Colmer v The State of South Australia and Englert No. Dccic-01-363

COLMER v THE STATE OF SOUTH AUSTRALIA AND ENGLERT
[2003] SADC 46
Judge Rice
Criminal Injuries Compensation
Introduction

The plaintiff, Ms Colmer, claims compensation pursuant to the Criminal Injuries Compensation Act, 1978 (“the Act”). Compensation is sought for physical and mental injury and past and future economic loss. The claim relates to an assault on Ms Colmer by her former husband, Mr Englert. The details of the assault and its aftermath are referred to below.
Before moving to a consideration of the merits of the claim, a preliminary question arises from the date of the filing of the application for compensation. Pursuant to s.7 of the Act, an application for compensation must be made within three years of the day on which the offence was committed. S.7(4) empowers the Court to dispense with that requirement for “sufficient” reason. It is left to the Court to determine whether it considers a reason to be “sufficient” when an application is filed outside the three year period.
In this matter the alleged assault took place on 16th February, 1998. The application for compensation was filed on 7th June, 2001, that is, about three months and three weeks out of time. Initially, this topic was not the subject of any evidence from Ms Colmer but, at my urging, evidence was led in support of an application for dispensation from compliance with the Act. As I understand the evidence, there was a delay finalising the summary proceedings for assault in the Christies Beach Magistrates Court. Those proceedings were not finalised until 5th September, 2000.
There is no need to spend a great deal of time on this aspect of the matter. The first defendant, the State of South Australia, does not object to dispensation being granted. The second defendant, Mr Englert, seemed to be neutral of the topic. Further, the second defendant did not, by the pleadings, dispute the assault. Mr Englert disputed some aspects of the detail of the assault and the consequences, but not actually the unlawfulness of his assault. I have also had regard to the delay in resolving the matter in the Magistrates Court, together with some evidence from Dr Atchison referred to below.
I reviewed the authorities relating to the principles and criteria for such an application in Hinder v State of South Australia and Flachs [2002] SADC 13. There is no need to repeat that review. Suffice it to say, I apply the principles enunciated by Bray CJ in Ulowski v Miller (1968) SASR 277. This is an appropriate case for the grant of the application. I dispense with the three year requirement and proceed to deal with the merits of the application.
Background
The plaintiff, aged 41 years, was married to the defendant in 1983. They have two children, Rebecca aged 19 years and Peta aged 17 years. They separated in 1995. After separation, there were a number of matters that gave rise to disputes between them, particularly the issue of maintenance and the cars that each of them drove.
As mentioned, the assault that was the subject of a police prosecution and forms the basis of this claim, took place on Monday, 16th February, 1998. The day before there was also a dispute that resulted in Mr Englert taking Ms Colmer’s car, he leaving his behind at her place. She had to contact the police to recover her car.
The incident on 16th February involved an argument about a man that she was then seeing. The defendant went to the home address of the plaintiff and their two daughters at Reynella. During the argument the defendant again took the plaintiff’s car keys, then unlocked the steering lock but was unable to start the car because the plaintiff had a “kill switch” fitted following the events of the previous day. She described the defendant being in a rage (TP18), with him saying that she could not do this, it was his property, she had nothing to do with it and she had no right to tamper with his property.
Apparently he was outside the house. She locked the back door and was about to lock the front door when he confronted her and, after some pushing and pulling, he pulled her outside near to the front door. The plaintiff said she was dragged down to the ground, hit her head on a rock (causing a scratch on her head), was abused and he threatened to kill her (TP18). The defendant was punching at her and that caused her to lose her balance and she fell to the ground. She injured her right wrist in endeavouring to break her fall and keep her balance.
The threats to kill were taken seriously and, on 10th March, she signed a statement in support of a restraining order. A restraining order was granted by the Christies Beach Court (exhibit P7). Initially, the defendant was not charged with assault because the plaintiff was fearful of further harm at his hands and she was hopeful that the wrist injury would settle. In fact, she had not even consulted her general practitioner, Dr Begg, in relation to it. However, the wrist continued to be a problem and the first surgery was performed on it in September, 1999. She then asked the police to lay a complaint for assault.
