Nikolic v The State of South Australia & Dedic No. Dccic-00-288

NIKOLIC V THE STATE OF SOUTH AUSTRALIA & DEDIC
[2002] SADC 54
Judge Herriman
Criminal Injuries

On 2 October 1998, the plaintiff was admitted to the Royal Adelaide Hospital complaining of left‑sided chest pain and shortness of breath. On examination, he was found to be suffering from a left‑sided pneumothorax, for which he was treated. He was discharged two days later.
At the time of admission, he stated that his injuries had been sustained in an assault on the previous day, in the course of which he had been kicked in the chest. He was later interviewed in hospital by police and he then said he had been assaulted by the second defendant.
In consequence of further police enquiries, charges were laid against the second defendant over the alleged incident, but ultimately they were not proceeded with and no person has since been tried or convicted of the alleged assault.
The plaintiff has nonetheless sought compensation under the Criminal Injuries Compensation Act 1978, as amended (“the Act”) for his injuries and for what he says were the psychological and psychiatric consequences of them.
The first defendant has disputed the claim, contending the plaintiff has not proved, beyond reasonable doubt, that he was the victim of the alleged offence, as required by section 8(1a) of the Act, further contending that there is no evidence corroborating the commission of that offence. In the alternative, the first defendant has argued that if the plaintiff is found to have been the victim of an offence, then his own conduct contributed to its commission.
The second defendant has also opposed the plaintiff’s claim, not disputing he was assaulted, but denying that he was the assailant and otherwise putting the plaintiff to proof.
I remind myself of the provisions of section 8 of the Act, which, with one exception, provide that proof of any facts or matters of causation needs to be on the balance of probabilities, only. The exception, of course, relates to proof of the commission of the alleged offence itself and there the onus is proof beyond reasonable doubt. Further, that same section requires that if (as here) no person has been tried for the offence, the evidence of the claimant as to the commission of the offence itself must be corroborated in a material particular.
At trial, whilst all matters remained in issue, it would be fair to say that the most strongly contested questions concerned:
(1)whether the plaintiff was indeed the victim of an offence and whether his claim as to this was corroborated in a material particular;
(2)assuming he was such a victim, whether, or to what extent, his injuries gave rise to the psychological and psychiatric disabilities of which he later complained;
(3)again assuming the plaintiff was such a victim, whether the second defendant was the assailant - the second defendant denied he was.
The first defendant mainly disputed the first two matters, but the second defendant, who was unrepresented, focussed on the third matter.
LEGAL QUESTIONS
As to the first issue, no person having been tried for the alleged assault, in addition to his own evidence, the plaintiff relied upon two matters which he said corroborated its commission, namely:
(1)his physical injuries, which, according to medical opinion, were consistent with the nature of the alleged crime;
(2)the evidence of Zoran Nikolic (his brother) as to conversations he (the brother) had had with the second defendant in the days following the alleged incident, when, so it was argued, the second defendant admitted being the assailant.
As to the first of those matters, the medical evidence was largely uncontested. Dr Balfour (Exhibit P1) concluded that the plaintiff’s physical injuries were consistent with his having been kicked in his left side, as, indeed, did the first defendant’s specialist, Dr Antic (1D3). Dr Antic went on to speculate about the possibility of a spontaneous pneumothorax occurring, in the absence of trauma, but ultimately concluded that it was “most likely that the injury occurred as described” (i.e. by the plaintiff) (1D3).
There is ample authority for the proposition that medical evidence of this kind is capable of amounting to corroboration within section 8(1b) of the Act (cf Marshall v State of SA (1987) 136 LSJS 12, Steinhauser v State of SA (1986) 128 LSJS 4, Jones v State of SA (1985) 125 LSJS 469, Voy v State of SA (SC(SA), Full Court, 5 June 1992, Jud. No. 53453, unreported), Field v Gent (1996) 67 SASR 122; 186 LSJS 90, Howie v State of SA (1989) 152 LSJS 230, Gagliardi v State of SA (1988) 147 LSJS 126.
In the particular circumstances here, I have no hesitation in finding that the uncontested medical evidence of Drs Balfour and Antic is capable of corroborating in a material particular the evidence of the plaintiff as to the commission of the alleged offence. The plaintiff’s evidence does, however, have to be evaluated against other evidence in the case, and I will turn to that shortly.
As to the second of these matters, it is beyond question that an admission or partial admission of an accused person can amount to corroboration within the meaning of the section. If it is accepted that the second defendant said to Zoran Nikolic the things he is alleged to have said, I am persuaded then they can be corroborative for the purposes of section 8(1b). Again, however, that evidence must be viewed in the context of a proper evaluation of the plaintiff’s evidence.
The remaining disputes, as to the asserted psychological/psychiatric injuries and as to whether the second defendant was an assailant, remain to be determined on the balance of probabilities.
Against those principles, I now turn to consider the evidence, first as to liability and then as to quantum.
LIABILITY EVIDENCE
- the plaintiff
The plaintiff is a Bosnian‑born Serb refugee, having arrived in this country in January 1997. He is now aged 47.
He attended high school in his birthplace, Sarajevo, and worked there as a graphic printer until the commencement of the civil war in the former Yugoslavia. At that time, he refused to join Muslim forces in the fight against Serbia and, in consequence, was imprisoned for about one year. On his account, he suffered emotional and physical abuse during this time. Eventually, he was freed and he emigrated here.
After arriving here, he was unable to obtain work for a year, but eventually secured employment as a labourer in a vineyard at McLaren Vale.
He had known the second defendant prior to 1 October 1998 and had met him through his older brother, Zoran. On his account, some three months before the incident, he had purchased a Gemini motor vehicle from Dedic and had paid him $1,000 for it. He had been promised the papers for the car, but they had never materialised and he had continually pressed the second defendant for them. Ultimately, Dedic had said he would take the car back instead, but that he would return only $800 of the purchase money. That was unacceptable to the plaintiff.
