Gibbens v State of South Australia & Gibbens No. Cic-96-610 Judgment No. D3657

[1997] SADC 3657

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Wilson

Hearing

22/01/97, 23/01/97, 04/02/97.

Catchwords

COMPENSATION FOR INJURIES Victim of crimes of violence suffered post-traumatic stress disorder - plaintiff moved her place of residence and sold her house - whether claim for land agent's fee compensable - causation - meaning of "in consequence of the commission of the offence" and "arising from the offence" - proof of causal connection between commission of the offence and the loss.

Materials Considered

• Criminal Injuries Compensation Act, 1978ss. 4, 7 and 8, referred to.

Representation

Plaintiff SHARON KYLIE GIBBENS:
Counsel: MR M MITCHELL - Solicitors: MATTHEW MITCHELL

Defendant STATE OF SOUTH AUSTRALIA:
Counsel: MR J WARREN - Solicitors: CROWN SOLICITOR

Defendant NEILL PATRICK GIBBENS:
In Person

CIC-96-610

Judgment No. D3657

8 August 1997

In The Matter of THE CRIMINAL INJURIES COMPENSATION ACT 1978

(Criminal Injuries Compensation Division)

GIBBENSvSTATE OF SOUTH AUSTRALIA & GIBBENS

Criminal Injuries

Judge Wilson

[This was a claim for compensation under the Criminal Injuries CompensationAct 1978 made by the plaintiff who was the victim of crimes (of violence) committed on 2nd December 1995.His Honour assigned to the plaintiff a numerical value of 9 on a scale running from 0 to 50 for non-financial loss. His Honour also assessed compensation for financial loss incurred by way of loss of earnings and loss of earning capacity.In dealing with a claim for compensation for loss in the nature of special damages (whether past or future) His honour stated in his Reasons as follows.]

I am also called upon to assess compensation for loss in the nature of special damages (whether past or future).

In Section 4 of the Act "injury" is defined to mean physical or mental injury, and includes inter alia mental shock and nervous shock;"non-financial loss" is defined to mean:

(a) pain and suffering;

(b) loss of amenities of life;

(c) loss of expectation of life;

(d) disfigurement.

and "victim", in relation to an offence, is defined to mean a person who suffers injury in consequence of the commission of the offence.

Section 7(1) provides:

"(1) A victim of an offence may, within three years of the day on which the offence was committed, apply to the court for an order for compensation in respect of the injury arising from the offence."

A claim under Section 7(1) is limited to one for physical or mental injury to the claimant.

Section 7(7) of the Act provides:

"(7) Subject to this Act, on an application under this section the court may order -

(a) that the victim be paid by the Crown such amount as the court thinks fit by way of compensation for the injury arising from the offence;or

(b) that the dependants of a dead victim be paid by the Crown such amount as the court thinks fit by way of compensation for the financial loss suffered by them (to be proportioned between the various claimants as the court thinks fit);or

(c) in the case off an application for compensation for grief, that a claimant be paid by the Crown such amount (not exceeding $4 200 in the case of a spouse or a putative spouse or $3 000 in the case of a parent) as the Court thinks fit by way of compensation for the grief suffered by the claimant;or

(d) in the case of an application for compensation in respect of funeral expenses, that the applicant be paid -

(i) the amount of funeral expenses incurred by the claimant;or

(ii) $3 000,

whichever is the lesser."

Compensation is recompense for loss or damage, and includes damages in tort in so far as they are compensatory [RePoore (1973) 6 SASR 308 at p. 310].It includes a loss of earnings and loss of earning capacity [McDonald v Brown
(1975) 12 SASR 384].

Section 7(8) of the Act now provides:

"(8) In awarding compensation under this section, the court must observe the following rules -

(a) in relation to an application under subsection (1) for compensation for injury ...

