RE YASCHENKO [2026] WADC 54

[2026] WADC 54 [2026] WADC 54 (JBS) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL LOCATION : PERTH CITATION : RE YASCHENKO [2026] WADC 54 CORAM : CLEARY DCJ HEARD : 31 MARCH 2026 DELIVERED : 1 JULY 2026 FILE NO/S : APP 33 of 2025 MATTER : IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003 AND IN THE MATTER of an appeal by BETWEEN : VLADIMIR YASCHENKO Appellant ON APPEAL FROM: Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA Coram : C F HOLYOAK-ROBERTS File Number : CIC 596/2025 Catchwords: Criminal injuries compensation - Appeal of decision to refuse to award -- 1 of 37 -- [2026] WADC 54 [2026] WADC 54 (JBS) Page 2 compensation - No award if applicant did not assist investigators - Compensation allowed Legislation: Criminal Code (WA), s 1, s 222 Criminal Injuries Compensation Act 2003 (WA), s 38 Result: Appeal allowed Quantum assessed Representation: Counsel: Appellant : Mr J F Birbeck Amicus Curiae : Ms A J Steinepreis Solicitors: Appellant : Bradford Legal Amicus Curiae : State Solicitor for Western Australia Case(s) referred to in decision(s): Atieh [2020] WADC 5 Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 Bonnington Castings Ltd v Wardlaw [1956] AC 613 Briginshaw v Briginshaw (1938) 60 CLR 336 EB v Ramljak [2021] WADC 134 Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666 Hinchcliffe v Hinchcliffe [2010] WADC 78 Johnston v Watts [2024] WADC 62 Lyle v Soc [2009] WASCA 3 M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992) Mangisi v Boehm [2021] WADC 76 March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 -- 2 of 37 -- [2026] WADC 54 [2026] WADC 54 (JBS) Page 3 Martin v Martin [2015] WADC 138 McDavitt v McDavitt [No 2] [2013] WADC 198 MJN v MAJS (2003) 35 SR (WA) 219 Nurovic v Nurovic [2019] WADC 28 Re Anderson [2022] WADC 97 Re Burleigh [2025] WADC 11 Re CJR [2023] WADC 111 Re Iaria [2018] WADC 22 Re Jackamarra [2014] WADC 9 Re Richards [2022] WADC 100 Re TLJ [2016] WADC 74 Re Warrek [2019] WADC 50 Re ZD (pseudonym initials) [2024] WADC 42 Richardson v Lawford [2020] WADC 58 S v Neumann (1995) 14 WAR 452 Savic v Duric [2021] WADC 53 TAW v NJS [2011] WADC 187 Underwood v Underwood [2018] WADC 13 Ward v Davey [2023] WADC 78 Weatherill v Tiakia [2025] WADC 26 -- 3 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 4 CLEARY DCJ: 1 On 3 September 2022, Mr Yaschenko was knocked unconscious and his nose was broken by a man he only knew as Scouser. It seems Scouser thought Mr Yaschenko may be associating with Scouser's ex-wife. While police attended the scene, Mr Yaschenko was not sure he wanted to make a statement that night. Life continued. He assumed police were investigating and would contact him. 2 In December 2022, Scouser was arrested for the murder of his ex-wife and news outlets reported Scouser's name as Paul Cannon. 3 After the murder arrest Mr Yaschenko went to the police to tell police the name of his assailant, but the station was short-staffed and he waited an hour, leaving before he was attended to. He did not return or contact police again; Mr Cannon was in jail for murder and would be for a very long time, and Mr Yaschenko thought justice had been done. No charges were laid against Mr Cannon for the assault on Mr Yaschenko. 4 Mr Yaschenko applied for compensation. 5 Compensation was denied on the basis that he had not done what he ought reasonably to have done to assist in the identification, apprehension or prosecution of the alleged offender.1 6 Mr Yaschenko appeals the decision to refuse compensation. He is out of time to do so. What are the issues to be resolved in this appeal? 7 The central issue to be resolved is what Mr Yaschenko ought reasonably to have done to assist in the identification, apprehension or prosecution of the alleged offender in the circumstances, and did he do the thing he ought to? If not, was it reasonable not to do so in the circumstances? 8 I must also resolve whether Mr Yaschenko should be granted leave to appeal out of time. 9 Should I determine that s 38 of the Act has no application, and that leave to appeal should be granted, the issues to be determined will be: 1 Criminal Injuries Compensation Act 2003 (WA) (the Act). -- 4 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 5 1. In relation to the claim: (a) Did the alleged offence occur? (b) Has the claimed injury and any claimed loss occurred? (c) Did any claimed injury and any claimed loss occur as a consequence of the commission of the alleged offence? (d) In considering these questions, being the only witness to the alleged assault, was Mr Yaschenko's evidence credible and reliable? 2. If I am satisfied that the alleged offence occurred, should the assessment of quantum be remitted to the assessor? If not: (a) What would be an appropriate amount to award by way of damages? (b) Was Mr Yaschenko's behaviour, condition, attitude or disposition such that it would be just to reduce the amount of compensation the court would have otherwise awarded? 3. In addition, Mr Yaschenko filed a book of documents which contains evidence not before the assessor. The appeal must be decided on the material before the assessor, unless I exercise my discretion to allow additional evidence. The application and this appeal The original application 10 On 20 February 2025, Mr Yaschenko lodged an incomplete application to the Office of Criminal Injuries Compensation to request interim payment of the invoice of Dr Frederick Ng dated 8 December 2024 in the sum of $2,200 for the provision of a medicolegal report. 11 On 1 May 2025, the Chief Assessor wrote to Mr Yaschenko providing her preliminary view that the application ought to be refused pursuant to s 38 of the Act. On 19 May 2025, after further submissions and on applying the principles under s 38 of the Act, the assessor refused to make a compensation award. -- 5 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 6 This appeal 12 There is one ground of appeal: The Assessor erred in finding that the Appellant did not do any act or thing which he ought reasonably to have done to assist in the identification, apprehension, or prosecution of the alleged offender in accordance with Section 38 of the Criminal Injuries Compensation Act (2003) (WA). The principles in relation to an appeal 13 The appeal is a hearing de novo. I must determine Mr Yaschenko's application afresh without being fettered by the determination of the assessor, and I may confirm, vary or reverse the assessor's decision in whole or in part.2 14 Some of the issues in this appeal are easily resolved and were not contentious. I will address them now. The appeal was lodged out of time 15 The appeal notice was lodged on 25 June 2025. 16 An appeal must be commenced within 21 days from the date of the assessor's decision.3 The appeal was therefore commenced out of time, the last date for commencing the appeal being 9 June 2025. 17 If 'it is just to do so, the District Court may allow an appeal to be commenced after the 21 days, and may do so even if the period has expired'.4 A discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties, and may be exercised in favour of an appellant where strict compliance with the rules will work an injustice upon the appellant.5 18 The relevant principles governing the exercise of the court's discretion in considering whether to grant an extension of time were set out in Underwood v Underwood.6 19 Mr Yaschenko's application for an extension of time is supported by the affidavit of James Forster Birbeck, sworn 5 September 2025. In summary, Mr Birbeck attempted to lodge the appeal notice within 2 Section 56 of the Act. 3 Section 55(3) of the Act. 4 Section 55(4) of the Act. 5 Underwood v Underwood [2018] WADC 13 [26]. 6 Underwood v Underwood [2018] WADC 13 [27]. -- 6 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 7 time, however encountered difficulty doing so because the electronic lodgement system of the court requires a respondent be identified; in this case, with no one charged for the attack on Mr Yaschenko, there was no respondent to be named. Ultimately, after correspondence with the District Court, a response from which was received after the last date to lodge the appeal, a respondent was named, the appeal notice was lodged and accepted by the system and the respondent's name subsequently removed by order of a registrar. 