Greer & Greer v State of SA & Anor No. Cicd-94-1002, Cicd-94-1003 Judgment No. D3375

[1996] SADC 3375

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Lowrie

Hearing

09/01/96.

Catchwords

Claim for compensation under Criminal Injuries Compensation Act Finding second named defendant used threatening and abusive language to the plaintiffs who suffered anxiety and depression.Compensation assessed at a total figure of $6,000 for each plaintiff.

Materials Considered

• Criminal Injuries Compensation Act 1978ss7(8) and s8;
• Criminal Law Consolidation Act 1935s19;
• Wrongs Act 1936s35a, referred to.
• Loter v Bruza and the State of South Australia (1983) SASR at 334;
• State of South Australia v Bole Unreported judgment delivered 31 August, 1995, considered.

Representation

Plaintiff JOHN MILLER GREER:
Counsel: MR H M McLEAN - Solicitors: McLEAN &; CO

Plaintiff IBOLYA GREER:
Counsel: MR H M McLEAN - Solicitors: McLEAN &; CO

Defendant STATE OF SOUTH AUSTRALIA:
Counsel: MS K S SCHULZ - Solicitors: CROWN SOLICITOR'S OFFICE

Defendant GLORIA MALESZEWSKI aka GLORIA WOODLANDS:
Counsel: MR C J ALLEN - Solicitors: ARMOUR &; CO

CICD-94-1002, CICD-94-1003

Judgment No. D3375

31 January 1996

(Criminal Injuries Compensation Division)

JUDGMENT NO D3375

GREER and GREER v STATE OF SA and MALESZEWSKI

FILE NO CICD-94-1002 and CICD-94-1003

HIS HONOUR JUDGE LOWRIE

The plaintiffs, Mr and Mrs Greer, initially commenced these proceedings in December 1994 solely against the State of South Australia, alleging that unknown offenders committed offences of threatening life and property damage between the months of October 1992 and February 1993 at their house property at Ashley Street, Torrensville, and by reason of such offences they both suffered depression diagnosed as an adjustment disorder which was continuing and they consequently both require psychiatric counselling and treatment.Consequently, they claimed damages under the Criminal Injuries Compensation Act.

When the matter came on for directions the Crown intimated that it required certain persons to be joined.There was some initial skirmishing as to whether this course should be followed and eventually the plaintiffs sought and were allowed to join the second named defendant as a party to the proceedings, who then appeared and denied the allegations.

There was a request for further and better particulars.The plaintiffs specifically pleaded that:

1. Between October 1992 and February 1993 the second defendant telephoned the plaintiffs on approximately six or seven occasions and made indecent and threatening remarks to the plaintiffs.

2. Between October 1992 and February 1993 a person known to the plaintiffs as "Steven" telephoned the plaintiffs on one occasion and made indecent remarks to the plaintiffs.

3. Between October 1992 and February 1993 the second named defendant, in company with another person known only to the plaintiffs as "Charles", and a person known as Margaret England, made indecent and threatening remarks to the plaintiffs.

4. During 1993, an offender or offenders, whose identity is unknown committed two offences of property damage against the plaintiffs.A portion of the plaintiffs' garden was poisoned on these occasions.

5. On 19 August, 1993, the second defendant approached the plaintiffs at Ashley Street, Torrensville, in breach of an Order of Restraint made in the Adelaide Magistrates Court on 18 March, 1993, and made indecent and threatening remarks to the plaintiffs.

The second named defendant denied the further allegations.

The matter proceeded to trial.The plaintiffs gave evidence and called Dr Jennings, a psychiatrist, and the person referred to in the pleadings as "Mrs England".The second named defendant gave evidence.

EVIDENCE

Mr and Mrs Greer have lived a number of years at 76 Ashley Street, Torrensville.Mr Greer has been retired from his employment for a number of years.They outlined how they, over the years, have become acquainted with a number of people in this area, including Mrs England.

There was a barbecue at their house for the birthday of the male plaintiff in October 1992.Clearly a substantial amount of alcohol was consumed by the people who attended, including the plaintiffs.Present at the barbecue was a person called Paul Rivers, "Steve" and the second named defendant.There was an altercation between Steve and the male plaintiff who, no doubt, was somewhat inebriated.

In any event the barbecue came to an end and the visitors left.Since that time the plaintiffs said their relationship with the second named defendant has deteriorated.

The male plaintiff said the second named defendant phoned at least on three occasions in the latter part of 1992 and early 1993 and said words to the effect to him that he was a "liar" and "they were going to get me - the boys were going to get me".He was threatened with a kicking.He said that the second named defendant kept reiterating words like "the boys are going to get you".He said always there was a lot of swearing on the telephone.He was aware that Mrs England had sons and thought it may have been a reference to them.He was sure that the person making these phone calls to him was the second named defendant.

He was also aware, in this time, that there was a phone call he received which he felt was from the person "Steven" and he heard a laugh he recognised as the second named defendant in the background.He said he felt quite threatened and menaced by these phone calls and he eventually put up a six foot picket fence and padlocked it each night.He said he was also aware that his wife received phone calls.

