State of South Australia v Mahmud Abdel-Ghani Nos. Scgrg-96-2414, Scgrg-96-2422 Judgment No. 6179 Number of Pages 15 Damages

[1997] SASC 6179

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

DOYLE CJ, LANDER AND BLEBY JJ

Damages - measure and remoteness of damages in actions for tort - appeal by State of South Australia against two awards of compensation for criminal injuries suffered whilst the respondent was a prisoner - whether it was open to the learned trial Judge to reach the findings that he did - Judge was obliged to have regard to any conduct on the part of the victim that contributed directly or indirectly to the commission of the offence or to the injury in determining both an application for and the quantum of compensation. - Assessment of conduct of victim - appropriate procedure in the assessment of compensation - assessment of damages for loss of earning capacity had to be approached on the basis that the respondent had only exercised any earning capacity he had to a limited extent prior to his incarceration - no evidence of any inability to exercise any earning capacity - both appeals allowed - compensation re-assessed and new amounts substituted. Criminal Injuries Compensation Act 1978s7(8)(a), (9)(a), (9c), 8(1a); Correctional Services Act 1982s24, referred to. Devries v Australian National Railways Commission
(1993) 177 CLR 472; South Austraia v Nguyen (1991) 57 SASR 252; Grantham v State of South Australia and Industrial Sales and Service (1975) 12 SASR 74; Loter v Bruza (1983) 32 SASR 333; Giorginis v Kastrati (1988) 49 SASR 371; The Koningin Juliana (1974) 2 L1 R 353, applied.

ADELAIDE, 12 May 1997 (hearing), 28 May 1997 (decision)

#DATE 28:5:1997

#ADD 2:6:1997

Appellant:

Counsel: MR B J ILLINGWORTH

Solicitors: CROWN SOLICITOR FOR THE STATE OF SOUTH AUSTRALIA

Respondent:

Counsel: MR M J MITCHELL

Solicitors: MATTHEW MITCHELL

Order:

DOYLE C J

1. I agree with the orders proposed by Lander J, and with the reasons which he gives for making those orders. There is nothing that I wish to add.

LANDER J

2. This is an appeal by The State of South Australia against two awards made by a Judge of the District Court under the Criminal Injuries CompensationAct 1978 (the Act) in favour of the respondent.

3. The respondent made two separate applications for compensation under the Act. Both applications related to claims arising out of injuries alleged to have been suffered whilst the respondent was a prisoner and therefore in the custody of the Chief Executive Officer of the Department of Correctional Services (s24 Correctional Services Act 1982). The first incident is said to have occurred on 26 September 1991 whilst the respondent was a prisoner at Mobilong Prison and the second on 24 November 1991 whilst the respondent was a prisoner at Cadell Training Centre.

4. In respect of the first incident the Learned Judge awarded the respondent the sum of $1,750 for the injuries suffered and ordered that the Crown pay the respondent's costs fixed at $1,200 and disbursements fixed at $986.

5. In relation to the second incident the learned trial Judge awarded the respondent the sum of $17,000 in compensation and ordered that the appellant pay the respondent's cost fixed at $1,200 and his disbursements fixed at $986.

6. In relation to the first incident the appellant complains upon the grounds: "1. That in assessing the respondent's non-financial loss the award made by the learned judge was manifestly excessive.

2. That in assessing the respondent's non-financial loss the learned trail (sic) judge failed to adequately take into account the provisions of s7(9a) of the Criminal Injuries Compensation Act 1978." 7. The appellant seeks orders that the appeal be allowed and that the sum awarded for non-financial loss be reduced in such manner as this Court "may deem just and proper". The respondent has filed a notice of cross appeal in relation to the first incident and the grounds of such cross appeal are:

"1. That in assessing the respondent's non financial loss the award made by the learned judge was manifestly inadequate.

2. That the learned trial judge erred in exercising his discretion to reduce the amount of compensation payable to the respondent pursuant to s7(9a) of the Criminal Injuries Compensation Act and that he ought to have found that there was no conduct on behalf of the respondent which contributed to the commission of the offence within the meaning of the Criminal InjuriesCompensation Act." 8. The respondent by that notice of cross appeal seeks to have the order of the learned trial Judge set aside and the non-financial loss of the respondent increased "in such manner as the Full Court may deem just and proper" and "that there be no reduction in the award of compensation pursuant to s7(9a) of the Criminal Injuries Compensation Act."

9. In relation to the second incident the appellant, the State of South Australia complains in its notice of appeal: "1. That in assessing the respondent's non financial loss the award made by the learned judge was manifestly excessive.