20 The delay is through no fault of Mr Yaschenko. The issue was a technical one encountered by his lawyer who sought in a timely way to resolve it. The length of delay is brief and there is no prejudice to any respondent, notional or otherwise, because there was no payment made to Mr Yaschenko. On the other hand, should Mr Yaschenko be time-barred, he suffers the prejudice of not being afforded the opportunity to challenge the refusal of his claim, through no fault of his own. Given he did take some measures to identify to police his attacker, there is some prospect of success of his appeal, although as the court is required to decide the application to which the decision relates afresh, this factor has less significance in the context of an appeal under the Act.7 21 The time delay was not significant, and an acceptable explanation has been provided. In my view, it is just to allow the appeal to be commenced out of time, and I made that order at the hearing of the appeal. The evidence before the court 22 Section 18(2) of the Act provides that the court is not bound by the rules of practice as to evidence or procedure and may inform itself in any manner it sees fit. 23 Section 56(1) of the Act permits me to receive further evidence and information not before the assessor. The discretion to admit further evidence on an appeal ought to be exercised without undue restriction particularly given the beneficial purpose of the Act.8 24 At the hearing the parties tendered the assessor's papers, which are Exhibit 1. 7 Underwood v Underwood [2018] WADC 13 [32]. 8 Re CJR [2023] WADC 111 [7]. -- 7 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 8 25 The appellant applied to tender an additional book, filed 11 March 2026, containing materials that were not before the assessor, including a second statement by Mr Yaschenko. This became Exhibit 2. 26 Both parties lodged recordings of three 000 calls and three body worn cameras' footage which were accepted as being incorporated into Exhibit 2. 27 I granted leave to adduce the evidence in Exhibit 2 because I was not aware of any reason why it would be unjust to do so, and it seemed to me that those documents were relevant to the matters to be decided on appeal and should form part of my consideration. 28 Mr Yaschenko also gave evidence at the hearing and traversed an area that had not been set out in the papers that comprised either Exhibit 1 or 2, detailing another experience he had had with police in relation to him being a potential witness to a theft, and clarified certain matters from his statements, however there was no prejudice in that information and I have given weight to that evidence. 29 In assessing a witness' evidence I can accept all of their evidence, some of their evidence and reject other parts, or reject all of their evidence. The course of events 30 To resolve some of the issues in this appeal it is helpful to first set out the course of events, both on the night of the alleged offence and subsequent. 31 Items 1 and 2 in Exhibit 2 are recordings from the body worn cameras of the two attending police at the Greenwood Tavern on that night. Items 3, 4 and 5 are the 000 calls that were made. Documents 21 and 22 are statements made by Mr Yaschenko in relation to the attack, and what occurred afterwards. Mr Yaschenko gave evidence on oath. 32 While there were some inconsistencies which I will address later in these reasons, he was on the whole a credible and reliable witness as to the assault and what occurred afterwards, being straightforward and consistent in his evidence about what occurred at the tavern, what occurred on the night, and why he did not follow up with the police. I have come to a different conclusion in relation to his evidence about his losses and inability to work, which I will address later in these reasons. -- 8 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 9 33 On the basis that I am able to accept his evidence about the assault and his attempts at following up with the police, the following summary is taken from the evidence in its entirety as tendered at the hearing of the appeal and Mr Yaschenko's oral evidence in the appeal. What happened at the tavern 34 On 3 September 2022, Mr Yaschenko went to the Greenwood Tavern to have a drink with friends. While there, a man he knew as Scouser accused Mr Yaschenko of having sex with Scouser's ex-wife. He threatened to knock Mr Yaschenko out. He was yelling at him. 35 Mr Yaschenko said the way in which Scouser came at him and the things he was alleging made him scared of him. He had seen perhaps two other occasions when Scouser had been yelling in the tavern and had been moved away from an area in the tavern but seemed to shrug off those trying to move him. 36 When Mr Yaschenko left the tavern he was pushed into his car and repeatedly hit from behind in the face. Mr Yaschenko did not see who did this, but the person yelled and swore at him and he recognised the voice as that of Scouser's. Mr Yaschenko was knocked unconscious. 37 When he came to, he called police. 38 In his conversation with the 000 operator he disclosed that an assault had occurred. 39 From the footage, when police arrived Mr Yaschenko is clearly injured but gives a consistent account to them of the attack. At 17:22:16 Zulu time of the recording the police tell him that he is clearly injured and ask him if he would like to be taken to the hospital as it appears to them that he needs medical help. Mr Yaschenko looks dazed as he is speaking to the police. He says that he knows the man who attacked him from being at the tavern in the past and that he just knows him as Scouser. 40 The police suggest that he appears intoxicated and he agrees. 41 A couple of minutes later the police engage Mr Yaschenko in a discussion about whether he wishes to formally report the attack. At 17:24:45 Zulu time he is asked whether he wants to give the police a statement about what happened. The officer observes that he is a little bit intoxicated at the time and that in any event 'we need to get your medical done first'. -- 9 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 10 42 There is no answer from Mr Yaschenko as he is attempting to get out of his car, and the police then concentrate on getting him out which appears to be quite a process. 43 Once he is out, he is asked whether he wants to have Scouser charged. At 17:25:16 Zulu time he says 'I don't know his full name'. The female officer responds: That's ok, I am sure we can find that out, that's what police are for. 44 She then immediately asks if he is happy for them to take photos of his injuries, but says that it is up to him. 45 Mr Yaschenko appears reluctant and says 'I don't know he's married man, I don't know whether he has children'. 46 The female officer responds: We will have a look at the footage and we can, we have ways of finding out who he is. So if you would like to have him charged and do an investigation, part of the investigation would be obtaining evidence and photos of yourself and injuries is evidence. 47 However, Mr Yaschenko asks 'his family won't kill me?'. The officer replies that she hopes that he would not do that but suggests that Mr Yaschenko have a think about it on the way to the hospital. The other officer assures him that he does not have to do anything right now, and they get him into the police van. 48 Whether because of the intoxication or the attack, or both, Mr Yaschenko appears dazed and confused. For example, when the police ask him if it is okay if he sits in the police pod to be taken to the hospital, he becomes concerned that he is to be arrested, despite them assuring him multiple times that he is not under arrest. What happened at the hospital 49 Mr Yaschenko was taken to Joondalup Health Campus. He was kept overnight. His evidence was that he did not have a very good memory of what occurred at the hospital - he said he remembers lying down, and then in the morning he was told he could go. He did try to listen to what was being said, but he could not understand what was going on. He only barely has a memory of arriving at the hospital.9 9 ts 17. -- 10 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 11 50 He was therefore unsure whether the police engaged him in any discussion about pressing charges or contacting them. He was prepared to accept that the police may have asked him about making a statement, but said he just did not want to do anything then, he was scared.10 51 The Western Australia Police incident report LWP22090300593962 contained in Exhibit 1 has a summary of the attending police entered at 1.39 am, showing that he was taken to Joondalup Health Campus for treatment. Then the following appears:11 52 Given the state Mr Yaschenko was in, either because of his intoxication, the effects of the assault, or both, if the incident report suggests a conversation between himself and the police at the hospital, he does not recall it. What happened after the hospital? 