State of South Australia v Gale No. Scgrg-99-459 Judgment No. S480

STATE OF SOUTH AUSTRALIA v GALE
[1999] SASC 480

Full Court: Duggan, Debelle and Bleby JJ

DUGGAN J. In my view this appeal should be allowed. I agree with the orders proposed by Bleby J and the reasons given by him.
DEBELLE J. The facts are recited in the reasons of Bleby J which I have had the advantage of reading. I agree with the analysis which shows that the trial judge had erred in attributing the whole of the respondent’s disability to the shooting incident. The award was therefore manifestly excessive.
However, I do not think that the appropriate level is as low as 10. As Bleby J states in his reasons, the respondent suffered a terrifying and stressful experience. He continues to suffer psychiatric difficulty in consequence. The incident caused injury to his right shoulder. The residual disability to his right shoulder is equally caused by that injury and the injuries sustained in the motor vehicle accident. It will be a disability which will continue to afflict him throughout his life. It reduces his enjoyment of life. In my view, a proper level is 15 to realise an award of $15,000.
I would allow the appeal and set aside the award of $20,000 for non-financial loss and substitute for that figure the sum of $15,000. In making this assessment, I do not overlook the award in South Australia v Bole (1994) 64 SASR 379. This award allows for much higher awards where persons suffer more serious kinds of non-economic loss. In other respects, the judgment of the trial judge should be confirmed.
BLEBY J. The respondent brought proceedings in the District Court claiming compensation pursuant to the provisions of the Criminal Injuries Compensation Act 1978. The claim arose out of injuries which the respondent sustained in the course of an armed robbery which occurred on 14 November 1996. The respondent was employed as a security guard by Mayne Nickless Ltd Armaguard Division. He and two other employees were engaged in collecting cash from the Commonwealth Bank at Marion when the robbery occurred. The respondent was shot from behind through the right shoulder, the bullet entering from the rear, and exiting above the collarbone. He sustained a fracture of the clavicle.
It is not necessary to recount the details of the robbery and shooting. No‑one has doubted that for Mr Gale it was a terrifying and stressful experience.
The respondent was off work for about nine weeks prior to returning to work in a graduated fashion. As the trial Judge found, he was able to return to most of his normal duties and to his allocated activities. There was no ongoing pain, and only mild discomfort after a heavy working day.
On 21 February 1997 whilst driving an Armaguard vehicle, the vehicle was involved in a collision with a car. During that accident he wrenched his right shoulder. The shoulder became more painful and he noticed a lump in the anterior tissues of the shoulder. He was treated for increased pain and restriction of movement for some months thereafter by Dr David Martin, during which time he was not able to return to work as a security guard. On 8 July 1999 he underwent exploratory surgery and the removal of some bullet fragments, the excision of his distal right clavicle and some revision of the exit scar. After that his shoulder pain disappeared, he regained an excellent range of movement but did not regain full strength in the shoulder. He was off work for about five months following the motor vehicle accident, but returned gradually to the majority of his usual duties. There was some recurring breakdown of the entry wound at the back of the right shoulder which required further surgery on 2 June 1998, but after one month he had returned to full duties.
Dr Guirguis reported on 26 November 1998 that he was then experiencing almost constant pain affecting the right shoulder, both in the front and back, which the respondent said felt like a hot poker. The pain was aggravated by a variety of activities, including lifting, twisting, bending and lying on the right shoulder. The pain did not radiate to the arm or neck. He experienced weakness and stiffness of the right shoulder compared with the left. He was able to perform light work around the house including lawn cutting, but he had transferred to his left hand some of the activities which he used to perform with his right. On the other hand, he was no longer able to perform some recreational activities like ten‑pin bowling and rifle shooting.
Shortly before that review Dr Martin reported that he had a near full range of motion of his shoulder, had very little impairment in that respect, and that his disability was mainly as a result of ongoing discomfort, loss of strength in the right shoulder and some slight residual scarring.
Dr Martin assessed his disability as 10 per cent loss of the full and efficient use of the right arm at or above the elbow. Dr Guirguis, on the other hand, considered that he had sustained a 25 per cent loss of function of the right arm above the elbow.