(i) where financial loss is to be compensated and the amount that would, but for this subparagraph, be awarded for the financial loss exceeds $2,000, the amount awarded will, subject to subparagraph (iii), be $2,000 plus three-quarters of the excess;

(ii) where non-financial loss is to be compensated -

(A) the total non-financial loss must be assigned a numerical value on a scale running from 0 to 50 (the greater the severity of the non-financial loss, the greater the number);and

(B) the amount awarded will be the amount arrived at by multiplying the number so assigned by $1,000;and

(iii) in any case, where an amount arrived at to compensate financial loss, or the aggregate of amounts arrived at to compensate financial loss and non-financial loss, would, but for this subparagraph, exceed $50,000, the amount awarded will be $50,000;

(b) ... ;

(c) ... ".

...........

It was the plaintiff's case that her injuries were principally of a psychological nature.The plaintiff and the second defendant are, as previously indicated, husband and wife.They met in 1989 and commenced living together shortly thereafter.They were married in January 1995.Matrimonial difficulties were experienced and separations occurred.The parties were separated at the time of the incident which occurred on 2nd December 1995, the last separation having commenced in October 1995.

The plaintiff is now a 27 year old woman.She left school at 16 years of age. After leaving school, she was, to all intents and purposes, always in full-time employment.She started as a receptionist/clerk, then she had several jobs including working as a data input operator, as a credit clerk and as a bookkeeper, and then had several more lucrative jobs within the hospitality industry ranging from bar person to hotel administrator.At the time of the incident, the plaintiff was working as a permanent casual employee as a bar person;she had been working for 16 to 20 hours per week, but her hours went down to 10 to 15 hours per week.She had been earning more than $2,200 per month in the period prior to the incident.

On the night of 2nd December 1995 the plaintiff and a fellow employee at the Blair Athol Hotel, Paul Dorian, sat down after work and had a few drinks. Subsequently, Paul Dorian gave her a lift home at about 4.00 a.m.He gave her a helping hand to take some bags inside.When they were inside the house the second defendant knocked at the door and wanted to come inside.When the plaintiff told him to leave, the second defendant proceeded to bash on the back window and yelled abuse.The police were called.The plaintiff and Paul Dorian locked themselves in the main bedroom.The second defendant tried to break down the door;it was damaged and holed;missiles were thrown;the second defendant tried to open the locked door through the hole that he had made in the door.The plaintiff received a small stab wound to her chest from a knife.The second defendant went for Paul Dorian and a fight ensued between the two men.After unlocking a security door and going outside, the plaintiff screamed, help was called for, and the police were called again.When the police arrived, Paul Dorian had disarmed the second defendant and he (the second defendant) was being restrained on the front lawn of the plaintiff's property.It was whilst the second defendant was trying to get through the door that he threatened to kill the plaintiff.

It was a frightening experience for the plaintiff.The damage caused to the structure of the house was an ongoing reminder of what had occurred.During the months that followed the plaintiff had difficulty in sleeping, she was repeatedly tearful, her work was adversely affected and she experienced the classical symptoms of post traumatic stress disorder that were described by the plaintiff during her examination-in-chief and commented upon by Dr Fogarty, the psychiatrist.I find that the plaintiff sustained post-traumatic stress disorder in consequence of the commission of the offence and arising therefrom. I find that it has been proved by the plaintiff on the balance of probabilities that there was a causal connection between the commission of the offence and the mental injury.

The house where the incident occurred had been transferred to the plaintiff pursuant to an informal property settlement.At the time of the incident the plaintiff was the sole owner of that property.Because she did not feel safe in it and because of the fear she experienced as a direct result of what occurred on the night of the incident, the plaintiff decided to sell the home and, in September 1996, did so.The land agent's fee was $3,000.00.But for that fee, the plaintiff would, after paying out all liabilities and fees, have expected to have made a modest profit on the sale.In fact, her loss was $138. For reasons that will appear later, I am satisfied that the plaintiff's decision to sell her home and shift her place of residence was an entirely reasonable decision on her part in the circumstances and that $3,000 represents the plaintiff's financial loss in this regard, for which she is to be compensated.

...........