The defendant pleaded guilty to the charge of assault on 5th September, 2000, was placed on a $500 bond to be of good behaviour for 18 months and to come up for sentence if called upon. The complaint alleged the offence date as 10th March, 1998. That was an error. That was the date of the statement alleging the assault on 16th February, 1998.
Although the second defendant was unrepresented at trial, at the time of filing a Defence he was represented. To understand the second defendant’s general approach at trial, it is convenient to reproduce paragraph 2 of the Defence:-
“2.The second defendant admits that he assaulted the plaintiff on 16 February 1998 but denies that he punched the plaintiff to the left side of the face and hit her around the head and upper body. The second defendant states that he slapped the plaintiff with an open hand only and then pushed her to the ground. The second defendant denies that the plaintiff hit her head on a rock and hit her leg and wrist on the ground also.”
The wrist injury was of special significance to the plaintiff, not simply because it ached when she was working, but also because it would ache constantly after she went ten pin bowling. She would bowl once per week in a league competition and socially once each week. As mentioned, the first surgery was in September, 1999 and the second surgery in May, 2001 (see reports exhibits P5 and P6). She is now unable to go ten pin bowling because she is simply unable to pick up and control the ball. Her wrist sometimes aches and she has trouble holding things. The strength of her grip is reduced and sometimes she has trouble opening jars and the like such that she may drop the item.
As to the plaintiff’s work history, she was working as manager of the Norwood Pie Cart for six years. She is not working at all now because of an unrelated back injury. She was working in the pie cart at the time of the assault as well as a shop on The Parade. Following the assault, she needed two days off, losing about $450.00. At that time, she was doing two shifts at the pie cart, Friday and Saturday night, working nine to twelve hours per shift at $20.00 per hour. Following the second surgery, the plaintiff had about six weeks off. Her average weekly income at that time was about $200.00. Six weeks off led to loss of income of about $1,200.00.
The assault has affected her mental health. She is fearful of the defendant and noises associated with him. For some time she had trouble sleeping, even with sleeping tablets. That has now mostly resolved. She re-lives the assault when she sees a television programme involving assaults upon women. For a while after the assault she drank to excess. The plaintiff suffers from depression and, as I understand the evidence, that amounts to a depressive illness. As part of her fearfulness, the plaintiff rarely goes out at night time unless to a friend’s house. She has become somewhat reclusive.
Cross-examination of Ms Colmer
Because the second defendant was unrepresented, I allowed him certain latitude during his cross-examination of Ms Colmer. Some matters were relevant to liability and an assessment, others bore little or no relevance to the issues I have to consider.
The plaintiff admitted that, since the assault, she worked for a courier business delivering pies, pasties and cakes. Although it was not entirely clear from the questioning, what was being explored was the plaintiff’s ability to lift and carry plastic trays of those foods notwithstanding her injured wrists (the left wrist was operated upon at an earlier time for reasons not associated with this case). The plaintiff acknowledged a limited amount of lifting and carrying but said, if the trays were too heavy, she had a steel frame trolley into which the trays could be put and moved.
The second defendant pressed the plaintiff as to the reasons she left her employment at the shop on The Parade. The suggestion by the second defendant was that the plaintiff was sacked because she had been taking money from the till. The plaintiff acknowledged that that was the allegation, but denied any wrongdoing on her part. As I understand the effect of her answers, there was in fact money missing, but it was not taken by her. She suggested it was taken by her employer and used for gambling, but that he disguised those takings by alleging she had taken the money.
Also on the topic of the extent of any injury to the plaintiff’s right wrist, she acknowledged that, in both the shop and pie cart, she was able to empty baskets of hot chips. That process involved twisting and turning the wrist, as well as supporting the weight of the basket and contents. The plaintiff also agreed that her right wrist injury did not prevent her from doing renovation work on her home. She explained that it was not heavy work or she would use her other hand when necessary.
Another relevant topic raised by the second defendant was the fact that, since taking out the restraining order, the plaintiff has moved within about 300 metres of his home, whereas before she had been about three kilometres away. The plaintiff explained she did that because both children want to remain at the same school, near to their friends and near to their father. It also appears that the second defendant visited the house once or twice to see the children at a time when the plaintiff was present.