It was also apparent that the respondent suffered a severe post‑traumatic stress disorder as a result of the shooting. This affected his sleep and concentration and caused a loss of pleasure and interest in his day to day work activities, with depressive thoughts and feelings. The trial Judge found that this continued from the shooting for a period of about two years. That finding is not disputed and is consistent with both the prognosis of Dr Earle Williams and the observations of Dr Guirguis. The trial Judge also found that continuing trouble with his upper arm would in turn cause some psychiatric problems to continue but of a diminished nature. Although not a great deal turns on this, there seems to be no evidentiary support for that conclusion.
In relation to the effect of the shooting injury on the further injuries sustained in the motor vehicle accident, Dr Martin considered that the motor vehicle accident aggravated his previously injured shoulder and that he would not have had the same degree of disability from the motor vehicle accident had he not suffered the gunshot wound in the previous November. He considered in December 1997 that the motor vehicle accident significantly aggravated his right shoulder problems, in that he was having minimal symptoms with regard to the right shoulder before the motor vehicle accident, but that the shoulder was rendered more likely to be injured by the previous gunshot wound. He apportioned his 10 per cent loss of function of the right arm above the elbow as being 5 per cent due to the gunshot injury and 5 per cent as a result of the motor vehicle accident. Likewise, Dr Guirguis considered that he had made a good recovery from the shooting incident, but that the effect of the second accident had been detrimental to the level of pain and function in the right arm. Although his assessment of the residual disability was higher than that of Dr Martin, he also considered that the residual effect should be shared equally between the original incident and the aggravation caused by the motor vehicle collision.
The scheme of the Criminal Injuries Compensation Act has been described in other cases (e.g. State of South Australia v Bole (1995) 64 SASR 379). I will not repeat it. One of the functions of the trial Judge, in respect of fixing the amount of compensation for what the Act calls “non‑financial loss”, was to assign that loss to a numerical value on a scale running from nought to fifty. The amount of compensation is then determined by multiplying that figure by $1,000. The numerical value assigned by the trial Judge in this case was 20, resulting in an award of $20,000 for non‑financial loss. It is against that assessment that the State of South Australia now appeals. The appellant was represented by counsel. The respondent appeared on the hearing of the appeal but was not legally represented.
Non‑financial loss is defined in the Act as meaning pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement.
The essential findings of the trial Judge are contained in the following passages:
“[12] I note from the various reports that some of the medical practitioners distinguish between the effect of the original shot wound to his shoulder and the aggravation of it by the subsequent motor vehicle incident. It seems to me that reading the reports as a whole the whole matter really relates to the incident when he was shot in the course of his duties, as referred to above.
....
[14] I find that as a result of the injuries sustained by the shot fired at the plaintiff on 14 November 1996 he has suffered a 10% loss of use of his right upper arm. I also find that as a result of the shot fired at him on 14 November 1996 the plaintiff suffered post traumatic stress disorder lasting from 14 November 1996 to about November 1998, that is for a period of 2 years. As I understand reading all of the reports together with the statements by the plaintiff, I find that he has recovered sufficiently to return to work but I think it is more probable than not that he will continue as the orthopaedic surgeon says, to suffer from the problems with his upper arm and that in turn will cause some psychiatric problems to continue but of a diminished nature.”
Later in his reasons the trial Judge repeated that he considered that all the plaintiff’s problems related to the first injury. He noted that the medical reports distinguished between the two and that the payments under the Workers Rehabilitation and Compensation Act had been divided between the two. However, that observation was only made in the context of what figures the trial Judge took into account in determining the respondent’s economic loss. That is not the subject of any appeal, and that observation does not qualify his finding, for the purposes of the assessment of non‑financial loss, that the whole matter or all of the respondent’s injuries relate to the shooting incident.
In my opinion it was not open on the material before the trial Judge to hold that the whole of the respondent’s non‑financial loss related to the shooting incident.
