Mccormack v State of SA & Ors - [2005] SADC 164

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal Injuries Compensation Division)
In the Matter of CRIMINAL INJURIES COMPENSATION ACT 1978
MCCORMACK v STATE OF SA & ORS
Judgment of His Honour Judge Clayton
20 December 2005
CRIMINAL LAW
CRIMINAL INJURIES COMPENSATION CLAIM. Plaintiff younger brother of murder victim. Mental injury as a result of learning of brother's disappearance and subsequent murder. Appeal out of time. Limitation period under s7(1) mandatory. Discretion as to extension of time under s7(4). Extension granted. Prejudice to defendants not relevant. Definition of "victim" in s7(2a) discussed. Injury to secondary victim actionable. Relevance of pre-existing personality disorder. Assessment of damages - economic loss 12 points, non-economic loss 8 points. Total compensation 20 points.
Criminal Injuries Compensation Act 1978 ss7 & 8; Limitation of Actions Act 1936 s48, referred to.
Scanlon v State of South Australia & Perkins Decision of District Court Master Rice delivered 19 December 2001; H K & Ors v State of South Australia & P S [1997] SASC 6058; Battista v Cooper (1976) 14 SASR 225; T v State of South Australia (1992) 59 SASR 278; Dillon v State of South Australia [1993] SADC D2852; Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666; State of South Australia v Gale [1999] SASC 480; State of South Australia v Bole (1995) 183 LSJS 90; Bott v State of South Australia & Dohling [1998] SADC D3776; Williams v State of South Australia & Heron [1996] SADC D3414; Massingham v State of South Australia [2001] SADC 137; Lane & Johnston v State of South Australia & Turner [1999] SADC 20; Richards, Sansbury & Wanganeen v State of South Australia & Tomac [1997] SADC D3577, considered.

MCCORMACK v STATE OF SA & ORS
[2005] SADC 164

Mr McCormack has claimed compensation under the Criminal Injuries Compensation Act 1978 as amended. His Statement of Claim alleges that he is a victim of a crime within the meaning of that Act. It also alleges that on or about 30 January 1999 the second and third defendants murdered Phillip McCormack, his brother, and that as a result of learning of the murder the plaintiff suffered nervous shock proceeded by severe depression which required medication and resulted in two suicide attempts which has left the plaintiff with further injuries. It is alleged that as a result of the plaintiff’s psychological and physical condition he has been unable to hold down steady employment or to maintain normal social relations. The plaintiff claims the sum of $50,000.
The second defendant and the third defendant were convicted of the murder of Phillip McCormack and are currently serving sentences of imprisonment.
The first defendant, the State of South Australia, was represented at the hearing by counsel. The second defendant appeared in person. The third defendant had filed a defence but did not attend at the hearing. The submissions made by the second defendant Brett Williams departed from and went further than those made by the Crown.
The entitlement to compensation is dependent upon the Criminal Injuries Compensation Act. Although similar principles may apply in some respects, it is not a claim based upon common law principles. It is necessary to have regard to the provisions of the Act. The entitlement to compensation is created by section 7(1) which provides that a victim of an offence may, within three years of the day on which the offence was committed, apply to the court for an order for compensation in respect of an injury arising from an offence.
The Act defines a “victim” as “a person who suffers injury in consequence of the commission of the offence”.
Section 7(2a) enables a spouse, putative spouse or parent of a person killed by homicide to apply for compensation in respect of grief suffered in consequence of a death. A sibling does not have a claim in respect of grief under section 7(2a)
Section 7(4) provides that the court may, for any reason it considers sufficient, dispense with the requirement that an application be made within the period fixed by the section.
The defences of the second and third defendants raise several issues. First, they allege that the plaintiff has failed to meet the requirements of section 7(1). The offence was committed in about January 1999 but the proceedings were not issued until 10 January 2005, that is almost six years after the commission of the offence.
Counsel for the plaintiff relied upon section 48 of the Limitation of Actions Act 1936 and section 7(1) of the Criminal Injuries Compensation Act, although the Statement of Claim does not contain the endorsement required by section 48 of the Limitation of Actions Act. He referred to a decision of Master Rice in Scanlon v State of South Australia & Perkins[1] and argued that the limitation in section 7(1) of the CriminalInjuries Compensation Act is a discretionary period. He submitted that the limitation period is “merely advisory” and is not a mandatory limitation period. That is not what the Master said in Scanlon. What the Master did say was that the power to extend time pursuant to section 7(4) was discretionary. I find that the time limit itself is mandatory, but that the time limit is capable of being dispensed with under subsection (4).
