Laws v The State of South Australia & Eigen No. DCCIV-98-727

LAWS v STATE OF SA & EIGEN
[2000] SADC 95

Judge Robertson
Civil

This is an Application for compensation pursuant to the provisions of the Criminal Injuries Compensation Act, 1978, as amended (“the Act”). The Plaintiff alleges that as a consequence of an assault on her by the Second Defendant she suffered bodily injuries and a psychological injury in the form of a Post Traumatic Stress Disorder. The assault took place on 20 February 1993. Mr Eigen pleaded guilty in the Holden Hill Magistrates’ Court to the offence of assault occasioning actual bodily harm on 24 January 1994. He was convicted of that offence.
Mr Eigen denies that the Plaintiff has suffered injuries to the extent claimed by the Plaintiff. Furthermore, he claims that the Plaintiff contributed to her injuries by her conduct and submits that any amount of compensation awarded should be reduced in accordance with the provisions of Section 7(9) of the Act.
The Plaintiff, who was fifty one years of age at the date of the Trial, met the Second Defendant through an advertisement in a newspaper. He was fifty four years of age at the date of the Trial. Both the Plaintiff and the Second Defendant were born in Germany. After meeting they began to see each other regularly. At the time they met the Plaintiff was living in a house which was jointly owned by her former husband and herself. The marriage had terminated. Due to financial difficulties the Plaintiff could not retain the house. As a result the Second Defendant purchased the house in the early part of 1992. This was only a short time after they began keeping company. After the purchase of the house, the Plaintiff and the Second Defendant commenced to cohabit. They only cohabited for a short time before they travelled overseas together. This was about March or April of 1992. One of the purposes of the overseas trip was to attend the fiftieth wedding anniversary of the parents of the Second Defendant which was to be held in Germany.
Initially the relationship between the Plaintiff and Second Defendant was quite harmonious. However, whilst overseas the relationship deteriorated dramatically. They were absent from Australia for about six months. Although the relationship had taken a turn for the worse, they continued to live together in the house on their return from overseas. The relationship was punctuated by verbal altercations. However, I find that there were occasions the Second Defendant would push the Plaintiff during the course of a verbal altercation. I reject his evidence that it took the form of a “a nudge perhaps in a more friendly manner and not in a violent manner”.
About January 1993 the Second Defendant’s father and sister arrived from Germany. They stayed in the house, then occupied by the Plaintiff, her son and the Second Defendant. At that time the relationship between the Plaintiff and the Second Defendant was poor. There were times, prior to Mr Eigen’s relatives arriving, when the Plaintiff slept in the family room by herself.
On the evening of the assault the Plaintiff, the Second Defendant, his father and sister had dinner together. During the course of the evening a small quantity of alcohol was consumed by the Plaintiff and the Second Defendant. I find that neither of them were affected by alcohol during the evening. For much of the evening, the Plaintiff played records with the Second Defendant’s sister. Shortly after eleven o’clock the Second Defendant’s father retired. A short time later the Second Defendant and his sister retired. After this the Plaintiff commenced to tidy up and clear the table. She continued to play a record while she was undertaking these tasks.
There is no dispute between the Plaintiff and the Second Defendant that sometime after the second Defendant had retired to bed, he came out of the bedroom complaining about the Plaintiff continuing to play a record and turned the record player off. He then returned to the bedroom. After the record player was turned off, the Plaintiff continued tidying up. I accept her evidence that she then proceeded to the bathroom to remove her make-up. Thereafter, she proceeded to the bedroom, which the Second Defendant was occupying. I find that about a half an hour had passed between the Second Defendant turning off the record player and the time the Plaintiff came to the bedroom. To this point in the narrative there was generally very little difference between the evidence of the Plaintiff and that of Second Defendant. However, it is here that the evidence of each of them regarding the events which followed diverged markedly.
The Plaintiff said that she was undressing near the bedroom door, when without warning, the Second Defendant grabbed hold of her from behind and forcefully projected her through the bedroom doorway and across the hall, a distance of about two metres. She said that her head hit the door frame of her son’s bedroom on the opposite side of the hallway. She said that nothing was said between them before this occurred.
