CHARTERIS [2023] WACIC 1 (6 January 2023)
JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
ACT : CRIMINAL INJURIES COMPENSATION ACT 2003
CITATION : CHARTERIS [2023] WACIC 1
CORAM : K HAFFORD
DELIVERED : 6 JANUARY 2023
FILE NO/S : CIC 811 of 2020
BETWEEN : NICOLE ELIZABETH CHARTERIS
Applicant
Catchwords:
Other – Alleged offence – charge not determined – Alleged offence – no person charged – Assessment of damages – Mental and nervous shock – Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003, s 3, s 12, s 16, s 17, s 19, s 30, s 48
Result:
Compensation awarded
Compensation refused
Representation:
Counsel:
Applicant : Not applicable
Solicitors:
Applicant : Not applicable
Case(s) referred to in decision(s):
A v D (1994) 11 WAR 481
B v W (1989) 6 SR (WA) 79
Dulieu v White & Sons [1901] 2 KB 669
Hill v Clarke [2015] WADC 93 [13]
Houlahan v Pitchen [2009] WASCA 104
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
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 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
Shorey v PT Limited [2003] 77 ALJR 1104
Winiarczyk v Tsirigotis [2011] WASCA 97
Reasons for Decision:
1 By application dated 18 May 2020 Nicole Elizabeth Charteris (the applicant) claimed compensation for injuries sustained as a consequence of alleged offences committed by “GC” on 3 February 2020, 3 May 2020 and 18 May 2020. I now provide reasons for my decision.
2 The application with respect to the incident on 3 February 2020 was made pursuant to section 17 of the Criminal Injuries Compensation Act (the Act). The applications with respect to the incidents on 3 May 2020 and 18 May 2020 were made pursuant to section 16 of the Act. Both sections 16 and 17 of the Act authorise an Assessor to make an award of compensation for an alleged offence 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.
Evidence
3 In support of the application, the applicant provided her Statements to Police dated 4 February 2020, 3 May 2020 and 18 May 2020 (the first page of each document only), an unsigned document entitled Statement of Injuries, eight pages containing photographs of her computer screen showing the “Income report” for her business and a quote to obtain a psychological report. When asked to provide additional information the applicant also provided her income statements from 1 July 2020 to 30 June 2021 (202 pages), individual monthly statements for the periods September 2019 to June 2020, income tax returns for the financial years 2018 to 2021 and income statements for the financial years 2019 to 2021. The applicant also provided a report from Ms Lisa Dominguez, clinical psychologist dated 5 August 2021.
4 Pursuant to section 19 of the Act I obtained the applicant’s medical records from Myaree Medical Centre. I also obtained the Police Briefs for each incident, the Incident reports relating to the applicant’s complaints to police about the alleged offender and the transcript from the Magistrates Court on 18 November 2020 with respect to the incident which occurred on 3 May 2020. In response to a request I made Ms Dominguez produced a supplementary report dated 2 October 2021.
The Alleged Offences
5 In her Statement of Injuries the applicant provided the following background to the offences:
- [GC] is a neighbour who lives 4 houses away diagonally opposite our home (approximately 50 metres away) in a culdasec (sic) at [address redacted].
- GC has become a significant nuisance to myself since residing at our property for the last nine years with an increase in his sexually and mentally abusive behaviour, particularly within the last five years where he has attempted to engage with me on a regular (weekly, sometimes daily) basis, despite being asked to remove himself from our property by myself, my husband, police and mental health care workers which includes the following unwanted behaviour:
· Persistent and unrelenting sexual harassment
· Persistent and unrelenting mental harassment
· Stalking behaviour (sneaking up behind me, watching me from my neighbours (sic) property and his property for long periods of time)
· Tormenting behaviour
· Taunting behaviour
· Theft of my property (Gardening tools, sprinklers etc) and of our tradesman’s property (tools) entering our property for maintenance and renovations
· Calling my dog to him to improve his ability to engage with me consistently. - [GC]’s persistent unwanted and mentally abusive behaviour in conjunction to his unwillingness to comply with our requests lead(sic) to a successful VRO (Magistrate determining sexual violence & harassment) on November 19, 2019, which he has breached on three separate occasions since this time which includes the following:
· Tuesday 4th February 2020 led to him being arrested by police and warned.
· Sunday 3rd of May lead to him being arrested by police, charged and convicted of breaching his VRO.
· Monday 18 May 2020 led to him being arrested by police, charged and convicted of breaching his VRO.