2. That in assessing the respondent's non financial loss the learned trail (sic) judge failed to adequately take into account the provisions of s7(9a) of the Criminal Injuries Compensation Act." 10. The appellant therefore seeks to have the appeal allowed and the order of the learned trial Judge set aside and an order that the non-financial loss of the respondent be reduced in such manner as the Full Court may deem just and proper. There is no cross appeal in relation to that second incident.

11. I shall deal with each incident separately and address both appeals separately.

12. In relation to the first incident the respondent's case was that whilst he was carrying out work in the prison garden a Mr Randall Thompson, who was also a prisoner, called him a "dog". A "dog", of course, is someone in the language of prisoners who has informed on a fellow inmate. It is in prison parlance a highly derogatory expression. According to the respondent, being called a "dog" requires the person so described to either fight the accuser or convince the accuser to "shut up" otherwise the person will be habitually called a "dog" and have to suffer the consequences of being considered an informant.

13. The respondent's evidence was that in response to being called a "dog" he approached Mr Thompson to explain to him that he was not in fact a "dog" and that he had no reason to dob on anyone. He said that as he approached Mr Thompson, Mr Thompson grabbed a hoe from another prisoner and hit the respondent on the head causing an injury above his left eye. The respondent's evidence was that he had said nothing to Mr Thompson between the time he had been called a "dog" and the time he was hit. He said that after he was hit he grabbed a shovel to protect himself but then walked away and reported the incident to the prison authorities.

14. Randall Thompson was joined as a defendant to the proceedings. He was unrepresented but elected to give evidence. The learned trial Judge elicited his evidence in chief.

15. Randall Thompson agreed that he did call the respondent "that bloody dog". He said that the next thing he heard was the respondent yelling at him calling him "a cunt". He said the respondent then raised a spade and ran towards him. Mr Thompson only had a cane walking stick which he dropped but he picked up a garden hoe. When the respondent got level with him the respondent swung the shovel but missed and Mr Thompson hit him with a garden hoe. He did not hit him any more than was necessary to stop him although the respondent fell to the ground. The respondent then got up and walked away with the shovel still in his hand. The respondent reported the matter to the authorities and Mr Thompson was later charged with a breach of prison regulations. He was charged with assault, being in an unauthorised area and a breach of the peace. The following exchange occurred between His Honour and Mr Thompson during Mr Thompson's evidence: "Q In relation to the assault I can only assume if you told the tribunal what you told me that the tribunal must have either not believed you and believed Mr Abdel-Ghani instead or if they did believe you must have found that the violence that you offered in so called self defence was excessive in relation to the threat against you at the time and that therefore it wasn't a valid case of self defence.

A At the time when they took me to the main building I went to a room with the officers and the manager and they asked me why I went into the garden. I told them I went to the garden to get silverbeet for my budgie. When it came time to the trial and they brought the late Mr Marshall in, they asked him 'What did you ask Mr Thompson?' and he said 'We asked him why he went to the garden and Mr Thompson's reply was "I went to the garden to bash that dog Mahmud"', which is a pretty stupid statement to say if you are claiming self defence, I'm not going to turn around and say that it was self defence and say I went to the garden to bash him." 16. The learned trial Judge said that if he had had to rely on the competing versions of the events he would have preferred the evidence of Mr Thompson. He described the respondent's version of the events, that he simply walked quietly towards Mr Thompson, as "so unlikely as to be almost preposterous".

17. On 3 December 1991 a visiting Justice sitting at Mobilong heard evidence from the respondent and the defendant Mr Thompson and from other witnesses, and found Mr Thompson guilty of assault and other breaches of prison regulations. The appellant and the defendant, Mr Thompson, conceded before the learned trial Judge that, in those circumstances, the respondent was the victim of an offence and the learned trial Judge relied upon that concession and found accordingly.

18. Notwithstanding that concession, because of the provisions of s7(9) of the Act, the Court had to determine the circumstances in which the compensable injury came to have been suffered.

19. Section 7(9) of the Act presently reads: "(9) In determining an application for, and the quantum of, compensation, the court must have regard to - (a) any conduct on the part of the victim (whether or not forming part of the circumstances immediately surrounding the offence or injury) that contributed, directly or indirectly, to the commission of the offence, or to the injury to the victim; and (b) such other circumstances as it considers relevant." 20. It was argued by the respondent, on this appeal that the concession made by the appellant and Mr Thompson meant that Mr Thompson was guilty of an offence and did not act in self defence. It was argued that the learned trial Judge was therefore bound to accept the respondent's evidence and disregard the account given by Mr Thompson.

