Baker v State of S A & Anor No. Cicd-96-154 Judgment No. D3584

[1997] SADC 3584

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Bright

Hearing

14/03/97.

Catchwords

CRIMINAL INJURIES COMPENSATIONLacerations to arm.Special damages $410.40.Non-economic loss:15 x $1,000=$15,000.Economic Loss$20,000.Pursuant tosection 7(8)(a)(1) of the Act:$2,000, plus 3/4 balance, which is $18,000=$15,500.00.Total:$30,910.40.

Representation

Applicant DAVID BAKER:
Counsel: MR G ALGIE - Solicitors: REILLY, BASHEER, DOWNS, HUMPHRIES

Defendant STATE OF SOUTH AUSTRALIA:
Counsel: MS L CHAPMAN - Solicitors: CROWN SOLICITOR'S OFFICE

Defendant ALLISON POWELL:
No Attendance

CICD-96-154

Judgment No. D3584

24 March 1997

In The Matter of THE CRIMINAL INJURIES COMPENSATION ACT 1978

(Criminal Injuries Compensation Division)

DAVID BAKER v STATE OF SOUTH AUSTRALIA AND ALLISON POWELL

Criminal Injuries Compensation

Judge Bright

This is an application for Criminal Injuries compensation.The applicant sustained serious injury in an incident in the early hours of Saturday morning, 6 February, 1994.

On that date the applicant was 20 and the second respondent was 16.The applicant says that they had been boy and girl friends for about a year. During the afternoon of 5 February, there had been an argument between them. Beyond believing that that was not an argument about any matter of substance, the applicant does not recall the subject.The second respondent left the applicant's house and went to her nearby mother's house.

This argument must have been pretty noisy.Police attended.The applicant agreed that he was spoken to by police but denied that he was cautioned.He was not asked what was said.

The applicant also left his house and, at some stage, went to a friend's house, where he consumed "a couple" or "a few" beers, the number not being more accurately deposed to.He did not agree with the proposition that he became drunk.

At around midnight, he returned home.He said that he found a note pinned to the front door.It was from the second respondent.It was a request to the effect:

"Come and see me.Sort this out.Love, Allison."

The applicant said that he loved her and wished to sort things out.He went to her, at her mother's house.He knocked on the door and was invited in by the second respondent.Present were the applicant, the second respondent, and her two younger sisters, aged, the applicant believed about 11 or 12.

Discussion again became heated.The applicant said that he decided to leave, and stood up.He moved towards the door.At that stage, the second respondent threw a glass at him.It was thrown with some force, hitting him, he said, in the middle of his upper back.He said that it caused him no injuries.It did not break.

Then the second respondent threw a few punches, striking him in the side and back of his head, as he walked towards and opened the door.He said he raised his right arm, more or less horizontally at shoulder height, to ward her off. He admitted contact with the second respondent, but denied "pushing" her.In his statement to police, he did use that word.

He continued to walk out the door.As he did so, the second respondent slammed it.It struck him on his back and left upper arm.A glass pane in the door was the part of the door which made contact.The glass broke.

The applicant received a cut, which required stitches, to his left shoulder blade.Though he said there was "probably" still a scar there, he did not show it to me.I infer that it healed without significant trouble.The applicant fell, and, in falling, cut his forehead.Again, this appears to have healed without disability.

He also received a serious cut to the inner aspect of his left wrist, severing most of the median nerve, the flexor carpi radialis, palmaris longus and most of the flexor carpi ulnaris tendons, and the radial artery.

He was taken to hospital.Next morning, under general anaesthetic, Mr Patkin, a general surgeon, attempted microsurgical repair to the median nerve, and repaired the flexor carpi radialis and ulnaris tendons.He did not repair the palmaris longus.He ligated the severed ends of the radial artery, noting good co-lateral circulation of blood.

The wrist was strapped, or plastered, in fixed flexion, to minimise strain on the tendons.It remained in this state for about three months.Then it was straightened and placed in another cast for about two months.After this, physiotherapy was prescribed to mobilise the hand and arm.

The end result has not been good.There is a loss of about 60% of strength. There is an area of loss of sensation, particularly down the inner aspect of the index finger, both sides of the middle finger and the inner side of the ring finger.There is a significant loss of dexterity.He gets a good deal of pain and a "burning" sensation in his left forearm.It is a serious injury.

The second respondent did not appear, though served.I was told that this was expected by the Crown.Accordingly, any different version she may have had was not put before me.The second respondent may have had a somewhat different version.In cross-examination, the Crown put to the applicant:-

(a) the fact of the earlier argument;

(b) that police were called;

(c) that they (or one of them) spoke to the applicant;

(d) that he became drunk;

(e) that he pushed the second respondent, and

(f) that the thrown glass and the punches caused actual bodily harm to the

applicant.

The applicant accepted (a), (b) and (c).He denied (d) and (f), and partly acknowledged (e).

