Bubnowski v State of South Australia No. Cicd-01-922

BUBNOWSKI V STATE OF SOUTH AUSTRALIA
[2003] SADC 14
Judge Kitchen
Civil

This application, made pursuant to Section 7(1) of the Criminal Injuries Compensation Act 1978 (the Act), is for compensation for injury the plaintiff claims to have suffered as the victim of an offence committed on 19^th April 2001 at Prospect.
In the Statement of Claim the offence is alleged to have been “an offence of home invasion committed by (a) person or persons unknown”. At trial, and by consent, the description of the offence was amended to substitute for the words “home invasion” the words “aggravated serious criminal trespass in a place of residence”.
In April 2001, the plaintiff’s son, Adam, then aged about 20 years, and his girlfriend, Karina, were living with the plaintiff at the house at Davenport Terrace, Prospect which the plaintiff had rented from the South Australian Housing Trust for upwards of seventeen years. Adam had always lived with the plaintiff.
At about 5.30 a.m. on 19^th April 2001 Karina telephoned the plaintiff, who was staying overnight at the house of her friend Renee, and said “Please come home. There has been aborigines in the house”. The plaintiff immediately went to her house where she saw that the contents of drawers and cupboards were strewn about, and there was human faeces in the garden and on clothing which had been hanging on a line under the verandah; computer disks, a computer game and clothing belonging to Adam had been stolen. She saw Adam and Karina to be in a state of shock and fear. The plaintiff related:
(P.23-24)
A“… Adam told me that the aborigines they came in armed with a – Adam and Karina woke up to the light being turned on. As I recall there were five aborigines standing there. One was holding a spear gun pointed at them and told them not to move, not to look at them. One had a shovel, one was holding a knife and one had a log or a piece of wood or something. Then they were putting their jumpers around their heads telling them not to look. The aborigines were saying things like, oh that’s an excellent CD collection do you mind if we have it, as they were packing it into like doonas.
QNow without doubting what you are saying you are basing this on what Adam told you.
AThat’s correct.
QHow was Adam appearing when he was telling you all this.
AAdam was absolutely devastated and wanted to leave the premises immediately. We couldn’t because media had shown up with cameras outside and Adam was just going absolutely nuts inside.
QHow did it effect you, how did you feel about it.
AI was absolutely devastated myself. My body was shaking but I knew that I just had to keep Adam calm. All my life is about keeping Adam calm so he doesn’t end up back in Glenside. It’s just like, you just keep on going and going and going. I finally got Adam out and I took him to my mother’s place.
QAnd Karina as well.
AAnd Karina, yes.”
The plaintiff said she telephoned the police and officers attended at the house.
The court was informed that no person has been brought to trial charged with the offence alleged by the plaintiff, from which I infer that the alleged offenders were and are unknown. In such a case the proceedings for compensation under the Act are against the State of South Australia only; Section 7(5) of the Act and see The State of South Australia v Bole (1994) 64 SASR 379, 380.
Section 8(1) of the Act provides:
“8. (1)       Subject to this Act, any fact to be proved by a claimant in proceedings under this Act is sufficiently proved if it is proved on the balance of probabilities.
(1a)      No order for compensation may be made (except by consent) on an application under this Act unless -
(a)    the commission of the offence to which the application relates has been proved beyond reasonable doubt; and
(b)    a causal connection between the commission of the offence and the injury or death to which the application relates has been proved on the balance of probabilities.
(1b)      Where an order for compensation is sought in respect of an offence, and no person has been brought to trial charged with the offence, the evidence of the claimant as to the commission of the offence, unless supported in a material particular by corroborative evidence, is not sufficient to establish the commission of the offence.”
In his opening address, counsel for the plaintiff said:
(P.3-4)
“I can inform the court that pursuant to the Criminal Injuries Compensation Act where no offender is caught, and this is the case here, for an action to lie, the claim must be proved beyond reasonable doubt with corroborative evidence. By agreement with the Crown it is an agreed fact in this matter that a crime was committed in the nature that I have just described and the Crown will concede that there is corroboration, hence my friend’s comment, and I agree with him, that the question for your Honour’s determination in this matter is one of quantum.”
That is the basis on which the plaintiff’s case was conducted. Other than the plaintiff’s evidence of what the plaintiff said she was told by Adam and Karina concerning what occurred at the house, and what she saw to be her house in “total disarray”, no evidence was called to prove the alleged offence, or to corroborate the plaintiff’s evidence of it. Counsel for the defendant did not demur to that which counsel for the plaintiff said was an agreed fact, namely that the alleged offence was committed and there is corroborative evidence to establish the commission of it. I proceed on the basis implicitly accepted by counsel for the defendant that the defendant may, formally, (apparently perhaps, at least in part, relying on S.8(1a)) admit that the alleged offence was committed and there is corroborative evidence to establish it was committed, the latter I infer being what Adam and Karina would have said if called (that is the plaintiff’s evidence of what they told her) the defendant not requiring them to be called. As Erle J said in R v Higham ([1857] El & Bl 577 at p563 (119 ER 1352, at p. 1355)) in a passage quoted with approval by Napier CJ in re Robson [1952] SASR 101:
“On all trials much is taken by all parties as assumed, and only those facts really in dispute strictly proved. In such cases what is assumed is in proof.”
I turn then to what was the live issue between the parties, namely the nature and extent of the plaintiff’s injuries arising from the offence.
The plaintiff was born on 17^th April 1958. She described her father as an alcoholic who, when drunk, was physically abusive toward her and her siblings. After completing her schooling in Year 10 the plaintiff obtained work in supermarkets until, at age 17 years, she enlisted in the Royal Australian Air Force in which she served for three years before being dishonourably discharged for smoking cannabis.
In 1981 the plaintiff gave birth to Adam, with whose father she did not have a long-term relationship, and thereafter she devoted her time to Adam’s upbringing and the life of the school which he attended, but she also obtained by study at a TAFE a qualification in primary health.
