Hinder v State of South Australia and Flachs No. Dccic-01-137

HINDER v STATE OF SOUTH AUSTRALIA AND FLACHS
[2002] SADC 103
Judge Rice
Criminal Injuries Compensation
Introduction

The plaintiff claims compensation pursuant to the Criminal Injuries Compensation Act, 1978 (“the Act”). Compensation is sought for financial and non-financial loss as the result of an injury in the form of a “mental injury”.
The claim concerns an incident involving an assault by the second defendant upon the plaintiff’s brother. The plaintiff was absent at that time but returned home shortly afterwards. Although there is a question as to whether his brother was there at that time (he may already have been taken to hospital by ambulance), there is no doubt the plaintiff saw widespread blood staining at the house as well as the extensive disarray. The fact of the commission of the offence of assault upon the plaintiff’s brother by the second defendant is conceded. The second defendant was not present in the proceedings before me and was not represented by counsel.
The main questions arising for consideration in this case are as follows. First, what is the meaning of “injury” as defined in the Act; secondly, assuming an injury, has it been proved to be causally linked to the assault; thirdly, even if there was such an injury, was there financial loss that resulted from it; fourthly, what is the extent of any non-financial loss.
Preliminary point - dispensation
Apart from the questions referred to above, there is a preliminary point that arises as a threshold matter. The assault that forms the basis of the claim occurred on 17th October, 1996. The claim was filed on 16th March, 2001, that is, not quite four and a half years after the assault. Against that background, it should also be noted that the plaintiff’s solicitor wrote to the Crown Solicitor’s office on 2nd February, 2001, notifying it of the claim (exhibit P1). I will return to this aspect later.
S.7 of the Act stipulates that an application for compensation must be made within three years of the day on which the offence was committed. S.7(4) provides as follows:-
“The Court may, for any reason it considers sufficient, dispense with the requirement -
(a)that an application be made within a period fixed by this section; or
(b).......... (irrelevant)”
The question arises as to what is meant by, and will amount to, sufficient reason to order dispensation from compliance with the three year requirement.
Resolution of this preliminary point was not dealt with by a separate application or as a discrete point before any evidence was taken. Counsel agreed that the application to dispense with the three year requirement be dealt with as part of the actual application for compensation.
The plaintiff’s explanation for the delay can be stated in fairly short fashion. The plaintiff does not say that he was unaware of his rights pursuant to the Act. His brother received an award of compensation in July, 1998 and his mother an award in February, 1999, both well within the three year period. The plaintiff says that he was unaware of any connection between the assault and his behaviour until after speaking with friends some years later who said he was not the same person after the assault. Becoming aware of the connection between the assault and his behaviour, he decided to make a claim. Dr Blakemore, who gave evidence at the trial, said that was not uncommon. He said (at p.45):-
“A.......In fact, often when people are quite emotionally ill it is not until they have come out of it, as seemed to be happening when I saw Mr Hinder, that they realise how ill they’ve been. This is quite common. People can’t see anything when they’re enmeshed in it. That’s how enmeshed people are sometimes, and recovery gives an ability to take some perspective on it, see outside themselves really, which has been lacking earlier on.”
He quickly spoke with his solicitor who promptly notified the Crown Solicitor.
In opposing the application for dispensation, counsel for the first defendant referred me to Ulowski v Miller 1968 SASR 277. In that case the defendant unsuccessfully applied that the action of the plaintiff be struck out for want of prosecution. The action was a claim for damages arising out of a motor vehicle collision. The defendant appealed against that dismissal. At p.280, Bray CJ provided the following guidance when there is an application to dismiss a claim for want of prosecution:-
“It must be remembered that we are dealing here with a discretion and in my view it ought not to be fettered by any absolute or inflexible rules. It clearly appears from these cases that five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation.”
Further (at p.281):-
“I think the discretion should be exercised as seems best in the interests of justice after considering in relation to the particular case the five matters mentioned above.”