53 Upon discharge the next day Mr Yaschenko went back to the Greenwood Tavern to pick up his car. He spoke to people there and asked around if anybody knew Scouser's name or where he lived. He was told that one of the managers may live with him but to him, she appeared to be avoiding speaking to him - telling him she was too busy. 54 Mr Yaschenko says that over the next two or three weeks he repeatedly tried to speak with her but she was either too busy to speak or was not on shift. He gave up. Other people he spoke to said they were not aware Scouser was so angry or that he was going to attack him, but they said little else.12 55 In his oral evidence, Mr Yaschenko said that he remained in fear of Scouser, and that he wanted to find out where he lived so that he could go and ask him why he accused him of being with Scouser's wife, and whether the assault on him could have been avoided.13 10 ts 22. 11 Exhibit 1, Incident Report, page 50. 12 ts 15; Exhibit 2, Statement of Vladamir Yaschenko dated 6 March 2026 (Statement of Vladamir Yaschenko), page 144, pars 11 - 15. 13 ts 16. -- 11 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 12 56 He thought that the police were investigating the matter and would have looked at the CCTV footage and found out the offender's name, although Mr Yaschenko does not say why he made that assumption. In any event, he did not want to tell the police how to do their job.14 57 Not long after he was attacked Mr Yaschenko's brother was admitted to palliative care and he spent time with him until he died in late 2022. In any event, he still assumed the police were investigating and hoped Scouser would be caught - he thought he should leave the police to it. 58 In December 2022, Mr Yaschenko saw a news report that Scouser had been arrested for the murder of his wife. They named the man as Paul Cannon. He recognised him through those media reports. Document 24 of Exhibit 2 is an ABC news article dated 7 December 2022 with a photo of Mr Cannon. 59 In the meantime, the police were investigating a theft, and it appears they thought Mr Yaschenko was either a party to the theft or was required as a witness to the theft. The consequences of this was that this was another thing he was dealing with at the time, and although his oral evidence was confusing at this point, it seems that Mr Yaschenko took the view that he did not have to go to court in relation to the assault because the perpetrator had been caught, unlike the situation of the theft of the wallet, where, it seems he thought, there might be some doubt as to who the perpetrator was.15 Therefore, he thought, there was nothing that formally had to be done in relation to the assault, as opposed to the alleged theft. 60 He did not think to raise the assault with the officers investigating the theft.16 What happened after Mr Cannon's arrest? 61 About a week after seeing the news reports about Mr Cannon, so in about mid-December 2022, Mr Yaschenko rang Ballajura Police Station. He gave them his name and the reason he was calling, and he was told he would need to be given a report number. He said the person he spoke to did not ask him to call back, and, according to his oral evidence, the call just seems to have ended without any further proposed steps, and, he said, he left it at that.17 14 Exhibit 2, Statement of Vladamir Yaschenko, page 145, pars 16 - 17. 15 ts 20. 16 ts 20. 17 ts 23. -- 12 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 13 62 He then thought he would personally go to a station, and he went to the Ballajura Police Station but that was closed, so he went to the Mirrabooka Police Station, and as the front desk was not attended he told a police officer who was walking by that he saw a news report showing the arrest of a man who had assaulted him. He told them he wanted to report that something had happened and give them the name of the person. He was told that a statement would need to be taken18 but given they were understaffed on the day he would need to wait. There were at least two others waiting there also. He was told they would get to him. He waited for over an hour but it did not seem like he was going to be seen so he left without leaving any details of who he was, even though he conceded he might have had the opportunity to.19 63 He was not contacted again. He decided that the police must have been focused on the murder charge and that the assault on him was not significant to them but, in any event, he was now protected from Mr Cannon.20 Further, he says that as the man who attacked him had been arrested and was in jail, he thought that justice had been done so he did not follow up with the police again. He was also still concerned with the death of his brother, and the other criminal matter he was involved in.21 64 Having summarised the evidence, there are further questions that may be resolved without the need for much discussion. Did the alleged offence occur? 65 The appellant must satisfy the court on the balance of probabilities that a specific act was committed against him which would qualify as a crime, misdemeanour, or simple offence if the perpetrator had been convicted of it.22 The appellant must prove his claim for compensation on the balance of probabilities.23 66 The appellant must also satisfy the court that he has negated the existence of any defences reasonably open.24 67 Section 3 of the Act defines 'alleged offence' to mean a crime, misdemeanour, or simple offence, of which no person has been convicted. The court must feel an actual persuasion that the offence 18 Exhibit 2, Statement of Vladamir Yaschenko, page 145, par 23. 19 ts 23 - ts 24. 20 ts 25. 21 ts 25. 22 Re Anderson [2022] WADC 97 [40], citing Re Jackamarra [2014] WADC 9 [13]. 23 Re TLJ [2016] WADC 74 [51]. 24 Section 17(5) of the Act; Re Warrek [2019] WADC 50 [3]. -- 13 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 14 occurred, and such a conclusion should not be reached without the exercise of caution and unless the evidence survives scrutiny and appears precise and not loose and inexact.25 68 Having regard to the evidence I have set out and the medical records of Mr Yashenko's admission to Joondalup Health Campus on 3 September 2022 contained in Exhibit 1, I feel an actual persuasion that an offence occurred. 69 There is nothing in the evidence of Mr Yaschenko, or any other evidence, which casts doubt on: (a) that Mr Yaschenko was assaulted, that is, that someone applied direct force to him without Mr Yaschenko's consent26 by punching him in the car park of the tavern; and (b) that he suffered a broken nose, that is, a bodily injury which interferes with health or comfort.27 70 Further, given Mr Yaschenko was at his car removing himself from the tavern when the assault occurred, and the absence of any other evidence suggesting a confrontation by him with anyone else at his car, I am satisfied that the assailant would not have had a defence, and that the assault was not authorised, justified or excused by law. 71 I am also satisfied from Mr Yaschenko's evidence that the person who committed the alleged offence was known to Mr Yaschenko as Scouser, and that Scouser is Paul Cannon. 72 As s 38 of the Act precludes a claim, I will address that next before I address whether the claimed injuries and any claimed loss occurred, and whether that was as a consequence of the commission of the offence. 25 Briginshaw v Briginshaw (1938) 60 CLR 336, 368 - 369. 26 Criminal Code (WA) s 222. 27 Criminal Code (WA) s 1. -- 14 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 15 Does s 38 of the Criminal Injuries Compensation Act 2003 (WA) preclude a claim? Principles relevant to s 38 of the Criminal Injuries Compensation Act 2003 (WA) 73 Under s 38 a compensation award in favour of an applicant must not be made if the assessor is of the opinion that the applicant did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence. 74 The section requires a factual determination as to whether there was a failure by the applicant to do any act or thing, and if so, whether that failure was reasonable in the circumstances.28 75 The determination of whether the applicant's failure to do any act or thing was reasonable focuses on the applicant and what 'he' ought reasonably to have done, and not the hypothetical reasonable person. Although the ultimate test is what was objectively reasonable in all of the circumstances, the test to be applied is by reference to what could reasonably be expected of the applicant at the particular time.29 76 Accordingly, two inquiries must be made: 1. Was there a failure by Mr Yaschenko to do any act or thing to assist in the identification, apprehension or prosecution of the offender? 