When Adam was about 12 years old he began to exhibit behavioural problems which resulted in him being suspended from school on a number of occasions, at one time for six months. He was diagnosed to have the condition attention deficit disorder. Later, when he was 15 years old, Adam was diagnosed by Dr John Govan to be suffering from a schizo-affective disorder for which a regimen of medication was prescribed – there were side-effects and Adam could not understand why it was necessary for him to take medication. The plaintiff became Adam’s full-time carer, receiving a pension in that capacity, which was reduced to an extent when the plaintiff obtained paid employment to supplement her pension and also “to have some time for myself and go to work because caring for Adam was really really hard and (I) didn’t really have a social life or anything” (T13).
The plaintiff’s evidence is that Adam was prone to be angry and aggressive. The plaintiff said her task was to maintain a calm demeanour and create a home environment in the nature of a sanctuary for Adam who, except when he was occupied in the rear garden of the house in Davenport Terrace, spent much of his time inside the house locked in his room. Adam’s activities with her in the garden, the plaintiff said, “was the only bit of outside world that Adam really had”. There were tendered to the court photographs depicting the rear garden area of the house and also a number of certificates, dated in the years between 1990 and 1998, which recorded that the garden had been awarded a prize in what I take to have been annual competitions conducted by the South Australian Housing Trust.
The plaintiff said that caring for Adam was very stressful for her and, as a consequence, in January 1997 she also became, and continues to be, a patient of Dr Govan who treated her for depression. Dr Govan, who gave evidence, successively prescribed for the plaintiff’s treatment Aropax, Zoloft and Prozac. January 1997 was the month when Adam became closely acquainted with Karina whom the plaintiff and Adam had first met in 1996; by 1998 Karina was a regular visitor to the plaintiff’s house and she would sometimes stay overnight.
The plaintiff said that in the period of twelve months before the offence on 19^th April 2001 she “was getting on really well” – Adam was becoming more independent and less possessive toward her so that she was able to spend one or two nights each week at the house of Renee, her male friend of about twelve years, and she obtained work in August 2000 (for longer hours than other casual work she previously had) with a wholesaler and retailer of artificial flowers where she was employed (as appears in the time book she maintained) for a different number of hours each week – the plaintiff said she worked “between 14 and 17 (hours per week) on an average” the income from which she declared to Certrelink and her carers pension was reduced accordingly; in the financial year ended 30 June 2001 the plaintiff’s gross income from her employment with the florist was $9,973. The plaintiff said, she was not challenged and I accept, that her employment with the florist would have continued to be available to her.
The plaintiff’s relationship with Renee began in 1992. In that year she and Renee lived together at the Davenport Terrace house, but after some six weeks the plaintiff asked him to leave; she said Renee had, and continues to have, problems with alcohol “and I didn’t want Adam around an alcoholic, listening to abuse and nastiness”.
Immediately after the offence on 19 April 2001, the plaintiff, Adam and Karina went to stay at her mother’s house, but after about two weeks the plaintiff’s mother “couldn’t cope with Adam’s illness. She was telling me that I should have him locked up again because he was going to harm somebody or harm her or harm whoever just happened to be in Adam’s way. That caused a lot of friction between my mother and myself. So I asked Adam if he wanted to go away and he said yes so I took him to Kangaroo Island.” Karina accompanied them. When, after about three days on the Island, the plaintiff wanted to return to Adelaide, Adam refused to leave or to live again in the Davenport Terrace house. The plaintiff found accommodation for Adam and Karina on the Island and then returned to Adelaide; she described:
P25
"AI was feeling absolutely terrible leaving my son there that needed help. There was nothing I could really do for him. I had to come back because I was supposed to get a transfer from the house because I couldn’t imagine living in there again and with Adam not wanting to come back. I knew it would be really hard for Karina to have to cope with Adam and his moods and how he gets. He didn’t have his CDs, he didn’t have his games, he didn’t have anything that he had at home. Then I started getting phone calls that Adam was suicidal and then I’d have to get in the car and I’d drive to Cape Jervis, get on the ferry, go and see Adam and try to calm him down.
QAbout how often did you visit Adam in that period.
AIn approximately six weeks I think I visited him four times.
QAnd what effect does this have upon you and your health.
AIt was just overwhelming but I just kept on going.
QWhen you say overwhelming can you expand on that what you mean.
AWhile I was driving to Cape Jervis a lot of the times I knew I shouldn’t have even been fit to be behind the wheel and driving. I didn’t know what to expect. It was like a two hour drive just to get to Cape Jervis and I was all by myself.”
On returning from the Island the plaintiff lived at her mother’s house for a few days but left there after a falling out with her mother, concerning Adam, and returned to the house in Davenport Terrace where she locked and secured doors confining herself to one room. She said she slept badly, was drained of energy and trying to cope with making an insurance claim for the items stolen on 19^th April 2001. The plaintiff reduced her hours of work to four each week on the advice of her general practitioner, Dr Dillon. The plaintiff said she had been assessed to be unfit for work but she prevailed upon her doctor to allow her to work for 4 hours per week so that her job would not be given to someone else; however, the plaintiff said, she was having difficulty coping with the work. In the month of July 2001 the plaintiff ceased work. She did not take up paid employment again until May 2002.
The plaintiff described that on a day in July 2001, during the last week in which she worked at the florists, (in cross-examination she fixed the day to have been Wednesday 4^th July 2001) she drove her employer’s vehicle to the North Park Shopping Centre intending to obtain orders for flowers. In the car park of the shopping centre a minor collision occurred between her vehicle and that of a male driver when he reversed into the side of the vehicle she was driving. The other driver angrily accused the plaintiff of driving her vehicle into his car which he refused to move. The plaintiff said she was shaking and began to abuse the other driver (in cross-examination she agreed she “felt like killing the man”); it would appear tempers became frayed, police officers attended and after they left the scene the plaintiff drove back to her employer’s premises and told them “I’m really sorry but I can’t be doing any more work. That didn’t mean every (sic) again. That just was like that day I couldn’t work any more”. The plaintiff related:-
P29-31
"AThe next day after not having a lot of sleep and everything I was just feeling like my whole life was just total, just a total waste of time. Everything that I’d worked for hard to achieve with my son had just been just taken away. My son was in Kangaroo Island. There was nothing I could do for him. I was missing him. I hated being in the house. I had the option of going for the transfer. That was a dilemma for me giving up that house because of how long I had been there and my father had done a lot of work in there as well and he’d recently passed away which is supposed to be another one of my stresses. I will just go on to add now I did not need to grieve for my father. He passed away and he was lucky to have passed away, he didn’t suffer at all. He was a very sick man.