No statement was taken, in the formal sense, from the second respondent by police.The Crown sought to tender an apprehension report, containing a "brief summary" of what she said, and which was passed on to the local Youth Justice Co-ordinator.In turn, that became the basis of a Family Conference attended by the applicant, his father, the second respondent and, I think, others of her family.At that conference, the second respondent acknowledged guilt to a charge of assault occasioning actual bodily harm, in respect of which she was placed on a bond to be of good behaviour for three months.

The Crown claims that the basis of the plea was an acknowledgment ofpunches and the thrown glass, but that there was no acceptance of intention to assault with the door slamming.It was claimed that the injury complained of was not, therefore, the subject of a plea and was not caused by the acts pleaded to.

Evidently there was no transcript of the conference.The Crown sought to prove its claim by tendering the apprehension report together with a document prepared by the Youth Justice Co-ordinator.It was said that these documents would establish that the facts pleaded to were as the Crown claimed.

I was not prepared to admit the documents into evidence.They were not acknowledged by any of the parties.Insofar as they might have established the limited admissions claimed by the Crown, they were self-serving and were not admissions against interest of either respondent.Insofar as they recorded anything from the applicant, they were not said to be prior in consistent statements by him.Nor were they put to him.

In a final, desperate, throw, the Crown sought to tender them as "business records".In all of the circumstances, I concluded that their evidentiary weight was slight, that it was outweighed by the prejudice that might result, and that it would be contrary to the interests of justice to admit them.No explanation was given as to why the second respondent neither appeared, nor (of more relevance) was called, if she had some positive case to make.

Nevertheless, the fact remains that S8 of the Criminal Injuries Compensation Act (the "Act") requires proof beyond reasonable doubt of the offence to which the application refers and proof, on balance, of a causal link between that offence and the injury complained of.If no person has been brought to trial for the relevant offence, the evidence of the applicant as to the commission of the offence must be supported in a material particular by corroborative evidence.

I have the evidence of the applicant that the only bodily harm he suffered was when the door hit him.None occurred as a result of the thrown glass, or punches.The plea to assault occasioning actual bodily harm is not consistent with a plea to those incidents alone.But, having regard to the ingenuity and non-clarity of some pleas which come before the courts, and to the informality of a Family Conference before a Youth Justice Co-ordinator, I am loathe to rely totally on this point.There may have been a bruise or abrasion sufficient to amount to bodily harm, though there is no evidence of it.

Let me suppose that the plea did not encompass slamming the door.If so, it would be for the applicant to prove beyond reasonable doubt, with corroboration, that the slamming of the door amounted to an offence and caused the injury.There is no doubt on the evidence that the slamming of the door caused the injury to the wrist.The applicant says that the second respondent slammed the door.His father attended the scene and says that the second respondent was upset and crying.She said that she was sorry and had not meant it.

Against the background of the punches and the thrown glass, I would conclude beyond reasonable doubt that the door was deliberately slammed, either with the actual intention that it strike the applicant or with reckless indifference to whether it would, or not.It may well have been the case that the second respondent intended no serious harm, but that is not enough to exonerate her. The fact of the door slamming is corroborated by the admission made to the applicant's father and by the injuries to the applicant himself.Both gave evidence of broken glass.

Insofar as it is necessary, I hold that the applicant has established beyond reasonable doubt that the second respondent assaulted him, causing actual bodily harm in the form of the injuries complained of.He has proved his claim, as to liability.

The Crown further asks me to reduce any award pursuant to section 7(9) of the Act, having regard to his own conduct.I accept that this includes the afternoon argument, an argument sufficiently noisy to attract police.It includes the admitted fact that he consumed a few beers and went (on invitation) to the second respondent's house late at night.I accept that, after the thrown glass and the punches, the applicant made contact with the second respondent, by raising his arm - perhaps pushing her to a limited extent.

I am not persuaded that any or all of these matters, or other circumstances apparent to me on the evidence, should result in me reducing the entitlement of the applicant.I would also note that there are suggestions in the medical reports of a want of co-operation by the applicant in his rehabilitation.If so, the evidence is not clear enough to establish it.No claim offailure to mitigate was made by the Crown.

I must assess the applicant's entitlement to non-economic loss on the scale 0-50

x $1,000.I must also assess special damages and economic loss.

The easiest component is special damages.It appears that most expenses were met by Medicare (or not pursued by the providers).The only account tendered was an ambulance account for $410.40.I allow it.

On quantum, the only evidence consists of three reports from Mr Patkin, the general surgeon, and the oral evidence of the applicant and his father.I have no reason to doubt the evidence of Mr Patkin as to the severity of the injury, which I have already recited.It is permanent, in the sense that, although some improvement might, in theory, be obtained with further surgery, that is, in all circumstances of this case, not likely and is not likely to be attempted.I assess his non-economic loss at 15 x $1,000=$15,000.

