Phillips v The State of SA and Lock No. Cicd-99-363

PHILLIPS V THE STATE OF SOUTH AUSTRALIA AND LOCK

[2000] SADC 104

1................ JUDGE BURLEY......... The plaintiff has applied for compensation pursuant to the provisions of the Criminal Injuries Compensation Act 1978 (the Act). It is alleged that the second defendant assaulted the plaintiff on 3 July 1998 and that as a result the plaintiff suffered both physical and psychological injury. The first defendant, the State of South Australia, does not dispute that the plaintiff was the victim of the alleged offence and that he is entitled to compensation under the provisions of the Act.

The second defendant referred in his defence to a date which was a year earlier than the date of the alleged offence. It appears from my copy of the statement of claim that 3 July 1997 was originally the date referred to in paragraph 2 of the statement of claim but the “7” has been altered to an “8”. That may explain why the second defendant in his defence referred to the earlier date. In any event, the date of the alleged assault was stated in evidence by the plaintiff to be 3 July 1998. The defendant, in his own evidence, did not dispute that he was present at the plaintiff’s flat on 3 July 1998.
Apart from medical witnesses, the plaintiff and the second defendant were the only other persons who gave evidence at the trial. Both were unsatisfactory witnesses. I have not been prepared to accept the evidence of either unless the evidence has been corroborated by otherwise credible evidence.
I have found the plaintiff’s evidence to be unsatisfactory because, based on my observation of him in the witness box and in the courtroom, he gave the impression of being prepared to tailor his evidence in order to maximise the amount of any award which might be made in his favour. When such a factor as this is taken in isolation, it is very difficult for a court to determine the reliance that may be placed on a witness’s evidence. However, in this case, the impression so gained by me was confirmed during the cross-examination of the plaintiff by counsel for the first defendant. The plaintiff had earlier in his evidence feigned indifference in relation to the break-up of his relationship with a woman friend some months prior to the assault. He said on more than one occasion that not only was he not upset about the separation, he was glad that it had taken place. This is quite at odds with a letter that he wrote to the woman after the break-up of the relationship which was put to him during the course of cross-examination. That letter discloses an attitude of considerable regret at the break-up of the relationship. I find the plaintiff’s response to that inconsistency, namely that he was only “playing games” quite unconvincing. If games were being played it was more likely by the plaintiff during the course of the trial.
It is not without significance that the plaintiff has a science degree with a major in psychology. He was described by Dr Cotton, a psychiatrist who gave evidence at the trial, as intellectually sophisticated and I agree with that description. His demeanour during the trial indicated a profound contempt for the second defendant, a strong resentment that the second defendant was not sent to gaol for the assault and a significant animosity towards Dr Cotton, whose report differed in material ways from the psychiatric evidence adduced by the plaintiff in support of his case. These are all factors which lead me to exercise great caution when considering the reliability of the plaintiff’s evidence.
The second defendant was an unsatisfactory witness because he was unable to give a straight answer to a simple question in relation to important issues which arose during the course of the trial. For example, when cross-examined about his attendance at the plaintiff’s flat on 3 July 1998 and what occurred there, he admitted that he attended at the flat, that the plaintiff was present and that he searched for a diary which belonged to the plaintiff’s former woman friend, but he refused to come to grips with any question relating to the actual assault upon the plaintiff. This refusal on his part was at its most absurd when he agreed that he saw the plaintiff with a blood nose on the occasion of his attendance, but would not give any clear answer as to whether or not he was the cause of the plaintiff’s blood nose.
