Nyamirandu v State of SA & Manuell, Grogan and O'Neil No. Dccic-02-706
[2004] SADC 8
•11 February 2004
Heather Nyamirandu v State of South Australia
and George Bayfield Manuell, Adam Davy Grogan & Dominic O'Neil
[2004] SADC 8CIVIL - CRIMINAL INJURIES COMPENSATION
JUDGE DAVID SMITH
This is an application for compensation pursuant to the Criminal Injuries Compensation Act 1978 (“the 1978 Act”). The 1978 Act has been repealed and effectively replaced by the Victims of Crime Act 2001, but because the offence which gave rise to this application was committed before the commencement of the amending 2001 Act, this application is made pursuant to the provisions of the 1978 Act.
In the early hours of the morning of the 24th February 2001, the plaintiff’s son, Anwar Nyamirandu, was seriously assaulted by the second, third and fourth defendants in a laneway near to the Producers Hotel in the east-end of the City. As a result, the three defendants were arrested and charged. Following pleas of guilty, they were sentenced in this Court on the 29th August 2002.
Anwar Nyamirandu has made an application for compensation in respect of his injuries and was allowed the maximum under the Act.
The plaintiff claims that she has suffered psychological injuries as a result of attending upon and caring for her battered and brain injured son. She also claims economic losses, including loss of rent which she incurred when her tenant/boarder left her home in the wake of the incident. The first defendant contends that much of the plaintiff’s difficulties have stemmed not from the offence itself, as is required by the Act, but from the fact that she has had to care for her brain injured son. In respect of the claim for economic loss, and in particular the loss of the tenant, the first defendant contends that this loss has resulted not from the plaintiff’s injuries, but by the disruptive presence of the plaintiff’s son in the house.
Background circumstances
I set out the relevant circumstances. Much of the background is uncontentious. The following narrative constitutes my findings. I will later identify the areas of specific contention and make findings of fact about them.
The plaintiff is 51 years old. She is a nurse by profession but has not worked as such for many years. Rather, she describes herself as a property investor. She has a number of properties which are managed for her and she occupies her day by watching over these investments. She is divorced and at all material times has lived at Broadview. Her son Anwar was born on the 10th July 1982 and so is now 21 years old. The plaintiff separated from her husband when Anwar was a mere four months old and so she has raised him. He was 18 at the time of the offence. Anwar’s father lives interstate.
After schooling at St Peter’s College and Eynesbury College, Anwar won a place at the University and as at the 24th February 2001 was about to embark upon studies for the Degree of Bachelor of Economics at the University of Adelaide. He has always lived at home with the plaintiff. I accept the plaintiff’s evidence that prior to the 24th February 2001 she enjoyed an almost idyllic relationship with her son. He was a warm, responsive young man who plainly had a high regard for his mother and treated her accordingly.
Also living in the house at Broadview was a certain Miss Jennifer Viney. As at the time of the offence, Miss Viney had been a tenant or rather a boarder in the home for some seven years. She occupied two rooms in the house. She paid board of $385 per week. She took her meals with the plaintiff and Anwar.
I now turn to the offending upon which this claim is based.
On Friday evening the 23rd February 2001 Anwar and some of his friends were drinking in the Producers Hotel on Grenfell Street. They left the hotel in the early hours of Saturday morning. They were followed into a nearby laneway by the second, third and fourth defendants, who were apparently intent on inflicting some harm upon them in revenge for some perceived grievance. I have before me the sentencing remarks of Judge Lee of the 29th August 2002. I set out hereunder the detail of the offending. The victim referred to by His Honour is indeed the plaintiff’s son Anwar Nyamirandu
“The victim eventually left the hotel with two friends. They intended to walk to their car to drive home. The three of you then left the hotel and followed them into the lane. You Manuell picked up a house brick and held it by your side. As the two groups came together in the lane, you Manuell used the brick to strike the victim on the side of his head. He fell to the ground. You raised the brick over your head, chased after the victim’s two friends, and told them to leave, which they did.
You then kicked the victim as he lay on the ground. At this point, you O’Neill joined in and delivered a kick and a body slam. I take the expression ‘body slam’ to mean that you jumped in the air and allowed your body to fall across the victim as he lay on the ground. At some point you Manuell struck the victim a second blow with the brick.
In your case Grogan, your counsel contended that you made no violent contact with the victim and that any declaration of a witness to the contrary arises from a mistake. That contention is accepted by the prosecution and so, giving to you the benefit of a doubt, it is a contention that I must also accept.”