The Second Defendant said that the Plaintiff entered the bedroom and commenced to nag and abuse him. He said that he then told the Plaintiff to shut up or he would throw her out. He said the Plaintiff replied, “You wouldn’t dare, you fucking bastard”. The Second Defendant said that on hearing this he then jumped out of bed, spun the Plaintiff around so that her back was to him and then proceeded to goose step the Plaintiff out of the bedroom, whilst holding onto her with his hands. He said he used his pelvic bone to thrust her towards the door of the bedroom. It was the Second Defendant’s evidence that on reaching the bedroom doorway, he released the Plaintiff, stepped back inside the bedroom and slammed the door shut. He denied pushing her. He said that he simply let her go at the doorway. The Second Defendant said that when he slammed the door the Plaintiff was still in an upright position.
At this point it is appropriate that I provide my views regarding the evidence of both the Plaintiff and the Second Defendant. I thought the Plaintiff tried to tell the truth. The passage of time caused her to be forgetful on occasions. However, I felt that her evidence of the assault could be relied upon save for one matter. I am not prepared to accept that nothing was said between them before the Second Defendant took hold of her. Whatever the reason for her failure to recall any conversation, I am satisfied that she was not being deliberately untruthful.
I found the Second Defendant to be an unimpressive and unconvincing witness. I found his evidence that when he reached the bedroom door, that he released his hold on the Plaintiff, stepped back inside the room and closed the door to be incredulous. It was in effect a denial of any assault on the plaintiff which led to the injury to her forehead. I gained the impression that he was anxious to absolve himself from any of the events that led to the Plaintiff’s misfortune. His explanation regarding how he came to plead guilty to the charge in the Magistrates Court and what took place at the hearing in that Court was most unconvincing. It was clear that he recognised that his plea of guilty was inconsistent with his story that he never pushed the Plaintiff and that he needed to provide an explanation for that inconsistency. I do not accept that explanation.
With regard to the assault I accept the Plaintiff’s evidence that she was grabbed by the Second Defendant from behind and that at the doorway of the bedroom she was projected by him in a violent fashion across the hallway. Furthermore whilst I have found that some conversation took place between them prior to the assault I am not prepared to accept his evidence that the conversation took the form that he described in his evidence. I found the Second Defendant to be an unreliable and, I regret to say so, an untruthful witness at times.
Accordingly, I find that as a result of the Second Defendant projecting the Plaintiff across the hallway her forehead struck a door frame on the other side of the hallway. This caused the Plaintiff to suffer injuries. After striking her head on the door frame the Plaintiff fell to the floor, bleeding. After picking herself up the Plaintiff sought the assistance of the Second Defendant’s sister. His sister then sought the assistance of the Second Defendant who then drove the Plaintiff to the Modbury Hospital.
The Plaintiff was admitted to the Modbury Hospital in the early hours of 21 February 1993. There was a jagged full-thickness laceration approximated five centimetres in length in the Plaintiff’s forehead. Eleven sutures were inserted into the wound under local anaesthetic. She remained in hospital under observation until 22 February 1993, when she was discharged. In addition to the laceration to the Plaintiff’s forehead, she suffered swelling to her forehead in the area about the laceration, bruising in the area around her left eye and bruising and swelling to the index finger of her left hand.
The sutures were removed a short time after the Plaintiff’s discharge from hospital. The Plaintiff indicated that the bruising and swelling to the finger remained for a period of about twelve months. In view of the injury she suffered to her finger I am not prepared to accept that the bruising and swelling remained for twelve months. I did not think she was deliberately exaggerating in estimating the length of time. I am prepared to accept that the bruising and swelling remained for some considerable time. I also accept that for a period of about three to four weeks she had difficulty with the use of her left hand, due to the problems associated with the left index finger. I also find that the bruising to the area about the eye remained for some time.
There are two other complaints of an organic nature which the Plaintiff said arose out of the assault. The Plaintiff said that she suffered headaches following the assault. The headaches became less severe and less frequent after about four to five weeks. She said that she has continued to suffer headaches in the period from the time of the assault until the date of Trial. The Plaintiff said that she still suffers two or three bad headaches a week. It was not entirely clear to me whether the Plaintiff claimed that the continuation of the headaches was a direct result of the blow to the head. No medical evidence was produced to support such a contention. In the absence of medical evidence, I am only prepared to accept that the headaches she suffered in the first four to five weeks following the assault were associated with the blow to her head. However, as will be seen shortly, I am prepared to accept that some headaches were associated with some of the symptoms of the Post Traumatic Stress Disorder.