In the event and whilst this dispute was unresolved, the plaintiff says that the second defendant visited his house or unit at Florence Avenue, Blair Athol at about 8 p.m. on 1 October 1998. The second defendant then gave him $800, saying that he was going to kill him, that there was no place for him in Australia and if he saw him anywhere, he would break his arms and legs. On the plaintiff’s account, he did not respond to those words or actions in any aggressive way, but, rather, sought to avoid any confrontation. At all events, he said, he was at one point standing in his driveway beside his car‑parking space, when the second defendant, whom he thought was leaving, suddenly hit him with a fist in the back of his neck. This blow caused him to fall to his knees. The second defendant then hit him with both fists in the right lower jaw and as he fell onto his side. Dedic then said he would kill him and began kicking him. According to the plaintiff, he lost consciousness at about that point. He later recovered and crawled into his house, where he again fell unconscious. His next memory was of a friend, with whom he worked, coming to his unit and finding him there. The friend summoned an ambulance and he was taken to hospital. On all the evidence, that visit occurred in the morning of the following day, 2 October 1998.
In cross‑examination, he said that, when Dedic came there, he (Dedic) was angry and accusatory, but that he (the plaintiff) simply asked Dedic to leave, saying he did not want to argue about it. It was when he went outside with Dedic that the assault occurred. He denied losing his own self‑control or becoming abusive in any way towards Dedic.
He was asked whether he saw any other person come to the house with the second defendant and he said he did not, although he had later wondered how Dedic had got there and had, apparently, after the assault taken the Gemini away with him.
He said that he did not himself seek medical assistance after the incident, but his friend, who called there, did so.
In cross‑examination by the second defendant, he denied ever borrowing money from Dedic, but he prevaricated about whether other persons had loaned him money on behalf of Dedic.
He agreed that Dedic had picked him up from work at McLaren Vale, but said that was on one occasion only and had happened when Dedic had been wanting to sell him the Gemini. He had then driven it. It was put to him that he was picked up from there by Dedic on a number of occasions, but he denied that.
He said that, whilst he had taken the car from Dedic without papers, he had trusted Dedic to bring them to him, albeit that it never happened.
- Zoran Nikolic
The plaintiff’s brother, Zoran Nikolic, was born in 1952 and had come to Australia as a refugee some four years ago. He had known the second defendant for some time, as they had lived nearby and had socialised, along with their wives, even up to the time of the trial. They came together as often as three to four times a week, although Zoran still described them as acquaintances and not friends.
He was aware of his brother suffering injuries on 1 October and he said he had found out about it from the second defendant himself. He said that Dedic had come to his house between 8 and 9 a.m. on 2 October. He and his wife had just had coffee on their verandah. Dedic told him that he had been involved in an incident with the plaintiff and that, as a result, the plaintiff had been left “in blood and unconscious” and “crying” (p.103). He suggested that Zoran should go to his brother’s place to see what had happened to him.
When first told of this, Zoran did not believe it or, if indeed it had happened, that it was very serious. Nevertheless, he went to his brother’s house, to find the house open, but his brother absent. It took him about 40 minutes to drive there. He then returned home, but because of his poor English, had to wait for his son to come home from school that day, so that the son could call the authorities and enquire about the matter. Eventually, that happened and he learned that Dragan was in hospital. He went to see him, but his brother was then in a “coma” and he could not talk to him. He visited him on every day after that. In the course of those visits, the plaintiff complained to him of having been assaulted by the second defendant.
He then related another incident which occurred some five to six days later, when he was with others at Milan Pizza Bar on Port Road. He saw the second defendant there and because he was still quite upset over what had happened, went up to Dedic, saying:
“What was wrong with you? How could you do something like that to my brother? What could he possibly have done to you that you beat him up so severely? Look at you, how big you are and how bigger than my brother you are. It was like a battle between David and Goliath ... If there was any problem between you, why didn’t you come to me and tell me that there was a problem so we could actually solve it?” (p.106).
He said that in response to that statement, the second defendant waved his hand and said “Well, what can I do now?”.
In cross‑examination, his evidence was not substantially challenged by the first defendant. The second defendant, however, pressed him as to their friendship and the help he said he had provided to Zoran, as a new arrival. He was challenged as to why he had not previously told anybody of his discussions with Dedic on the day after the assault and at the restaurant. Zoran replied that he had never been approached by anyone about it. Notwithstanding these matters, Dedic did not challenge Zoran’s evidence about the conversations he had had with Dedic, either at his (Zoran’s) home on the day after the incident or some days later at Milan Pizza Bar. In consequence, I warned him of the possible consequences of any failure on his part to challenge that evidence or to put an alternative version of events to Zoran Nikolic. Still, Dedic did not challenge that evidence. However, when he came to give evidence himself, it became apparent that he was, indeed, disputing it. As Zoran Nikolic was then still in court, I permitted him to go back into the witness box. It was then put to him by Dedic that his account of Dedic coming to his house on 2 October was incorrect. He rejected that and said that Dedic very well knew that he visited on that morning. He went on to explain how he and Dedic continued to socialise after the incident, although they were very careful never to mention it.
Dedic appeared, then, to be reluctant to challenge the veracity of Zoran Nikolic’s evidence about what had taken place at Milan Pizza Bar, so I put the matter to Zoran Nikolic. He affirmed that such an incident had happened as he had described it.
At the conclusion of that further cross‑examination of Zoran Nikolic, Dedic, who was in the course of giving his own evidence, commented as follows:
“All I have to say is that Mr Zoran is good man, much better than his brother and all of the other people, his friends, and also he will always stay good man in my eyes.
It’s not clear for me why this is happening because, in first court, there wasn’t any witnesses. Mr Dragan was not - he was not there to witness, as well as other witnesses, and all things were finished. It is not clear to me why this happening again ...” (p.133)
- the second defendant
Dedic was born in Bosnia in 1969 and came to Australia in June 1997.
