Smith v Criminal Injuries Compensation Commissioner Rigby
[2003] TASSC 124
•24 November 2003
[2003] TASSC 124
CITATION:Smith v Criminal Injuries Compensation Commissioner Rigby [2003] TASSC 124
PARTIES: SMITH, Terry Francis
v
CRIMINAL INJURIES COMPENSATION
COMMISSIONER RIGBY
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M25/2003
DELIVERED ON: 24 November 2003
DELIVERED AT: Hobart
HEARING DATE: 29 September 2003
JUDGMENT OF: Cox CJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicant: T A Bain
Respondent: T J Ellis SC
Solicitors:
Applicant: Douglas & Collins
Respondent: Director of Public Prosecutions
Judgment Number: [2003] TASSC 124
Number of paragraphs: 12
Serial No 124/2003
File No M25/2003
TERRY FRANCIS SMITH v CRIMINAL INJURIES COMPENSATION
COMMISSIONER RIGBY
REASONS FOR JUDGMENT COX CJ
24 November 2003
Review under the Judicial Review Act 2000 ("the Act") of an award by the Criminal Injuries Compensation Commissioner.
The applicant sought an interim award under the Criminal Injuries Compensation Act 1976 in respect of injuries received in a criminal assault upon him on 16 June 2000 outside his flat at Yorktown Square, Launceston. That evening he was returning to his unit and encountered two young men who assaulted him without provocation on his part. During the assault he was knocked to the ground, had two front teeth kicked out and two other teeth severely chipped. He also sustained a fractured nose and other bones in his face were fractured. He was also kicked in the back. In an affidavit sworn on 4 December 2002, he said he now had a crooked nose, scarring to his face and had difficulty breathing through his nose. His voice has changed and he talks as though he has a cold. He said he sought the advice of an ear, nose and throat surgeon, Mr Earles, who recommended that he have a total rhionimoplasty and nasal septoplasty for which he quoted a price in September 2000 in excess of $1,300. He said in his affidavit that he was at that stage reluctant to undergo surgery to his nose as he had been advised by Mr Earles that after surgery he would have a re-broken nose and severe bruising to his face. He did not wish to go through that experience again. His dental surgeon, Dr Ottoway, prepared a report in which he confirmed that he had sustained fractures at gum level of the upper right central incisor and the upper right lateral incisor and that the upper left central incisor and upper left lateral incisor were bruised and had a fractured edge, obviously the result of a very severe blow to the face. Initial treatment on 17 June 2000 consisted of splinting the teeth together with composite resin and smoothing down any sharp edges. Repairs were effected on 10 July to the upper left central incisor and the upper right lateral incisor and further treatment given on 10 August 2000. To rebuild the upper right incisor to full function, porcelain crowns were made on prepared posts and composites and these crowns were inserted on 20 September 2000. Dr Ottoway said that the long term prognosis for these teeth was good, but there was a chance (less than 5 per cent) that the other teeth involved in the traumatic injury, that is the upper left central incisor and the upper left lateral incisor, might require root canal therapy if the nerves were to die. He also recommended further treatment and it was because of this recommendation of further treatment by Dr Ottoway and Mr Earles that the applicant sought an interim award so that he might claim the cost of the further treatment if it became necessary.
On 28 June 2000 and 4 July 2000, he attended Ms Jane Wirsu, a counsellor. These were the only two occasions on which she saw him, and in a report dated 4 July 2002, she diagnosed him as suffering from Post Traumatic Stress Disorder. She pointed out that one essential criterion to this diagnosis was that the person had been exposed to a traumatic event in which both of the following were present:
(1)the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and
(2) the person's response involved intense fear, helplessness or horror.
