RE HCM [2018] WADC 20
HCM was born on 2 May 1983 in Vienna, Austria. She is now 34 years old. She was born to SH and a man whose name is not known. He played no part in her life. Not long after the birth SH emigrated to Australia with HCM and settled in Western Australia. HCM has resided in Australia since then.
HCM attended Iona Primary School in Mosman Park. In year 7 she attended St Thomas Primary School in Claremont in the hope that, in year 8, she might be accepted at John XXIII College in Mt Claremont for her secondary schooling.
HCM’s mother was concerned about HCM’s weakness in mathematics and, anxious to improve her marks in that field, with a view to gaining entry to John XXIII College, engaged the services of a tutor in mathematics to provide after-school tutoring.
The tutor had placed advertisements in local newspapers circulating in the western suburbs of Perth offering his services as a tutor in mathematics. HCM’s mother noticed his advertisement and contacted him. She engaged him to provide after-school tutoring at their home in Monument Street, Mosman Park. The tutor was, at that time, a teacher at Scotch College in Swanbourne in his mid-50s.
HCM said that she was unable to tell her parents about the tutor’s molestation of her and did not do so. The first person she told was, she said, a psychiatrist. That was in 1999. She was not, she said, ready to report the matter to police at that time.
HCM’s final encounter with the tutor was when she was in her final year of primary school. The next few years saw the breakdown of her family life leading to an apparent abandonment by her mother, educational disruption and a descent into mental ill-health. As her mental state deteriorated the matter of the tutor’s treatment of her came to the attention of her psychiatrist. She referred that matter to appropriate authorities but it appears to have been taken no further. At the age of about 26 years HCM brought the matter to the attention of the police. The tutor was charged but later released following the decision by the Director of Public Prosecutions not to prosecute the matter further. HCM’s period of mental ill-health was, no doubt, a factor in that decision-making process.
FINDINGS
The correct approach to adopt in fixing an appropriate amount of compensation is to apply ordinary principles of assessment of damages subject, of course, to the jurisdictional limit imposed by the Criminal Injuries Compensation Act (Act). The jurisdictional limit for offences committed between 1 July 1991 and 31 December 2003 as prescribed by s 31 of the Act is $50,000.
Where there are multiple offences on separate occasions, the Act does not limit compensation to the maximum for a single offence. Accordingly, pursuant to s 34(2) of the Act, the maximum penalty that can be awarded in this matter is $100,000.
The maximum compensation payable under the Act is merely a jurisdictional limit and not reserved for the worst cases.
In such circumstances, a Court may not make an award of compensation unless satisfied that the claimed injury and loss has occurred as a consequence of the commission of the alleged offences. Given the very significant troubles which confronted HCM in the years following her treatment at the hands of the tutor, the issue of causation is a difficult one. Sympathy for HCM has no role to play in the task that the Court had to undertake.
“Injury” is widely defined by the Act to mean bodily harm, mental and nervous shock or pregnancy. “Loss” is defined by s 6 of the Act and includes expenses that are actually and reasonably incurred by or on behalf of the victim that arise directly from or that arise in obtaining any report from a health professional or a counsellor in relation to the injury suffered by the victim.
As with the issue of liability the burden of proof is on HCM to establish, on the balance of probabilities, a causal relationship between the commission of the offence by the tutor and her injuries. It is sufficient for her to establish that the offence materially contributed to any injury or loss.
If the evidence establishes that a non-compensable event contributed to the claimed injury or loss the award of compensation must be reduced to take into account that other contribution.
If it is not possible to disentangle the consequences of the offence from the non-compensable event the claimant is entitled to the full amount of compensation.
The Court on appeal from a decision of the Criminal Injuries Compensation assessor accepted that HCM had been diagnosed with “multiple psychiatric conditions since 1999, including depression, adjustment disorder and post-traumatic stress disorder” arising from the alleged incidents with the tutor and concluded that an award of $78,970 was adequate to compensate HCM for her injuries.
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