6 The alleged offender lived on the same street as the applicant and was a 77 year old man who had been diagnosed with dementia. The applicant refers in her statement, and when speaking to Ms Dominguez, clinical psychologist, to many years of harassment from the alleged offender. Her application was brought with respect to three incidents only.
7 Due to the extensive history referred to in the statement and in Ms Dominguez’s report, I obtained a copy of the applicant’s interactions with the police in relation to the alleged offender. The first incident reported to police was on 17 November 2019. The Incident report recorded the applicant was distressed about her neighbour coming onto her yard and standing there. She told police she’d had ongoing issues with him for six years and he had been sexually inappropriate in the past. She advised police she was a psychologist, “something is wrong with [the alleged offender]” and she was in the process of obtaining a restraining order against him. Police attended on 19 November 2019 and spoke to the alleged offender. Police recorded the alleged offender having described going to the applicant’s house to advise her of a wine which was on sale at Liquorland and was a “deal too good to miss”, but she misunderstood and her husband called him a “sexual molestor”. The alleged offender advised police he tried to diffuse the situation by offering the applicant seeds from a rare tree in his garden but the applicant began yelling at him to get off her property. Police advised the alleged offender to avoid the applicant’s property.
8 The applicant subsequently applied for a violence restraining order in relation to the alleged offender and a hearing was held on 19 November 2019. The applicant described the alleged offender’s conduct to the Magistrate as:
In the last few days – this has been happening for the last five years – that amount of times, the 500 times that he has been approaching me on my property when my husband is out. He does it to all the females in the street and surrounds. He often walks around in his underwear, and he won’t take no for an answer. It’s absolutely tormenting.
-So we ask – so over the last probably three years – he started five years ago – you know, feigning friendliness, but he just – every time I go out into my garden, he is there right behind me, talking, and the subject always turns to sex, and I don’t feel safe in my home. I’ve stopped gardening. I haven’t been able to sleep, I haven’t been able to work. I’m a psychologist, so it’s important for me to be – you know, to have my downtime on the weekends, and despite police and mental health nurses – social workers attending his property, he hasn’t stopped. He now stands on the boundary of my property, all around it, when I am outside, as soon as I come outside my front door. And I tell him to leave, and he refuses to leave, so I often – you know, if I have gardened on the odd occasion, which I did with a friend on Sunday, who is also a psychotherapist, he said – he agreed with me that he has got a psychiatric condition.
9 On 29 November 2019, police served Violence Restraining Order 2019 04714 upon the alleged offender. The conditions of the order included the alleged offender was not to communicate or attempt to communicate with the applicant, not behave in an intimidatory, offensive or emotionally abusive manner towards the applicant, approach within five metres of the applicant or to enter or remain upon the property where the applicant lives, works or is educated.
Incident 1 – 3 February 2020
10 On 4 February 2020 the applicant reported to police she was out the front of her house watering the garden when GC approached and began pacing back and forth about 4 metres from her. He spoke to her, saying “Can I say something to you?” and then said, “There is something I wanted to say to you, but if you don’t want me to say it I will go away”.
11 The applicant attended Murdoch Police station to report the offence and provided a video of the incident. The video confirms the words the alleged offender spoke, but the video is dark and the person taking the video cannot be identified. Police interviewed the alleged offender in relation to the offence and he confirmed that he was the person in the video but denied he approached or spoke to the applicant. GC advised police he spoke to the applicant’s husband and it was her husband who took the video footage. Police did not consider there was sufficient evidence to proceed with any charges against the alleged offender.
12 The application in relation to this offence was brought pursuant to section 17 of the Act and I am required to be satisfied an alleged offence occurred. I have reviewed the video footage of the incident. The alleged offender made no attempt to enter the applicant’s property. In addition, due to the quality of the footage, I cannot be sure the alleged offender approached within 5 metres of the person who recorded the footage. To be satisfied there was a breach of the Violence Restraining Order I must accept the alleged offender was communicating with the applicant. Whilst I can be satisfied the alleged offender was speaking to a person at the applicant’s property, the video does not identify that person. On 22 April 2022 I wrote to the applicant, advising I could not be satisfied the incident occurred as alleged, as it was open to me to find the offender was speaking to her husband, not to her. I suggested she provide a statement from her husband confirming it was not him the offender spoke to. The applicant was regrettably distressed by my query in relation to this alleged offence, in particular she was concerned I was accusing her of “lying” about the incident. Requesting additional evidence in support of an application is not an accusation of dishonesty, rather it provides an applicant an opportunity to substantiate the claim being made, and to address any gaps in the evidence.