When cross-examined by counsel for the first defendant, the plaintiff agreed that, in March, 1999, she had an accident while riding a motorbike. It was a low speed collision and the bike went to the ground with the plaintiff maintaining her grip on the handle bars. She said that collision did not aggravate the wrist injury arising from the assault.
Overall, she agreed that there was a reduced strength in the right wrist in certain situations. For example, the plaintiff can prune roses but not heavier pruning such that would be required for fruit trees.
Psychiatric evidence
The plaintiff called Dr Michelle Atchison in support of her claim for compensation due to psychiatric injury. Her substantive report is exhibit P3. In Dr Atchison’s opinion, using DSM-IV criteria, the plaintiff is suffering from a Post Traumatic Stress Disorder directly arising out of the assault of February, 1998. Further, Dr Atchison is of the view that the plaintiff has a ten per cent permanent psychiatric disability. As Dr Atchison explained during the course of her evidence, of particular significance were the intrusive thoughts concerning, and a re-living of, the assault and the nightmares about those same events.
Dr Atchison also provided a possible explanation for the failure of the plaintiff to consult her general practitioner immediately after the assault. She proffered the view that the plaintiff’s “....psychological problems and her distress at the time, overrode her need to look at her physical injuries....” She acknowledged that she was speculating (TP72). Having seen the plaintiff give evidence, my view about the matter is that, although Dr Atchison considered it to be speculation, I find that it is a reasonable explanation that I am prepared to accept.
The second defendant sought to cross-examine Dr Atchison upon a number of topics but I ruled many of those were not relevant or no foundation had been laid for them through questioning of the plaintiff. As events transpired, the second defendant did not himself give evidence and so, on some topics, there was simply no evidence one way or the other.
One relevant topic upon which Dr Atchison was cross-examined by the second defendant (through me) related to the present level of fear of the plaintiff towards the second defendant. The effect of Dr Atchison’s answers were that, if there was a greater degree of contact between the two than the plaintiff had disclosed, that would be inconsistent with the history the plaintiff gave because she specifically tried to avoid situations where he was present (TP75, 92-3). In re-examination, Dr Atchison was asked to assume contact with the second defendant in two defined situations, one, on Father’s Day so their daughters could see him and, secondly, so he could explain to the daughters that he had remarried and not told them. Dr Atchison said, in effect, assuming those events occurred, her diagnosis would be unaffected (TP96-97).
Dr Atchison was also cross-examined about whether other stressors and anxiety in her life may have been contributors to the ten per cent permanent psychiatric disability. Dr Atchison made plain that the percentage assessment was purely in relation to the disorder flowing from the assault incident in February, 1998 (TP95-96).
Dr Sandow
As to the nature and severity of the injury to her right wrist, the plaintiff called Dr Sandow, the orthopaedic surgeon who performed surgery upon that wrist in September, 1999 and May, 2001 (see exhibits P5 and P6). One question for me is whether the injuries noted by Dr Sandow in 1999 were, on the balance of probabilities, caused by the assault in 1998. I have already commented on the failure of the plaintiff to immediately consult her general practitioner about it. Aided by Dr Atchison’s evidence, I have accepted that it was reasonable for the plaintiff to put her psychological distress ahead of her physical injuries.
Like Dr Begg, Dr Sandow did not see the plaintiff close to the events of February, 1998. He could not say, from a medical point of view, whether the injury he noted was caused by that assault. However, Dr Sandow did say that, if there was a specific event and “....if pain had come on after that event, then that would be the strongest evidence to support the cause” (TP101).
According to the evidence of the plaintiff, her wrist was painful after the assault incident involving the second defendant. I accept that evidence and, on the totality of the evidence, accept that the injury to the right wrist was caused in the assault incident. I make that finding notwithstanding that, in March, 1999, she was riding a motorbike that was involved in a low speed collision, causing the bike to fall to the ground. I do not find that that collision caused or aggravated the injury to the right wrist. As Dr Sandow said (TP103), a motorbike accident does not lead to a consistent pattern of injury. The failure of the plaintiff to mention the motorbike incident to Dr Sandow was of no significance if no wrist pain was felt (TP112). The plaintiff confirmed, upon being recalled, that there was no injury to her wrist in that accident (TP121). In my view, there is nothing in this point.