2. If there was such a failure, was that failure reasonable in the circumstances, taking into account the particular circumstances of the applicant to determine what was reasonable for him to do?30 77 There is a public interest in ensuring that an offender is identified and dealt with. Section 38 is a means of ensuring that offenders are brought to justice, especially where a victim knows the identity of the offender. Further, s 38 is a means to ensure that criminal injuries compensation claims are genuine and that the authorities are not prevented from investigating the factual circumstances of an alleged 28 Re Iaria [2018] WADC 22 [8]. 29 Re Iaria [2018] WADC 22 [9]. 30 Re Iaria [2018] WADC 22 [10]. -- 15 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 16 offence.31 However, at what could be described as the most extreme, failure to assist police in their investigation is not automatically a bar to a claim.32 78 Whether or not the section imposes an obligation on a particular victim to do something positive which can be characterised as assisting with the identification, apprehension or prosecution of an offender must be assessed and understood in the context of the subjective circumstances of the victim,33 remembering that the Act only requires an alleged offence for a claim to be made. What more could Mr Yaschenko have done? 79 In the circumstances of this case, if there is any 'failure', Mr Yaschenko's is the failure to formally report the assault to police. By formal report, I mean the process by which police may take a statement which instigates an investigation by which a person may be arrested and charged for a complained of offence. There is no record of any investigation or entry in an incident report noting Mr Yaschenko's request to formally seek investigation, or to provide a statement, and neither does his evidence rise to such an event. 80 He had a number of opportunities to do so: • when police found him in the car at the tavern; • at the hospital; • after he was released from the hospital; • when he rang Ballajura Police Station; and • when he went to Mirrabooka Police Station, and afterwards. 81 I am satisfied, having watched the recordings of the police attendance at the scene, that it was not reasonable to expect Mr Yaschenko to have provided a statement or even signify his intention to make a formal complaint at the scene, because: 31 Re Iaria [2018] WADC 22 [11]. 32 Hinchcliffe v Hinchcliffe [2010] WADC 78 [68]. 33 Hinchcliffe v Hinchcliffe [2010] WADC 78 [69]. -- 16 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 17 • he is confused and dazed, whether from alcohol, the assault or both; • having been yelled at in the tavern for allegedly being with Mr Cannon's wife, and having just been attacked he is reticent to place himself at risk of another attack; • he only knows the person as Scouser; and • the police assured him that was not something he needed to do at that time. 82 Similarly, I am satisfied, having watched the recordings of the police attendance at the scene and from the hospital notes and Mr Yaschenko's evidence, that it was not reasonable to expect Mr Yaschenko to have provided a statement or even signify his intention to make a formal complaint at the hospital. 83 The failure to consent to photos being taken can be explained by reference to the confusion and fear it appears Mr Yaschenko was experiencing on the night. 84 However, once released from the hospital, and as time went on, those excuses, other than perhaps the one of fear, no longer hold. 85 I have given little weight to Mr Yaschenko's enquiries about the true identity of Scouser at the tavern given his reasons given in oral evidence that he wanted to go to his house to see why he had accused him, rather than saying he wanted to assist the police. However, that is not fatal to his claim - there is no obligation on a victim who is not known to the alleged offender to perform his own investigations on the identity of the assailant, such that a police investigation can occur or progress. As the police officer told Mr Yaschenko at the scene, that is what police do - they can look at footage and other evidence and investigate, including trying to ascertain the identity of the offender. This is not a situation where it could be said Mr Yaschenko had a positive obligation to come forward and to assist police because he had some special knowledge, or at least to not purposefully obfuscate. 86 While Mr Yaschenko was not clear in his evidence about the time he spent with his brother, or the mental strain it put on him such that thinking of other obligations may not have been reasonable, I am satisfied that the plight of Mr Yaschenko's brother would have had the effect of Mr Yaschenko prioritising him rather than the assault and any resulting investigation. -- 17 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 18 87 Therefore, the only reasonable time it could be expected Mr Yaschenko might come forward with the request for police to formally investigate the incident was once his brother had died. 88 As I have identified, the apparent failure in this case is a failure to communicate or affirm that Mr Yaschenko wanted the offence investigated and Scouser charged, however this was in the context that Mr Yaschenko: • contacted the police twice to tell them who the attacker was without, it appears, actually making such confirmation of his intentions; • his being assured by the police at the scene of the offence that in fact it did not matter that he did not know Scouser's identity, and that they could look at CCTV in the circumstances that he was dazed and confused and most likely at least somewhat affected by alcohol; and • it was a known fact that Mr Cannon had been charged with the murder of his wife. 89 While I find it odd that Mr Yaschenko might have tried to make what effectively would have been a formal complaint, only to have the phone call to Ballajura Police Station apparently end with no outcome, he followed this up with a visit to Mirrabooka Police Station, and his experience at the Mirrabooka Police Station may be more understandable. 90 In the context of that visit, I am satisfied that there can be no adverse inference or finding against Mr Yaschenko for leaving after an hour, with at least one other matter to be dealt with before his. 91 Further, while there was some confusion in his written statements about what he actually did, he has given oral evidence on oath now that he made a call to Ballajura Police Station and attended Mirrabooka Police Station in person, and I accept on the balance of probabilities that that is what occurred. 92 After that, Mr Yaschenko made two assumptions: (a) compared to the alleged murder, his matter was insignificant to the police; and -- 18 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 19 (b) justice had already been achieved, if Mr Cannon was to be convicted of murder, in the sense that he would be imprisoned for a long time in any event. 93 In the context that: (a) Mr Yaschenko reported the assault to police by calling 000 on the night and giving a reasonable explanation in the circumstances of what had occurred and the identity of the attacker, as he knew him to be, (b) he made an attempt to contact police about three months after the attack with the identity of his offender, amidst the death of his brother and his other ongoing court matter, and (c) his view about how justice would best be served in his case, compared to the murder charge Mr Cannon faced, it was reasonable in those circumstances to believe that there was nothing further that could or needed to be done to bring Mr Cannon to justice. In other words, bearing in mind the purpose of s 38 of the Act, I am not satisfied that the failure to ensure a formal complaint had been lodged was not reasonable in the circumstances Mr Yaschenko found himself in. 94 Accordingly, I find as a result that s 38 of the Act has no application in this case and it does not operate against a compensation award in favour of Mr Yaschenko. The application therefore falls to be determined according to the usual statutory provisions and established principles. The legislative provisions and general principles of awarding compensation Injury by reason of commission of alleged offence 95 I have found that an offence occurred. Section 17(2) of the Act provides that a person who suffers injury by reason of the commission of an alleged offence may apply for compensation for the injury and any loss suffered. 