In summary, I find that in the early hours of the morning of 2nd December 1995 the second defendant attended at the home of the plaintiff (his wife) and inter alia threatened to kill the plaintiff.I find that the second defendant was convicted inter alia of the crime of making an unlawful threat (or threatening life) on the 8th day of August 1996.I find that the plaintiff suffered a minor stab wound to the chest.More importantly, I find that the plaintiff, notwithstanding the denial in the amended defence, also suffered "in consequence of the commission of the offence" and arising therefrom, a post traumatic stress disorder with resultant loss and damage.I find that the plaintiff is entitled to compensation for non-financial loss by way of pain and suffering and loss of amenities of life.I find that the plaintiff has suffered a loss of earnings and has suffered (and will suffer) from a loss of earning capacity.I find that, "in consequence of the commission of the offence" and arising therefrom, the plaintiff sold her home and, in doing so, incurred financial loss by way of land agent's fees to the amount of $3,000.00.

.........

An issue of some importance in this case is the question of whether the costs incurred by the plaintiff in moving her place of residence as a result of the fear experienced by her and arising from the offence (an aspect of her post-traumatic stress disorder), and, in particular, the land agent's fees incurred in her selling her house amounting to $3,000.00, are recoverable as compensation "for financial loss".

I assume arguendo that, had this been a claim for damages in tort, the common law rules regarding foreseeability and remoteness of damage would have precluded the plaintiff from recovering.

The questions in this case are whether the incurring of the land agent's fee (a reasonable consequence of the plaintiff's mental injury) was "in consequence of the commission of the offence" (Section 4 of the Act) and whether it was something "arising from the offence" (Section 7(1) of the Act) and whether "a causal connection between the commission of the offence" and the financial loss has been proven (Section 8(1a) of the Act).

As it happens, I was called upon to give consideration to the law on this topic more than 16 years ago in Sexton v Bairstow & Others (1981) LSJS 32 and again a little more than 10 years ago in Johnstone v Smith & Another
(1987) 136 LSJS 371.As long ago as the first of those cases was decided, GIO of NSW v R J Green & Lloyd Pty Ltd (1965-66) 114 CLR 437 was considered to be a leading authority (see, in particular, Windeyer J at p. 447).

In Johnstone's case (supra) I said (at p. 375):

"In Sexton v Bairstow and Cockburn and The State of South Australia (1981) LSJS 32 I had occasion to consider the meaning of the words 'in consequence of' as used in section 4 of the Act and I sought to explain my understanding of the notion of causation in relation to this Act at a time when the standard of proof was proof on the balance of probabilities.I held that the words 'in consequence of' postulate a causal relationship between the commission of the offence and the injury suffered.In order to be entitled to compensation an applicant must prove that the injury was, in a relevant causal sense, contributed to by the commission of the offence.

Notwithstanding the change in the standard of proof (to proof beyond reasonable doubt) applying to the issue of causation brought about by amending Act No. 66 of 1982, which, incidentally, has now been changed again (to proof on the balance of probabilities) by amending Act No. 16 of 1986, I see no reason to depart from the views I expressed in Sexton's case.

The meaning of the words 'in consequence of', as used in section 4 of the Act, was considered in Tchorz v State of South Australia (1984) 36 SASR 373. In that case Mohr J held that 'in consequence of' postulates a direct causal relationship between the commission of the crime and the injury, that no question of foreseeability is involved, and that an applicant must prove that the injury was a consequence of the offence.I understand His Honour to be taking substantially the same view of the law on this topic as I took in Sexton's case.In any event I follow and apply the law as stated in Tchorz's case.

Applying the law of causation (as it applies in the criminal injuries jurisdiction) to the facts of this case, I am satisfied that the applicant has established beyond reasonable doubt that the injury was, 'in a relevant causal sense, contributed to by the commission of the offence'."

Nothing in the cases decided since 1987 leads me to change the views I then held.

The words "by or as a result of" were considered by the High Court in Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666.Those words have some similarity to the words to be interpreted in this case.The test established by Mason J (as he then was) and Wilson J is worthy of consideration (at p. 673):

"There is no basis in the context of the Act itself for regarding the words as having a narrow operation.The words are ordinary English words carrying no special or technical meaning.All that is required is a causal relationship; both the word 'by' and the phrase 'as a result of' indicate a causal connexion. Whether that relationship exists or not is primarily a question of fact.The fact that other unconnected events may also have had some relationship to the occurrence is not material if the criminal act was a cause, even if not the sole cause.The only requirement is that the injury is caused 'by or as a result of' a criminal act."

