Fender v Ludbey

[2014] WADC 105

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   FENDER -v- LUDBEY [2014] WADC 105

CORAM:   EATON DCJ

HEARD:   6 JUNE 2014

DELIVERED          :   25 AUGUST 2014

FILE NO/S:   APP 8 of 2014

MATTER                :IN THE MATTER OF Part 7 of the Criminal Injuries Compensation Act 2003

BETWEEN:   RICKY STEPHEN FENDER

Appellant

AND

LINX LEONARD JENKIN LUDBEY
Respondent

ON APPEAL FROM:

For File No              :  APP 8 of 2014

Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Coram  :H L PORTER

File No  :CI 001298 of 2013

Catchwords:

Appeal - Criminal Injuries Compensation - Appeal from assessor - Alleged inadequacy of the award

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     Mr A J Klein

Respondent:     No appearance

Amicus Curiae                   :    Ms J Rhodes for the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant:     Stephen Browne Lawyers

Respondent:     Not applicable

Amicus Curiae                   :    State Solicitor's Office for Western Australia

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

Asjes v Assessor of Criminal Injuries Compensation (WA) (1994) 11 SR (WA) 226

De Florenca v Hayden [2007] WADC 54

Hogben v Darcy [2009] WADC 63

TAW v NJS [2011] WADC 187

1. EATON DCJ:  On 17 July 2013, the appellant made application under the Criminal Injuries Compensation Act 2003 (WA) for an award of compensation arising out of an unlawful assault upon him. The offence was said to have been committed on 12 February 2012 at Sholl Street, Mandurah in the state of Western Australia. The respondent was the offender. He was charged in the Mandurah Magistrates Court on 27 February 2012 with unlawfully assaulting the appellant and thereby doing him bodily harm. The respondent was summonsed to appear in that court on 23 March 2012 to answer that charge. He did so and was, initially, remanded with bail to obtain legal advice. On 3 April 2012 he entered a plea of guilty and was sentenced to a term of 12 months' imprisonment, suspended for 18 months.

2. Upon reporting the matter to police, the appellant provided a statement on 12 February 2012 in which he said that, at the time of the offence, he was 30 years old.  He said that at about 2.00 am on 12 February 2012 he was, with his brother Colin and his girlfriend Jade Browne, at the Toucan nightclub in Mandurah.  The three left the nightclub together at about 3.30 am with the intention of walking to his car which was parked at a car park near a Woolworths store.  He recalls that his brother was talking to a man near a black Nissan Navara dual cab utility parked not far from their own vehicle.  He recalls standing at the rear of his vehicle and being hit from behind, rendering him unconscious.  He says that he woke not long after to see both his brother and his girlfriend.  He has no recollection of what they were saying or the subsequent trip to hospital. 

3. Colin Andrew Fender, the appellant's brother, signed a statement on 10 April 2012 to the affect that he attended, with Jade Browne and his brother Ricky, the Toucan nightclub in the Smart Street mall in Mandurah.  They left the nightclub at about 3.30 am and walked to their vehicle which was parked in a car park near a Woolworths store.  They were with a group of people including a school friend of Jade Browne, one Shayne Ludbey.  It appears that a discussion on the way back to the vehicle became heated.  Colin Fender says that he climbed into their vehicle and looked back.  He saw his brother Ricky with his hands up and a man he knew as Cain Russell confronting him.  He looked away then looked back to see that his brother Ricky was lying on the road on the bitumen and was bleeding from a wound.  Ricky Fender got out of the vehicle and accused, firstly, Cain Russell and then, the respondent, of striking his brother.  Both denied the allegation. 

4. Jade Browne made a statement on 12 February 2012.  She said that she, the appellant and his brother Colin were leaving the Toucan nightclub in Mandurah at about 4.00 am on 12 February 2012.  They were walking to a vehicle parked in the Woolworths car park.  They were with a group of people, some of whom were known to her.  One was the respondent.  Near the rear of the vehicle, while Colin was in the driver's seat beginning to reverse, she saw the appellant with his hands up and his palms open by the side of his head saying 'calm down'.  She saw the respondent 'come out of nowhere' from the appellant's right and hit him to the right side of the face.  She said that the appellant fell to the ground, apparently unconscious and hit his head on the bitumen.  She saw 'heaps of blood just gushing from his head'.  He recovered consciousness about 30 seconds later.  She and Colin Fender took the appellant to the Peel Health Campus.

