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RE POTSCHICK [2025] WADC 9

[2025] WADC 9
[2025] WADC 9 (AC) Page 1
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION : PERTH
CITATION : RE POTSCHICK [2025] WADC 9
CORAM : RITTER DCJ
HEARD : 12 MARCH 2024 & FINAL INFORMATION/SUBMISSIONS RECEIVED 20 DECEMBER 2024
DELIVERED : 27 FEBRUARY 2025
FILE NO/S : APP 39 of 2023
MATTER : IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN : HILDEGARD IRMA POTSCHICK
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : R CAPARARO
File Number : CIC 832 of 2020
[2025] WADC 9
[2025] WADC 9 (AC) Page 2
Catchwords:
Criminal injuries compensation – Assessment of damages – Leave to commence appeal out of time
Legislation:
Criminal Code (WA)
Criminal Injuries Compensation Act 2005 (WA)
District Court Rules 2005 (WA)
Result:
Leave to commence appeal out of time granted
Appeal allowed
Compensation assessed
Representation:
Counsel:
Appellant
:
Ms M J Aranda
Amicus Curiae
:
Ms I N Darch appeared on behalf of the Chief Executive Officer of the Department of Justice
Solicitors:
Appellant
:
Maryse Aranda Lawyers
Amicus Curiae
:
State Solicitor for Western Australia
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
EB v Ramljak [2021] WADC 134
EM v CL [2021] WADC 127
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
James v Sievwright [2003] WASCA 251
LS v SL [2023] WADC 8
Martin v Martin [2015] WADC 138
[2025] WADC 9
[2025] WADC 9 (AC) Page 3
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
Puterangi [2017] WADC 168
RBF v OSD-S [2004] WADC 97; (2004) 36 SR (WA) 61
Re ATS [2017] WADC 92
Re Coad [2023] WADC 9
Re Collard [2018] WADC 1
Re Jackamarra [2014] WADC 9
Re McHenry [2014] WADC 92
Re TLJ [2016] WADC 74
Re ZD (pseudonym initials) [2024] WADC 42
S v Neumann (1995) 14 WAR 452
Simonsen v Legge [2010] WASCA 238
Underwood v Underwood [2018] WADC 13
[2025] WADC 9
RITTER DCJ
[2025] WADC 9 (AC) Page 4
RITTER DCJ:
The appeal
1
By a notice of appeal dated 21 August 2023 the appellant appeals against a decision of the Assessor of Criminal Injuries Compensation (Assessor). The decision was made following an application for compensation made by the appellant on 29 April 2020 pursuant to s 17 of the Criminal Injuries Compensation Act 2003 (WA) (the Act). The application was made for a compensation award arising out of injuries suffered as a result of an incident on 3 May 2017. On 19 May 2021 the Assessor formally refused the application on the basis that the appellant was committing a separate offence at the time of suffering the injury.
The issues
2
As outlined in the written submissions made on behalf of the appellant, there are three issues for determination in the appeal. These are:
(a) whether the appellant is granted leave to commence the appeal out of time;1
(b) if so, should an award for compensation be made?
(c) if the answer to (a) and (b) is yes, the appropriate award of compensation.
3
In my opinion it is most convenient to determine issue (b) first. This is because if, in my opinion, an award for compensation should be made this is a factor very relevant to the determination of issue (a). Further, if issue (b) is determined in favour of the appellant, it gives rise to a consideration of issue (c).
The amicus curiae
4
The State Solicitor’s Office, by order of Registrar Kubacz on 7 November 2023, was granted leave to appear as amicus curiae.
1 Technically, unless and until the court orders that Ms Potschick may commence the appeal out of time she is an applicant rather than appellant. For ease of reference however I will refer to her as an appellant throughout these reasons.
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RITTER DCJ
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5
The amicus provided written submissions to the court dated 7 March 2024. The amicus also appeared to provide oral submissions. The amicus also responded, briefly, when additional documents were provided on behalf of the appellant, following the hearing of the appeal. The court is indebted to the written and oral submissions made by the amicus curiae. Submissions of an amicus curiae are particularly important when a respondent to an appeal does not appear, as in this instance, and therefore there is no contradictor before the court.
6
In the submissions of the amicus it was asserted that there were five issues to be determined. These included, in addition to those identified by the appellant, fourthly whether the appellant committed a separate offence at the time of the alleged offence and therefore the court must refuse the award of compensation under s 39 of the Act. And fifthly whether the appellants behaviour, condition, attitude or disposition contributed directly or indirectly to her injury. If the answer to that question is yes, the court may refuse to make a compensation award or reduce the amount it otherwise would have awarded if it considers it just to do so. This is provided for by s 41 of the Act.
7
I accept that these are issues to be determined, but they are subsumed in issues (b) and (c) identified on behalf of the appellant, as set out above.
Applicable principles – appeals
8
Part 7 of the Act legislates about appeals and referrals.
9
Section 55 of the Act provides that, relevantly, an interested person may appeal to the District Court against an assessor’s decision as to the amount of a compensation award. Section 56(1) of the Act provides:
On an appeal under section 55 against an assessor’s decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor’s decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information.
10
As stated in s 56 of the Act, the appeal/application is to be determined by the court ‘without being fettered by the assessor’s decision’. Whilst there are conflicting authorities, the better view in my opinion is that the appeal may and most often should be determined
[2025] WADC 9
RITTER DCJ
[2025] WADC 9 (AC) Page 6
without regard to the assessor’s reasons and instead, the court is to
independently review the evidence.2
11
From the terms of the legislation and as confirmed by authority, an appeal under the Act is a hearing de novo.3 Accordingly there is no requirement for the appellant to demonstrate error on the part of the assessor.
12
Section 56(2) of the Act provides that on an appeal the District Court may, relevantly, confirm, vary or reverse the assessor’s decision, either in whole or in part; and make any order that an assessor could make under the Act.
Additional evidence and information
13
As set out in s 56(1) of the Act the court ‘may receive further evidence and information’ as opposed to deciding ‘the application to which the decision relates 
 solely on the evidence and information that was in the possession of the assessor 
’.
14
In the present appeal, the appellant sought to rely on evidence and information in addition to that before the Assessor. In particular the additional evidence and information initially before me included a psychological report from Mr Augustine Hwee dated 3 May 2024 and other medical records. However, at the hearing I made an order permitting the appellant to file an additional report from her treating psychologist. This led to the supplementary report of Mr Hwee dated 2 August 2024, being provided. It is therefore just that the appellant be entitled to reply on this document. I also made an order at the hearing allowing the appellant to provide the transcript of the earlier hearing before Magistrate Wilson on 10 January 2018. This was the transcript of the hearing of a violence restraining order application by the appellant against the alleged offender. The application was dismissed on 18 January 2018. Magistrate Wilson provided written reasons for decision.4 The transcript was not however provided to me.