[1] Decision of District Court Master Rice delivered 19 December 2001
Counsel for the plaintiff also argued that time did not begin to run until the plaintiff discovered that he had an injury and had some cognisance of that fact. I reject that submission. It is contrary to the clear wording of section 7. Even if it were correct the plaintiff would still be out of time because he learned of his injury more than three years prior to the time when the proceedings were commenced.
Although the Statement of Claim does not contain the endorsement required by section 48 of the Limitation of Actions Act, I am unable to resolve the time issue without resort to that provision.
As I have mentioned, section 7(4) enables the court to dispense with the requirement that the application be made within three years of the offence “for any reason it considers sufficient”. There is no special meaning to be attributed to that phrase. The words are to be given their ordinary meaning. All that is required is that the court should find some reason which is sufficient.
The plaintiff’s case was that he had a severe depressive illness which impaired his mental function so that during the first period of three years following the offence he did not do things which he would have done if he were functioning normally. The defendant Mr Williams did not accept that. He did not adduce any evidence but in essence said that the plaintiff had not satisfied the onus of proof.
Section 8 of the Criminal Injuries Compensation Act provides that any fact to be proved by a claimant in proceedings under the Act is sufficiently proved if it is proved on the balance of probabilities.
I find on the evidence that there is sufficient reason to dispense with the requirement that the proceedings be commenced within three years. I accept the evidence of Dr LePage that during the first three years following the murder of his brother the plaintiff suffered a severe depressive reaction, was very disturbed depressed and suicidal. I accept that the depressive reaction compounded his inability to work and sustain employment and affected his capacity to adjust. He was incapacitated by a number of symptoms. Whether his depression was in consequence of the offence or a consequence of his pre-existing condition, it was in my opinion a sufficient reason to dispense with the requirement that the application be made within three years of the offence. The evidence of the plaintiff himself and the evidence of Dr LePage establishes that the plaintiff’s failure to commence proceedings within three years can be attributed to the fact that he was not functioning normally.
I do not attribute any weight to the argument that the second and third defendants had become bankrupt at their own request in order to put their affairs in order and will suffer prejudice if the plaintiff is permitted to pursue his claim for compensation. Under section 7(4) the inquiry is whether there is sufficient reason to dispense with the three-year requirement, not whether the dispensation will give rise to prejudice. In any event the prejudice of which the defendants complain is of their own making. In my opinion a person who has applied for a sequestration order to avoid a liability created by the Act should not be in a position to complain if he made the application for bankruptcy prematurely.
The next question raised by the defence is whether the plaintiff is a “victim” of the offence. As I have mentioned the term “victim” is defined in the Act as “a person who suffers injury in consequence of the commission of the offence”. The Act involves different considerations from those which would apply with a damages claim at common law. The plaintiff claims compensation in respect of a psychiatric injury and alleges that he “suffered nervous shock proceeded by severe depression”.
While there is evidence that the plaintiff suffered from depression there is no evidence that he suffered from nervous shock. This is not a nervous shock case. In a sense it is the opposite. The plaintiff’s psychiatric injury was not caused by the shock of learning of his brother’s fate but was a consequence of the fact that the plaintiff’s brother had disappeared and his whereabouts were unknown so that the plaintiff was left in a state of limbo. It was the uncertainty of the situation over a period of time which is said to give rise to an aggravation of a pre-existing psychiatric condition.
The Crown did not challenge the assertion that the plaintiff was a victim. Counsel for the Crown accepted that all the plaintiff needed to do was to establish that he had suffered a mental injury in consequence of the offence. The issue for the Crown was what damage has been caused to the plaintiff by the offence. The Crown did not challenge the plaintiff’s assertion that he was injured because of learning of the murder of his brother.
Mr Williams, the second defendant, argued that Mr McCormack’s injury was suffered in consequence of learning of the offence, not in consequence of the offence itself. He said that Mr McCormack had no direct relationship or proximity to the offence or any of the trauma associated with the commission of the offence. Mr Williams argued that there should be some proximity to the offence for the plaintiff to be defined as a victim. He drew attention to the fact that the Act makes provision for certain family members and dependants and spouses by way of compensation for grief. Those persons do not need to establish proximity to the offence or the commission of the offence.