QWhen did your father pass away.
AIn 1999.
QSo that was some two years before this.
AYes, that’s right. But I still, that was a dilemma for me in giving up the house or having a transfer.
QSo the day after that you felt really bad.
AI felt really terrible.
QCould you tell the court what happened the next day, which led to your admission in hospital.
AI found out that Adam and Karina were coming back; my mum had come to my partners place to let me know and that to come to her place straight away because they were going there and all I could basically think of was – I remember the last time we were all there; I was a prisoner in your(sic) house. She couldn’t stand Adam. All she wanted me to do was to have him locked up all the time; and the thought of having to care for Adam again was just – I just could not do it. There was no way I could ever think of going at my mum’s place because Adam would never come back to Prospect, and trying to care for him; and I just thought, no, I just go on this any more. So I started taking some tablets and I kept taking as many tablets as I could and then I woke up on Friday morning and – I must have gone to sleep again and I woke again up on Friday night and I went to the chemist and I got a script filled out and I took all of them and then on Saturday morning I woke up again. Then Adam came and I had to tell him what I’d done.”
The plaintiff was admitted to the Royal Adelaide Hospital on Saturday, 7^th July 2001 for “polypharmacy overdose” (see Exhibit P4) and detained there until 1^st August 2001.
From in about May 2001 until in May 2002 the plaintiff received sickness benefit payments; the carer’s pension had ceased in May 2001 because Adam was living on Kangaroo Island with, and being cared for by, Karina.
After Adam and Karina returned from the Island in July 2001 they went to live with the plaintiff’s mother but within a few weeks, after conflict between Adam and his grandmother, that arrangement broke down and they rented a house together at Forreston where they still live. When the plaintiff was discharged from hospital on 1^st August 2001 she went to live at Renee’s house and, as I understand, she did not return to reside at Davenport Terrace until about twelve months later; she installed some security devices in the house.
The plaintiff said that she had read the reports of the several medical witnesses who were called, Drs Govan, Blakemore and Kalnins, each of whom recorded and commented on aspects of her life including problems with her mother and with Renee, the death of her father and the motor vehicle accident. The topic of gambling by the plaintiff also appears in some of the reports and in the records of the Royal Adelaide Hospital; as to gambling, the plaintiff said she “did not have a gambling problem”; she said the reason for the mention of her “gambling” in the medical records was:
(P32-33)
"A… when I thought about committing suicide , I couldn’t write that mum couldn’t look after him any more so I told him I had bad problems and I couldn’t handle it any more because I couldn’t let him think that I couldn’t look after him.
QDo I understand you to be saying you wrote a note to your son which referred to gambling to shield him, from writing to your son saying I’m killing myself because –
AThat’s right and that’s why it mentioned in my – in the hospital report.”
The plaintiff rejected that the reason for the depression leading to her overdosing with drugs on 6^th July 2001 was the occurrence of the motor car collision.
The plaintiff related that before the events at her house in April 2001, and under Dr Govan’s care, she could work out her “problems” and find solutions but now “its out of my reach for any sort of solution, its just totally ripped my life apart, that’s all I can say, it has totally destroyed my life … it is the worst thing that has ever happened to me, basically because I put so much work and time into everything into just trying to help my son, now he’s worse off”.
The plaintiff described her physical and mental health during the approximately twelve months to April 2002 to be that she had no energy, suffered panic attacks, broke out in sweats, had trouble sleeping, experienced “terrible” dreams, gained about twenty-eight kilograms in weight and she could not work. After the offence at her house in April 2001, the plaintiff’s regimen of medication was changed – she described there were adverse side-effects and over a period of time she reduced her intake of Efexor and Olanzapine.

In May 2002 the plaintiff, after a number of requests by her former employer, returned to work as a florist progressively increasing the hours she worked to up to twenty hours per week until, in July 2002 she took up work with Arnotts which, together with her work at the florist, provided more aggregate hours and therefore a greater weekly wage.
The plaintiff said that since returning to work at a job she liked, and going back to live at her house in Davenport Terrace a few months ago, she is “trying to make things work out alright”.
(P33)
"Q“Are you still troubled by any of the symptoms and problems that were caused by the home invasion.
AThey’re still all evident in my life.
QIn what way.
AIn that Adam isn’t settled yet.”
She related that Adam, whom she sees about once each week, and who telephones her almost every day, is very, very depressed and “he’s very angry, him and Karina aren’t getting on very well, he cries”.
In cross-examination the plaintiff agreed that she had feelings of guilt concerning Adam’s illness and she had been very unhappy about what she perceived to be the failure of the education authorities to cater for his needs; that her relationship with Renee had been punctuated by his, approximately weekly, nasty and aggressive behaviour toward her when he was affected by alcohol, and that the death of her father in 1999 and “an affair” Renee had in the same year were traumatic events in her life. She agreed that prior to April 2001 she was “suffering from major depression” which had been present for some time.
Pressed about the topic of gambling, the plaintiff said she played “pokies” with her mother once or twice a month but she did not go into debt on that account and the reference in the hospital notes (Exhibit P4) to her having “gambled away” some of Adam’s money was wrong – Adam believed that had happened because of her “suicide” note (to the effect she had debts because of gambling) and information he had from an insurance company to the effect the claim for the items stolen in April 2001 had been paid out, which the plaintiff said was not correct. The plaintiff also said that when she was in hospital she did not inform a social worker (as the social worker recorded) her car had been repossessed because of gambling.
It emerged in cross-examination that the persons who entered the plaintiff’s house on 19^th April 2001 also stripped material from three mature cannabis plants which were being grown in a room of the house; the plaintiff said the cannabis plants were not being grown for her use, although she then (and now) smokes cannabis.
For the purpose of preparing his report dated 15 November 2001 (Exhibit P1), Dr Govan interviewed the plaintiff on 14 November 2001. Dr Govan is an experienced psychiatrist – he has been a fellow of the Royal Australian & New Zealand College of Psychiatrists since 1980 and has held senior positions as a visiting psychiatrist at a number of hospitals.