The Plaintiff also said that following the assault she suffered from double vision which lasted for a period of about fourteen months. She did not say whether the double vision was constant throughout that period or not. Regrettably no medical evidence was provided regarding that complaint. However, I accept the Plaintiff’s evidence which indicates she was not suffering from that complaint before the blow to her head but afterwards she began to experience double vision. I am therefore prepared to find that she suffered double vision following the blow to her head. However, I cannot make a finding regarding the extent of the double vision due to the paucity of evidence.
The Plaintiff is left with a scar which commences above the hair line and travels down the forehead, ending just above the left eyebrow. It is between five centimetres and eight centimetres in length. It appears more prominent and slightly red in the upper section. The Plaintiff said that she has changed her hair style to cover the scar. She said that it is a constant reminder of the assault.
I mentioned earlier that the Plaintiff also claims compensation for a psychiatric injury. Marta Lohyn, a consulting psychologist, diagnosed the Plaintiff as suffering from a Post Traumatic Stress Disorder which she said arose from the assault by the Second Defendant. Ms Lohyn said that the Plaintiff continued to suffer from that Disorder up to a time somewhere between May 1996 and March 1997. It was her opinion that whilst all of the symptoms required for a diagnosis of a Post Traumatic Stress Disorder were not present after that time, she said that the Plaintiff continued to experience some of the symptoms relevant to such a diagnosis. Ms Lohyn did not identify those symptoms. She described the Post Traumatic Stress Disorder which the Plaintiff was suffering as moderate in nature.
The Plaintiff had consulted Ms Lohyn on three occasions prior to the assault. In December 1992 the Plaintiff had applied for housing assistance. She was considering leaving the home occupied by her and the Second Defendant because of the ongoing conflict between them. She had also consulted with a Commonwealth Rehabilitation Service for the purpose of obtaining a job or to obtain assistance to retrain. A consultant with that service recommended that the Plaintiff see Ms Lohyn. The Plaintiff said that at that time she was distressed about the continuing conflict between her and the Second Defendant.
Ms Lohyn said that when the Plaintiff first consulted her in January she had problems with anxiety. She said that she presented as a very tense and anxious person. However, she said that the Plaintiff was not suffering from a Post Traumatic Stress Disorder at that time. She acknowledged that other stressors earlier in the Plaintiff’s life, apart from the difficulties that she was experiencing in her relationship with Mr Eigen, would have contributed to the anxiety which the Plaintiff was suffering at the time of the early consultations. It was Ms Lohyn’s opinion that the assault increased the level of the Plaintiff’s stress and anxiety. The Plaintiff consulted Ms Lohyn on ten occasions in 1993 following the consult for the purpose of treating her Post Traumatic Stress Disorder. I found Ms Lohyn to be an impressive witness and on whose opinions I could rely upon. I accept her evidence that the Plaintiff suffered from a Post Traumatic Stress Disorder to the degree she described.
Following the assault the Plaintiff experienced recall of the assault for some considerable time. She said she was in fear of retribution from Mr Eigen. She said that she could not socialise with men for sometime following the assault as she did not feel comfortable with them. This later improved. The Plaintiff said that she felt anxious and distressed following the assault. I accept the evidence of the Plaintiff regarding the problems she was experiencing following the assault. I am prepared to accept that some of her headaches following the first four to five weeks were due to the increase in anxiety following the assault. However, some were likely to be due to existing psychological problems she had prior to the assault. I am not prepared to accept that the headaches she complains of currently are associated with any injuries arising from the assault. I also accept the evidence of Ms Lohyn that whilst the Plaintiff was stressed and anxious before the assault, the level of the Plaintiff’s stress and anxiety following the assault increased significantly.
In view of my findings, the Plaintiff is clearly entitled to be compensated for the injuries she suffered from the assault pursuant to the provisions of Section 7 of the Act. However, before determining the amount of compensation, it is necessary to consider the claim by the Second Defendant to section 7(9) of the Act, that the Plaintiff’s conduct contributed to the commission of the offence and her injuries. As I mentioned earlier it was the Defendant’s case that there was a verbal altercation between the Plaintiff and Mr Eigen in the bedroom immediately prior to the assault, which culminated in the Second Defendant threatening to throw the Plaintiff out if she did not shut up and the Plaintiff responding in terms of, “You wouldn’t dare, you fucking bastard”.