Courts have had occasion to interpret the legislation on many occasions. Many of the issues which have been raised in this case were discussed by the Chief Justice in H K & Others v the State of South Australia & P S[2]. In that case the Chief Justice observed that under section 7 the injury must “arise” from the offence while the definition of “victim” requires that a person must suffer an injury “in consequence of the commission of the offence”. His Honour said that the definition of “victim” includes those who are secondary victims in the sense that injury is caused to them by the commission of an offence perpetrated upon another. The Chief Justice referred to Battista v Cooper[3] and T v State of South Australia[4] where compensation was awarded under the Act to secondary victims.
[2] [1997] SASC 6058
[3] (1976) 14 SASR 225
[4] (1992) 59 SASR 278
The Chief Justice also acknowledged that a plaintiff may recover damages for aggravation of a pre-existing condition and referred to the decision of Her Honour Judge Nyland (as she then was) in Dillon v State of South Australia[5]. The Chief Justice said:
It is not necessary for a plaintiff to establish a defined psychological or psychiatric injury, as for example, injuries are defined in the Diagnostic and Statistical Manual of Mental Disorders (fourth edition): T v State of South Australia (supra).
[5] [1993] SADC D2852
The Chief Justice referred to the reasons in T v State of South Australia where Olsson J said at page 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 the 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 is been some more than transient deleterious effect upon a claimant’s mental health and well-being, so as adversely to affect that person’s normal enjoyment of life beyond a situation of more transient sorrowing grief, then, in the relevant sense, the person has sustained a mental injury.
The Chief Justice said:
It is clear to me from the provisions and authorities set out above, and from the analysis of Olsson J cited above, that a causal link must be established.
And
An application of the principle stated (and in my opinion correctly stated) by Olsson J in T v State of South Australia… does not demand a finding of ‘the’ or ‘a’ substantial cause. If the evidence proves that there is a causal connection between crime and injury in the case is made out. And injury can, of course, include psychiatric or psychological illnesses.
The fact that emotional upset could provide a basis for compensation was established in Battista v Cooper, provided the emotional upset resulted in actual injury to physical or mental health. Bray CJ said that applicants for compensation were not disentitled to claim because they were not the direct victims of the crime.
In Fagan v Crimes Compensation Tribunal[6], an appeal from the Victorian Crimes Compensation Tribunal, Justice Brennan said at page 680:
If it is shown that a claimant would not have suffered mental or nervous shock but for the relevant criminal act or omission, that injury can hardly be treated as too remote to attract an award of compensation if the injury were reasonably foreseeable at the time when the criminal act was done or the criminal omission was made.
[6] (1982) 150 CLR 666
In that case the claimant was a child of five when his mother was murdered. On the day of the crime the claimant was not collected from school by his mother as usual and stayed with relatives for several days before his father was able to take care of him. Justice Brennan held that nervous shock was an injury which any child of the deceased was likely to suffer upon learning of the manner of her death.
An applicant with a pre-existing condition is entitled to compensation if the offence has aggravated or exacerbated the condition. In H K & Others v State of South Australia the Chief Justice said:
V heard of the crime when H. and L. rushed in. Her state of health was, shall we say, precarious. News of the crime gave it the last push into psychological illness. Cause and effect were proved even discounting the evidence she gave about her previous state of health.
It is necessary to make an assessment of the effect of the offence upon the plaintiff’s condition. State of South Australia v Gale[7]. In the case at Bar, allowance must be made for the plaintiff’s pre-existing personality and psychiatric problems. Also the plaintiff must establish the chain of causation.
[7] [1999] SASC 480
I find that, subject to the evidence making out his case, the plaintiff can be a “victim” for the purpose of the Criminal Injuries Compensation Act. I also find that the plaintiff is entitled to compensation if his pre-existing psychiatric condition was exacerbated in consequence of him learning of the fate of his brother. I reject the submission of Mr Williams that the claim should fail because the plaintiff was not in proximity to the offence and was therefore not a victim.
I turn to consider the evidence. The only witnesses were the plaintiff, his father and Dr LePage.