At about 1am on the Saturday morning the 24th February the plaintiff received a phone call from one of her son’s friends telling her that Anwar had been in some trouble and had been taken to hospital. She rang the Royal Adelaide Hospital and an employee there eventually acknowledged that Anwar had arrived at the hospital. The plaintiff was asked for some basic particulars about her son over the telephone and when she queried why these particulars were not being taken from him, the hospital employee blithely told her that he was in no state to answer. Naturally enough the plaintiff’s apprehension about what had happened to her son began to rise. This sense of alarm was further heightened when the police arrived at her home. It was the police who took her to the Royal Adelaide Hospital. She was unable to see her son until 5.50 am that morning because he was undergoing treatment. When she saw him she was horrified. He had been severely battered. She was scarcely able to recognise him. He was unconscious and on a ventilator. In her evidence she said:
“I felt – when I saw Anwar I actually felt nauseous, I actually felt sick and he looked so bad that I actually – when I went home that day and I came back to the hospital I actually put a picture of him on the head of his bed so that people would know what he looked like before so that at least then when people were tending him they knew that he was a regular guy, not just a body lying in the bed like that.”
The plaintiff’s friend, Dr Albert Bailey, accompanied the plaintiff to the hospital. He observed not only Anwar’s parlous condition but also saw the plaintiff’s reaction to being confronted with her son. He corroborated what the plaintiff said about the disturbing spectre of the injured Anwar and her distressed reaction to it.
Anwar was initially treated in the Intensive Care Unit and then in a high dependency unit. After about eight days he was discharged into the plaintiff’s care on the basis that the plaintiff was qualified to nurse him, otherwise he would have been sent to the Julia Farr Centre for rehabilitation. Initially the plaintiff nursed Anwar on a 24-hours a day basis. He had suffered with seizures as a result of the injuries. In particular, he suffered a serious and permanent brain injury and consequential upon it were a range of cognitive deficits and behavioural problems. He is now a troubled, violent and difficult young man. He is abusive to the plaintiff and is difficult to manage. He has wantonly damaged the house when his wishes were not met. He has difficulty controlling his anger and vents it upon the plaintiff. He has had serious difficulties coping with his University studies.
On about the 14th or 15th March 2001, the boarder, Miss Viney, gave two weeks notice that she was leaving. According to the plaintiff, Miss Viney left because the plaintiff was not able to provide the services hitherto provided such as cooking the meals.
The plaintiff has not relet the two rear rooms but in July 2003 her niece, a student, arrived and now lives with she and Anwar. The niece does not pay board and indeed the plaintiff supports her to some extent with pocket money.
The plaintiff has no other family support upon which she can rely. Accordingly, with some limited help from her niece she cares for the troubled Anwar and withstands his depression, anger and sporadic vandalism. Her previous well-ordered life is now a ruin.
The Plaintiff’s injuries
The plaintiff gave evidence of suffering from a range of psychological difficulties. Her sleep is disturbed. She endures mood swings and problems with concentration. She is forgetful, anxious and depressed and socially withdrawn. She suffers with intrusive memories and with an exaggerated startle response. She describes herself as jumpy.
Doctor Bailey, described what he observed of the plaintiff. He said that she is tense and anxious and frequently teary. He noted that she suffered with transient memory loss and gave an example of being out shopping with her when she completely forgot the purpose of the expedition. He said she has a depressed mood and complained to him of night pains and disturbing dreams. He said also that she had expressed to him suicidal thoughts. These symptoms observed by Dr Bailey and indeed by the plaintiff’s neighbour, Mrs Joy Walterfang, were also noted by the two psychologists who gave evidence. The plaintiff saw the psychologist Ms Patricia Barrett on only one occasion, namely the 26th September 2002. However, she has had ongoing consultations with the psychologist Andrew Rothwell. There is an apparent difference between the opinions of the two psychologists. I consider it to be a difference of emphasis only. As at the 26th September 2002, Miss Barrett diagnosed the plaintiff as suffering from a Mild Adjustment Disorder with Anxiety. However, her colleague Andrew Rothwell diagnosed the ostensibly more severe Post-Traumatic Stress Disorder. In his evidence, Mr Rothwell explained that in the course of his consultations he noted a transition from a moderate to mild Post-Traumatic Stress Disorder to a mild General Anxiety Disorder perhaps with some Depression. Miss Barrett saw no inconsistency between her diagnosis and that of her colleague. She suggested that the plaintiff’s condition may have slightly worsened following her consultation. Perhaps the plaintiff’s psychological injuries gradually worsened and then in the course of consultations with Mr Rothwell have settled down. These differences in my view are not material.