96 Section 30(1) of the Act provides that compensation may be awarded that is just for the injury and any loss suffered. -- 19 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 20 97 Section 17(4)(a) of the Act provides that an award should not be made unless the court is satisfied that the injury and any loss claimed has occurred and did so as a consequence of the commission of the alleged offence.34 Injury 98 Relevantly, s 3 of the Act defines 'injury' to mean bodily harm, mental and nervous shock. 99 The phrase 'mental or nervous' shock has been established to:35 (a) comprehend any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence, or associated with the commission of the offence, as those events impact on the mind or nervous system; (b) include distress, horror, disgust, and other similar adverse mental reactions, but to exclude mere fright, humiliation, or anguish; and (c) ultimately, be more than a mere emotional reaction, and something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury. 100 Post-traumatic stress disorder is an injury for the purposes of the Act.36 101 Even if satisfied that Mr Yaschenko suffered mental and nervous shock, a compensation order cannot be made unless the victim also suffered bodily harm, or the victim was the person against whom the offence was committed.37 Loss 102 Under s 6(2)(a) of the Act, 'loss' includes, relevantly, expenses 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, expenses that are likely to be incurred for treatment and loss of earnings. 34 Atieh [2020] WADC 5 [2]. 35 S v Neumann (1995) 14 WAR 452, 461; M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992) 10 - 11 (Scott J); Martin v Martin [2015] WADC 138 [85]. 36 Re Anderson [2022] WADC 97 [216]. 37 Section 35(2)(a) and s 35(2)(b) of the Act. -- 20 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 21 As a consequence of 103 'As a consequence of' requires a causal relationship or connection. 104 Whether that causal relationship exists is a question of fact, to be resolved as a matter of common sense. It is sufficient that, as a matter of ordinary common sense and experience, the offence should be regarded as having materially contributed to the injury.38 Assessing compensation 105 Section 31(1) of the Act provides that the maximum award of compensation available is $75,000. This is the maximum amount prescribed by s 31(1) of the Act as a jurisdictional limit. It is not reserved for the worst cases. 106 The court must apply the ordinary tortious principles for assessment of damages when assessing the amount of compensation under the Act, while operating within the jurisdictional limit and within the scope of the definitions of 'injury' and 'loss'.39 107 When assessing the amount of compensation, I must have regard only to any injury sustained by reason of the commission of the alleged offence. The amount awarded is only a reflection of the injury sustained and not a reflection of sympathy to the appellant or a representation of the alleged offender's culpability.40 108 Ordinarily general damages are awarded to compensate for pain and suffering and other non-pecuniary loss. According to ordinary tortious principles, the amount of general damages must be fair and reasonable compensation for the injuries received by the claimant and the disabilities caused, having regard to current general ideas of fairness and moderation. In assessing the appropriate amount of compensation, a broad and subjective assessment must be undertaken with consideration of what the community would regard as reasonable compensation.41 38 Re Richards [2022] WADC 100 [55]. 39 Re Warrek [2019] WADC 50 [29]. 40 Re Burleigh [2025] WADC 11 [44]. 41 Savic v Duric [2021] WADC 53 [51] and [52]. -- 21 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 22 Application of the principles Was there injury? A broken nose - bodily harm 109 Joondalup Health Campus medical records contained in the exhibits confirm bilateral comminuted nasal bone fractures with deviation to the nasal bones to the left and soft tissue swelling surrounding the nasal bones. Mr Yaschenko's nose was extremely painful for the first few days and it was difficult to breathe.42 110 Mr Yaschenko had blood noses after the assault and began having headaches.43 111 I am satisfied from the medical evidence, particularly the hospital notes, that a broken nose amounts to bodily harm, being an injury to the bones and soft tissue of the nose. Psychological injury 112 Mr Yaschenko saw Dr Frederick Ng, consultant psychiatrist, on 25 September 2024.44 As recorded by Dr Ng, Mr Yaschenko gave an account of the assault, and the account he gave appears to be consistent with the account given in Mr Yaschenko's evidence before me. I am satisfied that the facts on which Dr Ng based his findings are consistent with those I have before me. 113 According to Dr Ng, Mr Yaschenko was feeling the following at the time of the consultation:45 (a) generally anxious to a variable extent; (b) hypervigilance of his surroundings; (c) intermittent depression; (d) recurrent and frequent nightmares with themes consistent with the assault for at least one year after, the frequency of which had since reduced; 42 Exhibit 2, Statement of Vladamir Yaschenko, page 145, par 29. 43 Exhibit 2, Statement of Vladamir Yaschenko, page 146, pars 30 and 31. 44 Exhibit 2, Report of Dr Ng dated 25 September 2024, pages 3 - 13. 45 Exhibit 2, Report of Doctor Ng, pages 8 and 9. -- 22 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 23 (e) becoming socially withdrawn, avoiding others who are potentially or actually aggressive, violent or intimidating, and avoiding the location of the alleged incident; (f) losing control of his bladder in the context of his nightmares; and (g) anxiety over the prospect of being assaulted again, particularly after Mr Cannon was arrested for the murder of his wife. 114 He also reported regular and frequent headaches, neck pain and right hip pain,46 but also that he had developed joint pain in the right shoulder, elbow and wrist from work, and that he was short-sighted.47 115 While some of the symptoms Mr Yaschenko reported having immediately after the assault had somewhat dissipated, Dr Ng diagnosed post-traumatic stress disorder, at its worst to a moderate or moderately severe extent, that was largely undertreated, and at that time present to a problematic and residual extent.48 116 I am satisfied from Mr Yaschenko's oral evidence about the effects of the incident on him and the report of Dr Ng, that Mr Yaschenko was suffering from post-traumatic stress disorder to the degree diagnosed by Dr Ng, although I question the extent to which the symptoms have affected Mr Yaschenko's ability to work, and I will address that aspect of his disorder later in these reasons. 117 Therefore, I am satisfied that Mr Yaschenko suffered both bodily injury and mental and nervous shock, and that s 35 of the Act has been satisfied. The general effects of the assault 118 Mr Yaschenko could not work for three weeks after the assault due to his nose and because he was so shaken up. In his evidence he said that he had a very low mood and struggled for motivation, getting frustrated and angry. He was also struggling with the problem that he had with his shoulder. He stopped work altogether in October 2023.49 He then gained a second wind in March 2023 46 Exhibit 2, Report of Doctor Ng, page 8. 47 Exhibit 2, Report of Doctor Ng, page 6. 48 Exhibit 2, Report of Doctor Ng, page 6. 49 Exhibit 2, Statement of Vladamir Yaschenko, page 146, par 43, 2022 being in accord with the tables prepared by WA Ceiling Fixers, Exhibit 2, page 137. -- 23 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 24 [sic 2024]50 and tried to work again, however he was working with a man who had recently been released from jail and he was worried about working around a potentially violent person. He managed to work for a couple of months before the depression and anxiety was affecting him too much to continue and he has not worked since May 2024.51 119 I have set out Dr Ng's record of Mr Yaschenko's presentation to him in September 2024. Dr Ng also reported that Mr Yaschenko told him that after the incident he was unable to return to his part-time job in construction, or any work, for many months, and after he returned to intermittent work any physical work was significantly affected by his eyesight difficulties and physical pain in his body which he said arose after the assault.52 120 By March 2026 Mr Yaschenko's depressive symptoms had slowly improved but he was still struggling.53 121 I am satisfied, on the balance of probabilities, that Mr Yaschenko would have been unable to work for some weeks after the assault given the bodily injury he suffered, and that consequently he suffered loss. I am satisfied that the psychological effects of the assault had some influence on him in those weeks. 