Page v State of South Australia & Brooks No. Cicd-98-468 Judgment No. D159

PAGE v STATE OF SOUTH AUSTRALIA & BROOKS
[1999] SADC 159

Judge Herriman
Criminal Injuries Compensation

The plaintiff is a 27-year-old man. On 29 July 1995, he was a member of the Fitzroy Football Club and he was playing for it in an Amateur League game against Paralowie Football Club at Paralowie Oval.
The second defendant was a member of the Paralowie football team.
Late in the final quarter, the plaintiff was in the vicinity of the opposition goal square and awaiting a shot for goal from a Paralowie player. The ball was kicked, but fell short of the goal line. The plaintiff joined a pack of players attempting to mark or spoil the ball, but nobody marked it and it crossed the goal line. The pack of players, including the plaintiff, fell to the ground and the plaintiff found himself lying on his back with an opposition player (the second defendant) across his legs. By this time, the ball was out of play. The plaintiff then partially raised himself on his hands and at this moment saw the second defendant first look over his own shoulder and then punch him (the plaintiff) in the left side of his face with a clenched fist.
The plaintiff was surprised and shocked at this and fell back to the ground. He was soon taken off the oval and received some first aid treatment, but upon being told his nose was not broken, returned to the ground for the last few minutes of the game. On his account, he did this in spite of the pain he was experiencing in order to make the point he would not be put off by conduct of the kind that had occurred. In reality, he had suffered a serious injury, which I will shortly describe, but that did not become known until some days later. When he did learn of it, however, he reported the incident to the police. The second defendant was subsequently charged with assault occasioning actual bodily harm and, after a trial, was convicted in the Elizabeth Magistrates Court on 11 June 1996.
These proceedings were instituted by the plaintiff on 20 July 1998 and although he entered an appearance in the action, the second defendant did not appear at the trial. The first defendant was, however, represented and its counsel informed me that neither liability nor the fact of the plaintiff’s suffering an injury was contested and that the only issue was one of the proper assessment of the plaintiff’s damages under the Criminal Injuries Compensation Act 1978.
To the extent that there was no appearance by the second defendant nor any similar concession made by him, I find that I am satisfied, on the evidence of the plaintiff, supported by that of his mother, that the incident and his resulting injuries occurred as he described them and I am further satisfied that no conduct on his part contributed directly or indirectly to the commission of the offence, nor to his injuries.
The immediate consequences of the blow to the plaintiff’s face were that he felt pain in his nose and left eye and his nose began bleeding. It was staunched before he briefly returned to the field. After the game, ice was applied to his injuries, he noticed that his face and lips were numb and swollen and he felt areas of “pins and needles”.
He went home afterwards, believing that he would recover from his injuries and hoping that he would be able to participate in the remaining few games of the season, but he experienced much pain and discomfort over that weekend. He suffered headaches, nose dripping and a loss of sensation in his lips. He was on Panadol and by the Sunday evening following the game, he had decided to seek medical treatment.
On the following Monday morning, he was taken to the Queen Elizabeth Hospital. The doctor who saw him there excluded damage to his left eye and nose, but x-rays revealed he had suffered a fractured zygoma, or cheek bone. Surgery was advised to correct it and some two days later he underwent an operation, remaining in hospital for three days as a result of it.
The fracture was secured by the use of a metal plate insertion and upon awakening from the operation, the plaintiff felt much pain and discomfort. He described that day as the worst of his life and spoke, particularly, of the pain in his throat and of his concern upon being told that some problems had been experienced with his heart whilst he was under anaesthetic. That was a matter of significance to him because in his early years he had suffered from a hole in the heart.
He was on an intravenous drip and antibiotics in the immediate post‑operative period and described his condition as groggy, drowsy and with severe bruising. A photograph of his face taken at that time (Exhibit P6) was tendered and it showed bruising and discolouration around his left eye. He was on morphine for pain relief, but he said that it did not seem to relieve the discomfort in his throat.
At the time of the incident he had been living with his girlfriend, but because she then had work duties, he went home from hospital to stay with his mother for a week in order to recuperate.
In the immediate post-operative period he had trouble with pain, headaches, sleeping and eating. He missed two complete weeks of work, but was able to resume in the third week. Fortunately, he had a sympathetic “partner” in the person of his father. They were then working as joint subcontractors to a roofing company and he was able to arrange for his brother to take his place during that two‑week period. Even upon his return to work, his father took on the heavier, more difficult work and allowed him lighter duties until he was able to resume his previous level of activity. He continued to experience headaches and sleeping problems for three weeks after the operation and the swelling and the bruising in the region of his left eye were slow to subside.
After three months he remained concerned about the obvious discolouration under his left eye and the “pins and needles” sensation in his nose and lips. Accordingly, he returned to the Queen Elizabeth Hospital, where he was advised that those conditions were likely to be permanent, that he would have to live with them. That has, indeed, proved to be the case and he still suffers from them.