These criteria have been applied to an application of the present type pursuant to the Act: see Smith v State of South Australia and Ellis 142 LSJS 44. I propose to do likewise plus have some limited regard to the nature and purpose of the legislation.
The length of the delay is not inordinate. The application is out of time by eighteen months. In the context of this case, such a period is not so long as to be unacceptable.
Secondly, the explanation for the delay has been referred to earlier. I accept the plaintiff’s explanation. The plaintiff is not a sophisticated person. His schooling was limited. He is very much a “what you see is what you get” type of person.
Thirdly, on the face of the application, there would be a significant hardship to the plaintiff. The economic loss component, if successful, would amount to a considerable sum to someone in the plaintiff’s position.
Fourthly, no real prejudice has accrued to the first defendant. On the one hand, the first defendant’s psychiatrist may have been in a better position to assess him closer to the assault. On the other, because of the lapse of time here under consideration, his psychiatric position is resolving.
Fifthly, the conduct of the litigation is not such as to warrant refusal of dispensation.
Finally, although not mentioned by Bray CJ, no doubt because the context was quite different, some regard should be had to the nature and purpose of the legislation. It is to provide compensation for injury and certain types of loss following the commission of a criminal offence. A fund of money from which payments are made has been created by levies upon those convicted of crimes. To the extent that the fund is insufficient to meet payments, recourse is had to General Revenue. For many, the Act may provide the only avenue of compensation. From the material before me, this plaintiff falls into that position. As Bray CJ said, “....the discretion should be exercised as seems best in the interests of justice....”
In this case, I make an order, pursuant to s.7(4) of the Act, dispensing with the requirement that the application be made within the three year period stipulated in s.7(1). In my view, there is sufficient reason for so doing.
Factual background
I find the following facts.
The plaintiff was born on 17th September, 1968 and is now aged 33 years. At the time of the events giving rise to this claim, that is 17th October, 1996, the plaintiff was aged 28 years.
The plaintiff had become aware of threats against his older brother, Warren. With a view to protecting his brother if he was attacked, the plaintiff went to live with him for much of the time. On the day of the assault upon his brother, the plaintiff was called away from the house for a short while. He was told by telephone of an incident involving his brother and returned home immediately. By the time he returned to the house the assailants had left.
As to his observations when he returned, his evidence is as follows (at p.10):-
“Q.What did you observe.
A.I observed all the windows in the car were smashed, the front windows of the house were smashed, they had stolen cigarettes, there was blood all over the floor, there was blood all over the door. You could see where he’d been like, beating him with a chair, someone had been beating him with a chair and he’d gone for the back door and you could see where he was on his hands and knees, he must have been crawling around, and trying to reach for the door and there was all blood just below the door handle.
Q.Was there evidence of him being struck with a pitch fork.
A.Yes, he’s got holes in his body to prove it.
Q.Was he conscious when you got back.
A.Yes, he was conscious and he was being taken care of by the ambulance people.
Q.Did he go to hospital in the ambulance.
A.Yes, he went to hospital.
Q.How long was he in hospital for.
A.He was in a hospital for about I think it was a week, because he had concussion or it could have been a few days, it was about between three days to a week.”
Thereafter, it appears that the plaintiff moved permanently into his brother’s house to act as his “counsellor” (at p.11). The plaintiff said he lived there for a year or more to help sort out his brother’s problems.
At the time his brother was assaulted, the plaintiff was employed by Pioneer Building Products as a machine operator. He said he worked for that company for seven years as a permanent employee and three years before that as a part-time employee. He enjoyed the work because it was a challenge. He had been going out with a woman for two and a half to three years. He enjoyed life, socialising with friends, going to barbecues and the like. He had no emotional problems and thrived on stress and helping others.
After the assault on his brother, he became embroiled in sorting out his brother’s problems. His brother began having nightmares, particularly that the assailant (the second defendant) would break in and rape his (Warren’s) girlfriend. The plaintiff described his brother becoming delusional and paranoid.