122 I am also satisfied that, at least in 2024, there were residual effects of the assault, being the post-traumatic stress disorder identified by Dr Ng, and that this had some effect on his earning capacity and loss of enjoyment of life. 123 However, I am not satisfied, on the balance of probabilities, that after several weeks Mr Yaschenko was unable to work at all because of the psychological injury he suffered as a result of the assault. 124 I set out my reasons for that determination next. 50 Exhibit 2, Statement of Vladamir Yaschenko, page 146, par 46, 2024 being in accord with the tables prepared by WA Ceiling Fixers, Exhibit 2, pages 140 and 141. 51 Exhibit 2, Statement of Vladamir Yaschenko, page 146, pars 38 - 48. 52 Exhibit 2, Report of Doctor Ng, page 7. 53 Exhibit 2, Statement of Vladamir Yaschenko, page 147, par 49. -- 24 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 25 Did any claimed injury and any claimed loss occur as a consequence of the commission of the alleged offence? 125 Under s 30 and s 17(2) of the Act the court must not make a compensation award unless satisfied on the balance of probabilities that the claimed injury and any claimed loss occurred and did so as a consequence of the commission of the alleged offence. 126 The words 'as a consequence of' require a causal relationship or connection.54 Whether that causal connection exists is a question of fact to be resolved as a matter of common sense.55 127 It is not necessary for the offence which is the subject of the application to be the sole cause of the injury. A sufficient causal connection will be established if, as a matter of ordinary common sense and experience, the offence is regarded as having 'materially contributed' to the injuries or loss.56 128 However, if the evidence establishes that a non-compensable event had a propensity to cause the applicant's injury or loss and did contribute to the injury or loss, the award of compensation must be reduced to take account of that contribution, so that the applicant only receives compensation for the compensable offence.57 129 Mr Yaschenko conceded that pre-existing injuries to his shoulder and elbow and issues with his eyesight have contributed, both prior to and after the offence, to his ability to work. However, he says that it is not possible to disentangle the contributions of his psychological and physical injuries to his capacity for work. 130 If it is not possible to disentangle the consequences of a non-compensable event from the consequences of a compensable event, it is sufficient for an applicant to establish, as a matter of ordinary common sense and experience, that the offence (whether proved or alleged) materially contributed to any injury or loss.58 54 Re Richards [2022] WADC 100 [55], citing Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673 (Mason & Wilson JJ) (interpreting the words 'by' and 'as a result of'). 55 EB v Ramljak [2021] WADC 134 [36], citing Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 - 413 (Mason CJ, Deane & Toohey JJ), Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673 and Underwood v Underwood [2018] WADC 13 [87]. 56 EB v Ramljak [2021] WADC 134 [36], citing Bonnington Castings Ltd v Wardlaw [1956] AC 613, 620; March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515; Lyle v Soc [2009] WASCA 3 [40] and Underwood v Underwood [2018] WADC 13 [87]. See also S v Neumann (1995) 14 WAR 452, 463 - 464; Martin v Martin [2015] WADC 138 [83]. 57 Martin v Martin [2015] WADC 138 [84]; McDavitt v McDavitt [No 2] [2013] WADC 198 [23] - [25]; TAW v NJS [2011] WADC 187 [83]; MJN v MAJS (2003) 35 SR (WA) 219, 227 [52]. 58 Re ZD (pseudonym initials) [2024] WADC 42 [153]. -- 25 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 26 131 Mr Yaschenko did not address his chronic injuries at all in oral evidence, and merely acknowledges them without acknowledging their effect on his work in his written statement dated 6 March 2026. 132 There is no doubt the physical injuries claimed, that is, the broken nose, were caused by the offence. 133 In relation to the psychological injury, Dr Ng was of the opinion that the most significant contributing factors materially and directly precipitating the onset of the post-traumatic stress disorder were the physical and emotional trauma directly arising as a consequence of the assault, leading to at least moderate impairment of his capacity to enjoy his personal life and a sense of personal wellbeing, self-esteem and confidence and to engage in sporting, recreation and social life.59 134 He was also of the opinion that as a result of the ongoing psychiatric symptoms, Mr Yaschenko's capacity to work is impaired.60 I am not satisfied that I can accept that conclusion. Dr Ng's report and the medical records 135 Dr Ng diagnosed Mr Yaschenko two years after the offence and estimated that he would be able to work 10 - 16 hours per week. Accordingly, first, it is noted that that is still an ability to work. 136 Further, Dr Ng did not set out whether he understood the tasks of Mr Yaschenko in the ceiling fixing business, nor explain how he came to the figure he did, and why his work would be limited to that amount in that industry, or in the labour market in general. 137 He acknowledged the presence of Mr Yaschenko's other injuries, however, did not address whether those injuries and their consequences may impact Mr Yaschenko's psychological wellbeing or attitude to work. 138 I also note he was of the opinion that Mr Yaschenko would psychiatrically improve 'with the further passage of 12 to 24 months'.61 It is not clear whether that was to be from the date of the report, or from the commencement of counselling. 59 Exhibit 2, Report of Dr Ng, page 12. 60 Exhibit 2, Report of Dr Ng, page 12. 61 Exhibit 2, Report of Dr Ng, page 13. -- 26 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 27 139 There are also inconsistencies in the medical records tendered in Exhibit 2 with the claim that Mr Yaschenko was unable to work at all from time to time materially because of the psychological or psychiatric impact of the assault. 140 The medical notes reveal that Mr Yaschenko visited his general practitioner as follows:62 Date Reason and Associated Notes Outcome 22.8.2022 Gone back to work in last 4/12 1/52 history b/l eye redness, pain, clear discharge, runny nose, after pulling down ceiling on Thursday, mildly blurry vision Right Elbow pain for last 1/12 unable to abduct shoulder past 90°, tender anterior shoulder, tender medial elbow Ultrasound ordered and loratadine 29.8.2022 Predominant features are those of right elbow lateral epicondylitis, greater than 50% full thickness tear of the supraspinatus, moderately severe subacromial bursitis Rest, analgesia, physio, consider steroid injection, 1/12 off work 5.9.2022 Thinks he was assaulted getting into his car after being at the pub, hit to the head follow-up with physio re right elbow lateral epicondylitis and supraspinatus tear Centrelink medical certificate provided 6.9.2022 Reason for visit: chronic right lateral epicondylitis, chronic right subacromial bursitis, dyslipidaemia came here yesterday and discussed recent assault at that appointment and patient doesn't want to talk about that today, off work for 6/52 right elbow pain: has been having pain for 25 years, tender right lateral epicondyle, cannot fully extend the right elbow - says stiff and painful, pain on resisted right wrist dorsiflexion - pain in the elbow Meets criteria for GP MP/TCA as has chronic right elbow and shoulder pain secondary to lateral epicondylitis and chronic rotator cuff tendinopathy with associated bursitis Goals are pain management and long-term self-management of pain and return to work 62 Exhibit 2, Illawara Medical Centre Records dated 13 February 2026 (Illawara Medical Centre Records), pages 44 - 55. -- 27 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 28 Date Reason and Associated Notes Outcome 14.10.2022 (Nurse) Dyslipidaemia, subacromial bursitis right shoulder - moderate severe, over 50% full thickness tear of supraspinatus - right elbow working part-time light duties, driving. Construction Reason for visit: GP management plan GP MP and TCA performed. 