Abdel-Ghani v State of Sa

[1996] SADC 3360

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons For Decision of His Honour Judge Noblet

Hearing

14/12/95 to 15/12/95.

Catchwords

Compensation for Criminal Injuries - two assaults - conduct contributing to the commission of the offence - method of assessment (pre 12 August 1993) - male aged 52 - head injuries and exacerbation of pre-existing degenerative condition in cervical spine - first assault $3,500 reduced to $1,750 for conduct contributing - second assault $17,000.

Materials Considered

• Criminal Injuries Compensation Act , referred to.
• Wilson v State of South Australia (1988) 146 LSJS 362;
• Diamond v State of South Australia (1900) 155 LSJS 391;
• Brown v Ween (1979) 21 SASR 72;
• Bradley v Ashman &; State of South Australia (1983) 107 LSJS 107, applied.

Representation

Plaintiff Mahmud Abdel-Ghani:
Counsel: Mr. M. Mitchell - Solicitors: MATTHEW MITCHELL

Defendant State of South Australia:
Counsel: Ms. A. Fuda - Solicitors: CROWN SOLICITOR'S OFFICE

Defendant Randall Lee Thomson:
Represented by: Mr. R.L. Thomson

CICD-94-612, CICD-94-613

Judgment No. D3360

5 December 1996

In The Matter of THE CRIMINAL INJURIES COMPENSATION ACT 1978

(Criminal Injuries Compensation Division)

ABDEL-GHANI V STATE OF SOUTH AUSTRALIA AND THOMPSON (613/94)

ABDEL-GHANI V STATE OF SOUTH AUSTRALIA (612/94)

Civil

Judge Noblet

The plaintiff has made two separate applications for compensation under the Criminal Injuries Compensation Act ("the Act").Both claims arise out of incidents alleged to have occurred while the plaintiff was in prison; the first at Mobilong on 26 September 1991, and the second at Cadell on 24 November 1991.

The plaintiff alleges that head injuries were involved in both incidents.At least some of the medical evidence about those injuries would have been the same in each case.It was therefore agreed that the two claims be heard together.However, in all respects other than the medical evidence, the claims are quite separate and will be dealt with separately in these reasons.

In both claims it is agreed that time limits and other procedural matters have been complied with.

I shall refer to the claim against the State of South Australia and Randall Lee Thompson (613/94) as the first claim and the claim against the State of South Australia (612/94) as the second claim.

In the first claim, the defendant Thompson concedes that he committed an offence which caused injury to the plaintiff, but he claims that the plaintiff's conduct contributed to the commission of the offence or to the plaintiff's injuries (see section 7(9) of the Act).The State of South Australia, as defendant in both claims, concedes that the plaintiff was the victim of an offence on each of the two occasions, but makes no concession as to the extent of the plaintiff's injuries, any causal connection between the alleged injuries and the offences, or the quantum of any damages.

None of the bars to compensation set out in section 7(9a) of the Act were raised by the defendants in either claim.

I found the plaintiff to be generally an unreliable witness who was prepared to hide the truth or to attempt to deceive the Court if he thought this would enhance his claims for compensation.Early in his evidence he said that after his release from prison in about 1992, he had kept out of trouble and had not been involved in any other offences.He later admitted under cross examination that he had been convicted of further offences after that time.

The first claim (file 613/94)

On 26 September 1991 the plaintiff was serving a sentence of 10 years imprisonment (for which he actually served about 3 years).He was in Mobilong prison.On that date an incident occurred involving the defendant Mr Thompson.

The plaintiff's version of this incident was that he was working in the garden when Mr Thompson called out to him and called him a "dog".In prison vernacular this is a derogatory expression used to indicate someone who had reported (or "dobbed in") another prisoner for misconduct.The plaintiff's evidence about his reaction to being called a "dog" was rather significant.He said "If you get called a dog, it's up to you to go there and fight or explain and make that person shut up or everyone has to call you a dog and you have to suffer.This is the rules".

