Burke v State of South Australia & Lamond No. DCCIV-98-700

[2000] SADC 96

BURKE v STATE OF SOUTH AUSTRALIA & LAMOND
[2000] SADC 96

Judge Robertson
Civil

1. This is an application for compensation pursuant to the Criminal Injuries Compensation Act 1978, as amended, (“the Act”).

2. On 21 November 1996 the Plaintiff was the victim of an assault by the second defendant.  The Plaintiff suffered injuries arising out of the assault and as a result seeks an award of compensation pursuant to Section 7 of the Act.  He also seeks aggravated damages.  Section 7(10) of the Act provides that no order for compensation shall be made where the amount would be less than $1000.  The First Defendant contends that the Plaintiff’s claim does not entitle the Plaintiff to compensation amounting to $1000.  The Second Defendant did not take part in the hearing.

3. The Plaintiff is a Police Officer and was a Police Officer when he was assaulted on 21 November 1996.  In the early hours of the morning of 21 November 1996 the Plaintiff was on solo patrol duty.  He was conducting licensed premises checks.  The Plaintiff was in police uniform.  His duties took him to a nightclub called “Heaven”.  On his arrival there his attention was drawn to the Second Defendant who appeared to be intoxicated and in a highly emotional state.  She was standing near the entrance to the premises of the nightclub.  The Plaintiff was informed by the security officers that she had been ejected from the nightclub premises due to her behaviour.  He was also informed that she refused to leave the area.

4. On receiving this information the Plaintiff approached the Second Defendant and spoke to her.  She informed him that the reason that she refused to move from the front of the premises was that her handbag and keys to her house were still in the nightclub premises.  She said that she had no means of travelling to her home because her money was in her handbag.  On receiving this information, the Plaintiff approached a security officer of the nightclub and asked if it was permissible for the Plaintiff to escort the Second Defendant into the nightclub in order that she could retrieve her personal items. Approval was given.  The Plaintiff then informed the Second Defendant that he would escort her into the nightclub.  He further stated that if she met anybody she knew whilst they were in the night club and that person could retrieve the personal items for her then she should give instructions to do so then they would then leave the premises.

5. The Plaintiff, the Second Defendant and a security officer by the name of Jason Hendrie then entered the nightclub.  Inside the nightclub the Second defendant had a conversation with a male she appeared to know and she directed him to where her personal effects were situated.  Following this, the Plaintiff indicated to the Second Defendant that it was time to leave the premises.  She refused.  The Second Defendant was also passively resisting any attempt to remove her from the premises.  At this point both the Plaintiff and Jason Hendrie respectively took hold of each arm of the Second Defendant and attempted to physically escort her from the premises.  The Second Defendant then commenced to thrash about her upper body and was swearing.  She was also pushing away from the Plaintiff and Jason Hendrie with her legs.

6. Eventually, the Second Defendant was removed from the nightclub.  As they were escorting her away from the exit doorway of the premises, the Second Defendant pulled on her arm which caused the Plaintiff to pivot on his leg; she then kneed the Plaintiff in his testicles.  The Plaintiff immediately experienced excruciating pain.  Despite the pain, the Plaintiff was able to place the Second Defendant on the ground and handcuff her.  After that, the Plaintiff squatted on his haunches.  By this time he was suffering from pain in the testicles and pain through to his back, which he described as pain into his kidneys.  He also said that he was feeling pain in the groin and stomach areas.  The Plaintiff said he was also experiencing a feeling of nausea and felt a bit light headed.  He said that the excruciating pain that had accompanied the initial blow remained during this time.  After about three to five minutes the plaintiff then moved from his haunches and sat down in the gutter.  The Plaintiff said at the time of the assault and during the period he was recovering from the blow, there were a number of people in the area.  Sadly, these people appeared to gain amusement from the plaintiff’s discomfort.  They were laughing at him.  He found that experience embarrassing and distressful.

7. After a period of time had expired the Plaintiff placed the Second Defendant in the caged police motor vehicle and took her to the City Watch House.  At the Watch House she was charged.  The Plaintiff said that during this period he was still feeling nauseous, suffering pain through his testicles and from the pain which travelled through to his back.

8. The Plaintiff was able to complete his shift and returned to his home at seven o’clock that morning.  He immediately went to bed but had trouble sleeping.  He said that he still had substantial pain in his testicles and in his back.  He said his testicles were extremely tender.  The Plaintiff said that the shooting pain in his testicles did not ease off much until about the start of his next shift at eleven o’clock that night.  He found walking painful.  The Plaintiff said the shooting pain subsided about the time he commenced his next shift but the tenderness of his testicles lasted for a few days.  He said that the nausea also lasted most of the day and appeared to ease when the shooting pain in the testicles began to ease.