The plaintiff went on to describe how he, the plaintiff, took on all these problems and started having nightmares himself. By way of example, the plaintiff started having nightmares “....that people were coming into my house and kicking the doors down and stabbing me while I was asleep and stuff like that.” The plaintiff said he had become suspicious of people, whereas, before the assault on his brother, that had not been the case; he had been friendly to everyone. The plaintiff said he started taking all his brother’s problems on. The plaintiff went on to describe having two or three breakdowns. He said this (at p.14):-
“A.Well I couldn’t cope with life any more. Like - because I was strong for everybody else and like, I used to cook for everyone, clean for everyone and - then on top of that, taking on Warren - all Warren’s problems, I just had no-one to turn to and even when I went and seen a - a social worker, I was only there for half an hour and I got offered a job as a social worker and I said, ‘Come on, I can’t - I’ve got enough problems of my own without becoming - helping people again’.”
And later (at p.14):-
“A.- I was crying every day. I wouldn’t tell anyone that, I’d just lock myself in my house, break down and cry. And that was it basically. Sleep, cry, no motivation, didn’t want to do anything, didn’t want to work, didn’t want to do nothing.
Q.And how long did that go on for.
A.That went on for about a year; 12 months, two years.
Q.And how did this affect your friendship network.
A.Friendship network. Well, because I was strong for everyone else, I stopped having - just the network went away. It stopped.
Q.And what’s it like -
A.Because the way I seen it, right, if - I had to be there for everyone else and if I couldn’t help myself, no-one could help me, basically.”
He described how he isolated himself for about twelve months. He left his girlfriend, although they separated on good terms.
The plaintiff also described how he cared for his dying father as well as looking after his brother. His father has since died. The year of his death was unclear, it appears to have been 28th September, 1999 or 2000, probably 1999 as Mrs Hinder said. The plaintiff went on to a carer’s pension on 6th July, 2000 and had been caring for his father for twelve months before that. In that twelve month period “....I survived on my payout from after I left work” (at p.17).
Specifically, the plaintiff denied the suggestion by Dr Cotton that his emotional problems stem from the stress of looking after his father. The plaintiff remains on a carer’s pension to look after his mother. He also denied the suggestion that part of his problems are caused by the stress of looking after his mother. In effect, the plaintiff said he had to remain the strong one despite stress and distress.
The plaintiff described how he became really upset when his brother disowned him about twelve months ago (at pp.19, 24 and 29-30). The plaintiff said he was getting better and was “getting over it now” (at p.19).
The problems he described of isolation, being fearful and having nightmares lasted about three years. Assisting his brother became stressful after a couple of years. I find that these consequences were causally linked to the assault.
In cross-examination, the plaintiff confirmed various aspects of his examination-in-chief and said that he had undertaken a computer course to further his career “....so I can actually get somewhere in life” (at p.28). He said that course keeps him totally busy and that now he has difficulty socialising because of it. The plaintiff also confirmed that he did not take any medication offered by the doctors because he did not believe in taking drugs (pp.19, 29).
Mrs Hinder, the plaintiff’s mother, also gave evidence. Mrs Hinder described how Warren, the son assaulted, suffered very badly from an assault with a steel bar and baseball bat and that that had a devastating effect on Warren. In its turn, it affected the plaintiff such that sometimes he feels like ending his life - he does not trust anybody and easily becomes stressed and depressed. Comparing the effect on Darren of the assault on his brother with that of his father’s death, she said (at p.34):-
“A.He got more affected by his brother’s assault because it was violent. His father died peacefully, but he died of cancer, and it was prolonged.”
Later (at p.36) she said her husband was dying of cancer over a seven year period “so that we were all deteriorating emotionally.” She confirmed that the plaintiff has always been the strong one and has always looked after other people.