The plaintiff was not a good witness. His evidence was vague and his manner of giving evidence was flat and disinterested. That may be a consequence of his illness. However, his evidence lacked the detail necessary to establish all of the matters asserted by his counsel. His evidence was quite perfunctory. The evidence of Mr McCormack senior was clear and reliable but did not take the claim any further than the evidence of the plaintiff himself.
Dr LePage is a specialist psychiatrist. I accept his evidence without reservation, including the observations which he made and the opinions which he formed. However, I cannot use the evidence of Dr LePage for the purpose of filling in gaps in the factual matrix. The evidence and report of Dr LePage can corroborate the evidence of the plaintiff or his father, but Dr LePage’s note of facts related to him by the plaintiff cannot establish those facts except in so far as they may amount to admissions by the plaintiff against his interest. Persons with first-hand knowledge of those facts must depose to the facts necessary to establish the plaintiff’s case. I must also be careful not to treat the assertions by plaintiff’s counsel in his addresses as proven unless they are established by evidence. The evidence fell short of the opening and final addresses of counsel in many respects. In particular, the evidence in support of the alleged financial loss was scant.
The plaintiff is now aged 30. His brother was three years older. They were very close and his brother was the only person to whom the plaintiff could relate. He was the plaintiff’s best friend.
In January or February 1999 the plaintiff was told that his brother had been reported missing and that foul play could be involved. At that time, the plaintiff was working for a cousin building barramundi farms and was in a stable relationship with a girlfriend.
After learning that his brother was missing the plaintiff spent a lot of time searching bushland with his father and younger sister. He does not have much recollection about the offence which he tries to forget. He said his “memory is shot”. After his brother’s body was found the plaintiff was shown the site. He said his life changed after that event and:
I just shut off and I have forgotten. I just - a lot of depression, didn’t want to live. The only person in life that I really could relate to or contact with was gone. I felt a lot of anger, a lot of depression, couldn’t express myself, open up to anyone. I just bottled things up.
The plaintiff said that he saw Dr Lim who prescribed Valium and sleeping tablets. He said that he first saw Dr Lim during the period when the whereabouts of his brother were unknown. If that is correct the plaintiff first saw Dr Lim during the first half of 1999. On the other hand he told Dr LePage that he had consulted Dr Lim one year prior to his first interview with Dr LePage which was on 17 May 2002. He said Dr LePage prescribed antidepressants and chatted to him about where his life was going.
The plaintiff said he shut himself off from his girlfriend and became a recluse from society because he did not like it. He said he had a lot of aggression and could not communicate well. When he broke up with his girlfriend he returned to live in the garage at his parents home. He said “depression started to set in more so, made another attempt at my life, which my father was a witness to. I was basically just living one day the time”. He later returned to his girlfriend’s house, but the relationship deteriorated very quickly and they parted ways. A short time after that he went to the Northern Territory “because I was losing my mind, I just couldn’t get a grip on anything”. He had stopped working for D & S Contracting, his cousin’s business, in the 2000 the tax year. His taxation returns show that he worked for Industrial Plastics Services in that year, but the employment with Industrial Plastics Services was not referred to in evidence.

He said that in the Northern Territory he moved from town to town and lived on the Newstart Allowance, although he did some seasonal work around “mango time”. He did that for about 18 months and then returned to South Australia in December 2003.
In the financial year ending 2002 he worked as a labourer for a firm called AAA Powder Coaters. He said he lost that employment “through lack of being able to undertake work, because I would wake up and didn’t see any point, didn’t really have any goals at that stage”. When asked whether he was receiving any treatment for depression at the time the plaintiff replied that he could not be sure.
Upon his return to South Australia in 2003 he was on the Newstart Allowance for a brief period and then commenced work at Ion Automotive (now Castalloy). He started work about two weeks prior to Christmas 2003 and has maintained his employment with that firm. He returned to see Dr LePage on 26 October 2004.
The plaintiff gave evidence of a suicide attempt. He said that during a bad stretch, when he was “drinking a little bit” he went out to visit his brother’s gravesite at Owen. He said “I believe I was just chatting to him for a while, had a few drinks, just basically I had had enough. I proceeded to drive my car head-on into a tree”. He suffered a loss of consciousness, cuts and lacerations, but obviously survived.