15
These documents were provided consequent to the hearing of the appeal on 12 March 2024, consistent with either orders then made, or subsequent correspondence with my associate. Accordingly, in my opinion these documents, as a matter of justice, ought to be considered by me in determining the application.
2 Re Coad [2023] WADC 9 [17]; EM v CL [2021] WADC 127 [11]; EB v Ramljak [2021] WADC 134 [18].
3 Underwood v Underwood [2018] WADC 13 19; Re Collard [2018] WADC 1 [30].
4 Assessor’s papers, page 65. The transcript of those proceedings has not been provided.
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16
The appellant was ordered on 7 November 2023 to file a book of documents in addition to those provided to the Assessor, on which she intended to rely. On 26 February 2023 the appellant filed additional documents, including documents not previously before the Assessor, being:
(a) a further note for roofing dated 9 June 2017;
(b) three affidavits sworn by the appellant in 2017, 2023 and 2024;
(c) a letter from Scarlet Runner;
(d) an undated photograph of a broken tile roof;
(e) a receipt from Dr Wong of the Ranford Medical Centre; and
(f) a medical report provided by Dr Wong of Ranford Medical Centre.
17
In my view this is also just that the court take into account these documents.
18
Medical records from the Carousel Medical Centre, as referred to later, were also provided to the court after the hearing of the appeal. It is also just for the court to take into account these documents in determining the appeal.
19
It is relevant that the Act does not set out any particular requirement for the receipt of further evidence and information in the hearing of the appeal. There is no requirement, for example, to demonstrate that the evidence or information should only be received if it is new or fresh information. This is consistent with the appeal being a determination afresh, not fettered by the assessor’s decision.
The notice of appeal
20
Although, as set out earlier, the hearing of an application is a hearing de novo, the relevant form for an appeal notice under r 51(1) of the District Court Rules 2005 (WA) provides that grounds of appeal should be included in the appeal notice. Here the appellant relies upon four grounds of appeal being:

  1. The Assessor failed to give due consideration to the offender’s conduct under s.70A of the Criminal Code Compilation Act 1913
    [2025] WADC 9
    RITTER DCJ
    [2025] WADC 9 (AC) Page 8
  2. The Assessor failed to give due consideration to the offender’s conduct under s.222 of the Criminal Code Compilation Act 1913
  3. The Assessor consequently failed to give due consideration to the offender’s conduct under s.244 of the Criminal Code Compilation Act 1913
  4. The Assessor failed to give any or any sufficient weight to the injuries sustained by the Appellant and the effect of those injuries.
    21
    As I have said earlier the formal refusal of the application of the appellant by the Assessor was made on 19 May 2021. The letter referred to previous correspondence from the Assessor dated 8 July 2020 and a response to that letter. However, the Assessor’s letter said that for the reasons set out in her letter of 8 July 2020, the appellant’s application for compensation was formally refused.
    22
    The Assessor’s letter of 8 July 2020 said that the Assessor had reviewed the documents provided as part of the compensation application and had requested and received from Western Australia Police the incident report and running sheet. The letter then said:
    

    The running sheet reports on 30 May 2017 the alleged offender stated your client struck him numerous times whilst holding an umbrella. He then said he took hold of the umbrella to protect himself and as he grabbed the umbrella your client fell to the ground. He said as your client fell he attempted to help her back up during which time she struck him further with the umbrella. Your client has informed police the alleged offender took hold of the umbrella that she was holding after she smashed his vehicle, she then said he pulled the umbrella and pulled her around as a result she fell to the ground. Your client then stated to police she got back up and was pushed to the ground once more by the alleged offender which was denied.
    Due to the operation of section 39 of the Criminal Injuries Compensation Act 2003 (the Act) I must not make an award of compensation to your client if I am satisfied your client was committing a separate offence when she was injured. On the basis of the information currently before me your client struck the alleged offender with the umbrella several times before he retaliated. This would amount to an offence of assault. Furthermore, she smashed the reverse window of his motor vehicle which would amount to criminal damage and as such I would be obliged to refuse your client’s application for compensation.
    [2025] WADC 9
    RITTER DCJ
    [2025] WADC 9 (AC) Page 9
    

    Section 41 of the Act also requires that I take account of any behaviour, condition, attitude or disposition of your client which contributed directly or indirectly to her injuries. Your client called police but rather than waiting for them to attend the premises, exited the house and struck the alleged offender with an umbrella, assaulting him. She then further provoked him by smashing the umbrella on his vehicle. On this basis I would be required to reduce your client’s compensation to take into account her contribution to her own injuries by exiting her home, approaching the alleged offender and striking him with the umbrella and then further provoking him by smashing the umbrella onto his vehicle. In my opinion your client’s behaviour precludes me from making any award to her.
    

    23
    That letter was written to the appellant’s then-solicitor at the Gosnells Community Legal Centre.
    24
    The Assessor, in the letter, did not refer to the evidence before and the findings of Magistrate Wilson on 18 January 2018. Also the Assessor did not consider whether the appellant did not commit an offence due to s 244 of the Criminal Code (WA). Magistrate Wilson’s reasons were amongst the documents before the Assessor.5
    Entitlement to compensation under the Act
    25
    As set out earlier the application for compensation was made on 29 April 2020 for injuries allegedly suffered as a result of an alleged offence occurring on 3 May 2017. Accordingly, the application was made within the three-year period set out in the Act in s 9(1).
    26
    The application to the Assessor was based upon s 17 of the Act. Relevantly to the present application are s 17(1), s 17(2) and s 17(4), which are as follows:
    (1) This section applies if an alleged offence is committed but no person is charged with the alleged offence.
    (2) A person who suffers injury as a consequence of the commission of the alleged offence may apply for compensation for that injury and any loss also suffered.
    

    5 Assessor’s papers, pages 65 – 80.
    [2025] WADC 9
    RITTER DCJ
    [2025] WADC 9 (AC) Page 10
    (4) An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied –
    (a) if the application is made under subsection (2) – that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the alleged offence;
    

    27
    As summarised by the amicus the effect of s 17(4)(a) of the Act is that the court must not make a compensation award under s 17(2) of the Act unless satisfied:
    (a) that the claimed offence occurred;
    (b) that the claimed injury and any claimed loss occurred; and
    (c) the claimed injury and any claimed loss occurred as a consequence of the commission of the alleged offence.
