Higgins v State of South Australia & Cornish No. Dccic-01-377

[2003] SADC 132

Higgins v State of South Australia & Cornish
[2003] SADC 132

Judge Lee
Criminal Injuries Compensation

1. This claim for compensation under the Criminal Injuries Compensation Act, 1978 concerns an assault upon the plaintiff by the second defendant at the Robe Hotel on 14 August 1998. The second defendant was subsequently convicted upon his plea of guilty to the assault in the Magistrates Court.

2. The assault was the outcome of a pub brawl.  The brawl must have been witnessed by a number of people, but the only versions before me are the versions of the parties.  Each sought to blame the other for starting the brawl, their accounts of the brawl itself were conflicting, and neither was a convincing witness.

3. In the end, the only facts which seem to be common ground between the parties are as follows:

   1.   The parties are cousins, and had been good friends for many years before they fell out two or so weeks before the assault.

   2.   During the evening of 14 August 1998, whilst playing eight ball with a person in the front bar of the hotel, the plaintiff got into an argument with that person.

   3.   The second defendant intervened, others also became involved, and a struggle ensued between the plaintiff and the second defendant.

   4.   The struggle moved from the bar to a passageway, and then from the passageway to the drive-in bottle shop.

   5.   After reaching the bottle shop, the plaintiff and the second defendant began to wrestle on the ground.

   6.   Whilst the plaintiff and the second defendant were wrestling on the ground, the second defendant bit off part of the plaintiff’s nose.

4. These are the facts that I am prepared to accept as proven on the balance of probabilities.  Since anything else would be speculation, the second defendant has not established, in terms of s.7(9) of the Act, that the conduct of the plaintiff contributed, directly or indirectly, to the commission of the offence, nor has he established, in terms of s.7(9aa) of the Act, that the injury to the plaintiff occurred while the plaintiff was engaged in conduct constituting an indictable offence.

5. As for the offence committed by the second defendant, that has been proved beyond reasonable doubt.  Clearly, as the second defendant’s plea of guilty in the Magistrates Court necessarily implies, his use of force in biting off part of the plaintiff’s nose went beyond self-defence.

6. The plaintiff is now 33 years of age, and single.  He left school after year 11, and since then has undertaken casual or seasonal work with gaps in between.  His main employment has been in bricklaying, shark fishing, concreting and brick paving.  Following the assault, his nose was sewn back on at the Robe Community Clinic and he was then flown to Adelaide and admitted the same day to the Royal Adelaide Hospital for a graft.  After his discharge on 19 August 1998, he was readmitted on 24 August 1998 after the graft had failed.  His further treatment is described in a report dated 8 November 1999 of his plastic surgeon, Dr Mark Moore, as follows:

   “The nasal wound was further debrided on 25 August 1998 and then on 27 August 1998 the tip of the nose was resurfaced using a midline forehead flap incorporating cartilage harvested from the left ear.

   On 14 September 1998 he underwent division and inset of the forehead flap, this allowing the completion of the first stage of his reconstruction.

   Subsequent review at Outpatients at the Royal Adelaide Hospital occurred on 25 September 1998 and 18 December 1998.  At this most recent review it was noted that the forehead flap reconstruction of the nasal tip was somewhat bulbous and recommendations were made for thinning of this flap to be undertaken subsequently.

   On the basis of the hospital notes as made available to me, there is no record that this further revisionary procedure has been undertaken.

   On that basis I believe that it is likely that he will require further revisionary surgery on one, if not two, occasions and that only at the completion of this will it be possible to comment on both the functional and cosmetic outcome of his facial reconstruction.

   In general terms, I believe he will be left with a pattern of scarring which will be of significant cosmetic and social significance.  Quantification of this however will not be possible until completion of his treatment programme.”

7. In a subsequent report dated 26 September 2001, Dr Moore said that the plaintiff was reviewed again at Outpatients on 14 March 2000, and that revision of the reconstructed nasal tip, that is a thinning of the flap, was again recommended.

