L (a child) [2025] WACIC 1

Catchwords:
Child sexual abuse – Proved offences – Mental and nervous shock – Assessment of compensation – Requirement for medical evidence

[2025] WACIC 1
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JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
CITATION : L (a child) [2025] WACIC 1
CORAM : A BARTER
DELIVERED : 14 FEBRUARY 2025
FILE NO/S : CIC 4058 of 2024
BETWEEN : L (a child)
Applicant
Catchwords:
Child sexual abuse – Proved offences – Mental and nervous shock – Assessment of compensation – Requirement for medical evidence
Legislation:
Criminal Injuries Compensation Act 2003 (WA), s 3, s 12, s18, s 19, s 27, s 30, s 31, s 33, s 35, s 45, s 64
Result:
Compensation granted
Representation:
Counsel:
Applicant
:
Not applicable
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Solicitors:
Applicant
:
MIDLAS
Case(s) referred to in decision(s):
AH v RH [2016] WADC 114
AKM v GJH [2020] WADC 152
B v W (1989) 6 SR (WA) 79
DCN v RJS [2004] WADC 63
DNA v Britten (1995) 14 SR (WA) 325
DR v CD [2018] WADC 148
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Girardi v Chief Assessor of Criminal Injuries Compensation [2005] WADC 194
Gullelo v Halloran [2008] WADC 145
Houlahan v Pitchen [2009] WASCA 104
KMM v SG [2023] WADC 136
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118
Re Hojetzki [2009] WADC 77
Re Richards [2022] WADC 100
Roberts [2021] WACIC 3
S v Neumann (1995) 14 WAR 452
Savic v Duric [2021] WADC 53
Shepherd v Shepherd [2010] WADC 30; (2010) 71 SR (WA) 143
SL (By Her Next Friend NL) [2014] WADC 178
Sunderland v Curnack [2002] WASC 158
Underwood v Underwood [2018] WADC 13
Vanmaris v Roberts [2022] WADC 80
VPAN [2011] WADC 40
Winiarczyk v Tsirigotis [2011] WASCA 97
ZYX (pseudonym initials) v CABLE [No 5] [2023] WADC 61
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REASONS FOR DECISION:
Introduction
1
By application dated 10 December 2024 the applicant’s father made a claim for compensation on behalf of L (the applicant) for injuries she suffered as a consequence of offences committed by AJB (the offender) on 12 July 2022 at Doubleview. The applicant was nine years old when the offences were committed. On 16 December 2024 I made an award of compensation in the amount of $75,000, the statutory maximum, which was accepted on behalf of the applicant on 18 December 2024. On 24 December 2024 the applicant’s solicitors, MIDLAS, requested reasons for my decision.
2
The application was supported by:
a.
Birth certificate of L;
b.
WA Police Information Report for Criminal Injuries Compensation;
c.
Transcript from the hearing at the District Court of Western Australia on 7 March 2023;
d.
Transcript from the hearing at the District Court of Western Australia on 17 March 2023;
e.
Victim Impact Statement of L’s father dated August 2024;
f.
Victim Impact Statement of L’s grandmother dated June 2024;
g.
Letter from L’s father, undated;
h.
Progress Report by Clinical Psychologist Zoe Pearce dated 4 January 2023; and
i.
Closure Report by Clinical Psychologist Zoe Pearce dated 18 July 2023.
The offences
3
On 7 March 2023 the offender pleaded guilty on indictment before the District Court to two counts of indecent dealing with a child under 13 years and one count of procure, encourage or incite a child under 13 years
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to engage in sexual behaviour.
The facts were outlined by the prosecutor as follows:
[A]t the time of the offences, the victim was nine years of age and the offender was 39 years of age. The offender and the victim do not know each other. The victim had stayed at her step grandparents’ in Doubleview for a few days during the school holidays. On Tuesday, 12 July 2022, just before 10 am, the victim asked to take her grandparents’ dog for a walk on her own to the local park, which was allowed.