He said in evidence that he had been spoken to by police after the assault and had told them everything. He said an assault by him could not have happened, because he was, at that very time, working with his wife in their office cleaning business. They were working together between 6 p.m. and 9 p.m. at a business called Ricoh at 11 King William Road, Unley. In order to gain entry to those premises for their cleaning duties, they routinely had to make a telephone call to security for the door to be opened and also for it to be closed afterwards. This had been done on that night. He could not, he said, have been in the two places at once. He said he was then in the habit of working between 6 p.m. and 9 p.m. on every day except Sunday.
He said he knew the premises where the plaintiff lived at Blair Athol, but he had not gone there on 1 October 1998 and he denied assaulting the plaintiff at that time or at any relevant time.
As to the question of the Gemini motor vehicle, he said he had driven the plaintiff to or from his work at McLaren Vale on a number of occasions. The car belonged to his (Dedic’s) wife, but he sometimes loaned it to the plaintiff. He had never sold or purported to sell it to the plaintiff and said nobody would buy a car without papers.
He said that despite the plaintiff’s evidence about loans, he had been lending him money. The plaintiff had then fallen into arrears and he had asked his brother, Zoran, to speak to him about it. He could not prove he loaned the money to the plaintiff because the people, through whom he had given it, would not come to court.
He said he did not challenge, at all, the plaintiff’s account of his injuries or their consequences.
He was not sure whether the plaintiff had actually owed him money as of 1 October 1998, but there had been times before then when money had been owed. In fact, the plaintiff had owed him upwards of $400 nett at one stage, from a loan he had made some months before the assault. The plaintiff had then been working at McLaren Vale and had promised to repay it, but had only done so after his brother had intervened. He thought this repayment had probably occurred before 1 October 1998.
As to the Gemini motor vehicle, he said that it had been returned to him by the plaintiff at premises on Prospect Road and before 1 October 1998.
As to the alleged events of 2 October 1998, he denied speaking to Zoran Nikolic at all on that day. He had spoken to Zoran’s wife by telephone that day and she had then told him what had happened to the plaintiff and had accused him of it.
As to the claimed incident in Milan Pizza Bar, he denied talking to Zoran Nikolic at all on that occasion and said that he and Zoran had never talked about the incident, albeit that they had continued to see each other frequently.
Under cross‑examination by the plaintiff’s counsel, he denied that he was good friends with Zoran Nikolic, but agreed that they and their wives had mixed socially, both before and after the alleged incident. He said he had helped Zoran when he had first come to Australia. Whilst he had known the plaintiff through his brother, he had not known him very well. Nevertheless, he had picked him up from work and had loaned him a car and money. He loaned money to everybody, he said, if he had it. He had twice loaned out the Gemini and he also had another car.
When cross‑examined about the conversation he said he had had with Zoran Nikolic’s wife, he said that she had telephoned him and had asked what had happened between him and Dragan. He had replied that he did not know anything about it. He thought that conversation had taken place at about 10 a.m. on 2 October 1998 and he had then told her that it had nothing to do with him. He said that he had not contacted either of the Nikolic brothers after that or sought to deny to them or either of them any involvement in the matter. This was because Dragan had said he had done it and he was annoyed at having been falsely accused. He had, however, continued to see Zoran after that time.
He was then pressed on a statement he had provided to the police after the incident and agreed that upon being told he was arrested on suspicion of assaulting the plaintiff, he had said to them “This is the first time that I hear that story. I’ve heard some rumours around, that’s not true. There’s no truth in that ....” (p.141). He was then asked to explain why he had said that when, even on his own account, Mrs Nikolic had put the same thing to him earlier, on 2 October. His response was:
“I can explain. As I said here, I can say that the rumours, it’s not interesting - I’m not interested in rumours. I said that sentence because I wasn’t interested about rumours or anything what people said around and I can’t see a reason why I should be arrested.” (p.142)
On being pressed on that answer, he said he did not believe anything he had been told because they were rumours: “I believe only about the proof, the strong proof, and I couldn’t see a reason why I should be arrested ...” (p.142).
He said that, prior to the incident, he had seen the plaintiff regularly, had loaned him money and his car and had taken him to work, but he had seen him only sparingly since then and had not made contact because the plaintiff was lying and saying stupid things about him.
He was challenged as to the cleaning duties he and his wife carried out at premises at King William Road, Unley. It was suggested that sometimes he would clean by himself and that, at others, his wife would clean by herself. He said the former would happen, but not the latter because his wife had no driving licence. It was put to him that he could drop her off at the premises in his car and collect her afterwards, but he said that did not happen.

He was asked whether his wife was coming to court to give evidence about what happened on 1 October 1998, but he said they were not in a good relationship at the moment. She would not likely come if he called her, but she might if the court called her.
It was put to him that he had agreed to sell the Gemini to the plaintiff and he denied it. It was put to him that the plaintiff had paid him $1,000 and he had handed over the car, but he denied it and said he had only loaned him the car. He was not sure how long the plaintiff had had it, but it was probably several weeks. It was put to him that he had taken the car back on 1 October, being the day the plaintiff was assaulted. His answer was:
“I can’t remember. I think that was a day before 1 October but not certain, yes, not certain.” (p.147).
On that occasion, he had met the plaintiff on Prospect Road and the plaintiff had returned it.
He denied any visit to the plaintiff’s house on 1 October, nor any argument there, nor assaulting the plaintiff, nor ringing his brother on the following day, nor any of the alleged conversation with Zoran in Milan Pizza Bar. He said that after the car had been returned to him, there was no dispute with the plaintiff and he had not seen him to talk to.
A series of matters was then put to him, on which his comments were invited. He was asked why he did not go to see the plaintiff after the assault, if he was not involved in it. He said that the plaintiff did not come to see him when he himself had been in hospital and the plaintiff had never returned his loans on time. It was put to him that if he had been really innocent of the assault, he would or should have been seeking to tell everybody the truth and to clear it up with the plaintiff. He explained that there were problems within their community, particularly with friends of the plaintiff, and that he had had to disassociate himself from that group, because contact with them had affected his health.