The darkness under his left eye is, he says, always present to a slight degree, but on occasions becomes more obvious. The specialist medical advice he has received is to apply ice to it on such occasions and otherwise to use a foundation cream should he wish to cover it. He does not follow the latter course, but does use ice and says that that attention is needed twice or three times every week. He applies the ice for about 20 minutes. He is sensitive to that area of darkness beneath that eye and people frequently comment upon it. This, in turn, affects his confidence, particularly in his business activities.
Otherwise, he is conscious of the metal plate in his cheek. It causes no pain, but it is an annoyance and he described its presence as something like having a stone in one’s shoe.
A further residual problem from which he now suffers is conjunctivitis. He had never been troubled by it before the incident, but it first emerged some three months after the operation. It recurred for nine months after that, he was then trouble-free for one year, but in recent times it has come back on two occasions, the last one of them being three weeks before trial. The medical evidence is that it is a consequence of the incident and that he will have to cope with it as a permanent feature.
He is thus left with four residual problems arising from the assault, namely, “pins and needles” on the left side of his face, darkening under his left eye, spasmodic conjunctivitis and the annoyance of having a metal plate in his cheek.
The plaintiff was 23 years old at the time of the incident. He had left school at the age of 15 and had then undertaken a TAFE course in training horses. He had worked for some five years in that industry, gradually advancing his position, but when he was about 20 years old he commenced working for his father in roof construction. They were employed by Hickinbotham Homes for a while, but after some 18 months they began joint subcontracting work for a business known as “Roof Shield”. The contractual arrangements were that Roof Shield would have the work available and would ensure the delivery of most materials to the site. He and his father would simply arrive there and attend to the required tasks.
About one year after they commenced that work, the owner of the business wanted to return to Queensland and the plaintiff, his father and a brother acquired it. He is now effectively its business manager and has continued in that work since.
Since leaving school he has only been out of work for one extended period, and that was for about three or four months.
As I have mentioned, when he was younger he suffered from the effects of a hole in the heart and it was not until he was close to leaving school that medical advice was to the effect that it had spontaneously cured. Subsequently, when he was about 20 years old, he took up football for the first time and he has had a reasonably successful career at it. He described his ability as average and he played in various of his club’s teams for some three years prior to the incident. His mother mentioned that he had won a League medal.
He described how his social life had at first revolved around the horse‑racing industry, but after he left it, football had become his relaxation and his social life. It has remained so since. He said he was not an aggressive player himself, but he expected to be knocked around playing the game. Nevertheless, he did not expect to be deliberately hit.
He resumed playing football in the year following this incident, but said he was hesitant about it and did not enjoy that year very much. He finished playing before that season ended. Nevertheless, he resumed in the following year and has continued to play since.
The subcontracting business that he and his father were undertaking at the time of the incident was not a sophisticated one. On his evidence, for the year in question, 1995-1996, their combined income was $42,000 and expenses were $2,500. No documentation was produced in support of those figures, but neither were they substantially challenged and I accept them. In effect, expenses represent 6 per cent of gross.
In support of his claim for lost income, there was tendered (Exhibit P5) the contractor’s invoices submitted by his brother Stephen, standing in for him during the two weeks he was recovering from the operation. Those invoices disclosed that after payment of tax Stephen had earned $1,216 in those weeks. The plaintiff’s evidence was that, but for this incident, he would have expected to earn those moneys himself, although he would have anticipated meeting business expenses of the usual order (ie 6 per cent). His nett loss was therefore in the vicinity of $1,150.
The plaintiff’s evidence generally was neither substantially challenged nor damaged in cross‑examination. He readily acknowledged that although in the immediate aftermath of his injuries his social life had been affected, it had ultimately resumed.
His evidence was supported by that of his mother. She had had a clear view of and had herself witnessed the subject assault. She spoke of its consequences and of her involvement in assisting the plaintiff with medical treatment, his admission to hospital and afterwards. She spoke of how his left eye becomes dark and swollen on odd days and she believes it always looks slightly smaller than the right eye. She also mentioned her observations of his conjunctivitis attacks.
There were tendered by consent three medical reports, of Drs Rieger (Exhibit P1), Brentnall (Exhibit P3) and Chehade (Exhibit P4). As well, the notes of the Queen Elizabeth Hospital (Exhibit P2) were tendered.
I have had regard to the contents of those documents. They generally support the plaintiff’s complaints and the likelihood that he will be left with the residual features of which he complains. Mention is made in Dr Chehade’s report of a desire to keep the condition of his left eye under review for possible glaucoma, notwithstanding that it is seen as a minor risk.
The plaintiff seeks damages for non-economic loss, economic loss and future medical expenses. I will deal with each in turn.

