs. In response she struck him with a broomstick. The violence restraining order against the offender was served on 2 July 2004. At that time the appellant was under treatment at Great Southern Mental Health Services where she was seeing Dr Cock and Dr Dodds.

16 The appellant saw Dr Dodds on 25 August 2004, one week after the assault. She was then seeing Dr Dodds on a weekly basis. Dr Dodds in her report to Dr Plozza dated 26 August 2004 stated that the appellant had been "off the wagon" and attending Alcoholics Anonymous regularly following her "crisis" in July 2003 (which I understand to be a reference to the assault and subsequent hospitalisation for psychiatric treatment at that time) and had been seen on a fortnightly basis until a further recent crisis which had seen her return to drinking and using drugs a few weeks before the date of the report. From that time Dr Dodds saw the appellant weekly as her self-harm risk level had become dangerous. Dr Dodds reported that she had been using behavioural therapy to treat the appellant's borderline personality disorder. She observed in her report:

"[Her] significant successes dealing with all these issues - and her difficult relationship - have been replaced with 'feeling shithouse' since 17 July 2004 and an escalation of substance abuse and violent conflict with her 'ex' partner."

17 Dr Dodds went on to observe that the appellant was not well motivated to address her drug use at that time. Despite being at significant risk of self harm, she had refused to be admitted for treatment at a local hospital. According to the integrated progress notes of the Great Southern Mental Health Service the appellant described the assault on 18 August as including several physical attacks on her from which she defended herself with bites and blows.

18 According to the appellant's evidence the offender telephoned her on the evening of 18 August 2004 requesting that she meet him at the roadhouse at Bow Bridge to resolve the issues between them. Each drove their own vehicle to the roadhouse. There the offender led the appellant to a place in the bush near Walpole which turned out to be a backpacker lodge at which he was staying, but in which there were no other occupants. Alcohol was consumed. The appellant was aware that the offender could become violent, but she said that he seemed "okay". His mood changed for the worse and the appellant tried to leave but could not find her way back to her car. Eventually she agreed with the offender to go to the Walpole Hotel where she said she bought them two beers each. The appellant said that she wanted to catch someone's attention at the hotel, but that the offender had told others there that she was mentally unstable and not to listen to her. Eventually they left the hotel in the offender's car. By this time he was very agitated. She took some tablets which were in the glove box of his car. The appellant then described what happened as follows:

"We were driving along. He said to me 'What did you do?' and I said 'I took your Seroquel'. And he said 'I don't have anything so that I can sleep'. He grabbed me by the back of the head and rammed my face into the console ... then he pulled my head across. All I can remember is having, like, wool in between my teeth. And I was trying to bite him so that he would let me go ... I tried to jump out the car while the car was moving. A lot happened in that time. It was really very violent. And as I was trying to jump out while the car was moving he grabbed me by the hair again and pulled me in and we ran off the road. He got out of the car and that was where most of the violence happened. And he dragged me around quite a bit and kicked me."

19 The appellant said that she suffered bruising to her hips, pelvis, both knees, arms, wrists and hands. She had bruising and grazing about the head but not on her face apart from grazing of her lips and gums. The appellant admitted hitting and biting the offender, including punching him to the face. While she was lying on the road a car stopped and the occupants, whom she thought had come to rescue her, helped the offender pull his car out of a bog. After they left she picked up a white marker pole that was on the side of the road and tried to hit the offender but missed and struck the rear window of his car, smashing it. She said he then "went really crazy again and - it was lots of dragging, kicking, punching on the road".

20 The offender then left in the motor vehicle but returned some time later and drove the appellant back to her vehicle. He then proceeded to smash all the windows of her vehicle. She ran away into the bush and stayed there until he left. She then drove her vehicle until she saw a house with lights on where she stopped and sought help from the elderly couple who lived there. The police were called. She was unable to give a statement because of the drugs she had taken. She was then taken to Denmark Hospital where she was examined.

21 The appellant's physical injuries are detailed in a medical report of Dr Jackson who examined her on 20 August 2004 and found evidence of multiple bruises and abrasions consistent with the assault she described. There was a 2 cm x 3½ cm patch of hair loss on the top of the scalp with roughly cut hair on both sides at the back of her head in two patches which the appellant explained in her evidence as being due to her having to cut her matted hair after the assault. There was swelling, bruising and grazing over the right forehead with scratches on the right cheek and a reddened patch of gum above the front upper teeth. There were also fine scratches on the right side of the neck and coarser grazes on the left-hand side. There was a 6 cm bruise with a small superficial graze over the left hip and a 2 cm bruise over the right hip as well as bruising over the right thigh, right shin and grazes to both knees. There was tenderness over the back of the neck especially at C5 and tenderness to palpitation over the scalp near her right ear, at T7, the lateral right chest wall, adjacent to the right scapula and the right deltoid.

