SAVIC -v- DURIC [2021] WADC 53 (4 June 2021)

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Appeal - Whether appellant was afforded procedural fairness - Whether amount of compensation excessive - Whether the award of compensation should be reduced on account of the victim's behaviour - Whether the District Court has the power on appeal to vary an order made by an assessor under Criminal Injuries Compensation Act 2003 (WA) s 45(1)(b)

Criminal Injuries Compensation Act 2003 (WA), s 41, s 45

Ms A Westerside on behalf of the Chief Executive Officer of the Department of Justice

AA v ARW [2020] WADC 131

August v Lynch [2019] WADC 78

B v B [2004] WASC 6

B v W (1989) 6 SR (WA) 79

Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408

Bennett v The State of Western Australia [2012] WASCA 70

Bodney v The Assessor of Criminal Injuries Compensation [2000] WADC 214

Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613

Bothma v Hildebrand [2019] WADC 92

Cahill v Smith [2015] WADC 148

CME [2018] WADC 69

Curnow v Garnant [2012] WADC 72

Curran v Champion [2012] WADC 9

Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673

G & N v R [2006] WADC 208; (2006) 48 SR (WA) 301

Garton v McCormack (2002) 30 SR (WA) 307

Gullelo v Halloran [2008] WADC 145

Guy v Hampson [2019] WADC 19

Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) 5

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Houlahan v Pitchen [2009] WASCA 104

Lyle v Soc [2009] WASCA 3

M R & R C Smith Pty Ltd t/as Ultratune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110

M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Martin v Martin [2015] WADC 138

Mickelberg v The Director of the Perth Mint [1985] WASC 175; [1986] WAR 365

Milburn-Thomas v Palmer [2020] WADC 158

Nagel v Tahere [2020] WADC 110

Nurovic v Nurovic [2019] WADC 28

Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118

Pym v Richardson [2018] WADC 156

Rayney v AW [2009] WASCA 203

Re Goodwin [2020] WADC 128

Re Karra (1984) 2 SR (WA) 97

Re Richardson [2009] WADC 93

Re Warrek [2019] WADC 50

RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)

Robinson [2017] WADC 18

S v Neumann (1995) 14 WAR 452

Shepherd v Shepherd [2010] WADC 30; (2010) 71 SR (WA) 143

T v Curnuck [2004] WASC 139 [27]

Taylor v Paindelli [2016] WADC 160

Tidmarsh v The Assessor for Criminal Injuries Compensation [2011] WADC 173

Townend v McAlindon [2017] WADC 63

Underwood v Underwood [2018] WADC 13

Winiarczyk v Tsirigotis [2011] WASCA 97

1. On 20 March 2020 the appellant, Mr Savic, was convicted following trial of an assault occasioning bodily harm to the respondent, Mr Duric[1] arising out of an incident on Christmas Day 2018 (Assault). Mr Duric sought and was awarded criminal injuries compensation in the amount of $24,973.35. Mr Savic appealed this decision. In essence, he asserts that he was not provided sufficient opportunity to respond to the application, that the compensation should have been reduced on account of Mr Duric's threatening behaviour and that the award was excessive given the activities which Mr Duric reported on social media following the incident.
2. For the reasons which follow, I decline to reduce the amount of compensation on account of any behaviour of Mr Duric, but, in assessing the application afresh, reduce the amount of compensation to $16,657.50,

1. The circumstances of the Assault are as set out in the police statement of material facts in following terms:[2]

The victim and suspect were friends for approximately two years and the suspect has been friends with the victim's wife for over 18 years.

On Tuesday the 25th of [December] at approximately 5:00pm, the victim and suspect were at the YOKINE reserve with other friends and family enjoying a game of soccer as well as Picnic/BBQ for Christmas. A minor argument between the victim and suspect ensued whereby the victim accused the suspect and his son, Marko SAVIC for rough play during the soccer game.

The suspect berated the victim, calling him names like 'Pussy' and would not stop verbally abusing the victim. The victim chose to ignore the abuse coming from the suspect and went to socialise with others at the picnic. The suspect was still angry about the minor argument but became more enraged when Marko approached the suspect and informed him that the victim had threatened to break his legs.

The suspect confronted the victim and the victim denied making this statement.

Without warning, the suspect punched the victim twice, causing the victim to sustain swelling to the left eye and temporarily lose consciousness.

The suspect then left with his family and others in attendance did the same

1. By prosecution notice dated 29 January 2019, Mr Savic was charged with an assault occasioning bodily harm in relation to the Assault. He pleaded not guilty and the matter went to trial. On 20 March 2020 he was found guilty of the offence charged and was fined $1,800. He was not ordered to pay any compensation to Mr Duric.
2. Given that Mr Savic asserts that the compensation should have been reduced on account of Mr Duric's threatening behaviour, it is necessary to consider in some detail the factual findings made by the Magistrate following trial. This is because in determining a criminal injuries compensation appeal based on a proven conviction, neither the claimant nor the offender is able to re-litigate the facts which led to the proven offence. This in turn limits the scope for the parties to an appeal to introduce further evidence and other material in the appeal.[3]
3. I was not able to obtain a copy of the transcript of hearing on 20 March 2020 in time for the hearing of the appeal on 10 May 2021. I advised those present at the hearing that once I received a copy of the transcript, I would arrange for a copy to be provided to them, and allow them an opportunity to make written submissions. This is what occurred. The solicitors for the Chief Executive Officer of the Department of Justice (CEO) provided submissions. Mr Savic did not.
4. The transcript of the hearing on 20 March 2020 reveals that the Magistrate heard evidence for the prosecution from Mr Duric, his wife Mileva, Nenad Grbic (Mileva's brother-in-law), Saro Garic (described as being good friends with all parties), the police officer who conducted a record of interview with Mr Savic and Dr Conrad Ng. In defence, Mr Savic gave evidence, and called his wife, Milijana Savic, and son Marko Savic. The Magistrate made detailed findings as to the honesty, accuracy and reliability of the evidence of each witness which I do not need to consider for present purposes. Rather, it is sufficient for me to quote the central factual findings, which were as follows:[4]

On 25 December 2018 ... members of the Yugoslav community attended their annual barbecue and soccer match at the Yokine Reserve in Menora. That afternoon, the accused assaulted Mirko Duric, the victim, and did him bodily harm. The accused accepts that he struck Mirko twice. There is an issue on the facts as to the nature of those strikes. The second issue for determination is whether the assault was unlawful. The defence raises both self-defence and provocation ...

...