5. The statement of material facts prepared by investigating police officers was as follows:

   At about 3.30 am on Sunday, 12 February the complainant was walking to his car in Tuckey Street, Mandurah having just left the Toucan nightclub. 

   The accused was with another group of people in the car park, an argument developed with the complainant endeavouring to calm matters down.  Without warning the accused struck the complainant twice to the right side of his face.  This caused the complainant to fall to the ground unconscious, the complainant hit the ground heavily causing a wound to the side of his head. 

   The accused left the area and the complainant was conveyed to the Peel Health Campus by his associates. 

   On Thursday, 23 February the accused was interviewed by detectives at the Mandurah Police Station, he admitted that he was heavily intoxicated, and although he couldn't remember having committed the offence he admitted that he was told by others that he had.  The accused further advised that he had located the complainant's girlfriend, and apologised to her, the day after the offence was committed. 

   He was subsequently advised that he was to be charged with the matter before the court.

   Explanation: 'stupid thing to do'. 

6. The appellant was admitted to the emergency department at Peel Health Campus at 4.23 am on 12 February 2012.  Upon examination he was alert and orientated in time, place and people.  He was found to have a 1 cm laceration in the lateral aspect of his left forehead.  That small wound was closed with four sutures under local anaesthesia.  Cardiovascular, respiratory and abdominal examinations proved unremarkable.  There were no focal neurological deficits.  A CT scan of the brain did not reveal any acute intra‑cranial injury. 

7. There was an incidental finding of possible optic disc drusen, not the result of an assault.  The appellant was discharged with instructions to see his general practitioner in five to seven days for removal of the sutures.  He was referred to the Mandurah Eye Clinic for further review of the optic disc drusen.

8. By letter of 14 February 2012, Ms Jean Cheng of Laubman & Pank, optometrists, reported to Dr Kevin Chee of the Mandurah Eye Centre.  The appellant had attended the optometrists for a routine eye examination on 13 February 2012.  Ms Cheng referred the appellant to Dr Chee for evaluation and management regarding suspected optic nerve head drusen. 

9. By letter of 27 June 2013, Dr Con Anastas of the Cambridge Eye Clinic reported to the appellant's solicitors.  Dr Anastas concluded that the appellant had suffered a closed head injury with loss of consciousness and a left forehead laceration as a result of an alleged assault on 12 February 2012.  He said that there was no ophthalmological sequel in relation to the injury.  In a nutshell, he said:

   There is no ophthalmological injury or impairment relating to injuries suffered 12 February 2012. 

10. The appellant made application for criminal injuries compensation pursuant to the Criminal Injuries Compensation Act 2003 on 17 July 2013.  The application was based upon the offence committed on 12 February 2012, citing the respondent as the offender.

11. In support of the application the appellant provided a schedule of special damages said to have been suffered by him, a schedule of past loss of earnings and a schedule of future medical expenses.  He provided a statement dated 24 April 2013 and copies of a number of documents emanating from the police investigation of the matter along with medical reports, documents from Peel Health Campus and documents relating to his financial affairs.

12. The Chief Assessor of Criminal Injuries Compensation made an award in favour of the appellant on 16 January 2014 in the sum of $11,600.40 and, subject to the provisions of s 48 of the Act, a further sum of $800.  The compensation award was assessed as follows:

    Injury$8,500.00

    Loss of earning         $1,127.00

    Travel expenses         $110.00

    Reports$1,830.00

    Treatment expenses     $33.40

    Sub-total$11,600.40

    The provisional amount of $800 was awarded in respect of future treatment expenses.

13. On 4 February 2014 the appellant appealed to this court against the total award of $12,400.40.  There is one ground of appeal to the effect that the award for compensation and other compensable loss is inadequate.

14. Section 55 of the Criminal Injuries Compensation Act 2003 provides that an interested person may appeal to this court against an assessor's decision as to the amount of a compensation award.  The appeal must be commenced within 21 days of the date of the decision.  The appellant has complied in that regard.

15. Section 56 of the Act obliges me to decide the application afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or I may receive further evidence and information.  On such an appeal I may confirm, vary or reverse the assessor's decision either in whole or in part.

16. The appellant filed an outline of submissions in support of his appeal indicating reliance upon the materials that were before the assessor and seeking to put further evidence before the court in the form of the affidavits of the appellant sworn 26 May 2014 and of Joel Nathan Trigg affirmed on 23 May 2014.  That application was acceded to.