I find that on 3 July 1998 the second defendant assaulted the plaintiff by striking him on the nose and on the head. The plaintiff says that he was struck seven or eight times by the second defendant. I am not prepared to accept that evidence. What has been corroborated by medical evidence is that the plaintiff sustained at least two blows to his head: one to the nose and one to his forehead which left a haematoma. The multiple blows described by the plaintiff are not corroborated by the medical evidence and for the reasons previously stated, I am not prepared to accept the plaintiff’s evidence in that regard unless it is corroborated in a material way by other credible evidence. I find that the second defendant struck the plaintiff on at least two occasions and that they were forceful blows. The second defendant is a large, strong man. The attack by him on the plaintiff must have been frightening, particularly in circumstances where the second defendant, as I find, forced his way into the plaintiff’s flat by breaking open the front door. I am able to make this specific finding because the second defendant in his evidence allowed for the possibility that he did force open the front door and thereby splinter the door frame.
The plaintiff said that when he was being assaulted by the defendant he feared for his life. I do not accept this assertion by the plaintiff. The nature of the assault was not as severe as the plaintiff would have had me believe. I think such evidence is an example of the plaintiff tailoring his evidence to suit what he perceived to be his best interests.
As to the nature of the physical injuries sustained by the plaintiff as a result of the assault, I accept the evidence in the reports of Dr Chan (P3) and Dr Beaumont (P4). The history taken by Dr Chan was that the plaintiff told him “that he had been punched in the face by another person”. On examination he found a haematoma on the plaintiff’s forehead and that he had a swollen and crooked nose that was very tender to touch. He referred the plaintiff to the Flinders Medical Centre for radiological investigation. The plaintiff saw Mr GD Beaumont, an ENT surgeon. Mr Beaumont noted an obvious deviation of the nose and minor swelling and bruising. X-rays taken suggested multiple previous trauma to the nose and he reached the conclusion that the deformity of the plaintiff’s nose was predominantly due to old injuries with very little new component. Mr Beaumont recommended follow-up investigation and treatment but this was not pursued by the plaintiff. The plaintiff in his evidence complained that he experienced restriction in breathing through the left nostril. In light of Mr Beaumont’s report that any damage caused by the assault was only a minimal addition to pre-existing damage to the plaintiff’s nose, I find that the extra breathing difficulty caused by the assault was minimal.
The plaintiff alleged that he suffered from a post-traumatic stress disorder as a result of the assault. He called psychiatric evidence to support that contention. The plaintiff was first seen by Dr MB Saraf, whose report is Exhibit P5. Dr Saraf also gave evidence. She is not a qualified psychiatrist but has worked as a general practitioner in psychiatric clinics for many years. She has reached the stage of psychiatric registrar. She first saw the plaintiff on 25 August 1998. The history that she took was that the plaintiff had been beaten up on 3 July 1998, that the screen door was broken during the assault and that the plaintiff sustained a broken nose. She formed the view that it was an emotionally traumatic experience for the plaintiff. She stated that he reported that he was left feeling threatened, tearful, helpless and traumatised. The plaintiff stated that he believed that the offender was going to kill him. In her report she said that the symptoms of the plaintiff were suggestive of post-traumatic stress disorder. She said:-
“... These symptoms include:
·.. Becoming withdrawn
·.. Avoiding going out at night
·.. Increasing anxiety
·.. Feeling nervous and fearful on hearing footsteps
·.. Poor sleep, weight loss and depression
·.. Inability to cope
·.. Keeping doors locked”.

