Morrison v State of South Australia and Elgueta No. Cicd-99-137 Judgment No. D101

[1999] SADC 101

MORRISON v STATE OF SOUTH AUSTRALIA & ELGUETA

[1999] SADC 101

Judge Anderson
Civil

1 The Plaintiff seeks compensation pursuant to the provisions of the Criminal Injuries Compensation Act 1978 ("the Act").
2 By virtue of the Second Defendant’s answer to the Plaintiff’s Notice to Admit, there is no dispute that the Plaintiff, whilst employed as a counter seller by the TAB at Plympton, at about 5.45pm on 16 July 1997, was the victim of an armed robbery committed by the Second Defendant.  For that offence the Second Defendant was tried and convicted in this Court.  An appeal to the Court of Criminal Appeal in mid 1998 was unsuccessful.
3 The hearing of this application was somewhat unusual in that, when I had twice refused the Second Defendant’s application for an adjournment, he effectively took no further part in the proceedings.  He consented to the Plaintiff tendering medical reports and a financial statement.  He did not ask questions of the Plaintiff, the only witness to give evidence, and neither did he give evidence nor address when given the opportunity.
4 The Plaintiff said in evidence that on 16 July 1997 she was the sole person on duty at the Plympton TAB when the Second Defendant entered.  He presented a winning ticket and, as she opened the cash drawer to pay him, he leapt across the counter, pressed a screwdriver momentarily to her stomach and yelled at her to move away.  She did so.  She said that she was shocked, unable to believe what was occurring.  I believe her.  The Second Defendant then fled with the money.
5 The Plaintiff had pressed an alarm button during the robbery.  When she later telephoned security to report the robbery, she learned that the alarm had not worked.
6 Arrangements were made for the Plaintiff to be seen by a counsellor that evening.  Ms Tilly attended.  I accept the Plaintiff’s evidence that she continued to consult Ms Tilly for about four months.  To the extent that such a finding is in conflict with Ms Tilly’s report of 31 July 1998, I prefer the Plaintiff’s evidence.  It is apparent from the report that it was written about a year later without reference to notes which, by then, had been lost.
7 The Plaintiff returned to work the week following the robbery but found great personal difficulty in so doing.  At this time she said, and I accept, that she was still shocked and distressed, was unable to sleep and unable to accept what had occurred.  She easily cried.
8 All of this was quite different from her disposition prior to the robbery when she had been generally happy and contented with her lot in life.
9 The Plaintiff’s difficulties at work were such that she worked less and not at night.  In September 1997 she moved to work at the Glenelg TAB, but continued to work fewer hours than before the robbery.  Because of this she received income maintenance from WorkCover until 31 December 1997.
10 Until about this time she was stressed and unable to trust customers at the TAB for fear of a repetition event.  She continued to be easily distressed and her social life became much less and there was stress in her relationship with her husband.
11 This is about coincident with the period of treatment the Plaintiff received from Ms Tilly.  By then the psychologist had diagnosed a Post Traumatic Stress Disorder.
12 Contemporaneously with these consultations, the Plaintiff had regularly seen her General Practitioner since 22 July 1997.  These attendances were quite regular until December 1997.  Thereafter, there was a break until the approach of the Second Defendant’s trial.  Dr Hanchard had also diagnosed a Post Traumatic Stress Disorder and gave her medication which she took until the end of 1997.
13 The Plaintiff also suffered a relatively minor physical injury to her chest wall in reaching for the alarm button.  That injury resolved over time.
14 The Plaintiff continued to work at the Glenelg TAB until mid 1997.  She said, and again I accept her evidence, that she left that employment because just being at the TAB was too stressful and she "couldn’t handle it" (T p12).  She was scared to go to work.
15 Stress re-appeared as the trial approached.  In March 1998, Dr Hanchard referred the Plaintiff to Ms Bretag, a psychologist.  She first saw the Plaintiff on 25 March 1998 and confirmed the earlier diagnosis of Post Traumatic Stress Disorder.  The Plaintiff continued to see Ms Bretag until May 1998, that is until after the time of the Second Defendant’s trial and conviction.
16 The Plaintiff remained under personal stress until the Second Defendant’s appeal failed in mid 1998.
17 In June 1998 she left her work at the TAB and took employment in a box making factory.  She left that work in February 1999 and commenced separate employment as a contract cleaner.  She maintains that employment and said in evidence that she is now much improved within herself as she is no longer required to face stressful situations.  She enjoys her work.
18 Her psychological and medical consultations in early 1998 led to her again taking medication until the end of that year.  She no longer does so and her general feeling of well being has returned to what it was prior to 16 July 1997.  She has learned stress reduction techniques and is able to use them confidently in this outcome.
19 There has been some further stress related to this hearing, but I am confident it will soon pass as it concludes.
20 The Plaintiff gave evidence that she and her husband have decided not to have children.  There is mention in Ms Bretag’s report of 18 February 1999 of the Plaintiff, in 1998, "planning to have some fertility assessments".  I am not persuaded that her decision to not have children has been, in any real and substantial way, affected or influenced by the events of her life on and after 16 July 1997.
21 As a consequence of the admission by the Second Defendant of the commission of the armed robbery in his answer to the Notice to Admit, the issue of liability or causation has been resolved in favour of the Plaintiff.
22 The matter is really one of assessment pursuant to the provisions of the Act and in accord with the principles enunciated by the Full Court in State of South Australia v Bole (1994) 64 SASR 379. This is not a matter where the issue of aggravated damages arises and neither has that been suggested.
23 In all of the circumstances, I fix the number 8 as an appropriate measure of the Plaintiff’s non financial loss. Pursuant to Section 8(a)(ii)(B) of the Act this is converted to the sum of $8,000.
24 The Plaintiff’s financial loss is what was paid as wages maintenance which is shown by the exhibit P3 to be the sum of $5,645.39.
25 Hence, the Plaintiff is entitled to judgment against both Defendants in the sum of $13,645.39 of which the sum of $5,645.39 has been received and I endorse these reasons accordingly.  The Plaintiff is also to have her costs and I shall hear the parties in that regard.
26 As the Second Defendant elected not to give evidence, nothing is known as to his means or assets, except that I note he presently remains in custody serving the sentence imposed for the armed robbery of 16 July 1997.
Monday, 9 August 1999:

In the absence of, but with the consent of both parties, judgment amended in accordance with the letter from the Crown Solicitor’s Office, dated 5 August 1999, to $12,734.04.