I find that the first strike was a punch as described by the victim. In relation to the second blow, given the uncertainty between the prosecution witnesses, I'm unable to find that it was a punch or that there was a kick when the victim was on the ground. In this instance, the guiding evidence is that of the accused, that he kicked the victim as he was coming out of the chair. Again, the evidence of the accused in this respect is just not credible. He had the opportunity to move away from the victim and he did not do so.

Having been punched by the accused, one would have thought that the victim would have made some attempt to get up. The only evidence at best places the victim halfway out of the chair at a 45-degree angle. I do not accept that that presented as a threat to the accused or that he was being charged at. That is inherently not credible evidence. At that point in time, there was no objective threat to him and I find that he was not acting in self-defence.

In relation to the injury to the victim's back, I find that that was sustained when the victim fell to the ground. Accordingly, I'm satisfied that the accused punched the victim from his right side. I find that the accused, then as he described, delivered a kick which landed on the victim's face. I go back to the evidence of Dr Ng which was not able to choose between a punch or a kick as being the result of that blow. That constitutes bodily harm to the victim's face.

I find that the accused was not provoked by either action. I find that the victim did not make any threat to specifically break Marko's legs. I find that that was misheard. The victim did not make any threat. Therefore, provocation has not been established on the balance of probabilities and it has been negatived by the prosecution beyond reasonable doubt.

As I've indicated, the accused was not acting in self-defence. The victim was seated in both instances and did not present any objective threat to the accused who could have walked away. I am satisfied that the prosecution have proven the elements of the offence beyond reasonable doubt and that they have negatived the defences beyond reasonable doubt. Accordingly, the accused is convicted of the offence.

1. By application dated 8 September 2020, Mr Duric applied for criminal injuries compensation in respect of the Assault (Application).[5] He claimed compensation for:

1. Mr Duric also sought an interim payment for treatment expenses.
2. Mr Duric submitted his police statement, a victim statement, various reports and various receipts with the Application, which I will refer to in more detail later in these reasons.
3. By letter dated 11 November 2020 staff of the Assessor of Criminal Injuries Compensation (ACIC) notified Mr Savic that Mr Duric had made an application for criminal injuries compensation and invited him to provide the ACIC with any matters he wished to be taken into account in determining the application. He was given 21 days to respond.[6]
4. The same day, Mr Duric was advised that his application for an interim payment for treatment and medical reports had been approved in the amount of $2,243.50.[7]
5. On 7 December 2020 Mr Savic sent an email to the ACIC requesting an extension of time within which to make a written submission outlining the circumstances of the Assault and his personal circumstances.[8] He sent a further email on 8 December 2020 setting out some additional information, in the following terms:[9]

The incident occurred on Christmas Day at an annual community celebration in a local park. Each year, we play a friendly game of soccer adults vs. teenagers. This tradition has gone on for 20 years. Two of the women in this community had been recently married and brought their husbands along for the first time. The claimant Mirko Duric escalated the friendly soccer match when he threatened to break my son's legs during the match. When approached about it, he confirmed that he did in fact threaten my son. I felt threatened by his behaviour and scared for the wellbeing of my son. I acted in a way to protect my son from danger.

I have a witness that can attest to this. I will list his details below: Radoslav [Zivkovic] ...

Mirko was not greatly affected by this event, as he returned to work less than a week later. He uploaded a photo onto his Instagram showing off his working holiday on January 1st following that Christmas day. He has an entire gallery of photos in the gym posted on his Instagram in the two years since the event has occurred. This can be seen at the Instagram handle: ...

1. By order made on 7 December 2020, a CIC assessor (Assessor) assessed compensation at $24,973.35, comprising (Decision):[10]

The Assessor limited the amount the State may require Mr Savic to pay to $20,000 pursuant to CICA s 45(1)(b).

1. It is not apparent from the materials before me whether the Assessor was aware of Mr Savic's email of 7 December 2021; I assume not, but nothing turns on this.
2. The Assessor did not publish written reasons for the Decision.

1. By Appeal Notice filed 24 December 2020 Mr Savic appealed from the Decision (Appeal). The Appeal Notice was filed within the required 21 day time limit.[11]
2. On 8 January 2021 the CEO entered an appearance as amicus curiae.
3. On 8 March 2021 Mr Savic applied for an order exempting him from serving a copy of the Appeal Notice on Mr Duric. In an affidavit filed the same day, Mr Savic deposed that he had made every attempt to serve the Appeal Notice on Mr Duric but had not been able to find a current postal address. At a hearing on 9 March 2021 a registrar ordered the CEO to serve the appeal papers on Mr Duric by ordinary prepaid post. On 15 March 2021 the CEO filed a service certificate to inform the court that this had occurred. Mr Duric has not filed any Notice of Respondent's Intention. I am satisfied that Mr Duric has been given sufficient notice of the appeal, and that it is appropriate for the appeal to proceed in his absence.
4. The CEO filed comprehensive written submissions on 5 May 2021. I have also been provided with a Matter Book by the ACIC.
5. In hearing the Appeal, the court 'must decide the application to which the Decision relates afresh, without being fettered by the Assessor's decision'.[12] The appeal is a hearing de novo.[13] I am to treat the Application as if it came before the court for the first time, save that Mr Savic, as the appellant, has the right as well as the obligation to open the appeal.[14] Mr Savic does not have to demonstrate an error on the part of the Assessor in order to succeed.[15]
6. The court must determine the Appeal 'solely on the evidence and information that was in the possession of the Assessor or may receive further evidence and information'.[16] Mr Savic seeks to rely on further information, being:

(a) his email of 7 December 2020 (quoted at [13]);

(b) an image extracted from Mr Duric's Facebook page, annexed to Mr Savic's application dated 8 March 2021;

(c) a statutory declaration of Radoslav Zivkovic, deposed 4 March 2012, annexed to Mr Savic's application dated 8 March 2021; and

(d) an incident statement of Djordje Jovanovic, dated 4 March 2021, annexed to Mr Savic's application dated 8 March 2021.