13 In a response dated 19 May 2022 the applicant advised her husband did not have a clear recollection of this incident “given this was so long ago and he is confused with the other 500 times he approached me but he can confirm that GC [redacted] was trying to speak to me again – otherwise he would not have been outside speaking to him asking him to leave me alone following an incident. If it is essential to the outcome of this claim that he sign something, then I will have him do so” (emphasis added). Given the applicant advised her husband had no clear recollection of the incident I considered there to be no point in obtaining a statement from him. The applicant’s response contains an acknowledgement at some stage that evening her husband was outside speaking to the alleged offender. It is therefore possible the alleged offender was indeed speaking to the applicant’s husband.
14 In the same response the applicant provided two videos demonstrating alleged breaches. She provided the following description of the footage, explaining:
One was an evening when he breached the VRO standing in my bush at night and one during the day showing him pacing up and down my boundary on our neighbour next doors’ property whilst I was in my front yard. As you can see, following the continued harassment on these days, I went back inside the house to get my phone, so in the first video I had to walk toward him again locating him in the bushes and the 2nd video he was further away than he initially was (up against my boundary trying to talk to me). He was within 5 metres of my person which led to the VRO breaches. It is me behind the camera in both of these videos.
The first video referred to in the applicant’s response is of this incident as it includes the offender speaking the words referred to in paragraph [10] above and in the applicant’s statement dated 4 February 2020. That statement does not refer to the applicant locating the offender standing in her yard, and then going inside to get her phone before returning outside to record him. The applicant’s statement also does not refer to the applicant’s husband going to speak to the alleged offender as referred to in her email dated 19 May 2022.
I do not consider the further submission from the applicant provides any additional evidence to satisfy me the alleged offender was speaking to her in the video. It may be the alleged offender spoke to the applicant earlier, and then spoke to her husband later in the evening. It may be the alleged offender spoke to the applicant on two separate occasions. Neither of these scenarios are described in the statement dated 4 February 2020. I consider the events of that evening to be unclear and I cannot be satisfied an alleged offence occurred. I therefore refuse the application in relation to this incident.
Incident 2 – 3 May 2020
15 The second incident occurred on 3 May 2020. In her statement to police dated 3 May 2020 the applicant stated she was standing at the end of the driveway of her house when the alleged offender walked up to her and said “excuse me”. The applicant did not want to look at him or talk to him so turned away and said “Fuck off”. The applicant went inside to tell her husband GC was outside and grabbed her phone and took it outside in an attempt to film the alleged offender near her property. He was not there and the applicant returned inside. In her statement to police dated 3 May 2020 the applicant commented: - I was feeling very shaken.
- It’s the compounding nature of the situation. I feel like he is stalking me and I can’t go outside and enjoy my gardening.
- I just want this situation to stop.
- It has caused me to lose sleep at night.
- The ongoing anxiety leaves me feeling very stressed.
16 At 10:47 am the applicant telephoned police. The police CAD report recorded the applicant’s advice to police the alleged offender had “breached his VRO again and has come up to her on her own property and says things like “you’re very sexy’ and makes lewd comments”. The description of the incident recorded by police based on the initial call from the applicant is inconsistent with the applicant’s statement to police.
17 Police attended that afternoon and spoke to the alleged offender who made admissions he had spoken to the applicant as he wanted to tell her earlier in the week her bins had tipped over and all the contents had fallen out. The Statement of material facts states the words spoken by the alleged offender were “Seeing that you are out here and you are close, I wanted to tell you about those bins that you had out on Friday and what I was willing to do to help you with that.” The alleged offender was charged with breach of violence restraining order. The prosecution brief contains a report from Dr Roger Clarnette, Consultant in Geriatric Medicine, dated 10 February 2020, which reported GC was suffering from significant cerebral atrophy, with a deteriorating mental state over the previous two years which was manifested by behaviours including wandering around the local suburb talking to strangers and looking in bins and deteriorating social skills with an inability to appreciate cues from normal human interaction. On 18 November 2020 the charge was dismissed in the Magistrates Court at Perth with the Chief Magistrate noting the alleged offender was suffering dementia and in a locked environment at Bentley Hospital. I am satisfied an alleged offence occurred in relation to this incident.
