Heil v The State of South Australia and Osborne No. Cicd-97-270

HEIL V THE STATE OF SOUTH AUSTRALIA AND OSBORNE

[2000] SADC 139

1................ JUDGE BURLEY......... The plaintiff claims compensation pursuant to the provisions of the Criminal Injuries Compensation Act 1978 (the Act). It is not disputed by either defendant that the second defendant assaulted the plaintiff on 3 May 1996 at Ashley Street, Torrensville, South Australia. The second defendant was charged with a number of offences arising out of the incident on 3 May 1996. Initially he entered a plea of not guilty but during the course of the trial, after the plaintiff and his de facto wife had completed their evidence, the prosecution withdrew the more serious charges on the defendant’s guilty plea in respect of a charge of common assault.

The first defendant does not dispute that the plaintiff is entitled to a modest award of compensation. The second defendant, the offender, has contended that Section 7(10) of the Act applies so as to deprive the plaintiff of an award. That provision is as follows:-
“(10) The court cannot make an order for compensation where the amount of compensation would be less than $1 000.”
There has been no claim for financial loss. The plaintiff accepts that his entitlement to compensation is to be carried out by reference to Section 7(8)(a)(ii) of the Act which 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, ...
(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; ...”
Apart from the potential application of Section 7(10) of the Act, there is no other provision in the Act applicable to this case which limits or precludes the plaintiff’s claim.
The plaintiff gave evidence and called Dr RJ Hafner, psychiatrist. The first defendant did not call any evidence and the second defendant called Dr A Kalnins although he did not give evidence himself.
The plaintiff gave evidence about the circumstances of the assault and the consequences of the injuries he sustained. The defendant did not contest the plaintiff’s evidence relating to the assault. The second defendant contested the plaintiff’s evidence relating to the consequences of the injuries he sustained.
On the basis of the plaintiff’s evidence, I find that prior to the assault the plaintiff and the second defendant were next door neighbours. The plaintiff lived with his de facto wife who, at the time of the assault, was very ill. The plaintiff was in receipt of a pension which enabled him to care for his wife. The defendant and his wife lived in adjoining premises. According to the plaintiff, there had been a history of harassment by the second defendant in respect of the plaintiff and his wife. Among other things, the second defendant used to taunt the plaintiff by calling out neo-Nazi statements incorporating the plaintiff’s surname.
On the day of the assault, the plaintiff left his premises with his dogs with a view to taking them for a walk. As he passed in front of the driveway of the second defendant’s premises, the second defendant called out to him indicating that he wished to speak with the plaintiff. He referred to a letter that had been placed in his letterbox. It is not clear from the evidence whether he was referring to a letter placed in the letterbox by the plaintiff. The plaintiff did not state in evidence whether he had placed a letter in the second defendant’s letterbox. However, he said that he asked the second defendant to leave his dogs alone. He explained that in the past the second defendant had been aggressive towards the dogs kept by the plaintiff and his wife.
In order to have this conversation with the second defendant, the plaintiff had walked partway into the driveway of the second defendant’s premises. He said that when he had asked the second defendant to leave his dogs alone, he walked away from the second defendant towards the footpath. It was then that the second defendant grabbed the plaintiff by the throat. He said that the second defendant then hit him a dozen or more times. Apparently, as the assault was taking place, the plaintiff’s wife came onto the scene.
The plaintiff said that the second defendant then assaulted his (the plaintiff’s) wife causing her to fall over and break her arm. He also said that she suffered a stroke. He did not explain in any coherent fashion how this occurred. It was put to him in cross-examination that she was not assaulted by the defendant but tripped over her dressing gown and broke her arm in that manner.
On the question of what happened to the plaintiff’s wife, the plaintiff’s evidence is not sufficiently clear for specific findings to be made. The defendants did not call any evidence on the topic and the plaintiff vigorously disputed the suggestions put to him in cross-examination that the broken arm was caused by her tripping over her dressing gown. I find that there was physical contact between the second defendant and the plaintiff’s wife such that she injured her arm. I am unable to make any finding that she suffered a stroke at the time. No medical evidence was called in that regard and the plaintiff’s unsubstantiated assertion is not sufficient to justify such a finding.
As to the injuries sustained by the plaintiff as a result of the assault, he pleaded in paragraph 3 of the Particulars of Claim as follows:-
“3..... As a result of the offence the plaintiff has suffered injury loss and damage as follows;
(a).... During the course of the offence the plaintiff suffered grazing to the right hand, an abrasion to lower the [sic] lip, bruising to the chin, lip and skull, and tenderness in the jaw. The plaintiff received medical treatment in relation to these injury [sic]. These injuries healed within 3-4 weeks of the offence.
(b)... The plaintiff has suffered and will continue to suffer from a Psychiatric condition known as Adjustment Disorder with Mixed Anxiety and Depressed Mood.”
The plaintiff said that he did not seek medical treatment for his injuries until the following day. He sought to explain this in his evidence by asserting that he suffered concussion. On the day after the assault he attended at the Royal Adelaide Hospital and the notes taken by the attending doctor have been put in evidence. The only evidence of injury found by the attending doctor was a small abrasion on the upper lip. There was no record of the plaintiff claiming that he had been concussed as a result of the assault.