Non-economic Loss

Non-economic loss is to be assessed pursuant to section 7(8) of the Act and in a range of zero to 50, with a multiplier of $1,000. I keep in mind the remarks of the Full Court in State of South Australia v Bole (1995) 64 SASR 379 in approaching the assessment under that subsection.
Although previous assessments of similar cases do not directly assist in the task that I have to undertake, it is nevertheless useful to consider them and I have had regard to two cases in particular, namely, Hollinshead v State of South Australia 184 LSJS 60 and Mulchrone v State of South Australia & Bell, unreported, District Court of South Australia, Judgment No. D3445, 18.6.96.
I was also provided with a helpful range of cases by defence counsel and have had regard to the appropriate ones.
It must be said that there are some similarities between the plaintiff’s injuries in this case and those suffered by the plaintiff in the Hollinshead case. Having said that, the plaintiff is in this instance left with the several residual problems which I have already described. It is clear that he is conscious of, and sensitive to, the cosmetic impact of the eye “shadow” which is now a permanent feature. He is also annoyed or discomforted by the presence of the plate in his cheek and the “pins and needles” experienced in the region of his nose and lips. The conjunctivitis is an occasional problem, but no doubt an annoyance when it occurs. When it does, he needs to use drops and I will make a provision for that cost in assessing his future expenses.
Taking into account all those factors and directing myself in terms of the approach laid down in Bole, I assign a numerical value for non-economic loss of 7 and therefore assess damages under that head at $7,000.

Economic Loss

This, again, falls to be assessed under section 7(8) of the Act. I have already indicated the amount inferentially sought by the plaintiff and I see no reason to reduce it on any account. The award under this head will be $1,150.

Future Medical Expenses

There was little to go on in assessing an appropriate figure for this loss. The plaintiff and the medical reports support the need for the review of his eye condition over a period of up to five years and otherwise there was evidence of the need for him to seek treatment and incur expense in connection with his occasional bouts of conjunctivitis for the foreseeable future. I keep in mind that the appropriate loss is to be assessed nett of health insurance.
On that limited information and doing the best I can, I award the sum of $500 under this head.

ORDERS

In consequence of those findings, I order that the first defendant pay to the plaintiff the sum of $8,650 by way of compensation for the injuries arising from the assault upon him on 29 July 1995.
I further record that, as the second defendant did not attend court, his means were not ascertained.

[1999] SADC 159

2 December 1999