1. There is no need for an application as the power to receive the Further Evidence is in CICA s 56(1).[17] Nor is no requirement for the Further Evidence to be 'fresh' or new (in the sense of not being reasonably available at the time the Decision was made), as CICA s 56(1) refers to 'further' evidence. As the appeal is a fresh hearing, further evidence should be admitted unless there is some reason why it would be unjust to do so, especially given the informal nature of a hearing before an assessor.[18]
2. Given the dates, it is evident that Mr Savic's submission of 8 December 2020 was not taken into account by the Assessor. This is a factor in favour of a grant of leave to adduce further evidence. There being no reason why it would be unjust to do so, it is appropriate that the court receive the Further Evidence.
3. As I have noted, Mr Duric did not file a Notice of Respondent's Intention. He did, however, provide a written statement responding to the allegations in the Appeal Notice. At the mention on 27 April 2012 the registrar refused to accept this document being handed up from the bar table by counsel for the CEO. The document was not subsequently filed (which would have required it to have been at least annexed to an affidavit), although a copy has been provided to me.
4. I am not going to take Mr Duric's statement into account in the Appeal. This is because it is not appropriate for the court to receive a statement from a respondent who has not filed a Notice of Respondent's Intention. Either the respondent elects not to file a Notice of Respondent's Intention and abide by the decision of the court or the respondent elects to participate in the appeal by filing a Notice of Respondent's Intention, in which case he or she can seek to adduce further evidence. The District Court Rules 2005 (WA) do not contemplate the hybrid situation of a respondent not filing a Notice of Respondent's Intention, but nevertheless seeking to put further material before the court.
5. It is open to the court to confirm, vary or reverse the Decision, either in whole or in part.[19] As the Appeal is a fresh hearing, it is necessary for me to determine all matters relating to the Application. So it is open to the court to increase or decrease the award of compensation even if no cross-appeal is filed.[20]

1. Defendant not provided adequate opportunity to provide personal circumstances and details about the victim's behaviour that contributed to the incident. Delay in mail due to Covid-19 meant that the letter asking for such details came outside of the allocated time frame to respond. An application for extension was lodged prior to a decision being made but was not accepted.

1. Mirko's threatening behaviour strongly contributing to the incident should be considered. Eyewitnesses can attest to the fact that Mirko threatened to break Daroslav's son's legs. 2. Proof of Mirko's social media activity detailing that he went on a working holiday 6 days after the incident.
2. It is not necessary to decide the first ground of appeal for the purposes of determining the Appeal. This is because the Appeal is in the nature of a fresh hearing as I have described. Whether or not Mr Savic was provided with procedural fairness before the Assessor is not a relevant matter for the purposes of determining the Appeal. This is because it is not necessary for Mr Savic to show (among other potential errors) that the Assessor failed to provide him with procedural fairness in order found the District Court's jurisdiction to determine the Application afresh. That fact that Mr Savic did not have an opportunity to make a submission to the Assessor is, as I have said, something relevant to whether he should be permitted to rely on further evidence in the Appeal. Taking this into account, I have already determined that he may do so.
3. The Application was made pursuant to CICA s 12, which provides that a 'person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered'. It is not in issue that the Assault is a proven offence for the purposes of CICA s 12.
4. Given the nature of an appeal of this kind and the matters identified by Mr Savic, the following issues arise for determination in the Appeal:
   • Has Mr Duric proven that he suffered injuries as a consequence of the commission of the Assault?
   • If so, what award of compensation is appropriate?
   • Should any award of compensation be reduced due to Mr Duric's behaviour pursuant to CICA s 41?
   • Does the court have the power on appeal to vary an order made under CICA s 45(1)(b)?
   • What final orders are appropriate?

Has Mr Duric proven that he suffered injuries as a consequence of the commission of the Assault?

1. 'An assessor must not make a compensation award in respect of a compensation application ... unless satisfied ... that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence'.[21] 'Satisfied' means 'satisfied on the balance of probabilities'.[22]
2. The words 'as a consequence of' require a causal relationship or connection.[23] Whether that causal relationship exists is 'essentially a question of fact, to be resolved as a matter of common sense'.[24] It is sufficient that, as a matter of ordinary common sense and experience, the Assault should be regarded as having 'materially contributed' to the harm, in the sense that the contribution was not negligible.[25]
3. The medical material filed by Mr Duric with the Application refers to both physical and psychological injuries.
4. In his witness statement, Mr Duric says that he sustained a bruised eye and severe pain to his jaw which caused him to have difficulty in eating solid food.[26]
5. On 27 December 2018, Mr Duric saw his general practitioner, who referred him to accident and emergency at Midland Hospital.[27] Instead, on the afternoon of 27 December 2018, Mr Duric went to Royal Perth Hospital, presenting with jaw pain. On examination he was found to have 'a haematoma to the left orbital area and pain over the right temporomandibular joint', as well as pain in the 'right paraspinal muscle of the cervical and lumbar spine'. An X-ray of the mandible showed no fracture. He was advised to take regular ibuprofen and paracetamol, and to seek further medical attention if symptoms changed.[28]
6. On 4 January 2019, Mr Duric again saw a general practitioner, Dr Singh, and was referred to a psychologist. The referral letter states:[29]

Thank you for seeing Mirko, 31 yrs, for psychological therapy following an alleged assault on 25/12/18. He is now left feeling shaken and unsure of himself. Replaying the events and ruminating on what happened. Also feeling upset and angry.

1. Dr Singh also referred Mr Duric for a CT scan, which was done on 4 January 2018. The CT scan showed no gross abnormalities, fractures or misalignments, as well as no accelerated degenerative changes.[30]
2. On 18 February 2019 Mr Duric presented to the Hedland Health Campus, complaining of low back pain. He advised the doctor he saw that he had been on 'oral prednisolone' for the past 2 months (prednisolone being an anti-inflammatory).[31]
3. Between April and July 2020 Mr Duric attended four sessions with Caroline Rodgers of Hedland Psychologists. Ms Rodgers prepared a report dated 14 July 2020.[32] Ms Rodgers reports Mr Duric describing his psychological symptoms following the Incident in the following terms:

Upon recollection of the incident, Mirko recalled symptoms of shaking, trembling, agitation, depressed mood, poor concentration, reduced confidence, occasional vomiting, impaired decision making reduced appetite and mood deregulation. Additionally, poor sleep, nightmares and flashbacks were common. Behaviourally, there has also been social withdrawal and feelings of mistrust towards other people.

1. Ms Roders diagnosed Mr Duric as having symptoms consistent with Post Traumatic Stress Disorder (PTSD), setting out the basis for her diagnosis. As to Mr Duric's prognosis, she opined:[33]

It is anticipated that Mirko's severity of symptoms will decline over time with a potential minimal residual of emotional negativity towards the event.

I would recommend Mirko receive further psychological treatments for a minimum of six sessions on a fortnightly basis, followed by three sessions on a monthly basis for a period of 3 months. Whereby a review of symptomologies and severities are ascertained.

1. In his victim statement provided with the Application, Mr Duric outlines the psychological impact of the offending in three stages:

Distress and fear suffered during the assault.

I was confused and disorientated initially as I become more alert from loss of [consciousness]. I have never experienced loss [consciousness] before and was in a state of anxiety and panic immediately when I regain [consciousness]. I recall shaking, trembling when I became aware of my body.