As mentioned, Dr Sandow performed surgery on the wrist on two occasions, September, 1999 and May, 2001. Initially, Dr Sandow made a provisional diagnosis of flexor carpi radialis tendonitis or partial tear. Injections did not produce lasting relief, hence the first surgical procedure. Although that surgery led to a slight improvement, there was not complete resolution of her symptoms.
Despite conservative treatment, her symptoms remained. At the second surgical procedure, she underwent excision of the flexor carpi radialis tendon. As Dr Sandow put it during his evidence (TP102):-
“....the second procedure involved release of the tendon plus a repair of some of the deeper capsule to try and provide a better bed and repair any other damage.”
Although some improvement was noted, there is still a reduction in her grip strength. In his report of 8th August, 2001 (exhibit P5), Dr Sandow was of the opinion that she had a residual medical impairment in the order of ten per cent of the function below the elbow. That estimate of impairment was a long-term impairment, within two to three years. In his evidence (TP102), Dr Sandow said:-
“....a 10% below the elbow is a moderate impairment with some difficulty of lifting but generally able to carry out most functions.”
As to the periods off work, Dr Sandow thought the initial period of a few days was the absolute minimum. Following the second surgery, she was off work for six weeks. Dr Sandow thought that was “....consistent with the nature of the surgery depending on the load that she was required to do with her wrist” (TP102).
Case for the second defendant
It was explained to the second defendant during the course of the plaintiff’s case that I would not allow the trial to be used as a forum for him to rake over the reasons for the disintegration of their marriage or to explore the ongoing tensions between the plaintiff and the new Mrs Englert. Those tensions were evident in the courtroom as the trial progressed. The plaintiff is now in a relationship with the now Mrs Englert’s former husband.
The second defendant elected not to give any evidence. He did, however, call a Mr Gee who said that, on an occasion in 2001 or 2002, the plaintiff attended at the house of the second defendant and was threatening and abusive to the second defendant. There was an heated argument for some time and the second defendant demanded that she leave. Mr Gee was unable to remember much of what was said. I have had very limited regard to this incident in the context of the stress and anxiety she experiences in the presence of the second defendant. I have not been given any clear evidence as to the reason or purpose in her attendance there.
Mr Gee also gave evidence that he had seen the plaintiff loading plastic bread trays into a van. He also said he had seen the plaintiff working in the garden pruning trees, digging holes, using a ladder to get on to the roof, gardening and working in the front yard. Those topics are relevant because they bear upon the injury to the right wrist and her ability to use it since the two surgical procedures. However, I do not regard them as inconsistent with the reports and evidence of Dr Sandow.
The second defendant also applied to lead evidence from a psychiatrist, Dr David Bertram, on a variety of topics. Those topics are discussed at length in the transcript (TP137-148). I ruled that Dr Bertram could not be called. The basis for the ruling was that no factual foundation had been laid for the topics and, in any event, the topics were not relevant to the issues I have to decide.
Factual findings
I make these findings in addition to those mentioned above.
I have no hesitation in accepting the evidence of the plaintiff. She seemed honest, forthright, mature and a reasonably good historian. I find that the assault upon her by the second defendant was essentially as described by her in her evidence. I find that she sustained some immediate injuries, mainly the injury to the right wrist and a minor head injury. The time off work then and after the second surgical procedure was reasonable.
I accept Dr Sandow’s opinion of a permanent residual medical impairment of about ten per cent below the elbow. I also accept Dr Atchison’s evidence of a Post Traumatic Stress Disorder arising solely from the assault. Further, I accept Dr Atchison’s opinion of a ten per cent permanent psychiatric disability.
Discussion

I deal initially with the suggestion that the plaintiff, in some relevant way, is guilty of what is referred to in this context as “conduct contributing”. S.7(9) of the Act reads as follows:-
“(9)   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 to the victim; and
(b)    such other circumstances as it considers relevant.”