A verbal insult has been held to be “conduct” within the meaning of the Section. (Johnstone v Smith and State of South Australia (1987)136 LSJS 371). I am in no doubt that verbal utterances by a victim may be conduct contributing to the commission of the offence and the injury suffered by the victim within the meaning of the Section. Earlier, I made a finding that I was not prepared to accept Mr Eigen’s evidence regarding the terms of the conversation between the Plaintiff and the Second Defendant prior to the assault. Having made that finding, it follows that the Second Defendant has not discharged the onus of establishing on the balance of probabilities that the Plaintiff’s conduct contributed to her injuries. There is no specific utterance upon which the Second Defendant can rely to found his claim. I should add, that even if I had accepted the evidence of Mr Eigen regarding the terms of the conversation, I would not have been prepared to find that it was conduct which contributed to the commission of the offence and the injuries that the Plaintiff suffered at the hands of Mr Eigen.
I come now to consider the amount of compensation to be awarded to the Plaintiff. As the assault and the Plaintiff’s injuries occurred in February 1993, compensation is to be awarded pursuant to the Repealed Section 7(8) of the Act. The Plaintiff’s claim is confined to personal injuries. The assessment is to be made pursuant to ordinary common law principles. (State of South Australia v Abdel-Ghani (1997) 93 A Crim R 259 at 267). The question of contribution for conduct by the Plaintiff is not relevant, in view of my findings. After the assessment for compensation is made, the Plaintiff is then to receive the first $2,000 together with 75% of the balance of the assessment.
I earlier detailed the Plaintiff’s bodily injuries. There is no need to repeat them. The Plaintiff has recovered from those injuries. The only residual problem is the scar that remains on her forehead. The Plaintiff has recovered from the Post Traumatic Stress Disorder. She has, since her recovery, suffered some symptoms originally associated with the diagnosis of a Post Traumatic Stress disorder. I assess the Plaintiff’s compensation for both her bodily injury and psychiatric injury at $11,000.
There is one further matter I need to address before I apply the formula to which I have referred. Late in the day, Mr Jamison, raised a claim on behalf of the Plaintiff for special damages for consultation fees which the Plaintiff had with Ms Lohyn. The claim arose, following the evidence of Ms Lohyn that some of her consultation fees had not been paid. The claim consisted of two consultation fees of $60 each, for consultations on 29 April 1996 and 7 May 1996. Ms Lohyn had reduced her normal consultation fees to those amounts to accommodate the Plaintiff’s financial position. The other part of the claim was for three consultation fees of $105 each for consultations which took place on 26 March 1997, 16 April 1997 and 23 April 1997. The Plaintiff’s total claim for special damages is $435. With respect to the last three accounts, the effect of the evidence of Ms Lohyn was that whilst she raised accounts for those consultations she did not anticipate them being paid because of the financial circumstances of the Plaintiff.
The evidence of Ms Lohyn was that the two 1996 accounts related to consultations for treatment of the Plaintiff’s Post Traumatic Stress Disorder. In my view such accounts are properly payable by way of special damages. With respect to the accounts in 1997, Ms Lohyn said that those consultations arose because some symptoms of the Post Traumatic Stress Disorder had been “re-evoked” and needed to be addressed. She gave as an example of the necessity for such consultations that the Plaintiff had seen the Defendant at a particular place and had become upset again. In my view those fees were incurred in the treatment of symptoms arising from the assault even if the treatment the Plaintiff received also included some treatment for problems not arising from the assault. There was no evidence to suggest that if those extra problems were not present the length of the consultation would have been less. Furthermore, it seems to me, that the fact that Ms Lohyn did not anticipate being paid her fees is not to the point. There was nothing to prevent Ms Lohyn from changing her mind and proceeding to recover the 1997 consultation fees. Accordingly, the Plaintiff is entitled to be compensated for the sum of $435 by way of special damages.

The total amount of compensation which the Plaintiff is entitled to is the sum of $11,435. She is to receive the first $2,000 of that amount together with three quarters of the balance. Accordingly, I assess the Plaintiff’s entitlement to compensation as $9,076.20.
There will be judgment to the Plaintiff for the sum of $9,076.20. I will hear the parties on the question of costs and any other orders.

[2000] SADC 95

2 August 2000