After walking the dog in the park, the victim began to leave the park and head towards her grandparents’ house when she was approached by the offender from behind. The offender said, “Hey kid, come here”. The offender held the victim by her hand and lured her by unknown means along the road …
The offender encouraged the victim by unknown means to come to his house. As the offender and the victim walked past her grandparents’ home, the victim pointed out the house and said that she needed to go home. The offender let go of her hand while walking past her grandparents’ home. The offender then grabbed hold of the victim’s hand again and continued to walk her along the road.
While they walked towards the offender’s home, the offender offered the victim a burger from Hungry Jack’s, which he was already in possession of. The offender told the victim to hurry up as his house was only around the corner. Once they arrived at the offender’s home, the victim told the offender she was leaving. The offender said he would give her a kiss goodbye and then kissed the victim on the lips with a closed mouth.
The offender then grabbed the victim’s hand and took her upstairs to his bedroom, along with the dog. Once in the offender’s bedroom, the offender told the victim to lay down on the bed. The victim did not lay down. However, she sat on the end of the bed. The offender used his hands and pushed the victim on her chest to make her lay on the bed. The victim did not lay back so the offender stood in front of her and pulled her pants and underwear down.
The offender pulled his pants down and exposed his penis to the victim. The offender used one of his hands to grab his penis and squished it in front of the victim.
While holding his penis, the offender asked the victim to suck his penis. The victim told the offender that she was only 10 years of age and was too young to have sex.
The offender is under the care of the Public Advocate and at this time his carer arrived at his home address and knocked on the door. The victim used this opportunity to pull her pants back up and run down the stairs. The victim ran out of the house with the dog and ran back to her step
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grandparents’ house. The victim then told her step grandmother what had happened.1
4
The offender died in custody before he was sentenced.
5
As judgment of convictions were entered for the offences, I am satisfied proved offences as defined in s 3 of the Criminal Injuries Compensation Act 2003 (WA) (the Act) are constituted. I determined the application pursuant to s 12 of the Act which provides an assessor may make a compensation award if satisfied the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence.
Evidence of injury
6
The applicant’s claimed injury was mental and nervous shock.
7
Between 3 August 2022 and 18 July 2023, the applicant attended 21 sessions with Clinical Psychologist Zoe Pearce at the Parkerville Children and Youth Care service. The reports by Ms Pearce express an opinion the applicant experienced post-trauma symptoms. These symptoms included: feeling scared; avoidance of trauma reminders; nightmares; difficulty sleeping; flash backs; somatic complaints; and feeling sad.
8
In his victim impact statement dated August 2024, the applicant’s father described the applicant as a ‘very happy, bubbly outgoing girl’ before the offences who changed dramatically after the offences. He stated:
She wasn’t her usual happy outgoing self. She was more withdrawn, scared, very timid at times and confused with her emotions. She was a lot more guarded especially around males. She would often wake up in the middle of the night crying and emotional.
9
In her victim impact statement dated June 2024, the applicant’s grandmother described the applicant as being ‘tearful, crying, frightened and confused’ after the incident. She also stated the applicant has become withdrawn and unhappy and she has issues with her sleep.
10
In his letter, the applicant’s father stated that since the applicant was discharged from her psychological treatment with Parkerville, she now uses avoidance to cope, has blocked memories of the offences and does not want to talk about the offences. The applicant’s father was
1 ts 10 – ts 12.
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concern
ed if the applicant was required to participate in a comprehensive assessment for a formal psychologist report it would reopen the trauma and the applicant would find it very challenging to open up and discuss the offences with a different psychologist from her treating psychologist Ms Pearce.
Legal principles
11
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 s 3 of the Act, ‘satisfied’ means ‘satisfied on the balance of probabilities’.
12
Section 18 of the Act requires an assessor must determine compensation applications expeditiously and informally having regard to the requirements of justice and the Act. An assessor is not bound by rules or practice as to evidence or procedure but may inform themselves in any manner they think fit.