In assessing the plaintiff’s evidence, I formed the view that the plaintiff has tended to exaggerate both his physical and psychological injuries. I think the medical notes from the Royal Adelaide Hospital are a more accurate reflection of the nature of the physical injuries sustained by the plaintiff than the account that he gave in evidence. He complained in evidence of having a continuing problem with his throat as a result of being handled in that region by the second defendant during the course of the assault. There is no mention of such an injury in the RAH medical notes. Nor has any evidence been given by the plaintiff of any treatment that he sought for the continuing disability that he had with his throat as alleged during the course of his evidence.
In addition, it is clear that the plaintiff has a deep seated resentment towards the second defendant arising from the withdrawal of charges in the Magistrates Court and the subsequent plea of guilty to common assault. The plaintiff said on more than one occasion during the course of his evidence that the second defendant should have gone to gaol for what he did and he deeply resents the fact that the second defendant only received a non-custodial penalty. His resentment is evidenced by the intemperate language used by him during the course of his evidence when describing the second defendant, what should happen to him and what should have happened in relation to the charges originally brought.
I find that the plaintiff sustained the injuries referred to in paragraph 3(a) of the Particulars of Claim.
The plaintiff alleged that his mental health had suffered as a result of the assault. He said that he suffered stress, from lack of sleep, from recurring nightmares and that he had a “damaged personality”. He says that he still has nightmares about the incident but less frequently than originally. He says he has changed from a non-aggressive to an aggressive person.
After the assault the plaintiff and his wife moved address. Depending on who he was speaking to, the time for changing address was anywhere from a month after the assault to some time after March 1997 when he was seen by Dr Hafner. His evidence on the topic is another indication of the unreliability of his evidence. In making my findings as to the nature and extent of the psychological injury sustained by the plaintiff as a result of the assault, reliance must principally be placed upon the evidence of the two psychiatrists called.
Dr Hafner’s report is Exhibit P2. He saw the plaintiff on 21 March 1997. He took a detailed history from the plaintiff and came to the conclusion that the plaintiff was suffering from Adjustment Disorder with mixed anxiety and depressed mood. He thought that the permanent psychiatric impairment was mild and amounting to about 20 per cent. He thought that half of the impairment was attributable to previous substance abuse on the part of the plaintiff. He said that “the percentage permanent psychiatric impairment that is attributable to the assault (including its effects on Mr Heil’s wife and the repercussions of these upon him) is about 10-12%”.
Dr Kalnins saw the plaintiff at the request of the second defendant’s solicitors on 22 June 2000. In evidence each of the psychiatrists agreed that the report of the other was a reliable statement of the psychological condition of the plaintiff. Dr Kalnins said:-
“I think with the passage of time the level of psychological distress directly attributable to the subject assault has lessened. While Dr. Hafner has placed this at a level of 10-12%, I would consider that a level of 5% is now applicable due to the passage of time. He still continues to present as angry about the situation and I would expect that once the litigation issues are finalized then some of this emotionality will also settle leaving a slightly less permanent level of impairment.”
I accept the evidence of both of the psychiatrists.
In assigning a numerical value in this case I bear in mind that the plaintiff is to be awarded “compensation in respect of the injury arising from the offence” (Section 7(1)). I may not assess the extent of the injury by taking into account matters which contributed to the plaintiff’s condition but which did not arise from the offence. Thus, to the extent that the plaintiff has a significant sense of grievance at the withdrawal of charges and subsequent non-custodial penalty imposed on the second defendant, such matters cannot be taken into account in assessing the extent of his injury. Similarly, I must disregard any contribution to the plaintiff’s condition arising from his reaction to what he said happened to his wife.
I find, on the basis of the evidence given by the two psychiatrists, that the plaintiff sustained, as a result of the assault, an Adjustment Disorder of the nature described by Dr Hafner. Originally, the extent of the assault’s contribution to this disorder was about half (10 per cent out of 20 per cent impairment) which diminished to about a quarter (5 per cent of 20 per cent impairment) by 22 June this year. It is likely that this extent will diminish after the completion of these proceedings. The plaintiff has sustained minor physical injuries but nevertheless the circumstances of the assault must have been a frightening experience. I bear in mind the principles stated by the Full Court in State of South Australia v Bole (1995) 64 SASR 379 relating to the assessment of compensation. I assign a figure of 3.5, which results in an award of compensation of $3 500.
Neither of the defendants called any evidence as to the means of the second defendant. Consequently, for the purposes of Section 7(11)(a), I certify that the means of the second defendant are unable to be ascertained by the Court and for the purposes of Section 7(11)(b), I find that there is no evidence of payments which have been received or would be received if the plaintiff were to exhaust all other available remedies.

[2000] SADC 139

29 November 2000