JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

ACT : CRIMINAL INJURIES COMPENSATION ACT 2003

CITATION : MCLERNON [2022] WACIC 3

CORAM : K HAFFORD

DELIVERED : 8 APRIL 2022

FILE NO/S : CIC 1004 of 2020

BETWEEN : PAUL DANIEL MCLERNON
Applicant

Catchwords:

Assault – Proved offence – Assessment of damages – Mitigation of loss, treatment required as a direct consequence of injury – General principles

Legislation:

Criminal Injuries Compensation Act 2003, s 3, s 6, s 12, 19, s 30, s 42

Result:

Compensation refused

Representation:

Counsel:

Applicant : Not applicable

Solicitors:

Applicant : Tang Law

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

Ardlethan Options Ltd v Easdown (1915) 20 CLR 285, 296
ATV v LA [2021] WADC 64
B v W (1989) 6 SR (WA) 79
Bonnington Castings Ltd v Wardlaw [1956] AC 613
British Westinghouse Electric & Manufacturing Company Ltd v Underground Electric Railways Company of London Ltd [1912] AC 673, 688 – 689
Devos v James [No 2] [2013]WADC 36 at [52]-[53]
Devos v James [No. 2] [2013] WADC 36 at [28]
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345, 349-352
Fontaine v Quality Platers (1994) 12 WAR 71, 78-79
Hansen v Bolton [2017] WADC 25; (2017) 91 SR (WA) 137 [85] – [86]
Hoad v Scone Motors [1977] 1 NSWLR 88 [100]
Houlahan v Pitchen [2009] WASCA 104
JY [2013] WADC 187 [13]
Kalavrouziotis v Howel & Kalavrouziotis (unreported, WASC, Library No 980219, 1 May 1998), 3 per Kennedy J, 8 per Wheeler J
Kittelty v Davies [2011] WADC 1 [250]
M v J and J v J (Unreported WASC, Library No 920598, 19 November 1992)
Matters v Baker & Forsett [1951] SASR 91
Mbagwu [2019] WACIC 19 at [91]
MJN v MAJS (2003) 35 SR (WA) 219, 227
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Plenty v Argus [1975] WAR 155, 157
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Re Utting [2011] WADC 10
RJE v Bandy (Unreported WASC, Library No 1365; 31 May 1974)
Robertson v Baker [2014] WADC 14
Smith v Leech Brain & Co Ltd [1962] 2 QB 405
Todorovic v Waller (1981) 150 CLR 402 at 412
Tuncel v Renown Plate Co Pty Ltd [1976] VR 501, 503 – 504
Wakim v McNally (2002) 121 FCR 162, 182
Wilson v Peisley (1975) 50 ALJR 207, 212 (Stephen J); SW v BB [2010] WADC 86
Winiarczyk v Tsirigotis [2011] WASCA 97
Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485, 499 – 500
Zumeris v Testa [1972] VR 839

Reasons for Decision:

1 By application dated 25 June 2020 Paul Daniel McLernon (the applicant) claimed compensation for injuries he suffered as a consequence of an offence committed by Brett Sewell (the offender) on 11 September 2018 (the offence).
2 The application was made pursuant to section 12 of the Criminal Injuries Compensation Act 2003 (the Act). This section authorises an assessor to award compensation if satisfied the injury claimed occurred as a consequence of the commission of a proved offence. Section 3 of the Act defines a proved offence as a crime, misdemeanour or simple offence of which a person has been convicted.
The Offence
3 The applicant was born on 19 May 1968 and is currently aged 53 years. The circumstances of the offence were as follows. The applicant and offender worked together at Avon Valley Beef. The applicant was employed in a management role. The offender was verbally abusing colleagues at the workplace and the applicant approached him to discuss his behaviour. The applicant spoke to the offender in the cool room, advising this was the third time his behaviour had resulted in such a discussion and he needed to “pull his head in” or would have to leave. The offender moved towards the applicant and struck several blows to the applicant’s head, before trying to choke the applicant.
4 The offender was convicted of unlawful assault in the Magistrates Court at Midland on 11 September 2018. I am satisfied a proved offence as defined in the Act was constituted.
Evidence
5 In support of the application, the applicant provided a copy of his police statement dated 13 September 2018; a Police Information Report, a quote for dental treatment from Aria Dental, Notices of Assessment of Taxation for the financial years ending 30 June 2018 to 30 June 2020, a report from Dr Michael Zaninovich, dentist, dated 5 November 2021 (which was accompanied by several photographs of the applicant’s teeth), and an undated victim impact statement. I identify these documents, where relevant, in more detail below.
6 I obtained the Police Brief. The Incident Report (120918 0930 81979) described the applicant’s injuries as “three missing teeth on lower jaw, one loose tooth, bruised and swollen lower lip, left eye swollen and red, left arm sore, chest sore and face sore”. The photographs of the applicant show several missing teeth.
7 I issued a notice pursuant to section 19(1)(a) of the Act to the worker’s compensation insurer, QBE. The documents produced in response to that notice indicate $975 was paid for medical reports in the course of the claim which was ultimately resolved by way of lump sum payment to the applicant in the amount of $28,000. The file contained a number of medical reports to which I refer to below.
8 In his witness statement to police dated 13 September 2018 the applicant described his injuries as:
I now have three lower teeth that have been knocked out and one that is very loose. I have a bruised and swollen bottom lip, my left eye is swollen and red, my left arm is sore, my chest is sore from where Bret knelt on me and my face is sore.
9 The applicant described the impact of his injuries in the Victim Impact Statement. The applicant explained he was made redundant from Avon Valley Beef on 19 May 2019, some eight months after the incident. He was able to gain further employment promptly but due to not receiving regular wages from that employer he sought new employment. The applicant experienced difficulty in gaining employment which he attributed to his appearance, in particular his missing teeth, stating:
The search for employment was challenging, while I would get contacted by numerous potential employers seeking to employ me, I did not get much interest from the same employers once we had face to face meetings. Our telephone conversations usually went well and the potential employers and me would organize in person meetings at coffee shops or bars. After the meetings, I would not hear from the potential employers, and I heard from their associates that it was all due to my physical appearance; loss of teeth is often associated with drug addiction which would explain why no potential employer would contact me after out face-to-face meetings.