17. In his application for criminal injuries compensation the appellant made a discrete claim for the cost of obtaining medical and associated reports.  In particular, he claimed $330 in respect of a report from Peel Health Campus, $1,500 in respect of a report from Ms Jacqueline Ryan and $1,485 in respect of a report from Dr Con Anastas.

18. With regard to the latter, in an explanatory letter of 16 January 2014 the Chief Assessor of Criminal Injuries Compensation advised the appellant's solicitors as follows:

    Compensation has not been included for the cost of the report of Dr Anastas or for the provision of contact lenses.  The Assessor was not satisfied the cost of this report had been reasonably incurred as it was clear at an early stage that the condition observed in the applicant's eye after the incident was an incidental finding of a congenital condition likely to lead to some loss of visual field after childhood.

19. In his written submissions the appellant makes it very clear that no issue is taken with the assessor's award in respect of future treatment expenses, past travel expenses, past medical expenses and past loss of earnings.  Issue is taken with the assessor's refusal to make an award in respect of the report of Dr Con Anastas and with the assessor's award of general damages in the sum of $8,500.

20. With regard to the former, reference is made to the affidavit of Joel Nathan Trigg affirmed 23 May 2014.  The deponent was, at the time of making the affidavit, a legal practitioner in the employee of the appellant's solicitors having conduct of the appellant's claim.  The deponent says that the appellant advised him that he had suffered an eye injury and was required, in consequence, to wear contact lenses.  He had not been required to wear contact lenses prior to the assault upon him.  The deponent deposes to his client's instructions to the effect that the problems with his eyesight were caused by the assault.  In the light of those instructions the deponent determined that the problem with the appellant's eyesight required investigation by a medico‑legal specialist to determine finally whether the problem was causally linked to the assault.  In that regard he caused arrangements to be made leading to the appellant attending upon Dr Con Anastas, an ophthalmologist, for the purpose of examination and report.  That attendance gave rise to the report the subject of the claim denied by the assessor.

21. Given that the attendance at the Peel Health Campus on 12 February 2012 led to the referral to the Mandurah Eye Clinic, one might conclude that there was a causal connection between the assault on the appellant and the need for the referral.  In fact, the appellant attended upon Laubman & Pank, optometrists of Mandurah, on 13 February 2012, the day after his attendance at the Peel Health Campus.  Laubman & Pank reported that the appellant attended for a routine eye examination complaining of blurry vision and feeling light‑headed.  That attendance led to the referral to Dr Kevin Chee of the Mandurah Eye Centre.

22. The report from Peel Health Campus is dated 15 February 2013.  In it the relevant medical officer advised: 'There was an incidental finding of possible optic disc drusen; which is not a result of the assault'.

23. The appellant attended Dr Anastas on 27 June 2013, having been referred to him by his solicitors.  In his report dated 27 June 2013 he told the appellant's solicitors that the appellant was in need of optical aids, preferring contact lenses to spectacles.  He said: 'His refractive error is considered to be an entirely independent phenomenon and not related to injuries suffered 12 February 2012.  Prominent optic nerve head drusen bilaterally have been incidentally discovered'.

24. The term 'loss' in the Act is defined to include expenses actually and reasonably incurred by or on behalf of the victim that arise in obtaining any report from a health professional or a counsellor in relation to the injury suffered by the victim.  What is required is that the expense of obtaining a medical report be reasonably incurred.

25. In carrying out investigations on behalf of a client in order to mount a claim for compensation, the question of whether or not a particular injury or condition is causally related to the event giving rise to the claim for compensation is often not a matter of accepting one's clients instructions without question but rather assessing the relevant expert material bearing upon the issue.  The report from Peel Health Campus as to the finding of possible optic disc drusen made it very clear that the finding was an incidental one, not the result of the assault.  Regardless of the appellant's instructions, the question of whether any particular injury or condition was causally related to the assault was a matter for expert opinion.  The only expert opinion available to the appellant's solicitors prior to the referral to Dr Anastas was to the effect that there were no consequences for the appellant so far as his eyesight was concerned.  There is no evidence to suggest that the need for optical aids in the form of contact lenses or spectacles was ever related to the assault.  In all of the circumstances I agree with the Chief Assessor's conclusion that the referral to Dr Anastas was not reasonable in the circumstances and that the cost of his report is not compensable.