The plaintiff says that he approached Mr Thompson to explain to him that he was not a dog and that he had "no reason to dob on anyone".He said that as he approached Mr Thompson, Mr Thompson grabbed a hoe from another prisoner and hit the plaintiff on the head with it, causing an injury above his left eye.The plaintiff said that he had not said anything to Mr Thompson between the time he had been called a dog and the time he was hit.He said that upon being hit on the head he grabbed a shovel to protect himself but then decided to walk away and report the incident to the prison authorities.

Mr Thompson's version of the incident was quite different.He agreed that he called the plaintiff a dog (in fact a "bloody dog") but he said that the plaintiff then began yelling at him and abusing him with foul language and approached him with a spade in his hand.Mr Thompson said that when the plaintiff began running towards him he dropped a cane walking stick that he had in his hand and picked up a garden hoe.The plaintiff swung the shovel at Mr Thompson but he missed and Mr Thompson then hit the plaintiff with the garden hoe.Mr Thompson agreed that the plaintiff then walked away.

If I had to rely only upon this evidence I would have been inclined to prefer Mr Thompson's version and to find that no offence was committed by him because he was acting in self defence.In view of the impressions I gained of the plaintiff from his evidence as a whole, and particularly in view of his comments about the need to fight someone who calls you a dog, or make him shut up, I find the idea of the plaintiff calmly walking towards Mr Thompson to discuss his gross insult in a gentlemanly fashion to be so unlikely as to be almost preposterous.

However, on 3 December 1991 a visiting Justice sitting at Mobilong heard evidence, not only from the plaintiff and Mr Thompson but from other witnesses as well, and found Mr Thompson guilty of assault and other breaches of prison regulations.On the basis of this conviction, both defendants concede that the plaintiff was the victim of an offence and I so find.It is not necessary for me to consider the question of corroboration (see section 8(1b) of the Act).

However, both defendants rely upon section 7(9) of the Act which provides as follows:

"In determining an application for, and the quantum of, compensation, the Court must have regard to -

(a) any conduct on the part of the victim (whether or not forming part of the circumstances immediately surrounding the offence or injury) that contributed, directly or indirectly, to the commission of the offence, or to the injury of the victim; and

(b) Such other circumstances as it considers relevant."

I assume that the reference to "in determining an application for, and the quantum of, compensation" is intended to mean "in determining whether an applicant is entitled to compensation at all, and, if so, how much".

The passage "(whether or not forming part of the circumstances immediately surrounding the offence or injury)" was added to the sub-section as from 12 August 1993.The effect of section 14a is that those words should be ignored, at least as far as determining the quantum of compensation is concerned, in the case of an application regarding an offence committed before 12 August 1993. However, section 14a does not apply to the question of whether a person is entitled to compensation.In any event, the passage to which I have referred makes little difference in the present case because, even without that passage, I would have little difficulty in finding that the conduct of the plaintiff contributed to the commission of the offence.

In making this finding I accept that the conduct to which section 7(9) refers must be activity on the part of the victim which, when judged against objective standards, would be seen to have motivated the defendant to commit the offence (Wilson v State of South Australia (1988) 146 LSJS 362).The conduct must be provocative, intemperate, annoying or abusive conduct which is blameworthy and culpable, rather than a little imprudent or foolish (Diamond v State of South Australia (1900) 155 LSJS 391; Brown v Ween (1979) 21 SASR 72; Bradley v Ashman & State of South Australia (1983) 107 LSJS 107).I note also that it is for the defendant to prove, on the balance of probabilities, any conduct to which regard should be had under section 7(9) (Wilson, above).

I have no doubt that the plaintiff approached Mr Thompson in an abusive and foul mouthed way in a manner which contributed to the commission of the offence committed by Mr Thompson in the sense referred to in the authorities just mentioned.I therefore propose to have regard to the plaintiff's conduct by reducing by 50% the amount of any compensation to which he would otherwise be entitled.