10 The applicant described the financial hardship he experienced as a result of his employer, Crown Valley, owing him back pay and stated upon settlement of his workers compensation claim arising from the offence he used the monies received to pay debts and living expenses. He did not apply the portion of the settlement he received for dental treatment to such treatment. As a result of the financial difficulties, the applicant described becoming anxious and depressed. He undertook a landscaping job for his landlord in exchange for free rent. The applicant advised he sought employment in roles where his physical appearance did not matter and, after obtaining a forklift licence, obtained employment. He was subsequently promoted to warehouse manager and then operations manager. He attributed the delay in him being able to obtain employment in a management role to his physical appearance after the offence and described an ongoing impact on his mood.
11 The applicant provided his Taxation Notice of Assessment (NOA) for the year ended 2018, disclosing earnings in the amount of $105,580 (gross) and his NOA for the year ended 2019, disclosing earnings in the amount of $131,316 (gross). The applicant’s solicitors advised the applicant’s earnings in the year ended 2019 included a redundancy payment but did not specify the amount of such payment. The applicant’s NOA for the year ended 2020 disclosed earnings of $16,649 (gross). The applicant was made redundant from his employment with Avon Beef in May 2019 and the applicant’s earnings in the financial year ended 2020 clearly indicate the impact of his inability to secure stable employment after the redundancy, as referred to in his Victim Impact Statement.
12 The documents obtained from QBE Insurance in response to the notice issued pursuant to section 19 of the Act indicate on 29 October 2018 QBE Insurance accepted liability for the applicant’s claim with respect to medical expenses only. The documents also included a settlement agreement indicating the applicant resolved his claim for workers compensation for $28,000 and also a claim payment summary indicating additional payments of $975 for dental reports were made by QBE. The settlement agreement does not provide any itemisation of the lump sum payment of $28,000 which is described under the Memorandum of Release and Settlement as being a “full and complete discharge of his present and future claims against the Employer in respect of or arising out of the Injury and/or the Accident, including weekly payments of compensation and medical and other expenses provided for under the Act”.
13 The applicant’s treating dentist, Dr Michael Zaninovich, provided a report to QBE Insurance dated 1 October 2018. This report states:
Mr Paul McLernon has a significant vulnerability to gum disease and has lost significant bone support around the remaining dentition. The teeth are significantly infected periodontally; resulting in mobility of the teeth, the assumed injury at work would have easily avulsed and damaged the teeth due to their high level of fragility due to this pre-existing disease.
The injury at work has accelerated the need for treatment, although the teeth inevitably would be scheduled for extraction and replacement due to their advanced state of disease.
If the work place incident did not occur, the damaged teeth would still have required treatment. The treatment of choice would have been extraction. The work place injury, as mentioned, has only accelerated the need for treatment immediately to eliminate the presence of pain. It is likely Mr Paul McLernon has experienced pain and discomfort from the lower dentition over the previous years. [My emphasis]
14 On 28 October 2018 Dr Daniel Abbondanza, dentist, provided a report to QBE Insurance stating:
The issue with Mr McLernon is that, given his current oral condition as well as a host of modifying factors, his remaining lower teeth are in a poor state and will ultimately need extraction.. Without the reported incident the teeth would ultimately suffer the same fate. The reported trauma would merely have hastened the process.
. . . From the radiograph it is more than highly likely due to the pre-existing nature of periodontal disease these teeth were previously loose and it is highly unlikely that trauma would make all the teeth loose. Normally with these traumatic injuries the trauma is focused in a region more limited to where his remaining teeth are situated. [My emphasis]
15 In a further report addressed to QBE Insurance dated 8 July 2019, Dr Abbondanza commented:
The previous dental records show that Mr McLernon has been undergoing implant therapy to his upper jaw as early as 2015. It appears that 7 dental implants were placed and at a later stage 3 were lost, leaving him with 4 upper dental implants. From the original plan there is some mention that Paul was to receive some dental implants in the lower back jaw.
In essence, the fact remains that his lower teeth are in a poor state, the incident has hastened the need for treatment but not changed what he required.
16 Dr Abbondanza provided various treatment options for the applicant:

1. Periodontal therapy in the lower jaw, root canal therapy, crown on tooth 46 and provision of a partial denture at a cost of $6,000;
2. Removal of all remaining teeth and provision of a removeable denture at a cost of $3,500;
3. Removal of all remaining teeth and provision of 2-3 implants to support a lower removeable denture at a cost of $15,000; or
4. Removal of all remaining teeth and provision of 4-5 implants to support a fixed implant bridge at an approximate cost of $20,000 to $30,000.
   17 Dr Abbondanza expressed a concern given the applicant’s significant risk factors of smoking, periodontal disease and previous failed implants any further treatment which included implants or saving of his teeth will most likely lead to early failure of treatment and lead to him wearing dentures.
   18 The applicant provided a further medical report from Dr Michael Zaninovich of Aria Dental, dated 5 November 2021. Dr Zaninovich reported the applicant had first attended Aria Dental in December 2014 (some four years prior to the offence) at which time it was noted he had dental decay, dental infections, missing teeth, a smoking habit, compromised plaque control and periodontal disease. The radiographic records show the prognosis of his teeth was significantly compromised. In 2015 his remaining upper teeth were removed and implant fixtures placed in his upper jaw to fabricate an implant supported prosthesis to replace his upper teeth. It was reported the applicant did not return to have the prosthetic teeth inserted, and thus remained without upper teeth between 2015 and the offence. The applicant returned to Aria Dental on 11 September 2018 (the day of the offence) and it was noted he had numerous infections around the upper implant fixtures, his plaque control was suboptimal and he had dental decay and infections in his lower teeth. The lower anterior teeth were noted to be mobile and the applicant was missing a number of lower teeth. The applicant advised he had not worn an upper denture between 2015 and the offence due to a severe gag reflex.
   19 With respect to the loss of the applicant’s lower teeth, Dr Zaninovich commented:
   In my opinion, a traumatic episode could easily have dislodged the lower front teeth, and I cannot confirm the actual cause of the loss of teeth apart from the fact they were missing when he presented to Aria Dental on 11th of September 2018. The loss of the anterior teeth could have occurred from a number of reasons. An injury to the area would easily caused the dislodgement of the lower teeth, however his dental health prior to the injury was already grossly inadequate and subsequently the trauma did not further exacerbate his dental disease and condition. It eliminated active infections from his lower jaw. Loss of the infected teeth subsequently allowed the bone and tissues to heal more favourably.
   As I wrote to QBE in 2008 (sic), the mobility of the lower teeth was already significant. It is highly probably that these would have been lost in the short term future, however the reported trauma would have accelerated this process.
   Subsequently, in my opinion, I do not believe the assault on the day of the injury was the only contributing reason to the loss of the teeth. Instead his risk factors including a significant smoking habit, advanced gum disease, dental neglect and compromised plaque control are factors that would also have contributed to the loss of his lower teeth. [My emphasis]
   20 In relation to the impact upon the applicant from loss of teeth, Dr  Zaninovich commented:
   Mr McLernon did not have any teeth in his upper jaw for many years and was not prepared to stop smoking in order to maximise the success of any dental care that could be provided to him. Since he did not return for the teeth following implant replacement in 2015, I would assume that he was able to function without his teeth. Mr McLernon did not seem too concerned with his lack of teeth and I would assume his dental treatment needs (despite any trauma) is low.
   21 With respect to his future treatment expenses, the applicant provided a treatment plan from Aria Dental dated 11 September 2018 in the amount of $19,071 for treatment of teeth 32 and 42 (lower lateral incisors) and tooth 41 (lower central incisor).
   Method of assessment
   22 Section 30 of the Act sets out the general powers of an assessor. It provides ‘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’. Under Section 3 of the Act, ‘satisfied’ means ‘satisfied on the balance of probabilities’.
   23 In assessing the amount of compensation, the court should have regard solely to the injury suffered by the applicant in consequence of the commission of the offence. The amount of compensation is not to be fixed as punishment of the offender or as an expression of sympathy for the victim.  
   24 The correct approach to adopt in assessing the amount of compensation under the Act 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 Act, and to the jurisdictional limit of the Act. 
   Assessment of the applicant’s claim
   Assessment of “Injury”
   25 Pursuant to section 12 of the Act a victim who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss suffered. ‘Injury’ is defined in section 3 of the Act as ‘bodily harm, mental and nervous shock, or pregnancy’.
   26 The amount of damages for injury must be fair and reasonable compensation for the injuries received by the applicant and the disabilities caused, having regard to current general ideas of fairness and moderation. The amount must be proportionate to the particular situation of the applicant.
   27 Having considered the information available to me, I found the applicant suffered from bruising and contusions to his bottom lip, left eye and tenderness to his left arm, chest and face. Three of the applicant’s teeth, being teeth 32 and 42 (lower lateral incisors) and tooth 41 (lower central incisor) were knocked out by the offender.
   28 The applicant provided no medical evidence with respect to any psychological symptoms. In his report dated 1 October 2018, Dr Zaninovich, dentist, reported the applicant ‘did appear to be genuinely upset and concerned about his lower dentition” on 11 September 2018. In his Victim Impact Statement the applicant described psychological symptoms, however these related primarily to the impact of his employment difficulties, with the applicant commenting:
   I was struggling to pay my bills and financially support my family. I was anxious and depressed which eventually took a toll on my family and friends. As such, my family and I did not have a pleasant Christmas and I could notice the heartache that my dire financial situation had on my teenage daughter.
   . . .
   Since the assault, my employment options have been very limited, and I have been unable to secure a position similar to the once (sic) I had at Avon Valley Beef due to my physical appearance. Despite my extensive experience as a general manager, I was not considered for managerial roles due to my physical appearance. I have experienced substantial financial burden from the same which I am yet to recover from. I still look the same as I did after the assault, and the repercussions thereof are still affecting me to this day both mentally and physically.
   29 I accept the applicant experienced some psychological symptoms arising from the incident, comprising his initial concern over his dental injuries and then the impact on his physical appearance. However, according to the Victim Impact Statement the greatest impact on the applicant’s psychological state was from his financial situation when he was unable to secure stable employment after his redundancy.
   30 Taking into account the applicant’s physical and psychological symptoms, I assess $15,000 an appropriate award for injury.
   Loss of earnings
   31 The applicant’s claim for loss of earnings is based upon the difficulty he had obtaining employment which he attributed to his physical appearance due to missing teeth. In considering the claim for loss of earnings two issues arise:
5. Was the loss of earnings directly caused by the applicant’s injury;
6. Did the applicant fail to mitigate his loss by having his teeth repaired.
   