He was then asked why he had not attempted to clear up the position with Zoran Nikolic. He observed:
“I was thinking about Zoran and I have opinion that he’s still like my friend and he’s a good man, and he was my friend, Mr Zoran, but I think that someone make up his mind ...” (p.154)
He went on to say that Serbian nationalism had intervened and that is why they would have no further contact in the future. He was not interested in accusations made by the police or others because they were rumours.
He said he would not be calling his employer to give evidence about his being at work on 1 October because he did not have the money to do that, nor to pay a lawyer. As to his wife, he had already said why he did not intend to call her, but he thought there was no need for her to come, anyway, because he was not guilty.
He was pressed upon what he alleged Mrs Nikolic had said to him on the phone. He said she asked him what had happened, what was going on. He was confident she had not said she had heard anything from the plaintiff himself. She had heard it from somewhere else. Mrs Nikolic was trying to say to him that he was guilty, “but she heard that from someone else, and that’s why I said that I’m not interested in rumours” (p.158). He was pressed on why he was not interested in the plaintiff being injured and he responded:
“I wasn’t worried too much about his health, because he was (sic) my really good friend, and because, before assault, before that day, I didn’t - we stopped making contact with each other quite a while before that, and also, I was unemployed and that time I was working hard to work for my family, and also, he was owing me money, so I didn’t take very serious notice about his health, about his condition, at that time.” (p.158)
He was then asked whether he was saying that he was unemployed at the time he was speaking to Mrs Nikolic on the phone. He explained that he was unemployed for a short period when he arrived in Australia, then he worked as a cleaner and after that he went on a disability support pension. He explained that when he was unemployed, there were some jobs he was doing for cash money. He had gone onto the pension in 1999 because of his nerves.
For the purposes of the Act, I allowed the first defendant to examine him as to his means generally. He said he was a pensioner receiving Centrelink benefits of about $300 per fortnight and he had no other income. He is still legally married to his wife and they have a child, but there is only a “very small possibility” that the marriage will survive (p.162). He said his wife is also a pensioner and has no other income. The child is ten years old. They live in a Housing Trust home and pay rental of $160 per fortnight. They have a Nissan Pintara in joint names and he has a Suzuki Hitachi in his own name. Repayments on the Nissan Pintara come directly from the bank at the rate of $50 per fortnight, but the Suzuki was bought for cash. They have no land, money in the bank or shares. He has debts on his Visa card of about $3,000 and his debt to the Commonwealth Bank in respect of the car was for $3,500.
That completes my summary of the evidence as to liability. The remaining evidence, relating to quantum, came from the plaintiff, from Dr D Kutlaca, a psychiatrist, and from the medical reports and documents tendered. Mr Dedic did not seek to dispute any of that evidence, but the first defendant tested some of it and I will return to it in due course.
In the meantime, it is appropriate that I make some observations about the credibility of each of the above witnesses, as there were substantial conflicts between them on matters going to liability.
CREDIBILITY
Neither of the defendants seriously argued that the plaintiff had not been the victim of an offence, nor did either seriously challenge the medical evidence, save as to non‑physical causation. There was, however, conflicting evidence as to the identity of the offender and the alleged conversations afterwards between Zoran Nikolic and the second defendant. I have already canvassed the evidence of the plaintiff and his brother.
In response, the second defendant denied ever visiting the plaintiff’s house on 1 October 1998, let alone assaulting him. He denied that there was then any dispute over the car or its return and he doubted that at that stage the plaintiff even owed him any money. He advanced an alibi for 1 October 1998, saying that, between 6 p.m. and 9 p.m. on that night, he was working with his wife, cleaning an office in Unley.
As to the plaintiff, there are some unsatisfactory aspects of his evidence and I did not feel that I could rely upon everything he said concerning, in particular, the events which took place whilst he was in prison in Yugoslavia (these being matters relevant to quantum) and as to his financial and other dealings with the second defendant prior to the day of the assault. I rather felt that he sought to write down the significance of both in order to bolster his case. On the core questions, however, including the claimed dispute with the second defendant over the car and the events of 1 October, I thought his evidence was firm and unshaken by cross‑examination.
I did not find the second defendant to be a reliable witness and had little confidence in his account of things. His approach to the defence of the action appeared to be based upon the proposition that the alleged assault could not be proven as there were no witnesses to it; further, that he had an alibi because he was at Unley between 6 p.m. and 9 p.m. on 1 October. He seemed overly ready to minimise the extent of his previous relationship with the plaintiff and, indeed, with the plaintiff’s brother, when, on all the evidence, they had previously seen each other frequently and in social contexts.
Notwithstanding his claim to have an alibi, he did not call as witnesses any persons who could corroborate it: in particular, he called neither his wife nor their employer nor the security firm, with which contact was allegedly made at 6 p.m. and later on 1 October 1998. Further to that, he denied Zoran Nikolic’s accounts of the two conversations and he claimed to have first learned of the assault and his alleged involvement in it by means of a phone call from Zoran’s wife, yet he did not seek to call her as a witness.
His explanations for not calling these persons were essentially that he did not have the money or a lawyer, nor would the witnesses cooperate with him, but, as against that, I note that he was represented by solicitors until the eve of trial and there was no evidence led of any attempts to subpoena them.
Further to those matters, his explanations for ceasing all social contact with the plaintiff, yet seeing Zoran Nikolic, after the day of the alleged assault were unconvincing. On his own account, he had been falsely accused and held responsible for the assault, and his explanation for not attempting to clear the air, particularly with his close acquaintance Zoran Nikolic, was that those accusations were no more than rumours and he was not interested in them.
Again, his explanation for telling police at the original interview that it was the first he had heard of the allegations against him, was unconvincing. Clearly, he had been aware of the allegations prior to that and, indeed, even on his own account, Mrs Nikolic had challenged him with them.
It was readily apparent from his evidence that, whatever of his denial of the allegations as to the car and the money, there was, as at 1 October 1998, some measure of bad feeling between him and the plaintiff.