I turn now to consideration of the assessment of that compensation.I must first assess compensation under ordinary common law principles, then consider whether the amount so assessed should be reduced by reason of the limitations provided in the Act as it stood at the time of the commission of the offence.

The plaintiff's injury was relatively minor.He had some stiches to his face above his eye and it was swollen for a while.The plaintiff was asked how the injury affected him at the time and he said "the whole attack wasn't really affecting me very much.At that stage I just pushed on and kept exercising and kept taking some pills for pain killers and it caused me to be cautious from everyone else and that's it".He referred to some "flashes" in his eye, but there was no medical evidence linking that with his injury.He did not claim that the injury sustained on this occasion interfered with his ability to work.

I assess the plaintiff's damages on the basis that he had some cuts on his forhead involving pain and discomfort for a fairly short time, both from the injury itself and from the insertion and removal of stiches.I would assess his compensation under ordinary common law principles at $4.000.By reason of the limitations set out in section 7(8) of the Act (as it stood before 12 August 1993) the amount of the compensation to be awarded under the Act would therefore be $2,000 plus << of $2.000.But for my finding that the plaintiff's conduct contributed to the commission of the offence, I would therefore have awarded compensation of $3,500.However, for the reasons already mentioned, I reduce that by 50% and award to the plaintiff the sum of $1,750.This award does not bear interest (see section 7(9c) of the Act).

I shall hear counsel on the question of costs and on the appropriate endorsements for the purposes of section 7(11) of the Act.

The second claim (file 612/94)

On 24 November 1991, the plaintiff was serving the same sentence of imprisonment but by this time had been transferred to Cadell.He was working in the kitchen/dining area of the prison and was hit on the back of the head by another prisoner.He momentarily lost consciousness and when he "came to" there were 4 or 5 prisoners surrounding him and one was beating him on the back of the head with a ceramic cup or mug.He said that "blood was running like you have opened tap water from the back of the head" and he was trying to get away from his assailants.He bumped or was pushed into a table on which there was a large urn holding about 20 litres of boiling water.He said that the boiling water spilt all over him and onto the floor "but it didn't burn me for some reason".He said that he then slipped on the wet floor and landed heavily on his knee.He got up and ran away and was given first aid and taken to hospital.

Charges were laid in the Holden Hill Magistrates Court in relation to this incident but no person was convicted, apparently because the Magistrate could not make a finding as to who actually committed the assault.In these circumstances the plaintiff's own evidence would ordinarily have to be "supported in a material particular by corroborative evidence" (see section 8(1b) of the Act).However, the defendant in relation to this claim concedes that the plaintiff was the victim of an offence and I so find.

The plaintiff must prove, on the balance of probabilities, a "causal connection between the commission of the offence and the injury ... to which the application relates" (section 8(1a)(b) of the Act).I have no difficulty in finding such a connection in relation to the plaintiff's head injury.However, the position is quite different as far as the alleged injury to his knee is concerned. The plaintiff's evidence in this respect makes very little sense. The proposition that he could have had 20 litres of boiling water tipped all over him without it burning him or at least producing some inflammation or discolouration of his skin that would have been noticed on his admission to hospital is simply ludicrous.Furthermore, the plaintiff did not make any complaint about his knee for some time after the incident.The dates in relation to complaints of this kind, both in the plaintiff's own evidence and in the evidence of Doctor Williams, are inconsistent and hopelessly confusing. But even when the plaintiff did make some complaint about problems with his knee, he did not, even on his own evidence, associate these problems with the assault at Cadell until over 12 months later when he saw some photographs that had been taken by the police when he was in the Waikerie Hospital.Two of the photographs (which were tendered in evidence) show small and relatively insignificant reddish marks on and just below his right patella.No mention of these marks or any injury to the knee is made in the report by the doctor who examined and treated the plaintiff at Waikerie Hospital.In fact the doctor reported that the plaintiff was discharged after two days "in apparently reasonable health apart from some soreness in the wrists and neck".