   32 An applicant is able to claim for loss of earnings if he can establish the loss of earnings suffered was “as a direct consequence of the injury suffered”. In ATV v LA [2021] WADC 64, Lemonis DCJ stated:
   As can be seen, this definition includes the word direct before consequence, which word does not appear before consequence in s 12(3). The word direct (or directly) appears in the other paragraphs comprising the definition of loss in s 6(2). At first blush, it is unclear whether the introduction of a qualifying word such as direct in s 6(2) results in there being a higher threshold to establish compensation for loss from injury within the meaning of s 6(2), compared to the requisite threshold to establish compensation for injury from the commission of an offence within the meaning of s 12. In any event, even if it does result in a higher threshold, I consider that threshold would only reach the height of the injury being the substantive (or dominant) cause, as opposed to a material cause. In my view, it would be contrary to the compensatory purpose of the legislation to require that the injury be the sole cause of loss.
   33 The applicant was able to continue working from the date of the offence in September 2018 until he was made redundant in May 2019. He then secured further employment and continued working until September 2019 when he ceased employment for reasons unrelated to his injury. The applicant’s claim for loss of earnings is not due to an inability to work but upon the difficulty the applicant had obtaining secure employment subsequent to his redundancy in May 2019, which he attributed to his physical appearance due to missing teeth. On 18 June 2021, 28 June 2021, 1 July 2021 and 15 September 2021 I requested the case manager write to the applicant’s solicitors seeking evidence in support of the claim for loss of earnings.
   34 The applicant provided no evidence of any jobs he had applied for, the interviews he had undertaken or any statements from the “associates” referred to in his victim impact statement who allegedly advised him his employment applications were unsuccessful due to the appearance of his teeth. It is open for me to find the reason the applicant did not obtain employment was due to reasons other than his dentition.
   35 An applicant has a duty to mitigate his or her loss. In Kittelty v Davies [2011] WADC 1 [250] Derrick DCJ summarised the principles as:
   