22 In Dr Jackson's opinion the appellant's injuries were expected to heal without consequence. The appellant said that although she continued to attend for medical treatment in relation to her psychiatric issues, she did not have any treatment in relation to her physical injuries, except for one session of physiotherapy. Nevertheless she complained that her injuries took some time to resolve. She said that her knees were symptomatic for some years with swelling and discolouration, affecting her ability to walk. Her wrists were painful for some months. Even so, she did not lose any time from work at her café. After the assault, however, her staff left and she eventually made a decision in 2005 to close her business.

23 In a report dated 22 November 2005 Dr Jackson stated that she saw the appellant again on 20 October 2005 when she reported shoulder and elbow pain which had persisted since the assault. She had shooting pain in her right leg due to a pre-existing low back injury. Since the assault she had been very afraid, had experienced panic attacks and had had difficulty sleeping.

24 The appellant's evidence, however, did not indicate that she now has any ongoing residual symptoms or disabilities by virtue of her physical injuries.

25 Dealing with the psychological aspects, I note, first of all, that the appellant has a long history of treatment for psychiatric disorders and that she was a patient of the Great Southern Mental Health Service for some time prior to the assault in question. Indeed, her psychological wellbeing had deteriorated over a period of weeks prior to the assault during which her alcohol consumption and drug use increased. Whilst she has continued to suffer from mental health problems, her life generally has improved.

26 The appellant gave evidence that prior to the assault she was functioning well and that her relationship with her daughter was good. This was not an accurate statement, but it may describe, perhaps, her life prior to the commencement of what appears to have been a very destructive relationship with the offender over a period of 2½ years. I cannot accept, having regard to the medical and other expert evidence that the appellant was functioning well. It may be that for some months in the first half of 2004 the appellant was able to reduce her alcohol and drug use, but she had certainly relapsed significantly in the weeks prior to the assaults.

27 In my view the appellant showed significant insight when she indicated in her final remarks that although the effects of the assault were devastating, her life had since changed for the better. She did not work for about three years after the assault but has subsequently obtained regular and meaningful employment in a drug rehabilitation organisation.

28 According to Dr Dodds' report of 27 November 2006 the assault caused sleeping difficulties, increased anxiety and significant distress over several months. Dr Cock's report of his review of the appellant on 14 September 2004, almost a month after the assault, states that the appellant's life had taken a dramatic turn due to conflict between herself and her ex-partner and a return to alcohol and drug use. It was not surprising that the appellant was feeling unhappy and anxious.

29 The appellant was taking sodium valproate, Venlafaxine, Propranolol and Oxazepam for mood swings, depression, hypertension and insomnia/alcohol withdrawal respectively. Dr Cocks commented that while it may be worthwhile attempting to optimise her antidepressant and mood stabilisation medication he did not consider that medications had much to offer. He thought that the appellant needed to sort out her difficult social circumstances and suggested that she sell her café and leave Denmark.

30 Ms Bayley's opinion as to the effects of the assault was that the appellant experienced a clinical level of distress precipitated by that incident but that her functioning could not be explained solely on that basis as she had pre-existing mental health substance abuse and personality disorders. She described long-standing and severe mental health problems to which the appellant was predisposed by extreme experiences of trauma and abuse. In her closing remarks the appellant accepted that it would be impossible to separate the contributing causes to the problems she had experienced after the assault.

31 In my opinion the following issues arise for determination:

1. What injury was suffered as a result of the assault?
2. What loss, if any, has been suffered by reason of the injury as defined by s 6 of the Act?
3. What compensation should be assessed for the injury and any such loss?
4. For the purposes of s 41 of the Act is there any behaviour, condition, attitude, or disposition of the appellant that contributed directly or indirectly to her injury?

32 I am satisfied that the appellant did suffer the injuries described in the report of Dr Jackson dated 1 December 2004. These were principally bruises and abrasions to various parts of her body consistent with a series of blows by the offender in the course of a prolonged assault that occurred on the night of 18 - 19 August 2004 after the appellant and the offender left the Walpole Hotel.

33 For present purposes it is reasonable to treat all of the injuries as having been suffered as a result of the assault for which the offender was convicted and for which the appellant is entitled to compensation. I accept that although the appellant was under the influence of drugs and alcohol at the time of the assault, the blows and hair pulling which she suffered would have been painful and frightening. Sadly, the appellant was no stranger to violence of this kind. On a number of occasions previously she had suffered assault causing injury at the hands of the offender over an extended period of time. It is not open in this appeal to compensate the appellant for those injuries. My findings as to injury are necessarily confined to the assault for which the offender was convicted.

34 I find, on the basis of the medical evidence, that the injuries with which the appellant presented following the assault were not serious and likely to resolve without residual disability. The appellant, however, has described in her evidence (which I accept) prolonged symptoms in her knees which took some years to resolve but of which there is no medical evidence and ongoing symptoms in her wrists for some months after the assault.