She claimed that the applicant was exhibiting the usual symptoms of a trauma reaction, including tension and agitation, sleep disturbance including dreams and nightmares, intrusive memories and feelings, intense psychological distress at exposure to events that symbolise the events, social withdrawal, mood swings, impaired self-esteem, loss of interest in significant activities and difficulty concentrating. She concluded:
"His reaction to the assault and its aftermath is a usual response to a traumatic event. Without question, the incident profoundly impaired Mr Smith's functioning in social, occupational and personal areas of his life. The effect of the assault was totally debilitating for a period of time and to my knowledge is still impacting on his well-being. Given that Mr Smith was self-employed, this lead [sic] to the loss of income and thus created significant financial hardship.
As has been stated, the impact on Mr Smith's self-esteem and general emotional and physical health was extremely significant and, in my opinion Mr Smith will continue to struggle with an impaired level of functioning and well-being until the impact of the trauma is fully addressed. In essence Mr Smith's concept of self and view of the world has been irreversibly affected."
In his affidavit of December 2002, the applicant referred to Ms Wirsu's report and swore:
"All of those emotional difficulties of which I was suffering immediately after the assault are still affecting me today to some degree or another. I feel as though I am making slow progress.
The memory of the assault is still fresh in my mind as is the memory of the physical pain which I felt during the assault. These feelings are made worse by the fact that one of the assailants threatened me at the Magistrate's Court when I saw him there after his conviction.
As a consequence of the assault and the damage to my face and back I now experience altered sensations in my face and my lower back. The altered sensation is not unlike a feeling of numbness. It was to my face and lower back that I was kicked. For the first few months after the assault I experienced a nagging pain in my lower back. This pain has gradually subsided to an altered sensation.
The scarring to my face and crooked nose is a daily reminder of the assault."
He was off work as a swimming instructor for a month with a salary loss of $850 and for two months as the junior development officer for the Northern Hockey Association with a resultant loss of $1,200. He also said:
"The assault has had a profound effect on my life. I have a lasting memory of how terrified I was of when I was being kicked on the ground. I had a fear that I might die.
I have a recurring nightmare of being kicked to the face. I lose my teeth in the nightmare. This nightmare wakes me on about two nights of each week and, after having been woken, I find it difficult to return to sleep."
After the assault, he sold the unit and claimed that he was no longer a confident person, felt unsafe when walking at night and avoided crowded places. It appears that he gave evidence before the Commissioner at the hearing, but a transcript was not available to me. The Commissioner, in due course, recorded in her Reasons for Decision that he suffered a recurring nightmare of being kicked in the face and that this occurred three to four times a week and disrupted his sleep to the extent that he obtains between three and five hours a night actual sleep, thereby indicating a greater degree of sleep disturbance than disclosed in his earlier affidavit.
The Commissioner made an interim award of compensation on 2 April 2002 and published her reasons at that time. They were as follows:
"This is an application brought by Terry Smith for an interim award of compensation for the injuries suffered by him when he was the subject of an assault on the 16th June 2000.
The State of Tasmania accepts that Mr Smith suffered his injuries as the result of a criminal act and has chosen through the office of the Victims Assistance Unit not to be represented at the hearing of this matter.
Mr Smith attended the hearing together with his counsel Mr Alistair Bain. I also had available to me his application and reports from Dr Davies, The Victims of Crime Service, Jane Wirsu and Dr Ottoway.
Mr Smith was set upon by two youths who pushed him to the ground and kicked and punched him to the face and body. During this assault his nose was broken and some other bones in his face were fractured. His two front teeth were kicked out and two others were chipped.
He suffered significant bruising and has been left with a scar to the bridge of his nose that is a constant reminder of the assault.
The assault occurred as he was returning to the unit in which he was living at the time and following this experience he was unable to return to that unit to live. He was also unable to attend to his employment as a swimming instructor, nor a Development Officer with the Northern Hockey Association for a period of approximately two months. I accept that he suffered a consequential loss of income of $2050.00.
Mr Smith has also paid $400.45 for medical treatment for which he is to be reimbursed.
Following the assault Mr Smith had no front teeth. I accept that this caused extreme embarrassment and required urgent attention by a dentist. Mr Smith has paid to Dr Ottoway the sum of $2,787.50. I order that this sum be reimbursed.