    28
    ‘Alleged offence’ is defined in s 3 of the Act to mean a crime, misdemeanour or simple offence of which no person has been convicted.
    29
    The legislation has been construed to mean that the court must be satisfied that an alleged offence occurred in the manner described by the appellant. For this to occur the court must be satisfied that it is more probable than not that the alleged offence took place.6 There is authority, which I accept, to support these propositions:
    (a) The strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what is sought to be proved. This is particularly so when criminal conduct is alleged.7
    (b) It is a serious matter to make a finding that an alleged offender has committed an act in the nature of an offence, particularly when they are not given an opportunity to refute those allegations.8
    6 Re TLJ [2016] WADC 74 [51].
    7 See for example Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, 449 – 450; Briginshaw v Briginshaw (1938) 60 CLR 336, 362; Re ATS [2017] WADC 92 [29], [141].
    8 Re Jackamarra [2014] WADC 9 [71], [75].
    [2025] WADC 9
    RITTER DCJ
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    30
    Accordingly, the court should exercise caution in making a conclusion that an offence has been committed. The evidence to support the commission of an offence must be precise rather than loose and inexact and should be considered with careful scrutiny before making the relevant findings.9
    31
    The burden placed upon the appellant is not discharged merely by providing evidence that contains conflicting inferences of equal degrees of probability. In such circumstances the choice between the two versions is no more than conjecture.10 I have applied these principles in the findings that I have made. I set out those findings later.
    32
    An injury is defined in s 3 of the Act to mean bodily harm, mental and nervous shock, or pregnancy. Loss is defined in s 6(2) of the Act.
    33
    Section 6(2) of the Act provides as follows:
    (2) In the case of a victim who is injured, loss means –
    (a) expenses actually and reasonably incurred by or on behalf of the victim –
    (i) that arise directly from; or
    (ii) that arise in obtaining any report from a health professional or a counsellor in relation to,
    the injury suffered by the victim; or
    (b) expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim; or
    (c) loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim; or
    (d) any loss arising from any damage caused as a direct consequence of the commission of the offence to any personal item that was being worn by the victim when he or she suffered the injury.
    (3) In the case of a victim who dies, loss means any loss suffered by a close relative of the victim for which damages could be awarded to the relative under the Fatal Accidents Act 1959 if the death of the victim were caused by the wrongful act, neglect or default of another.
    9 Re ATS [29], [114].
    10 Martin v Martin [2015] WADC 138 30.
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    34
    ‘Personal item’ is also defined in s 6(1) of the Act. It is not necessary to set out the terms of that definition.
    35
    The application of the appellant includes, in effect, a claim for compensation for mental and nervous shock. The court 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 satisfied that an applicant falls within one of the categories specified in s 35(2) of the Act. Relevant to the present application is s 35(2)(a) and (b), as follows:
    (2) 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 –
    (a) that the victim also suffered bodily harm or became pregnant as a consequence of the commission of the offence; or
    (b) that the victim was the person against whom, or against whose property, the offence was committed; or
    

    36
    ‘Mental or nervous shock’ includes a malfunction of the person as a consequence of the impact of events constituting the offence or offences, associated with the commission of the offences, as those events impact on the mind or nervous system. It must be more than a mere emotional reaction, being something of a more enduring character which may, in both the legal sense and in common parlance be described as an injury. It does not include mere fright, humiliation or anguish. But it does include distress, horror, disgust and other similar adverse mental reactions.11 Mental or nervous shock includes therefore post-traumatic stress disorder (PTSD) such as the appellant asserts was caused to her by the alleged assault.
    37
    As pointed out by the amicus, the application for compensation relied upon three alleged offences, committed by the same person, MJB. The alleged offences were assault, trespass and criminal damage.
    38
    Also relevant to deciding the appeal is s 39 and s 41 of the Act.
    11 S v Neumann (1995) 14 WAR 452, 461; Martin [85].
    [2025] WADC 9
    RITTER DCJ
    [2025] WADC 9 (AC) Page 13
    39
    Section 39 provides:
  5. No award if victim was engaged in criminal conduct
    (1) If an assessor is satisfied –
    (a) that a person was injured as a consequence of the commission of an offence; and
    (b) that the injury was suffered when the person was committing a separate offence,
    the assessor must not make a compensation award in favour of the person.
    (2) If an assessor is satisfied –
    (a) that a person died as a consequence of the commission of an offence; and
    (b) that the death occurred when the person was committing a separate offence,
    the assessor must not make a compensation award in favour of a close relative of the person for any loss suffered by the close relative as a result of the death.
    40
    Section 41 provides:
  6. Behaviour etc. of victim to be considered
    In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor –
    (a) must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim’s injury or death; and
    (b) may, if he or she thinks it is just to do so –
    (i) refuse to make a compensation award because of that contribution; or
    (ii) reduce the amount that the assessor would otherwise have awarded.
    Assault
    41
    Section 313(1) of the Criminal Code provides that any person who unlawfully assaults another is guilty of a simple offence.
    [2025] WADC 9
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    [2025] WADC 9 (AC) Page 14
    42
    Accordingly, there are two elements to s 313(1)(b):
    (a) there was an assault; and
    (b) the assault was unlawful.
    43
    Assault is relevantly defined in s 222 of the Criminal Code as follows:
    A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.
    The term applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.
    44
    As assault is unlawful and constitutes an offence unless it is authorised, justified or excused by law.12 An assault may not be unlawful if an excuse or defence applies such as provocation or self-defence.13 Although provocation and self-defence are commonly referred to as defences, having regard to the onus of proof, in criminal proceedings it is for the prosecution to prove that the ‘defence’ does not apply, beyond reasonable doubt, before a person could be convicted of assault. In the proceedings, the appellant must prove they do not apply, on the balance of probabilities.
    Trespass
    45
    On the relevant date being 3 May 2017, the offence of trespass was described in s 70A if the Criminal Code in this way:14
    (2) A person who, without lawful excuse, trespasses on a place is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12,000.
    12 Criminal Code s 223.
    13 See for example s 246 and s 248 of the Criminal Code.
    14 In 2023 s 70A was amended, however the amendment is immaterial to the present case.
    [2025] WADC 9
    RITTER DCJ
    [2025] WADC 9 (AC) Page 15
    46
    Accordingly, the two elements of s 70A(2) of the Criminal Code are:
    (a) a person trespasses on a place; and
    (b) the person does so without lawful excuse.
    47
    Section 70A(1) of the Criminal Code defines trespass on a place, as follows:
    (a) to enter or be in the place without the consent or licence of the owner, occupier or person having control or management of the place; or
    (b) to remain in the place after being requested by a person in authority to leave the place; or
    (c) to remain in a part of the place after being requested by a person in authority to leave that part of the place.