8. The plaintiff told me that, following his discharge from hospital, he was off work for “something like two months”.  Dr Moore said that the surgery performed on the plaintiff normally takes three to four weeks to completely settle.

9. The plaintiff also told me that he is on the waiting list of the Royal Adelaide Hospital as a public patient for the further treatment recommended by Dr Moore.  Every three months the hospital sends him a form and he responds by confirming his wish to remain in the queue.  Dr Moore said that it is likely that he will require two admissions for the revisionary surgery each of one day and one night and separated by a period of two to three months.  The revisionary surgery will improve the contour of the nose, but will have no impact on the scars and the symptoms.  The plaintiff said he would have the surgery privately if he could.  Dr Moore said that the likely costs of private surgery on each occasion would be as follows:

   theatre                $500       -       $1,000

   hospital              $300       -       $500

   anaesthetic        $400       -       $500

   surgery               $500       -       $1,000

   $1,700    -       $3,000

   Dr Moore said that the plaintiff would be away from work for about one week on each occasion, and that the anaesthetic and surgery fees would be subject to a Medicare rebate of 30% to 50%.

10. The plaintiff’s face was, and notwithstanding revisionary surgery will remain, disfigured by a number of scars, namely a linear scar over the bridge and on both sides of his nose, a linear scar in the shape of an inverted wish bone above his nose and right eyebrow, and an irregular but generally circular scar approximately four centimetres in diameter high up on his right forehead.  His nose runs frequently, and there is a loss of sensation.

11. At the instigation of his solicitors, the plaintiff saw a psychiatrist, Dr Patrick Flynn, on 21 January 2000.  I quote the concluding paragraphs of his report dated 25 January 2000 for his opinions and for a convenient summary of the impact that the injury had upon the plaintiff to that time:

    “Mr Higgins was assaulted at Robe on the 14^th August 1998.  In the assault his nose was bitten off and he has required plastic surgery to re-establish the appearance of his nose.  Because of the complex nature of his plastic surgery Mr Higgins is highly self conscious regarding his appearance and he has lacked confidence to develop appropriate relationships with women since the assault.  His mood was angry and irritable and he had a sleep disturbance which persisted for approximately six months after the assault before spontaneously stabilising.  He continues to have intrusive recollections about the assault.  He has avoidance behaviour relating to his friends and meeting women.  His repertoire of social relationships and recreational pursuits have been substantially affected since the assault.

    Mr Higgins is not keen on further psychiatric treatment and he is unlikely to benefit from counselling.  His desire for revenge is concerning as I suspect that he will carry through his plans in this regard at some time in the future.

    From a diagnostic perspective I consider that Mr Higgins developed an Adjustment Disorder with Anxious Mood after the assault.  His ability to function effectively in a range of social and occupational pursuits were affected.  His adverse psychiatric symptoms attributable to this condition have largely abated but he continues to have persisting symptoms of anxiety, altered self image, lowered personal confidence and poor self esteem.  His social relationships remain affected.

    I consider that Mr Higgins will accrue a level of permanent disability on psychological grounds stemming from the assault amounting to five percent of total bodily impairment.  He remains at risk of developing further adverse psychiatric symptoms if he is once again exposed to a similarly threatening or dangerous situation in the future.”

12. In evidence before me, the plaintiff confirmed the history taken by Dr Flynn, and said he remains irritable and self-conscious about his appearance and still avoids the company of women.

13. There was debate during the hearing about whether “Adjustment Disorder with Anxious Mood” falls within the diagnostic criteria of DSM IV (Diagnostic and Statistical Manual of Mental Disorders).  So long as the plaintiff’s psychological state arises as a consequence of the assault and the physical injury, I do not think that it matters what label is chosen to describe it.  In a passage from T v South Australia (1992) 59 SASR 278, cited with approval by the Full Court in HK v South Australia (1997) 190 LSJS 177, Olsson J drew a distinction between mere transient sorrow and grief and a morbid psychological condition, with the former falling outside and the latter falling inside the definition of “injury” in s.4. In each of T v South Australia and HK v South Australia, however, no physical injury arose from the commission of the offence, and the psychological state or condition had to stand or fall on its own.  In the case before me, the plaintiff’s psychological state occurred as a consequence of the assault and the physical injury, and so it is unnecessary to view it in isolation for the purpose of determining whether it qualifies independently as an “injury”.  It is compensable, in my opinion, irrespective of whether it falls inside or outside normal limits, and irrespective of how it is described.

