JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

CITATION : A [2022] WACIC 9

CORAM : K HAFFORD

DELIVERED : 19 AUGUST 2022

FILE NO/S : CIC 1552 of 2020
CIC 1553 of 2020

BETWEEN : A
Applicant

Catchwords:

Neglect – Alleged offences – Assessment of damages – Burden of proof – Extension of time – Mental and nervous shock – Maximum for related offences – Turns on own facts

Legislation:

Child and Community Services Act 2004, s 28, s 101
Child Welfae act 1947, s 31A
Criminal Code, s 317
Criminal Injuries Compensation Act 2003, s 3, s 9, s 12, s 17, s 18, s 19, s 31, s 33, s 34, s 35, s 48
Family Violence Legislation Reform Act 2020
Trustees Act 1962, s 59(a)

Result:

Compensation granted

Representation:

Counsel:

Applicant : Not applicable

Solicitors:

Applicant : Care Legal

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

A v D (1994) 11 WAR 481
B v W (1989) 6 SR (WA) 79
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 549
DR v CD [2018] WADC 148
F [2022] WACIC 7 at [26]
Hansen v Bolton [2017] WADC 25 [14]
Hill v Clarke [2015] WADC 93 [13]
Houlahan v Pitchen [2009] WASCA 104
Hunia v Kwan [2002] WADC 117 at [7]
J [2009] WACIC 31
JYCD [2019] WACIC 16 at [32]
KMA v DFS [2010] WADC 6
M v J and J v J (Unreported WASC, Library No 920598, 19 November 1992)
MES v KG (1995) 12 SR (WA) 330, 331 ‑ 332
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 [170] – [171]; (2005) 222 CLR 612
PES v The State of Western Australia [2013] WASCA 202 [20] – [24]
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Re ATS [2017] WADC 76[28]
Re Carter (1984) 4 SR (WA) 219
Re Jackamarra [2014] WADC 9 [20]
Re McHenry [2014] WADC 92[16]
Re TLJ [2016] WADC 74
Re Utting [2011] WADC 10
RJE v Bandy (Unreported WASC, Library No 1365; 31 May 1974)
Robertson v Baker [2014] WADC 14
SL (by her next friend NL) [2014] WADC 178 at [101]
SV v The State of Western Australia [2014] WASCA 123 [131]
Underwood v Underwood [2018] WADC 13 [117]
VPAN [2011] WADC 40 [94]
Winiarczyk v Tsirigotis [2011] WASCA 97
X v McAllister [2021] WASCA 3

Reasons for Decision:

1 By application dated 22 July 2020 the Public Trustee on behalf of “A” (the applicant) claimed compensation for injuries sustained as a consequence of alleged offences committed by “K”, his mother (CIC 1552/2020) and “S”, his mother’s partner (CIC 1553/2020). On 20 October 2021 I made an award of $75,000 in favour of the applicant on each matter. On 5 November 2021 the Public Trustee, on behalf of the applicant, accepted the awards made. I subsequently received a request to provide reasons for my decision, which I set out herein.
Evidence
2 In support of the application, the applicant provided 117 separate documents which included extracts from the Department of Communities’ (DoC) file including Case notes and various medical and care documents after the apprehension of “A”, plus various police incident reports, and medical reports. Due to the large volume of materials provided I do not list them separately. In addition, the applicant provided an Order from the State Administrative Tribunal dated 20 August 2020 which appointed the Public Trustee as his plenary administrator and the Public Advocate as his limited guardian; an invoice from Mindstate Psychology, dated 1 February 2020; a submission containing a request for an extension of time and submissions with respect to the claims.
Format of the application
3 The applicant submitted four separate applications as follows:
(a) Alleged offender – “K” the applicant’s mother, between 2001 to 2012 at “a home in WA”; Alleged offence – Failing to protect a child from harm – s101 Child and Community Services Act 2004 (CCSA Act) – neglect. This claim was in relation to “K” failing to provide him with adequate care and effective medical, therapeutic and remedial treatment.
(b) Alleged offender – “K”, between 2001 to 2012 at “a home in WA”; Alleged offence – Failing to protect a child from harm – s 101 CCSA Act – emotional abuse. This claim was in relation to “K” exposing him to domestic violence from having a number of violent partners.
(c) Alleged offender – “K”, between 2001 to 2012 at “a home in WA”; Alleged offence – Failing to protect a child from harm – s 101 CCSA Act – sexual abuse. This claim was in relation to “K” exposing him to sexual activities involving “K” and various partners in the home.
(d) Alleged offender – “S”, between 2011 to 2012 at “a home in WA”; Alleged offence – Assault causing bodily harm, s 317 The Criminal Code. This claim was in relation to “S” assaulting either “A” or “K” at various times.
4 The applications were made pursuant to section 17 of the Criminal Injuries Compensation Act 2003 (the Act). An award of compensation for an alleged offence can be made if an Assessor is satisfied the claimed loss and injury occurred and that it did so as a consequence of an alleged offence.  Pursuant to section 3 of the Act ‘satisfied’ means ‘satisfied on the balance of probabilities’.  It must be more probable than not that the alleged offending occurred.  An applicant who claims compensation under the Act where no conviction has been entered bears the burden of proving the offence.  
Circumstances giving rise to the claims
5 The applicant was born on 8 September 2001 and is the natural child of “K”. He has two older siblings who were born in 1987 and 1990. Limited information is available in relation to the applicant prior to him coming to the attention of the DoC. In DoC records, the applicant’s father is described as being a long-distance truck driver who the applicant recalled spending time with on a single occasion. The applicant’s parents separated and his father subsequently re-partnered. He was recorded as having eight year-old twins in 2012, which suggests his relationship with the applicant’s mother ended in or prior to about 2003. Whilst the applicant’s relationship with his father is unclear over the period 2001 to 2012, it is not relevant for the purposes of this application.
6 DoC records note a family history which was provided by the applicant’s older sisters, “J” and “T”, subsequent to his apprehension by DoC in 2012. They advised the applicant was primarily cared for by his sister, “J”, from the ages of zero until three years until she left home at age 17 years. After “J” moved out of home, “K” restricted “J’s” access to “A”. The applicant’s other sister, “T”, then took over the care of “A” from ages three to 10, including supervision, preparation of meals and transport to and from school. “T” also reported between about 2007 and 2011 she had been financially responsible for the family until moving out of the family home in December 2011, when she was aged 21 years.
7 The earliest document provided in support of the application was a police incident report dated 5 September 2007 which indicates police attended an incident involving “K” and her then partner, “GS”, who was refusing to let “K” leave the premises and attempted to cut his throat with a knife to prevent her leaving. The incident report indicates “A” had been dropped at his father’s house for a birthday celebration and was not present when the incident occurred. On 3 August 2009 another police incident report records “A” being in the company of “K” who was allegedly shoplifting from Big W. Also present was “GS” who was breaching a violence restraining order by being in the company of “K”.
8 In 2009 “A” came to the attention of DoC after “K” contacted DoC seeking assistance as she was living with the applicant in a tent at camping grounds and struggling with her health and finances. She was assisted by DoC to access a refuge. “T” reported to DoC (upon interview in 2012) “T” had been staying with friends at the time as she had a broken leg, but “A” and “K” moved from caravan park to caravan park in the Fremantle and Rockingham areas every two weeks and were living in a tent.