21. I do not agree with that submission. The concession made did not necessarily mean that Mr Thompson did not act in self defence. The concession carried with it the tacit agreement, but no more, that Mr Thompson had used more force than was either necessary or reasonable to defend himself. The concession did not preclude the learned trial Judge from reaching the findings that he did.

22. In determining the application for and the quantum of compensation the Court was obliged to determine for itself the conduct on the part of the victim so as to determine whether that conduct contributed directly or indirectly to the commission of the offence or to the injury to the victim.

23. Section 7(9) of the Act was amended in 1993 so as to include the words in parentheses "(whether or not forming part of the circumstances immediately surrounding the offence or injury)". Because of the provisions of s14A of the Act those words are to be ignored for the purpose of the assessment of the respondent's entitlement which arose out of the incident on 26 September 1991. Section 14A reads: "14A Where a person is entitled to compensation under this Act, the amount of the compensation must be assessed in accordance with provisions of this Act as in force at the time of the commission of the offence from which the injury arose." 24. Thus the learned trial Judge was obliged to have regard to any conduct on the part of the victim that contributed directly or indirectly to the commission of the offence or to the injury to the victim.

25. The learned trial Judge said after discussing s7(9): "I have no doubt that the plaintiff approached Mr Thompson in an abusive and foul mouthed way in a manner which contributed to the commission of the offence committed by Mr Thompson in the sense referred to in the authorities just mentioned. I therefore propose to have regard to the plaintiff's conduct by reducing by 50% the amount of any compensation to which he would otherwise be entitled." 26. It is clear enough from that passage that His Honour has, for the purpose of s7(9) of the Act, preferred Mr Thompson's evidence to that of the respondent in relation to the circumstances relating to the commission of the offence.

27. It was a matter for the learned trial Judge whether he accepted the account given by the respondent or that given by the defendant Mr Thompson. In arriving at his finding His Honour had to have regard to the accounts of the respondent and the defendant Mr Thompson and had to make an assessment on their relative reliability and credibility.

28. The learned trial Judge formed an unsatisfactory view of the respondent whom he described as a generally unreliable witness "who was prepared to hide the truth or to attempt to deceive the Court if he thought this would enhance his claims for compensation".

29. His Honour enjoyed an advantage not available to this Court in the assessment of the witnesses and it is not possible for this Court to interfere with that finding unless satisfied that the trial Judge has failed to use the advantage which he enjoyed or has acted on evidence "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable"; see Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.

30. The finding, in my opinion, that the plaintiff approached Mr Thompson in the manner described was open to the learned trial Judge and ought not to be interfered with. Mr Thompson's evidence was not only that he was approached by the respondent who referred to him in an abusive and foul mouthed way but also that he struck the respondent in defence of himself after the respondent had first tried to strike him with his shovel. However as I have already mentioned the concession made by the appellant and Mr Thompson meant, at least, that Mr Thompson used more force than was necessary or reasonable to defend himself.

31. It was put by the appellant that, notwithstanding the concession made, the conduct of the respondent was such as to disentitle the respondent from any compensation under the Act.

32. Section 7(9) requires the Court to have regard to any conduct on the part of the victim that contributed directly or indirectly to the commission of the offence or to the injury to the victim in determining an application for and the quantum of compensation. It follows, in my opinion, that if the conduct on the part of the victim contributed directly or indirectly to the commission of the offence it could be such as to disentitle the victim to any compensation under the Act, because it is a matter that the Court is required to have regard to in determining the application,

33. If the Court does not believe that the conduct is of such a kind as to disentitle an applicant in relation to an application for compensation, the Court must still nevertheless have regard to that conduct in determining the quantum of compensation, if any conduct on the part of the victim contributed directly or indirectly to the injury to the victim.

34. The victim's conduct therefore may be such as to disentitle the victim to any compensation notwithstanding that the victim would otherwise be entitled under the Act or the conduct may only be of such a kind as to require the Court to have regard to that conduct in the determination of the quantum of compensation.

35. In the first of those circumstances the conduct will operate as a bar to recovery and in the second it will operate in much the same way as contributory negligence operates in actions by a plaintiff in a claim for negligence against another party in circumstances where the plaintiff has been guilty of negligence himself or herself in failing to have regard to his or her own safety, which requires the plaintiff's damages to be reduced to recognise that conduct which amounts to contributory negligence.

36. I think my opinion is not inconsistent with that of Olsson J (with whom Mohr J concurred) in South Australia v Nguyen (1991) 57 SASR 252 at 266/267. I read His Honour's decision there to recognise that in certain circumstances the conduct of the victim might disentitle the victim to any compensation under the Act.