Distress, trauma and fear suffered in the first 2 months and after the assault.

I began to experience regular anxiety and panic attacks. Loss of appetite and fearful of people. My sleep was affected, I had reoccurring nightmares and broken sleep. This occurred most nights of the week, leaving me feeling fatigued and exhausted often. Concentration on activities or any task was difficult as I was often lost in though and emotions. I would often think about the assault and the events leading up to it, trying to understand how and why it happened. I would experience a wide range of intense feelings such as rage, anger, fear, worthlessness, hating myself and humiliation. I gradually started losing my appetite for living. I began to withdraw and isolate from people. The joy and happiness that I once found in activities such as fishing, gym, soccer and socializing were absent. I gradually started to progress into depression and anxiety. My decisions making became poor leading me to request time off, from work. This had a financial impact on my household, adding more fear to my very stressed mind. All the above put a strain on my family life and ability to function.

Distress, trauma and fear since then

I still have nightmares and prefer to isolate myself from people. I have flashbacks often occur when watching movies with violence, inciting feelings of anger. I become hypervigilant when people approach me from the back. I have an indiscriminate feeling towards people of Bosnian Heritage. I am feeling socially isolated with the absence of my wider family.

He also describes the impact of the offending on his marriage, recreational activities and social life. Significantly, as a result of the Assault, Mr Duric and his wife moved from Perth to Port Hedland, causing a significant disruption to his family life.

1. I am satisfied that as a consequence of the Assault Mr Duric sustained a bruised eye, severe pain to his jaw and pain to his lower back.
2. I am also satisfied that Mr Duric has since the Assault suffered from PTSD and that his PTSD was as a consequence of the Assault.
3. The next issue which arises is whether PTSD is an 'injury' for the purposes of the CICA. The term 'injury' in CICA s 12, s 16 and s 30 includes 'mental and nervous shock'.[34] This phrase contemplates the impact of the offence on the mind or nervous system.[35] It refers to 'mental or emotional harm as opposed to physical injury or bodily harm'.[36] It must be of an enduring character so as to amount to an injury, as opposed to a mere emotional reaction.[37] For example, mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress and disgust are seen as compensable.[38]
4. The PTSD suffered by Mr Duric, as described above, falls within the definition of 'mental and nervous shock' in CICA s 3, and thus the definition of 'injury' in the CICA.

1. As to quantum, the general power of an assessor is contained in CICA s 30. It provides that 'on application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered'.[39]
2. The correct approach to adopt in assessing the amount of compensation under the CICA is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the CICA, and to the jurisdictional limit of the CICA.[40]
3. The jurisdictional limit is $75,000.[41] This maximum is a jurisdictional limit and is not reserved for the worst cases.[42]
4. The amount awarded is to be assessed solely on the basis of the injury suffered by the applicant. The amount is not to be fixed as punishment for the offender or as an expression of sympathy for the applicant as victim.[43]
5. Dealing first with general damages, these are ordinarily awarded to compensate for pain and suffering and other non-pecuniary loss.[44] According to ordinary tortious principles, the amount of general damages must be fair and reasonable compensation for the injuries received by the claimant and the disabilities caused, having regard to current general ideas of fairness and moderation.[45] The amount must be proportionate to the situation of the particular claimant.[46] In assessing mental and nervous shock, the court must attempt to make a distinction between direct 'impact damage' and further damage that may be suffered by such things as the reaction of the victim's family and friends, court proceedings or public attention.[47]
6. In assessing the appropriate amount of compensation, a broad and subjective assessment must be undertaken with consideration of what the community would regard as reasonable compensation.[48]
7. Applying these principles, in my view, an appropriate award of compensation for pain and suffering and other non-pecuniary loss is $7,500.
8. An award in this amount is broadly comparable to that assessed in four recent appeals under the CICA to this court. It is permissible to look at awards of criminal injuries compensation in other appeals.[49] However, due regard must be given to the unique circumstances of each case.
9. The first is the decision in Underwood. In that case, the appellant was convicted of aggravated assault occasioning bodily harm for slapping the respondent across the face with an open palm and kicking her in the leg. The respondent received bruising and swelling to her face and bruising to her left leg. The respondent suffered PTSD as a consequence of the commission of the assault for which she received treatment which addressed the symptoms, there being no evidence of ongoing symptoms. Looking at the matter afresh, I assessed non-economic loss at $5,000.[50]
10. The second is the decision in August v Lynch.[51] In that case, the appellant was convicted of assault occasion bodily harm for hitting the respondent in the head with a beer bottle and biting her in the middle of her back. The respondent sustained two main physical injuries, the first being a blunt force injury to the back of her head leaving bruising, and the second being the bite to her back which caused bleeding. The respondent also described ongoing stress, distress and anxiety which she experienced as a result of the assault. I agreed with the Assessor that the appropriate award for non-economic loss was $4,000.[52]
11. The third is the decision of Bothma.[53] In that case, the appellant was convicted of common assault for punching the respondent numerous times to the face. The respondent sustained four main physical injuries, the first being lacerations and bruising to the face, the second being bruising to the rib cage, the third being soft tissue injuries to the neck, arm, right wrist and back and the fourth being back and ongoing headaches. The respondent also described high levels of fatigue and continued distress which he experienced as a result of the assault. Looking at the matter afresh, I assessed non-economic loss at $5,000.
12. The fourth is the decision in Re Goodwin.[54] In that case, the appellant had been placed in the Christmas Island Detention Centre. He alleged that while he was walking near the dining area he was struck to the right side of his face with such force that caused him to slip over onto the floor where he was struck again in the head. The appellant sustained a number of injuries from the assault including lacerations to his forehead and nose, bruising to his right temple, swelling on the left side of his jaw, two broken teeth, neck tenderness and dizziness. The appellant also described residual disabilities including depression, damage to the left third molar and broken right upper lateral incisor and ongoing dizziness. Looking at the matter afresh, Levy DCJ assessed non-economic loss at $8,500, this being an increase of the initial assessment of $7,500.
13. As to Mr Duric's claim for treatment expenses, the 'loss' which he may claim includes 'expenses actually and reasonably incurred by or on behalf of the victim ... that arise directly from ... the injury suffered by the victim'.[55]
14. Mr Duric provided the following receipts for medical (referring only to out-of-pocket amounts):[56]

1. Turning then to the medical reports, the 'loss' which Mr Duric may claim also includes 'expenses actually and reasonably incurred by or on behalf of the victim ... that arise in obtaining any report from a health professional or a counsellor in relation to ... the injury suffered by the victim'.[57] The medical report fees claimed fall within this description, and should be allowed, being:[58]