9 In May 2010 “K” was arrested for fraud after purchasing items for herself on a former employer’s account. There is no record in the police incident report of “A” being aware of these offences. In December 2011 “K” was arrested after being apprehended for shoplifting due to outstanding bench warrants. “K” suggested “S” be allowed to care for “A” whilst she was incarcerated. A Child Protection Worker from DoC recorded the following:
CPWs spoke to [“K”] and [“A”] in relation to today’s events and placement options for [“A”]. [“K”] identified her friend as [“S”]. [“K”] stated that [“S”] is “really good with [“A”] and added that “[“A”] really likes him.” [“A”] interrupted his Mother and stated “No I don’t”. When asked to elaborate, [“A”] shrugged and stated, “I don’t like him”. When asked if he felt safe in [“S”]’s care, [“A”] said “no”.
“K” was requested to leave the room and “A” made disclosures in relation to the care provided by “S” noting he had been living with “K” and “A” for longer than a year, “S” “swears a lot and get angry a lot”, “S” grabs him around the back of his neck and pushes him around; he denied ever being hit by “S” but reported being pushed into his room and “K” and “S” do not give him “good food”. “A” rated his safety when with “S” as 1 out of 10 (10 being the safest and one being unsafe) if “K” was not around and at 10 out of 10 if his mother was present. The applicant was described by CPW workers as being a “bright and engaging 10 year old who had no problems interacting with strangers”. No child protection concerns were noted and it was considered “K” was doing her best to raise “A”. “A” was placed with a DoC carer with the agreement of “K” and returned to his mother’s care when she left custody on 26 December 2011.
10 An anonymous report was made to DoC on 28 December 2011 raising concerns in relation to “A” being exposed to “K’s” self harming behaviour and “S’s” aggressive and threatening behaviour. Additional reported concerns were “A” was not being fed, supervised, bathed and dressed adequately.
11 In an interview with the applicant’s older sisters “J” and “T” on 29 December 2011 they reported the applicant attended an Open Learning School and was transported to school by school bus. He was reported to have learning difficulties and delays which his sisters described as not knowing the days/months of the year, how to tell time, having delayed speech and few friends. They noted he was left unsupervised after school until “K” or “S” returned to the home. They reported concerns about domestic violence, possible drug dealing by “S”, possible drug use by “K”, and a lack of food in the home.
12 On 3 January 2012 the applicant’s sister, “T”, reported to DoC she did not know where her mother and “A” were living as she was too scared to return to her former home address to check and when she saw the applicant recently he was defensive when she asked him about whether he had eaten that day.
13 On 8 January 2012 police attended a domestic violence incident between “K” and “S”, during which “S” was reported to have backhanded “K”, pulled her hair and pinned her to the bed. “A” was not present during the altercation but later saw his mother on the couch. Police recorded “K” had no visible injuries. “K:” did not want to prosecute “S”, but reported the incident to gain police assistance to remove “S” from the premises.
14 On 10 January 2012 the applicant’s sister, “J”, contacted DoC to advise her mother and the applicant were homeless due to domestic violence and she thought her mother may be “spiralling”. On 13 January 2012 the applicant’s sister again contacted DoC to advise her mother had attempted suicide and had been hospitalised. She did not know where her brother was as her mother refused to tell her and she was concerned about “A’s” safety. Records from Sir Charles Gairdner Hospital indicate “K” presented with a self-inflicted right forearm laceration but no longer felt suicidal. On examination it was noted she had recent track-marks (indicative of drug use), multiple haematomas over her body including finger sized bruises. “K” advised hospital staff her son was safe with school friends.
15 On 17 January 2012 DoC were contacted by “W” who had been caring for the applicant for the past four days. “W” expressed concerns “K” dropped the applicant at her house but had not come to collect him, “A” was underweight and had been dropped off with a single pair of underwear and a packet of skittles. “W” also advised “K” had told her the applicant was not safe with her due to “S”, “K” had been sleeping in the park and she was planning to “go on the game”. “W” commented “K’s” appearance was suggestive of drug use. “W” advised she had spoken with the applicant and he told her he had seen “S” be violent towards “K”. During a follow-up discussion on 18 January 2012 “W” advised DoC the applicant had been having nightmares and had disclosed incidents of violence towards him from his mother’s previous partners.
16 On 19 January 2012 the applicant was apprehended and placed in the care of his sister, “J”. On 31 January 2012 DoC sought a protection order (two year time limited) which was made on 23 April 2012. The affidavit in support of the protection order raised concerns with the applicant’s safety and welfare due to his mother’s mental health issues, exposure to domestic violence, exposure to criminal activities, lack of secure accommodation and failure to obtain treatment for his developmental delays.
17 In late January 2012 “J” reported “A’s” nightmares had ceased and he became a “more bubbly kid”. In May 2012 DoC file notes record “J” advised “A” disclosed to her having watched a lot of sex on the television whilst living with his mother. A similar disclosure made in April 2014 was “A” had been allowed to watch pornography by “S”.