    (2) A person who, without lawful excuse, trespasses on a place commits an offence.
    Penalty for this subsection: imprisonment for 12 months and a fine of $12 000.
    Criminal damage
    48
    The third offence relied upon by the appellant is with respect to criminal damage, contrary to s 444 of the Criminal Code. This section provides:
  7. Criminal damage
    (1A) In this section –
    circumstances of aggravation has the meaning given in section 221.
    (1) Any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable –
    (a) if the property is destroyed or damaged by fire, to life imprisonment; or
    (b) if the property is not destroyed or damaged by fire, to imprisonment for 10 years or, if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, to imprisonment for 14 years.
    [2025] WADC 9
    RITTER DCJ
    [2025] WADC 9 (AC) Page 16
    Alternative offence: s. 445.
    Summary conviction penalty: for an offence where –
    (a) in a case where subsection (1)(b) applies; and
    (b) the amount of the injury done does not exceed $50 000,
    imprisonment for 3 years and a fine of $36 000.
    (2) Property that is capable of being destroyed or damaged by fire includes vegetation.
    49
    The two elements of an offence under s 444 of the Criminal Code are:
    (a) a person damages property; and
    (b) they do so wilfully or unlawfully.
    50
    Additionally, wilfully destroy or damage is defined in s 443 of the Criminal Code as follows:
  8. Term used: wilfully destroy or damage
    Where a person does an act or omits to do an act –
    (a) intending to destroy or damage property; or
    (b) knowing or believing that the act or omission is likely to result in the destruction of or damage to property,
    and the act or omission results in the destruction of or damage to property, the person is regarded for the purposes of this division as having wilfully destroyed or damaged property.
    Section 244 of the Criminal Code
    51
    Section 244 of the Criminal Code is relied upon by the appellant to justify her actions. This provides as follows:
  9. Home invasion, use of force to prevent etc.
    (1) It is lawful for a person (the occupant) who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary –
    (a) to prevent a home invader from wrongfully entering the dwelling or an associated place; or
    [2025] WADC 9
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    [2025] WADC 9 (AC) Page 17
    (b) to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place; or
    (c) to make effectual defence against violence used or threatened in relation to a person by a home invader who is –
    (i) attempting to wrongfully enter the dwelling or an associated place; or
    (ii) wrongfully in the dwelling or on or in an associated place;
    or
    (d) to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place.
    (1A) Despite subsection (1), it is not lawful for the occupant to use force that is intended, or that is likely, to cause death to a home invader unless the occupant believes, on reasonable grounds, that violence is being or is likely to be used or is threatened in relation to a person by a home invader.
    (2) A person is a home invader for the purposes of subsection (1) if the occupant believes, on reasonable grounds, that the person –
    (a) intends to commit an offence; or
    (b) is committing or has committed an offence,
    in the dwelling or on or in an associated place.
    (3) The authorisation conferred by subsection (1)(a), (b) or (d) extends to a person assisting the occupant or acting by the occupant’s authority.
    (4) If under subsection (1)(c) it is lawful for the occupant to use a degree of force, it is lawful for another person acting in good faith in aid of the occupant to use the same degree of force to defend the occupant.
    (5) This section has effect even if the conduct it authorises would not otherwise be authorised under this Chapter.
    [2025] WADC 9
    RITTER DCJ
    [2025] WADC 9 (AC) Page 18
    (6) In this section –
    associated place means –
    (a) any place that is used exclusively in connection with, or for purposes ancillary to, the occupation of the dwelling; and
    (b) if the dwelling is one of 2 or more dwellings in one building or group of buildings, a place that occupants of the dwellings use in common with one another;
    offence means an offence in addition to any wrongful entry;
    place means any land, building or structure, or a part of any land, building or structure.
    Evidence
    52
    In the written submissions of the appellant, the findings made by Magistrate Wilson are summarised as follows:
  10. Magistrate Wilson accepted the evidence of both parties to find that [the offender] ‘was told to get off the roof of the House by the [Appellant] and [the offender] was trespassing’.
  11. Magistrate Wilson found that the [offender’s actions] amounted ‘to an assault within the meaning of the s. 222 of the Criminal Code’.
  12. Magistrate Wilson found that the ‘[Appellant] was authorised, pursuant to s. 244 of the Criminal Code, to use such force as is necessary to remove the [offender] from her property’.
  13. Magistrate Wilson found that ‘the events that unfolded on 3 May 2017 were frightening to the [Appellant]’. Further, that ‘the telephone conversations the [offender] had with the [Appellant]’ were ‘intimidating’ and ’caused fear in the [Appellant]’.
    

  14. The offender entered the property of the Appellant without the consent of the Appellant in breach of s.70A(a).
  15. The offender ‘then climbed onto the roof of the House and lifted some tiles before then removing some rivets holding the down pipe in place’ … which … ‘amounted to damage’.
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    [2025] WADC 9 (AC) Page 19
  16. The Appellant says that the action by the offender in removing the downpipe and lifting the tiles caused damage to the Appellant’s roof and the damage was an additional expense to the appellant that had to be repaired.
  17. The Appellant told the offender to get off the roof and that he was trespassing.
    

  18. Magistrate Wilson found that ‘the [offender] applied force to the appellant in attempting to remove the umbrella from the hands of such a degree that he knew or ought to have known it was highly likely his strength would cause the Applicant to fall’ and she did fall and sustained injuries.
  19. Magistrate Wilson found that the actions of the offender amounted to ‘an assault within the meaning of section 222 of the Criminal Code’.
    

  20. Magistrate Wilson’s comment about the offender: ‘knew or ought to have known [that] it was highly likely [the action] would cause the [appellant] to fall’ implies total disregard on the part of the offender to the foreseeable affects of his actions, and merely reinforces the offender’s actions to intimidate and / or cause injury.
    

    53
    The appellant submitted Magistrate Wilson was in the best position to determine the credibility and the behaviour of the parties when they gave their respective evidence at the hearing of the restraining order on 10 January 2018.
    54
    The amicus summarised the evidence provided by the appellant and the findings of Magistrate Wilson in their written submissions as follows:15
  21. The Appellant has provided a statement and an affidavit in which she describes the events of 20 February 2021. In summary, the Appellant’s description of the events are:
    46.1 On the 11 January 2017 the alleged offender attended the appellants [sic] property to provide a quote for some roofing maintenance work.
    15 The summary included in these reasons has corrected some typographical errors made in the original document.
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    46.2 On 24 March the alleged offender attended the property, with a younger colleague David, to do the work.
