JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

CITATION : “I” [2022] WACIC 10

CORAM : K HAFFORD

DELIVERED : 3 OCTOBER 2022

FILE NO/S : CIC 1271 of 2020

BETWEEN : “I”
Applicant

Catchwords:

Domestic violence ‑ Sexual assault ‑ Neglect ‑ Alleged offences (no person charged) ‑ Assessment of damages ‑ Burden of proof ‑ Extension of time ‑ Mental and nervous shock ‑ Turns on own facts

Legislation:

Child and Community Services Act 2004, s 28, s 101
Criminal Code, s 326
CriminalInjuriesCompensationAct2003, s 3, s 6, s 9, s 17, s 19, s 27, s 31, s 33, s 35

Result:

Compensation granted

Representation:

Counsel:

Applicant : Not Applicable

Solicitors:

Applicant : CLP LEGAL PTY LTD

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

A v D (1994) 11 WAR 481, 489;
B v W (1989) 6 SR (WA) 79, 89
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 549 (Toohey & Gummow JJ)
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 [107]
Hunia v Kwan [2002] WADC 117 at [7]
JYCD [2019] WACIC 16 at [32]
KMA v DFS [2010] WADC 6 [27]
M v J and J v J (Unreported WASC, Library No 920598, 19 November 1992) (Scott J)
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 [170] – [171]; (1992) 222 CLR 612 (Mason CJ, Brennan, Deane and Gaudron JJ)
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ)
Re ATS [2017] WADC 76[28]
Re Carter (1984) 4 SR (WA) 219 and MES v KG (1995) 12 SR (WA) 330, 331 ‑ 332
Re Jackamarra [2014] WADC 9 [20]
Re McHenry [2014] WADC 92 [16]
Re TLJ [2016] WADC 74
Re Utting [2011] WADC 10. 6
RJE v Bandy (Unreported WASC, Library No 1365; 31 May 1974.) 3 (Burt J)
Robertson v Baker [2014] WADC 14. [12] (Stone DCJ)
Underwood v Underwood [2018] WADC 13[117]
Winiarczyk v Tsirigotis [2011] WASCA 97 [71]

Reasons for Decision:

1 By application dated 14 May 2019 the applicant claimed compensation for injuries sustained as a consequence of alleged offences committed by “AW”, his mother’s partner. On 25 June 2021 I made an award of $33,293 in favour of the applicant. On 28 June 2021 the applicant accepted the award made. Pursuant to section 27 of the Criminal Injuries Compensation Act 2003 (the Act) I provide reasons for my decision, which I set out herein.
Evidence
2 In support of the application, the applicant’s solicitors provided a statement of effects dated 9 August 2019, a supplementary statement of effects dated 12 March 2021, the applicant’s handwritten statement dated 14 May 2019, a supporting statement from “FY” dated 14 May 2019, a subsequent undated statement from “FY”, a copy of the Court order appointing FY the guardian of the applicant, a bundle of records from WA Police, a medical report from Dr Frederick Ng dated 12 September 2019, a report from Miss Jenny Elliot, psychologist, dated 27 September 2005, and a medical report from Andrea Way, Child Development Centre. In addition, the applicant submitted a bundle of school records which I do not mention by name so as not to identify the primary schools attended by the applicant, plus a tax invoice and receipt from Dr Ng and submissions with respect to the claims.
3 Pursuant to section 19 of the Act I obtained additional police records of incidents involving the applicant and his parents.
Format of the application
4 The applicant’s solicitors submitted four separate applications with respect to “AW”, as follows:
(a) 28 August 2015, Beeliar – secondary victim of alleged sexual assault;
(b) 7 October 2015, Beeliar – secondary victim of alleged sexual assault;
(c) Between 2012 and 2015, Hamilton Hill – Primary victim of physical and emotional abuse;
(d) Between 2012 and 2015, Hamilton Hill – Secondary victim of physical and emotional abuse.
5 The applications were made pursuant to section 17 of the Act. An award of compensation for an alleged offence can be made if an Assessor is satisfied the claimed loss and injury occurred 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.
6 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.
7 Three of the four applications submitted were based on the applicant being the secondary victim to the alleged offences. An applicant is entitled to a compensation award for mental and nervous shock in limited circumstances which are set out in section 35 of the Act. These include where the applicant is personally present when or immediately after the offence occurred and where the applicant is a close relative (which includes child or step-child) of the person who suffered injury and is living with that person immediately before the offence occurred.
Circumstances giving rise to the claims
8 The applicant was born on 29 November 2000. The applicant has been in the care of “FY” from when he was three weeks old. “FY” has been in a relationship with “AW” since before the applicant’s birth, and “AW” was in a parental role to the applicant, although the materials before me indicated “AW” was not always resident with “FY” and the applicant. On 20 October 2003 Family Court Orders were made granting “FY” sole responsibility for the long-term care, welfare and development of the applicant. In his statement dated 9 August 2019 the applicant described a difficult childhood in which his relationship with his father, “AW”, deteriorated when he was about 12 years old. The applicant described “AW” becoming increasingly abusive towards the applicant and his mother and AW would drink excessive alcohol and taking drugs. During this time period, the applicant recalled his father often lifting him off the ground and screaming insults at the applicant. The applicant also recalled witnessing his father attempting to stab himself with a knife, and stated he did not feel safe in his own house until his father left the family home in about 2015.
9 In response to a request to the applicant’s solicitors for clarification of the alleged offences, the applicant provided a supplementary statement of events dated 12 March 2021. This recorded the following additional incidents:

5. In one instance, my dad pushed me against the wall and shouted at me. He called me “little shit”, “dickhead: and said “fuck off”. This happened in 2012 as I was at [redacted] Primary School.
6. In another incident in 2012, my dad was talking to me, I was fed up with my dad for abusing my mother, which was always on my mind. I walked away and he rushed up to me and punched me in the back.
7. I had another incident in 2012. I argued with my dad. I told him “you are not my father”. “Why are you abusing my mother”. He punched me on my left cheek. It was not a hard punch
8. In 2013, I was wagging in school. My parents had to come to school and speak to the teacher. I was suspended from school. When we got home, my dad used a belt and hit me in the leg a few times, leaving marks on my legs.
9. After these instances, I became terrified of my dad. He continued to abuse my mother and I could not do anything about it except to console my mother after the incident.
   10 The applicant advised Dr Ng, consultant psychiatrist, he could not recall any abuse prior to the age of 12 years. He recalled at times being verbally abused by the alleged offender and at times the offender did “Scrap me” which he clarified as meaning handled him roughly. He recalled the alleged offender verbally abusing him and calling him bad names. He denied being fearful of the alleged offender but noted he had not had any contact with the alleged offender for several years. He reported witnessing abuse of “FY” but advised his memory of those occurrences was at times unclear and vague. He recalled the alleged offender calling “FY” derogatory names, swearing at her and shouting at her, and “FY” usually did not shout back at the alleged offender. He could not recall “FY” being physically abused by the alleged offender. He recalled an instance of sexual abuse of “FY” in which he walked into her room, seeing the alleged offender on top of “FY”, recalling the alleged offender had “put his thing in her bum” and “FY” was crying.
   11 In her statement dated 14 May 2019 the applicant’s mother, “FY”, commented “AW” should not have been around the applicant due to “AW’s” drinking and smoking “dope”. She commented “AW” would argue, swear and push her around. “AW” would smash things in the house or pot plants outside. Although “FY” said she would call the police, but after they left, she would take “AW” back if he apologised. “FY” also referred to “AW” using profanities in front of the children, calling her family “blacks” and refusing to let her and the applicant associate with them. “FY” described the applicant changing over time as a result of his exposure to his father’s conduct including fighting at school, using profanities, and avoiding being in the family home.
   12 With respect to a specific incident of alleged sexual assault of “FY” the applicant recalled the following events in his statement dated 14 May 2019:
   When I walked in, he was on her aggressively, she wanted him to stop, but he wouldn’t listen, when he saw me walked (sic) in he swore at me and started yelling stop. So I walked off and went about my business. When it was all over, I spoke to my mother to see what happened, She told me what he did and I couldn’t help it but to be disgusted in him.
   13 Additional detail in relation to the alleged sexual assaults was contained in an undated and unsigned statement by “FY”. This statement commences with an incident of sexual assault on 27 August 1999 but as this predates the birth of the applicant I do not need to consider it. The statement referred to FY’s fear of the alleged offender, which was based upon the alleged offender previously having been in prison for assaulting a former partner and so she put up with abuse from him as she was concerned he would “flog” her. She described a number of assaults by the alleged offender, plus incidents of the offender engaging in self-harm and of name calling and other demeaning behaviour towards her, drug use and poor behaviour towards “the kids”. I had a number of concerns with this statement which was unsigned and lacked specificity in relation to the allegations made.
   14 However, in a police statement dated 28 October 2016 “FY” repeated many of the above allegations in more detail. “FY” stated she would buy “dope” for “AW” which he would consume straight away, “AW” would call her names and engaged in self-harming behaviours, including stabbing himself in the stomach and cutting his wrist. “FY” described “AW” having a preference for having anal sex with her, which she did not enjoy and described a specific incident of non-consensual anal intercourse with and being strangled by the alleged offender which occurred on about 27 or 28 August 2015 when the applicant was present in the house. “FY” also recorded an additional incident of non‑consensual anal intercourse with the offender which occurred on 7 October 2015.
   15 Police records indicate “FY” made a report to police on 5 November 2015, the Incident report (051115 1400 12968) relevantly stated:
   Compl has phoned the Sex Assault Squad to report during the evenings of 28 August and 7 October 2015, the POI has performed non-consensual, penile/anal penetration with Compl at her home address of [redacted]. On one incident, [the applicant] and [redacted] were in the next bedroom, and on the other incident, [the applicant] and [redacted] were in the next bedroom. The Compl repeatedly told the POI “No” when he first attempted penile/anal after engaging in consensual penile/vaginal intercourse. The POI grabbed the Compl by the throat and forced penile/anal penetration. The POI stated to the Compl he could do it as they have been together for 15 years.
   16 I note whilst “FY” reported the incidents to police on 5 November 2015 (approximately one month after the most recent alleged offending) she withdrew her complaint on 16 November 2015. “FY” separated from “AW” in about March 2016 and subsequently contacted police to proceed with her complaint against “AW”. However, police documents indicate the alleged offender was not charged with any offences due to “insufficient evidence”. The alleged offender admitted he had previously had consensual anal intercourse with the applicant but denied the incidents occurred. On 8 December 2016 when interviewed by police the alleged offender advised he had not seen “FY” since the death of his daughter 22 months prior and when they separated she had threatened to make allegations to the police about alleged sexual offences committed by “AW”.
   The applicant’s injuries
   17 In his statement dated 9 August 2019, the applicant described the impact of the incidents upon him included a difficulty focusing at school because of concerns about his mother’s safety. The applicant said he had no good memories from living with his parents and considered himself to have become socially isolated with difficulties trusting people.
   18 The applicant advised Dr Ng he occasionally experienced bad dreams, (but was vague about the content of the bad dreams) and stated he did not think very much about the alleged offender sexually and verbally abusing his mother or verbally abusing him. The applicant reported feeling somewhat sad and being somewhat worried a lot of the time, but was not particularly tearful.
   Consideration of the alleged offences
   Alleged offences of aggravated sexual penetration without consent
   19 The applicant has brought a claim in relation to witnessing two alleged offences of aggravated sexual penetration without consent. “FY” alleged “AW” on two separate occasions engaged in non-consensual sexual penetration. Police investigated the circumstances of each incident and no charges were preferred against “AW” on the basis of insufficient evidence.
   20 The elements of the offence of aggravated sexual penetration without consent pursuant to section 326 of the Criminal Code are:
   (a) Sexual intercourse occurred;
   (b) There was no consent to the sexual intercourse;
   (c) There was a circumstance of aggravation.
   21 I was able to accept in relation to the incident on 28 August 2015 the sexual penetration occurred as the applicant recalled walking in and seeing the incident on 28 August 2015. With respect to the incident on 7 October 2015, the only evidence is “FY’s” uncorroborated version of events. “FY” spoke to the applicant about the alleged offence shortly after it occurred and reported the alleged offence promptly to police. Whilst this supports “FY’s” allegation, it is not determinative of the offending having occurred, particularly in absence of other evidence. Police records indicated they were unable to locate any independent corroborative evidence of either of the alleged offences. Concerns about “FY’s” evidence were noted in the police running sheet and the medical records she provided to police and/or police obtained including from Beeliar Medical Centre did not corroborate her reported complaints of injury or support the history of physical and sexual abuse from “AW” which she reported to police. I did not consider I had sufficient evidence to be satisfied the incident on 7 October 2015 occurred.
   22 I was able to accept a circumstance of aggravation applied to each incident, namely “FY” and “AW” were in a ‘family and domestic relationship’.
   23 In relation to the issue of consent, although “FY” advised police she did not consent to the sexual penetration, the alleged offender advised police “FY” had not only consented to, but initiated, anal sex during their relationship. In a case where an incident has occurred in circumstances which are contested and there is no independent corroborative evidence, without conducting a hearing, there is no reliable way in which I can determine which of the two accounts represents the truth. For me to be satisfied the alleged offences occurred “clear and cogent proof” is required. I was not satisfied on the evidence before me there was a lack of consent in relation to the incident on 28 August 2015. However, given the nature of the application before me, I considered I did not need to obtain additional evidence. However, I considered I did not need to seek additional evidence despite my finding the incidents on 28 August 2015 and 7 October 2015 did not comprise offences of aggravated sexual penetration without consent because I found the circumstances of the incidents on 28 August 2015 and on 7 October 2015 could comprise an alternate offence and I set this out below.
