Drechsler v State of Sa, Tait & Hopper No. Cicd-02-7

DRECHSLER v STATE OF SOUTH AUSTRALIA, TAIT & HOPPER
[2004] SADC 34
Judge Kelly
Civil
Introduction

The plaintiff Mr Paul Drechsler claims compensation pursuant to the Criminal Injuries Compensation 1978 (“the Act”) for physical and mental injuries as a result of an assault upon him by the second and third defendants on 30 April 1999.
The second defendant opposed the plaintiff’s claim, disputing that he was the cause of the plaintiff’s injuries and in the alternative, claimed that the plaintiff’s award should be reduced pursuant to Section 7(9)(a) of the Act on account of his conduct which contributed to the commission of the offence.
The third defendant did not file a Defence, but appeared representing himself. He also disputed the plaintiff’s claim, denying that he caused the plaintiff’s injuries; in the alternative, he claimed that the plaintiff was not entitled to any award, or alternatively, that the award should be reduced pursuant to Section 7(9)(a) of the Act on account of his conduct which caused or contributed to the commission of the offence.
At the trial whilst these matters remained in issue, it is fair to say, that the most strongly contested issues by both the second and third defendants was the extent of the injuries suffered by the plaintiff, and the extent to which any award of damages should be reduced by the conduct of the plaintiff.
At the outset it was agreed between the plaintiff and the second defendant that the plaintiff’s special damages, constituting a claim for loss of wages on an after tax basis and medical expenses, totalled $7,662.93 after the application of the formula.
Although the third defendant did not formally agree to that figure he did not, after the matter was brought to his attention, direct his opposition to the plaintiff’s claim for special damages but rather directed his case to a general denial that any of his actions caused the injuries complained of by the plaintiff, and in the alternative, that if they did, the plaintiff’s conduct caused or contributed to the injuries. In those circumstances I find that the special damages total $7,662.93 as agreed.
In the pleadings filed on his behalf the second defendant initially denied that he had been convicted for assaulting the plaintiff. At the hearing, however, certificates of record from the Holden Hill Magistrates Court indicating that pleas of guilty were entered by both the second and third defendants in relation to a charge of common assault against the plaintiff were tendered in evidence. In the event neither the second defendant nor the third defendant denied the pleas.
However, both the second and third defendants vigorously denied liability to pay the damages claimed by the plaintiff on the ground that it was in fact the plaintiff who had initiated the assault on the second defendant and that both the second and third defendants simply responded, in essence, in self-defence. They both claimed that the plaintiff’s conduct should disentitle him to any damages or, at least, reduce the amount of damages to which he was entitled.
Factual background
The plaintiff was born on 20 May 1976 and at the date of trial, was 27 years old. At the time of the commission of the assault upon him he was working as a sheet metal fabricator employed by a firm called Hayden Engineering on the David Jones building site in Adelaide.
The plaintiff came to know the second defendant when the second defendant worked at a service station where the plaintiff bought petrol. He became friendly with the second defendant and met the third defendant through the second defendant. Both the plaintiff and the second defendant had a common interest in motor vehicles, in particular, Holden Toranas, which both men owned. At some stage during their association the second defendant asked the plaintiff if he would assist him with some work on his motor vehicle which had been involved in an accident.
The plaintiff went over to the second defendant’s shed and carried out some repair work in relation to the second defendant’s vehicle but ceased working on that vehicle after a period of time because, he claimed in evidence, that the second defendant and his associates were involved in drugs and he did not want to have anything to do with it. He packed up his tools, left the shed and did not return to finish the job.
Several weeks later on 30 April 1999 the plaintiff and a friend of his, Mr Meszaros, were driving to the plaintiff’s home when they were passed by a motor vehicle driven by the third defendant, Mr Hopper. In that motor vehicle, in the front passenger seat, was the second defendant. As the third defendant’s motor vehicle passed the vehicle being driven by the plaintiff, the second defendant threw a carton of milk at the plaintiff’s vehicle. The plaintiff continued on his way home. When he got to the vicinity of his home at the corner of Elliott Avenue and Gwinganna Crescent, Holden Hill he noticed the third defendant’s vehicle parked in the roadway in Elliott Avenue at an angle and on the incorrect side of the road.
The plaintiff then stopped his vehicle in Elliott Avenue and got out of the car. As he did so the second defendant approached him and punched him in the nose. The plaintiff tried to defend himself but fell over and both men wrestled and jostled on the ground for some time. During this time the third defendant got out of the car and began to kick the plaintiff. Meanwhile Mr Meszaros got out of the plaintiff’s car and ran to the plaintiff’s home to get help. By the time Mr Meszaros and the plaintiff’s father Mr Drechsler returned to the scene the incident was almost over. The second and third defendants then left the scene in the third defendant’s motor vehicle.
