JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

ACT : CRIMINAL INJURIES COMPENSATION ACT 2003

CITATION : KAUSHIK [2021] WACIC 22

CORAM : R GUTHRIE

DELIVERED : 4 OCTOBER 2021

FILE NO/S : CIC 2067 of 2020

BETWEEN : RAKESH KAUSHIK
Applicant

Catchwords:

Section 12 – Proved offence – Mental and nervous shock – No loss of income

Legislation:

Criminal Injuries Compensation Act 2003, s 12, s 19

Result:

Compensation granted

Representation:

Counsel:

Applicant : Not applicable

Solicitors:

Applicant : Bradford Legal

Case(s) referred to in decision(s):

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Dearman v Dearman (1908) 7 CLR 549
Hogben v Darcy [2009] WADC 63 [13]
M v J and J v J (Unreported WASC, Library No 920598, 19 November 1992)
Michael v Panetta (1994) 10 SR (WA) 323, 323 – 324)
RJE v Bandy (Unreported WASC, Library No 1365; 31 May 1974) (Burt J)

Reasons for Decision:

1 By an application lodged on 10 December 2020, Rakesh Kaushik (the applicant) made an application for compensation arising out of an incident which took place on 31 March 2019 on Riverside Drive, East Perth (the incident). In support of his application he provided a copy of his statement to police made on 9 April 2019. The circumstances of the incident are summarised from his statement below.
2 On Sunday 31 March 2019 at about 9.00 am, the applicant, who was a taxi driver, was in transit to collect a client at a restaurant near the Bell Tower in Perth City. He was driving along Albany Highway in the Victoria Park area. He saw a large truck, driven by Alan Thomas Stirzaker (the offender), driving behind him and perceived the offender was urging him to drive faster. Traffic was heavy in the left lane and the applicant was unable to change lanes. He was able to eventually change into the left lane. The applicant stopped at the traffic lights of either Miller Street or Duncan Street in Victoria Park and the offender drove up alongside the applicant’s taxi. The offender’s truck was beside the applicant’s taxi and the offender yelled abuse at the applicant through his window. The applicant said nothing and closed his window. When the traffic lights changed the offender’s truck was two or three cars to the rear of the applicant’s taxi, but he was driving in such a manner so as to force other drivers out of the way to get to the rear of the applicant’s taxi. The applicant continued to drive in the left lane onto Riverside Drive in East Perth, whilst the offender drove beside him in his truck in the right lane. The offender moved his truck closer to the applicant’s taxi almost crossing into the left lane. As a consequence, the applicant had to brake and the offender’s truck moved into the left lane. The offender brought his truck to a holt in front of the applicant’s taxi. The applicant got out of his taxi to inspect it as he thought there had been a collision. The offender got out of his truck yelling abuse at the applicant. The offender was carrying a black metal rod, approximately a metre long. The offender came towards the applicant grabbing the applicant’s t-shirt in his right hand. There were bystanders recording the incident on their mobile phones and the applicant told the offender he was being recorded. The offender let go of the applicant’s t-shirt, but suddenly punched the applicant with a closed fist to the left side of the applicant’s face. The applicant immediately started bleeding from the mouth and could feel that a tooth had been loosened. The applicant grabbed the offender in a bear hug to subdue him and they fell towards bushes on the side of Riverside Drive, with the applicant falling on top of the offender. The offender continued to attempt to punch the applicant whilst he was underneath the applicant. He struck blows to the applicant around his head and the back of his head several times. Although there were bystanders nearby no one came to assist the applicant. The offender abruptly ceased punching the applicant, stood up and walked away. The applicant asked bystanders to call police and requested one of them to provide footage of the incident to police. The applicant took a photo of the offender’s vehicle registration number. Some of the bystanders gave their details to the applicant.
3 The applicant drove his taxi from the scene of the incident to a restaurant near the Bell Tower. There was a doctor at the restaurant who advised him to go to Royal Perth Hospital (RPH) which he did, driving there at about 9.45 am. The applicant was triaged at RPH and given certain advice. He was discharged at 12.20 pm. He then went to the Cannington Police Station, spoke to police, and provided a statement.