Finally, he was the only witness who sought to draw into the dispute an undercurrent of nationalistic or ethnic conflict and, in the circumstances of the previous relationship between the parties, particularly his relationship with Zoran Nikolic, it did him little credit.
Having said that, however, it was notable that he did not attack the character of Zoran Nikolic and, indeed, spoke highly of his integrity. That observation leads me to reflect on the evidence of Zoran Nikolic.
Zoran Nikolic was clearly placed in a very difficult position by the allegations as to what had happened. He and his wife had had a good relationship with the second defendant and his wife; they were near neighbours and saw each other frequently on a social basis.
Notwithstanding his concern at the allegations made, he had sought to maintain some kind of relationship with the second defendant and his family, right up to the time of trial.
The situation clearly was a most difficult one for him, particularly when put in the witness box, yet I found that he gave his evidence in a firm, dispassionate and convincing manner, and I was impressed by his demeanour. It was clear that Dedic had very considerable respect for him and it was only after I offered Dedic a second opportunity to challenge Zoran’s evidence, that Dedic was prepared to suggest to him that the two critical conversations had not occurred.
As to the second defendant’s alibi, as I have noted, he did not seek to call any person to corroborate it and, in any event, I was less than persuaded that the circumstances, as described by him, provided a necessary alibi, anyway, and for these reasons:
(1)It became apparent that, on the evening of 1 October, the second defendant’s wife could have carried out all the cleaning work by herself and thus afforded the second defendant the opportunity to visit the plaintiff. Put another way, there was no evidence tending to show that the wife might not have been driven to the premises by her husband, might not have gained admission to the premises herself (or even through her husband) and that the second defendant might then have left her there and visited the plaintiff, returning upon the completion of her work later that evening. Of course, it was not necessary for Dedic to disprove such a scenario, but his explanation as to the required security arrangements at Ricoh, did not preclude the above possibility.
(2)In the same context, it may have been possible for Dedic to have commenced work at Ricoh that evening and then excused himself for the time required to visit the plaintiff and return.
(3)On his account, the work required might have been completed by 9 p.m. and the plaintiff’s evidence as to the time of the assault was “about 8.00 p.m.” Given that the plaintiff was undoubtedly concussed in the incident and remained so for some time after, it might be that his estimate of the time at which it occurred could place it closer to 9 p.m.
All these questions might have been resolved had Dedic arranged or subpoenaed those known witnesses to support his alibi, yet he did not.
All in all, I found the evidence of the second defendant to be generally unreliable. In contrast, Zoran Nikolic was an impressive and, I thought, honest and reliable historian. His evidence clearly implicated the second defendant in the offence and to that extent, strongly corroborated the evidence of the plaintiff that Dedic was the offender.
FINDINGS AS TO THE OFFENCE
I must first be satisfied that the commission of the offence itself has been proved beyond reasonable doubt, and I find I am so satisfied. The plaintiff asserted it, the medical evidence supported it and neither of the defendants adduced any contrary evidence or strongly sought to contend that it did not occur.
As I have noted, section 8(1b) requires that the evidence of the plaintiff as to the commission of the offence must be supported “in a material particular by corroborative evidence”.
I am satisfied that there is such corroboration here and it comprises, as contended by plaintiff’s counsel:
(a)the medical evidence, of which I have already spoken, and which I am satisfied establishes that the injuries, undoubtedly suffered by the plaintiff, were consistent with and likely caused by an assault upon him;
(b)the evidence of the witness Zoran Nikolic, which I accept in its entirety and, according to which, the second defendant twice effectively admitted the assault.
The next question is as to the second defendant’s complicity. It need only be established on the balance of probabilities. I am satisfied, on the balance of probabilities, that the offence was, indeed, committed by the second defendant. The plaintiff said so and I had no confidence whatsoever in the second defendant’s denials as to his presence at the premises at the relevant time or as to his complicity in the assault. Further, the plaintiff’s identification of the second defendant was supported by the evidence of his brother as to the later conversations he had with Dedic.
The final matter to be established by the plaintiff on the balance of probabilities is whether there is a causal connection between the commission of the offence and the injuries for which he now claims.
That leads me into a discussion of the medical evidence generally.
MEDICAL ISSUES
Based on the evidence of the plaintiff (which I accept as to this) and the exhibits P1, P2 and P3, I am satisfied, on the balance of probabilities, that in consequence of the second defendant’s assault, the plaintiff was admitted to Royal Adelaide Hospital on 2 October 1998 suffering, inter alia, from tenderness in the chest and a left‑sided pneumothorax; further, that he remained there for two days whilst procedures were undertaken to restore lung function. In addition, I am satisfied that he continued after then to experience an inconveniencing but not significant level of chest pain, albeit that it abated some time between May 2001 and trial. He said this and Dr Zuvela also reported on it, observing that it may well have been the result of fractured ribs sustained in the assault, albeit that fractures were not observable in the x‑rays.
The plaintiff’s claim went well beyond those immediate physical consequences, however, and alleged that, in consequence of them, he suffered serious and disabling psychological and psychiatric problems, which I will now discuss. Before I do so, however, I should say that neither defendant sought to challenge the plaintiff’s claims as to his state of psychiatric health since the assault. No contrary medical opinion was adduced and the only matters tested in cross‑examination of the plaintiff’s witnesses went to the question of whether his psychological/psychiatric injuries were, in whole or in part, caused by other matters, in particular, the circumstances of his imprisonment in, and later departure from, his native Bosnia.
The material relating to the claimed psychological and psychiatric sequelae of the assault is to be found in the plaintiff’s evidence at trial, the report of his general practitioner, Dr Zuvela, and the evidence and report of the psychiatrist, Dr Kutlaca.
I will not dwell on the opinion of Dr Zuvela as to this because it does not provide a history of consultations and appears, rather, to affirm what Dr Kutlaca says, anyway.