   The principles relating to mitigation of loss are well established. The burden of proving that a plaintiff has failed to take all reasonable steps to mitigate his or her loss lies upon the defendant: Watts v Rake, 159; Plenty v Argus [1975] WAR 155, 157; Wakim v McNally (2002) 121 FCR 162, 182. Failure to take all reasonable steps to mitigate any loss bars the plaintiff from being compensated for that loss: British Westinghouse Electric & Manufacturing Company Ltd v Underground Electric Railways Company of London Ltd [1912] AC 673, 688 – 689; Ardlethan Options Ltd v Easdown (1915) 20 CLR 285, 296; Tuncel v Renown Plate Co Pty Ltd [1976] VR 501, 503 – 504. In considering the reasonableness of the plaintiff’s conduct the test is objective, but depends upon the personal characteristics of the plaintiff including his or her state of knowledge at the time: Fazlic v Milingimbi Community Inc (1982) 150 CLR 345, 349-352; Fontaine v Quality Platers (1994) 12 WAR 71, 78-79; Kalavrouziotis v Howel & Kalavrouziotis (unreported, WASC, Library No 980219, 1 May 1998), 3 per Kennedy J, 8 per Wheeler J
   36 An applicant is not required to do something he cannot afford, however he may be required to incur expense to mitigate his damage. The applicant advised in his Victim Impact Statement he did not mitigate his loss as he could not afford to do so:
   On 1 September 2019, I ceased working at Crown Valley. At the time, my employer owed me $35,000.00 in wages. I was getting increasingly frustrated due to not being paid for the work I did at Crown Valley, and I was not getting any other work opportunities. I had no source of income. I was running out of funds and felt compelled to use the funds from the payout to pay for my debts and living expenses. I attempted to save the bulk of the funds from the payout for my dental expenses. Me options were very limited at the time. By late March 2020, the fund from the payout were used up.
   On 20 March 2020, I obtained my first payment from Crown Valley. By that time, the funds I received from the payout were exhausted.
   37 The applicant stated due to financial hardship from not being paid by Crown Valley, in early August 2019 he entered into negotiations with QBE Insurance and received a payment on 13 August 2019. The records of QBE Insurance indicate the applicant commenced negotiations for a lump sum payment on 15 May 2019 and signed the settlement agreement on 19 July 2019. On about 31 July 2019 the applicant received a lump sum payment from QBE Insurance in the amount of $28,000. The variation in dates is relevant only as to the applicant’s financial situation when he received the lump sum payment and his ability to use a portion of that money towards dental treatment rather than his living expenses. When the applicant received the lump sum settlement he was gainfully employed and had recently received a redundancy payment.
   38 Dr Abbondanza suggested treatment options of dentures at a cost of $3,500 or of periodontal treatment and a partial denture at a cost of $6,000, both of which would have corrected the applicant’s appearance. Given Dr Abbondanza noted treatment which involved saving the applicant’s teeth and implants was more likely to fail, these options which had a relatively modest financial outlay could have been undertaken by the applicant from 31 July 2019.
   39 I note the applicant was without his upper teeth from 2015 to 2018. He did not have treatment for the three missing lower teeth between the offence and negotiating settlement of his claim, despite QBE Insurance having accepted liability to pay the medical expenses on 29 October 2018, from which date onwards the applicant could have had the dental repairs had he wished to do so. The applicant attended Dr Zaninovich on 4 October 2018 to have a “tryin” appointment for the prosthetic teeth. The applicant was due to attend a subsequent appointment to have the teeth inserted but did not attend. Consistent with his prior history of not having dental treatment, I find the applicant chose not to have the dental treatment when he could afford to do so.
   40 The applicant’s solicitors advised the applicant was employed by Crown Valley from May/June 2019 until September 2019, receiving a back payment of his wages from Crown Valley in March 2020. It is unclear when the applicant obtained employment after leaving Crown Valley. I accept from about September 2019, when he ceased employment at Crown Valley and when he secured employment as a forklift operator the applicant experienced difficulty in paying for the treatment required.
   41 I have considered whether the applicant failed to mitigate his loss by not undertaking the recommended dental treatment between 11 September 2018 and about September 2019. However, in the absence of any evidence the applicant’s inability to obtain employment was due to his poor dentition, whether or not the applicant failed to mitigate his loss by not having dental treatment is irrelevant.
   42 On the evidence provided I do not accept the applicant’s injury caused the applicant to sustain any economic loss.
   Future Treatment
   43 The applicant is entitled to compensation for expenses that are likely to be reasonably incurred for any treatment the applicant is likely to need as a direct consequence of the injury suffered by the victim. There are two issues to be considered: what treatment the applicant requires, and whether that treatment is required as a direct consequence of the injury.
   44 An applicant “should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries”. Prior to the incident the applicant had poor dentition and would have shortly required replacement of his lower teeth. Almost any treatment option is likely to improve the applicant’s teeth from what they were when the offence occurred. Dr Zaninovich noted in his report dated 5 November 2021 the consequence of the offence was to improve the applicant’s oral health in that it eliminated active infections from his lower jaw and the loss of the infected teeth subsequently allowed the bone and tissues to heal more favourably.