The remaining witnesses in the trial were Dr Blakemore, called by the plaintiff, and Dr Cotton, called by the first defendant. Their evidence is discussed below.
Has there been an “injury” within the meaning of the Act?
One of the central questions in this application is whether the plaintiff sustained an injury within the meaning of the Act. S.7(1) provides that the victim of an offence may apply to the Court for an order for compensation in respect of an injury arising from the offence. S.4 provides these definitions:-
“victim in relation to an offence, means a person who suffers injury in consequence of the commission of the offence;
injury means physical or mental injury, and includes pregnancy, mental shock and nervous shock;”
A person in this plaintiff’s position is a victim within the meaning of the Act: T v The State of South Australia and Another (1992) 59 SASR 278; HK & Others v The State of South Australia & Anor (1997) 190 LSJS 174 at 176.
Initially, the submission made on behalf of the first defendant (the Crown) was that the Act required “a recognised psychiatric illness” if, as here, the plaintiff claimed compensation for a “mental injury”. That submission was based upon the earlier cases of Battista v Cooper (1976) 14 SASR 225; Lamb v Miller (1981) 26 SASR 563; Delaney v Celon (1980) 24 SASR 443; and T v The State of South Australia and Another (supra).
As to T v The State of South Australia and Another, the majority view (Legoe and Millhouse JJ) was that “mental injury” required “a recognised psychiatric illness”. However, Olsson J, who was in the minority, favoured a broader approach. He said at p.288:-
“Whilst I accept that the statute obviously has in contemplation something more than a condition of mere sorrow and grief, nevertheless, what the Court is required to do is to consider the situation of a claimant following a relevant criminal act and contrast it with that which pre-existed the act in question. 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 wellbeing, so as adversely to affect that person’s normal enjoyment of life beyond a situation of more transient sorrow and grief, then, in the relevant sense, the person has sustained mental injury.”
The minority view of Olsson J was accepted by all members of the Court in HK & Others v The State of South Australia & Anor (supra). There was no reference to the majority view. By necessary implication, the view of the majority in T’s case must be taken to have been overruled by HK’s case. There is now no requirement of “a recognised psychiatric illness”. It seems to me, with respect, that the view of Olsson J not only accords with the wording of the Act but the actual purpose of the legislation. The mere fact that the mental illness of a victim is unable to be given a discrete psychiatric label or does not fit neatly into a known psychiatric compartment, does not preclude a successful claim. If a person “suffers” an injury, that is sufficient. Compensation depends upon the extent to which there has been an adverse effect upon a person’s normal enjoyment of life as discussed by Olsson J, not the label that may be able to be attached to that change.
Being of that view, and being bound by HK’s case (supra), it is unnecessary to resolve the major difference between the opinions of Dr Blakemore and Dr Cotton. It will, however, be necessary to distil any common ground between them.
Claim for financial loss
As mentioned, one of the claims made by the plaintiff is for financial loss arising from loss of employment. As discussed above, the plaintiff was employed as a machine operator at a brick factory. He gave two accounts of the circumstances leading to his dismissal. The first was in examination-in-chief at pp.19-20:-
“Q.I think I asked you a little bit about your work. Could you just tell the court of the circumstances of you losing - what happened when you left work. Were you quit or you were sacked or what.
A.I was sacked because I wasn’t - because after my brother got bashed and everything I got the sack - before that like I used to be a really good worker, a hard worker, loved the challenge of operating machines and stuff, yes, but after that I started getting complacent, started losing concentration, losing focus, making silly errors, silly errors in judgment.
Q.After you lost that job - how long after your brother’s assault did you lose the job do you think.
A.Good question - about two to three years.”
The second was in cross-examination. The background to this account is that the plaintiff injured his shoulder in a motor cycle accident in 1992, thereby needing on-going physiotherapy treatment:-
“Q.So you were in the employer’s bad books for taking time off work to have it fixed.
A.Yeah, pretty much. Anyone who took time off work was in the bad books. I could tell you some stories about that place.