13
In assessing the amount of compensation, the assessor should have regard solely to the injury actually suffered by the applicant as a consequence of the commission of the offence and not the seriousness 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 applicant.2 However, the actual facts of the offence are relevant as it is from the facts of the offence that the assessor can make a decision about the credibility and weight of the medical evidence and the likely time during which the applicant will suffer the injury.3
14
The ordinary tortious principles apply 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.4
15
Under s 31(1) of the Act, the maximum amount of compensation payable is $75,000, as the offences occurred after 1 January 2004, and are related offences pursuant to s 33 of the Act. This is a jurisdictional limit, not a sum reserved for the worst cases.5
2 B v W (1989) 6 SR (WA) 79; Re Hojetzki [2009] WADC 77 [43] (Sleight DCJ).
3 Re Hojetzki [44]; DNA v Britten (1995) 14 SR (WA) 325, 327.
4 Underwood v Underwood [2018] WADC 13 [113] (Gething DCJ).
5 S v Neumann (1995) 14 WAR 452 (463).
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16
In assessing the appropriate amount of compensation, a broad and subjective assessment must be undertaken, and the amount must be fair and reasonable compensation for the injuries, having regard to current general ideas of fairness and moderation.6
17
The definition of ‘injury’ under s 3 of the Act includes ‘mental and nervous shock’. This phrase contemplates the impact of the offence on the mind or nervous system7 and refers to ‘mental or emotional harm as opposed to physical injury or bodily harm.’8 In assessing a claim for mental or nervous shock, it is necessary to draw a distinction ‘between a mere emotional reaction and something of a more enduring character which may in both the legal sense and in common parlance, be described as an injury.’9 This includes making a distinction between direct ‘impact damage’ and further damage suffered by such things as the reaction of the victim’s family and friends, court proceedings or public attention.10
18
Section 35(2)(b) of the Act requires an ‘assessor must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence, or for any loss in respect of such shock, unless the assessor is satisfied that the victim was the person against whom the offence was committed.’ The applicant in this case was the person against whom the offence was committed.
19
In Girardi v Chief Assessor of Criminal Injuries Compensation11 Commissioner Schoombee set out the distinction between mental and nervous shock under the Act and the common law requirement for the diagnosis of a recognised psychiatric illness:
In the law of tort damages are not recoverable for distress, alarm, fear, anxiety, annoyance or despondency, without any resulting recognised psychiatric illness: Tame v New South Wales Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 at [7], [44], [171], [193] and [285]. However, in Fagan v Crimes Compensation Tribunal (1982) 42 ALR 511 at 516–517 the High Court held in respect of the words “mental or nervous shock” as referred to in the Criminal Injuries Compensation Act 1972 (Vic) that it was a mistaken approach to suppose that this phrase was only concerned
6 Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ); Houlahan v Pitchen [2009] WASCA 104 [107] (Newnes JA with whom Pullin & Miller JJA agreed); Winiarczyk v Tsirigotis [2011] WASCA 97 [71] ); Savic v Duric [2021] WADC 53 [51]; Underwood [117].
7 Re Richards [2022] WADC 100 [51]; Savic [45]; Underwood [83].
8 S v Neumann (461); Richards [51]; Savic [45]; Underwood [83]; DR v CD [2018] WADC 148 [24].
9 S v Neumann (461); Richards [51]; Savic [45]; Underwood [83]; DR v CD [24].
10 Savic [51]; Underwood [118]; Shepherd v Shepherd [2010] WADC 30 [20]; (2010) 71 SR (WA) 143 (Wager DCJ).
11 Girardi v Chief Assessor of Criminal Injuries Compensation [2005] WADC 194 [36].
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with the kind of injuries recognised by the common law as entitling a plaintiff to damages in tort. Mason and Wilson JJ said that the words of the Act had to be interpreted without supposing that they were intended to copy or reproduce common law rules. It must therefore be accepted that the phrase “mental or nervous shock” does not necessarily require proof of a psychiatric illness. Distress or anxiety which does not amount to a psychiatric illness would qualify as “mental or nervous shock”, as long as it can be proven to be a consequence of the impact of events constituting the offence. However, what is contemplated by the Act is not a mere emotional reaction, but something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury: S v Neumann (1995) (supra) at 461.
20
In the assessment of mental and nervous shock there is a necessity for an injury ‘in the legal sense’ which is a question of fact for the assessor. This is often established by expert psychological or psychiatric evidence after a formal assessment. However expert evidence of the diagnosis of a recognised psychiatric condition is not required,12 nor is a formal psychological or psychiatric assessment as an injury in the form of mental and nervous shock may be inferred from any relevant evidence.13 This evidence can include victim impact statements,14 reports from treating psychologists,15 reports from treating counsellors,16 school records,17 and medical records, including notes from general practitioners, counselling or psychology sessions.