1. As to Mr Duric's claim for future treatment expenses, he may claim 'expenses that are likely to be reasonably incurred by or on behalf of [him] for treatment that [he] is likely to need as a direct consequence of the injury suffered by' him.[59]
2. As I have noted ([41]), Ms Rodgers recommends up to 9 sessions. The usual fee is $254 per hour, though the evidence is that the most recent out of pocket expense to Mr Duric has been $107.55. This gives a total of $967.95. Like the Assessor, I agree that this amount should be subject to CICA s 48, that is, not to be paid unless 'an assessor is satisfied that the expenses have been reasonably incurred by or on behalf of the victim for treatment that the victim required as a direct consequence of the injury suffered by the victim in consequence of the commission of the offence to which the award relates'.[60]
3. As to Mr Duric's claim for economic loss, Mr Duric may claim 'loss of earnings suffered by the [him] as a direct consequence of the injury suffered by' him.[61]
4. In his witness statement, Mr Duric says that the Assault caused him much stress and he was unable to work for two days afterwards.[62] In the victim statement he provided with the Application he spoke of the impact which the Assault had on his relationships in the Serbian community in Perth, in particular the friendships which he and his wife have lost. He concludes:[63]

In the end, the impact on myself, my family and my social circles was so overwhelming, My family and I became social outcast, avoided by certain members of my community, That I had once considered dear friends. In January 2020, I decided to pack up my family and leave Perth to start a new life 17 hours' drive, north of Perth. I am currently building a new life from scratch in town called Port Hedland. This has been the outcome of that assault. I had to leave everything that I had once considered home and loved, because my life had become so miserable and dark.

...

I requested a transfer to Port Hedland from Perth. RSS was gracious enough to organize this for me. My wife resigned from the job she loved and that she had been with 2002. Had made many good friends there. This was a very difficult and emotional decision.

1. Mr Duric provided a letter from his employer. The relevant portions are as follows:[64]

During the period from February 2018 to November 2018, he worked with RSS on a fly in/fly out basis as a Security Officer for the WA Country Health Services in the remote Kimberley. At the time, Mr Duric would have worked on average 70 hours per week.

After the incident that occurred with Mr Duric in December 2018, due to concerns about his mental health, we kept Mirko in the Perth metropolitan area so that he could stay close to his family and attend doctor's appointments.

At that time, his working hours were reduced on average to 30 hours per week as we could not provide him with an equal workload in Perth.

The letter contains a comparison between Mr Duric's wages in the 6 weeks prior to 11 November 2018 with the 6 weeks from 24 December 2018, showing a gross pay difference of $8,987 and a net pay difference of $5,871.25.

1. Mr Savic put before the court an image which he says was from Mr Duric's Facebook account. It is a picture of a man, who for present purposes I accept is Mr Duric, looking out to the ocean. It has the caption 'Working vacation mood' followed by a smiley face emoji, and 'Happy New Year'. Mr Savic contends that this is proof that Mr Duric went on a working holiday six days after the incident.
2. It is difficult to place any weight or meaning on the Facebook post. In this regard, the the following observations made by Lonsdale DCJ in Milburn-Thomas apply equally to the present case:[65]

I consider that the evidence of the Facebook posts has little or no probative value: there is no conclusive evidence that the photographs were taken at the time that the posts were generated. Even if I were to accept that the posts establish the respondent was 'out and about' in a social setting at a time not long after the incident, there is no context to the posts which would permit me to draw any inference as to the respondent's state of mind. To attempt to draw any such inference would be an exercise in speculation.

1. By contrast, the evidence from Mr Duric's employer is cogent and consistent with the other evidence before the court. I am satisfied that the amount of $5,871.25 represents earnings lost by Mr Duric as a direct consequence of the injuries which he suffered in the Assault.
2. Subject to the application of CICA s 41, I assess the compensation to which Mr Duric is entitled at $16,657.50, comprising:

1. From this amount, the interim payment of $2,243.50 is to be deducted, giving an award of $14,414.

Should any award of compensation be reduced due to Mr Duric's behaviour pursuant to CICA s 41?

1. Given the Further Evidence, an initial issue is the extent to which Mr Savic can challenge the facts giving rise to the Assault, being a proven offence, in an application for criminal injuries compensation. I examined this in detail in Underwood v Underwood,[66] coming to the following conclusions.[67]

First, in a CICA appeal, the offender cannot re-litigate the facts which led to the proved offence; it is not a backdoor means by which to appeal the conviction.

Second, a plea of guilty to a criminal charge necessarily involves an admission by the offender of material facts comprising the elements of the offence. Proof of the fact of the conviction may also constitute evidence of those material facts.

Third, a plea of guilty necessarily means that all relevant defences have been conceded as not applying. This would preclude the offender from adducing evidence in criminal injuries compensation assessment, including for the purposes of CICA s 41, to the effect that he or she had a defence to the proved offence.

Fourth, a claimant for criminal injuries compensation cannot re-litigate the facts which led to the proved offence. This is for two reasons. The first is that the basis of the claimant's right to claim criminal injuries compensation is 'the commission of a proved offence': CICA s 12(1). The evidence of a 'proved offence' must reflect the second and third principles. The second reason is that if the claimant was able to re-litigate the facts which led to the proved offence by introducing further evidence, procedural fairness would dictate that the offender would be entitled to introduce contradictory evidence. This would lead to the re-litigation of the facts which led to the proved offence.

Fifth, where there is an issue as to the precise identification of the facts evidenced by the conviction following a plea of guilty, the 'only reliable guide to that issue' will 'usually be' the facts admitted for the purposes of sentence ... This will ordinarily be able to be discerned from the transcript of the sentencing hearing.

Sixth, a plea of guilty does not constitute an admission of all of the facts stated in the State's witness statements, or otherwise contained in the brief. On the other hand, nor does a plea of guilty constitute a rejection of the facts stated in the State's witness statements, or otherwise contained in the brief, that do not comprise the essential facts necessary to constitute the elements of the offence. These other facts or circumstances are not incontrovertible.

Seventh, both a claimant and an offender may introduce evidence and other material in relation to the facts and circumstances not falling within the second and third principles. The CICA contains procedures to enable an assessor to resolve a factual conflict, including the power to conduct a hearing: CICA s 24.

1. Although I expressed these principles in the context of a plea of guilty, in my view, they apply equally, if not with more force, to a conviction following trial.[68]
2. Applying these principles to the Appeal, Mr Savic cannot now controvert his conviction of the Assault or any of the essential facts comprising the Assault. He cannot use this Appeal to re-litigate the facts which led to the conviction for the Assault, or as a backdoor means by which to appeal his conviction of the Assault.[69]
3. More specifically, as I have set out at [7], his conviction was on the express basis that the defence of provocation had been negated by the prosecution. That defence is in the following terms:[70]

A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely to cause death or grievous bodily harm.