    46.3 The Appellant paid the alleged offender $1050 in cash, which she says was the total amount agreed to for the roofing works.
    46.4 The Appellant states that the alleged offender left the work incomplete.
    46.5 The Appellant states she contacted the alleged offender between 24 March 2017 and 29 April 2017 to do further work but he was too busy.
    46.6 David returned to the property to install guttering on 29 April 2017.
    46.7 On 29 April 2017 the alleged offender then informed the Appellant that this work was a ‘new job’ and she owed him a further $180. The Appellant disagreed with this.
    46.8 On 1 May 2017 the Appellant invited the alleged offender to her house to discuss the disagreement. She offered him $50.00 but he refused.
    46.9 Half an hour after he left he allegedly called the Appellant and yelled at her on the phone including calling her a ‘bitch’. He told her he was going to come and rip the guttering out.
    46.10 The Appellant also describes the alleged offender as saying ‘he will return and rip off the down pipe and damage the gutter’.
    46.11 On 3 May 2017 he called the Appellant and informed her he was coming to her house.
    46.12 The Appellant called 000 and was informed the situation was not an emergency. She was directed to call 131 444.
    46.13 While the Appellant was on the phone with 131 444 the alleged offender knocked on the door and the Appellant could hear him get on her roof so she hung up the phone and went outside.
    46.14 The appellant went out the front to tell the alleged offender she did not want him there and he was trespassing.
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    46.15 The Appellant then ‘used an umbrella to hit the mirror on his car to try and get him to stop damaging her roof and to leave. The mirror broke off.
    46.16 The alleged offender grabbed the umbrella the Appellant was holding and caused her to fall to the ground.
    46.17 The alleged offender ran towards her front door and she moved between the offender and her door.
    46.18 The alleged offender then used [sic] took hold of the umbrella again and using it pushed the Appellant to the ground again causing her to hit her head on the concrete.
    46.19 The alleged offender was pushing her around while she was on the ground causing her to wet herself.
    46.20 The alleged offender left before returning to tell her he had a witness.
  22. The Appellant obtained an interim violence restraining order against the alleged offender. She applied for a final violence restraining order which was refused.
  23. On 10 January 2018, both the Appellant and the alleged offender gave evidence at that hearing which is summarised by Magistrate Wilson in his written reasons.
  24. The alleged offender’s version of the incident is outlined below:
    49.1 The alleged offender accepted the work had been completed for $1050.
    49.2 The Appellant then required further work for which he quoted $160.
    49.3 On 27 April 2017 [the alleged offender] sent an employee to the house to do the work.
    49.4 On 1 May 2017, he telephoned the Respondent and then went to her house to discuss payment. She offered him $50 which he found insulting.
    49.5 He threatened to involve a debt collector. He stated he could hear his son crying so he told her he would return to discuss further the following Wednesday, 3 May.
    49.6 On 3 May the Respondent phoned the Appellant but she hung up on him.
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    49.7 He knocked on the door but she did not answer.
    49.8 He decided to remove the down pipe as he had not been paid.
    49.9 To do so he removed tiles and in the process broke some cement on the ridge capping causing damage.
    49.10 The alleged offender was trying to replace roof tiles and put a protective piece of metal where he had removed the down pipe. The Appellant appeared with a broom and started to strike him and telling him he was trespassing. He did not dispute taking the broom off her and throwing it into the backyard.
    49.11 The alleged offender ‘then heard his ute being struck with an umbrella by the Appellant so he got off the roof to attempt to stop her but found he couldn’t as she kept striking him with the umbrella and it was hurting him’.
    49.12 He went towards the front of the house to get his ladder and leave but the Appellant kept on poking him with the umbrella through holes in the ladder.
    49.13 He grabbed hold of the end of the umbrella and tried to pull it off the Appellant. But he pulled her over and onto the ground.
    49.14 He moved towards the Applicant to help her up but she continued to poke him.
    49.15 He decided to remove himself from the area and as he was reversing his ute he saw the Appellant grab hold of a mirror and break it off.
    49.16 As he was reversing the Appellant also reached into the back of the ute and grabbed hold of some ‘whirly bird’ vents and threw them onto the ground damaging them.
  25. There was no dispute relating to a number of matters leading up to the date of the alleged offending. Having noted the standard of proof required in civil cases is the balance of probabilities, and having had the benefit of seeing and hearing both parties, Magistrate Wilson accepted and found:
    50.1 The alleged offender became very annoyed.
    50.2 The alleged offender climbed onto the appellant’s roof.
    50.3 The alleged offender was trying to patch where the downpipe had been removed from when the appellant began striking him with a broom which the alleged offender threw into the back garden.
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    50.4 The Appellant began striking the ute and the alleged offender approached her to try and her [sic] stop her doing that.
    50.5 The Appellant began striking the alleged offender multiple times and that the alleged offender grabbed hold of the umbrella causing her to fall backwards.
    50.6 The actions ‘by the Respondent amount to an assault within the meaning of the s. 222 of the Criminal Code’.
    50.7 The alleged offender was genuinely shocked and moved toward the Appellant to assist her.
    50.8 The Appellant perceived this as a threat and began striking him again.
    50.9 the Appellant caused damage to two side rear vision mirrors on the ute and scratched the window tint
    50.10 the Appellant ‘was authorised, pursuant to s 244 of the Criminal Code, to use all necessary force to remove the alleged offender from her property’.
    50.11 that removing the down pipe and lifting of tiles caused damage.
  26. On the evidence of both parties, outlined above, it appears open to this Court to consider whether an assault was constituted when the alleged offender pulled on the umbrella and caused the Appellant to fall to the ground.
  27. If the court asks itself this question, then is it is necessary to consider whether the assault was justified or excused by law. For this reason, it is necessary to consider any relevant defences.
    (footnotes omitted)
    55
    Counsel for the appellant asserts she was not committing a separate offence when she was injured. This was because the appellant had a lawful excuse for her action pursuant to s 244 of the Criminal Code. This was because the appellant believed on reasonable grounds that her property, being her house was being damaged unlawfully and she had to do something to get the offender to leave her property. The appellant relies upon the observations of Barker J in James v Sievwright.16
    16 James v Sievwright [2003] WASCA 251.
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    56
    His Honour, Barker J, in reviewing s 244 of the Criminal Code made the following observations:17
    
 there is no requirement in order to make out the ‘defence’ against home invasion for the occupant to show that the force he or she used was ‘reasonably necessary’ to prevent a home invader from wrongly entering the dwelling or the other purposes referred to in s 244(1)(a) – (d). 