4 The RPH Emergency Department case notes provided by the applicant in support of his claim record a history the applicant was assaulted by a truck driver in a road rage incident. The notes record he was struck to the head multiple times with a metal bar and punched to the head. It was noted he had pain to the jaw with broken teeth but did not complain of any neck pain and was able to drive to the hospital. Other notes record the applicant was hit repeatedly to the head. On examination it was observed he had three haematomas to the back of the head and one to the side of his face. He had pain in the jaw and a broken back molar. There was a cut inside the right cheek and some abrasions to his neck. There were abrasions to each elbow. X-rays were taken of the applicant’s face and left elbow. The x-ray reports contained in the RPH notes record in relation to the applicant’s face, he had had a full complement of dentition. There was no displaced mandibular fracture identified. There was normal alignment of the temporomandibular joints. The history provided to the clinician who took the x‑rays was the applicant had been assaulted with a metal pole. The x‑ray to the left elbow showed no fracture or dislocation.
5 A report was provided by the applicant’s General Practitioner, Dr Arya Basu, dated 11 March 2020. Dr Basu saw the applicant once on 9 May 2019 in relation to the injuries he sustained on 31 March 2019. The applicant told Dr Basu he was involved in a road rage incident and had sustained injuries to his head, left arm and right hand. He told Dr Basu he’d had x‑rays at Royal Perth Hospital. At the time he saw Dr Basu he was complaining of pain in his right thumb and Dr Basu observed he was tender to the base of the right thumb but had full range of movement of the thumb. Dr Basu recommended an ultrasound which revealed minor synovitis changes affecting the thumb joint. These findings were discussed with the applicant who was prescribed Meloxicam (a non-steroidal anti-inflammatory) to be used when required. The applicant did not attend for any further treatment from Dr Basu for this incident.
6 In addition to the medical reports provided, the applicant provided a copy of a photograph which I infer was taken shortly after the incident. This photograph shows some redness to the left side of the applicant’s neck and left shoulder.
7 On 31 July 2019 the offender was convicted in the Magistrates Court at Perth of assault occasioning bodily harm and being armed or pretending to be armed in a way that may cause fear (the offence). Accordingly, I determined this application was made pursuant to section 12 of the Criminal Injuries Compensation Act 2003 (the Act) as a proved offence. Notice of the application was served on the offender on 20 July 2021 and the offender provided no response to that notice.
8 In addition to the documents provided in support of the application the applicant provided a statement of impact of injury providing additional details of his injury and other circumstances. In that statement he asserts at the time of the assault he was working approximately 65 hours per week as a taxi driver. During the assault he was fearful for his life and thought he was going to die. He saw images of his children at the time. When he attended RPH Emergency Department he noted one of his teeth had been chipped, his face was swollen and there were scratches and bruises to his neck and back. His teeth were painful on the left side and he could not consume hot or cold drinks. He suffered from strong headaches for about one month following the incident. He also had some difficulty sleeping and had nightmares. He tried his best to avoid trucks when driving and was particularly anxious driving along Riverside Drive. He lost his motivation to drive a taxi although he continued to do so. In March 2019 his wife was diagnosed with a serious medical condition which affected him emotionally. He asserted since the incident he is working less hours and does not take new customers.
9 The applicant’s solicitors provided a copy of a report from Dr Frederick K F Ng, dated 21 July 2020. Dr Ng reviewed the applicant in relation to two incidents, the first of which occurred on 16 January 2019 and is dealt with in application CIC 2065/2020 for which reasons are also provided. The second being an incident on 31 March 2019 the subject of this application. In Dr Ng’s report the first incident resulted in the applicant reducing his working hours by approximately 10 hours per week. At the time of the second incident the applicant was driving his usual hours of 60-65 hours per week. Dr Ng noted between the first and second incident the applicant’s wife had been diagnosed with a serious medical condition. As a result of the second incident the subject of this application, Dr Ng noted the applicant had suffered post trauma anxiety symptoms. He diagnosed the applicant had sustained unspecified trauma related disorder or alternatively, post-traumatic stress disorder. The applicant was pre-disposed to post trauma anxiety symptoms by reason of the first incident and his wife’s diagnosed medical condition in mid‑March. Dr Ng considered he was mildly to moderately impaired as a consequence of the second incident.
10 In support of the applications CIC 2065/2020 and CIC 2067/2020, the applicant provided copies of his income tax returns. From these returns I discerned the following income was derived from the business (putting aside other sources of income and disregarding expenses) of a taxi driver as follows.
2017 $32,369.00
2018 $36,451.00
2019 $71,731.00
2020 $74,320.00