In cross-examination he said he lost his job with AAA Powder Coaters because of an inability to control his anger. If that employment was in the 2002 taxation year, he must have lost that employment about 2½ years after the disappearance of his brother. The plaintiff said he did not have a problem with anger prior to his brother’s death. That evidence is inconsistent with the evidence of Dr LePage to which I refer below. He also said that in 1999 he had made an earlier suicide attempt when he slashed his wrists. That cannot have been a serious attempt because he did not require medical attention. The plaintiff’s father who witnessed the event did not attach much significance to it.
The plaintiff said that after his first consultation with Dr Lim he visited him regularly. Dr Lim would have been an important witness for the plaintiff but he was not called. He was the plaintiff’s doctor prior to his brother’s disappearance.
The plaintiff denied that he was already suffering depression before his brother’s murder. He said he started to feel depressed some months after he learnt of his brother’s disappearance. When asked how long the depression lasted be said “I still suffer from it but not as bad”. When asked to explain his present symptoms of depression the plaintiff said “It is hard to explain. Sometimes it is just a lost feeling, I have got no one that I can really relate to any more”.
In an affidavit which he made in connection with these proceedings Mr McCormack said:
When I learnt of the details of my brother’s murder I became very disturbed, depressed and suicidal. I was hospitalised on medication with major tranquillisers and anti-depressant medication in the years following the disclosure and full horror of the offence that led to my brother’s death.
There is no objective evidence that the plaintiff was hospitalised for any psychiatric problem. That statement in the affidavit gives a false impression of the plaintiff’s illness. When questioned about the statement the plaintiff was vague and said that he could not be sure whether he had been hospitalised. In that respect his evidence was unsatisfactory. If he could not remember whether he had been hospitalised for a psychiatric injury he should not have made the statement which he did in the affidavit. He could not remember when he first requested solicitors to commence the claim.
In cross-examination by Mr Williams the plaintiff said that while in the Northern Territory he had abused drugs and alcohol. The evidence does not establish that contributed to his illness in any relevant way.
As I have mentioned, I accept the evidence of Dr LePage. His evidence in chief was contained in a medical report dated 22 December 2004.
Dr LePage first saw the plaintiff on 17 May 2002, on referral from Dr Lim. After a few appointments with Dr LePage the plaintiff disappeared to the Northern Territory for approximately two years. Dr LePage was unable to complete a medical report which the plaintiff’s solicitors had requested on 22 November 2002.
At the time of his referral to Dr LePage, the plaintiff had just been released from hospital following the attempted suicide at the site where his brother’s body had been found. It seems that the plaintiff went to hospital for x-rays or treatment of the physical injury suffered in the collision, not treatment of a psychiatric condition. Dr LePage said he was in a very disturbed, depressed and suicidal state. He prescribed an antidepressant and a tranquilliser. The plaintiff told him that he did not feel that there was any point in life, that he did not regard himself as a strong person and he did not like reality. He said his brother was the only person whom he could really relate to. He told Dr LePage about two previous suicide attempts. Amongst other things, the plaintiff told Dr LePage that he felt he had run out of options, that he did not sleep, that he was afraid of his anger and that he harboured aggressive and murderous feelings towards his brother’s associates.
Dr LePage saw the plaintiff on three occasions in May 2002. In June 2002 the plaintiff failed to keep four appointments with Dr LePage but returned on 1 July 2002 when he told Dr LePage he had lost his job and girlfriend because of aggressive outbursts. That must have been the job with AAA Powder Coaters. Four subsequent appointments were not kept and Dr LePage did not see the plaintiff again until 26 October 2004 when the plaintiff reported that he had gone to Darwin in July 2002 and returned to Adelaide in December 2003. Dr LePage noted:
He said that he was working in the Northern Territory but returned to Adelaide to escape bad company that he had been involved with. He said that he had attempted to make friends, but continued to live a solitary life and did not let people get close to him. He said that since returning from Darwin he had obtained employment …
The plaintiff told Dr LePage he continued to have anger problems and had recently been involved in a fight.
On 17 December 2004 the plaintiff told Dr LePage that he still had occasional dreams about what he imagined happened to his brother and that he still did not feel the need to function in society the way that he knew he should. He was still in employment with the same firm. He said he was somewhat less depressed than he had been.