Eventually they arranged with Telecom to have a silent line on two or three occasions.The calls persisted even though they had silent numbers.

In August 1993 when he was coming to Adelaide as he was on jury duty, he saw the second named defendant drive past him at the bus stop a number of times and eventually she came to where he was sitting, looked at him and said "You're dead, cunt".This was a time after they, in fact, had obtained a restraining order against her in the Adelaide Magistrates Court.

It was also at this time at the bus stop when she said the further words like -

"'You're going to cop it' and I said, 'the only person that's going to cop it is you because you've broken the restraint order', she said, 'You prove it'."

He said he really felt very ill about this confrontation.

He said prior to this time there was an occasion when he remembered that Mrs England was present in his street and the second named defendant had yelled out at him similar words.He was about 25 metres away.Also at this time she called out to his wife that she was "a slut, a whore, no wonder your husband won't fuck you, you lesbian".

He said these threats caused them great anxiety and they sought medical advice.They saw their own doctor six or seven times and were then referred to Dr Jennings.Since this time they have also received assistance from a social worker from the Victims of Crime authority.

The male plaintiff was cross-examined in a little more logical manner than his evidence in chief was presented and confirmed after what I will call the "barbecue incident" and the first telephone calls, they complained to the police on 29 December, 1992.The cause of this complaint was the offensive phone calls and they eventually advised the police because they had had a silent number installed they would not proceed with the complaint.Mr Greer outlined that he felt that after discussions with the police that a silent number may well be the answer and stopped the complaint.He believed that the silent number was installed in late December 1992.

The male plaintiff said that not only was it the phone calls, but it was also the verbal confrontation that caused him concern.The male plaintiff was certain that he received phone calls from the second named defendant after their silent number was installed.

The plaintiffs obtained a restraint order directed to the second named defendant on 18 March, 1993, and following this there was the incident at the bus stop in August 1993.

It was put to the male plaintiff that this incident occurred because the second defendant had difficulties with her car.The plaintiff denied this suggestion.

Mrs Greer gave evidence.She is a small slight woman.She was tearful during most of her evidence.Clearly these events have caused her a considerable amount of stress.She recalled the birthday party for her husband in October 1992 when there was an argument between Steven and Paul.She confirmed that there had been a fair amount of alcohol consumed at this party.

She then confirmed the nature of the telephone calls from the second named defendant after this incident, threats which occurred not only against her, but to her pets.She felt that there may well be "six - eight, there may be 10" phone calls from the second named defendant and particularly mention of words, the "boys going to fix you, you slut, you going to be sorry".She kept asking in these phone calls for the second named defendant to leave them alone.

She also confirmed how they had made a complaint to the police and caused their telephone number to be changed.She also recalls an occasion when the second named defendant was yelling at them in their street and that Mrs England was with her at this time.The words were that she was a lesbian and a slut and threatening words.Also in this time her nature strip was poisoned and had to be replaced.She eventually said that after these phone calls and threats she felt awful, she could not sleep and had nightmares and consequently went to see her doctor and was then referred to Dr Jennings.At this time she also had counselling from a social worker from the Victims of Crime authority.

Mrs England gave evidence and outlined her friendship with both the plaintiffs and the second named defendant and confirmed she had two sons and had some difficulties with these young men with some minor police troubles.She said she had known the second named defendant for something like twenty years and had heard about the party incident.There was an incident when some letters had been delivered to her house.She said both the second named defendant and herself had thought perhaps the female plaintiff may have been responsible for the letters, but, it could have been someone else.

Mrs England remembered an occasion when she was present when Gloria's friend Steve made a threatening phone call to the, she believed, male plaintiff who answered the phone when Steven made a reference to what he proposed to do to the female plaintiff.The phone call was made from the second named defendant's house.

She remembers an occasion after this when she was walking with the second named defendant and they saw the female plaintiff and the second named defendant then yelled out, "'you fucking slut', 'you lesbian, no wonder your husband doesn't want to fuck you you're too ugly.'".This occurred on the footpath near the house.Since that time it seems that Mrs England has also fallen out and is not now friendly with the second named defendant.

The second named defendant gave evidence and in that evidence denied all of the relevant allegations made against her by the plaintiffs.

She outlined that she had known the witness, Mrs England, for some thirty years and in recent times there has not been much contact between them.She recalled a barbecue that she attended at the plaintiffs' home in October 1992. Prior to that she had seen the female plaintiff socially on a number of occasions.She recalled the evening of the male plaintiff's birthday barbecue and said there was a lot of alcohol consumed on this occasion and eventually there was a verbal altercation between the plaintiff and a person by the name of Steven Klarsson.At the time she said Mr Greer was involved in a minor altercation, but that Steven Klarsson was a young man and said to Mr Greer that he "wouldn't hit an old man" like him.Indeed, she said the male plaintiff fell over and hit his head.

Mrs Woodlands denied thereafter that she had had any phone conversations of a threatening nature with the plaintiffs.

She recalled there was an incident at the bus stop involving Mr Greer, but said she was having trouble with her car and drove it around the block several times and eventually parked the car and then returned to the bus stop shelter. She felt this was a day she had to be at the Port Adelaide Court, however, she did nothing and said nothing, just sat down and waited for the bus.