11 Given the incidents in CIC 2065/2020 and CIC 2067/2020 occurred early in 2019, I was unable to be satisfied the applicant had suffered any economic loss as a consequence of either or both incidents. I did not consider the asserted reduction in working hours produced any economic loss.
12 In relation to the injuries sustained as a consequence of the incident on 31 March 2019, I was satisfied the notes from RPH Emergency Department reflected the injuries sustained by the applicant at the time. There is some inconsistency in the history obtained by medical staff as it is noted the applicant was struck by the offender with a pole and on other occasions the applicant was struck with fists only. To assist me in determining how the applicant was struck I referred to the police brief which I obtained from the Western Australian Police. As noted above, there were various bystander witnesses present when the applicant was assaulted. Those witnesses observed the offender was carrying a pole at the time. However consistent with the applicant’s statement to police, none of those witnesses observed the offender struck the applicant with the pole and the applicant’s statement does not assert he was struck with a pole. Not much turns on this issue because it is clear the injuries sustained by the applicant were caused by the offender at the time of the incident by whatever means. In assessing the applicant’s claim for injury, I noted he attended RPH on one occasion immediately following the incident but did not seek any further treatment for over a month when he visited Dr Basu on 9 May 2019. I infer his physical injuries were not so painful or severe as to prevent him from working or that he required additional care or treatment during this time. I note Dr Basu did not recommend any further treatment, but prescribed Meloxicam to be used when required. I also observe the applicant did not reattend Dr Basu for any further advice. As noted Meloxicam is a non-steroidal anti-inflammatory for pain and inflammation. Dr NG did not have the advantage of seeing the applicant contemporaneous with the incidents referred to above, seeing the applicant once only for medico-legal purposes. That said, I accept the applicant did suffer trauma related symptoms following the incident the subject of this application.
13 In considering the award to the applicant for the injuries sustained, the authorities require me to consider the direct impact of the offence upon the applicant. Whilst there is some suggestion the award for injuries should be based on “community attitudes”, I rely on Supreme Court authority to the effect I must assess the matter as if tortious principles of assessment apply. (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) (Burt J); Michael v Panetta (1994) 10 SR (WA) 323, 323 – 324). I may have some regard for decisions in other cases. However there is authority to the effect some caution should be exercised in taking into account awards where different facts and medical evidence applies. I am entitled to take into account my own specialist knowledge of these matters having regard for the specialist nature of my position. (Hogben v Darcy [2009] WADC 63 [13]; Dearman v Dearman (1908) 7 CLR 549;http://classic.austlii.edu.au/cgi-bin/LawCite?cit=%281908%29%207%20CLR%20549?stem=0&synonyms=0&query=%22criminal%20injuries%20compensation%20%22 Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29)
14 Taking into account the medical evidence in particular and noting Dr Ng’s diagnosis, I accepted the physical injuries sustained by the applicant were relatively minor and did not require any significant treatment. However, I noted Dr Ng had diagnosed trauma related symptoms pre-existing but probably aggravated by this incident and accordingly, taking all those matters into account I made an award of $20,000 for injuries. There was a report of $330 payable to Dr Basu making the total award in this instance of $20,330.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Criminal Injuries Compensation Assessor of Western Australia.

R Guthrie, ASSESSOR OF CRIMINAL INJURIES COMPENSATION

4 OCTOBER 2021