Incident 3 – 18 May 2020
18 On 18 May 2020 the alleged offender entered the applicant’s front garden to place two bricks around the bottom of a sign which displayed her business information and which was located approximately five metres behind the applicant’s letterbox. The applicant told the alleged offender to leave and he replied ‘Don’t be silly, look what I’ve done, I’m just trying to help you.’ The alleged offender then left the applicant’s property taking the bricks with him, as requested by the applicant. The applicant telephoned police at 4.57 pm, advising of the incident and that the alleged offender “has dementia and is constantly moving items in the street”. Police attended that evening and spoke to the alleged offender who made full admissions in relation to the incident and explained to police “I was just trying to help, I like helping. I wasn’t breaching the order, I wasn’t committing violence against her, I was trying to stop the sign blowing over”. The applicant was noted by police to be “shaken by the incident” and in her statement to police dated 18 May 2020 stated “[GC] makes me feel shaky, anxious and exasperated”. The alleged offender was charged with Breach of Violence Restraining Order. On 12 August 2020 the charge was dismissed in the Magistrates Court at Perth for want of prosecution. I am satisfied an alleged offence occurred in relation to this incident.
The applicant’s injuries
19 In her Statement of Injuries, the applicant stated:
[GC]’s behaviour has caused me Significant Psychological and Mental distress, which includes the following:
· Safety Issues
· Hypervigilance
· Compounded Mental Anguish
· Fear.
20 In an email dated 19 May 2022 the applicant commented:
[T]he sexual and general persistent long-term harassment instigated by Mr Ciantar which had deeply affected my personal and professional life over a period of eight (8) years – especially the impact it was having on my relationships, freedom, mental health, finances and ability to perform adequately in my professional life whilst he was persistently targeting me. I could not walk outside my front door without being approached by him despite my long-term request in addition to my husband’s and family or friends visiting requests that ‘he leave the property immediately’. He refused constantly and would often sneak up behind me when I was gardening alone and be within 2 feet to the back of me discussing inappropriate sexual topics, pace up and down my boundary and my neighbours (sic) property whilst I was gardening.
21 The applicant attended Ms Lisa Dominguez, clinical psychologist, on 15 February 2021 and 15 March 2021 subsequent to which Ms Dominguez produced a report dated 5 August 2021. The applicant provided a history of harassment by the alleged offender for a period of seven years, from 2013 to 2020. She described the alleged offender having visited her home approximately 500 times over the seven year period despite her asking him not to. She gave an example of having opened her front door, she thought to the postman, whilst wearing just a robe with her hair in a towel. The alleged offender was at the door and despite her telling him she couldn’t talk to him he kept speaking to her, mainly about the garden before he asked if she was naked under the towel. She described crying from this when her husband got home as “it triggered old stuff, creepy neighbour”. She described GC, who was in his 70s, walking around the street in his pyjamas. She described GC standing in the neighbour’s yard and staring at her, or walking along the boundary of their property in the neighbour’s yard, taunting her.
22 The applicant described intrusive and distressing memories including unpleasant dreams of “powerlessness” with GC or someone like him in her dreams, flashbacks of when he was around and distress from reminders of the harassment including people knocking on the door and seeing his house and garden. She described avoiding gardening, answering her front door, lack of motivation, disturbed sleep, increased alcohol consumption and weight gain. The applicant also described irritability and marital strain caused primarily from lack of support from her husband who she reported told her she “overreacted” to GC. The applicant, who is a psychologist, described an impact on her ability to work due to impaired concentration, feeling overwhelmed and under stress. She reported to Ms Dominguez this led to financial strain which caused additional stress.
23 Ms Dominguez commented:
Ms. Charteris’ was harassed for an extended period (over 7 years), culminating in a VRO against her neighbour for sexual misbehaviour. What is the psychological impact of these injuries? Ms. Charteris has experienced extensive psychological concerns as a result of this her experiences. As mentioned, her symptoms meet the criteria for PTSD as per the DSM-5, including viz., re-experiencing, avoidance, negative alterations in mood and cognition, and hyperarousal. . . . Given the assessment profile and her self-report, it is my opinion that she experiences Severe symptoms of PTSD. Further, given the specificity of the triggers, it is also my opinion that these symptoms have been caused directly by the harassment.
Ms. Charteris reported that she has experienced a depressed mood for a lengthy period (more than two years). She also is plagued by insomnia, low energy, low self-esteem, poor concentration, and moments of ‘hopelessness’. In my opinion, she is dysthymic, and this condition is chronic in nature, commencing in response to the ongoing harassment from George. She also experiences anxious distress, specifically feeling keyed up and tense, having problems concentrating, and living with fears that something awful may happen. In my view, her symptoms met the criteria for Persistent Depressive Disorder (Dysthymia) with Anxious Distress.
Ms. Charteris disclosed that she drinks more now than she did before the harassment. There was quite a notable increase in her use of alcohol, increasing from an occasional, ‘social’ drink to a couple each night. In my opinion, she is probably engaging in this behaviour as a maladaptive behavioural pattern aimed at controlling her symptoms of PTSD, Dysthymia, and anxiety.