1. Likewise, his conviction was also on the express basis that the defence of self-defence had been negated by the prosecution. That defence is, so far as is relevant, in these terms:[71]

A person's harmful act is done in self-defence if -

(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and

(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs.

1. It is in this context I consider the application of CICA s 41 which is in the following terms:
   1. Behaviour etc. of victim to be considered

In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor -

(a) must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury or death; and

(i) refuse to make a compensation award because of that contribution; or

(ii) reduce the amount that the assessor would otherwise have awarded.

1. CICA s 41 is wider in its terms than the defences of provocation and self-defence. So it is open for Mr Savic to point to aspects of Mr Duric's behaviour which, while not giving rise to a defence of provocation or self-defence, nonetheless provide a reason to adjust the award under CICA s 41.
2. Whether or not Mr Duric's behaviour, condition, attitude, or disposition will preclude or reduce any award of compensation is a matter of fact and degree to be determined in light of the particular circumstances.[72] In Re Richardson Yeats DCJ stated of CICA s 41:[73]

The use of words 'if he or she thinks it is just to do so', requires the Court to consider all the circumstances and to make a judgment ensuring that justice is done in this case. It is a discretion and must be exercised according to law, taking account of the purpose of the legislation and the requirements of the Act.

1. Mr Savic's position is set out in his email to the CIC, which I have quoted at [13].
2. Mr Zivkovic says the following in his statutory declaration:

On Tuesday (25/12/2018) my family and I were part of the Christmas picnic at the Yokine reserve on Wordworth Ave. After we had something to eat and had a few drinks, we played a friendly soccer game, Mirko Duric and Nenad Grbic started to play rough and were bullying Marko Savic and other kids/teenagers which were playing on the opposite team. Daroslav Savic, I and others were trying to calm the situation down and Daroslav Savic even offered to Mirko Duric to shake hands which Mirko refused. Murko Duric threatened to break Marko's legs.

After that, all Daroslav Savic actions were directly result of Mirko's threats.

1. Mr Jovanovic says the following in his incident statement:

On Tuesday the 25th of December, 2018, I was attending a family and friends picnic event at the Yokine Play Space in Yokine on Wordsworth Ave. The day was meant to be calm, relaxed and joyful as it was a Christmas celebration after all. What transpired throughout the day however, quickly turned sour. The majority of people that attended the picnic indulged in alcoholic beverages and a well-cooked BBQ. After a couple of hours had passed since everyone's arrival, myself and multiple oother males wanted to play a friendly have of soccer which included 2x teams of approx.. 5 players on each team. My team included myself, Marko Savic and three others. On the opposing team there was Mirko Duric, Nenad Grbic, Darko Savic and two others. It took approximately ten minutes for tempers to flare. It was evident from the srart of the game the Mirko was playing a lot more rough that it was expected considering it was only a friendly game, after everyone had eaten and consumed alcohol. After the game wasn't going their way, Mirko and Nenad showed signs of aggressive behaviours which included hard tackes and a lot of argumentative comments made. At this point, Mirko, Nenad and others have consumed multiple alcoholic beverages which possibly contributed to the aggressive behaviour. Myself, Marko and others on my team were becoming frustrated with the behaviours from Mirko and Nenad which resulted in us playing more physical in return. The situation became critical when my team had frustrated Mirko's team to the point where Mirko and Nenad started making threatening comments directed to Marko, ashe was the one showing the most resilience during the soccer game. One of the comments Mirko and Nenad both made to Marko included saying to break Marko's legs. The comment was made more than once and it resulted in our family and friends who were spectating to become involved in the verbal altercation. I would say these provocative comments definitely influenced the events which occurred after the soccer game when Darko confronted Mirko.

1. I put to one side as being irrelevant the opinions by Mr Zivkovic and Mr Jovanovic as to the connection between the way in which Mr Duric was playing soccer, and the comments he made, and the incident in question. The determination of any connection is solely a matter for the court.
2. Mr Duric gave evidence before the Magistrate, as did Mr Savic. I have set out the Magistrate's findings at [7]. In sentencing Mr Savic, her Honour was even more blunt, telling him:[74]

You know, this is an appalling state of affairs. As I've indicated, I'm 100 percent satisfied that Mirko did not say what you attributed to him and that he did not act in the way that you attributed to him. In relation to it, this is a matter that shouldn't have happened. It got out of hand.

1. Mr Savic cannot now in this appeal seek to relitigate this issue by introducing material from Mr Zivkovic and Mr Jovanovic, neither of whom gave evidence at the trial.
2. I accept that the concept of 'behaviour, condition, attitude, or disposition' in CICA s 41 is wider than the defences of provocation and self-defence. However, I would add to the findings of the Magistrate that, in my view, it is utterly disingenuous for Mr Savic to say that he was so concerned about Mr Duric's act of threated violence that he was morally justified in responding with a grossly disproportionate act of actual violence.
3. Further, there was a real risk that the closed fist punch and kick by Mr Savic to Mr Duric's face could have broken his jaw or caused a more serious injury, even death. Injuries of this severity arising from a blow to the face are commonplace in the court's criminal jurisdiction.
4. For these reasons, I am not satisfied that it is just on the ground of Mr Duric's behaviour to either decline to award compensation to him or to reduce the amount of compensation he is otherwise entitled to.

Does the court have the power on appeal to vary an order made under CICA s 45(1)(b)?

1. As the State points out in written submissions, there is a conflict in the authorities as to whether the District Court has on appeal the power to vary an order made under CICA s 45(1)(b). That section provides:
   1. Order about reimbursement order may be made

(1) When or after making a compensation award in respect of an application made under section 12, an assessor who thinks it is just to do so may make -

(a) an order barring proceedings under Part 6 in respect of the award; or

(b) an order that only a part of the award (specified in the order) 6978may be the subject of proceedings under Part 6.

(2) At any time, on an application by the CEO, an assessor may cancel an order made under subsection (1).