4.10.2022 (Doctor) Reason for visit: chronic right subacromial bursitis, chronic right lateral epicondylitis, dyslipidaemia, GP management plan, team care arrangements, pain at both sites present for over 20 years Goals - pain management and long-term self-management of pain, return to work plan: referrals to physio and dietician and other concerns regarding lifestyle 24.4.2023 Upper respiratory tract infection Medical certificate given 18.9.2023 Ever since assault last year feels a bit down, snappy, impatient, down in mood, sleep bad every second or third night, eyestrain and fatigue Prescription given for mirtazapine 1.2.2024 Still has anxiety and PTSD post assault, did not like mirtazapine, can see psychologist, long discussion, left sided double vision for one week, needs to see optometrist Letter to psychologist written GP mental health care plan 5.7.2024 Right shoulder pain, right elbow pain and sleeping difficulty, stress from work - pressure from boss, states mood is low, affecting sleep, exacerbation of right shoulder and elbow pain after knocking elbow while working two weeks ago, right shoulder reduced range of movement in all aspects, tenderness in acromioclavicular region, reduced extension and flexion of right elbow, tenderness in lateral aspect Recommendation to recommence mirtazapine with other explorations of elbow pain 10.11.2025 Presented for checkup with left knee pain, intermittent pain, two to three weeks, he was kneeling around three weeks ago he reports he came down heavily three weeks ago, wants a medical certificate for today because of his knee Medical certificate given and other interrogations and medications regarding pain in left knee -- 28 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 29 Date Reason and Associated Notes Outcome 12.11.2025 While there was no visit, the practice provided a further medical certificate from 10.11.25 - 15.11.25, noting that the certificate may be extended but requires follow-up as currently the most likely diagnosis is 2- to 3-week-old infra patella bursitis 14.11.2025 Likely infra patella bursitis, significant pain, given another three weeks off, patient to have an ultrasound and follow-up for results From these notes I find that: • The predominant reason for Mr Yaschenko visiting his general practitioner both before and after the offence was because of physical injuries and chronic disease which pre-existed the offence. • While these injuries and disease were being managed, they were not 'managed' to the extent that they had no effect on Mr Yaschenko's ability to work and enjoy life. • These injuries and disease caused him to have time off work. • The offence did not exacerbate the pre-existing physical injuries as they appear to have been chronic prior to the offence, and there is no evidence from Mr Yaschenko to suggest otherwise. I note that Dr Ng reports that Mr Yaschenko told him that the physical pain in his body which was significantly affecting his performance at work 'arose after the subject incident of assault'.63 This is in contrast to the medical notes, and accordingly I place no weight on that portion of Dr Ng's report. • There were from time to time other injuries sustained for which he received medical certificates. • Even in September and October 2022, Mr Yaschenko's complaints related to his physical chronic injuries and diseases, with an apparent focus to return to work as a result of those, 63 Exhibit 2, Report of Dr Ng, page 7. -- 29 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 30 with no mention of the psychological or psychiatric effects of the offence, Mr Yaschenko specifically not wanting to talk about the offence within a week of the offence. 141 Further, while there are visits referring to the aftereffects of the assault and a psychologist referral was provided, there is no evidence Mr Yaschenko took up that referral, or why he did not, and while mirtazapine was prescribed, the notes suggest Mr Yaschenko did not persist with that medication. There was no alternative prescribed, although it was suggested he try again with that medication. As it appears that neither Mr Yaschenko nor his doctors were of the view that his mood materially impacted his lifestyle or work ability such that treatment was necessary to the extent that other options were suggested and further referrals were made, I am not satisfied that the psychiatric effect of the assault had any real or material bearing on his lifestyle and ability to work post the initial shock of the incident. 142 I accept Mr Yaschenko's evidence that he was worried about a man who had been released from jail. I am not satisfied however that the worry about a violent man and the residual anxiety over the incident, based on Dr Ng's opinion and the ongoing other medical issues, would have resulted in Mr Yaschenko being unable to work at all for many months, and then years, until now, or even at a lower capacity. 143 Mr Yaschenko did not mitigate his symptoms arising from the compensable incident, or, perhaps, they were not serious enough that he saw the need to; either way, while I have found that the offence materially contributed to losses, I am satisfied from the medical records tendered that I can disentangle the pre-existing and other ailments affecting Mr Yaschenko's work ability and the effect of the offence. Therefore, I find that the chronic physical conditions and other injuries materially contributed to his inability to work and loss of enjoyment of life, and that they had the propensity to cause his loss and did contribute to his loss in a significant way, and to a much greater extent than the physical and psychological injuries from the incident. 144 Accordingly, the amount sought by way of compensation cannot be awarded. -- 30 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 31 Quantum Can I assess quantum? 145 I am satisfied that I have the requisite material to assess quantum. Future treatment expenses 146 Dr Ng was of the view that Mr Yaschenko would need 12 - 16 sessions of trauma-specific individual psychotherapy at a cost of approximately $355 per session.64 147 Dr Ng reported that if psychotherapy alone does not assist with Mr Yaschenko's symptoms, or they get worse, then his treating doctor should consider a trial of antidepressant medication for the 'next' 1 - 3 years at a cost of $50 - $100 per month.65 The medical records show that Mr Yaschenko presented to his general practitioner with sleep difficulties and depressed mood in September 202366 and July 2024,67 on each occasion being prescribed mirtazapine to be taken one a day, being packs of 30 with five repeats. I have not been provided with receipts for the purchase of those medications. 148 While Mr Yaschenko's evidence was that he is still of low mood and fearful, there is no evidence that either he or his doctors have seen fit to prescribe further medication other than the courses already prescribed which would have taken 10 months to use. I am not satisfied on the balance of probabilities that Mr Yaschenko will be required to access such medication. I am however satisfied that further courses may be necessary and I allow an amount of $1,800, being $50 per month for three years, subject to s 48 of the Act, which means that Mr Yaschenko does not receive payment unless these expenses are actually incurred. 149 I am satisfied that there are psychological and psychiatric residual effects of the assault that are undertreated. For any future psychotherapy Mr Yaschenko may access, I will allow up to $5,680, subject to s 48 of the Act, which means that Mr Yaschenko does not receive payment unless these expenses are actually incurred. 64 Exhibit 2, Report of Dr Ng, page 12. 65 Exhibit 2, Report of Dr Ng, page 12. 66 Exhibit 2, Illawara Medical Centre Records, page 52. 67 Exhibit 2, Illawara Medical Centre Records, page 53. -- 31 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 32 Past loss of earnings 150 I am satisfied that Mr Yaschenko would have required three weeks away from work, even without the comorbid chronic injuries and illness, after such physical and psychological injuries arising out of the offence. 