18 The applicant’s placement with “J” lasted for a year whilst long term carers were identified. He was subsequently placed with relatives of his sister’s partner in NSW. However, this placement broke down in early 2014 after the applicant displayed challenging behaviours including a lack of empathy after hurting foster siblings or family pets.
19 On 23 April 2012 the Children’s Court granted parental responsibility for the applicant to the Chief Executive Officer of DoC until the applicant reached 18 years.
20 At a case meeting held on 7 August 2014 “J” and “T” disclosed their understanding “A” had been exposed to sexual behaviours whilst living with “K” including “K” walking around naked, “K” having sexual intercourse “everywhere” in the house and “A” having slept in his mother’s bed whilst she and “S” were naked.
21 The applicant made additional disclosures of sexual behaviours by the applicant’s foster brother whilst he was living in NSW, but later retracted these allegations. There were two reports of “A” engaging in sexual behaviours with another child in his group home in 2014.
22 In an interview with a DoC solicitor on 19 November 2018 the applicant advised his understanding of why he came into care was his mum wasn’t a good person as she took drugs and worked as a prostitute. He advised on one occasion “S” smashed a window and forced the applicant to climb into through the broken window, during which the applicant cut himself. Upon questioning, the applicant denied any physical scars from that incident. He described on another occasion “S” threw him off the sofa and chased him when he ran away, breaking the door of “A’s” room to get to him. He also reported when he was “about 7 years old”, “S” poured gasoline over his face and eyes. I note “S’s” involvement with the mother did not commence until the applicant was approximately 10 years old. The applicant advised “S” and his mother’s other boyfriends would regularly hit him. He described his mother getting her to help him steal for her and to steal his own birthday presents. In relation to the incident on 8 January 2012 “A” advised he witnessed “S” assaulting his mother in 2012, he spoke to his sister about it and she told him “don’t go out there, just stay in here”. I note however when the incident occurred on 8 January 2012 neither of the applicant’s sisters were residing at the home at that date and so he could not have remained in a room with his sister. It is unclear whether the applicant has an accurate recall of the various alleged incidents or whether the passage of time has influenced his recall. The applicant also reported “K” and “S” dealing drugs from the premises.
The applicant’s injuries
23 The DoC materials contained an undated document entitled “Confidential Psychological Report”. The author of this document was not identified, but contemporaneous records suggest it was the school psychologist at the applicant’s primary school. The report was completed after the applicant began living with “J”. The applicant was reported to have a fragmented educational history and was noted to be unable to cope with year 4 work, despite being of year 5 school age. His test results indicated he had very few basic skills and had an intellectual disability. It was recommended he be placed in an Education Support Centre.
24 Ms Johnstone, Psychologist, produced a report dated 5 February 2013. “A” had attended upon her 19 times between May and December 2012. Ms Johnstone noted during play therapy “A” acted out physical punishment received from “S” and the failure of “K” to intervene. His play reduced in aggression over the course of the therapy.
25 In a report dated 18 September 2013 Mr John de Laurence, psychologist, noted an impaired ability to trust, insecurity in his attachments (which Mr de Laurence attributed to his relationship with “K”) and learning deficits which were suspected to relate to a lack of stimulation whilst growing up. He noted “A” was reported to have acting-out behaviours and required assistance in developing an appropriate response for emotional distress.
26 In February 2014 “A” presented to Princess Margaret Hospital upon a GP referral in relation to suicidal ideation.
27 Between December 2014 and April 2015 the applicant underwent speech therapy. A report from Ms Elle Papalia, Speech Pathologist, dated 12 January 2015 noted persisting severely delayed expressive and receptive language difficulties which impacted on his daily function in both conversation and academically. It was reported the applicant had attended at least seven, but possibly nine, schools between kindergarten and year 5. Ms Papalia noted in the absence of intensive therapy it would be unlikely he would progress to perform at an average level for his age and stage of development.