1. It is clear that an order made pursuant to CICA s 45(1)(b) cannot form the basis of an appeal, that is, that an appeal cannot be commenced solely in relation to a decision of an assessor pursuant to CICA s 45(1)(b).[75] This line of authority goes back to the decision in Tidmarsh in which the only decision sought to be appealed was the decision pursuant to CICA s 45(1)(b).[76] I agree with Lonsdale DCJ that Tidmarsh 'stands for the proposition that an order made under s 45(1)(b) of the Act cannot form the basis of an appeal'.[77] The basis for the decision in Tidmarsh that a decision under CICA s 45 is not a decision 'to make or to refuse to make a compensation award [or] as to the amount of a compensation award' so as to fall within the scope of the appeal right in CICA s 55(1).[78] However, if a compensation reimbursement order is made under CICA pt 6, in particular s 52, then by CICA s 55(2) both the CEO and the offender may appeal.
2. The issue is what occurs when there is an appeal from a decision falling within the scope of CICA s 55(1), the assessor makes an order pursuant to CICA s 45(1) and the court decides the application to which the decision relates afresh.
3. In Curran v Champion Staude DCJ held that even if there is a decision falling within the scope of CICA s 55(1), there is no power to vary a determination pursuant to CICA s 45(1), following the decision in Tidmarsh.[79] Likewise, Derrick DCJ (as his Honour then was) in Martin v Martin.[80] Derrick DCJ added to the analysis in Tidmarsh the following observation:[81]

I note further, in order to avoid any doubt on the issue, that I accept the submission made by the CEO in his supplementary submissions that in an appeal made pursuant to s 55(1) of the Act, s 56(1)(f) does not empower the court to make an order varying a barring order made by an assessor under s 45(1)(b) even if the appeal results in the compensation award the subject of the appeal being varied. The making of an order varying a barring order in these circumstances could not be said to be a 'necessary consequential order', that is, an order which follows logically or of necessity from the substantive order on the appeal: Rayney v AW [2009] WASCA 203 [33].

1. In a number of decisions I have taken the position that the court is able to exercise the power in CICA 45(1) as a consequence of having determined the application 'afresh' for the purposes of CICA s 56(1).[82] Lonsdale DCJ recently came to the same conclusion in Milburn-Thomas.[83]
2. I remain of the view that once there is an appeal from a decision falling within the scope of CICA s 55(1), it is open for the court on appeal to consider afresh what order should be made pursuant to CICA s 45(1). This is because the scope of the power on appeal is wider than a fresh consideration of the decision to make or to refuse to make a compensation award and/or as to the amount of a compensation award. Rather, by CICA s 56(1) the court is to 'decide the application to which the decision relates afresh' (my emphasis). In order to decide the application afresh, the court needs to look at, among other issues, all the matters set out in CICA pt 4, entitled 'Matters governing compensation awards'. This goes beyond the quantification of the compensation to award to issues like:
   • Whether the compensation is likely to benefit the offender (CICA s 36).
   • Whether the victim failed to assist investigators (CICA s 38).
   • Whether the victim was injured as a consequence of the commission of an offence (CICA s 39).
   • Whether compensation has already been awarded or refused (CICA s 40).
   • Whether the award should be reduced on account of the behaviour of the victim (CICA s 41).
   • Whether the award should be offset against any amount owed to the State (CICA s 43).
   • Whether part of award should be paid to someone who incurred expenses on behalf of a victim (CICA s 44).
3. It has never been in issue that each of these matters are matters properly considered in an appeal of a decision to which CICA s 55(1) applies; each is a matter which may need to be considered in order to decide 'the application to which the decision relates afresh' as required by CICA s 56(1). CICA s 45(1) is no different.
4. In this context, CICA s 56(2)(c) expressly provides that, on an appeal under CICA s 55, the court may, amongst other things, 'make any order that an assessor could make under' the CICA. This paragraph immediately follows CICA s 56(2)(b), which empowers the court to 'confirm, vary or reverse the assessor's decision, either in whole or in part', meaning that the power to make orders is in addition to the power to confirm, vary or reverse the decision. One such order which follows from confirming, varying or reserving the decision of the assessor is an order pursuant to CICA s 45(1).[84]
5. Counsel for the CEO submitted that there did not appear to be a power to 'quash' a decision of the assessor pursuant to CICA s 45(1). However, in my view, determining whether orders should be made pursuant to CICA s 45(1) is part and parcel of determining the application afresh. So merely filing the appeal has the effect of opening up the orders made pursuant to CICA s 45(1) for a fresh determination.
6. I agree with Derrick DCJ that an order pursuant to CICA s 45(1) is not a 'necessary, consequential order' in the appeal within CICA s 56(2)(f). It is, rather, an 'order that an assessor could make under the Act' within CICA s 56(2)(c). His Honour did not address the application of CICA s 56(2)(c).
7. The facts of the present appeal demonstrate the practicality of the interpretation which I have adopted. Having reduced the amount of compensation awarded to $16,657.50, it does not make sense for there to an order limiting the amount which can be the subject of CICA pt 6 proceedings to $20,000. Indeed, for the reasons I outline at [103], it is just that this amount be reduced. Alternatively, having decided the Application afresh, had I increased the amount of compensation to the statutory maximum of $75,000, again it would not have made sense to have limited the amount which can be the subject of CICA pt 6 proceedings to $20,000; indeed, contrary to CICA s 45(1), a limitation of this amount may well be unjust.
8. The decision in Milburn-Thomas provides an even more stark example of how the matters in CICA s 45(1) are inherently tied up in the deciding the application afresh as required by CICA s 56(1). In that case, the respondent was awarded $75,000 in compensation for injuries sustained as a result of the conduct of the appellant and others outside a pub. Pursuant to CICA s 45(1)(b) the assessed apportioned $50,000 to the 'proven offence' (as defined in CICA s 12) of which the appellant was convicted and the remaining $25,000 to 'alleged offences' (as defined in CICA s 16). Pursuant to CICA s 45(1), the assessor ordered that only $50,000 may be the subject of proceedings under CICA pt 6 thus limited the amount of compensation that could be recovered from the appellant.
9. On appeal, Lonsdale DCJ did not adjust the amount of the compensation award. Nor was Her Honour persuaded to reduce the award of compensation on account of the respondent's behaviour pursuant to CICA s 41. Her Honour did, however, disagree with the assessor's finding that the appellant's blows were the cause of the serious facial injuries sustained by the respondent. Her Honour utilised CICA s 45(1)(b) to come to a just outcome:[85]

I consider, having regard to the respondent's contribution and doing the best I can to apportion the award in a just manner, I should adjust the apportionment of the award to limit the amount that can be recovered against the appellant to $15,000.

1. For these reasons, I am of the view that in an appeal relating to a decision falling within CICA s 55(1), in order to 'decide the application to which the decision relates afresh' as directed by CICA s 56(1), one of the orders the court may make is an order pursuant to CICA s 45(1), this being an order which an assessor could have made within CICA s 56(2)(c).
2. There remains the issue of whether the amount able to be recovered by the CEO from Mr Savic should be reduced pursuant to CICA s 45. This power is able to be exercised if the assessor 'thinks it is just to do so'.[86] In my view it is just to limit recovery to $15,500 so as to exclude the future treatment cost component ($967.95). In this way Mr Savic will have immediate finality as to the amount of his liability.

