Award reduced by appeal court
MANGISI -v- BOEHM  WADC 76
At 1.00 AM on Saturday, 26 January 2019 Mr Boehm (victim) was leaving the Niche Bar to meet with his girlfriend when he was assaulted by Mr Mangisi (offender). The victim had taken a few steps when he looked up and saw a person punch him in the face. The attack was not provoked by the victim. He remembered falling back, waking up and seeing his friend trying to help him. He was conveyed by ambulance to Sir Charles Gairdner Hospital. The offender admitted the offence and was convicted on 20 June 2019.
The victim’s injuries were as follows:
- a swollen lip;
- grazes to the left elbow;
- large gash to the back of his head;
- a chipped front tooth.;
- a swollen and sore nose;
- psychological injuries.
As a result of the injuries and the assault the victim:
- required dental treatment to repair the damage to his teeth;
- had external cuts and significant swelling to his lips and surrounding areas which took five days to heal and subside. He was unable to eat solid food until the swelling had subsided;
- had internal cuts in his mouth which took seven days to heal. He was unable to brush his teeth until the internal cuts had healed;
- experienced significant swelling of the nose, which took five days to subside;
- had a graze to his elbows that left noticeable scars;
- suffered a laceration to the back of his head where it hit the cement which took 10 days to heal;
- experienced headaches, nausea, dizziness and fatigue for several weeks following the accident and continued to experience these symptoms intermittently;
- experienced severe fear, anxiety, flashbacks to the moment just before he was assaulted, a loss of self-worth, an inability to sleep, and panic attacks;
- was required to take leave from work for treatment, but this did not involve a loss of income;
- suffered psychological injuries. He experienced an enormous loss of confidence in himself, a lack of trust in strangers, and was forced to change certain aspects of his daily routine; and
- was no longer able to catch the bus nor go to the gym.
The psychological sequelae were confirmed in a report filed by Mr Paul Beros, clinical psychologist. The victim was referred to him by his general practitioner under a mental health care plan. He stated that the victim presented with a range of psychological symptoms secondary to the assault. These included: Panic attacks, generalised anxiety (that is, feeling tense, worried and anxious in a variety of settings), sleep disturbance, re-experiencing phenomenon (that is, including dreams related to the attack, imagery related to the attack), irritability, a sense of worthlessness, a sense of vulnerability, reduced libido, low mood, tearfulness, avoidance behaviour (that is, avoiding crowded public areas, avoiding public transport, social events, work situations). These psychological conditions resulted in significant psychological distress, a reduction in his self-esteem and confidence and a reduction in his social performance and quality of life.
Mr Beros’ therapy included insight-directed therapy, cognitive behavioural therapy, and mindfulness-based interventions. He did not expect that any further treatment would be required but said that should the victim experience a relapse he would encourage him to engage with psychological treatment.
On 9 September 2020, the victim was awarded $28,164 for injury and loss pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA) (Act). The award was made up of $25,000 for non-pecuniary loss, $888 for expert reports, $2,198.30 for treatment expenses and $77.70 for travelling expenses.
The offender was notified of the decision by a letter from the assessor dated 9 September 2020. A notice of appeal was lodged on 8 October 2020 pursuant to s55 of the Act. It was this appeal to the District Court that formed the subject of this decision.
Pursuant to s56 of the Act the District Court decided the application afresh, without being fettered by the assessor’s decision, on the evidence and information that was before it.
The District Court assessed the evidence and found that the victim’s out of pocket expenses were as follows:
- medical, dental, and psychological treatment costs – $2,198.30.
- report fees – $888 and
- travel expenses – $77.70.
These expenses totalled $3,164 and were allowed.
The court considered Woodward v Davies  WADC 73 in assessing non-pecuniary loss. In that matter, the court awarded $18,000 for non-pecuniary loss in a case where the respondent’s tooth was fractured in an assault, became infected and had to be extracted. The respondent had ongoing residual symptoms of post-traumatic stress disorder three years after the incident.
The court held that a reasonable award in the circumstances of this matter would be $10,000 for non-pecuniary loss and added to it the $3,164 referred to above.
The victim was thus awarded compensation in the sum of $13,164.
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