In his report, Dr Govan stated that he first met the plaintiff in August 1996 when Adam was referred to him by Dr Awwad; the plaintiff appeared to him “to be a very functional kind of person, and to be in regular work” and, although in January 1997,the plaintiff asked him for help with her own depression, for which he prescribed medication for her, “(the plaintiff) has always, despite the seriousness of her son’s illness, and the very great difficulties in her own personal life, in the past seemed to be reasonably coping”. In his report Dr Govan expressed the opinion that the plaintiff “is not coping now and is, as noted, in the middle of completely insoluble dilemmas” which he said, earlier in the report, were
·conflict between Adam and the plaintiff’s mother, arising from the time Adam lived at the plaintiff’s mother’s house when he returned from Kangaroo Island, such that the plaintiff’s mother will not speak to Adam
·the plaintiff’s inability to contemplate living on a permanent basis with Renee but living with him because she would be lonely living by herself at Davenport Terrace, and fearful of doing so, but she was reluctant to give up the house because of the work her father had put into it.
Dr Govan concluded his report thus:
“(The plaintiff’s) mind has been almost totally preoccupied with the above mentioned dilemmas, for which she is really not able to work at the moment, and although apparently not suffering from hallucinations, or delusions, the disintegration of her coping skills and personality are so great as to currently justify a diagnosis of a schizoaffective disorder; there are aspects of her condition similar to a Post Traumatic Stress Disorder, though she was not at the home when the home invasion occurred. Adam did ring her immediately thereafter.
It appears that her ability to think and to reason has been somewhat compromised by the series of disasters, and the totally insoluble dilemmas with which she had been presented. She is totally unfit for work.”
Dr Govan said that prior to the events on 19^th April 2001 the plaintiff had consulted him in each of the years 1997-2000; it appears there were about three consultations per year except in 1999 when there were eight – he had last seen the plaintiff on 20^th August 2000. His view at that time was the plaintiff appeared to have been coping with her life, working and caring for Adam, though with a degree of depression “off and on” and at times “confused about life”. The plaintiff consulted him again on 9^th May, 18^th May and 1^st June 2001. In his view the invasion of the plaintiff’s home, which apparently made it impossible for Adam to continue living in the house, totally disrupted the continuity of the plaintiff’s life and it was the loss of the psychological and domestic structure of living with Adam and Karina which was most troublesome to the plaintiff, compounded upon by her fear of living alone in the house. Additionally Dr Govan said the plaintiff “lost her job apparently in relation to a minor motor accident and she didn’t have the continuity of her work”.
In a report dated 18^th February 2002 (Exhibit D3) Dr Kalnins wrote:
“(the plaintiff) has suffered from major depression. I do not think there are any features at this stage of schizophrenia or schizo-affective disorder that I am aware of. I think her depression has been evolving over a period of time. I thus cannot agree it “arose from the subject offence”.”
Concerning that opinion Dr Govan, who also saw the plaintiff in February 2002, said:
(P94-95)
"AI could not say that it simply arose from the subject offence. I believe a depression which was evolving was markedly exacerbated by the subject offence on looking at all my notes and others’ reports. I did not say that she had in fact a schizo-affective illness but simply said that it was reminiscent of, because she appeared to have a degree of thought disorder and be unduly frightened in a number of ways which seemed to me not rational. But this is the sort of feature that one sees in severe major depression from time to time. I wondered whether she was going to be developing that. On a subsequent occasion it seemed that she was very much more rational and very much more in charge of herself and had I made a report on the basis of my consultation with her on 5 February that would not have been something that I would have said at the time.”
Dr Govan said the invasion of the plaintiff’s home was the event “that exacerbated her depression most substantially because of the consequences therefrom”. In his opinion the plaintiff’s motor car accident, although it “seemed” to have precipitated the plaintiff ceasing to work “which had been something which helped the plaintiff to cope” and was therefore significant, it was not “anything like as major as the home invasion”. He went on to say that by February 2002, the plaintiff was taking a very low dose of anti-psychotic medication which, to an extent, could account for her improvement and she seemed much more optimistic, more in charge of herself, apparently content with Adam’s and Karina’s living arrangements and speaking of taking up voluntary work. In May 2002, the last time Dr Govan saw the plaintiff, the plaintiff told him she was sleeping better and intending to look for a job when she moved back to live at Davenport Terrace which she anticipated would be the week-end following her consultation with Dr Govan.
In cross-examination Dr Govan said that particular episodes of irrational behaviour on Adam’s part, while being cared for by the plaintiff, would be unlikely to exacerbate the plaintiff’s own depression – the cumulative strain of looking after Adam might elevate her depression but “one of the things that oddly enough would keep a woman going was the sense of purpose in looking after her son which is why, in my belief, the sudden stopping of looking after her son was such a major event in her life”.
Concerning the motor car accident, Dr Govan said that features of the plaintiff’s condition as he (I infer) observed it to be on the occasions he saw her in May and June 2001 were major depression and, as I understood his evidence, (pages 106/107) it is possible the plaintiff was disinhibited and lost self-control which could explain the plaintiff’s reaction at the scene to the minor event of the collision. He agreed that, if the plaintiff’s home had not been invaded, it is possible the collision could have resulted in what followed but in his opinion (in re-examination) that is unlikely.
Dr Blakemore examined the plaintiff on 14^th May 2002 for the purpose of providing his report. Dr Blakemore also has been a fellow of the Royal Australian and New Zealand College of Psychiatrists since 1979. In his report Dr Blakemore wrote:
“Following the home invasion, Mrs Bubnowski appears to have become particularly distressed by the effect of it on her son, who refused to live in the house anymore, and he had become agitated, homicidal, suicidal, and who was living for a time, as above mentioned, on Kangaroo Island, with Mrs Bubnowski frequently notified by his girlfriend when he was suicidal. Mrs Bubnowski gives a history of having been very, very close to her son always, and gives a history of becoming unwell, depressed with the pressures to help her son, and her perceived inability to do so, particularly when he was living a long way away, missing him, with her vivid imagination at times of what he may have experienced in a distressing way during the home invasion, with a minor motor accident and the abuse by the driver whose vehicle hit her work vehicle appearing to precipitate the more marked suicidal ideation and the overdosage early in July.