   Alleged offences of primary victim of physical and emotional abuse and as secondary victim of physical and sexual abuse
   24 Whilst it was alleged the applicant and “FY” were physically assaulted and verbally abused by the alleged offender, and also in the case of “FY” sexually assaulted by the alleged offender, save for the two incidents which occurred on 28 August 2015 and 5 October 2015 I was not provided with sufficient specificity of any incident to be persuaded the conduct of “AW” comprised alleged offences under the Criminal Code. The applicant provided limited particularisation of this claim, with the applicant’s solicitors referring to the applicant’s statement dated 9 August 2019 for details and stating “FY” was verbally, physically and sexually assaulted by the alleged offender on many occasions. Having regard to the materials submitted in support of the application, I formed the view the claim would best be categorised as a claim for “child neglect”.
   25 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.
   26 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).
   27 The terms “emotional abuse”, “harm” and “neglect” are defined in section 28(1) of the CCS Act:
   28.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.
(emphasis added)
28 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.
29 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.
Findings in relation to offences
30 Pursuant to the Family Court Order dated 20 October 2003 “FS” had responsibility for the day to day care, welfare and development of the applicant. In addition, I found “AW” had care and control over the applicant by reason of his relationship with the “FY” and his role in the applicant’s life, which included the applicant referring to “AW” as his father, “AW” residing with the applicant and “FY” (at times), “AW” attending school meetings and being able to disciple the applicant. I found “AW” and “FY” 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 “AW” including lifting him off the ground, punching him to the face, pushing him, punching him to the back and hitting him with a belt;
b) Sexual abuse:
i. Exposure to “AW’s” sexual activities with “FY” including witnessing the incident on 28 August 2015. I note the applicant having witness his mother and “FY” engaging in anal intercourse, in circumstances where he recalled his mother crying and “AW’s” hands being around her throat would have been distressing, irrespective of whether this was a consensual or non-consensual sexual act. I also note being told by FY about the alleged incident on 7 October 2015 would have been distressing for the applicant;
c) Emotional abuse:
i. Exposure to domestic violence via “AW’s” relationships with “FY, including abusive language, demeaning language, pushing “FY” and strangling her during the incident on 28 August 2015;
ii. Exposure to emotional harm as a result of “AW’s” reported self harming behaviours;
iii. Exposure to emotional harm as a result of “AW’s” abusive and derogatory language towards the applicant;
d) Neglect, comprising:
i. Exposure to “AW’s” drug taking activities.
31 As is apparent from the above, whilst I did not accept the alleged sexual offences which allegedly occurred on 28 August 2015 and 5 October 2015 comprised an offence under the Criminal Code I was prepared to accept those incidents comprised behaviour by “AW” which caused the applicant to suffer harm as defined in section 28(1) of the CCS Act.
32 I considered the alleged offence committed under the CCS Act was committed against the applicant and so he was eligible to claim for mental and nervous shock pursuant to section 35(2)(b) of the Act. I did not consider the applicant to be the secondary victim of the alleged sexual offences as I was not satisfied on the balance of probabilities they were committed.
33 Finally, I considered “FY” and “AW” to be co-offenders with respect to the alleged offence under the CCS Act. Whilst the actions of “AW” were the primary cause of harm to the applicant, and the applicant described a positive and caring relationship with “FY” her actions (particularly in advising the applicant who was a child about the incident on 7 October 2015) and omissions in failing to remove the applicant from the harmful conduct of “AW” contributed to the injuries he sustained.
Extension of time
34 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.
35 The last of the offences against the applicant was in 2015 and his application was required to be lodged prior to 2018 but was lodged on 30 July 2020. Accordingly, the applicant requires an extension of time within which to bring his applications.
36 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]Error! Bookmark not defined.):
(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.
37 The applicant’s explanation for the delay in bringing his application was he was a child when the last offence occurred. The applicant was aged 20 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 was 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 application out of time.
Method of assessment
38 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’.
39 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 alleged 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
Injury