21
The powers contained in sections 18 and 19 of the Act authorise an assessor to have reference to the diagnostic criteria contained in the Diagnostic and Statistical Manual of Mental Disorders, fifth edition, in making an assessment as to whether symptoms amount to mental and nervous shock and therefore an injury for the purposes of the Act.18
22
In KMM v SG19 Flynn DCJ referred to a number of cases where a finding of mental and nervous shock was based upon the drawing of an inference from evidence of enduring emotional harm suffered by a victim
12 Girardi [36]; Holyoak C & Guthrie R ‘Eligibility, injury and healing: exploring culturally appropriate compensation for First Nations victims of crime in Western Australia’ (2025) Psychiatry, Psychology and Law, 1,6.
13 KMM v SG [2023] WADC 136 [28] (Flynn DCJ).
14 Roberts [2021] WACIC 3 (Assessor Hafford); Vanmaris v Roberts [2022] WADC 80 [93] (Russell DCJ); AKM v GJH [2020] WADC 152 (Sharp DCJ); AH v RH [2016] WADC 114 (Braddock DCJ).
15 Savic.
16 AH v RH.
17 SL (By Her Next Friend NL) [2014] WADC 178 (Stevenson DCJ); VPAN [2011] WADC 40 (Sweeney DCJ).
18 Gullelo v Halloran [2008] WADC 145 (Commissioner Staude).
19 [28].
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including
: ‘a grave emotional effect of traumatic origin’;20 ‘(adverse) effect on all areas of (the victim’s) life’;21 ‘many of the behaviours identified in trauma victims’;22 and ‘the evidence of (the victim) of suffering a depressed psychological state’.23
Assessment of compensation
23
The devastating and long-term impact of child sexual abuse on children is well established.24 The traumatic nature of the offending in this case is evidenced by a vulnerable child being approached after leaving a public park and being lured into a stranger’s bedroom where the sexual offences were committed.
24
In all the circumstances, I accept the applicant has suffered the following symptoms as a consequence of the offences:
(a)
Feeling scared;
(b)
Avoidance of trauma reminders;
(c)
Nightmares;
(d)
Difficulty sleeping;
(e)
Flashbacks;
(f)
Somatic complaints;
(g)
Feeling sad;
(h)
Appearing withdrawn and unhappy;
(i)
Being confused with her emotions;
(j)
Appearing very timid;
(k)
Being guarded especially around males; and
(l)
Appearing tearful, crying, frightened and confused.
20 Fagan v The Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 669 (Mason & Wilson JJ).
21 Sunderland v Curnack [2002] WASC 158, [11] – [13].
22 DCN v RJS [2004] WADC 63 [34] (Jackson DCJ).
23 Re Hojetzki [47].
24 ZYX (pseudonym initials) -v- CABLE [No 5] [2023] WADC 61 (Herron DCJ).
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25
I am satisfied the applicant has been significantly psychologically affected by the offences; her symptoms are enduring and considerably impact her life. Accordingly, I am satisfied on the balance of probabilities the psychological symptoms suffered by the applicant amount to mental and nervous shock as a consequence of the proved offences. I did not think it necessary to seek any further evidence nor require the applicant to undergo a formal psychological or psychiatric assessment.
26
Any fair and reasonable award for the psychological injuries caused by the offences, having regard to current general ideas of fairness and moderation, would exceed $75,000. Accordingly, I awarded the applicant compensation in the amount of $75,000.
27
In accordance with s 30 of the Act, I directed that the compensation award be held on trust for the applicant by the Public Trustee until she attains the age of 18 years.
28
Pursuant to s 45(1)(a) of the Act, I barred proceedings under Part 6 of the Act as the offender is deceased.
29
Pursuant to s 64 of the Act I prohibit publication of any particular that is likely to lead to the identification of the applicant or the offender due to the age of the applicant and the nature of the offences.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Criminal Injuries Compensation Assessor of Western Australia.
A Barter, ASSESSOR Of CRIMINAL INJURIES COMPENSATION
14 FEBRUARY 2025