14. Pursuant to s.7(8)(a)(ii) of the Act, the plaintiff’s non-financial loss falls to be compensated by multiplying a numerical value on a scale between 0 and 50 by $1,000.  I have considered awards in other cases cited by counsel, but in the end it is the application of the scale to the individual injury which must be the over-riding determinant of the loss.  I must compare the non-financial loss suffered by the plaintiff against the worst possible non-financial loss that anyone could suffer as the victim of an offence: South Australia v Bole (1995) 64 SASR 379 at 382. I assign a numerical value of 10, which means that the plaintiff’s entitlement for non-financial loss is $10,000.

15. As for the plaintiff’s financial loss, at the time of the assault he was performing seasonal work in a vineyard for $500 per week.  He had been engaged in that work for one week, and expected to continue for a further two or three weeks.  Upon his return to work following the injury, he worked for a plumber in Murray Bridge, as a bricklayer and concreter in Adelaide, and then as a brick paver in Alice Springs where he remains.

16. The plaintiff’s tax returns show that his earnings before and after the assault were as follows:

Year ended 30 June	Gross	Centrelink payments	Exclusive of Centrelink payments
1995	$ 14, 480.00	No Benefits	$ 14, 480.00
1996	$ 22, 935.00	$ 4, 767.00	$ 18, 168.00
1997	$ 17, 780.00	No Benefits	$ 17, 780.00
1998	$   4, 486.00	$ 2, 238.00	$   2, 248.00
1999	$ 14, 516.00	$ 2, 595.00	$ 11, 921.00
2000	$ 12, 247.00	$ 2, 922.00	$   9, 325.00
2001	$ 36, 315.00	No Benefits	$ 36, 315.00
2002	Not available

1. The plaintiff’s loss of income cannot be assessed with any precision.  It was his choice before the injury to work intermittently rather than full time.  Since moving to Alice Springs, however, he seems to have worked more or less full time.  In the end, I consider that a fair, albeit rough and ready, approach will be to base his weekly loss during the time that he spent in, and recuperating from, the treatment that he received from Dr Moore upon earnings, exclusive of Centrelink payments, of $15,000 per year or $288 per week.  After deducting, say, 20% for tax, the result, in round figures, is $230 net per week.  Allowing four weeks for the initial hospital treatment and associated time off work, and four weeks thereafter for convalescence, or eight weeks overall, I arrive at $1,840.

2. Although the cost of public treatment at the Royal Adelaide Hospital may not be refundable from criminal injuries compensation, the plaintiff’s evidence is that he wishes to have the surgery privately.  In these circumstances, I consider that he is entitled to recover the cost of private treatment upon the basis that the middle of the range of figures supplied by Dr Moore represents the reasonable cost of satisfying a proven need.  For each procedure, I allow $1,870, being $750 for theatre, $400 for hospital, $270 for anaesthetic net of 40% Medicare rebate, and $450 for surgery net of 40% Medicare rebate.  For the associated time off work, I allow three weeks at $300 per week.  This brings the plaintiff’s total financial loss to $6,480 ($1,840 plus $3,740 plus $900).

3. It must follow that the plaintiff’s entitlement under s.7(8)(a)(i) of the Act is $2,000 plus $3,360 (three quarters of $4,480) or $5,360 overall.

4. In the result, I award $10,000 for non-financial loss and $5,360 for financial loss, making a total of $15,360.

5. With respect to the second defendant’s means, he owns a house property of unknown value, and his mortgage debt on that property is approximately $34,000.  The second defendant has not received, and is not likely to receive, payments for his injury from any other source.