Q.That had nothing to do with the assault on your brother did it.
A.No.
Q.It was purely because you were taking time off is that right.
A.What, what do you mean by the question, I can’t understand.
Q.You were in trouble with your employer because you had taken this time off to go and see the physiotherapist.
A.Yeah, well, these complain about everything.
Q.In fact you say you’re a good worker.
A.Yes.
Q.You actually took a day off to attend a physiotherapy session and then came back the next day and were told you were fired, is that right.
A.I crashed my car. I crashed my car and I took a day off and I didn’t bring - I brought in a doctor’s certificate because I was really sore, like I’d been thrown around in the car and yeah, they sacked me and I was pretty much happy to be sacked because I didn’t want to work there any more.”

His employer was not called to explain the reason or reasons for his dismissal, particularly bearing in mind that it took place between two and three years after the assault. On the material before me, I am unable to find any financial loss “arising from the offence”.
In reaching that conclusion, I have adopted the approach dictated by HK & Others v The State of South Australia & Anor (supra) at p.177, namely, that there is a need to find a causal connection between the crime and the loss. Not only are the explanations inconsistent, but the lapse of time between the offence and the dismissal does not enable me to say that there is any causal connection between the two. I am not able to be satisfied on balance as to either explanation. Coupled with those matters is the fact that the plaintiff was caring for his father who, at the time of the supposed dismissal, needed virtually full-time care, and the fact that the plaintiff did not want to work for his employer any more.
The portion of the claim that seeks compensation for financial loss arising from the assault is dismissed.
Non economic loss
I have previously discussed the factual background to the claim and my findings in that regard. Leaving to one side the circumstances surrounding the leaving of his employment, I have generally accepted the plaintiff’s account and that of his mother.
In accordance with my earlier examination of the authorities concerning the meaning of “injury”, I find that the plaintiff suffered a “mental injury” within the meaning of the Act. There remains for decision the extent of such injury because that affects the quantum of compensation. There are two competing views on the evidence, although there is also some common ground. Dr Blakemore, called on behalf of the plaintiff, has diagnosed the plaintiff as suffering from a post-traumatic stress disorder. Dr Cotton, called on behalf of the first defendant, has diagnosed the plaintiff with a personality disorder.
Although the diagnosis of each of the psychiatrists is significantly different, an analysis of their evidence is bedevilled by two inter-related problems. Both provided opinions based upon a history and clinical presentation concerning events that commenced about four and a half to five years earlier. Even for a good historian that is a long period of time over which to remember events, emotions and feelings. Secondly, and not surprisingly, the plaintiff gave a history to each that differed in some respects. Those differences were significant and are referred to below.
Further, Dr Cotton gave evidence that the plaintiff told him of two motor bike accidents, the second supposedly being linked to the plaintiff’s employment being terminated. It seems to be common ground between the parties, and certainly represents the plaintiff’s position, that there was only one motor bike accident and that occurred in 1992.
Dr Blakemore’s opinion
The plaintiff gave Dr Blakemore a history that is substantially in accord with his evidence. There was, however, one important difference. The plaintiff said in evidence that his brother was still at the house when he returned and that he was being taken care of by the ambulance people. The plaintiff told Dr Blakemore that the police were there when he returned “....and he found later that an ambulance had just taken his brother to hospital.” I will proceed upon the basis of what the plaintiff said in evidence. Dr Blakemore was not questioned about whether that further fact would have affected his opinion, but, given his diagnosis, seeing his brother in that state as part of the aftermath could only have confirmed his opinion.
Dr Blakemore’s report of 16th May, 2001 (exhibit P2) summarises his views in this fashion (p.9):-
“Mr Hinder, himself, sounds to have developed, through his continuing close contact with his brother, post-traumatic stress disorder symptoms of his own, with marked paranoia, and at some stage, severe depression and his life indeed appears to have become quite chaotic. Mr Hinder’s condition could best be categorised as a post-traumatic stress disorder with depression severe enough for a diagnosis such as adjustment disorder with depression, but arising almost in ‘folie à deux’ fashion, taking on his brother’s illness.”