9. The Plaintiff did not seek medical attention for his injuries.  He had experienced blows to the testicles previously when he was playing rugby.  As a result of this experience, he expected to recover rather quickly and as a result did not feel it was necessary to consult a medical practitioner.  He said that he became a little concerned when the effect of the injuries remained longer than he expected.  However as the effects of the injuries eventually disappeared, he did not consider it necessary to obtain medical advice.

10. The Plaintiff said that at the time of the assault, he had not been very long in a relationship with a female partner.  He said that due to the injuries he was unable to participate in sexual activities for anything up to a week.

11. At this point it is appropriate to mention that I found the Plaintiff to be a truthful and reliable witness.  Accordingly, I accept his evidence regarding the extent of his injuries and the effect that the injuries have had upon him.

12. The Plaintiff’s claim is for non-financial loss. Section 7(8) of the Act provides that the court is required to assign a numerical value on a scale running from 0 to 50, to the intent that the greater the severity of a victim’s non-financial loss then the greater the number which ought to be ascribed.  The expression “non-financial loss” is defined in Section 4 of the Act to include, among other things, pain and suffering and loss of amenities of life.  In arriving at a numerical value, a court is required to compare the non-financial losses suffered by the claimant against the worst possible non-financial loss that a person could suffer as a victim of an offence.  (State of South Australia v Bole (1994-95) 64 SASR 379 at 383).

13. I mentioned earlier that the Plaintiff also claims aggravated damages.  An award of compensation under the Act may include aggravated damages (T v State of South Australia (1992-93) 59 SASR 278; Bole (supra) at 382). Aggravated damages are awarded when the harm done to a claimant by a wrongful act is aggravated by the manner in which the act was done (Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118 at 149; Gray v Motor Accident Commission(1998) 73 ALJR 45). Where an award of aggravated damages is appropriate under the Act, it is not legitimate to assign a separate numerical value to that component of the award reflected by aggravated damages (Bole at 382). The aggravated damages component of the award is to be taken into account in ascribing a numerical value pursuant to Section 7(8) of the Act.

14. I have earlier outlined the Plaintiff’s injuries and therefore there is no need to repeat them.  It is suffice to say that the Plaintiff suffered an extremely painful injury and whilst the extreme pain subsided within a relatively short period of time, he continued to suffer pain and discomfort in his testicles and in his lower back area for a significant period of time.  There was a short period of time which the Plaintiff did not engage in sexual activity.  Mr Jamison, counsel for the plaintiff, submitted that the Plaintiff suffered emotional distress and that such distress should be taken into account in assessing compensation for the Plaintiff’s injuries.  I accept that the Plaintiff suffered emotional distress as a result of the injuries he suffered.  However, in my opinion, his emotional stress was not of such a nature that it could be described as an “injury” within the meaning of that word in the Act (Battista v Cooper (1976) 14 SASR 225).

15. In my view, the Plaintiff is entitled to aggravated damages.  The assault was on a uniformed Police Officer who was performing his duty.  He had set out to assist the Second Defendant in retrieving her personal effects.  He obtained her agreement to a procedure to be adopted once they were inside the nightclub.  The Second Defendant breached that agreement by refusing to leave the nightclub.  Once outside, she subjected the Police Officer to an unprovoked assault to a vulnerable part of his body.  The assault took place before a number of people who outwardly indicated that they saw the Plaintiff’s discomfort as humorous.  The Plaintiff felt embarrassed and emotionally distressed following the assault.  All of these circumstances make an award of aggravated damages inevitable.

16. In Bole it was held (381) that the procedure applied for assessing damages under Section 35A(1)(b) of the Wrongs Act should be adopted for assessing compensation for non-financial loss under Section 7(8)(a)(ii) of the Act.  The procedure for assessing damages under the Wrongs Act was determined in the decisions of Packer v Cameron (1989) 54 SASR 246 and Percaro v Kordysz (1989) 54 SASR 259. In Packer v Cameron it was held (252-253) that Section 35A of the Wrongs Act permits a numerical value to incorporate in a decimal fraction such as 0.5.  In my view such a procedure is available in assessing compensation under Section 7(8)(a)(ii) of the Act.  Of course such a procedure needs to be subject to the provisions of Section 7(10) prohibiting an assessment if compensation is of an amount less than $1,000.

17. With respect to the Plaintiff’s bodily injuries and their sequelae, together with the aggravated damages, I ascribe a numeral value of 1.5.  As a result, I assess the Plaintiff’s compensation at $1,500. 

18. Accordingly, there will be judgment for the Plaintiff for the sum of $1,500.  I will hear the parties on the question of costs and any other orders.