Prior to the outbreak of civil war in Yugoslavia, the plaintiff had worked in a large printing enterprise and, on his brother’s account, had held a responsible position there. I have already explained how he then came to spend a year in prison. He was then married with two children, but in the events which followed, became separated from, and lost contact with, his entire family. Ultimately, it appears, they made their way to the USA, via Germany, and he found himself in Australia. He has since attempted to reunite them, but unsuccessfully, albeit that he and his wife remain married.
During his time in custody in Sarajevo, he was beaten regularly and spent time in solitary confinement. He also spoke of witnessing horrible events. On being pressed as to the extent of violence to which he was subjected, he spoke of it as routine assaults, but not ones of great severity. In consequence, he said, he had some scars, but no fractures. Although Dr Kutlaca referred to his suffering fractures as a result of these beatings, the plaintiff said that that was not a correct account of the history given and that, despite Dr Kutlaca’s ability to speak some Serbian, they had had some communication problems. He said that whilst it was reported he had suffered a fractured left wrist, it was not in fact fractured, but displaced. Likewise, he spoke of a jaw injury, which was not a fracture, and it was the same with an injury to his tibia. Nevertheless, he said that, like everyone else in prison, he felt that his life was in danger and, indeed, some prisoners had been executed there. He said he had been affected by the trauma of his incarceration, but considered that he had recovered from it after arriving in Australia. He had suffered nightmares in the beginning, but after he became employed, they appeared to go. He had continued to experience symptoms of his incarceration until about early 1997, but they had not been so serious as to require any medical treatment.
He then spoke of an event which occurred in Australia, when he recognised, in a lift, a person who had been one of his prison guards. That caused him considerable upset.
He was challenged as to the proposition that he had been a frequent user of alcohol in Australia, but he denied it, saying he did not go to hotels very much and he was not a regular drinker. Further to that, he had not consumed any alcohol on 1 October 1998, prior to the assault.
As to his employment status, it appeared that after arriving in Australia, he had undertaken English classes and, eventually, in early to mid‑1998 had obtained employment with Geoff Hardy Viticultural Services Pty Ltd. So much was disclosed by his group certificate (part of P5). Those documents did not specify the actual start date of his employment, but showed that in the 1998 taxation year, he earned a gross income of $1,306 and that that work continued into the 1999 taxation year until just before the assault, during which latter period, of nearly three months, he earned a gross income of $7,780. His employment over that period was continuous, and it might thus be inferred that it began some time in June 1998. On his account (and there was no challenge to this), he had to cease that work in consequence of the assault. He has not since returned to it.

He said that prior to the assault, his general mental condition had been settled and stable, he was enjoying his work and was earning good money. After discharge from hospital, however, he had suffered from pain in his lungs and ribs and depression. Ultimately, he had been granted an invalid pension, on 19 October 2000. He considered that, as of the date of trial, he was still not well. He felt that he was not getting enough air into his lungs when walking, but he no longer felt pain in his ribs.
In the aftermath of his return home after the assault, he was eating poorly, could not sleep and was experiencing nightmares over it. He was then helped by friends. He felt frightened and needed medical help. He could not work. In consequence, he undertook counselling through an organisation for the survivors of torture. His medical advisers then placed him on medication and his sleep had improved considerably since then. He had, in fact, ceased using medication. He did not yet feel fit enough to resume work.
In cross‑examination, there was some attempt made to relate his lung injuries to prior problems of emphysema resulting from smoking and to a diagnosis of a healed tuberculosis lesion, but, in the absence of medical opinion on the matter, those challenges did not proceed very far.
- Dr Kutlaca
I refer, then, to the report and evidence of Dr Kutlaca.
- the reports
He had first seen the plaintiff in February 2001 and took a history which substantially accorded with the above. He concluded that it was likely the plaintiff had:
“... sustained post‑traumatic and depressive psychopathology from the civil war in his homeland. In particular, he lost contact with his wife and children, and was imprisoned for twelve months and beaten. He became an ‘internal refugee’ in Belgrade and arrived in this country four years ago ... He was almost certainly suffering from post‑traumatic and depressive psychopathology”
and that was exacerbated by the incident in the lift to which I have referred. He considered that the assault “had re‑activated or exacerbated his psychopathology” and the plaintiff was also suffering from continuing fear.
He then thought Mr Nikolic had a “chronic post‑traumatic stress disorder and a co‑morbid major depressive disorder. These are operant in a significantly avoidant and isolated individual, thereby heightening his morbidity. There has been a significant elevation in his psychopathology from the subject incident.” He had suggested the plaintiff seek out a general practitioner who could speak his language, also that he have dental intervention and a “psychotherapeutic approach and trials of relevant medications”. He had thought the plaintiff’s condition was then unstable.
He had seen the plaintiff subsequently on several occasions, in March, April, May and July, and reported further in August 2001. On the last occasion, he observed that the plaintiff had attended for the dental treatment, that his appearance and speech had improved and that there had been “progressive psychological improvement”. He then remained apprehensive and had changed his address, but Dr Kutlaca considered there was no longer present a diagnosable depressive disorder. He thought, by then, the assault had first led to an “enduring post‑traumatic stress disorder”, but that the plaintiff had responded well to psychiatric and other intervention and that he had largely recovered. He considered, however, that he would require several further consultations during the following twelve months. In conclusion, he said: “The combination of his wartime experiences and the subject event suggest the likelihood of a permanent psychiatric disability. I estimate that from the assault to be 1-2 (per cent)”.
- in evidence
In his evidence, Dr Kutlaca spoke generally of his experience in dealing with refugees from the former Yugoslavia, many of them having suffered torture and resulting in post‑traumatic stress disorders.
Accepting, as he did, the history of the plaintiff’s incarceration in Bosnia and then his immigration to Australia, the separation from his wife and problems of adaptation in a new country, he considered it was almost inevitable that, at the time of his arrival in Australia, the plaintiff would have been suffering from a substantial post‑traumatic stress disorder, with related depressive psychopathology. For him, the question was the extent to which that condition might then have been alleviated by his more favourable life experiences in Australia, such as stable accommodation, employment, social reattachment, social reintegration and matters of that kind - before the intervention of the assault.