Dr LePage’s conclusion was that the plaintiff suffered from a personality disorder predating his brother’s death which was manifested predominantly by difficulty in making comfortable intimate relationships which were impaired by the intensity of his anger. Dr LePage regarded the personality disorder as emanating from his dysfunctional family life particularly with his father.
Dr LePage said that it would appear that he developed a severe depressive reaction as a result of his brother’s murder and that intensified his anger for a significant period of time. While there had been a period of substance abuse, the plaintiff had stabilised since his return to Adelaide, had been in regular employment, and had been less depressed although there were still periods when he lost control of his aggression.
Dr LePage said his prognosis is guarded and the condition has probably plateaued so that the plaintiff is likely to remain as he is for an indefinite period of time.
Dr LePage elaborated upon his written report in oral evidence. As to the personality disorder which predated the brother’s death Dr LePage said:
He had what could more accurately be described as an incomplete personality development which was manifested in a variety of ways. One was his inability to relate comfortably to other people. He had a surplus of aggressive feelings within him, with associated depression due to his inadequate attachments to people. He didn’t have a strong sense of purpose in life. He never had any long-term attachments to any females. He tended to drop out of his associations, particularly sporting associations.
Dr LePage said the plaintiff’s depression and anger both predated the brother’s murder. He had a diminished capacity to control his anger and was anxious and insecure. Those personality traits developed well before the murder of his brother. He had a limited ability to establish and maintain personal relationships. He did not have long-term ambitions and did not hold onto jobs for long periods of time.
Dr LePage’s opinion is that the murder of his brother caused a severe depressive reaction. The plaintiff was very disturbed, depressed and suicidal. He was angry and aggressive. He felt the loss of his brother very deeply. Dr LePage said “there was a pre-existing constellation of symptoms in the personality disorder but all of that was compounded by the death of his brother”. He said that the depressive reaction would have compounded Mr McCormack’s ability to work and sustain employment.
The plaintiff told Dr LePage that between the murder trial and the time when he saw Dr LePage for the first time there had been a degree of modification in the intensity of his feelings.
It is difficult to be precise the way in which the murder has exacerbated the plaintiff’s symptoms. Dr LePage said that the personality disorder was a permanent part of his being and that from time to time both before his brother’s death and before he lost his brother the plaintiff was incapacitated by a the symptoms which he mentioned, but they were compounded after his brother’s disappearance, again after the body was discovered and again at the time of the murder trial. At the time of his last consultation in 2004 the plaintiff told Dr LePage that his condition had improved but not to the state that it was prior to his brother’s disappearance and his knowledge of his death and the nature of his death.
Dr LePage could not say whether any particular aspect of the plaintiff’s behaviour was aggravated by the consumption of amphetamines or marijuana.
The plaintiff last saw Dr LePage on 26 October 2004. That appears to have been for the purpose of the report which had been requested by his solicitor rather than for treatment. Prior to that the plaintiff had last sought treatment from Dr LePage on 1 July 2002. There was no evidence of any other treatment. The fact that the plaintiff did not require psychiatric treatment after 1 July 2002 gives some indication of the severity of the plaintiff’s condition.
Mr McCormack senior said that after the plaintiff learned about the death of his brother he “became a little introspective and isolated and generally found difficulty in doing anything with any consistency”.He said “he was a very angry young man, he was difficult to talk to… he seemed to resent being around the area where he was living before, like where we are living. He was quite violent behaviour and I am fairly sure at that time he was taking some marijuana off and on.” That was different from his previous behaviour.
As to the present, Mr McCormack senior said that the plaintiff seems to like his environment, he has made a few friends and he seems to have some meaning and purpose.
I accept the evidence of Dr LePage as to the plaintiff’s pre-existing condition. I accept that the plaintiff suffered a worsening of his condition or to use Dr LePage’s expression compounding of his symptoms following the disappearance of his brother, again following the discovery of his brother’s body and again at the time of the murder trial. I accept that there is a permanent aggravation of his pre-existing condition.
Non-economic loss
Section 7(8) of the Criminal Injuries Compensation Act sets out the “rules” which the court must observe in awarding compensation. In the case of non-financial loss the court must assign a numerical value on a scale of 0 to 50.