37. In this case the appellant and the defendant Mr Thomson conceded that the respondent was the victim of an offence. That allowed the respondent to claim that he had satisfied the first criterion of s7(1) of the Act but did not, in my opinion, prevent the appellant and the defendant Mr Thompson from arguing before the learned Judge, and the appellant arguing before this Court, that the conduct of the respondent disentitled the respondent to any compensation under the Act.

38. That is so because the provisions of s7(9) of the Act have no part to play unless the claimant, in this case the respondent, has made out that he or she is the victim of an offence. If the claimant, in any proceedings under this Act, is not the victim of an offence then there is no point, of course, in the Court considering whether or not the claimant's conduct contributed in any way to the commission of the offence. Therefore it follows logically, in my opinion, that s7(9) does not need to be considered until such time as the claimant has established that he or she is the victim of an offence and as well satisfied the other criteria in s7(1). It follows that the appellant and the defendant were entitled to rely upon s7(9) of the Act.

39. The learned trial Judge did not consider whether or not the conduct which he found would be such as to disentitle the respondent entirely. The learned trial Judge approached the matter simply upon the basis that the conduct ought to be considered in terms as to whether there ought to be a reduction in the amount of any compensation to which the respondent would have otherwise been entitled.

40. Although for the reasons I will shortly mention that approach did not lead to error in this matter, in my opinion that approach is not correct.

41. The first consideration whenever the effects of s7(9) need to be determined is whether or not the conduct on the part of the victim contributed directly or indirectly to the offence. For those matters arising since 1993 the first question to be determined is whether there was any conduct on the part of the victim, whether or not forming part of the circumstances immediately surrounding the offence, that contributed directly or indirectly to the commission of that offence.

42. If the answer to that question is in the affirmative and the conduct is such, in the opinion of the Court, to disentitle the claimant to any award of compensation under the Act then that is the end of the matter. If, on the other hand, the conduct is not, in the opinion of the Court, such as to disentitle the claimant in the application for compensation, the conduct on the part of the victim must still be examined, yet again, if it contributed directly or indirectly to injury to the victim and the Court must have regard to that conduct in the assessment of the quantum of compensation. Section 7(9) of the Act requires a consideration in those two stages.

43. In this case the learned trial Judge did not give consideration to the first stage to which I have referred but went straight to the second stage.

44. In my opinion, that was an error in approach, but did not lead to an error in the result, because the conduct of the victim was not, in this case, such that it ought to have been a complete bar in an application for compensation under this Act. I say that because it was Mr Thompson who, by calling the respondent "a bloody dog", set off the events which followed. Moreover whilst the appellant overreacted to that invective he was struck by Mr Thompson in circumstances where Mr Thompson, at least, used more force than he believed was necessary or reasonable to defend himself. It will always be a matter to be determined upon the facts whether the conduct of the victim, is such as to disentitle the victim but in this case whilst the respondent's conduct contributed directly to the commission of the offence, having regard to Mr Thompson's own conduct, the respondent's conduct should not be such as to disentitle the respondent completely.

45. Regard must be had to the respondent's conduct in the assessment of the quantum of compensation because it did contribute directly to his injury. That was recognised by the learned trial Judge and he reduced the quantum of compensation by fifty per cent on account of the respondent's conduct.

46. The extent to which the Court ought to reduce the quantum of compensation, by reason of the conduct of the victim, is a matter of judgment upon which minds will reasonably differ. The process of determining the appropriate reduction is much like a consideration of the extent to which damages ought to be reduced for contributory negligence. It is a matter of judgment after a consideration of the whole circumstances and in particular in the light of the conduct of the victim that contributed to his or her injury. Whilst it is the victim's conduct which has to be considered, that conduct must be considered in the whole matrix of facts which involves a consideration of the conduct of the person who has committed the offence.

47. Because the exercise involves a judgment upon which reasonable minds will differ, the circumstances in which this Court will intervene to vary a judgment, where that judgment has been arrived at without any error of principle or misapprehension of the facts, will be rare.

48. In relation to claims involving contributory negligence, in Grantham v State of South Australia and Industrial Sales and Service (1975) 12 SASR 74 Bray CJ approved the following test enunciated by Willmer LJ in The Koningin Juliana [1974] 2 Ll R353 at 364: "Apportionment of fault is not an easy task for any Judge, but it must be said that the trial Judge, who has the benefit of hearing the evidence at first hand and sensing the atmosphere of the case, enjoys an enormous advantage over any appellate tribunal. It has been established by a long series of decisions, culminating in that of the House of Lords in The McGregor (sic),... that in the absence of an error of law, where the appellate tribunal accepts the findings of fact of the Court below, it should only revise the apportionment in very exceptional cases. In the present case I can detect no error in law on the part of the learned Judge, and I accept the findings of fact stated by him in the course of his full and careful judgment. This alone would, in my view, be a sufficient reason for not interfering with his apportionment of fault." 49. Like cases involving contributory negligence it should only be in very exceptional cases, where there is no error of law and the findings of fact are not disturbed, that this Court would interfere with the exercise of a judgment of a Judge of the District Court in relation to the extent of the reduction for conduct contributing to the injury to the victim.