He thought that, on the basis of the plaintiff’s history and progress made in Australia, it was likely he had become reasonably adjusted prior to the time of the assault.
He considered that the assumed circumstances of the assault were of a nature likely, even in their own right, to cause a post‑traumatic stress disorder. In the case of the plaintiff, however, it is likely that it reactivated or “aggravated the psychiatric morbidity he was still then suffering from, on the basis in fact it probably never goes away completely ...” (p. 48).
He felt unable to say whether, but for the assault, the plaintiff might otherwise have continued working in his employment, but by the time of the first consultation, he was certainly “very psychiatrically unwell” (p.49).
He was aware that the plaintiff was by then on an invalid pension, an assessment which he thought appropriate, but he agreed with the plaintiff’s own self‑description that he had generally become better in recent times and, by the time of trial, he thought that the classification of invalidity was not justifiable on purely psychiatric grounds.
He commented on the substantial improvement in the plaintiff’s wellbeing that had flowed from the dental intervention undertaken between those reporting dates.
Generally speaking, he thought the consequences of the assault on the plaintiff had been “far more dramatic” (p.52), because of the plaintiff’s previous mental condition and his experiences in his home country.
In cross‑examination, he agreed that the given history of the plaintiff’s treatment in Bosnia would likely have meant that the plaintiff was suffering from a post‑traumatic stress disorder by the time of his arrival in Australia and that that condition would have been aggravated by his later chance encounter, in a lift, with one of his gaolers.
A post‑traumatic stress disorder might abate over time, but the consensus of medical opinion is that most sufferers do not make a complete recovery and there is “always the possibility of relapse particularly under provocative factors unique to the individual” (p.58). He did not consider that any of the plaintiff’s injuries or past experiences were likely to have affected his memory of the events of the assault.
He did not consider that, as of October 1998, the plaintiff was a person likely to be suffering those particular symptoms of the disorder which led to irritability and outbursts of anger and, indeed, thought he was a person who was more likely to withdraw from confrontation. Interestingly, that opinion coincided with the plaintiff’s own description of his response to the threatened assault.
Otherwise, by the time of the second appointment, he noted the plaintiff was planning to resume employment and to get on with his life. By that time, he considered that it was likely the plaintiff would have been fit for “most forms of employment within his qualifications and experience” (p.60).
When he had first seen the plaintiff, he was not on medication, and he had prescribed a sedating antidepressant. Between then and August 2001, the plaintiff had ceased to rely upon or use it.
In assessing the level of the plaintiff’s psychiatric disability attributable to the assault, as at August 2001, at one to two per cent, he stressed that the overall impairment level was between five and 7.5 per cent, but that one quarter to one‑fifth of it was attributable to the assault itself. In February 2001, however, it had been worse than that. He had been “quite severely disabled, secondary to accommodation of post‑traumatic and depressive disorders. The issue of the one to two (per cent) is to be considered as permanent as opposed to a major depressive disorder which ought to be treatable and in this instance was” (p.63). In other words, the plaintiff had made substantial progress between February and August 2001, albeit that there remained a small but lasting level of psychiatric disability. He was, in fact, quite surprised at the amount of that progress, but he had continued to see the plaintiff afterwards, partly because he was wary of a relapse and partly in preparation for giving evidence. By the time of his last consultation, which was about one month before the trial, he thought the level of the plaintiff’s permanent disability had fractionally improved.
The assault was a much more significant incident than the elevator one, and he thought its effects likely continued until at least February 2001, after which time the plaintiff made a substantial improvement.
DISCUSSION OF MEDICAL EVIDENCE
The extent and duration of the plaintiff’s physical injuries was reasonably limited. He was in hospital for three days and afterwards suffered from chest discomfort and shortness of breath. As of May 2000, he still experienced some discomfort in his chest wall and even today, he said, he suffers shortness of breath on exertion. He did not contend, however, that these physical injuries had incapacitated him for any substantial period of time after the assault and, indeed, I am satisfied that, physically at least, he has been capable of carrying out his pre‑accident employment for most of the time since then.
The evidence as to his psychological and psychiatric injuries is more complex. It emerged that by the time of his consultation with Dr Kutlaca in August 2001, and certainly by the time of trial, he had largely recovered from his symptoms of post‑traumatic stress disorder and depressive psychopathology. He then had a minimal psychiatric disability of between five and 7.5 per cent, of which a small proportion (one to two per cent) was attributable to the assault itself. By August 2001 and at trial, Dr Kutlaca considered that there were no psychiatric bases for his not resuming work and I am further persuaded there were then no inhibiting physical reasons for it. In those circumstances, I am satisfied and find that, since August 2001, the plaintiff has been fit to resume his pre‑incident employment.
Otherwise, Dr Kutlaca considered that as of February 2001, he was psychiatrically quite unfit for work and I am further satisfied, on his and the other evidence, that that condition had prevailed since the time of the assault.
The issue upon which Dr Kutlaca was not prepared to express an opinion, was the extent to which the plaintiff’s work disability between October 1998 and February 2001 was contributed to by the condition of post‑traumatic stress disorder and depression from which he had suffered after his unfortunate experiences in his homeland.
The plaintiff argued that, notwithstanding the likelihood that he had been suffering from a post‑traumatic stress disorder, with depression, after arriving in Australia, I should find that the symptoms of that condition had largely abated by the time of the assault. He pointed to the facts that he had some family and friends in Australia, that he had stable living arrangements here and that he had been in regular employment for some months before then. It was solely in consequence of the assault, he said, that he had had to cease work and he had been unable to resume it because of the psychiatric conditions for which the assault was responsible. Effectively, his contention was that, as of October 1998, even had he been vulnerable to those psychiatric consequences in consequence of his earlier experiences, the ordinary principle applied, namely, that the defendants must take him as they found him.