Noting that Brennan J (as he then was) considered that the use of the word "by" in the definition of "victim" was important, His Honour's approach is persuasive (at p. 679):

"To say that only a 'victim' or those who claim through him may be awarded compensation leaves for resolution the question critical to this case:what nexus between a person's injury and the criminal act or omission of which his injury is a consequence must be shown before an award of compensation under the Act can be made in favour of that person?Or what does 'by' mean in the definition of 'victim' in s. 2(1), in s. 3(1) and s. 14(2)(a)?Clearly the word imports a causative relationship.And so the question relates to a criterion for determining what consequences of the criminal act or omission are to be recognized and what consequences are to be refused recognition as having been caused by a particular criminal act or omission."

His Honour discussed the matters of foreseeability and remoteness of damage at p. 680.

The Full Court of the Supreme Court of South Australia recently considered this question of causation in the context of the Criminal Injuries CompensationAct 1978 in HK & Others v State of South Australia & Anor unreported decision of the Full Court - Judgment No. S6058 - dated 7th March 1997.

Bollen J, with whom Doyle CJ and Duggan J concurred, said (at p. 4):

"The section speaks of injury arising from the offence.The 'victim' is a person who suffers injury 'in consequence of the commission of the offence'. An application of the principle stated (and in my opinion correctly stated) by Olsson J in T v South Australia as quoted by the learned trial judge does not demand a finding of 'the' or 'a' substantial cause.If the evidence proves that there is a causal connection between crime and injury then the case is made out.And injury can, of course, include psychiatric or psychological illness."

It is to be noted that the Court approved of the principle stated by Olsson J in T v State of South Australia (1992) 59 SASR 278 at pp. 288-289, which bears re-stating:

"Leaving aside proven conditions of mental or nervous shock, if the practical effect of the relevant conduct has been to bring about a morbid situation in which there has been some more than transient deleterious effect upon a claimant's mental health and well-being, so as adversely to affect that person's normal enjoyment of life beyond a situation of mere transient sorrow and grief, then, in the relevant sense, the person has sustained mental injury."

Applying the law to the facts of the present case, I am satisfied on the balance of probabilities that a causal connection has been established between the crime and the financial loss sustained by the incurring of land agent's fees.In the context of this case the injury was the recognised psychiatric illness known as post-traumatic stress disorder, a necessary and reasonable consequence of which (or sequel) was the fear associated with continuing to live in the house in which the crime was committed and the reasonable necessity to move her place of residence.Compensation, when assessed on common law principles, is payable as claimed.It sounds in damages in the nature of special damages, in much the same way as the plaintiff is entitled to compensation by way of damages for financial loss for loss of earnings and loss of earning capacity.

If the cost of replacement of dentures is an item in respect of which compensation may be awarded under this Act [see Dale v Chenoweth (1980) 24 SASR
510], then, by parity of reasoning, the kind of expense (in terms of land agent's fees) incurred by the plaintiff here is recoverable.That kind of expense is also recoverable by virtue of the application of the principles discussed supra.

It is for these reasons that I find that, in consequence of the commission of the offence and arising therefrom, the plaintiff sold her home and, in doing so, incurred financial loss by way of land agent's fees to the amount of $3,000.00.

[His Honour then summarised the assessment of the plaintiff's compensation as follows:

Non-financial loss$9,000

Financial loss:Past$25,000

Future$9,000$34,000 ) subject

) to the

Land agent's fee$3,000 ) formula

________

$46,000

and, after hearing the parties as to the matters of costs and disbursements and the question of what sums are subject to the formula, His Honour made anorder that there be judgment for the plaintiff against the defendants for the sum of $37,250 compensation (after applying the formula to the sum of $34,000 plus $3,000 but not to $9,000), plus $2,150 costs and $4,116 disbursements.]