50. In this appeal, accepting the learned trial Judge's findings of the conduct of the respondent, which were reasonably open to him, it is not possible to say that the judgment arrived at in relation to the extent of the reduction ought to be disturbed.

51. I turn to the assessment of compensation itself in relation to the injuries suffered in that first incident.

52. The respondent claimed that he suffered deep cuts to his forehead and had about twenty stitches to the eye. He said his eye was swollen for quite a while. The only ongoing complaint he had about his injuries was that he continued to suffer flashes in his eye once a week or so. He did receive medical treatment. He was taken to Doctor Trenam at the Bridge Clinic at Murray Bridge where he presented with two lacerations to his forehead, one in a semi circular shape and another vertical laceration. The lacerations were not deep and were sutured and a tetanus immunisation was given. There was no report of any loss of consciousness. Doctor Trenam's opinion was that he would not have expected Mr Abdel-Ghani to suffer long term or residual disabilities from the injuries. Professor Jones, a neurosurgeon was called and he did not give any evidence of any long term sequelae in relation to this first incident.

53. I think the correct approach to the assessment of the respondent's injuries was upon the basis that he had two lacerations to his forehead, which would have involved some immediate pain and discomfort and some swelling to the site of the injury. No allowance ought to be made for any loss of consciousness. In my opinion no allowance needed to be made for any ongoing pain and discomfort past the immediate time of the injury.

54. The quantum of compensation is to be assessed in accordance with s7(8)(a)(i) and (ii) as it was as at 26 September 1991. At that time the section read as follows: "7(8)(a) (i) if the amount of the compensation to be awarded on the application would, but for this subparagraph, exceed $2,000, the amount awarded will, subject to subparagraph (ii), be $2,000 plus three quarters of the excess; and

(ii) if the amount arrived at in accordance with subparagraph (i) would, but for this subparagraph, exceed $50,000, the amount awarded will be $50,000." 55. The compensation is therefore to be assessed in accordance with ordinary common law principles but then must be adjusted in accordance with s7(8)(a)(i) and (ii).

56. In this case, as I have said, there ought to be a reduction in the quantum of compensation by reason of the conduct of the respondent pursuant to s7(9). I believe the appropriate procedure in the assessment of compensation to be that stated by Mohr J in Loter v Bruza (1983) 32 SASR 333. First there ought to be an assessment of compensation under ordinary common law principles. Then there should be a reduction for any conduct on the part of the victim that contributed directly or indirectly to the injury as though it were a reduction of the kind contemplated in matters of contributory negligence. The figure then arrived at will have to be adjusted if it is necessary to take into account the injunctions in s7(8)(a)(i) and (ii). I believe that is the correct order i.e. the s7(9) reduction takes place before the s7(8)(a)(i) and (ii) adjustment because s7(9) applies to the quantum of compensation and s7(8)(a)(i) and (ii) applies to the compensation.

57. The learned trial Judge went about the assessment of quantum of compensation in the following manner: "I assess the plaintiff's damages on the basis that he had some cuts on his forehead involving pain and discomfort for a fairly short time, both from the injury itself and from the insertion and removal of stitches. I would assess his compensation under ordinary common law principles at $4,000. By reason of the limitations set out in s7(8) of the Act (as it stood before 12 August 1993) the amount of the compensation to be awarded under the Act would therefore be $2,000 plus 3/4 of $2,000. But for my finding that the plaintiff's conduct contributed to the commission of the offence, I would therefore have awarded compensation of $3,500. However, for the reasons already mentioned, I reduce that by 50% and award to the plaintiff the sum of $1,750. This award does not bear interest (see s7(9c) of the Act)." 58. There are three errors, in my opinion, in that assessment. The first is that I do not agree, as a matter of judgment, with the assessment of compensation. I believe a figure of $4,000 would significantly overcompensate the respondent for the injuries which he received. I would assess the plaintiff's damages at common law at no more than $1,000.

59. The second error is the calculation has not been done in accordance with the decision of Loter v Bruza (supra) and ought to have been.

60. The third error is in relation to interest. Section 7(9c) was not included in the Criminal Injuries Compensation Act until 1993 and therefore there was no statutory disqualification to an award of interest as at 1991. That does not necessarily mean that the respondent would be entitled to interest on any award but, in my opinion, he was not precluded from an award of interest by reason of the provisions of the Act which operated on the assessment of the compensation.