As far as the future is concerned Mr Rothwell said that the Anxiety Disorder with Depression will continue into the future and will require ongoing psychotherapy. He explained that every 18 months or so there was a prospect that some event would trigger a relapse and the need for four to six sessions of psychotherapy. He suggested that there might be two such relapses in the future. He also indicated that there would be consultations with him immediately following this trial.
I have before me a schedule of fees charged by Andrew Rothwell for consultations. The total is $1,182.40. The sum of $300 of which has been paid by a health fund.
Some principles
The injury for which compensation is claimed must arise from the offence (see s7(1)). The plaintiff must establish beyond reasonable doubt the commission of an offence to which the application relates; (see s8(1a)(a) of the 1978 Act; see also Bartsch v McIlroy (1980) 24 SASR 506). The offence must be shown to cause the injuries. The causal connection must be established on the balance of probabilities; (see s8(1a)(b) of the 1978 Act). The offence need not be a substantial cause. I would suggest that the offence must be shown to cause or materially contribute to the injuries the subject of the compensation claim; (see Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121 at 130; H.K. & Others v State of South Australia & Anor (1997) 190 LSJS 174).
Section 4 of the 1978 Act defines ‘injury’ as:
“... physical or mental injury, and includes pregnancy, mental shock and nervous shock ...”
So there is no debate that the mental injury claimed in this case is compensable. However, mere sorrow and grief which causes emotional distress and no more, is not compensable, but is compensable if linked with, or in addition to, an actual injury as defined (see T v State of South Australia and Another (1992) 59 SASR 278 per Legoe and Millhouse JJ at 282). Further, it is not a necessary prerequisite to compensation that there be evidence establishing a recognisable psychiatric condition (see T (supra) per Olsson J at 288-289).
“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 a 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 has been some more than transient deleterious effect upon a claimant’s mental health and well-being, so as adversely to effect that person’s normal enjoyment of life beyond a situation of mere transient sorrow and grief, then, in the relevant sense, the person has sustained mental injury.
That is exactly what transpired in the instant case. Prior to the unlawful conduct of B, none of the morbid symptoms which I have described were manifest. The appellant enjoyed what may fairly be described as a normal and fulfilling lifestyle, unfettered by the problems of which she now complains. The direct consequence of the conduct of B has been to destroy that situation and to bring about a constellation of symptoms which have now been of a longstanding nature; and which, at least as to a number of them, are likely to continue for a significant period of time into the future. By any reasonable standard these must be considered to have had a significantly adverse impact upon the mental health of the appellant.
As I understand the reasoning expressed by the learned trial judge, he, in effect, came to precisely such a conclusion. However, he then went on to reason that he was required, in assessing the nature and extent of the injury, to deduct some element which he described as the "normal" grief and distress which would have arisen as an outcome of the conduct of B, before arriving at what constitutes the relevant injury. As to this he said:
“I think most of the feelings this applicant has had would have been suffered by most mothers in the circumstances. It is the intensity and duration of the feelings in this case which mark it out.”
It seems to me that, on such a basis of reasoning, he then went on to discount what would otherwise be a usual assessment of damages, to allow for the element of “normal” grief and distress.
If this is indeed the process upon which he embarked then it is, in my view, patently in discord with both the intendment of the legislation and the well-established basis upon which common law damages are assessed.
Once it be established that a relevant injury as defined has been sustained by a claimant in compensable circumstances, then the court is required, as a first step, to make a monetary assessment of the damages which ought properly to flow, in recognition of the total relevant deleterious change in the condition of a claimant which has been brought by the wrongful conduct of an offender.
What is necessarily in contemplation is the actual condition to which a claimant has been reduced by virtue of the relevant injury, by way of contrast with that which pre-existed the conduct under contemplation. I know of no common law principle which requires some discount to be applied by way of allowance, for that component of the sequelae of wrongful conduct which can be attributed to what might loosely be described as normal mere grief or sorrow. In any event an attempt to do so would, in most instances, be a pointless and impossible exercise.”
(see also Battista v Cooper (1976) 14 SASR 225).