That is, Mrs Bubnowski appears to have developed a serious major depressive illness as a result of the effects of the home invasion on her vulnerable son, without her having been present in the house at the time, and from which she has now recovered.
2.Mrs Bubnowski, as above, has been receiving anti-depressent and anti-psychotic medication, with a period of hospitalisation in July 2001, and subsequent medication and supportive psychotherapy from the psychiatrist, Dr Govan.
3.Mrs Bubnowski appears now to have recovered from this depressive illness, and she said she is discussing with Dr Govan further reduction and possibly withdrawal of the remaining anti-depressant medication, the balance of probabilities being that she should not suffer any further emotional illness as a result of the home invasion and the effects on her son, just as she relates that her son has improved also.”
Dr Blakemore said that he had examined Adam, some time after the events of 19^th April 2001, and found him then to be very disturbed and still homicidal and suicidal at times; Dr Blakemore commented “I shudder to think what he would have been like in those early months”, that is following the invasion of the plaintiff’s home. That he had had an opportunity to examine Adam, Dr Blakemore judged, gave him an advantage over Dr Kalnins with whose opinion (that the plaintiff’s major depression had been evolving over a period of time and the depression had not arisen from the invasion of her house) he disagreed. Dr Blakemore said the history he had taken from the plaintiff (and I find it is that which, although more detailed, was given by the plaintiff in her evidence) showed in his opinion there was no indication that the plaintiff, before 19^th April 2001, was developing “any more depression than she’d had for years prior to this home invasion”, but the plaintiff’s experiences in the events immediately after that occurred:
(P60-61)
"A… logically is certainly sufficient to imagine being a very unusual stress and enough to precipitate the sort of depression that it did with the content that it did. There’s no indication at all that she was deteriorating like this prior to this home invasion. It makes no sense at all – the illness make no sense without considering the home invasion and its effect on her son and on her as a major cause.”
In his opinion the death of the plaintiff’s father, the behaviour of Renee toward the plaintiff and the plaintiff’s gambling habits “were part of her life. There is no indication that these or any other things were causing emotional deterioration”.
Concerning the motor vehicle collision in which the plaintiff was involved in July 2001 Dr Blakemore said he tended to agree with the plaintiff that it appeared to be “the straw that broke the camel’s back. She just couldn’t tolerate that with everything else that she was going through”.
Dr Blakemore’s opinion is that the plaintiff became very ill with major depression as a result of the invasion of her house, which incapacitated her and it is fortunate that she is “pretty well out of it now”.
In cross-examination Dr Blakemore was taken to the hospital notes referring to the plaintiff’s gambling; he said gambling is often a symptom of depression and as he understood the plaintiff’s history to him on that topic it was that after the invasion of her home she engaged in what he described as “unwell” gambling, that is a need to be in the company of, but not socialise with, others playing, in the plaintiff’s case, poker machines. He said the plaintiff did not give him any history of losing large sums of money in gambling and neither did she tell him (nor I interpolate Drs Govan or Kalnins) of a note giving gambling as the cause of her over-dosing with drugs in July 2001.
Dr Blakemore answered further questions concerning the part played in the plaintiff’s condition by her motor car collision. It was put to him that were a person to have been suffering a depression for four years, was being treated with anti-depressants and was in an abusive relationship, it is possible that an incident such as the collision described by the plaintiff could bring that person to such extreme action as attempted suicide. Dr Blakemore’s answer was this:
(P71-74)
"AIt takes a fair shock to precipitate a major illness like this. I mean, if – I mean, I’m just trying to picture any patient that I’m treating who – a few have been in traffic altercations to be honest and they’ve got upset by them. It hasn’t significantly worsened anything. I think one lady who had an accident parking just outside my door and she was in a state but, you know, blew over in a few – and this is a very, very emotionally fragile lady – it blew over in a few days. I mean, she was homicidal and suicidal and the other driver got away just in time. She was 5 foot and 6 stone nothing but she was after him. I think what tends to precipitate major depression is something more personal than a motor accident. It’s something that is closer to home. I mean, that tends to be the case. I mean, it’s always possible that some apparently trivial thing can precipitate something major. It would tend to be in the context of some other very serious underlying cause if that were to be the case.
QNow, when you spoke to Mrs Bubnowski, as I read your report, she suggested that – well, to use her words it’s the straw the broke the camel’s back, was the motor vehicle accident, that’s right.
AYes, I think so.
QSo if the motor vehicle accident hadn’t occurred is there reasonable chance that she may not have then attempted to take her own life.
AI think it’s likely that there would have been something else, or it mightn’t have required anything else. She sounds to have been ill already and very close to decompensating. It’s impossible to reconstruct a situation any more clearly than that, I think.
HIS HONOUR
QYou said she was very close to decompensating.
AEmotionally, yes, your Honour.
QAre you identifying which time.
AI think prior to the accident.
QPrior to the motor vehicle accident.
AYes.
QWhat do you mean by ‘decompensating’.
ABecoming very ill, losing control. She – one of the reasons I say this is that it was very distressing for Mrs Bubnowski to describe what she was trying to cope with with her son and how distressing it was. All of this was stuff that she was going through prior to the motor accident and becoming – and the suicide and hospital, it seemed to me that it was that that had been – that had driven her mad. Adam, her son, is a very very impulsive and paranoid young man and a difficult child to look after at the best of times. Well, I think he had been much more settled but he was out of control and I think that got to her.
XXN
QYou said that prior to the motor vehicle accident she was close to decompensating. Is there any reason why you ascribe it shortly prior to that.
AI mean, in the whole time since the home invasion – and that’s what I was just explaining, this is the sort of stuff she was going through, trying to look after her son and daughter-in-law – or her son’s girlfriend.
QWell, just speaking specifically of that, the home invasion occurred on 19 April, the motor vehicle is some, at a guess, I think in order of six weeks later. You are saying it takes that long for decompensation to come to fruition.
AWell, it obviously did.
QAlthough that’s assuming that’s what occurred.