She prescribed medication and continued to treat the plaintiff after she first saw him. She said that he responded to the treatment prescribed and there was an improvement in his symptoms. By 12 January 1999 the plaintiff was feeling much better and was not depressed or anxious and he was coping with life much better. He reported that he had stopped taking the medication prescribed by her. He informed her that he did not need any further help.
The plaintiff saw Dr Saraf on 6 August 1999. He had become distressed in relation to a letter he had received from the South Australian Housing Trust (the owner of the flat in which he resided) and he reported a re-occurrence of the symptoms of anxiety and depression. She said that the presentation by the plaintiff on 6 August 1999 was related to the Housing Trust letter and financial issues. By that I take it to mean that it was not related to the assault committed by the second defendant. I think she was correct in that regard.
The plaintiff saw Dr Blakemore, a psychiatrist, for medico-legal purposes on 4 November 1999. His reports of 5 November 1999 and 9 August 2000 are Exhibit P7. Dr Blakemore agreed with the diagnosis of Dr Saraf that the plaintiff had sustained a post-traumatic stress disorder. He was of the view that when he saw the plaintiff for the first time he was no longer suffering from such a disorder but he was suffering from an adjustment disorder which, among other things, deprived the plaintiff of the motivation to get back into the workforce. In particular he noted that the plaintiff had no motivation to resume his former employment as a professional officer assisting disabled and able-bodied people to obtain employment. In his evidence given at trial, Dr Blakemore said that he thought that the plaintiff had been unable to resume his former employment and would be unable to do so until about mid 2001 because of a lack of motivation to resume that former employment. He attributed the lack of motivation to the adjustment disorder which he diagnosed.
This evidence was adduced by the plaintiff to support the plaintiff’s claim for financial loss as contemplated by Section 7(8)(a)(i) of the Act. The type of financial loss which the plaintiff alleged he sustained was loss attributable to a diminution in his working capacity caused by the assault. If Dr Blakemore’s evidence is to be accepted, the loss would be in respect of loss of earning capacity in the past and the loss of earning capacity in the future up to about mid 2001.
The first defendant called Dr Alan Cotton, a psychiatrist. His report is Exhibit D19. Like Dr Blakemore and Dr Saraf, Dr Cotton gave evidence at the trial. Dr Cotton first saw the plaintiff on 10 April this year. Before writing his report he had read a number of documents, including the report of Dr Blakemore of 5 November 1999. Dr Cotton’s opinion differed from those expressed by Dr Blakemore. Dr Cotton was of the view that the plaintiff had not suffered from a post-traumatic stress disorder as a result of the assault. He thought that the plaintiff had sustained an adjustment disorder with anxiety and depression and that that condition persisted for about three to six months after the assault. He thought that during this period the plaintiff was precluded from returning to his pre-accident professional work but not thereafter. He referred to the lack of motivation on the part of the plaintiff to return to his pre-accident professional work and attributed that not to the assault but to the plaintiff’s stated inclination to change his occupation.
It is necessary to resolve the dispute on the medical evidence as to the nature of the psychological illness developed by the defendant as a result of the assault because the condition diagnosed by Drs Saraf and Blakemore is more severe than that diagnosed by Dr Cotton. It is also necessary to resolve the dispute as to the period for which the plaintiff has been disabled in relation to his working capacity because this affects the extent of the compensation to be awarded for financial loss.
As to the former, although I consider it was open to both Dr Saraf and Dr Blakemore to arrive at the diagnosis that they did, it must be remembered that they did so on the histories respectively taken by them. Had the plaintiff been able to prove the accuracy of that history, there may have been some basis for finding that the plaintiff suffered a post-traumatic stress disorder. However, I do not think that the plaintiff has proved that history in a material particular, namely whether or not the assault was the type of catastrophic event as characterised by Dr Cotton. To the extent that there is any difference between Dr Cotton and the other medical practitioners as to the nature of the event that might precipitate post-traumatic stress disorder, I accept his convincing explanation that the event must be genuinely of an horrific nature. In other words, the victim must experience horror in order for the condition to be induced. I do not accept that the assault perpetrated by the second defendant constituted such a situation. It was no doubt a frightening experience but it lacked, contrary to the plaintiff’s assertion, the element that the plaintiff was put in fear for his life. It is for this reason that I have concluded, and I find, that the nature of the psychological illness sustained by the plaintiff was the adjustment disorder described by Dr Cotton. I also find, in accordance with Dr Cotton’s opinion, that the plaintiff was disabled for no more than six months from his resuming his former professional employment and, consequently, it is by reference to that period of time that his claim for financial loss must be measured.
The principles relating to an assessment of compensation under the provisions of the Act are set out in the State of South Australia v Bole (1995) 64 SASR 379. The principles are well known and I need not set them out in any detail in these reasons. As to non-financial loss, as defined in the Act, I must measure the severity of the injury, both physical and psychological, to the plaintiff by reference to a scale of 0 to 50. The figure 50 represents the worst type of both physical and psychological damage that might be sustained by the plaintiff. That number is then multiplied by 1000 to produce the amount of compensation for non-financial loss.