28 On 5 April 2016 “A” underwent an assessment by Dr Danny Shub, Consultant psychiatrist, who produced a report of that same date. Dr Shub noted the applicant had a range of psychological symptoms involving both anxiety and depressive symptoms which included nightmares, a tendency to ruminate about traumatic memories, concerns regarding his safety, low self-esteem, peer relationship difficulties, a tendency to angry outbursts and significant problems with respect to his capacity to focus and concentrate in class. Dr Shubb diagnosed Post Traumatic Stress Disorder, significant ADHD and noted concerning depressive symptoms.
29 “A” was reviewed by Dr Rick Christie, Paediatrician on 5 July 2016. Dr Christie referred to an exposure to domestic violence and trauma and physical abuse from his mother’s partners including on one instance being thrown through a plate glass window, resulting in both physical and emotional scars. I have no additional evidence of “A” being thrown through a window and therefore consider there likely are inaccuracies in the history provided to Dr Christie. Dr Christie reported “K’s’ pregnancy with “A” was likely complicated by substance abuse and alcohol abuse. He described the applicant as “clearly quite a disturbed boy who has been exposed to neglect as well as trauma in the past” but notes some possible “biologic inputs into his behaviour with a predisposition to ADHD and emotional lability”. In a subsequent report dated 15 August 2017 Dr Christie reported the applicant had a moderately persistent low mood particular after a traumatic break-up with a girl seven months ago when he threatened to jump off a bridge. Dr Christie noted the applicant’s school grades had dropped and he had some social difficulties at school.
30 The applicant attended Dr Julia Charkey-Papp, Psychiatrist in January 2018. In a report dated 19 January 2019 Dr Charkey-Papp noted a tumultuous childhood and upbringing with likely significant psychological trauma. Positive gains were reported by “A” and his foster-parent in relation to his day to day functioning since 2015. However, he was reported to have ongoing issues identifying his emotions, experiencing internal derogatory voices, low self-esteem, poor sleep patterns. Dr Charkey-Papp concluded:

In conclusion, [“A”] is a 16 ½-year-old child in state care, currently living with a foster parent. “A” has intrinsic and environmentally determined vulnerabilities. By this I mean that he probably inherited biologically and genetically determined predispositions to ADHD and learning difficulties, whereas the environment and the experiences he has been exposed to have further undermined his early and adolescent development”.
31 Between February 2018 and October 2018 “A” underwent counselling. Issues of concern noted in the undated report of Mr Nigel Cameron, Clinical & Forensic Psychologist included unsettling behaviours such as an obsession with knives and passive aggressive behaviours such as leaving a dead rat by his carer’s door. The applicant was reported to experience frustration and low mood and to require coaching in social skills and relationships, particularly sexual relationships.
32 The applicant’s solicitors obtained a report from Dr Phil Watts, Adjunct Associate Professor in Clinical Psychology dated 31 January 2020. Dr Watts described the applicant as a “relatively simplistic boy who lacks psychological awareness and insight. He has sufficient skill to function in the community in a basic fashion and with significant limitation”. The applicant was noted to be reluctant to talk about the past and did not want to make negative disclosures in relation to his mother, with whom he was living at the time of the assessment. Dr Watts referred to the applicant’s early exposure to adult sexual behaviour between his mother, her partner and other people and attributed this early, premature sexualisation as the cause of the later sexual acting-out by the applicant. However, Dr Watts also considered the alleged sexual behaviours of the applicant’s foster brother in NSW as being likely to have caused much of the sexual acting out which was noted after his return to WA.
33 Dr Watts attributed some of the applicant’s ongoing anxiety to his childhood instability and dysfunction. He reported the applicant will always be low functioning, partly as a product of his IQ and partly a product of the childhood environment which he grew up in having negative impacts, noting the applicant failed to develop appropriate emotional and behavioural skills. Dr Watts’ ability to assess the applicant was impacted by the applicant’s refusal to discuss the offences. Despite this, he stated:
[I]n my opinion [“A”] has been profoundly affected by the early neglect from his mother, which included a very neglectful background, domestically violent partner, some quite significant violence perpetrated against him, and early exposure to sexual behaviour on the mother’s part.
34 Dr Watts considered the applicant would be unable to cope in a full mainstream situation, and always likely to need a guardian, partly due to his capacity but in a large part due to his relatively immature emotional structure. He recommended at least 20 sessions of counselling related to his early exposure to his mother’s parenting but acknowledged the applicant did not want to undertake counselling.
General principles relating to “neglect” claims
35 Section 101 of the CCS Act states:

101. Failing to protect child from harm
     (1) A person who has the care or control of a child and who engages in conduct —
     (a) knowing that the conduct may result in the child suffering harm as a result of any one or more of the following —
     (i) physical abuse; or
     (ii) sexual abuse; or
     (iii) emotional abuse as defined in section 28(1); or
     [(iv) deleted]
     (v) neglect as defined in section 28(1);
     or
     (b) reckless as to whether the conduct may have that result,
     is guilty of a crime, and is liable to imprisonment for 10 years.
     (2) In subsection (1) —
     engage in conduct means —
     (a) to do an act; or
     (b) to omit to do an act;
     harm has the meaning given to that term in section 28(1).
     
     36 The terms “emotional abuse”, “harm” and “neglect” are defined in section 28(1) of the CCS Act:
102. When child in need of protection
     (1) In this section —
     emotional abuse includes —
     (a) psychological abuse; and
     (b) being exposed to family violence;
     harm, in relation to a child, means any detrimental effect of a significant nature on the child’s wellbeing, whether caused by —
     (a) a single act, omission or circumstance; or
     (b) a series or combination of acts, omissions or circumstances;
     neglect includes failure by a child’s parents to provide, arrange, or allow the provision of —
     (a) adequate care for the child; or
     (b) effective medical, therapeutic or remedial treatment for the child.
     37 The elements of the offence created by s 101(1) of the Act include:
     (a) knowledge by the accused the conduct he or she engages in ‘may result in the child suffering harm’ as a result of physical, emotional, sexual or psychological abuse or neglect; or
     (b) alternatively, recklessness by the accused as to whether his or her conduct may have that result.
     38 The word ‘reckless’ connotes the offender wilfully or deliberately shut his or her eyes to, or excluded from contemplation, whether the alleged conduct may result in the child suffering harm of the kind specified in section 101(1). If an offender has actual foresight or actual awareness his or her conduct may result in a child suffering harm as a result of abuse or neglect of the kind specified in s 101(1), then he or she will have engaged in that conduct knowing the conduct may have that result.
     39 To establish an offence under section 101 of the CCS Act it is necessary to establish:
     (1) The alleged offender had the care or control of the applicant;
     (2) The applicant was a child;
     (3) The alleged offender:
     (a) omitted to provide adequate care for the child or effective medical, therapeutic of remedial treatment for the child; and/or
     (b) Caused harm to the child as a result of:
     i. exposure to domestic violence;
     ii. emotional abuse;
     iii. sexual abuse; and/or
     iv. physical abuse; and
     (c) Was reckless as to whether that omission may result in the child suffering harm as a result of neglect or knew that omission would result in the child suffering harm.
     40 Section 28(1) of the CCS Act defines harm as any detrimental effect of a significant nature on the child’s wellbeing, whether caused by a single act, omission or circumstance; or a series or combination of acts, omissions or circumstances. The consequence of multiple acts or omissions constituting a single offence is, notwithstanding such an offence may involve several acts of behaviour or ill treatment, pursuant to sections 31 and 33 of the Act the maximum payment available is no greater than the single statutory maximum which applies as at the date of the offence.
     
     41 In circumstances where the applicant alleges offences under section 101 of the CCS Act plus additional offences under, for example, the Criminal Code such as assault, sexual assault or deprivation of liberty, X v McAllister applies. This means an applicant can claim for a proved or alleged offence of neglect, plus those additional proved or alleged offences, even though the conduct giving rise to the additional offences may also comprise part of the offence pursuant to section 101 of the CCS Act. This permits an applicant to potentially be eligible to twice the statutory maximum pursuant to section 34 of the Act. There is an important caveat however: if the additional offences arise from the same conduct as the offence of neglect, such that they can be considered related offences, section 33 of the Act applies and a single statutory maximum is applied.
     Amendment to the applications
     42 As is common in claims lodged for “neglect”, the applicant’s solicitors submitted multiple applications for the same period and the same offender. This is clearly an attempt to enliven the provisions of section 34 of the Act by alleging multiple unrelated offences by one offender and thus increase the jurisdictional maximum to twice the amount that may be awarded pursuant to section 31 of the Act. On 26 February 2021 I wrote to the applicant’s solicitors noting an offence under section 31A of the Child Welfare Act 1947 (CWA) or under section 101 of the CCS Act refers to a continuum of behaviours constituting a single offence. Secondly, the significance of a breach of section 31A of the CWA or section 101 of the CCS Act being a single offence is that not notwithstanding such a breach may involve several acts of behaviour or ill-treatment, the maximum payment available is no greater than the single statutory maximum which applies as the date of the offence (JYCD [2019] WACIC 16). I advised I intended to assess the applications with respect to “K” as subject to a single statutory maximum. In responsive submissions dated 5 April 2021, the applicant solicitors requested the three separate alleged offences be treated as unrelated offences and sought to amend the application as follows:
     