AThese things don’t tend to occur on the spur of the moment. I mean, anything is possible, but it’s more than likely that – you know, it seemed to be a gradual build up with it. That is quite consistent with other psychotic depressive illnesses that I’ve been involved with.”
Dr Kalnins is also a Fellow of the Royal Australian and New Zealand College of Psychiatrists. He has extensive experience in forensic psychiatry.
In his report dated 18^th February 2002, for the purpose of which he saw the plaintiff on one occasion, Dr Kalnins agreed that the plaintiff appeared to be suffering from a depressive illness, but in his opinion it was unrealistic for the plaintiff to blame the invasion of her home as the “cause” of all her difficulties. “Certainly the shock of the home invasion may have worsened her depression for a time, but many (insoluble dilemmas) appeared to continue after this”, which he stated included Adam’s health, the affect upon him of the home invasion, the plaintiff’s problems with her upbringing and with her mother, her father’s violence, her relationship with Renee, gambling, the motor vehicle accident, her financial situation and ceasing work.
In his evidence Dr Kalnins said the plaintiff told him she had been gambling to take her mind off her problems, and he judged she tended to minimise “the gambling as a problem”. In Dr Kalnins’ view the plaintiff had suffered from depression before and after the events in April and July 2001, describing it as “a proneness to depression with possibly some fluctuation in the course of her illness, depending on what stressors or events that happened in her life”; the event which triggers an episode of depression may be major or minor. He said that the home invasion “certainly was distressing for (the plaintiff)”.

In cross-examination Dr Kalnins said that from the information he had concerning the plaintiff in the period of twelve months prior to April 2001, the plaintiff’s condition did not appear to be interfering with her life – she was stable upon the medication prescribed by Dr Govan, working, caring for Adam and living part of the time with Renee. He said he would not disagree that the invasion of the plaintiff’s home “caused a major exacerbation” of the plaintiff’s pre-existing condition, an exacerbation which he considered would have persisted for a period of weeks or months – he could not say how many months but in his view it was quite possible it would have still have been present at the time the plaintiff overdosed with drugs in July 2001. He further accepted that if Adam refused to live in the Prospect house, because of the events on 19^th April 2001, that would be a stressor operating upon the plaintiff’s condition but, as he had not examined Adam and except he had been told Adam has some form of schizophrenic illness, or drug related psychosis, he could not comment upon the reason why Adam would not return to the Prospect house.
On the history which he obtained from the plaintiff, Dr Kalnins agreed with Dr Govan’s opinion (at page 3 of his report) that before the events of 19^th April 2001 the plaintiff was reasonably coping with the difficulties in her personal life, but was not coping and “in the middle of completely insoluble dilemmas” when Dr Govan interviewed her in November 2001. Asked what he understood to have been meant by “insoluble dilemmas” Dr Kalnins’ evidence was:
(P146)
"AYou can’t see your way out of a problem.
QAnd in particular the problem that she wanted to return to the house that she loved with a son that she loved and couldn’t.
AThat would be one of them, yes.
QI’d suggest that that can only be one of them. It would be the principal one and I’d like you to tell me another.
AAt the time I saw her she wasn’t working. She was having financial difficulty; she presented the problem with her partner; the difficulty with her mother. They were all dilemmas that she was experiencing at the time.”
The plaintiff in her evidence presented as a witness who appeared to me to be genuine and truthful in the telling of the events of her life and particularly her reaction to the invasion of her home, its impact upon her and the disruption to the order of Adam’s life with the effect that had upon the plaintiff which she described. Except that Dr Kalnins considered the plaintiff’s ascribing the invasion of her home as the cause of her major depression to be “unrealistic” none of the medical witnesses expressed any reservations concerning the plaintiff’s reliability as an historian, or what she reported to them to be the affect upon her mental health of the events in 2001. Dr Kalnins readily agreed the invasion of the plaintiff’s home exacerbated the plaintiff’s pre-existing depression. Insofar as there was some criticism that the plaintiff tended to minimise her gambling activity, I accept the plaintiff’s evidence that she did not suffer large financial loss, and the topic intruded itself into her hospital notes as a consequence of her explanation to Adam for taking an over-dose of drugs.
Counsel for the defendant canvassed with the medical witnesses, or some of them, the use of cannabis by persons suffering from depression. In my opinion, the evidence upon that matter was inconclusive in the plaintiff’s case. No reliance was put upon it by counsel for the defendant.
For the purposes of the Act “injury” is defined to mean (unless the contrary intention appears) “physical or mental injury, and includes pregnancy, mental shock and nervous shock”.
I find that the plaintiff had an exceedingly close and supportive relationship with Adam, managing (for some time at the expense of her own mental health) the behavioural and consequent difficulties Adam experienced in the course of his illness. As the medical witnesses expressly or implicitly agreed there was a risk the plaintiff’s own medical condition could be worsened by a significant stressor. It is likely, having regard to the number of consultations the plaintiff had with Dr Govan in 1999, that the events she described to have occurred in that year (the death of her father and Renee’s “affair”) adversely affected the plaintiff ‘s condition. However I accept the plaintiff’s evidence, which was supported by the opinion of Dr Govan, that in the period of about twelve months before her home was invaded the plaintiff “was getting on well”; her condition was stabilised with the treatment she was receiving from Dr Govan and the strain of caring for Adam had been reduced somewhat allowing her to undertake regular casual work.
I find that the invasion of the plaintiff’s home threw the plaintiff’s comparatively settled, though difficult, life into disarray. The circumstances of that offence were traumatic and disturbing enough for her but of greater effect was the impact upon Adam which totally disrupted the ordered life the plaintiff had in place to protect and care for him. The consequences of that, in the six weeks or so following the offence, were related by the plaintiff; I have summarised her evidence upon that topic. I accept her evidence. The plaintiff, against the background of a history of managing her own depression, was faced after the offence with the manifestation in Adam of instability in his mental health and the anxiety and stress that caused her in her endeavours to manage the disruption to his life, the effect of which Dr Govan observed on the occasions he saw and treated the plaintiff in May and June 2001 which, it is to be noted, was before the motor car collision that occurred on 4^th July 2001.