In relation to financial loss, I assess that aspect of the plaintiff’s compensation in the same way that a claim for non-economic loss would be made in a tortious action, but there are several statutory qualifications which have to be engrafted upon that assessment. I must allow the first $2000 of the financial loss and then three-quarters of the balance. If the combination of the non-financial and financial losses as calculated pursuant to the provisions of the Act is less than $50 000, then the amount of the assessment is awarded. If the assessment exceeds $50 000, then a maximum of $50 000 is awarded.
In this matter I also have to take into account the submission of the first defendant that the conduct of the plaintiff contributed to the commission of the offence. The approach to be taken to this aspect of the assessment is succinctly summarised in Lunn, Criminal Law, South Australia, para 12030.9A. I think, with respect, that the guiding principle is accurately stated where the learned author says:
“Damages will be reduced where provocative, annoying or abusive conduct of the victim, which is blameworthy and culpable, but not merely a little imprudent or foolish, contributed to the injury: Brown v Ween (1979) 21 SASR 72; Scarman v McGilveray (1983) 109 LSJS 106; Bradley v Ashman (1983) 107 LSJS 359; Galvin v Brown (1983) 108 LSJS 454; Raven v Helps (1986) 126 LSJS 157.”
On the question of contributory conduct, the first defendant relied upon the evidence of the plaintiff. About a week before the assault, the plaintiff telephoned the second defendant and asked him whether he had had sexual intercourse with his former woman friend. He stated that if the welfare department suggested that he (the plaintiff) was the father of the child, he would refer the department to the second defendant. I have paraphrased in relatively neutral terms the substance of that conversation because the evidence given about it was confusing at least insofar as the second defendant was concerned.
I find that the conversation was of the nature just described. I do not think that that sort of conversation can constitute contributing conduct as referred to in Section 7(9)(a) of the Act because I accept the submission of counsel for the plaintiff that there was at least a week between that conversation and the occurrence of the assault and that there needed to be some degree of contemporaneity between the provocative remark and the offence which occurred. I think that constitutes the correct application of the relevant principle and, accordingly, I do not consider that the compensation awarded to the plaintiff should be reduced as contended for by the first defendant.
Dealing with non-financial loss, the actual physical injuries sustained by the plaintiff were not very severe but the psychological illness developed by the plaintiff had marked consequences initially which gradually diminished over a period of about six months. I think that 4 is the appropriate figure on the scale which leads to an assessment of $4000. I award that sum.
As to financial loss, the plaintiff tendered his copy tax returns for the financial years ended June 1992 to June 1999. I have found that the plaintiff was wholly incapacitated from resuming his former employment until the end of 1998. He was unemployed at the time of the assault but I find, based on his previous work history, that had the assault not occurred, he would have resumed his professional employment by no later than late August 1998. I mention that the plaintiff also earned income both before and after the accident by working in a chicken/pizza shop. The evidence is that there was no interruption to this employment as a result of the assault. I therefore take into account only the income from his professional employment in order to assess the compensation to be awarded for loss of earning capacity during the six months after the assault.
The tax returns prior to the assault indicate the wages and social service benefits received by the plaintiff during the course of the financial year. I think the appropriate approach to take in circumstances of this case is to ascertain, where the information is available, how much by way of wages the plaintiff earned from professional employment and the period during the financial year for which he was so employed, and obtain an average (net after tax) for the financial years prior to the assault so that some estimate may be made of the measure of the loss for the six months after the assault. I will also have to take into account that the plaintiff has in the financial years prior to the assault been in receipt of unemployment benefits and other social service payments from time to time. I think this is best allowed for by taking into account my finding that the plaintiff would probably have resumed work by the end of August 1998 and, consequently, the average earnings derived from his professional employment is to be applied for the period September 1998 to December 1998, a period of four months.

It is impossible to be precise in making a finding as to pre-accident earnings in accordance with the approach outlined above. Having reviewed the taxation returns, I think that the net annual income derived from professional employment was in the vicinity of $20 000. The plaintiff has sustained a loss for a third of a financial year and I think, in round figures, the amount to be awarded by way of compensation should be $7000. This means that I must award the first $2000 of that sum and three-quarters of the balance. Thus I award for financial loss the sum of $5750.
There will be judgment for the plaintiff against the defendants in the sum of $9750.
Pursuant to Section 7(11)(a) of the Act I certify that on the evidence before me I have been unable to ascertain the means of the second defendant.

[2000] SADC 104

1 September 2000