 The occupant must hold that belief ‘on reasonable grounds’, but it is the existence of an actual belief to that effect that is the critical or decisive factor. There is no additional requirement that the force used to prevent a home invader from wrongfully entering a dwelling, etcetera, must also be, objectively speaking, ‘necessary’ for the defence to apply.
    57
    The appellant therefore contends that the basis for the Assessor’s refusal of the appellant’s application for compensation was not made out. In considering the evidence relevant to s 244 of the Criminal Code, the amicus submits:
  28. In this case, when considering the conduct of the appellant on her own premises, the Court will consider whether the Appellant was entitled, pursuant to s 244 of the Criminal Code (WA), to use all reasonable force or do anything else that the occupant believes, on reasonable grounds, to be necessary to cause a home invader who is wrongfully on the dwelling to leave it.
  29. In her statement the Appellant reports having gone outside to tell the alleged offender that he was trespassing but he ignored her and she watched him damaging her roof.
  30. In her evidence in the Magistrates Court the Appellant said:
    144.1 she tried to remove the Appellant from the roof with a broom however the alleged offender took hold of the broom and threw it in the garden;
    144.2 she yelled for help;
    144.3 she told the alleged offender to get off the roof again but he wouldn’t;
    144.4 so she went to the front of the house and started ‘hammering’ the umbrella into the ute to try and cause him to come down.
  31. The alleged offender gave evidence in the magistrates court proceedings that when he was in his car leaving the property, the Appellant snapped another mirror off his car and pulled venting from the back of his ute damaging it. The Magistrate
    17 James v Sievwright [22].
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    made no finding in this regard. If this conduct did occur it could not be said [sic] to given the alleged offender was already leaving, it could not be said to be for the purposes of removing the Appellant from the property.
    (footnotes omitted)
    Findings
    58
    As set out earlier in considering the appeal the court can rely on the information and evidence before it. The evidence before Magistrate Wilson and his findings upon that are not, strictly, evidence before the court. Also, I take into account that the findings made by Magistrate Wilson were in the context of a civil application for a restraining order which is different to the nature of the proceedings before the court and the type of findings that are required to be made, to substantiate a claim when it is based upon an alleged offence, as set out above.
    59
    Nevertheless, it must be taken into account that the evidence before Magistrate Wilson and his findings were in the context of judicial proceedings. It is clearly ‘information’ before this court. It is in my opinion the best information and findings before the court as to what occurred on the date in question. Accordingly, for the purpose of deciding the appeal in my opinion it is appropriate to rely upon the evidence before Magistrate Wilson and take into account the findings his Honour made.
    60
    In doing so it is important in my opinion to look at the precise sequence of events as they unfolded. The alleged offender was trespassing upon the property of the appellant in the terms of s 70A of the Criminal Code. This is because he was in the place of the appellant without her consent and also remained in the place after a request by the appellant to leave the place.
    61
    This then brings into play s 244 of the Criminal Code and the lawfulness of the appellant’s actions if she acted in accordance with that section. The actions that may be taken by a person under s 244 are lawful if they are in peaceable possession of a dwelling. They may then use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary to, relevantly, cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place.
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    62
    The definition of a home invader for the purposes of s 244 includes, relevantly, a situation where the occupant believes on reasonable grounds that the person is committing or has committed an offence in the dwelling or on or in an associated place. Here, as just set out, at the relevant time the alleged offender was committing the offence of trespass. At that time the alleged offender was on the roof of the appellant’s property. The roof of the property is part of the dwelling of the appellant, or an associated place as defined in s 244(6) of the Criminal Code. So too is the driveway to the appellant’s dwelling as it is a place used in connection with the occupation of the dwelling. A place, as defined in s 244(6), is part of the land of the appellant.
    63
    The alleged offender was also probably committing the offence of wilful damage to the roof of the appellant’s house. However, given my finding about trespass, it is unnecessary to make a finding about this.
    64
    As set out above it was after the alleged offender was trespassing on the roof of the appellant and damaging her roof that she used an umbrella to hit the mirror on the alleged offender’s car to try and get him to stop damaging her roof and to leave. It was then that the mirror broke off. In that context the actions taken by the appellant are actions taken because she believed them to be necessary to cause the alleged offender to leave the dwelling or place. Based upon the evidence before Magistrate Wilson, and his findings, the actions taken by the appellant were those that she believed to be necessary to cause him to leave the dwelling or place. In my opinion the actions of the appellant in damaging the car were, in her belief, reasonably necessary to try and get the alleged offender to leave. This is because it could be reasonably expected that if the car was being damaged the alleged offender would come down from the roof, approach the car and leave the dwelling or place. Also the appellant had, prior to this, asked the alleged offender to leave, and he had not done so.
    65
    The appellant was damaging the car with the umbrella. It was then that the alleged offender grabbed the umbrella the appellant was holding and caused her to fall to the ground. As found by Magistrate Wilson, and in my opinion, this was an assault upon the appellant within the terms of s 222 of the Criminal Code, and therefore an offence under s 313 of the Criminal Code. The alleged offender then ran towards the front door of the appellant’s dwelling. The appellant then moved between the offender and her door. The alleged offender then took hold of the umbrella again and used it to push the appellant to the ground again, causing her to hit her head on
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    the concrete. Consistently with the evidence and findings of
    Magistrate Wilson that was also an assault committed by the alleged offender against the appellant at the time when she was acting pursuant to s 244 of the Criminal Code. The alleged offender then left the property.
    66
    In making my finding that an assault was committed against the appellant, I have decided that the ‘defences’ of provocation and self-defence did not apply to the actions of the alleged offender. That is, on balance, the appellant has proved that these ‘defences’ did not apply to the actions of the alleged offender.
    67
    As summarised in the submissions of the amicus curiae, Sweeney DCJ in LS v SL18 discussed the principles relevant to provocation. In particular:19
    (a) Whether a particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce them to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact;
    (b) There is no requirement for the response from the person provoked to have immediately followed the provocative act, however a lengthy period of brooding before retaliating would undermine a submission as to experiencing a sudden and temporary loss of self-control;
    (c) Factors such as a person’s personal circumstances and characteristics, including their age, are relevant in determining whether a person was in fact deprived of the power of self-control. The content and extent of the provocation is assessed from the viewpoint of the person provoked;
    (d) Personal characteristics other than age are to be disregarded when assessing whether a provocation was such that it might have caused an ordinary person to lose self-control.
    68
    In my opinion the appellant has established that provocation did not apply because there was no evidence that the alleged offender was deprived of the power of self-control by any provocation.