It is clear from the medical evidence that the plaintiff has experienced considerable problems with his knee, at least during the last two or three years.However, in my view, either the plaintiff has assumed, without any justification, that the problems with his knee must have been caused by the Cadell assault or he has simply made up the story about the urn full of boiling water in order to boost his chances of claiming compensation in relation to this assault.The plaintiff is no stranger to compensation claims.In about 1978, he was attacked while driving a bus in Victoria and received an injury to his head that he described as a "whiplash".As a victim of crime on that occasion, he received compensation of $10,000.In about 1982 he cut his fingers while employed by Pioneer Concrete and underwent tendon graft surgery. He received another $10,000 compensation for this injury

The plaintiff has failed to discharge the onus which lies upon him in relation to the causal connection between the problems with his knee and the offence to which his claim relates.I therefore make no award in relation to the knee injury nor, of course, for the cost of physiotherapy for treating that injury.

The plaintiff's Statement of Claim alleges that he has suffered numerous headaches and pain to his neck, shoulders and back and also an anxiety reaction including fear, loss of ability to concentrate, depression, change in personality and loss of confidence.No evidence was called in support of the claim in relation to an anxiety reaction.In any event, it seems to me to be unlikely that the plaintiff would have experienced such a reaction in view of the extremely active and sometimes violent life he has led.He claims to have served in a commando unit in the Australian Army Reserves and to have served in the Iraqui Army during the war against Iran between 1980 and 1982, during which time he served in the front lines and sometimes behind enemy lines.

The plaintiff complained that as a result of the injury to his head he had severe and persistent headaches, sometimes a feeling of dizziness "like everything going around", restriction of neck movement, difficulty in concentrating and inability to sleep.He said that he has not had one single night since he was released from prison where he could sleep without taking sleeping tablets.He said the headaches were "rather like electrical pain, like somebody electrocuting you from the back of the head".

Medical evidence was called from Dr G M Williams and Professor N R Jones.As I have mentioned, I found the evidence of Dr Williams frequently confusing, particularly in relation to dates that he had recorded as dates on which he saw the plaintiff or on which the plaintiff had told him that various things occurred.I found the evidence of Professor Jones more reliable, particularly in relation to the plaintiff's head injury and the relationship between that injury and the symptoms of which the plaintiff now complains.

Professor Jones said that the only neurosurgical problem that he could find was a degenerative change in the plaintiff's cervical spine revealed in x-rays taken in September 1992.He also found that the pain in the plaintiff's scalp could be due to trauma in the occipital nerve in the scalp.He considered that the degenerative changes in the cervical spine at the C2-3 level were unlikely to be due to the Cadell assault but could have been aggravated by the assault. Dr Williams also suggested that the degeneration in the cervical spine may have commenced before the assault, although he put it in this more obtuse way:"I don't think it's possible to say that there was no evidence of degeneration in that disk prior to the assault"

Professor Jones considered on the balance of probabilities that the pain of which the plaintiff complains in the back of his neck going up to his scalp could be related to the Cadell assault.He expressed the view that the following symptoms complained of by the plaintiff were not related to the injuries sustained in the Cadell assault:

- difficulty in concentrating

- friction in rotation of the head to the right or moving it backwards

- memory loss

- a pain commencing in about the area of the sinus up over the head down the back of the head to the neck including the left shoulder and down the middle of the back

- flashes in the right eye.

He also expressed the view that inability to sleep without sleeping tablets was "unlikely to be due to an occipital nerve lesion".

It is significant, and consistent with the view I have formed about the plaintiff's credibility, that the plaintiff did not mention to Professor Jones the injury he sustained when attacked while driving a bus in about 1978 (which he said in evidence was still causing intermittent problems at the time he went to prison in 1989).