The plaintiff’s friend, Mr Meszaros, and the plaintiff’s father, Mr Edward Drechsler, both gave evidence about the incident on the night of 30 April 1999.
The second and third defendants also gave evidence about the background to the incident and about the incident itself.
Although neither the second or third defendant denied that they had pleaded guilty in the Holden Hill Magistrates Court on 24 September 1999, both the second and third defendants at the hearing before me gave evidence, in essence, denying that they had overtaken the plaintiff on the way home that night, let alone thrown any milk carton at the plaintiff’s car, or that they had parked in the position described by the plaintiff and his friend Mr Meszaros and initiated the altercation between the plaintiff and them.
In essence it is fair to say, that both the second and third defendants claimed that the plaintiff had parked his car alongside the third defendant’s motor vehicle which was correctly parked in Elliott Avenue, but at an angle to the third defendant’s car, and that the plaintiff got out of the car and threw the first punch. Both the second and third defendants claimed that they had done no more than act in self-defence. In particular, the third defendant claimed to have done no more than push the plaintiff off his friend, the second defendant, who he claimed was getting beaten up by the plaintiff. The defendants claimed to have been parked in Elliott Avenue at that time as they were going to visit a friend of theirs who lived next door to the plaintiff.
It is fair to say that the evidence given by the plaintiff and the witness, Mr Meszaros was diametrically opposed to the evidence given by the second and third defendants about the incident. The second defendant’s explanation for his presence at that time and his explanation for the plaintiff’s alleged aggression towards him, both that night and in earlier conversations, I find inherently improbable.
I accept without hesitation the plaintiff’s evidence as to how the incident started. I also accept the evidence of Mr Meszaros, who I find to be an impressive witness.
In particular, I accept the following facts:-
1.That the third defendant drove a Holden Commodore, past the plaintiff’s vehicle on the road back to the plaintiff’s home at Holden Hill prior to the incident which occurred outside his father’s home.
2.That the second defendant threw a milk carton at the plaintiff’s vehicle as the third defendant’s motor vehicle passed the plaintiff’s vehicle.
3.That the plaintiff parked his vehicle on the left hand side of Elliot Avenue opposite his father’s home.
4.That the third defendant stopped his vehicle at an angle to the plaintiff’s vehicle in Elliot Avenue to the right of the plaintiff’s vehicle.
5.That the second defendant initiated the assault on the plaintiff by punching him in the face.
6.That whilst the plaintiff was on the ground being punched by the second defendant, the third defendant joined in kicking him in the head and about the body.
7.The incident ended when the plaintiff’s father came out of the house and yelled out over the fence.
These facts I accept on the balance of probabilities. I find that the second and third defendants have not established, in terms of Section 7(9) of the Act that the conduct of the plaintiff, in any way, contributed, either directly or indirectly, to the commission of the offence. Clearly the second and third defendants plea of guilty in the Magistrates Court implies that their use of force during that incident did not take place in self-defence.
As a result of the assault Mr Drechsler sustained a number of bruises and grazes but the most significant physical injury was to the left knee.
Although, after conservative treatment the injury settled down, it apparently worsened, and by 2001 it was necessary for the plaintiff to undergo a knee reconstruction. That operation was carried out by Dr Anthony Spriggins on 6 June 2001. The operation was largely successful and by November 2001 the plaintiff was able to return to work as a sheet metal worker. Although the plaintiff was able to return to work he still complains of some disability in mobility in the knee and pain from time to time.
The most serious sequelae from this assault appears to be the post traumatic stress disorder and depression which the plaintiff developed after the assault. In the middle of 2000 the plaintiff was referred by his general medical practitioner to Dr Tom Heint, a consultant psychiatrist. At that time Mr Heint diagnosed a post traumatic stress disorder for which he recommended treatment. Reports from the general medical practitioner, the psychiatrist and the orthopaedic surgeon were tendered without objection in evidence before me.
The plaintiff was also referred to a psychologist, Dr Janet Blake Mortimer whose report dated 27 August 2002 was tendered. Dr Blake Mortimer also diagnosed the plaintiff as suffering from chronic post traumatic stress disorder and a depressive disorder. Notwithstanding the fact that he had had some treatment, including cognitive behavioural therapy, he continues to suffer from serious symptoms of post traumatic stress disorder.
Dr Blake Mortimer was cross-examined at the hearing before me and it emerged during that cross-examination that the plaintiff had been involved in two further incidents of violence since the date of this assault of 30 April 1999.