    18 LS v SL [2023] WADC 8; Section 245 and s 246 of the Criminal Code.
    19 Outline of submissions of amicus curiae, pars 58.1 – 58.4.
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    69
    In relation to the ‘defence’ of self-defence,20 Davis DCJ specified the elements of self-defence in Puterangi as follows:21
    (a) The accused subjectively believed their harmful act was necessary to defend themselves from a harmful act;
    (b) The accused’s harmful act was a reasonable objective response in the circumstances as they subjectively believed them to be;
    (c) There are reasonable objective grounds for the accused’s subjective belief that their harmful act was necessary to defend themselves from a harmful act;
    (d) There are reasonable objective grounds for the accused’s subjective belief as to the circumstances.
    70
    I agree with the submission of the amicus curiae that the only evidence relevant to self-defence was summarised by Magistrate Wilson. There, the alleged offender said he was trying to defend himself and get away from the appellant who was attacking him.22 The alleged offender also said that the strikes from the umbrella used by the appellant were hurting him.23
    71
    In my opinion, the appellant has established that the alleged offender was not acting in self-defence as defined in s 248 of the Criminal Code. This is because, at least, the alleged offender’s harmful act against the appellant was not a reasonable objective response in the circumstances that the alleged offender believed them to be. This is because the alleged offender could have removed himself from the incident, by walking or running away or resolve the incident other than by engaging in the actions I have referred to earlier, which involved physical contact to the appellant.
    Findings on s 39 and s 41 of the Act
    72
    Based upon my findings s 39 of the Act did not apply to the appellant at the relevant time. This is because the appellant was not committing a separate offence when injured as a consequence of the commission of an offence against her, but instead was acting in accordance with s 244 of the Criminal Code.
    20 Section 248 of the Criminal Code.
    21 Puterangi [2017] WADC 168 [47] – [49]; Outline of submissions of amicus curiae, pars 53.1 – 53.4.
    22 Assessor’s papers, page 75.
    23 Assessor’s papers, page 74.
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    73
    I also need to consider whether in terms of s 41 of the Act it is just to refuse to make a compensation award or reduce the amount that would otherwise have been awarded. This applies where, as is required, regard must be had to the behaviour, condition, attitude or disposition of the victim that contributed, directly or indirectly, to the victim’s injury. In my opinion, after doing so, I do not think it is just to refuse to make a compensation award or reduce the amount that would otherwise have been awarded. This is because although the appellant damaged the car of the alleged offender and acted aggressively towards him, it was in the context of her acting lawfully in accordance with s 244 of the Criminal Code. In that context I do not think it would be just to refuse to make a compensation award or reduce the amount that would otherwise have been awarded.
    Causation
    74
    The next issue to consider is whether the claimed injury occurred and whether it occurred as a consequence of the commission of the alleged offence. In making the assessment about causation, ordinary tortious principles apply.24 Therefore whether there is the required causal connection is a question of fact to be resolved as a matter of commonsense. The causal connection can be made if as a matter of ordinary commonsense and experience the offence is regarded as having materially contributed to injuries or loss.25 If however the evidence establishes a non-compensable event had created a propensity to cause an applicant injury or loss and did contribute to the injury or loss an award of compensation must be reduced to take into account that contribution so that the applicant only receives compensation for the compensable offence.26 In addition an applicant is obliged to mitigate their injury or loss by obtaining reasonable medical treatment for the injuries caused by the offences. The failure to do so should be taken into account in assessing the amount of an award of compensation.27
    Causation evidence and findings
    75
    In the submissions of the appellant, she was injured physically and then psychologically injured, with mental trauma continuing to at least six years after the incident. The appellant provided the assessor with a
    24 Martin [82] – [84]; Underwood [87].
    25 Martin [83]; Underwood [87].
    26 Martin [84].
    27 RBF v OSD-S [2004] WADC 97; (2004) 36 SR (WA) 61 [59].
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    document called a victim impact statement dated 29
    February 2020.28 As summarised in the written submissions of the amicus curiae, the victim impact statement by the appellant, in support of her application, said that the impact of the assault has been:
    (a) headaches several times a month;
    (b) neck pain;
    (c) pain in the shoulder;
    (d) collar bones clipping with movement of her arms;
    (e) terrible back pain, waking her several times a night;
    (f) sleep disturbance; and
    (g) nervousness of heavy noises outside her property.
    76
    The appellant’s submission about ‘mental trauma’ was said to be supported by the report of Dr Wong dated 4 October 2023. It was also said to be supported by a report from Mr Augustine Hwee dated 3 May 2024. This report mentioned that prior to the incident, the appellant reported no previous history of PTSD or any notable post-traumatic anxiety or related symptoms. However, it had been noted in the written submissions of the amicus curiae that there was evidence of such a history. As a result, on my instructions my associate wrote to the appellant’s solicitors, with a copy to the amicus curiae, indicating that I would be prepared to receive additional information on that issue including a supplementary report by Mr Hwee. Consequently, an additional report was provided by Mr Hwee dated 2 August 2024.
    77
    In the submissions of the amicus curiae it was noted that:
    (a) At the time of the alleged offences, in a referral letter to the emergency department, the treating doctor noted the appellant’s history of knee pain, back pain, anxiety disorder, PTSD and lumbar spondylosis;29 and
    (b) A report provided by Lorna Joy, of Joy Counselling, was provided on 26 January 2020 following a total of 16 sessions with the appellant. However, the referral to Ms Joy
    28 Assessor’s papers, page 22.
    29 Assessor’s papers, page 190.
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    did not set out any history of anxiety disorder or PTSD. Further, the history is not set out in the report, and it is unclear whether the author was aware of any pre-existing history for the purposes of determining whether any PTSD was caused by the alleged offending. Additionally, it was pointed out that Ms Joy is a psychologist and not a psychiatrist. And there was nothing in her reports which referred to the circumstances of the appellant’s PTSD diagnosis or any assessments that were performed.
    78
    The documents before me include a referral to the Emergency Department of the Armadale Kelmscott Hospital from Dr May Zin Dennis of the Burslem Medical Centre. It refers to the appellant being assaulted in her driveway and being pushed, ‘landed on the ground’ with head, back and right shoulder causing dizziness and pain and nausea. It notes in the past history a 2008 bike accident where the appellant was hit by a car whilst riding a bike and also another separate bike accident in 2008. It records PTSD in 2009 post-bike accident and further an anxiety disorder in 2010. It also records lumbar spondylosis in 2015 and a disc bulge in 2020.