61. I would therefore assess compensation in relation to the first incident this way. I assess his damages at common law at $1,000. I would reduce that sum by 50 per cent having regard to his conduct which directly contributed to his injuries. That leaves a figure of $500. That figure does not have to be adjusted under s7(8)(a)(i) because the figure is less than $2,000.

62. Whilst in theory the respondent is not disqualified from an award of interest, having regard to the paucity of the award, I would not make any further order for interest.

63. I would allow the appellant's appeal and set aside the amount for compensation of $1,750 and substitute an award of $500. I would dismiss the respondent's cross appeal.

64. The second incident occurred on 24 November 1991 whilst the respondent was working at Cadell. It was conceded by the appellant that the respondent was a victim of an offence and that the other criteria in s7(l) had been made out. There was no suggestion in relation to the second claim that the respondent had been guilty of any conduct which would have disentitled him in relation to the application or would have operated to reduce the quantum of compensation.

65. The sole issue in relation to the second incident was the extent of the injuries suffered by the respondent and the assessment of the quantum of compensation in relation to those injuries.

66. The respondent was assaulted in the kitchen/dining area when he was struck on the back of the head, presumably by another prisoner using an ashtray. He lost consciousness for a short time but when he recovered he was being assaulted by four or five other prisoners, and the person who first struck him continued to hit him in the back of the head. He said he ran into a table, slipped and landed on his right knee. A large urn which contained twenty litres of boiling water then fell upon him and the hot water went all over him. He said he got up and ran away to the officers where he received first aid and was removed to hospital.

67. The respondent claimed that the injury necessitated forty-three stitches to his head. He said the injury to his head caused him to bleed, to use his expression, "like a tap". He also claimed to have suffered an injury to his knee when he slipped on the slippery floor. He further claimed in his evidence in chief that he suffered an injury to his arm.

68. He was removed to hospital where he remained for one night and then he was taken to the infirmary at Yatala where he stayed for about a week.

69. He claimed that he continues to suffer pain and suffering to his head and his knee. His evidence was that he had received treatment from Professor Jones in relation to his head injury. His knee injury, he said, interferes with his ability to work.

70. His evidence in chief is incomplete in a number of respects. There was very little evidence led as to his pre-injury earning capacity and almost none led from the respondent in relation to the alleged interference with that earning capacity. His evidence in chief discloses that he was born in Amman in Jordan in 1944, migrated to Austria in 1959 then to Germany in 1960 and then migrated from Germany to Australia in 1970. When he arrived in Australia he lived in Melbourne and then Sydney where he worked as a bus driver. In 1980 he returned to the Middle East because his wife was then a heroin addict and he took her back to the Middle East to try and "dry her out". Whilst in the Middle East he joined the Iraqi army and did two years service in the Iraq/Iran war.

71. He returned to Australia with his wife in 1983 and obtained a job with Pioneer Concrete as a labourer on the construction of the Obahn Busway. He then worked at Simpsons but in 1989 was sentenced to ten years imprisonment. He served only three years and was released in April 1992. His wife was killed in 1994 and he has a son, born in 1983, for whom he has the sole responsibility and care.

72. In cross examination he agreed that prior to his incarceration in 1989 he had been a heroin user, which he said came about because of his wife's addiction. Further he admitted in cross examination that whilst he was a bus driver he was involved in an incident where he was struck on the head by a passenger which necessitated his hospitalisation. He agreed that he had acupuncture and physiotherapy as a result of that. His evidence in cross examination became quite unclear when pressed on this matter. It would appear that he was off work for some few years as a result of that incident.

73. The respondent was also cross examined in relation to his criminal convictions. In cross examination he agreed that he was first convicted of a criminal offence in February 1981 in relation to the possession and smoking of Indian hemp in the St Kilda Magistrates Court. In 1986 in the Port Adelaide Magistrates Court his wife withdrew charges directed to him seeking a restraining order. In 1987 he was convicted and disqualified for exceeding prescribed concentration of alcohol and later in that year convicted of larceny.

74. In August 1989 he was convicted of both larceny and assault. He said he was unable to remember whether he was convicted of house breaking and larceny in April 1990. In June 1990 he was convicted of larceny, and in December 1990 of receiving. In December 1990 he was convicted of wounding with intent to resist apprehension.

75. In his evidence in chief he said that since his release from prison he had not committed any offences but he agreed in cross examination that in July 1993 he was convicted of two counts of larceny and in all that he had been convicted three times since his release from prison.