(a) the decision of the Assessor be varied to reduce the amount of compensation to $16,657.50, of which $2,243.50 has been paid by way of interim payment and $967.95 is subject to CICA s 48;

(b) pursuant to CICA s 45(1)(b), only the amount of $15,500 be subject to CICA pt 6; and

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

[1] The respondent's name is spelt 'Djuric' in the Appeal Notice but 'Duric' in his application for Criminal Injuries Compensation, which I will use in these reasons.

[3] See generally: Underwood v Underwood [2018] WADC 13 [45] - [63] (Gething DCJ) (Underwood).

[4] MC ts 20 March 2020, pages 2, 18, 19.

[11] Criminal Injuries Compensation Act 2003 (WA) (CICA) s 55(3).

[12] CICA s 56(1).

[13] Underwood [19]; Robinson [2017] WADC 18 [7] (Troy DCJ); Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude) (Gullelo).

[14] Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcom CJ).

[15] Underwood [19]; Gullelo [5].

[16] CICA s 56(1).

[17] Underwood [36]; Cahill v Smith [2015] WADC 148 [8] (Wager DCJ).

[18] Milburn-Thomas v Palmer [2020] WADC 158 [51] (Lonsdale DCJ) (Milburn-Thomas); Nagel v Tahere [2020] WADC 110 [35] (Gething DCJ) (Nagel); Underwood [37].

[19] CICA s 56(2)(b).

[20] Nagel [28]; CME [2018] WADC 69 [11] (Bowden DCJ).

[21] CICA s 12(3).

[22] CICA s 3.

[23] Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673 (Mason & Wilson JJ) (Fagan); Underwood [87]; Townend v McAlindon [2017] WADC 63 [36] (Sleight CJDC); T v Curnuck [2004] WASC 139 [27] (Barker J); B v B [2004] WASC 6 [14] (Barker J).

[24] Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 - 413 (Mason CJ, Deane & Toohey JJ); Fagan (673); Underwood [87].

[25] Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613, 620 (Lord Reid); March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515 (Mason CJ), 522 (Deane J); Lyle v Soc [2009] WASCA 3 [40] (Steytler P); Underwood [87].

[34] CICA s 3.

[35] Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) 5 (Burt CJ); Underwood [83].

[36] S v Neumann (1995) 14 WAR 452, 461 (Murray J) (Neumann); Underwood [83].

[37] Neumann (461); Underwood [83].

[39] CICA s 30(1).

[40] AA v ARW [2020] WADC 131 [40] (Gething DCJ) (AA); Bothma v Hildebrand [2019] WADC 92 [40] (Gething DCJ) (Bothma); Underwood [113]; M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992) (Scott J); RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974) 3 (Burt J) (RJE).

[41] CICA s 31.

[42] Underwood [112]; Neumann (463).

[43] Underwood [115]; G & N v R [2006] WADC 208 [8]; (2006) 48 SR (WA) 301 (Goetze DCJ); B v W (1989) 6 SR (WA) 79, 89 (Williams DCJ).

[44] AA [46]; M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [113] (Pullin JA, with whom Newnes JA agreed & Murphy JA generally agreed).

[45] AA [46]; Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ); Houlahan v Pitchen [2009] WASCA 104 [107] (Newnes JA with whom Pullin & Miller JJA agreed) (Houlahan); Winiarczyk v Tsirigotis [2011] WASCA 97 [71] (Judgment of the Court) (Winiarczyk).

[46] AA [46]; Houlahan [107]; Winiarczyk [71].

[47] Underwood [118]; Shepherd v Shepherd [2010] WADC 30 [20]; (2010) 71 SR (WA) 143 (Wager DCJ); Garton v McCormack (2002) 30 SR (WA) 307 [15] (Yeats DCJ); Re Karra (1984) 2 SR (WA) 97, 100 - 101 (Heenan DCJ); RJE (3).

[48] Re Warrek [2019] WADC 50 [37] (Troy DCJ) (Re Warrek); R v Fraser [1975] 2 NSWLR 521, 523 (Wootten J).

[49] Re Warrek [37]. This is consistent with the position when assessing damages at common law, see: Civil Liability Act 2002 (WA), s 10A.

[51] August v Lynch [2019] WADC 78 (Gething DCJ) (August).

[54] Re Goodwin [2020] WADC 128 [244] - [245] (Levy DCJ).

[55] CICA s 6(2)(a)(i).

[57] CICA s 6(2)(a)(ii).

[59] CICA s 6(2)(b).

[61] CICA s 6(2)(c).

[67] Underwood [56] - [62]; Bennett v The State of Western Australia [2012] WASCA 70 [126] - [133] (Buss JA) (Bennett); Nagel [41]; Bothma [35]; Nurovic v Nurovic [2019] WADC 28 [23] (Bowden DCJ); Guy v Hampson [2019] WADC 19 [42] (Bowden DCJ); Pym v Richardson [2018] WADC 156 [63] - [66] (Scott DCJ).

[68] AA [19]. See generally: Bennett [66] (Martin CJ, with whom Mazza J agreed), [109] - [110], [126] - [133] (Buss JA); Mickelberg v The Director of the Perth Mint [1985] WASC 175; [1986] WAR 365, 372 (Burt CJ), 377 - 378 (Smith J), 383 - 385 (Kennedy J).

[72] Underwood [139]; Re Richardson [2009] WADC 93 [81] (Yeats DCJ) (Richardson); Bodney v The Assessor of Criminal Injuries Compensation [2000] WADC 214 [27] - [29] (Groves DCJ).

[73] Richardson [81]; Underwood [139].

[75] Milburn-Thomas [99]; Nagel [30]; Taylor v Paindelli [2016] WADC 160 [2] (McCann DCJ); Tidmarsh v The Assessor for Criminal Injuries Compensation [2011] WADC 173 [6] (Bowden DCJ) (Tidmarsh).

[77] Milburn-Thomas [99] (emphasis in original).

[79] Curran v Champion [2012] WADC 9 [78] - [79] (Staude DCJ).

[80] Martin v Martin [2015] WADC 138 [150] - [156] (Derrick DCJ) (Martin).

[82] Nagel [30], [71]; Bothma [62]; Curnow v Garnant [2012] WADC 72 [73] (Commissioner Gething).

[83] Milburn-Thomas [9], [99] - [100].