    79
    The appellant presented to the Armadale Hospital Emergency Department the day after the assault. There are records of the notes of the hospital in the Assessor’s papers.30 The appellant presented at the hospital at 12.14 pm and was discharged by 3.46 pm and there were no other medical interventions.31 Patient records by the hospital refer to the appellant receiving a blunt injury to her head when she was pushed over the previous day and fell back, hitting her head on concrete. It said that on 4 May 2017 she had ongoing pain to the back of her head, shoulder and clavicle and was nauseated. There were complaints of headache, neck stiffness and pain on movement of the neck. The hospital notes say there was a small area of erythema on the head/scalp. But there was no evidence of any depressed skull fracture. After a CT scan of the head and neck, there was found to be no evidence of intracranial, skull vault or cervical spine trauma.
    80
    There are also reports from Dr Gafari, a chiropractor from the Burslem Medical Centre, dated 30 May 2018 and 21 February 2020.32
    30 See Assessor’s papers, pages 185, 217, 218.
    31 Assessor’s papers, pages 217 – 218.
    32 Assessor’s papers, pages 161 and 162.
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    81
    The 30 May 2018 report says the appellant presented to the clinic on 26 May 2017 with blunt injury of the head, shoulder and clavicle pain. The report says the symptoms were the result of the assault she was subjected to. The report mentions treatment of soft tissue therapy, trigger point therapy, biopuncture, dry needling, mobilisation and gentle stretching. The report says that the appellant is still symptomatic and will need further treatment.
    82
    The report from Dr Gafari dated 21 February 2020 refers to the appellant attending at the clinic on 8 November 2019. The report says she presented with lower back pain, upper back pain and bilateral collar bone pain. The report says the pain was persistent after the assault she was subjected to earlier in 2017. The report says that the appellant was treated in the same way as previously described. The report says the appellant attended the chiropractic treatment five times and showed some improvement. However, it says the appellant required ongoing treatment at least twice a month. There is no updated report to say whether this occurred and how long it continued.
    83
    As mentioned above, the appellant’s solicitors have also provided a report from Dr Wong of the Ranford Medical Centre dated 4 October 2023. As submitted by the amicus, it appears that Dr Wong had not been the treating doctor of the appellant at the relevant time. However, it seems that the report has been based upon the medical notes of the medical centre and therefore in my opinion I am entitled to give weight to the report. The report referred to information the appellant provided about an assault in her driveway and front yard which occurred on 3 May 2017. The report says the appellant said that during the assault she was repeatedly slammed into the driveway, making impact with the concrete surface with multiple areas including hips, shoulders, back and head on both sides. The report says that the appellant had said she was independent and mobile prior to the attack but afterwards was restricted to using a four wheeled walker for mobility. There is no indication in the report as to how long this lasted. The report says the appellant described severe pain after the assault which limited her ability to function. This included right shoulder and bilateral hip pain. The report said the appellant became poorly functional after the attack with difficulties completing tasks around the house and in recreational activities. The report also said the appellant reported nightmares since the attack for years and had counselling until the COVID-19 outbreak made the appointments difficult. The report said that since the assault, the appellant found herself becoming fearful of opening her front door and felt threatened by going
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    outside. It was also reported the appellant had flashbacks of the assault
    and feels constantly anxious. The report said the appellant had informed the medical practice that she had also been apprehensive around males after the assault. The report said the appellant reported being anxious and having low mood, poor sleep, low energy, loss of appetite and sluggish movement. The report referred to investigations that established injuries to the right shoulder and other associated injuries. The report said these can be caused by the application of large amounts of force across the related joints and were consistent with having been caused by the assault as described by the appellant. The report said these injuries could cause significant functional impairment as described by the appellant. The report says the investigations also revealed arthritis of the right shoulder and both hips. However, the report says the appellant described the arthritis as asymptomatic prior to the incident but the joints had become stiff and painful after the assault. The report said the psychological symptoms described are consistent with PTSD suffered from the assault. The report also said the appellant displayed symptoms of anxiety and depression which had not been present prior the assault. It was said that these conditions can cause significant functional impairment and could significantly affect her relationships with those around her and making it more difficult to engage in leisure activities. The report referred to referrals made, including one to Ms Tracey McCracken to assist with psychological trauma. There is no evidence before me as to whether counselling from Ms McCracken occurred.
    84
    Provided with the report of Dr Wong is the Western Radiology assessments of the appellant. It appears that these assessments are those referred to in the report of Dr Wong but they were made on 20 July 2023. They are therefore of limited assistance in assessing the injuries caused by the assault.
    85
    Also included in the papers before me is a report from Mr Fabian Yeo of Canning Vale Physiotherapy Centre dated 22 September 2023. This refers to the appellant having attended four treatment sessions between 16 August and 20 September 2023. This refers to treatment of her right knee and hip injuries. It says that she has severe OA which are causing her much grief.33 The report refers to the assessment and treatment of her hip and knee. However, the report is unclear as to whether these medical complaints were caused by the assault and therefore the contents of the report is of limited assistance.
    33 I infer that OA refers to osteoarthritis.
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    86
    There are before the court two reports from Ms Lorna Joy from Joy Counselling. The letterhead to the reports say that Ms Joy is a registered psychologist. However, the reports do not contain any additional information about when Ms Joy became qualified or her experience in providing medico-legal assessments. The reports are dated 8 March 2019 and 26 January 2020. The January 2020 report says that Ms Joy had seen the appellant for a total of 16 sessions since 6 June 2018. The March 2019 report by Ms Joy said that she had been asked to provide a report about the effect that the assault from 3 May 2017 had on the appellant. The report says that the appellant was ‘totally consumed by the effect of the trauma as a result of the assault’. The report says that the appellant is definitely suffering from PTSD as a result. The report says the appellant is fearful of engaging in everyday living experience and experiences fear at the slightest noise or any change in her everyday surroundings. The report says the appellant has limited her activities to absolute essentials and has lost trust in people. The report says some of her fear seems to have become more globalised as during a recent session late last year attempts were made to help the appellant relax, including by meditation. The report says the assault has shaken the appellant’s ‘very core and has affected her confidence and although she was until the incident an able, highly motivated and very intelligent women it is unlikely that she will be able to resume a productive and fulfilled life’. The report says the appellant will require ongoing counselling and access to a trauma psychologist to assist her. There is no evidence before the court that this occurred.
    87
    The January 2020 report provided an update. The report says that although the appellant had made some progress she still presents as a person experiencing severe PTSD. The report says this is evidenced from the findings of the PTSD symptom scale (PSS) where the appellant scored 38 (0-51) sand where cores ‘over 13 suggested likelihood of PTSD’. The report says this indicates the appellant is suffering from symptoms of post-traumatic stress and adjustment disorder. The symptoms were said to be evidenced by:

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