Dr Blake Mortimer, who told the court that she always sees a patient before going to court to see if there has been any intervening stressful life events in the meantime, said she was told about a second assault which had occurred in July 2001. Dr Blake Mortimer’s evidence about this was somewhat vague and unsatisfactory and she was not sure whether she had been told about the second assault by the plaintiff or by his mother. Notwithstanding the fact that she was informed about the second assault, prior to the date of her report of 27 August 2002, she did not mention that matter in her report of 27 August 2002. She agreed, in cross-examination, that it would be a matter that she would investigate and that it would be relevant to her assessment of his current state.
To complicate matters even further Dr Blake Mortimer, while being questioned about the second assault, then said she had been informed by the plaintiff on 20 September 2003 about a third assault which occurred, apparently, on 6 June 2003, when the plaintiff was followed down a dead-end road by two men in a vehicle, rammed by that vehicle, and then assaulted by the two men. The circumstances of that assault bore some similarities to the circumstances of the assault on 30 April 1999 in that the plaintiff told Dr Blake Mortimer that these two men punched his face, pushed him backwards, bit his finger, put their fingers in his eyes and threatened to kill him.
It is very difficult to assess on the basis of Dr Blake Mortimer’s evidence, what effect, if any, the subsequent violent incidents in 2001 and 2003 have had on the psychological state of the plaintiff.
Apart from agreeing that the incidents are relevant to the assessment of the plaintiff’s current condition and may have exacerbated the pre-existing post traumatic stress disorder the witness’s evidence was somewhat vague, and as I have said, unsatisfactory.
To the extent that I am able to rely on her evidence I find that the plaintiff did indeed suffer a post traumatic stress disorder as a result of the assault on 30 April 1999. The plaintiff did not refer in evidence before me to the third episode of violence which had apparently occurred on 6 June 2003, although he was cross-examined about the second incident at Christmas time in 2001 involving the plaintiff’s brother at the Slug and Lettuce Hotel.
The plaintiff was not asked about the effect of the second assault upon him which apparently involved the second defendant’s brother, Mr Grant Tait. He was, of course, cross-examined extensively about how it happened and Mr Grant Tait was called by the second defendant to give his version of how that incident happened.
It is not necessary for me to decide how the second assault occurred. The only relevance of the second incident is the effect which it might have had on the plaintiff’s post traumatic stress disorder which had previously been diagnosed by both his general practitioner and Dr Heint.
Whilst as a matter of plain common sense it must have had some effect, I am unable to determine with any degree of certainty precisely what affect that subsequent incident had upon the plaintiff’s mental state.
Dr Blake Mortimer’s evidence was not particularly helpful on this topic and the plaintiff himself said nothing about it. As to the third alleged incidents of violence involving the plaintiff, the only witness who gave evidence about that was Dr Blake Mortimer. The plaintiff did not refer to that incident at all, there is simply no evidence about it.
In these circumstances it is very difficult to make any precise assessment of whether the subsequence incident of violence in December 2001 had any affect on the post traumatic stress disorder from which the plaintiff was undoubtedly then suffering.
Doing the best I can on the evidence which was before me, I find that the plaintiff did indeed suffer from a post traumatic stress disorder for some time after the assault on 30 April 1999. That disorder and depression continues to the present day. I take into account the fact that there was a subsequent episode of violence in which the plaintiff was involved in December 2001, but in light of my earlier remarks I can only take this into account as one of the factors present in the plaintiff’s history and ongoing problems as a consequence of the assault of 30 April 1999.
I am required, pursuant to Section 7(8)(a)(ii) of the Act to assess the plaintiff’s non-financial loss by multiplying a numerical value on a scale between 0 and 50 by $1,000. I have considered awards in other cases which were cited to me by counsel but in the end, it is the application of the scale to the individual injury or injuries which must be the overriding determinant of the loss. I must compare the non-financial loss suffered by the plaintiff against the worse possible non-financial loss that anyone could suffer as the victim of an offence (see South Australia v Bole (1995) 64 SASR 379 at 382). I assign a numerical value of 9, which means that the plaintiff is entitled to non-financial loss of $9,000.
The plaintiff’s loss of income and medical expenses have been agreed in the sum of $7,662.93. That figure takes into account the application of the formula pursuant to Section 7(8)(a)(i) of the Act.
In the result I award the sum of $9,000 for non-financial loss and $7,662.93 for loss of income and medical expenses making a total of $16,662.93. The plaintiff has not received and is not likely to receive payments for his injury from any other source.
The second defendant is a council worker engaged to be married who earns approximately $500 per week. He has no assets and pays rent of approximately $100 per week.
The third defendant is a single man employed as a screen printer. His income amounts to approximately $960 per fortnight. He has no assets and no longer owns a motor vehicle.

[2004] SADC 34

2 March 2004