In the case of State of South Australia v Bole[8] a plaintiff who was suffering from a post traumatic stress disorder was awarded 12 out of the maximum of 50 points. In the case of Bott v State of South Australia & Dohling[9] another plaintiff suffering from a post traumatic stress disorder was awarded nine points. In the case of Williams v State of South Australia & Heron[10] a plaintiff who suffered from major depression was awarded 12 points and in the case of Massingham v State of South Australia[11] a plaintiff suffering from a depressive state as well as physical injury was awarded 15 points. In the case of Lane & Johnston v State of South Australia & Turner[12] the plaintiff with post-traumatic stress was awarded 15 points and the plaintiff with an adjustment disorder was awarded five points. Counsel for the plaintiff submitted that a figure of between 9 and 11 points would be appropriate.
[8] (1995) 183 LSJS 90
[9] [1998] SADC D3776
[10] [1996] SADC D3414
[11] [2001] SADC 137
[12] [1999] SADC 20
Counsel for the Crown submitted that 8 or 9 points would be appropriate. He referred to the case of Richards, Sansbury & Wanganeen v State of South Australia & Tomac[13] where psychological injuries and mental shock resulted in an award of 7 points.
[13] [1997] SADC D3577
As I have mentioned the Crown does not challenge the fact that the plaintiff suffered a mental injury in consequence of the offence. The defendant Mr Williams does challenge the injury, but I have found against him.
Making an assessment of the degree of exacerbation in this case is not easy. Assessing psychiatric illnesses never is. However one thing which is clear is that the murder of the plaintiff’s brother made his psychological problems worse and that resulted in a diminishment of the quality of his life. That is corroborated by the evidence of Dr LePage.
While the awards in earlier cases are instructive, the task which I must carry out is to assume that the very worst case would attract an award of 50 points and then place the plaintiff’s condition somewhere in the range of 0 to 50. Adopting that approach for non-economic loss, I award the plaintiff 8 points or $8,000.
Economic loss
The plaintiff’s counsel argued that he has potentially lost about $80,000 in income. Counsel for the Crown argued that the plaintiff’s gross income loss was $9,900, which sum should be discounted for tax and other contingencies.
The plaintiff’s income tax returns were put into evidence. Counsel for the plaintiff and counsel for the Crown each prepared useful summaries. There is no evidence as to what income the plaintiff might have earned during his periods of unemployment. Furthermore, there is no direct evidence that the plaintiff was incapacitated from work during any specific period because of his illness. The plaintiff says that he was suffering from an illness, that there were periods when he did not work and he asks the court to infer that all of the periods of unemployment were a consequence of his injury. In my opinion, that inference is too big a step for the court to take. The plaintiff’s own evidence does not establish that he was unable to work for the whole period. Save for the evidence of Dr LePage, which I have mentioned, there is no medical or other evidence which corroborates an incapacity for work during any particular period. There were periods when the plaintiff did not work, but the evidence falls short of establishing that the plaintiff was unable to work for several years because of his depression. It is significant that the plaintiff had not received any medical treatment after July 2002. The failure to seek treatment may be capable of explanation, but no attempt was made to do that. The fact that the plaintiff did not seek treatment after seeing Dr LePage in July 2002 is an indicator of the severity of his condition at that time.
The taxation returns establish that the plaintiff had derived a modest income in the years leading up to the offence. For the financial year ended 1999, the year during which the offence was committed, the plaintiff’s gross income was about $13,300. There was no income loss from the period the plaintiff learnt of the disappearance of his brother until the end of that financial year.
In the financial year ending 30 June 2000 the plaintiff earned $12,200 with D & S Contracting, $4,316 with Industrial Plastics Services and received about $1,300 from the Newstart allowance. There was no evidence about his employment with Industrial Plastics Services. It can be inferred from the relatively low amount of the Newstart allowance that the plaintiff was able to work for the majority of the 2000 financial year.
In the 2001 year the plaintiff did not work and received a Newstart allowance of $8,099.
In the 2002 year the plaintiff earned $5,063 with AAA Powder Coaters. The period of that employment was not clear. I have already referred to the plaintiff’s evidence as to the circumstances in which he lost that employment. I think the loss of that employment could be attributed to the plaintiff’s depression. In his written report, Dr LePage referred to his first consultation with the plaintiff on 17 May 2002, when the plaintiff told him that he was currently working in a factory at Lonsdale, but was generally angry and depressed.