40 Pursuant to section 17 of the Act a victim who suffers injury as a consequence of the commission of an alleged 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’.
41 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.
42 In his report dated 12 September 2019, Dr Ng, psychiatrist, stated:
Based on the history elicited, the mental status examination, having perused the documentation provided, taking into account the content of this report and from my clinical experience, I form the view that your client currently suffers from a persistent depressive disorder (DSM 5) (used to be called dysthymic disorder), with associated anxiety, currently largely untreated.
There are indications that he currently lacks in self confidence and self esteem, and that he currently lacks in a direction in his life.
Although the history would indicate that he would have been emotionally traumatised by what he had witnessed, (as a secondary victim) of his mother figure being verbally, emotionally, physically and sexually abused by the offender, and also of him being the primary victim of verbal and physical abuse by the offender, your client did not report sufficient psychiatric symptoms to diagnose post traumatic stress disorder.
43 Having regard to the medical evidence outlined above, I found, as a result of the alleged offences, the applicant suffered from a psychological injury, comprising anxiety and depression
44 In addition, I noted the applicant had been subject to physical harm at times, when assaulted by “AW”. The only injuries identified as having occurred from those physical assaults were marks to the applicant’s legs after being hit with a belt in 2013. However, I accepted in relation to each separate incident the applicant would have experienced a degree of pain and discomfort, albeit of short duration. I considered an appropriate allowance for the applicant’s physical and psychological injuries to be $30,000.
Loss of earnings
45 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.
46 The applicant sought an allowance for loss or earning capacity. In submissions made by the applicant’s solicitors I was referred to his Western Australia Certificate of Education dated 31 December 2018 which indicated the applicant did not demonstrate the reading, writing or numeracy standards required by the State and to the report of Dr Ng dated 12 September 2019 who comments the applicant was unable to attend any form of education or employment for the next three years.
47 I also considered the report of Dr Anne Kehow, paediatrician dated 12 September 2005 which noted at the age of 57 months (4¾ years) the applicant was in receipt of speech therapy due to language delay and behavioural difficulties. These difficulties were noted in his school reports in 2009 and 2010 and his literacy and numeracy were noted to be “limited” in Semester 1 2012. By Semester 1 2013 his attendance at school had reduced to 48% but I had no evidence as to the cause of this decline in attendance. His attendance was reported as 93% at another primary school for that same semester and so the poor attendance at the first primary school may just have been a recording error. I was not provided with the applicant’s school reports for high school and had no additional evidence of the impact of the alleged offences upon his ability to study. I was also not provided with any financial documents, such as payslips or tax returns which set out the applicant’s earnings since leaving high school. In his statement dated 9 August 2019 the applicant stated:
22 At the end of 2018, I started part time employment at Officeworks in city (sic) doing packing work stop. I received $180 a fortnight
23 However, at the start of this year, I stopped working there after two (2) months as I felt it was not for me. The job involved dealing with paperwork which I found difficult to complete and understand. I needed someone to explain in break it down for me.
48 The explanation provided by the applicant for ceasing work was therefore as a result of his language and cognitive issues. I noted the applicant’s language and learning difficulties were identified at a young age and I was provided with no evidence those learning difficulties were exacerbated by the alleged offences. I was not satisfied the alleged incidents had a sufficient impact on the applicant’s ability to learn, or upon his mood so as to impair his earning capacity and so declined to make an award for loss of earning capacity.
Report fees
49 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.
50 The applicant incurred the cost of obtaining the medical report from Dr Ng in the amount $1,793. I allowed this expense.
Future treatment expenses
51 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 Ng recommended the applicant undertake at least 12 – 16 sessions of psychological treatment. I made an allowance of $1,500 for future psychological treatment.
Summary of assessment
52 I assessed the applicant’s injury and losses as follows:
Injury or Loss CIC 1552/2020
Injury $30,000
Report expenses $ 1,793
Future treatment expenses $ 1,500
Loss of earnings $ NIL
Sub-Total $33,293

53 I made an award in favour of the applicant in the amount of $33,293.

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

3 OCTOBER 2022