Stefanidis v The State of South Australia - [2005] SADC 70

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
STEFANIDIS v THE STATE OF SOUTH AUSTRALIA
Judgment of His Honour Judge Beazley
30 June 2005
CRIMINAL LAW
CRIMINAL INJURIES COMPENSATION - JURISDICTION, PRACTICE AND PROCEDURE
Plaintiff sustained physical and psychological injuries when assaulted by unknown offender on 30 June 2000 - Defendant admits that offence proved beyond reasonable doubt. Corroborated pursuant to s8 of Criminal Injuries Compensation Act 1978 - That offence was causative of loss was established in any event - While investigating a security alarm plaintiff punched in the face and kicked in the head - Plaintiff suffered injuries to head, neck, right shoulder, upper torso, chest and back, aggravation of pre-existing physical injuries - Whether psychiatric condition caused by assault - Damages - relevance of pre-existing psychiatric condition.
Assessment of damages - Prospects of rehabilitation postponed/but not hopeless earning capacity prior to assault - Numerical value 10 - Ascribed for non-financial loss pursuant to s7(8) $10,000. Financial loss $7,785 after application of the formula.
Victims of Crime Act 2001; Criminal Injuries Compensation Act 1978 s7, 8, referred to.
State of SA v Bole (1995) 64 SASR 379; Shorey v P T Limited (2003) 197 ALR 410; T v State of South Australia (1992) 59 SASR 278; Watts v Fenton [2001] SASC 305 at [72]; City of Brimbank v Halilovic (2000) Aust Tort Rep 81-549; DNM Mining Pty Ltd v Barwick (2004) NSWCA 137; SB v State of NSW [2004] VSC 514; Cachia v Hanes (1994) 179 CLR 403 at 414; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 642-3; Southern Health Services v Brown [2003] NSWCA 369; Medlin v SGIC (1995) 182 CLR 1 at 4, 16, considered.