35 Section 3 of the Act defines "injury" to include mental and nervous shock. Such shock must be more than a mere emotional reaction in order to constitute an injury: S v Neumann (1995) 14 WAR 452 at 461. The evidence of the appellant and the medical and other expert reports on which she relies prove to my satisfaction that the assault, in addition to causing bodily injury, caused mental harm amounting to injury in that it exacerbated the appellant's pre-existing emotional, psychological and psychiatric symptoms for which she was under treatment at the time of the assault by causing her to become more fearful to the point of suffering panic attacks and disturbed sleep over a period of months following the assault.

36 Having due regard, however, to the letter of Dr Dodds to Dr Plozza dated 26 August 2004, the letter from Dr Cock to Dr Plozza dated 14 September 2004 and the report of Dr Jackson to the appellant's former solicitors dated 22 November 2005 I am unable to find that the exacerbation of the appellant's pre-existing mental disorders by reason of the assault substantially altered the course of those conditions as it is clear from the evidence that they had their origins in a long and complicated history of physical and emotional abuse leading to a profound loss of self-worth which eventually manifested itself in chronic substance abuse, clinical depression, and Borderline Personality Disorder.

37 Although, as I have observed, the appellant was taking significant steps towards better management of these problems in the first half of 2004, by July that year, within a few weeks of the assault in question, she had relapsed to the point where she was at grave risk of self-harm and had returned to serious drug and alcohol abuse. It is clear from the evidence, including the statement of Rev Urquhart, that she remained quite unwell for some time. While she still attends for counselling she has recovered to the point that she now enjoys a much improved quality of life and to her great credit is able to participate in a range of community service activities, study, and work gainfully. She avoids alcohol and drugs and has a healthy relationship with her daughter.

38 In my opinion compensation for bodily injury on the basis of my findings should be assessed in the sum of $15,000.

39 To the extent that the assault also caused mental and nervous shock in the form of an exacerbation of the appellant's pre-existing psychological and psychiatric disorders I would assess compensation for pain and suffering in the amount of $15,000.

40 In total, therefore, I would assess compensation for the assault in the amount of $30,000 to which I would add the sum of $88 previously allowed in respect of the cost of Dr Jackson's second report and $660 being the cost of the report of Ms Ainslie Bayley dated 2 November 2009.

41 Whilst Ms Bayley's report recommends psychiatric review and psychotherapy as part of the ongoing treatment of the appellant's problems, I do not consider that the appellant has any needs for treatment that are not attributable to her pre-existing condition. Her ongoing needs may not reasonably be attributed to the assault. Accordingly, no allowance is made pursuant to s 6(2)(b) of the Act.

42 In relation to loss of earnings, for which compensation may be awarded under the Act by reference to s 6(2)(c), the appellant conceded that she would not be able to prove any loss by reason of the winding up of her café business. Indeed, no evidence or information was put before me to indicate how much the appellant was capable of earning prior to the assault and how much she had in fact earned since. No basis was advanced for an award of compensation for loss of earnings.

43 Even if some measure of loss were established on the evidence, I would not be able to find that the appellant ceased business or was unemployed by reason of the effects of the injuries suffered in the assault. What happened to the business cannot be explained in terms of incapacity caused by injury. I am not satisfied that after the assault the appellant was incapacitated to any greater extent than she was by reason of her pre-existing psychiatric and substance abuse problems.

44 Section 41 requires that in deciding to make any award of compensation the assessor must have regard inter alia to any "behaviour" of the victim that contributed directly or indirectly to the victim's injury, and may, if it is just to do so, refuse to make an award because of that contribution, or reduce the award that the assessor would otherwise have made.

45 I find in relation to the question of contribution that some account should be taken of the appellant's actions in meeting with the offender in breach of the violence restraining order that had been imposed for the very purpose of preventing a violent physical altercation between them.

46 Although the appellant does not appear to have been charged with breaching the order, I consider that some account should be taken of her conduct. Not to do so would risk bringing the administration of justice into disrepute. The appellant knew of the offender's propensity to violence towards her. She knew that he suffered Bipolar Affective Disorder which made him susceptible to sudden mood changes.

47 Despite having the protection of a violence restraining order and in flagrant disregard of the order to which she was subject she agreed to meet the offender in an isolated place and to go with him to other places where, if a physical altercation arose, she would be unable to obtain protection or assistance.

48 In my view by her breach of the violence restraining order imposed on her and her acquiescence to the offender's breach of the order imposed on him the appellant contributed to her injuries in a manner that, in my opinion, should be reflected in a reduction of her compensation by one-third.

49 In the result, therefore, I would allow the appeal and assess compensation as follows:

50 The orders will be that the time within which to appeal be extended to 16 September 2009, the appeal be allowed, the compensation award of the Assessor dated 9 July 2009 be set aside, and the appellant be awarded $20,500. There will be no order as to costs.