In the week ending 27^th April 2001, following the invasion of her home, the plaintiff worked for nine hours in her job at the florist’s. That appears to coincide with the time the plaintiff, with Adam and Karina, was living at the house of Mrs Bubnowski senior. In the succeeding weeks to 5^th July 2001 the plaintiff worked one “shift” of four hours each week. I accept her evidence that she was having difficulty coping even with those reduced hours because she was having to confront “the public”, but she wanted to try to save her job.
I am satisfied that the plaintiff immediately after the invasion of her home suffered an injury arising from that offence. It is not necessary that the injury be classifiable according to some diagnostic criteria; see T v The State of South Australia (1992) 59 SASR 278; it is sufficient that the plaintiff prove that her mental health suffered. The plaintiff’s evidence about her distress, and her other symptoms, and Dr Govan’s opinion that he considered, when the plaintiff consulted him in May 2001, her depression had been severely and substantially aggravated by the disruption to her life, combine to demonstrate the plaintiff’s injury.
Counsel for the defendant does not dispute that the plaintiff suffered an injury arising out of the offence but submits that the motor car collision in which the plaintiff was involved on 4^th July 2001 was the event which lead to the plaintiff ’s attempt to take her own life and resulted in the plaintiff being incapacitated for work until May 2002. The defendant’s case is that but for that event the plaintiff’s depression, arising from the offence, would not have been as incapacitating and prolonged as it was. The defendant’s submission, at bottom, is that the motor car accident was a novus actus interveniens, for the consequences of which, additional to the injury arising from the invasion of her house, the plaintiff is not entitled to be compensated in these proceedings.
The plaintiff’s evidence is that the altercation with the driver of the other car upset and distressed her, she then drove her employer’s car back to her place of employment and told her employer she could not work any more, explaining (to the court) she meant by that she could not work any more that day. The collision as the plaintiff described it was a most minor impact – no damage was done to the vehicle she was driving or to the other vehicle.
The plaintiff’s evidence is that on the day after the motor car collision she learned that Adam and Karina were leaving Kangaroo Island to go to stay with Mrs Bubnowski senior. The plaintiff’s recent experience of such an arrangement, immediately after the invasion of her house, had been, I find, disastrous for the plaintiff – it was impossible for Adam to remain there and the plaintiff had to take him elsewhere. I have earlier set out, and will not repeat, the plaintiff’s evidence of her state of mind and reaction to learning, from her mother, that Adam and Karina intended to live with Mrs Bubnowski senior. The effect of her evidence is that she sank further into despair; in the weeks since and as a result of the invasion of the house Adam had been highly disturbed and suicidal, he would not return to live at Davenport Terrace, the plaintiff was fearful and distressed about living there, she had been attending upon Dr Govan for treatment (including different medication) of her own depression as a consequence of the events on and after 19^th April 2001, she could not provide Adam with other accommodation and her mother’s view was that Adam should be “locked up”. In the depressed state of mind she described the plaintiff embarked on taking excessive quantities of her prescription drugs, leaving, as I accept, a note for Adam stating that her gambling was the reason for her actions because she “couldn’t let (Adam) think that I couldn’t look after him”. Listening to, and observing, the plaintiff giving that evidence brought me to be satisfied she was genuine and honest in attempting to describe the state of her mind and her emotions at the time of those events.
Both Dr Govan and Dr Blakemore were firm in their respective opinions that the invasion of the plaintiff’s home, the plaintiff’s and Adam’s reaction to that with the effect it had upon the plaintiff, was a significant and substantial stressor compared to which the motor car collision was, as I understood their evidence, of very little consequence in itself - the plaintiff’s life had already been severely and substantially disrupted by the injury to her mental health arising from the offence, and the consequences of it, committed on 19 April 2001. The plaintiff was teetering on the edge of decompensating in the course of that injury, before the collision.
The plaintiff, to paraphrase Dr Blakemore, was likely so ill and in such a state of depression arising from the events on 19^th April 2001 that even a trivial thing, or no thing in particular, could precipitate her to further lose control as an incident of her illness, and take an overdose of her prescription drugs.
In State of South Australia v Gale (1999) 205 LSJS 224 the plaintiff suffered a gun shot wound to his right shoulder during an offence of robbery committed against him. After nine weeks he was able to return to perform most of his normal work duties – there was ongoing pain but only mild discomfort after a heavy working day. About three months after the robbery, the plaintiff was injured in a motor car collision in which he wrenched his right shoulder; the shoulder became more painful and he was treated for increased pain and restriction of movement for some months and incapacitated from work for about five months. In an application by the plaintiff for compensation under the Act, the trial Judge held that the whole of the plaintiff’s non-financial loss related to the shooting incident. On appeal the Court determined that the trial Judge had erred in attributing the whole of the respondent’s disabilities to the shooting. “Whilst (the plaintiff’s) shoulder’s susceptibility to further injury was no doubt increased by the bullet wound, the vehicle accident was a new and intervening cause of much pain and discomfort…”; there was medical opinion before the trial Judge which apportioned to each of the incidents a percentage of the plaintiff’s right arm and shoulder disabilities.
Haber v Walker (1963) VR 339 (FC), was a claim for damages under the Wrongs Act of Victoria by the wife of a man who committed suicide while mentally unbalanced as a result of serious injuries he suffered in an accident caused by the negligence of the defendant. Lowe J (with whose conclusion Smith J agreed, although he delivered separate reasons) wrote (349)
“… what the Act requires is that the death should be caused by the wrongful act, etc. It is not that it should be the natural and probable result of the act or the direct result of the act or any similar phrase. The problem which the Act poses is one of causation only.”
I interpolate here that the question under the Act is also, simply, causation: HK v State of South Australia (1997) 190 LSJS 174 - it is not necessary that the plaintiff prove that her injury was the or a substantial cause of the offence; “if the evidence proves that there was a causal connection between crime and injury then the case is made out” at 177 per Bollen J (with whom the other members of the Court agreed).