At the time when the motor vehicle accident occurred the respondent had regained almost full range of motion of his shoulder with minimal pain, and had returned to work as a security guard. Immediately following the accident the pain and discomfort increased to a point where he was unable to continue working. He was off work for nearly five months, and did not significantly improve until after the operation that was performed by Dr Martin in July 1997. Whilst his shoulder’s susceptibility to further injury was no doubt increased by the bullet wound, the vehicle accident was a new and intervening cause of much of his pain and discomfort during 1997.
It was open to the trial Judge to hold that the post‑traumatic stress disorder was attributable to the shooting alone. There is nothing in the evidence to suggest that that was aggravated by the vehicle accident. It would also appear that any pain and discomfort associated with the excision of the entry wound in June 1998 could not be associated in any way with the vehicle accident.
As for the operative procedures in July 1997, it would appear that the removal of the bullet fragments and revision of the exit scar could only relate to the original shooting. On the other hand, the balance of that operation appears to have been instrumental in overcoming the pain that recurred as a result of the vehicle accident. As to any resultant permanent disability from the physical injuries, whether it be assessed at a 10 per cent or 25 per cent loss of use of the arm, the medical evidence was unanimous in attributing half of that to the shooting incident and half to the subsequent aggravation by the motor vehicle accident.
Therefore, in attributing the whole of the respondent’s disabilities to the shooting incident the trial Judge erred. He failed to make allowance for the increased pain and discomfort directly caused by the vehicle accident and he failed to act on the unanimous medical opinions that any residual disability was attributable to both incidents equally.
However, even in attributing the whole of the residual disability to the original shooting, in my opinion the trial Judge also erred in assigning a numerical value of 20 to those injuries. In making that assignment the court is required to compare the severity of the non‑financial loss with the worst possible loss that anyone could suffer: State of South Australia v Bole at 381 ‑ 382. Accepting the residual disabilities as described by the trial Judge it can be seen that whilst there was some ongoing discomfort, it restricted the respondent in some of his domestic and social activities, but he still continues to work, albeit with some continuing weakness in his shoulder. His post‑traumatic stress disorder continued for approximately 2 years. That has to be assessed on the scale of 1 ‑ 50 against a person who may suffer the most debilitating and severe injuries imaginable. Whilst opinions will obviously differ within a reasonable range as to what the assignment of the numerical value should be, in my opinion the value of 20 for the respondent’s injuries was manifestly excessive, even attributing the total of the residual disability to the shooting incident.
It is therefore necessary to consider afresh what the appropriate value should be. As this has to be assessed on a scale, the extreme limits of which are known, other assessments made under the Act will not be particularly helpful in arriving at the appropriate level. However, they may be used as a check against error, but even then allowance must be made for the fact that the assessment in a given case may well lie within an acceptable range, that similar injuries affect people in very different ways and that awards by consent may well reflect the result of a process of negotiation or may take into account other factors contemplated by s 7(9) of the Act not directly related to the disability sustained. In that context it should be noted that we were referred to the fact that one of Mr Gale’s fellow employees, Mr Lee, had recently received an award of compensation arising out of the same incident. The Court records indicate that that award was by consent and reflected a value of 10. However, apart from the fact that no allegation of physical injury was made and that the claim seems to have involved some psychiatric disorder, no further details are known. In any event, even if the information were known, it could not and in present circumstances does not affect this Court’s assessment of what is a fair value for Mr Gale’s non‑financial loss.
Taking into account the stress and trauma associated with the shooting, the nature of the pain and suffering and physical injury sustained by the respondent as a result of the shooting, the operative procedures that followed, the post‑traumatic stress disorder, the residual scarring, the other residual disabilities and their apportionment between the two causes, in my opinion the appropriate level was 10, thus resulting in an award of $10,000.
I would allow the appeal and set aside the award of $20,000 for non‑financial loss and substitute for that figure the sum of $10,000. In other respects the judgment of the trial Judge should be confirmed.

[1999] SASC 480

12 November 1999