I am satisfied that Mr Smith was not at the time covered by private health insurance and that none of the amounts paid by him are recoverable in any other manner.
Mr Smith suffers a recurring nightmare that he is being kicked in the face. This occurs 3 to 4 times a week and disrupts his sleep to the extent that he obtains between 3 and 5 hours a night actual sleep. He is no longer able to walk down the street on his own and suffers anxiety if confronted by a group. He continues to feel extremely vulnerable and remains hyper-vigilant.
He attended Jane Wirsu for counselling for the psychological impact of the assault for which he has paid a fee of $180.00. This fee is also to be reimbursed. Ms Wirsu diagnoses Mr Smith as suffering a Post Traumatic Stress Disorder which has profoundly impaired Mr Smith's functioning in social, occupational and personal areas of his life. She states `Mr Smith's concept of self and view of the world has been irreversibly affected.'
I award the sum of $3,500 for pain and suffering.
Mr Smith has expended further amounts in seeing Mr Earles in relation to the prognosis for his nasal injury and numerous taxi fares to attend medical appointments. I accept that these expenses were reasonable and related to his injury and that the further sum of $155.70.
An interim certificate will issue in the sum of $9,073.65 for compensation and the additional sum of $1,130.00 (being $1,100.00 for legal fees and $30.00 for disbursements) to meet the whole of the expense incurred by the applicant in making the application.
I note an account from Douglas & Collins in the sum of $1,371.57 in legal costs. I have awarded the sum of $1,100 inclusive of GST for the work done on this file. I accept that this matter should be classified as a difficult claim. Any claim made by Douglas & Collins for costs exceeding $1,100.00 should be submitted for Taxation pursuant to section 135 of the Legal Profession Act 1993."
The applicant claims that the award of $3,500 for pain and suffering is so unreasonably low that it demonstrates that the making of the decision was an improper exercise of the power conferred by the Criminal Injuries Compensation Act (see the Act, s17(e)). The Act, s20, provides that in the last-mentioned subsection a reference to an improper exercise of a power is taken to include "(g) an exercise of a power that is so unreasonable that no reasonable person could so exercise the power".
The Criminal Injuries Compensation Act, s5(6) provides:
"(6) Where the Commissioner is satisfied that an award should be made to any person but has not sufficient information to enable him to determine finally the amount of the award, he may, if he considers it proper to do so, make an interim award to that person, and the making of an interim award to any person shall not be taken as preventing the making of a further interim award to the same person."
It seems clear from the nature of the application and the reasons advanced by the applicant for an interim rather than a final award that the only matters about which the Commissioner considered she did not have sufficient information to enable her to make a final award were the possible future surgery and dental treatment and the possibility of further counselling. In relation to those matters, the applicant appears to have wanted to preserve his rights to apply for reimbursement of his expenses and possibly an expanded award for pain and suffering incurred in relation to further treatment. It seems clear that the interim awards under the heads itemised by the Commissioner were intended to reimburse the applicant for all actual expenses or losses already incurred at the time of the hearing and for all pain and suffering for his injuries other than pain and suffering associated with further treatment or surgery. In other words, the assessments were not tentative in respect of the heads tabulated but were final. The award, however, was not final because it contemplated the assessment of future compensation in respect of treatment, surgery and possibly future counselling.
If that be the case, and I do not understand either counsel to contend otherwise, the issue can properly be confined to whether or not an award of $3,500 for the applicant's pain and suffering, not merely to the time of hearing but in respect of the future, with the sole exception of the pain and suffering related to future surgery or treatment, was so unreasonable that no reasonable person could award it.
The learned Director of Public Prosecutions, who appeared on behalf of the respondent, conceded that such a figure was at the lower end of the scale of reasonable awards for the applicant's injuries, but submitted that it was nevertheless within range. The Criminal Injuries Compensation Act, s4(4), prohibits compensation being awarded by way of exemplary or vindictive damages or by way of aggravated damages. The amount of compensation for pain and suffering is to be assessed in accordance with the ordinary principles governing the quantum of damages so far as applicable (R v McDonald (1979) 1 NSWLR 451 at 458, Re Poore (1973) 6 SASR 308 at 310 – 311, R v Southee, ex parte C, an unreported decision of my own, 9/1994 at 5).