24 Ms Dominguez recommended the applicant have between 10 to 20 sessions of psychological treatment, recommending EMDR therapy at a cost of $267 per consultation.
25 It is important to note whilst the applicant submits the alleged offender harassed her for several years, her claim is in relation to only three incidents, and she is unable to be compensated for any conduct by the alleged offender which does not comprise an offence. The applicant described the impact of the alleged offender upon her mental health prior to the restraining order being issued as:
I emailed him to say, “I’m not taking this any more. I can’t stand it. I can’t work, I can’t – I’m not sleeping, and I want you to leave me alone”. That was a year and a half ago, and he sent me a song to say, “Don’t go out tonight, there’s a bad moon on the rise”, or something like this. He is threatening and I don’t feel safe in my home. I bought myself a dog, and often I’ve had to leave her outside with all my gardening tools because he has come again, and I go inside, and I call my husband.
On her own evidence the applicant and her ability to work, sleep and feelings of personal safety were impacted by the behaviour of the alleged offender prior to the restraining order being issued, and prior to any offences being committed.
26 On 13 August 2021 I wrote to Ms Dominguez seeking clarification of her report, requesting she distinguish between the impacts of the three alleged offences for which the applicant had brought her claim compared to the seven years of harassment prior to this. Ms Dominguez responded in a report dated 2 October 2021, commenting:
Ms. Charteris experienced harassment for a sustained period of seven years. This culminated in a Violence Restraining Order (VRO) on February 3, 2020, protecting her from [G]. As noted in my report dated August 5, 2021, she consequently experienced symptoms of PTSD, and Dysthymia with anxious distress. She was on shaky grounds.
Having a VRO probably gave her hope that things might return to ‘normal’, however, this was no doubt dashed every time [G] breached the Orders – three times over an extended period of months. In my opinion, given the ongoing harassment and her mental health functioning, she had less resilience, coping, and the internal fortitude to effectively manage these breaches. In response, she described feeling defeated when she encountered George.
In my opinion, the breaches exacerbated her already compromised mental health. She described symptoms consistent with a diagnosis of PTSD (unresolved), Major Depressive Disorder and General Anxiety Disorder . . . More specifically, Ms. Charteris explained that her symptoms of depression intensified. They were clearly worse than her pre-episode status. She felt constant and ongoing depressed mood every day, an overwhelming sense of fatigue, sadness, loss of interest in activities she used to enjoy, lack of motivation, poor concentration, and sleep disturbances. Further, her symptoms of anxiety also increased, and her worry was excessive, pervasive, pronounced and interfered with a wide range of functions. She continues to feel these symptoms.
27 On 24 September 2021 the Psychology Board imposed a condition upon the applicant requiring her to be supervised by another registered psychologist with respect to certain matters. It was apparent these disciplinary proceedings were in progress when the applicant attended Ms Dominguez, but there was no mention of those proceedings in either of Ms Dominguez’s reports. By way of correspondence dated 22 April 2022 I enquired of the applicant whether she had advised Ms Dominguez of the disciplinary proceedings as I anticipated a person subject of such proceedings would have some level of concern in relation to the process and outcome of those proceedings. I was concerned this may have impacted the applicant’s presentation to Ms Dominguez and thus the reliance that could be placed on Ms Dominguez’s reports. By way of correspondence dated 19 May 2022 the applicant advised the complaint was a “Vexatious complaint” which had been received on 16 February 2020 and did not cause her concern. She did not mention the complaint to Ms Dominguez as it had limited impact upon her and in her experience it is usual for psychologists to limit discussions about such notifications or complaints with their peers. I accept the applicant’s submission in this regard.
28 I considered the applicant’s records from her general practitioner at Myaree Medical Centre, reviewing her records for the period 8 November 2016 until 2 November 2021. No mention is made in those records of any mental health concerns, the difficulties with GC or the incidents subject of this claim.
29 When determining the injuries sustained by the applicant I must have regard to the circumstances of the offending as I must be satisfied the injury was suffered as a consequence of the alleged offences. In the second incident the alleged offender attempted to advise the applicant about an issue with her rubbish bin being tipped over. The third incident involved the alleged offender attempting to prop up the applicant’s business sign so it did not fall over. I accept in approaching the applicant the alleged offender was in breach of the violence restraining order and so alleged offences were committed. These alleged offences were however at the lower end of the scale of any offending. The alleged offender had dementia (which was known to the applicant), was ignoring social cues and becoming a nuisance to his neighbours, including the applicant. The impact of the two alleged offences upon the applicant as described by the applicant was considerable given the nature of the incidents and raised the issue of whether the applicant was a person of normal fortitude.