The first defendant contended, however, and plaintiff’s counsel recognised, that there was a further question to be considered, namely, whether those psychiatric conditions which pre‑dated the assault remained present or were destined to return, anyway, and did return after October 1998 so as to inhibit or remove his working capacity: i.e. was his incapacity for work between October 1998 and August 2001 effectively caused by the assault or his pre‑existing psychopathology or a combination of them?
That was a question upon which Dr Kutlaca was reluctant to express an opinion, but one to which I will return in a moment.
FINDINGS
I have already made findings as to the occurrence and commission of the alleged offence.
I am further satisfied and find that, in consequence of prior events which had happened in his homeland, upon arrival in Australia in January 1997, the plaintiff was suffering from a post‑traumatic stress disorder and depression, and that these were significant psychiatric illnesses. Having considered his evidence and that of Dr Kutlaca as to this, I am, however, persuaded that those symptoms had abated over time and that by early to mid‑1998, they were either absent or of insufficient severity as to incapacitate him for work. He was by then leading a relatively normal life. He had secured his own accommodation, he had a brother and other friends and acquaintances in Adelaide, with whom he socialised, and for some four months prior to the assault, he had been working as a labourer in a vineyard.
I am further satisfied and find that, in consequence of the assault and the physical injuries suffered by him, the plaintiff was prevented from resuming his employment immediately after 1 October 1998 and, further, that symptoms of post‑traumatic stress disorder and depression then developed and reached such proportions as to prevent him from resuming employment until about August 2001.
I find that the circumstances of the assault alone were sufficient, of themselves, to have produced a level of post‑traumatic stress disorder with depression sufficient to disable him for work until that time. Here, however, I am satisfied they affected an individual with a heightened vulnerability to those conditions.
I am satisfied and find that the second defendant’s assault of the plaintiff did, indeed, enliven that vulnerability so as to cause the re‑emergence of those psychiatric conditions, which then continued to incapacitate him for work until August 2001. I am satisfied that had the plaintiff not been assaulted, he would likely have continued to be fit to access unskilled labouring work between October 1998 and August 2001, subject, of course, to other contingencies, one of which must be, on the evidence, the risk that his pre‑existing psycho‑pathology might have reasserted itself at a work disability level.
The assault was thus, I find, the effective cause of his work incapacity over that period.
ASSESSMENT
Non-Financial Loss
Under section 7(8)(a)(ii), I must fix a numerical value for non‑financial loss and then apply the fixed $1,000 multiplier.
On the basis of my above findings as to his physical and non‑physical injuries and my conclusion that he had, by August 2001, largely recovered from both, I fix a numerical value of 10, hence a compensation award of $10,000.
Financial Loss
- Past
The assessment of the plaintiff’s financial loss claim is made difficult by the plaintiff’s brief employment record and the nature of that employment. The evidence disclosed (P5) that in the twelve weeks prior to the assault (i.e. from 1 July 1998), he earned a gross income of $7,780, that is to say, $648 per week. Reference to his income with the same employer for the period immediately preceding then, would suggest that he had worked for some two weeks in June.
Annualised, his gross income would have been $33,696, but the difficulty in approaching the matter that way is that, on his own admission, his employment was seasonal. At the relevant time, he had been engaged in pruning work, and that was destined to end. He had expected, however, that other work would then be available in the vineyard, including planting and harvesting. He did not purport to say, however, that his employment would likely be full‑time. No evidence was led as to the nature or likely duration of any other work likely to be obtained by him or a comparator with that or any other employer in the period up to August 2001.
Faced with that, all I can do is assume that, but for the assault, he would likely have either:
(1)continued to have an ongoing and satisfactory relationship with his employer and thus have accessed such other seasonal labouring work as was available to him in that employment; or
(2)otherwise, that he might have obtained other unskilled labouring work over that period,
and I should then consider contingencies adverse to those prospects.
Doing the best I can, taking account of his limited work history in this country and his language difficulties, I will assume that, for that period, he would likely have accessed work for upwards of eight months in each year and thus potentially earned a gross income of $22,464 per annum. After paying tax at the ordinary rate, that would result in a nett income of approximately $18,800 per annum. A loss of that magnitude over the period between 1 October 1998 and 1 August 2001 calculates at a total loss of $53,258.
That figure should then be reduced on account of the contingencies:
(1)that the employment was of a casual nature and, due to his work history and language problems, the plaintiff might have had some difficulty in securing it as and when needed;
(2)that his pre‑assault psychiatric difficulties might have reasserted themselves in the meantime, anyway, and impacted upon that earning capacity; and
(3)other vicissitudes, which, here, I will treat as being evenly balanced.
Having regard to those matters, I consider a reduction of that aggregated financial loss figure by 25 per cent to be appropriate in the circumstances. That results in a reduced nett loss of income, for the period, of $40,000.
- Future
As to future financial loss, there was no good evidence that any would be suffered. It appeared that the plaintiff had been capable of working since at least August 2001 and, indeed, had spoken about taking up work, albeit that it seems that he had not. Given the very limited extent of his permanent disability said by Dr Kutlaca to be attributable to the assault, I am not prepared to allow any figure for future financial loss.
The calculation of compensation for financial loss does not end there, however, because the calculation in section 7(8)(a)(i) must then be undertaken. It yields a compensation figure for financial loss, under the Act, of $30,500.
- Hospital/Medical expenses
It was not disputed that in consequence of the assault, the plaintiff incurred ambulance expenses proved in Exhibit P6 in an amount of $470.40.
Summary
The total of the plaintiff’s compensation is thus:
Non-financial loss  $10,000.00
  Financial loss  $30,500.00
  Ambulance expenses  $470.40
  _________
$40,970.40
For the purposes of section 7(11) of the Act, I note that paragraph (a) does not apply, but for the purposes of paragraph (b), I find that the plaintiff has not received any other payments in respect of his injuries, nor would he be likely to, were he to exhaust other available remedies.
There will be judgment for the plaintiff in the amount of $40,970.40.

[2002] SADC 54

24 May 2002