Mcardle v State of SA & Anor No. Cicd-96-566, Cicd-96-567 Judgment No. D3557

[1997] SADC 3557

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Allan (ex tempore)

Hearing

03/02/97.

Catchwords

Criminal injuries compensation - claim for grief and funeral expenses - compensation awarded $7,200.

Materials Considered

• Criminal Injuries Compensation Act, 1978 , referred to.

Representation

Plaintiff GAVIN ANDREW MCARDLE:
Counsel: MR R JAMISON - Solicitors: JAMISON &; ASSOCIATES

Defendant STATE OF SOUTH AUSTRALIA:
Counsel: MR J WARREN - Solicitors: CROWN

Defendant GARY SHAW:
In Person

CICD-96-566, CICD-96-567

Judgment No. D3557

3 February 1997

(Criminal Injuries Compensation Division)

MCARDLE V STATE OF SA & SHAW

Civil

Judge Allan

The plaintiff claims from the defendants compensation, pursuant to the CriminalInjuries Compensation Act, in respect of the grief suffered by him of the death of his wife.His wife Tania McArdle was murdered by the second defendant on 10 June 1995.As a result of the death he, the plaintiff, incurred funeral expenses to the extent of $3,000, which sum has been paid by him.

I have received, by agreement, the report from the Victim Support Service, outlining the counselling undertaken by the plaintiff following the death of his wife.As I understand it, it is agreed between the parties that the contents of the report are true.

The plaintiff was married to the deceased in June 1988. There are three children of the marriage.They separated on 27 December 1994.At the time of her death, the deceased, and for some time prior, was in a relationship with the second defendant.It is clear that there were difficulties between the deceased and the plaintiff and a domestic violence, or restraining order, was made against the plaintiff.

I accept the plaintiff's evidence that despite all that had passed between them, he wanted a reconciliation.I accept his evidence that there was talk of a divorce, but it was decided there would not be a divorce at that time. I accept his evidence that he was devastated by news of her death and that, at the time, he was hoping for a reconciliation and that he was grieved as a result of the death and the circumstances of the death.

The maximum amount to which the plaintiff is entitled, pursuant to the provisions of the Criminal Injuries Compensation Act, is $4,200.The first defendant, for its part, says that it concedes that, in the circumstances of this particular case, that is the appropriate figure which should be awarded to the plaintiff by way of compensation and I see no reason to assess any other figure.

It is clear the plaintiff is entitled to compensation in respect of the death of the deceased.For these reasons I assess his compensation at $4,200.He is entitled to funeral expenses in the sum of $3,000 and I order the total sum of $7,200 be paid to the plaintiff by the first defendant.

I accept at this stage there is no reasonable likelihood that the second defendant has the means to pay and that there have been no other moneys received other than by this order.

The defendants to pay the sum of $2,250 costs and disbursements of $506.