30 It is well established principle a defendant must take the plaintiff as he finds him, both physically and psychologically. This is generally referred to as the ‘egg shell skull’ rule. In Shorey v PT Limited Kirby J said:
[44] The principle of law is that a negligent defendant must take its victim as it finds her and must pay damages accordingly. It is not to the point to complain that the injury, in the form of the fall, was trivial in itself and that it would be unfair to burden the respondents with the obligation to bear costs consequent upon the fact that the appellant was peculiarly susceptible to developing bizarre symptoms inherent in a conversion disorder. If such symptoms were genuine and a consequence of the subject trauma, the apparent disproportion between cause and effect is not an exculpation for the negligent party. It does not render the damage ‘unforeseeable’ or otherwise outside the scope of the damages that may be recovered. As Dixon CJ explained in Watts v Rake:
‘If the injury proves more serious in its incidents and its consequences because of the injured man’s condition, that does nothing but increase the damages the defendant must pay. To sever the remaining leg of a one-legged man or put out the eye of a one-eyed man is to do a far more serious injury than it would have been had the injured man possessed two legs or two eyes. But for the seriousness of the injury the defendant must pay’
31 In her report dated 2 October 2021 Ms Dominguez opined the harassment from the previous seven years caused the applicant to have less resilience, coping and internal fortitude to manage the breaches.
32 I find the applicant sustained an exacerbation of a pre-existing psychological condition as a result of the alleged offences. The applicant’s mental health was already compromised by the events prior to the alleged offences and she was suffering from PTSD and Dysthymia, with anxiety. The applicant described symptoms of depression for two years prior to her review with Ms Dominguez in August 2021, and I therefore find the depressive symptoms also commenced prior to the alleged offences. However, I accept the depressive symptoms intensified after the alleged offences.
Method of assessment
33 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’.
34 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.
Injury
35 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’.
36 The amount of damages for non-economic loss 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.
37 Having regard to the medical evidence outlined above, I found, as a result of the offences, the applicant suffered from a psychological injury comprising an exacerbation of pre-existing symptoms of depression and anxiety. I considered an appropriate allowance for the applicant’s injuries to be $7,500.
Loss of earnings
38 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.
39 The applicant is self employed as a psychologist, operating her business out of her home. Her income tax returns and income statements demonstrated the following earnings:
Financial year ending 30 June Income earned according to income statements Gross earnings according to income tax returns
2018 (Not provided) $130,148
2019 $259,402 $146,791
2020 $282,956 $152,844
2021 $201,984 $148,409
40 On 18 October 2021 the applicant submitted “the losses will not likely be reflected clearly on my tax returns given my income increased each year. However, you will see that the annual increases were significantly reduced as a result of this stressful situation (see period in particular from 2018-2019 taxation year – there was only a 10k increase that year as opposed to the normal 40-50k annual increase). This is why I provided you the original paperwork for losses of income for each period that this person’s behaviour affected my work, sleep, relationships, mental health and inability to attend work due to consistent attendance to police stations and magistrates court on those days. Please note, my income for 2020/21 period (since the perpetrator ceased sexually harassing me) is 200k. This shows how much these events affected me previously in the earlier periods.” The applicant is unable to claim for any losses which predate the incidents. She is also unable to claim for losses caused by attending police or court.
41 On 2 December 2021 the applicant referred me to the income statements and described her claim for loss of earnings as based on her earnings averaging $22,000 to $26,000 per month normally but dropping to $19,000 in December 2019 when “the behaviour of the perpetrator escalated requiring court attendance, police reports and attendance by police to my home on multiple occasions that this provides evidence of days taken off and income lost” and further dropping to between $12,000 to $16,000 in March to May 2020 when “the behaviour continued to escalate leading me to take considerable time off during this period due to incapacity to focus and concentrate on my work and patients.”
42 I have found alleged offences occurred in May 2020. The applicant’s submission indicates a negative impact on her earning capacity prior to the alleged offences having occurred. On 19 May 2022 the applicant submitted:
The dates you are referring to indicate purely when [GC] breached the Restraining Order 3x, not the psychological, personal and professional damage he has caused to my person over many years which led to the VRO and subsequent breaches. Have these incidents, my distress and financial loss periods been taken into account also? Trying to match up my financial losses with his persistent harassment I would suspect would be impossible. But as you can see from the income statements I have provided – as the years went by and it was normal for me to increase my annual income by 20-30k, however this began to go backwards as a result of my distress, insomnia and inability to see patients on particular days as a result.