On 1 July 2002 the plaintiff told Dr LePage that he had lost his job and girlfriend because of aggressive outbursts. Dr LePage wrote that the plaintiff “freely acknowledged that he had lost his job and his girlfriend because of his inability to control stress and anger”. Dr LePage did not address the question of whether losing the job was the consequence of the plaintiff’s underlying personality disorder or a consequence of the aggravation caused by the offence.
Apart from the work with AAA Powder Coaters, the taxation returns do not disclose any further employment during the 2002, 2003 and 2004 financial years until the plaintiff commenced his current employment with Ion Automotive (now Castalloy) on 8 December 2003. When Dr LePage saw the plaintiff on 26 October 2004 the plaintiff told him that he had been working in the Northern Territory. In evidence, the plaintiff said that he had done some seasonal work around “mango time”. The work in the Northern Territory is not disclosed in the taxation returns
The evidence does not directly establish an incapacity for work for any precise period consequential upon the injury caused by the offence.
Apart from the fact that the evidence does not make out the alleged financial loss, a significant deduction would need to be made for contingencies. There is a possibility that the plaintiff may have lost his employment for some other reason such as his pre-existing personality problems, even if the offence had not been committed, although his current steady employment with Castalloy negatives that suggestion.
As I have mentioned, the plaintiff was able to work for about 18 months following the disappearance of his brother. He has been able to work for the last two years. The evidence does not directly establish that any specific period of unemployment between 2000 and 2004 was a consequence of the relevant injury.
While the evidence does not establish what income he may have earned during the periods of unemployment I can draw inferences from the income which the plaintiff was able to earn whilst in employment before and after the periods of unemployment.
The evidence does not permit me to infer that all periods of unemployment were a consequence of a depressive illness or aggravation of the pre-existing condition. However, I do think it is probable that some periods of unemployment are attributable to the injury. The “rule” for determining the financial loss is that where a plaintiff’s financial loss exceeds $2,000 the plaintiff is to receive the sum of $2,000 plus three quarters of the balance of the loss.

If the evidence had established that all of the periods of unemployment were caused by the injury I would have assessed the plaintiffs loss of earnings at $9,500 for 2001, $11,500 for 2002, $13,000 for 2003 and $6,600 for 2004. That is a total of $39,600. The income loss ended in the 2004 year and there is no continuing loss.
As have mentioned, the evidence does not directly establish that all of the periods of unemployment were a consequence of the injury. However, while there is no specific evidence which establishes that fact, I think that it is reasonable to assume that some unemployment was a consequence of the injury. Doing the best I can and adopting a lump sum approach, I assess the loss of earnings at $15,000. For that loss the “rules” require me to award $2,000, plus 75% of $13,000, that is a total of $11,750. I round that up to 12 points.
Accordingly, the plaintiff will receive a total of 20 points being 8 points for non-economic loss and 12 points for economic loss, that is a total of 20 points or the sum of $20,000.
Endorsement required by section 7(11) of the Criminal Injuries Compensation Act 1978
Two affidavits sworn by Mr Williams on 25 January 2005 and 10 March 2005 were put into evidence. The affidavits establish that on 11 June 2002, Mr Williams was declared bankrupt by the Insolvency and Trustee Service of Australia. He has since been discharged. He said he was without finances, had no bank accounts, stocks, bonds, shares, real estate or other types of property assets. He was unable to pay the court fees associated with his defence. He has been in custody since February 1999 with no income. He has had no employment within the prison system. He is paid an unemployment allowance of $12.80 per week. In December 2000 he was convicted of murder and sentenced to life imprisonment with an 18-year non-parole period. He says he has no capacity to borrow funds.
Mr Hersbach also filed an affidavit. He was declared bankrupt in July 2002, but has been discharged. He did not participate in the hearing. Nothing further is known of his circumstances.
I make the following orders:
1Pursuant to section 7(4) of the Criminal Injuries Compensation Act 1978 I dispense with the requirement for these proceedings to be commenced within three years of the murder of Phillip McCormack.
2There will be judgment in favour of the plaintiff against all defendants in the sum of $20,000.
3The plaintiff has not received and is not likely to receive any payments other than the compensation ordered under the Act respect of his injuries.