Claim Date Location Initial application Amended application
1 2001 to 2012 A home in WA Failing to protect a child from harm – s101 Child and Community Services Act 2004 (CCSA Act) – neglect No amendment
2 2001 to 2012 A home in WA Failing to protect a child from harm – s101 CCSA Act – emotional abuse (exposure to domestic violence) Persistently engage in family violence, s 300(1), Criminal
Code Compilation Act 1913 (WA); and/or in the alternative, Common assault,
s 313, Criminal Code Compilation Act 1913 (WA)
3 2001 to 2012 A home in WA Failing to protect a child from harm – s101 CCSA Act – sexual abuse Child under 13, sexual offences against, s 320, Criminal Code
Compilation Act 1913 (WA); and/or in the alternative, Showing offensive
material to a child under 16, s 204A, Criminal Code Compilation Act 1913 (WA)
b. Dates of alleged offence: 2001 to 2012; and/or in the alternative, Occupier or
owner allowing young person to be on premises for unlawful carnal knowledge,
s 186, Criminal Code Compilation Act 1913 (WA)

43 With respect to the amendment to claim “2” I note the following difficulties. The offence of persistently engage of criminal violence is a recent amendment to the Criminal Code subsequent to the Family Violence Legislation Reform Act 2020 being assented to on 9 July 2020 and therefore was not in force when the incidents allegedly occurred. The application was initially brought in relation to exposing “A” to domestic violence and the offender is nominated to be “K”. There is no evidence “K” assaulted “A”. The amended alleged offences of persistently engage in family violence or common assault were committed by offenders other than “K”. Applications have not been brought with respect to those (unknown) offenders. Whilst based on police records I can be satisfied the incident with “GS” (referred to in paragraph [7], above) occurred, not only has no application been brought for this incident, but as “A” was not present when the incident with “GS” occurred I require evidence of “A” being aware of the incident and of the impact upon him of that specific incident before I can consider making an award pursuant to section 35(2)(e) of the Act (which permits compensation to a close relative who is living with a victim of an offence).
44 Further, for me to be satisfied the alleged offences occurred “clear and cogent proof” is required. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd the High Court stated (endnotes and citations omitted):
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
45 Clear and cogent proof of an alleged offence requires more than an allegation various unknown persons assaulted the applicant or his mother at various times. It is not sufficient to simply claim an alleged offence occurred. An applicant must establish on the balance of probabilities the alleged offence was committed. More than a broad statement to the effect “I was regularly assaulted” is required to establish on the balance of probabilities an alleged offence of common assault occurred.
46 The incidents particularised in the applicant’s submissions refer to “K” having had multiple violent partners, the incident with “GS” and an unspecified incident in 2009 which resulted in “A” and “K” staying in a refuge. I have not been provided with clear and cogent proof of any offences committed by the multiple unspecified violent offenders. I cannot be satisfied alleged offences of persistently engage in family violence and/or in the alternative, common assault, were committed by “K” over the period 2001 to 2012.
47 With respect to the amendment to claim “3” the submissions provided particulars of the applicant’s mother exposing the applicant to sex (seeing and hearing it regularly) and the applicant having slept in his mother’s bed whilst she and “S” were naked. Again, there is a lack of particularity in relation to these offences. For example, “A” may have been unwell or scared and so went to his mother’s bed for comfort in the middle of the night whilst she was sleeping naked with her partner. I cannot draw a conclusion from the facts presented of any criminal conduct by the application’s mother from this alleged occurrence. I cannot be satisfied the alleged offences under the Criminal Code occurred.
48 I did not consider sufficient specificity had been provided in relation to these alleged offences for either claims “2” or “3” so as to comprise clear and cogent proof of the criminal conduct alleged. This may in part be due to the applicant’s young age at the time and his difficulty recalling specifics of the events.
49 Whilst I did not consider there was sufficient evidence to establish the alternate proposed offences as submitted for claims “2” and “3”, I was prepared to accept there was sufficient evidence to substantiate “A” had been exposed to domestic violence whilst living with “K” and to domestic violence and pornography whilst living with “K” and “S” and this exposure comprised an offence under s 101 of the CCSA Act.
50 In relation to the categorisation of the offences I adopt the reasoning of Assessor Guthrie in F [2022] WACIC 7 at [26]:
The task for the assessor is to determine the nature of the behaviours outlined in the papers submitted in support of the various applications lodged. There are no formal pleadings under the Act and by reason of section 18(2) of the Act I am not bound by rules or practice as to evidence or procedure. In addition, I have power to amend an application of my own initiative pursuant to section 19(1)(a) of the Act. It follows notwithstanding multiple applications are lodged and/or multiple submissions are made in relation to the nature of the claims made, it is for the assessor to ultimately determine how those alleged behaviours should be treated with reference to the relevant legislation. In effect, the scheme of the Act requires me to determine any claim for compensation having regard for the substance of the claim rather than the form.
51 As a result, I amended the applications lodged pursuant to section 19 of the Act. With respect to the application arising from alleged offences committed by “K” (CIC 1552/2020):
Offender: “K”
Period: 8 September 2001 to an unknown date in about 2011
Location: Various locations in Western Australia
Alleged offence: Failing to protect a child from harm – s101 Child and Community Services Act 2004
This claim encompasses the child neglect, including exposure to domestic violence and to sexual behaviours.
52 With respect to the application arising from alleged offences of common assault committed by “S” (CIC 1553/2020). The particulars provided in relation to this claim refer to the incident on 8 January 2012 which the applicant did not witness but could claim for pursuant to section 35(2)(c) as having been personally present immediately after the offence was committed, and also referred to multiple unspecified assaults. I was unable to make awards in relation to those multiple unspecified assaults due to the lack of clear and cogent proof provided for the reasons set out at [45]-[46], above. However, given “K’s” relationship with “S”, he was resident with “K” and “A”, and “K” advised DoC “S” would supervise “A”, I considered “S” had “joint care and control of” the applicant whilst he was living with “K”. I amended the application as follows:
Offenders: “K” and “S”
Period: an unknown date in about 2011 to 19 January 2012
Location: Various locations in Western Australia
Alleged offence: Failing to protect a child from harm – s101 Child and Community Services Act 2004.
This claim encompasses the continuing child neglect by “K”, including exposure to domestic violence and to sexual behaviours and physical assaults by “S” once he entered into a relationship with “K”.
53 When making the amendments I considered the beneficial nature of the Act. I considered the likely award that would be made to the applicant for any offences committed by “S” separately for alleged assaults would be less than an award which included “K” as a co-offender and which encompassed an offence under s101 of the CCS Act. I then proceeded to determine the applications on that basis.
Findings in relation to offences
Application CIC 1552/2020
54 I found “K” committed an alleged offence of failing to protect a child from harm pursuant to section 101 of the CCSA Act as a result of the following acts or omissions:
(a) Sexual abuse:
(i) Exposure to “K’s” sexual activities;
(b) Emotional abuse:
(ii) Exposure to domestic violence via “K’s” relationships with various men, including “GS”;
(iii) Exposure to emotional harm as a result of “K’s” reported mental health issues and self harming behaviours;
(c) Neglect, comprising:
i. His primary care being provided by his sisters who were respectively 12 years and 14 years when they commenced looking after him;
ii. Exposure to criminal activities including shoplifting;
iii. Exposure to ‘K’s” drug taking activities;
iv. Lack of adequate nutrition;
v. Lack of a stable and secure home, including being homeless, and living itinerantly in camping grounds;
vi. School attendance which was reported to be “fragmented”;
vii. Lack of stimulation;
viii. Being required to care for himself after school;
ix Failure to obtain treatment for developmental delays.
Application CIC 1553/2020
55 I found “K” and “S”, as co-offenders, committed an alleged offence of failing to protect a child from harm pursuant to section 101 of the CCSA Act as a result of the following acts or omissions:
(a) Physical abuse:
i. Various assaults by “S” including grabbing him by the neck and forcefully putting him into his bedroom
(b) Sexual abuse:
i. Exposure to pornography;