I cannot compensate the applicant for any impact on her earnings prior to the alleged offences having occurred in May 2020.
43 I reviewed the applicant’s monthly income statements and note the following:
Month Earnings Number of in person appointments Number of telephone appointments Any periods not worked
September 2019 $22,945 95 1
October 2019 $25,485 82
November 2019 $25,743 104
December 2019 $19,043 74 1 24/12/19 to 31/12/19
January 2020 $25,794.35 94 –
February 2020 $26,600 94 –
March 2020 $12,342 39 8 12/3/20 to 23/3/20
April 2020 $16,970 18 33
May 2020 $16,863 50 23
June 2020 $24,250 78 11
44 The applicant took no time off work subsequent to the incident which occurred on 3 February 2020, sustaining no loss of earnings that month. The applicant’s appointments in May 2020 show no impact from the alleged offences which occurred on 3 May 2020 and 18 May 2020.
45 The biggest impact on the applicant’s earnings was in March 2020. As I did not accept the incident on 3 February 2020 comprised an alleged offence, and this is before the alleged offences occurred in May 2020 I cannot award any compensation for it. However the circumstances of the loss and the applicant’s explanation of that loss are relevant to the weight I can place on the applicant’s evidence. For reasons that become apparent below, I formed a view the applicant exaggerated the impact of the incidents upon her, and upon her ability to work.
46 The applicant did not work between 12 March 2020 and 23 March 2020. Upon returning to work on 24 March 2021 the applicant only saw patients by telehealth/videolink for the balance of the month. This was a significant change in the applicant’s business model with only two telehealth/videolink appointments recorded in the 6 months prior to this date. In April 2020 the applicant also had a majority of telehealth/videolink appointments. On 15 March 2020 the Western Australian State Government declared a State of Emergency with respect to the Covid 19 outbreak. Nonessential businesses were unable to open for a period of time, and when permitted to re-open were on restrictions with respect to face-to-face contact. Restrictions were put in place in relation to persons leaving home which included shopping for essentials, to work or study if you could not do so from home, caring for family members, exercise and for health care. On 22 April 2022 (and prior to my reaching a determination that the incident on 3 February 2020 was not an alleged offence) I wrote to the applicant advising I had reached a preliminary determination not to make an award for loss of earning capacity on the basis any impact to her business between March and May 2020 was due to the impact of the covid outbreak and not the alleged offences.
47 In an email dated 19 May 2022 the applicant advised she travelled interstate for this period of time “to recover psychologically”. I have no medical evidence the applicant was unfit to work over this period of time. I requested the applicant provide evidence of her interstate travel, which she did on 8 December 2022. The E-Ticket, Itinerary Receipts and Tax Invoices provided by the applicant indicates she flew from Perth to Melbourne on 11 March 2020, returning on from Brisbane to Perth on 23 March 2020. These dates are consistent with the time period she did not work. However, the ticket from Perth to Melbourne was issued by Virgin Australia on 23 December 2019, prior to the alleged offending. I do not accept the applicant travelled interstate “to recover psychologically” from the alleged offences, given she purchased her air ticket in December 2019.
48 On 19 May 2022 the applicant advised in response to the preliminary determination:
In regards to ‘the telehealth sessions’ you are suggesting in 2020, I continued with face to face sessions with patients (when I felt I could cope mentally on particular days) up until January 2022 this year. I took a lot of time off during the incidents in 2020/21/22 not only to attend the police station, complete paperwork, document evidence and attend the Magistrates Court but in addition to experiencing severe insomnia as a result of Mr Ciantar’s persistent harassment which ultimately diminished my livelihood. As such multiple time off was required where I could not see patients as per normal for several days at a time. Regarding restrictions, Psychology is considered an ‘essential service’. I saw patients face to face on certain days (where I could mentally) because the office was large enough to reduce transmission to and from patients – so hence I continued. Sure, there may have been a slight drop off initially due to COVID concerns by patients over an initial two week period, but this period included recovering from my mental health breakdown which resulted in taking considerable time off. I am a very busy Psychologist with increasing annual income generally so this is a true account of the impact his persistent behaviour had on me financially. To use COVID as a reason ‘not to consider my financial losses or experiences’ appears very convenient in your attempts to dismiss this application.