The compensation recoverable for injury under the Act is that which would be recoverable at common law. So subject to the parameters and definitions set out in the legislation it will embrace not only the non-economic losses, such as pain, suffering and mental injury as explained above, but also economic losses such as medical and like expenses and losses of rent as are claimed in this case (see Battista (supra); see also T v SA (supra); see also Re Poore (1973) 6 SASR 308 at 310; McDonald v Brown (1975) 12 SASR 384).
Finally, as to the non-financial losses s7(8)(a)(ii)(A) and (B) of the 1978 Act requires that the Court should assign a numerical value on a scale of 0-50 according to the seriousness of the injuries and multiply it by $1,000. In respect of financial or economic loss the calculation is to be done by reference to the formula and parameters set out in s7(8)(a)(i) of the 1978 Act. In particular where the amount awarded for economic or financial loss exceeds $2,000 the amount awarded will be $2,000 plus three quarters of the excess. In respect of both headings of loss the overall award for both financial and non-financial loss cannot exceed $50,000 (see s7(8)(a)(iii)).
Findings – Assessment
I accept as credible and reliable what has been said by the plaintiff and the witnesses in her case.
I find that as a result of the offending by the second, third and fourth defendants the plaintiff suffered a Post-Traumatic Stress Disorder. I find that this condition has abated somewhat and though it is not necessary to do so, I would now characterise it as an Adjustment Disorder with Anxiety and Depression. The peripheral symptoms of grief and sorrow are part of the larger mental injury and as such are compensable. I accept that there will be ongoing difficulties. Mr Rothwell, whom I accept, said that the plaintiff “... will always have some level of residual anxiety and depressive symptomology but it may be at a level that she will be able to manage ...”.
In assigning a numerical value I acknowledge that the guidelines for this exercise are akin to that which is required for assessing damages under the now repealed s35A of the Wrongs Act, 1936 (see State of South Australia v Bole (1994-95) 64 SASR 379 per Lander J at 381-383). For the non-financial aspect of the plaintiff’s loss I ascribe a numerical value of 8. As a result, the compensation for the plaintiff for her non-financial loss is $8,000.
I turn to the financial losses.
Firstly the plaintiff claims loss of rent. This claim is for a closed period from about the end of March 2001 until July 2003 when the plaintiff’s niece came to stay. That is a period of two years and two months. I find that Miss Viney left because she was not receiving the service she was paying for. By reason of her depressed and anxious state, the plaintiff was unable to, for instance, cook the meals for her tenant. Putting aside for the moment the impact of income taxation, I accept the plaintiff’s contention that the net loss per week has been approximately $120. Accordingly, the loss totals $13,440 (ie 22/12th years x $120 per week). To reach a true net loss that sum should be further discounted to account for the incidence of income taxation. I would deduct approximately one-third for income taxation. So I fix this part of her financial loss at $9,000.
Further the plaintiff has incurred and will in the future incur expenses for treatments of psychotherapy. Mr Rothwell has detailed the need for some immediate and ongoing psychotherapy sessions. As at trial, the plaintiff had incurred fees of $882.40, (ie $1,182.40 less $300 from health fund). Mr Rothwell said that the plaintiff required two sessions in the month or so following trial and that in the future two lots of four to six sessions. It appears from the invoice which is already before me that a session costs a little over $130. Accordingly, I allow $1,000 for past psychological expenses and $1,500 for the future, making a total of $2,500. So the financial or economic losses are as follows:
Loss of rent $9,000.00
Past medical or psychological expenses $1,000.00
Future medical or psychological expenses $1,500.00Total $11,500.00
Bearing in mind provisions of s7(8)(a)(i) the amount awarded under this heading will be $2,000 plus three quarters of the excess, namely $2,000 plus $7,125 a total of $9,125.
Accordingly, there will be an award of compensation for the plaintiff against the defendants as follows:
Non-economic loss $8,000.00
Economic loss $9,125.00Total $17,125.00
There is no interest entitlement for this order of compensation (see s7(9c).
In accordance with the requirements of s7(11) of the 1978 Act I am satisfied that the plaintiff has neither received nor is likely to receive any payments in respect of these injuries. I accept in this respect that given this entitlement the plaintiff would not be able to recoup any payments from her medical benefits fund – at least none that would not be refundable. As to the means of the second, third and fourth defendants I have no evidence before me as to their ability to pay. I would assume or infer that there is little likelihood of payment. One defendant was given an immediate custodial penalty and all three are students.
I will hear the parties as to the question of costs and any other orders.
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