Coomans v State of South Australia No. Cicd-95-935 Judgment No. D3413

[1996] SADC 3413

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Lowrie

Hearing

03/04/96.

Catchwords

CRIMINAL INJURIES COMPENSATION ACT 1978 - Claim for compensation for assault by person unknown - plaintiff suffered broken nose requiring surgery - complete recovery - numerical value of 2 awarded - compensation $2,000.

Materials Considered

• State of South Australia v Bole Judgment No S5199, delivered 31 August, 1995;
• Hollinshead v State of South Australia Judgment No D3343, delivered 21 November, 1995, considered.

Representation

Plaintiff NICHOLAS JASON COOMANS:
Counsel: MR J R JAMISON - Solicitors: JAMISON &; ASSOCIATES

Defendant STATE OF SOUTH AUSTRALIA:
Counsel: MR J A TELFER - Solicitors: CROWN SOLICITOR'S OFFICE

CICD-95-935

Judgment No. D3413

3 April 1996

(Criminal Injuries Compensation Division)

JUDGMENT NO D3413

COOMANS v STATE OF SOUTH AUSTRALIA

FILE NO CICD - 95 - 935

HIS HONOUR JUDGE LOWRIE

The plaintiff claims compensation under the Criminal Injuries Compensation Act.I accept the plaintiff suffered injury as a result of an assault on him by persons unknown.The only issue is the amount of the award.There is no question of any contributory conduct by the plaintiff.

The plaintiff gave his evidence which was not challenged.I accept his evidence.He was plainly truthful and reliable.

As well as that, I have had tendered by consent a report from the surgeon, Mr Williams.I accept that report.

The plaintiff is 23.On this night, 30 April, 1995, he was at the Norwood Hotel and eventually left that hotel when a group of men approached him.He was hit from behind, as often happens, by a group of men in a cowardly fashion. It was a very sharp blow to his face which resulted in him suffering a broken nose.He outlined the difficulties he had thereafter, the bleeding, and the swollen nature of his face.

He controlled the bleeding that night and next morning went to see his own practitioner, Dr Lister, who could see that, because of the nature of the swelling, there may well be a major problem.He referred him then to the surgeon, Mr Williams, who confirmed the problem.It was apparent that his nose was broken and he recommended that he undergo surgery forthwith.

On 9 May, 1995, at Calvary he underwent surgery to correct that break.Mr Williams has outlined all of the matters he attended to.Clearly the cartilage was fractured and a strip of cartilage loose which was removed and then fixed. As often happens, a procedure which is called a rasping takes place to remove the affected area of the cartilage and, consequently, that was done.Mr Williams said that post-operative progress was pleasing.He reviewed him again on 19 May and on 30 June and felt the surgery had been very satisfactory and he had a good airway bilaterally and nasal cosmesis had remained very pleasing and a correction of the severe deformity had resulted from the surgery.

Mr Coomans outlined that he had not been back to see the surgeon.He said that after this area has settled down, his nose has been left with some apparent cosmetic problems in the bridge area.As often happens with this type of break there is this bony protuberance.It is slightly more on what I would call the right side of his nose, the right bridge than the left.He is now left with this lumpy section of cartilage in the middle of his nose, so cosmetically it has not the appearance that it had prior to the assault. However, it seems he has resumed his work and he has not been back to see his doctor.The permanent problem is this cosmetic problem which he accepts, but does cause him some difficulty.

Much has been said about how one should approach the assessment in this case. I simply refer to the State of South Australia v Bole Judgment No S5199 delivered on 31 August 1995.I am informed that there have not been any awards for broken noses as such under this Act.I have referred to the case of Hollinshead v State of South Australia Judgment No D3343 delivered on 31 November 1995, where a young man suffered a broken jaw.Judge Jennings again reviewed the relevant authorities as well as the nature of the injuries in that case and assigned the numeral 3.I myself believe that this type of injury is perhaps not quite as serious as a broken jaw with problems, both pre- and post-operative, of that surgery.

In all the circumstances, I propose to allot the numeral 2 and, consequently, I award the plaintiff the sum of $2,000 compensation.I am told that special damages have been agreed in the sum of $1,772.98.I assess the plaintiff's costs for this action in the lump sum of $1,325 with disbursements of $271.