49 I therefore reviewed the applicant’s monthly income statements in detail to determine which days each month she did not work, to establish the periods of time subsequent to the alleged offences she was unable to work. The applicant’s income statements show no income for the following days each month:
February 2020: 1-2 (weekend); 8-9 (weekend); 15-16 (weekend); 22-23 (weekend); 29 (weekend)
March 2020: 1-2 (long weekend); 7-8 (weekend), 9, 12-23; 28-29 (weekend)
April 2020: 4-5 (weekend), 11-12 (weekend), 13 (Easter Monday Public holiday), 18-19 (weekend), 25‑27 (long weekend)
May 2020: 2-3 (weekend), 9-10 (weekend), 17 (Sunday, the applicant worked on 16/5 – Saturday), 18, 24 (Sunday), 31 (Sunday)
June 2020: 1 (Public holiday), 6-7 (weekend), 10, 13-14 (weekend), 19 (Friday), 21 (Sunday – note applicant worked on Saturday 20/6), 27-28 (weekend)
Other than the period surrounding the State of Emergency in March 2020 I was only able to identify four days subsequent to the alleged offence on 3 February 2020 the applicant did not work being 9 March 2020, 18 May 2020, 10 June 2020 and 19 June 2020. With respect to 18 May 2020, the applicant had worked on Saturday 16 May 2020 and it may be this day was a planned day of leave. I requested the applicant provide me with her diary so I could determine what client appointments had been cancelled but she refused, citing privacy concerns. Whilst I could have insisted she provide this to me under section 19 of the Act I did not consider the diary to be vital to the applicant establishing her claim. The third alleged offence occurred at about 4.47 pm on 18 May 2020. Given the offence occurred so late in the day I consider it unlikely the applicant was prevented from working on this day due to the alleged offence. I have no evidence as to why the applicant did not work on 10 June 2020. Although she did not work on Friday 19 June 2020, she did work on Saturday 20 June 2020 and this could be indicative of flexibility in work practices. Based upon the applicant’s own business records I do not accept the applicant’s submission she was prevented from seeing patients for “several days at a time” due to the alleged offences.
50 I have also considered the medical evidence in relation to the applicant’s incapacity to work. She did not attend a medical practitioner in relation to her injuries. The report from Ms Dominguez dated 2 October 2021 states:
She has not been able to work regularly since the breaches, finding it difficult to provide psychological services while she, herself, is feeling anxious and depressed. (She is only now trying to return to work and is doing so in a very paced and staggered manner).
The applicant’s financial records do not demonstrate an inability to work regularly, or that she has returned to work in a very paced and staggered manner. She has had limited time off work. Her earnings by June 2020 had recovered to pre-pandemic and pre-incident levels. No evidence was provided of ongoing losses after that date. I find the applicant exaggerated the impact of the alleged offences on her work capacity when speaking with Ms Dominguez. I do not accept the applicant’s injuries resulted in any loss of earnings and make no award in this regard.
Report fees
51 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.
52 The applicant incurred the cost of obtaining the medical report from Ms Dominguez in the amount $2,178. I allow this amount.
Future treatment expenses
53 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. In her report dated 5 August 2021 Ms Dominguez recommended the applicant have between 10-20 (and possibly more) sessions of Cognitive behavioural therapy, including EMDR therapy at a cost of $267 per consultation. This report was written on the basis the applicant’s condition, including that caused by the conduct of the alleged offender prior to the offending, was compensable. In her report dated 2 October 2021, despite acknowledging the applicant’s mental health was compromised prior to the alleged offending, Ms Dominguez repeated this recommendation. I have difficulty accepting this recommendation as the applicant had untreated PTSD, dysthymia with anxious distress and depressive symptoms prior to the alleged offending. I also note there is no evidence of the applicant seeking psychological treatment subsequent to Ms Dominguez’s recommendation being made. However, despite these observations, I accepted the applicant suffered an exacerbation of her symptoms as a consequence of the alleged offences I was satisfied occurred and allowed $1,500 for future treatment at $150 net (after Medicare contribution has been deducted from a consultation fee of $267) for 10 consultations, to be paid in accordance with section 48 of the Act.
Summary of assessment
54 I assessed the applicant’s injury and losses as follows:
Head of damage
Injury $ 7,500
Report expenses $ 2,178
Future treatment expenses $ 1,500
Subtotal $11,178
55 I make an award in favour of the applicant in the amount of $11,178 of which the amount of $1,500 is payable for future psychological treatment pursuant to section 48(1) of the Act. On 15 December 2020 I made an interim payment in the amount of $2,178 for payment to Mindstate Psychology for Ms Dominguez’s report and I deduct that amount from the sum payable to the applicant.
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
6 JANUARY 2023
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