   45 The applicant has submitted a quote for future treatment of teeth 32, 41 and 42 in the amount of $19,071. The quote allows for implants and crown to those three teeth.
   46 I have set out at [16], above, the four treatment options recommended by Dr Abbondanza. I note his concerns any treatment focused on implants or the saving of the applicant’s teeth will “most likely lead to early failure of treatment” and lead to the applicant wearing dentures in any event. This is consistent with the applicant having had seven implants placed in his upper jaw in 2015, and there only being four implants remaining as at 2018. I accept Dr Abbondanza’s opinion and find it is not reasonable for the applicant to have treatment requiring implants as it is unlikely to be successful. Dr Abbondanza recommended two treatment options with either a complete or partial denture, I accept this treatment to be reasonable and would allow up to $6,000 (being the higher of the two estimated treatment costs) for such treatment.
   47 The applicant had extremely poor dentition prior to the offence. Both Dr Zaninovich and Dr Abbondanza were of the opinion the applicant’s teeth would have been lost in the short term and the incident simply hastened the need for the treatment. The dental experts commented irrespective of the offence, the applicant would have required the same treatment. In his report dated 1 October 2018 Dr Michael Zaninovich stated:
   The injury at work has accelerated the need for treatment, although the teeth inevitably would be scheduled for extraction and replacement due to their advanced state of disease.
   If the work place incident did not occur, the damaged teeth would still have required treatment. The treatment of choice would have been extraction.
   Dr Daniel Abbondanza, dentist, stated:
   Without the reported incident the teeth would ultimately suffer the same fate. The reported trauma would merely have hastened the process.
   In essence, the fact remains that his lower teeth are in a poor state, the incident has hastened the need for treatment but not changed what he required.
   48 On 15 April 2021 I raised a concern with the applicant’s solicitors given the extent of the applicant’s pre-existing damage to his teeth the dental treatment was not required as a result of the offence. In response the applicant’s solicitors drew my attention to Hansen v Bolton stating:
   In the matter of Hansen v Bolton, the relevant factors to determining whether compensation should be awarded in respect of a pre-existing condition was discussed by Herron DCJ as follows:
   Compensation would not be awarded if the injury or loss would have occurred in any event due to a pre-existing condition … Where it is not possible to disentangle the consequences of a pre‑existing condition and the consequence of the events, the claimant is entitled to compensation for the full injury and loss if the claimant can establish that the compensable offence did contribute materially to the claimant’s injury or loss.
   Whilst we appreciate that our client had pre-existing damage to his teeth, the accused materially contributed to our client’s loss of three bottom teeth by repeatedly punching our client in the face on the Date of Injury.
   49 The above quoted paragraph is selective and incomplete. At [85] Heron DCJ in fact adopted the reasoning of Sleight DCJ regarding the relevant principles where an applicant has a pre-existing condition in JY:
   13 Where a complainant has a pre-existing condition a number of principles must be taken into account:
   (a) The onus is on the claimant to prove that the compensable offence did contribute materially to the claimant’s injury and loss. However the offence need not be the sole cause of the injury or loss: Bonnington Castings Ltd v Wardlaw [1956] AC 613; Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666.
   (b) Compensation will not be awarded if the injury and loss would have occurred in any event due to a pre-existing condition: Smith v Leech Brain & Co Ltd [1962] 2 QB 405. Where it cannot be positively stated that the event (the injury or loss) would have occurred in any event but it remained a probability then the award of compensation must be reduced to take into account that probability.
   (c) If it can be proved that the offence has made a pre-existing condition worse by aggravation, or brings on a condition earlier, the assessment of compensation is made on the basis of the worsening or acceleration or both as the case may be: Zumeris v Testa [1972] VR 839.
   (d) Where it is not possible to disentangle the consequences of a pre-existing condition and the consequences of the offence, the claimant is entitled to compensation for the full injury and loss if the claimant has establish that the compensable offence did contribute materially to the claimants injury or loss: Bonnington Castings Ltd v Wardlaw; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; MJN v MAJS (2003) 35 SR (WA) 219, 227 (Martino J).
   (e) In respect of events which have already occurred the court decides on the balance of probabilities whether a specific event has occurred or not and damages are assessed on an all or nothing approach. However, where it is necessary to assess a hypothetical situation such as whether a claimant’s pre-existing condition would in any event have prevented the claimant from working in the future, the court must perform an estimate of the likelihood that the hypothetical situation may occur. If there is a fair chance that the hypothetical situation may occur, the court must evaluate that chance and discount the compensation by the percentage that represents that chance: Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485, 499 – 500. These adjustments for probabilities is relevant to general damages and past and future loss: Wilson v Peisley (1975) 50 ALJR 207, 212 (Stephen J); SW v BB [2010] WADC 86.
   (Emphasis added)