Mrs Woodlands also denied any offensive remarks directed to Mrs Greer in the street at Torrensville in the presence of Mrs England.

FINDINGS

The plaintiffs, both aged people, and in some respects there is concern about the vagueness or rather general nature of their evidence.However, I am not prepared to make a finding that they have not, other than doing their best to recall the events of these incidents, to accurately recall the events of these incidents.

On the other hand, Mrs Woodlands was not impressive.I had reservations about the manner in which she gave her evidence.

Mrs England was very much an independent person although in recent times she has fallen out with the second named defendant but was quite impressive and had little to gain from any party and doing her best to be truthful in her recollection of the events and particularly the street conversation where Mrs Woodlands abused the female plaintiff.This was an allegation that Mrs Woodlands denied.

I have little doubt in accepting Mr Greer's evidence of the events at the bus shelter and the remarks directed to him by Mrs Woodlands and bearing in mind that there was a restraint order against the second defendant.I reject her evidence of her car breaking down at Torrensville.The reason she eventually parked her car was to use the threatening language to the male plaintiff.

PRINCIPLES

Section 8 of the Criminal Injuries Compensation Act casts the obligation on the plaintiffs to prove beyond reasonable doubt the commission of an offence. Unlawful threats one to the other with the purpose of endangering life or the intention to create a fear that such a threat is likely to be carried out or is recklessly indifferent as to whether such fear is aroused is an offence under section 19 of the Criminal Law Consolidation Act.

I believe the plaintiffs have established such a threat by virtue of the telephone calls by the second named defendant to them in that period late 1992 to early 1993.I accept the plaintiff's evidence concerning the bus stop incident and by that conduct, the second named defendant was in breach of the restraint order.

Section 7 of the Criminal Injuries Compensation Act sets out the basis for the award of compensation.The quantum of the award is provided in section 7. Subsection (8) provides:

"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, or an application under subsection (2) for compensation for financial loss--

(i) if the amount of the compensation to be awarded on the application would, but for this subparagraph, exceed $2,,000, the amount awarded will, subject to subparagraph (ii), be $2,,000 plus three-quarters of the excess;

and

(ii) If the amount arrived at in accordance with subparagraph (i) would, but for this subparagraph, exceed $50,,000, the amount awarded will be $50,,000;"

The relevant principles for the assessment of compensation of this section are contained in Loter v Bruza and the State of South Australia (1983) 32 SASR at 334.

The provision was amended on 12 August, 1993, and in effect still provides a maximum of $50,000, but in assessing that loss a court is obliged to assign a numerical value on a scale from 0 to 50.In doing so the greater the severity of the non-financial loss, then the greater the number that ought to be ascribed, in effect, similar but identical to the provisions of the relevant provisions of section 35a of the Wrongs Act.Those provisions have recently been examined in the decision of the State of South Australia v Bole a judgment of the Honourable Justice Lander delivered on 31 August 1995.

Consequently, I am obliged to endeavour to assess compensation for the plaintiffs under the former subsection and in so far as there was any aggravation of that condition after August 1993, apply the provisions of the new subsection.

My findings are that the plaintiffs did suffer depression and distress by these threats and this depression and anxiety condition was sufficient for Dr Jennings to describe the same as an "adjustment disorder".The condition was exacerbated by the street and then the bus stop incidents.

However, since that time clearly the harassment has not continued.No doubt the restraining order may have assisted although there was the one flouting of that order.

Since that time the second named defendant has not obviously carried on with her abusive and threatening language.

However, there was the incident in December 1994 by a person, the male friend of the second named defendant, which to some extent then aggravated their anxiety condition.I have no doubt that Mrs Greer, by reason of her psychiatric background, is a fragile person.

Dr Jennings outlined that the first complaints were referred to him and he attended the plaintiffs in February and March 1994.He then reviewed them in February 1995, but they did not attend a follow up assessment in March 1995. Dr Jennings conceded that the adjustment disorder could be categorised as fairly minimal and he would have expected their condition to have resolved by October or November 1994, bearing in mind the nature of their anxiety. However, clearly, the incident in December 1994 did to some extent re-activate their condition.

However, doing the best I can in all the circumstances, I propose to award the plaintiffs each the sum of $6,000.I do not believe they have contributed so each of the plaintiffs are entitled to the initial $2,000 and three-quarters of the balance sum.Consequently, I award the sum of $5,000.

The incident after December 1994 did aggravate their condition.It was a minimal aggravation.Doing the best I can in the circumstances, I award the numeral 1 for this aggravation.Consequently, I award each of them $1,000.

I formally make an order that each of the plaintiffs receive compensation in the sum of $6,000.

LATER IN COURT

H H publishes his reasons for decision.

There will be judgment for each of the plaintiffs in the sum of $6,000 each.

Plaintiffs to have their costs and disbursements of the action to be taxed or agreed.

I make an order that the State of South Australia recover the amount of the judgment costs from the second named defendant, however, I will not enter that for a week, to give Mr Allen, counsel for the second named defendant, a chance to argue the question of costs before me.