The plaintiff is entitled to be compensated for his head injury and the headaches and pain resulting from that injury.Dr Williams said that the plaintiff had consulted him 6 to 8 times per year about these problems during the period from 1992 to 1995 inclusive.Facet joint injections had resulted in some limited and temporary relief of the pain.Dr Williams considered that it was unlikely that any further progress could be made and that the long term prognosis was that the situation was unlikely to change.Professor Jones expressed his opinion in this way:

"He's now had this pain for several years and he did get some improvement when we did a block of the nerve at the level of the spine.So we did a facet joint injection which, with local anaesthetic, blocked that nerve and he had some improvement following that, which suggests that there is potential for improvement of that pain with appropriate treatment.That's not always successful, so there is some potential for reversal of the pain if it is due to traumatic neuroma.I think even if that happened, he's still likely to have numbness in the distribution of that nerve".

In addition to his non-economic loss, the plaintiff also claims that he has suffered and will continue to suffer a loss of, or reduction in, earning capacity.However, in my view this has been exaggerated by the plaintiff in the same way as he exaggerated the symptoms of his injuries.Certainly any diminution in his earning capacity is much less significant, based only on his headaches and neck pain, than it would have been if I had found in his favour on all the symptoms of which he complains.Furthermore, as the headaches and neck pain are caused by a degenerative disease of the spine that I find commenced before the Cadell assault, but was aggravated to some extent by the assault, some of his pain and suffering and diminution in earning capacity would have been experienced even without the assault.The plaintiff is entitled to be compensated only to the extent of the aggravation of his pre-existing condition.

To the extent that the plaintiff claims an inability to work, or diminution in earning capacity, because of the injury to his knee I do not take this into account for the reasons previously mentioned.When he was asked "why does the injury to your head and neck and upper back interfere with your ability to work?"He answered "Because like I said, I cannot move normal like I used to be".I find this a little curious for two reasons.First, he made no mention of his headaches.Secondly, Professor Jones said in relation to a complaint about "friction in rotation of the head to the right or moving backwards":"I think that's related to his degenerative disease.In fact, on examination I thought his range of movement was really quite good".

I received no evidence about any employment undertaken or attempted by the plaintiff since his release from prison in 1992 or about difficulties in coping with any such employment if there was any.However, I will include in the plaintiff's compensation something for a diminution in his earning capacity, although I do not think that diminution is anything like as extensive as he claims.I note that the plaintiff is presently 52 years of age.

I assess the plaintiff's damages on the basis that the assault at Cadell caused him considerable pain from the head injuries actually sustained and the subsequent insertion and removal of stiches.I also include a component for some exacerbation of what I find was a pre-existing degenerative condition in his cervical spine and, as I have said, for some diminution in his earning capacity.I also make some allowance for the cost of future medical treatment.

I assess the plaintiff's compensation on common law principles at $22,000.The application of the limitations in section 7(8) of the Act (as it stood at the relevant time) requires that this award be converted to $2,000 + (($22,000 - $2,000) x .75), which is $17,000.Pursuant to section 7(9c) of the Act, no interest is payable on this award.

I shall hear counsel on the question of costs and on the appropriate endorsement for the purposes of section 7(11) of the Act.

Thursday 5 December 1996

After hearing argument from counsel and noting the non-attendance of Mr Thomson, His Honour said:

In the matter of Abdel-Ghani v State of South Australia and Thomson, action No. 613/94, there will be judgment for the plaintiff for $1,750 plus costs of $1,200 and disbursements of $986.For the purposes of section 7(11) of the Act I direct that there be an endorsement on the order to the effect that the court has no information before it as to the means of the person found guilty of the offence, that person not being present at this hearing.In that matter I also direct that there be an endorsement to the order pursuant to section 7(11)(b) of the Act that the plaintiff has received the sum of $220 from the State of South Australia and is unlikely to receive any other payments.

In the matter of Abdel-Ghani v State of South Australia, action No. 612/94, there will be judgment for the plaintiff for $17,000 plus costs of $1,200 and disbursements of $986.For the purposes of section 7(11)(b) (paragraph (a) of that sub-section not being applicable) I note that the plaintiff has received $220 from the State of South Australia and is not likely to receive any other payments from any other source.