It should be noted that Dr Blakemore did not diagnose a “folie à deux”, rather he explained that he saw his diagnosis “....arising almost in a ‘folie à deux’ fashion, taking on his brother’s illness.” Dr Blakemore did not see the plaintiff’s problems as stemming from a personality disorder which “....really suggests a life-long or very lengthy period of emotional disarray.... It’s just quite the opposite” (at p.39). Dr Blakemore also took very seriously the plaintiff’s suicidal thoughts. Dr Blakemore said (at p.41) that there was no indication that the plaintiff was suffering from a pre-existing personality disorder. Dr Blakemore also took the view that it was not inconsistent with his diagnosis that the plaintiff could continue to work for some years afterwards and then care for his father and mother. It was a debilitating illness but he could perform some normal functions.
Dr Blakemore was particularly cross-examined about the symptomology and criteria for a post-traumatic stress disorder as discussed in the Diagnostic and Statistical Manual of Mental Disorders - IV (“DSM-IV”). It was put to him that, according to DSM-IV, one of the key criteria for a post-traumatic stress disorder is a reaction of fear, helplessness or horror of an intense nature. Dr Blakemore said (p.48) that the main symptomology for post-traumatic stress disorder tends to be “....fearfulness, terror of attack, nightmares, flashbacks.” He said the plaintiff exhibited those and, although it did not precisely fit the criteria from DSM-IV, that publication was only a guide and not designed to provide rigid criteria. Dr Blakemore adhered to his diagnosis.
On this point, there is a difference in history given to Dr Blakemore as compared with Dr Cotton. Dr Blakemore was, in effect, given a history that the plaintiff’s initial reaction was one of intense fear. Dr Cotton, on the other hand, was given a history of an initial reaction of anger and rage, which is inconsistent with the DSM-IV criteria for post-traumatic stress disorder. Dr Blakemore said that, if he had been given the history that was given to Dr Cotton on this point, it would not have affected his fundamental view that the plaintiff became very ill after this traumatic incident.
Dr Cotton’s opinion
Dr Cotton expressed his opinion in a report dated 8th October, 2001 (exhibit D3). His views are best expressed in these passages from p.7:-
“Although I have little doubt that over the last few years he has had a range of intense emotions associated with events in his life, I think from a diagnostic level he can only be seen to have a ‘personality disorder not otherwise specified’ including mostly cluster A type features of a paranoid, schizoid, schizo-typal, narcissistic nature.
In my view, this does not represent a psychiatric illness as such, but more a personality type disorder most likely of long-standing and certainly not caused by the assault on his brother as such.”
“1.In my view, he is not suffering from a specific psychiatric illness as such, though he does demonstrate a range of features of a personality disorder. As a reflection thereof I have little doubt that at times he has a fluctuating array of intense emotions in relation to the various difficulties he has faced in his life, including the bashing of his brother five years ago, the distressing illness and then death of his father, and now his mother having developed Alzheimer’s disease. In my view, however, such emotions reflect his personality disorder, rather than a discreet psychiatric illness as such.
2.In my view, he does not suffer from post traumatic stress disorder as such, he not reacting with fear or horror when he saw his brother following the assault, his reaction being one of rage and anger. As indicated, he did tend to identify with his brother and offer him suitable emotional support, becoming somewhat enmeshed in his brother’s problems, his reactions thereto largely being a function of his pre-existing personality disorder though throughout he continued working on a regular basis is for some two years and in fact thereafter was judged to be sufficiently emotionally well and stable to become the paid carer for his father and then his mother over subsequent years.”