   50 Given the extent of the applicant’s pre-existing dentition I find the applicant would have required replacement of his teeth within a short time frame of the offence in any event. The offence has brought forward the need for the applicant to undergo treatment and accordingly the assessment of compensation is based on the acceleration only. I have no evidence the applicant has incurred or will incur any additional costs as a result of the treatment being required earlier.
   51 To establish the treatment is required as a direct consequence of the injury the applicant must establish the injury was the substantive (or dominant) cause, as opposed to a material cause. The offence brought forward the applicant’s need for treatment and did not change the treatment he required. But for the injury, the applicant still would have required extraction and replacement of his teeth. (The injury meant the applicant no longer required the extraction of his teeth but still required their replacement). The injury was not the substantive or dominant cause of the treatment required because such treatment would still have been required if the injury had not occurred. I find the proposed future dental treatment is not required as a direct consequence of the injury.
   Report fees
   52 The applicant is entitled to compensation for expenses that arise in obtaining any report from a health professional or counsellor in relation to the injury suffered by the victim. The applicant did not provide any invoice with respect to the report he provided from Dr Zaninovich dated 5 November 2021 so I cannot make an allowance for this potential expense.
   53 The reports obtained by QBE Insurance are from a health professional and are in relation to the injury suffered by the victim and therefore comprise losses pursuant to section 6(2)(a)(ii) of the Act. I allow $975 for report expenses.
   Summary of the assessment
   54 I have assessed the applicant’s claim as:
   Injury $ 15,000.00
   Loss of earning capacity $NIL
   Future treatment expenses $NIL
   Report expenses $ 975.00
   SUBTOTAL $ 15,975.00 
   Deductions of amounts required under section 42 Act
   55 Section 42(3) provides as follows:
   An assessor must deduct from a compensation award in relation to any injury or loss suffered by a victim, or a close relative of a deceased victim, any amount that the victim or close relative has received whether under a contract of insurance or otherwise, for the injury or loss.
   56 This means any amount the applicant has received for the injury or loss whether under a contract of insurance or otherwise must be deducted from the compensation award. The applicant received payments of $28,975 in settlement of his workers compensation claim. If the amount he received in settlement of his claim is deducted from the amount of my assessment, an outcome of $NIL arises. I raised my concerns with respect to this with the applicant’s solicitors on 17 May 2021 advising I was required to deduct the amount of $29,875 from any award pursuant to section 42 of the Act and unless I assessed the claim at an amount greater than $28,975 I would be unable to make an award in his favour. In response the applicant’s solicitors advised:
   (e) In the matter of Baker v His Honour Judge Stone,1 the court found that the purpose of the Act is to ensure that victims who will not otherwise be compensated for their injury or loss are compensated under the Act.
   (f) Whilst the Lump Sum Payment was made to our client to cover our client’s dental expenses, QBE Insurance has failed to provide our client with adequate compensation for loss of income around the time of the incident.
   (g) Our client therefore used the Lump Sum Payment for his living expenses up to around 20 March 2020 in lieu of using the funds towards his dental expenses. As such, our client will require further compensation for his dental expenses.
   (h) We attach a copy of a letter from QBE Insurance to our client regarding the Lump Sum payment for your consideration.
   (i) In light of the above, we submit that QBE Insurance has failed to provide adequate compensation to our client for:
   i. past and future loss of income;
   ii. dental expenses in the amount of $19,071.00;
   iii. loss of enjoyment of life/amenities; and
   iv. pain, suffering, and mental harm arising out of the injury.
   (j) We note that the above losses were reasonably incurred by our client as a direct consequence of from the assault and as such is entitled to compensation under the Act.
   2.2 “Double-Dipping”
   (a) Section 30(1) of the Act provides that the statutory maximum for compensation is in the amount of $75,000.
   (b) In the matter of Devos v James,2 his Honour further found that there is no provision in the Act that prevents “double-dipping” where the previous compensation awarded is less than the statutory maximum.
   (c) As such, the Lump Sum payment awarded to our client does not prohibit our client from seeking compensation in the full amount for his injuries and losses under the Act.
   57 The submission is correct in that the Act does not prevent “double-dipping” in circumstances where compensation under the Act does not exceed the difference between the amount of $75,000 and the amount received from another source. The maximum the applicant could have received (if his claim had been assessed at $75,000) was $46,025 after deducting the amount of $28,975 pursuant to section 42 of the Act. However, any compensation or damages of the type for which compensation may be awarded for “injury or loss” as defined in the Act must be deducted from an award and in circumstances where the assessment is less than the amount already received by the applicant, no additional payment can be made to the applicant.
   
   58 I find the amount of $28,975 paid by QBE Insurance is a payment for ‘injury’ or ‘loss’ and must be deducted from the compensation award. I assessed the applicant’s entitlement to compensation to be $15,975. From this I now deduct the sum of $28,975, resulting in a net amount to the applicant of $NIL. Accordingly, I now refuse the application for compensation.

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

K Hafford, ASSESSOR OF CRIMINAL INJURIES COMPENSATION

8 APRIL 2022