The most difficult aspect of the claim is the loss of earnings and of earning capacity.At the time of the injury the applicant was 20.He had left school after Year 11 which, he says, he passed.He says he was "alright" at Mathematics.I think he would accept that, if he is a potential Rhodes scholar, he keeps it well hidden.

He has never had permanent work - either before or after the accident.He has "done some courses at TAFE", but did not say what they were.His father, an entirely credible witness, is a radio technician, who installs car telephones and radios, and who builds and erects aerials and satellite dishes for TV reception.He and the applicant live at Whyalla.At times, the father gets busy and, in the past, used to call on his son for help.For example, he would get the applicant to install car radios and telephones.He estimated that the son installed about 20 a year before the accident.He would pay him $25.00 per installation.The applicant also referred to assisting his father in the erection of aerials and satellite dishes.

The applicant has never lodged a tax return.He said that the Department of Social Security issued Group Certificates, but he produced none.His father believed that his (the father's) records would show the payments made by him to the applicant - but they were not produced.

After the accident, and after convalescence, the applicant's father got him to try to resume work installing car telephones.It is fiddly, awkward work. The applicant was so slow that his father quickly lost patience and ceased to use him.He could see that the applicant had serious difficulty and understood it.Though not calling for particularly great strength, installation work involves fine manipulative skills with tools, screws, nuts and bolts and so on.I have no doubt that the applicant is not fit for work involving dexterity or strength in his left hand.

There is no evidence of any other paid employment.Mr Patkin, in June 1994, noted that should he end up with

"a stiff and partly anaesthetic left hand, his ability to use it for both fine work and heavy work will be seriously impaired, to the point to where it will be difficult for him to be gainfully employed."

In August 1995, he wrote:-

"I see a mild restriction of Mr Warren's (sic) ability to perform that work in the absence of his injury, more specifically heavy labouring work, which he may not have undertaken in view of his general health."

In a further report in October 1995, he repeated his second report virtually verbatim, though correcting the name of the subject to that of the applicant. I do not know what he was referring to in the comments I have set out.No evidence was led by either side about work the applicant may not have been suited to "in view of his general health".In the first report is the remark:

"He badly needed counselling about his general personal problems".

I was not told what they were.

Mr Patkin notes a significant injury to the applicant's right index finger.It is later said to have been to the left, but that was finally corrected to be to the right - which is the applicant's evidence to me.However, the point is that Mr Patkin records that he was first told that the applicant cut it while washing dishes, later that it was an old boxing injury.Even allowing for Mr Patkin's inaccuracies, it suggests some unreliability as historian on the part of the applicant.

Mr Patkin explored the injury, but elected not to affect a tendon repair:

"because of [the applicant's] failure to keep physiotherapy appointments"

and the likelihood that, without physiotherapy, there would be a worsening of the situation.Mr Patkin noted that various consultations were missed - as I read him, somewhat capriciously, and to Mr Patkin's disappointment.The applicant did tell me that he stopped going to the physiotherapist, because the bills were mounting up and he could not afford to.

In August 1995, Mr Patkin noted that

"he had to hold small objects more tightly, and sometimes dropped them.His left hand felt weaker, but he was able to work at doing up old cars alright."

The only other information I have about the applicant's physical state before the injury is that he worked out with weights at a gym regularly.He was able to press from his chest 200 pounds, and hoped to improve to 250-300 pounds. He then weighed "in the 70's" kilograms, but says that he is now "in the 60's", although he rarely weighed himself then or now.

I was given no evidence of attempts to find work, or of plans for the future. I have no evidence of his work capacity before, or after the accident.All I can find proved is that, if he had the capacity to work either in tasks requiring left hand strength or dexterity, or in heavy labouring, that ability is now seriously compromised.

The personal and health problems hinted at by Mr Patkin give rise to considerable caution on my part.The applicant did not seek to explain them in any way.If the situation was clearcut, I expect the Crown would have led evidence of inability to work in any event - but it did not, and had no onus on it to do so.I must do the best I can with the evidence I have, without actually making it up!

I am not in a position to conclude that the applicant had no earning capacity. He was 20 when injured, and is now 23.His father used to get him to do a bit of work.His appearance in the box was not that of a man physically unable ever to have worked - quite the contrary.If it be the case that he had personality or psychiatric problems, they were not explained in any way.I can only conclude that it is probable that he had some earning capacity.With a whole lifetime ahead of him, it must have had a not inconsiderable value. Whatever it was, it is now badly compromised.

The true figure may be much higher than what I am about to award, which is, frankly, on the basis that I cannot see that it is likely to be less, but, if so, there is no evidence.I assess economic loss, past and future, at $20,000.

I summarise the assessment:-

Special Damages410.40

Non-economic loss 15 x $1,00015,000.00

Economic loss

$20,000. Pursuant to section 7(8)(a)(1) of the Act :

$2,000, plus << balance, which is$18,000 =15,500.00

TOTAL$_30,910.40

Monday, 24 March, 1997

Judgment given.His Honour orders that costs be taxed, unless agreed within the next 21 days.