(c) Emotional abuse:
i. Exposure to domestic violence;
ii. Exposure to emotional harm as a result of “K’s” reported mental health issues and self harming behaviours;
(d) Neglect, comprising:
i. Exposure to criminal activities including shoplifting;
ii. Exposure to ‘K’s” drug taking activities;
iii. Lack of adequate nutrition;
iv. Lack of a stable and secure home, including being homeless, and sleeping in a park;
v. School attendance which was reported to be “fragmented”;
vi. Being required to care for himself after school;
vii. Failure to obtain treatment for developmental delays.
Extension of time
56 Pursuant to section 9(1) of the Act an application for compensation must be made within three years after the date on which the offence to which it relates was committed or, if it related to more than one offence the date on which the last of those offences was committed. However, an assessor may allow an application for compensation after the three-year period if he or she thinks it is just to do so.
57 The last of the offences against the applicant was in 2012 and his application was required to be lodged prior to 2015 but was lodged on 24 July 2020. Accordingly, the applicant requires an extension of time within which to bring his applications.
58 In Hansen v Bolton [2017] WADC 25 [14], Herron DCJ wrote:

Factors that may be relevant to the exercise of the court’s discretion under s 9(2) include (Re Jackamarra [2014] WADC 9 [20]; Re McHenry [2014] WADC 92[16]):
(a) the history of and background to the proposed application;
(b) the length of the delay;
(c) the reasons for the delay;
(d) the nature of the proposed application;
(e) the consequences for the parties of the grant or refusal of an extension of time, including the extent of any prejudice to the respondent;
(f) the prospects of the compensation application succeeding; and
(g) whether injustice will be suffered if an extension of time is refused.
59 The applicant’s explanation for the delay in bringing his application was he was a child when the last offence occurred and subject to a protection order which gave the Chief Executive Officer of DOC parental responsibility. On 22 August 2019, shortly after upon attaining adulthood, the applicant was made subject to an order by the State Administration Tribunal appointing the Public Trustee as plenary administrator.
60 The applicant was aged 18 years when the application was brought. The delays in bringing the application prior to the applicant attaining adulthood cannot be attributed to the applicant’s conduct. In DR v CD it was accepted the applicant’s youth resulting in an inability to understand how to deal with the matter at the time, and being a child at the expiry of the limitation period were reasons to support an extension of time. I considered if the extension is not granted the applicant would be denied compensation. That on its own does not justify granting an extension of time. However I considered, for the reasons set out above, the prospects of the applicant succeeding on a timely application would have been high. I considered leave should be granted to bring the applications out of time.
Method of assessment
61 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’.
62 In assessing the amount of compensation I 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. 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
63 Prior to making an assessment of the applications, I had regard to the comments of Stevenson DCJ in SL (by her next friend NL):
The issue of assessment of damages for loss and injury suffered by a young child at the commencement of her schooling and life is, particularly when the compensation is for mental harm as opposed to direct physical injuries, a complex task: VPAN [2011] WADC 40 [94] (Sweeney DCJ):
The recognised and well documented long-term effects of child abuse, particularly chronic child abuse by a family member, however, are such that it would be quite impossible for this court to attempt to disentangle the long-term effects of any offending behaviour from any possible long-term effects from other childhood factors and the vagrancies of life generally, even if it were appropriate to do so.
Injury
64 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’.
65 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.
66 Having regard to the medical evidence outlined above, I found, as a result of the offences, the applicant suffered from a psychological injury comprising post-traumatic stress disorder, anxiety and depression, which at times included suicidal ideation. In addition, I found the applicant’s learning difficulties which arose from his intellectual disability and ADHD were exacerbated by his interrupted schooling and the failure for him to be engaged in appropriate therapies (such as speech therapy) at a younger age. Further, I found the applicant suffered from a disorganised attachment (disinhibited type) which resulted in difficulties with attachment to others, impaired his relationships with others on an ongoing basis and impacted his ability to develop appropriate emotional and behavioural skills. A further impact on the applicant was the impact of his early exposure to pornography and to his mother’s open sexual practices resulted in premature sexualisation and was considered to be responsible for the applicant’s later sexual acting out. I noted Dr Watts’ conclusion the applicant had sufficient skill to function in the community in a basic fashion and with significant limitation. I considered the impact of the psychological injuries upon the applicant to be significant. In addition, I noted the applicant had been subject to physical harm at times, including being assaulted by “S” and by “K’s” previous partners and was noted to be hungry and underfed. I considered an appropriate allowance for the applicant’s injuries to be $130,000. Having regard to the time span of each claim, and the additional impact of the failure to undertake therapies and to have provided intermittent schooling upon the applicant’s learning disabilities I apportioned $80,000 to the claim against “K” and $50,000 to the claim against “K” and “S”.
Loss of earnings
67 The applicant is entitled to compensation for ‘loss of earnings as a direct consequence of the injuries’ he suffered. Loss of earnings includes loss of earning capacity.
68 Dr Watts reported the applicant attended school until year 12 but did not graduate, which he considered to be in accordance with the applicant’s intellectual functioning. He reported the applicant was capable of doing menial work which is highly structured, but did not comment on his likely capacity for employment but for the injuries. The applicant has been looking for work but has been unsuccessful to date.
69 I considered by reason of his intellectual disability the applicant has a limited capacity for employment, irrespective of the injuries sustained. However, I found the impact of the applicant’s intellectual disability was further exacerbated by the failure for him to undertake therapies and by his intermittent schooling. His psychological injuries and behavioural and emotional skills also impact on his ability to engage with others and would therefore impair his ability to gain and maintain employment.
70 When a claim for loss of earning capacity is proved, the compensation to be assessed is essentially a matter of judgment and often cannot be proven by precise figures. I considered an appropriate allowance for the impact on the applicant’s employment to be $100,000 and I apportioned this $75,000 to the claim against “K” and $25,000 to the claim against “K” and “S”.
Report fees
71 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.
72 The applicant incurred the cost of obtaining the medical report from Dr Watts in the amount $3,300. I apportioned this fee equally, being $1,650 to each application.
Future treatment expenses
73 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. Dr Watts recommended the applicant undertake at least 20 sessions of psychological treatment related to his experiences with his mother, but noted the applicant was unlikely to do so. Despite this, noting the applicant’s young age, I considered there to be a possibility as he matured he may seek assistance and made an allowance of $3,000 (apportioned equally to each claim) for future psychological treatment.
Summary of assessment
74 I assessed the applicant’s injury and losses as follows:
Injury or Loss CIC 1552/2020 CIC 1553/2020
Injury $80,000 $50,000
Report expenses $1,650 $1,650
Future treatment expenses $1,500 $1,500
Loss of earnings $75,000 $75,000
Subtotal $158,150 $78,150

75 However, with respect to each claim, pursuant to section 31(1) of the Act the maximum compensation payable is $75,000, and I therefore assessed the compensation payable in that sum. As my assessment on both matters exceeded the jurisdictional limit, I did not withhold any monies for future treatment pursuant to section 48 of the Act and on each application ordered the sum of $75,000 be paid to the Public Trustee.

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

18 AUGUST 2022