151 Mr Yaschenko provided his taxation returns for the following years,68 showing the following income: Financial Year Income 2018-19 $21,132.00 2019-20 $17,558.00 2020-21 $22,990.00 2021-22 $23,302.00 2022-23 $47,174.00 2023-24 No return necessary 2024-25 No return necessary 152 At the time of the assault, Mr Yaschenko was employed as a plasterer with WA Ceiling Fixers. He earnt an average of $797 net per week.69 153 The table prepared and attached to the email of WA Ceiling Fixers provided by Mr Yaschenko,70 shows that Mr Yaschenko was not paid by them on: • 2 September 2022; • 9 September 2022; • 16 September 2022; • 7 October 2022; 68 Exhibit 3, pages 100-135, summarised in his submissions dated 11 March 2026. 69 Exhibit 2, pages 136 - 141, tables showing earnings of financial years 2021 - 2024, the average noted in the Appellant's Outline of Submissions dated 11 March 2026, par 8.2. 70 Exhibit 2, page 138. -- 32 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 33 • 4 November 2022; • 2 December 2022; • 16 December 2022; • 30 December 2022; • 13 January 2023; and • 27 January 2023. 154 Therefore, in the 12 months following the incident there appears to be a period of 10 weeks unpaid by WA Ceiling Fixers, and then from 29 September 2023 to 9 February 2024, there is a period of 19 weeks, for which Mr Yaschenko was not paid. 155 The amounts paid by WA Ceiling Fixers from 10 February 2024 to 24 May 2024, a period of 15 weeks, appear to be a reduction in hours of Mr Yaschenko, amounting to an average of $607 net per week. Mr Yaschenko says this reflects a period during which he attempted a return to work with reduced hours. Mr Yaschenko claims for those weeks in which he was not paid, or the shortfall in the weeks he was paid less. 156 Mr Yaschenko also says that he has been unable to attend work from 25 May 2024 onwards and claims $66,948 for that period. 157 While these periods accord with his evidence either of actual times not worked or the periods of time during which he tried to work but could only work reduced hours, I have found that I am able to disentangle the effects and consequences of the offence from Mr Yaschenko's chronic injuries and disease. Given the pre-existing chronic conditions and other injuries that have materially and significantly contributed to his inability to work, I cannot be satisfied on the balance of probabilities that the time off work is a consequence of the offence. 158 Given his significant medical history in relation to those other injuries and disease, I am unable to accept his evidence that it was the depression and anxiety as a result of the offence and fear of violent co-workers that was affecting him so much he could not continue to work in the latter parts of 2022, nor in 2023 and following, to now. -- 33 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 34 159 Accordingly, I have put to one side the mathematical calculations provided by Mr Yaschenko, and made an allowance in the award for general damages for the contribution of the offence on his inability to work, which I consider to be a small part only in his overall work ability since October 2022. Future loss of earning capacity 160 Mr Yaschenko is currently completing a Certificate III in Individual Support and is retraining as an aged care worker, he says in an effort to avoid working with the type of violent and intimidating people that he has worked with in the trades.71 161 Mr Yaschenko did not give any evidence about the length of his retraining or the likelihood of further employment in any field. Given that, in the context of his apparent long-term and ongoing other medical issues, I am unable to make a finding as to when he will be able to return to work in any field. 162 Further, I do not accept that, as he submitted, he is likely to continue to experience periods of incapacity when encountering aggressive, violent, and intimidating people throughout the remainder of his working life. Dr Ng suggested in September 2024 that to what extent the psychiatric symptoms would improve would be clear in 12 - 24 months from that time. He does not say what symptoms may or may not recur or continue and whether that relies on treatment or medication, or both. While Mr Yaschenko expressed concern in his evidence over the potential to be around violent people, I am unable to find on the balance of probabilities that that symptom will prevail, nor that he will experience such people in the future. 163 While Mr Yaschenko may not have accessed psychotherapy, he did access his general practitioner and received a referral, medication and guidance from them. There is nothing before me to suggest that that has not to some extent assisted, remembering I have found that Mr Yaschenko's inability to work was materially and significantly contributed to by his chronic and long-term disease, particularly in relation to his right arm, both before and after the offence. 71 Exhibit 2, Statement of Vladamir Yaschenko, pages 144 - 147, pars 5 - 52. -- 34 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 35 164 I am therefore unable to make a specific assessment of future loss relating to the offence, and I have incorporated an allowance in general damages for any ongoing loss of income to reflect his ongoing symptoms as he described them in his evidence, taking into account my findings that the chronic injuries and disease have a far greater effect than the offence on his ability to work. Non-pecuniary loss 165 Dr Ng was of the opinion that Mr Yaschenko's ability to engage in sporting, recreation and social life and to enjoy his personal life is at least moderately impaired.72 166 Mr Yaschenko was suffering from what appears from the medical notes to be debilitating chronic shoulder and arm issues, and the doctors have expressed other lifestyle disease concerns both post and prior to the assault. 167 The parties referred to a number of cases for comparison on assessment of non-pecuniary loss but noted that comparison in such circumstances has limitations.73 168 I have had regard to Richardson v Lawford,74 Weatherill v Tiakia,75 Re Burleigh,76 Johnson v Watts, Ward v Davey,77 Savic v Duric,78 Mangisi v Boehm79 and Nurovic v Nurovic.80 169 Having regard to those cases and the particular circumstances of Mr Yaschenko, I have determined that a global sum of $25,000 compensates Mr Yaschenko for non-pecuniary and pecuniary loss other than those potential losses specifically allowed above, for which I have awarded $9,280. Disbursements 170 Mr Yaschenko claims the cost of the report of Dr Ng in the sum of $2,200.81 That claim is allowed. 72 Exhibit 2, Report of Dr Ng, page 12. 73 Johnston v Watts [2024] WADC 62 [78]. 74 Richardson v Lawford [2020] WADC 58. 75 Weatherill v Tiakia [2025] WADC 26. 76 Re Burleigh [2025] WADC 11. 77 Ward v Davey [2023] WADC 78. 78 Savic v Duric [2021] WADC 53. 79 Mangisi v Boehm [2021] WADC 76. 80 Nurovic v Nurovic [2019] WADC 28. 81 Exhibit 1, tax invoice, page 52. -- 35 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 36 171 Mr Yaschenko claimed from the assessor, but did not include in his submissions to this court, $41.51 for the provision of the Joondalup Health Campus medical records.82 The Chief Executive Officer of the Department of Justice pointed out in their submissions to this court that that invoice ought be considered, and I allow $41.51 for the provision of those records. Was Mr Yaschenko's behaviour, condition, attitude or disposition such that it would be just to reduce the amount of compensation the court would have otherwise awarded? 172 In determining the amount of an award, s 41 of the Act requires the court to have regard to any behaviour, condition, attitude or disposition of the applicant which contributed, directly or indirectly, to the injury suffered by him or her and may reduce the amount which he would otherwise award by such percentage as is thought just. 173 In Re Burleigh,83 Cormann DCJ analysed s 41 of the Act, and I adopt that analysis and her conclusion that s 41 is concerned with factors which contributed to the offence, not the consequent injury or loss suffered.84 174 I cannot identify anything in this case that would invoke the operation of s 41. Orders 175 For the reasons given, the orders of the court will be to allow the appeal and to set aside the decision of the assessor. Compensation is ordered in favour of the appellant in the sum of $36,521.51, noting the sum of $9,280 within that figure is the subject of the provisions in s 48 of the Act. There is no order as to costs. 82 Exhibit 1, Joondalup Health Campus tax receipt, page 54. 83 Re Burleigh [2025] WADC 11 [74] - [78]. 84 Re Burleigh [2025] WADC 11 [78]. -- 36 of 37 -- [2026] WADC 54 CLEARY DCJ [2026] WADC 54 (JBS) Page 37 I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. CR Associate to the Judge 1 JULY 2026 -- 37 of 37 --