76. The assessment of damages, especially in so far as it relates to any damages which must be awarded to compensate the respondent for loss of earning capacity and for future loss of any earning capacity, has to be approached upon the basis that the respondent had only exercised any earning capacity he had to a limited extent prior to his incarceration in prison. Both before and after his imprisonment he has committed a number of offences which, if known to prospective employers, would interfere with the exercise of any earning capacity. He is the sole carer for a child in his early teens which also would be a factor which would interfere with the exercise of earning capacity.

77. Not only was there dispute in relation to his earning capacity but the appellant disputed that the respondent suffered any injury to his knee in the second incident at all.

78. It was put to the appellant in cross examination that he had given a different account of the cause of injury to his knee at the time of the trial of those charged relating to this matter. His evidence in respect of that allegation was unsatisfactory. It was also put to him that he had made inconsistent complaints to medical practitioners as to the period over which he had suffered disability to his knee.

79. Contemporaneous medical reports do not support the appellant's complaint of a knee injury in this incident. A report of a Doctor Michael Betts of 18 July 1994 refers to the appellant's admission to the Waikerie District Hospital on the night of the assault, 24 November 1991. There is no record of any complaint of any injury to the knee. A report of Doctor Wardhana of 10 August 1994 refers to occasions where he saw the respondent at Yatala Prison Medical Service. The respondent consulted that medical practitioner on six occasions between November 1991 and February 1992, the first occasion being in relation to the assault at Cadell Training Centre. On none of the occasions that he consulted that medical practitioner is there any record of a complaint of any injury to the knee. The only complaint, apart from that relating to the head and neck, is a complaint on the last occasion of "left tennis elbow, left scapular ache".

80. Whilst it is clear that probably since late in 1992 the respondent has suffered disability arising from either disease or trauma to his knee, the learned trial Judge found that the knee injury and consequent disability were not related to the incident in November 1991, and he found that the appellant had failed to prove on the balance of probabilities a causal connection between the commission of the offence of which the appellant was the victim and the injury relating to the knee. I think with respect, that finding, is correct. I think that the primary finding of the learned trial Judge that the appellant was an unsatisfactory witness and the failure of the contemporaneous evidence to support a claim that there had been an immediate trauma to the knee allowed the learned trial Judge to arrive at the conclusion that that aspect of the appellant's claim had not been established upon the balance of probabilities.

81. Having made that finding the Learned Trial Judge was obliged to apply the provisions of s8(1a) which reads: "8 (1a) No order for compensation may be made (except by consent) on an application under this Act unless-- (a) .... (b) a causal connection between the commission of the offence and the injury or death to which the application relates has been proved on the balance of probabilities." 82. I think the learned trial Judge was right to leave out of account the respondent's claim that he suffered a knee injury.

83. That left to be considered the immediate injury to the head and the sequelae from that injury. I have already detailed the plaintiff's evidence in relation to that injury. In cross examination he developed the extent of his head injuries and he said he suffered headaches, neck aches and has undergone physiotherapy for those injuries. However the Court was left with little or no information as to the severity of the injuries nor how they might bear upon the appellant in his day to day activities, and as well how the injuries interfered with his capacity to earn income.

84. Two doctors were called and their medical reports tendered in support of the claim. Doctor Williams, a general practitioner, said in a written report that the appellant first consulted him in September 1992 complaining then of aching at the back of his neck relating to an injury sustained in an assault at Cadell.

85. Doctor Williams treated the appellant and submitted him to a number of tests, but in respect of the head and neck injuries he referred him to Professor Jones.

86. Professor Jones gave oral evidence and tendered a written report dated 25 May 1995 in which he said this: "From a neurosurgical point of view he has degenerative change in his cervical spine but I think that the symptoms in his occiput are probably more likely related to local injury to the branches of the greater occipital nerve. The incomplete nature of the sensory distribution is also in keeping with this. If this continues to cause problems, localised injections into the greater occipital nerve may help as may an occipital neurectomy. The other interesting problem is the episodes of vertigo and the unusual symptoms of feeling larger than his usual size and the appearance of people around him seeming to float in the air. Although this is no longer happening I wonder whether it may represent temporal lobe epilepsy. If one wishes to take this further it would be appropriate to refer him to a neurologist and, perhaps for him to have an EEG." 87. In his oral evidence he was specifically questioned about the appellant's symptoms. He said the only neurosurgical problem that he could find was a degenerative change in the respondent's cervical spine which, he thought, probably "anti-dated" (sic) his injuries, and scalp lacerations with pain in his scalp which he thought was due to trauma in the occipital nerve in the scalp. He thought that the pain that the appellant felt in the back of his neck going up on to his scalp could be related to the second assault.