If such contributing conduct is alleged to have occurred, then the onus of proof is on the party alleging it to establish it on the balance of probabilities: Wilson v State of South Australia (1988) 146 LSJS 362. Proof of such conduct may be found in the evidence of the plaintiff. It is not necessary for the party alleging the conduct to give or call evidence. A plaintiff may make concessions which would support such a submission. However, on the facts of this case, there is clearly insufficient factual material to lead to that conclusion on the balance of probabilities. The absence of any evidence from the second defendant effectively leaves me with one version of the relevant events. That is a version that I substantially accept.
Damages - non-financial loss
The awarding of compensation under this heading is dealt with in s.7(8)(a)(ii) of the Act. The principles to be applied are those decided in State of South Australia v Bole (1994) 64 SASR 379. Pursuant to the Act, the assessment of non-financial loss is made by assigning a numerical value to the loss on a scale from 0-50 (the greater the severity of the non-financial loss, the greater the numerical value). Each numerical value is assigned a value of $1,000.
In Bole’s case (supra), the Full Court held that the appropriate procedure for the assessment of non-financial loss is to compare the loss suffered by the plaintiff against the worst possible non-financial loss that anyone could suffer as a victim of an offence.
As mentioned, the plaintiff now suffers from a Post Traumatic Stress Disorder with a ten per cent permanent psychiatric disability, attributable to this assault. Apart from the psychiatric injury, there is an approximate ten per cent loss of function of the right arm below the elbow. I have also had regard to the fact that she is no longer able to enjoy ten pin bowling. Not only do I find beyond reasonable doubt that the second defendant committed the offence of assault, I also find, on the balance of probabilities, that the psychiatric and physical injuries were causally connected to that assault. Particularly as to the psychiatric injury, I accept that the plaintiff suffers from flashbacks, nightmares, loss of concentration and motivation, and restrictions in her ability and desire to go out and socialise.
In addition to that, there is avoidance behaviour relating to the plaintiff. Initially, I had some reservations about this aspect of her injury but, upon a re-reading of Dr Atchison’s evidence, the limited number of occasions where she agreed to, or sought, contact with the second defendant did not invalidate the diagnosis.
I have considered a number of authorities to ascertain where this case falls when compared with others involving comparable injuries. I assign a numerical value of 8 to the non-financial loss.
Damages - financial loss - wages
Bearing in mind my findings and the expert evidence from Dr Sandow, the plaintiff will also be awarded her loss of wages immediately after the assault which I assess at $300. Further, I have accepted that it was reasonable for the plaintiff to be off work for six weeks following the second surgical procedure. She was then earning $200 per week from two casual jobs. I award her the further amount of $1,200. Under this heading I award her $1,500.
Damages - future economic loss
The plaintiff is entitled to be compensated for the extent to which her injuries resulting from the assault have caused a diminution of her earning capacity in the future. The amount of any award is measured by reference to the extent to which loss of earning capacity has been productive of economic loss: Medlin v The State Government Insurance Commission (1994-1995) 182 CLR 1.
There are evidential problems for the plaintiff under this heading. As I have already noted, at the time of trial the plaintiff was employed but not working (TP32) because of an unrelated back injury (TP15-16). I have no detail about the severity of that injury and whether that injury may preclude her from any work in the future. I have been simply left with no evidence in that regard.
Further, there is also evidence before me from the plaintiff herself that, since the assault, she has worked as a courier (pies, pasties and cakes) (TP32). It seems that whilst performing that work she was seen by Mr Gee (TP131). The evidence does not disclose when that was.
On the state of the evidence, including the medical evidence, I am unable to find any diminution of her earning capacity in the future. Further, the evidence does not give me any measure of her economic loss.
I make no award under this heading.
Conclusion
I award the following amounts:-
Non-financial loss - numerical
value of 8 $8,000.00
Financial loss 1,500.00
$9,500.00
Interest
Pursuant to s.7(9c) of the Act, interest is not payable in respect of any compensation awarded.
There will be judgment for the plaintiff in the amount of $9,500. I will hear the parties on the question of costs.

[2003] SADC 46

21 March 2003