In evidence, Dr Cotton further explained his views. He said that a personality disorder is a pattern of behavioural living rather than a reaction to stress at a point of time. Again (at p.58) “....it’s a pattern of living rather than a sickness or illness.” Dr Cotton said a post-traumatic stress disorder diagnosis without any significant disability are inconsistent. In Dr Cotton’s view two initial criteria must be met for a post-traumatic stress disorder. First, the person must be exposed to a life-threatening event and, secondly, and most particularly, the person reacts with horror or terror to that exposure. Dr Cotton said that the plaintiff’s reaction was one of anger and rage, and not horror, and was thus excluded from a diagnosis of post-traumatic stress disorder as defined in DSM-IV.
He was asked these questions and gave these answers which serve as a good summary of his approach (at p.79):-
“Q.Is it the case sometimes that a stressor such as discovering your brother bashed up seriously can trigger a person with a personality disorder to have a whole lot of unpleasant symptoms become apparent.
A.It certainly can.
Q.Is it reasonable to suggest that that’s what may have happened here.
A.No. I have set out my opinion. Very clearly my view was that the actual bashing of his brother, that incident which he didn’t see, wasn’t present for, or reacted with rage to, did not cause of itself or even substantially the whole history he gave for the next five years. What did cause the history he gave for the next five years was an interaction between his personality and his brother’s behaviour over three or four years, the sad death of his father whom he cared for, and his current mother with Alzheimer’s disease. These are the factors which caused him at times to have intense distressing emotions and, in any event, those emotions, in my view, most likely did not constitute a disabling psychiatric illness in the context of him having been a brick, he having looked after his brother, he having been judged fit to be a carer for his mother and his father, and he having actually worked for two years after the event, so my views are based on the balance of that whole clinical picture, not one or two isolated clinical symptoms which you seem to think I should find.”
Discussion
Although there is a marked difference between the two diagnostic approaches, from the point of view of compensation pursuant to the Act, it is just a matter of degree. Referring again to the test as explained by Olsson J in HK’s case (supra), it is necessary for me to make an assessment of the extent to which the plaintiff’s normal enjoyment of life has been affected.
I find the following.
Prior to the assault on his brother, the plaintiff was happy as a person and with his work. He had a relationship with his girlfriend that was of some years standing. He enjoyed his social life. There were no apparent emotional problems. He enjoyed helping others and thrived on stress. After the assault he became suspicious and fearful for his safety, started having nightmares, sleeplessness, flashbacks to the night of the assault, had thoughts of suicide, had two or three breakdowns and became enmeshed in this brother’s problems. The plaintiff could not cope emotionally. He became introverted and isolated. He stopped going out socially for two to three years and broke off with his girlfriend. Over time, despite the assistance given by him to his brother, his brother turned on him, assaulting him and eventually rejecting him.
As of mid-to-late 2001, the plaintiff was showing signs of recovery. Although Dr Blakemore was guarded about the prognosis, the plaintiff’s presentation in Court, as well as the substance of his evidence, suggest that his recovery is well advanced.
Quantum of compensation - non-financial loss
The principles applicable in this area were enunciated by the Full Court in State of South Australia v Bole (1994) 64 SASR 379. Pursuant to the Act, the assessment of non-financial loss is made by assigning a numerical value to the loss on a scale from 0-50 (the greater the severity of the non-financial loss, the greater the numerical value). Each numerical value is assigned a value of $1,000.
In Bole’s case (supra), the Full Court held that the appropriate procedure for the assessment of non-financial loss is to compare the loss suffered by the plaintiff against the worst possible non-financial loss that anyone could suffer as a victim of an offence.
I have had regard to a number of authorities: Bole (supra); Box and Perry v State of South Australia (1995) 184 LSJS 367; and Morrison v State of South Australia and Elguetta (1999) SADC 101.
Having regard to the factual findings I have made and the authorities to which reference has been made, I assign a numerical value of 6 to the non-financial loss.
There will be judgment for the plaintiff in the amount of $6,000.
I will hear the parties on the question of costs.

[2002] SADC 103

1 August 2002