Comparison with awards in civil cases for a condition such as Post Traumatic Stress Disorder, with or without additional physical injury, is not particularly fruitful. In the decided cases there have usually been detailed findings by the trial judge after hearing expert opinion and tested factual evidence from the plaintiff and others. Proceedings under the Criminal Injuries Compensation Act are summary in form, often (as here) not tested by the Crown as contradictor and not the subject of detailed findings. The material available on review is likewise sparse and does not include a transcript. It seems clear that the Commissioner accepted Ms Wirsu's diagnosis of Post Traumatic Stress Disorder and the applicant's claims as to the symptoms reported to her. From this it appears that he had suffered physical injuries to his face of no small order, notwithstanding that they did not require hospitalisation for more than 2½ hours on the night of the incident, and had suffered some bruising, back numbness and cosmetic injuries. Furthermore, he had been disabled from working for at least a month at his principal occupation as a swimming instructor and for an additional month as an employee of the Hockey Association. For the nearly three years which preceded the award, he had suffered a recognised psychological illness with distressing symptoms including significant sleep deprivation. It appears his personality has undergone alteration from one of self-confidence and happiness to apprehension and social withdrawal. It would seem that the Commissioner has accepted Ms Wirsu's opinion that his psychiatric illness has profoundly impaired his functioning in social, occupational and personal areas of his life. There are some imponderables in respect of the future, as the applicant's affidavit seems to acknowledge that he is improving, if slowly. Also his symptoms still affect him, as at December 2002 "to some degree", thereby suggesting perhaps that they do not affect him as badly as they did initially when Ms Wirsu's diagnosis and prognosis were formulated. Nevertheless, even assuming significant recovery nearly three years after the incident, an award of $3,500 for the injuries which the Commissioner found sustained is, in my view, unreasonably low. For a condition of Post Traumatic Stress Disorder which "shattered the life of a middle aged, active and energetic woman (who had suffered no physical injuries) and turned her into a lethargic, anxious, fearful and timid person" an award of $50,000 general damages was made in Glozier v State of Tasmania [2000] TASSC 186. In Carter v MAIB, unreported 129/1998, the plaintiff "exhibited the classic symptoms of Post Traumatic Stress Disorder" in that she was "depressed, has sleep problems, suicidal thoughts, a constant pre-occupation with the accident and a fair amount of paranoid ideation about those around her". She was awarded $40,000, but admittedly she had also suffered physical injuries. Other examples could be given of awards in excess of $20,000 for significant cases of Post Traumatic Stress Disorder (see Brett's Comparable Verdicts in Personal Injury Claims, 1567 ff). However, detailed comparison is impossible. It suffices to say that even making only a modest allowance for the applicant's physical injuries, the present assessment of compensation for his psychological injuries could be as little as $1,000 - $2,000, a figure which is out of all proportion to the sufferings over a three year period of which the Commissioner had evidence.
I am accordingly of the view that the case for review has been made out. I was asked to quash that part of the award and substitute a figure myself for pain and suffering. I think it is inappropriate to do the latter, as I do not have the advantage of having seen the applicant. I am of the view, however, that on the evidence before me a sum of at least $10,000 is fully justified under this heading and, depending upon the Commissioner's assessment on the evidence which she heard of the applicant's on-going pain and suffering due to his psychological condition, a sum which, together with the other allowances she has already made, would at least equal the maximum amount payable under the Criminal Injuries Compensation Act, namely $20,000, might well be appropriate.
Pursuant to the Act, s27(1), I make an order quashing that part of the Commissioner's decision by which she awarded the applicant $3,500 for pain and suffering with effect from today's date. I also order that the decision be referred to the Commissioner for further consideration in the light of the above reasons. I reserve liberty to apply for any further directions.
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