Lowe, J. went on (p.349) to cite, with approval, from the judgment of Collins MR in Dunham v Clare (1902) 2 KB 292, (a case under the Workmen’s Compensation Act 1897 (Eng.), as “indicating what the real test is”)
“The question whether the death resulted from the injury resolves itself into an inquiry into the chain of causation. If the chain of causation is broken by a novus actus interveniens so that the old cause goes and a new one is substituted for it, that is a new act which gives a fresh origin to the after consequences … ‘
As Smith, J. put it (358)
“… a wrongful act or omission cannot ordinarily be held to have been a cause of subsequent harm unless that harm would not have occurred without the act or omission having previously occurred with such of its incidents as rendered it wrongful … where the requirements of this first principle are satisfied, the act or omission is to be regarded as a cause of the harm unless there intervenes between the act or omission and the harm an occurrence which is necessary for the production of the harm and is sufficient in law to sever the causal connection.”
No doubt the plaintiff was agitated by the collision, however I accept her evidence that she did not give up her job when she spoke to her employer soon after it occurred and merely felt she could not work any more on that day; therefore there was no thought she had “lost her job” which contributed to her later suicidal ideation act of over-dosing with drugs. On the balance of probabilities I find that on learning Adam was to return to the house of Mrs Bubnowski senior the plaintiff, as she in effect described, succumbed to her hopelessness and depression, an incident or consequence of which was her act of over-dosing with drugs and her incapacity for work; I find that was a consequence of the offence committed on 19 April 2001.
In my view the motor car collision contributed so little, if anything, as a stressor upon the plaintiff’s illness, arising out of the offence, that it can be positively put to one side – it did not “sever the causal connection” between the offence and the plaintiff’s injury or the consequences of it, arising from the offence; in any event there is no medical evidence which would warrant attributing to it a definable or measurable part of the plaintiff’s non-financial or financial loss even on a ‘broad-axe’ basis.
At the time Dr Govan saw the plaintiff in November 2001 she was, in Dr Govan’s opinion which I accept, still very ill and as a consequence unable to work. When Dr Govan next saw the plaintiff, in February 2002, her condition had improved – she no longer presented with a disorder like a schizo-effective disorder and by May 2002 when Dr Blakemore examined her he concluded she appeared to have recovered from the depressive illness of the nature of that which had afflicted her following the invasion of her home, and in his opinion it was probable the plaintiff would not suffer “any further emotional illness as a result of the home invasion and the effects on her son”.
I find that the plaintiff is entitled, pursuant to Section 7 of the Act, to compensation for the injury, the major depressive illness arising from the offence in April 2001, the compensation to be for both the financial loss to her in being unable to work and for non-financial loss as that phrase is defined in the Act.
In relation to the non-financial loss, by May 2002 the plaintiff had effectively recovered from the depression which arose from the commission of the offence on 19^th April 2001. In my view the illness had its most serious consequences for the plaintiff in the earlier part of that period, improving by February 2002 with more rapid improvement thereafter. I accept the opinion of Dr Blakemore that by the time he saw the plaintiff in May 2002, she had recovered from the injurious effect of the offence in April 2001. The plaintiff spoke in her evidence of her symptoms and problems caused by the home invasion still being “evident in my life”; asked in what way, she said “In that Adam isn’t settled yet”. That reflected her continuing concern for Adam conveyed in her words “now he’s worse off”. However, the weight of the evidence concerning the plaintiff’s present and future state is that she has substantially recovered to her condition prior to the invasion of her home. In assigning, pursuant to S.7(8)(a)(ii) of the Act, a numerical value to the plaintiff’s injury “the Court is required to compare the severity of the non-financial loss with the worst possible loss that anyone could suffer” State of South Australia v Gale (1999) SASC 480 per Bleby J citing State of South Australia v Bole (1995) 64 SASR 379. On the scale of 0-50 I assign the numerical value of 8, which produces $8,000.00.
In relation to the plaintiff’s financial loss, she is to be compensated for the impairment of her economic capacity.
I find that the plaintiff was partially incapacitated for work, as a consequence of the injury she suffered arising out of the invasion of her home, from immediately after that offence until 7^th July 2001, when she was admitted to hospital and thereafter she was totally incapacitated for work until the week commencing 11^th May 2002; in that week the plaintiff returned to her work as a florist – she was employed for three hours rising to 20.5 hours in the week commencing 15^th June 2002 and a short time later she obtained work with Arnotts.
From the plaintiff’s time book I calculate that in the period 13^th August 2000 to 20^th April 2001, both dates inclusive, (approximately 38 weeks) the plaintiff worked an average of 16.18 hours per week as a florist. As I have said earlier, in the weeks following the invasion of her home, the plaintiff worked 4 hours per week and was paid (before tax) $61.28 per week; that equates to $15.32 per hour.
For the period of approximately six weeks between 20^th April 2001 and 7^th July 2001, the plaintiff was partially incapacitated for work; she worked a total of twenty eight hours instead of an average 16.18 hours per week, or 97 hours. At $15.32 per hour the difference in $1,057.00 (gross).
Between 7^th July 2001 and 11^th May 2002 is approximately forty seven weeks. At $15.32 per hour for an average of 16.18 hours per week the total is $11,650 (gross). In the period of seven weeks from 11^th May 2002 to 30^th June 2002 the plaintiff worked an average of 9.7 hours per week (68 hours in total), compared with her pre-injury average of 16.18 hours, the difference in dollars is $693 (gross).
Counsel for the plaintiff proposed a broader approach to the plaintiff’s economic impairment, by which he arrived at a gross (before tax) figure of $12,750. That is a lesser amount than my own calculation produces, but the difference is not great. I am content to adopt his figure. He submitted, and counsel for the defendant did not contend otherwise, that a tax rate of 10% is appropriate, so that the after tax figure is $11,475. Applying to that figure the rule set out in Section 7(8)(a)(i) of the Act produces $9,106 (to the nearest dollar).

Counsel for the plaintiff submitted, and counsel for the defendant did not demur, that whether the plaintiff was in receipt of a carer’s pension (the case before the offence and for a short time after it) or sickness benefits (the case shortly after the offence) can be ignored for the purpose of assessing her economic impairment after the offence, so that those payments should not be taken into account. I was informed, after judgment was reserved, that a carer’s pension was not taxable at the relevant times.
Pursuant to Section 7(7) of the Act there will be an order that the plaintiff be paid by the Crown the sum of $17,106.00 by way of compensation for the injury arising from the offence committed on 19^th April 2001.

[2003] SADC 14

6 February 2003