88. He said later: "My clinical findings were that he had scalp lacerations in the right occipital region, which were healed and he had some incomplete numbness in the distriction (sic) of the right greater occipital nerve and apart from that, my examination was normal. So it's a combination of the distribution of his pain which seemed to correlate with the distribution of the numbness on his scalp. I'm just talking about the scalp pain. His other symptoms are different and the presence of the laceration in a reasonable distribution for that nerve." 89. I cannot find in Professor Jones' evidence, either in evidence in chief or in cross examination, any support for the appellant's case which was for a claim of a serious head injury resulting in headaches, dizziness, vertigo and the like together with an associated neck injury which caused him continuing disability such that it would interfere with his earning capacity. The learned trial Judge found rightly, in my respectful opinion, that the headaches and neck pain were caused by degenerative disease of the spine, which had commenced before the Cadell assault and probably at the time when he was subject to the assault as a bus driver. I agree with the learned trial Judge that those symptoms however were to an extent aggravated by the Cadell assault and to a further minor extent some pain and suffering which he would have suffered in any event was accelerated by that same assault.

90. To that limited extent he is entitled to be compensated for the aggravation and acceleration of a pre-existing condition.

91. The learned trial Judge discussed the paucity of evidence relating to the appellant's inability to work by reason of the injuries which he had suffered but concluded that he would include in the assessment of compensation something for a diminution in his earning capacity.

92. The Learned Trial Judge said this: "I assess the plaintiff's damages on the basis that the assault at Cadell caused him considerable pain from the head injuries actually sustained and the subsequent insertion and removal of stitches. I also include a component for some exacerbation of what I find was a pre-existing degenerative condition in his cervical spine and, as I have said, from some diminution in his earning capacity. I also make some allowance for the cost of future medical treatment." 93. Without identifying the amounts allowed for each of the components, the learned trial Judge assessed damages at $22,000.

94. Again I think that award significantly over compensates the appellant on the case that was presented to the learned trial Judge. The case which was presented in the pleadings was for damages for pain and suffering and damages for a loss of or reduction in earning capacity. Whilst there is some evidence of pain and suffering, and some aggravation and some acceleration of a pre-existing disease, there is little or no evidence of the day to day disabilities said to be suffered by reason of the injuries. More particularly, and probably even more importantly, there is almost no evidence to make any determination of an award for damages for any diminution in earning capacity. I have already pointed to the difficulties in the appellant's case in his failure to exercise his earning capacity prior to his incarceration and his difficulties, apart from these injuries, in exercising any earning capacity after his release from prison. There is simply no evidence of any inability to exercise any earning capacity. I think in those circumstances any award more than a nominal amount for diminution of earning capacity could not be justified.

95. It is not for the Court to guess at the earning capacity which the appellant might have exercised nor how it is or was that he was unable to exercise that earning capacity. It is for the appellant to bring forward adequate evidence to support a finding that on the balance of probabilities there has been a diminution of his earning capacity: Giorginis v Kastrati
(1988) 49 SASR 371.

96. There is no evidence of the need for future medical treatment or the cost of that medical treatment. So also, in my opinion, it would be inappropriate to allow, in the assessment of the appellant's compensation, any award apart from a nominal award in relation to that head of damage.

97. Lastly, in relation to the claim for damages for pain and suffering, the appellant's evidence was unsatisfactory in a number of respects and as the learned trial Judge pointed out, in other respects, exaggerated. It is difficult to glean from his evidence the full extent of the pain and suffering which he has suffered and therefore to form any real judgment as to the pain and suffering that he will suffer by reason of this assault in November 1991. However a judgment must be made in relation to that matter but, in my opinion, the judgment arrived at by the learned trial Judge was to overcompensate this appellant.

98. In my opinion the appellant's compensation ought to have been assessed at no more than $10,000 which includes a nominal amount for the claim for loss of earning capacity and future medical treatment.

99. Having regard to the provisions of s7(8)(a)(i) that would mean that the appellant ought to have been entitled to no more than $2,000 plus three quarters of $8,000, a total of $8,000.

100. In relation to the second appeal I would set aside the award of compensation arrived at by the learned trial Judge and substitute the figure of $8,000.

101. Orders: 1. That in relation to Action No. 2414 of 1996 (a) The appeal be allowed and the amount of compensation awarded by the learned trial Judge be set aside and a figure for compensation of $500 be substituted. (b) The cross appeal be dismissed.

2. That in relation to Action No. 2422 of 1996 the appeal be allowed and the amount of compensation awarded by the learned trial Judge be set aside and a figure for compensation of $8,000 be substituted.

BLEBY J

102. I agree.