26. As to the issue of general damages, the assessment of appropriate compensation requires the application of ordinary tortious principles for the assessment of damages, subject to the definition of 'injury' and 'loss' contained in the Act, and the jurisdictional limit of $75,000 imposed by the Act.  The jurisdiction is purely compensatory, and has no role to play by way of punishment of the offender, or sympathy for the victim.  Comparison with other cases in the assessment of compensation or damages for personal injuries, is not an appropriate or effective method of quantifying damages, because of the inability of courts and tribunals to truly compare like with like; Asjes v Assessor of Criminal Injuries Compensation (WA) (1994) 11 SR (WA) 226; De Florenca v Hayden [2007] WADC 54 [167]; cf: TAW v NJS [2011] WADC 187 [24].

27. Injury includes bodily harm and mental and nervous shock: s 12(1) and (3) of the Act.  It is well-established that mental or nervous shock must be more than an emotional reaction and must be something of an enduring character that can be described both in a legal sense and in common parlance as an injury.  It includes distress and other adverse mental reactions.  However, in assessing mental injuries the court must attempt to distinguish between direct consequences and other damage that may be caused because of other matters such as the stress of court proceedings, the embarrassment of public attention or the effect on family and friends.

28. Counsel for the appellant, in concluding his submissions from the bar table at the hearing of the application submitted that the assessment of $8,500 was 'a bit low'.  I have before me the further affidavit of the appellant sworn 26 May 2014.  In it he deposes to having been, prior to the assault, a fit and healthy person with excellent eyesight.  So far as the latter is concerned, my view is that the attendance at the Peel Health Campus and the investigations there were the catalyst for the appellant's further investigations as to his eyesight, the result of incidental findings and the helpful suggestion made to him at the time that he should explore those findings further.  To the extent that his further exploration of the issue led to the need for optical aids, there was a temporal but no causal connection with the assault.

29. The appellant's beliefs as to his eyesight are not supported by the expert evidence.  In fact the evidence is to the effect that there was no ophthalmological sequel to the assault.

30. As to other consequences of the assault, the appellant deposes to having experienced pain and soreness which slowly resolved over the following months.  The appellant deposes to having residual scarring on his forehead located near his hairline, the result of the insertion of sutures.  He has annexed a photograph to his affidavit.  It is said to have been taken on 22 May 2014 and to depict the cosmetic aspect of the scarring.  Having carefully looked at the photograph, my conclusion is that the cosmetic impact of the scarring on the appellant is very small indeed.

31. In his affidavit sworn 26 May 2014, the appellant asserts that he suffered from psychological trauma.  He said that immediately after the assault he felt 'angry, exhausted and shocked at what had happened'.  In the days following the assault he had difficulty sleeping and experienced nightmares and outbreaks of hot sweating.  There have been recurrences of disrupted sleep and nightmares.  He said that in consequence of the assault he feels 'very uncomfortable' in public.

32. I observe that those portions of the appellant's affidavit appear to be a recitation of the factors referred to in the report of Jacqueline Ryan, psychologist, dated 7 February 2013 under the heading in her report 'The nature of the psychological injury sustained by our client'.  That report was before the assessor.  Ms Ryan concluded that the appellant had suffered an acute stress reaction to being assaulted and that he had, as at 6 February 2013, made as partial recovery.  She added that psychological counselling would assist him to make a full recovery.

33. The assessor clearly had regard to the psychological consequences of the assault on the appellant and the recommendation of Ms Ryan.  She allowed a provisional amount of $800 for future psychological treatment on the basis that the appellant, upon referral from his general medical practitioner, might attend a clinical psychologist on up to 10 occasions, being 50 minute sessions, claiming a Medicare rebate on each occasion and being required to pay the gap cost of $80 per attendance.

1. In dealing with this appeal I must attach weight to the assessment of an expert tribunal in the field of criminal injuries compensation:  Hogben v Darcy [2009] WADC 63 [13]. Bearing that principle in mind, having reviewed the matter afresh and considering all the features of this case, I am not persuaded that the award of $8,500 by way of general damages is inappropriate or unjust. Accordingly, I affirm the decision of the Chief Assessor and award damages in that sum together with the special damages, unchallenged on this appeal. Accordingly, this appeal is dismissed.