STEFANIDIS v THE STATE OF SOUTH AUSTRALIA
[2005] SADC 70

The plaintiff has applied for compensation pursuant to s 7 (1) of the Criminal Injuries Compensation Act 1978 (“the Act”) for injuries which he claims to have suffered as the victim of an offence committed on 30 June 2000 at Rose Street, Mile End.
The Act was repealed by the Victims of Crime Act, 2001, however pursuant to Schedule 1, cl.2 thereof, the Act continues to apply to applications for compensation in respect of any injury arising from an offence committed before 1 January 2003.
The Statement of Claim, pleads “an offence of home invasion and assault committed by a person or persons unknown”. At trial, and by consent, the reference to the “home invasion” was deleted so that the description of the offence was that of assault. No person has since been identified, tried or convicted of the alleged assault. The plaintiff therefore proceeds against the defendant pursuant to s 7(5) of the Act
Section 8 of the Act provides:
“8 (1)Subject to this Act, any fact to be proved by a claimant in proceedings under this Act is sufficiently proved if it is proved on the balance of probabilities.
(1a)No order for compensation may be made (except by consent) on an application under this Act unless –
(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.
(1b) Where an order for compensation is sought in respect of an offence, and no person has been brought to trial charged with the offence, the evidence of the claimant as to the commission of the offence, unless supported in a material particular by corroborative evidence, is not sufficient to establish the commission of the offence”. In its defence the defendant admitted that on 30^th June 2000 at Rose Street, Mile End the plaintiff was the victim of an offence of assault committed by a person or persons unknown. No issue was raised as to whether the plaintiff’s conduct may have contributed to the assault. Both counsel submitted at the trial that the commission of the offence was not in dispute, and that the only question for determination was one of quantum. I assume that the parties had regard to the exception, on the basis of consent to an order for compensation contained in S. 8(1a), to avoid the need to prove the matters in S.8(1a) and (1b) thereof.1
1 See Bubnowski v The State of South Australia (2003) SADC 14 at (7 to 8) where there was no evidence of corroboration.
The plaintiff sustained concussion and was unable to give any evidence as to the assault, save for the events leading up thereto, and thereafter recovering in the Royal Adelaide Hospital. Fortunately there was an independent witness, Donna Rae Foley, who provided a witness statement to the police within 40 minutes of the assault on 30 June 2000. A copy of Ms Foley’s statement, (Ex.P.1), was tendered by consent. She stated that while she was speaking to the plaintiff in her unit, an alarm was activated at a house at Rose Street, Mile End. As she and the plaintiff walked up the driveway to investigate, they were confronted by a man and a woman. She then described the assault as follows:
“The woman said something, at that time I’m not sure what she said, Bill asked the man quietly to ‘leave please’ at that time I saw the man move his arm that was at his side, I saw that he was holding a baton of some type, it was dark in colour and appeared to be a heavy plastic or similar. I saw the man raise his fist, I am not sure if it was the one that he was holding the baton in or the other one but I saw him punch Bill in the face, it was a hard punch and knocked Bill over onto the driveway. He was sort of on his back but pulling himself up on one arm when the man moved into position and kicked Bill very hard in the head. Bill ended up flat on his back, it was a very hard kick, it was very frightening to watch. The man and the woman turned and walked away out of the driveway, I watched them walk and turn slightly left but I did not watch after that, I attended to Bill, his face was grazed and bleeding, he was very dazed. I stayed with him until the police arrived, I did not see where the man or the woman went”.
The Royal Adelaide Hospital notes, tendered by consent, detailed the plaintiff’s complaints, injuries and treatment at the Emergency Department on 30 June 2000. The plaintiff’s general practitioner, Dr Zervos, provided a medico legal report and gave oral evidence as to the extent of the plaintiff’s injuries when examined on 3 July 2000. This evidence was consistent with the plaintiff having indeed being punched and kicked as is alleged. There is ample authority for the proposition that medical evidence of this kind is capable of amounting to corroboration within s 8(1b) of the Act.2
2 See Field v Gent (1996) 67 SASR 122 at 130
Even without the admissions in the pleadings, I have no hesitation in finding that the commission of the offence has been proved beyond reasonable doubt, and corroborated by the statement of Ms Foley, and the evidence of the physical injuries sustained by the plaintiff.
An issue at trial was whether the plaintiff had established that the assault was causative of his physical and psychiatric state and thus his loss as required by s.8(1a)(b) of the Act.3
3 s 4 of the Act definies "injury" as including both physical and mental injury
The questions of causation and the assessment of damages are somewhat complicated by the plaintiff’s unfortunate history of accidents, which predate the assault There is no doubt that the plaintiff had pre-existing physical and psychiatric disabilities in consequence of those previous accidents.
Witnesses
Before turning to the Plaintiff’s background, it is appropriate that I say something about the witnesses. I accept that all of the witnesses were truthful and did their best to accurately recall and relate the events about which they were called. There was some faint criticism, by Counsel for the Defendant, of the evidence of the three non- medical witnesses called by the plaintiff, as to their observations of his physical appearance at various times, and as to whether there was some opportunity for the plaintiff to exercise whatever earning capacity he had prior to the assault. This criticism was that the evidence was too vague and that it conflicted with the evidence of the plaintiff as to his level of pain and as to what work he performed both before and after the assault. While I accept the plaintiff as an entirely honest witness, the disorder from which he suffers and referred to later in these reasons has rendered him a poor historian to the various medical practitioners and to the Court. It is this presentation by the plaintiff which explains the differing diagnoses of the expert medical witnesses. I accept the evidence of all of the witnesses, and with the reservation so expressed, the evidence of the plaintiff.
Background
The narrative of the facts in these reasons reflects my findings. The plaintiff was born in Ioannina, Greece on 10 May 1958. He was aged 42 years at the date of the assault and 47 years at trial. It appears that when he completed the second year of high school, he was required to leave and support his family. At sixteen years of age he commenced work as an unskilled labourer in a factory and remained in that employment for about six or seven years until he migrated to Australia in 1984. The plaintiff has had an extraordinarily unfortunate run of traumatic events in his life, largely involving road traffic accidents and the assault the subject of the within proceedings.
Upon arrival in Australia in 1984 the plaintiff married and commenced work as a labourer on the vehicle assembly line at Mitsubishi at Tonsley Park. On a date variously described as 1985 and 1987 the plaintiff was injured when a motor vehicle collided with his bicycle on South Road at Tonsley Park. He was conveyed to the Flinders Medical Centre. The plaintiff was unclear about the injuries received in that accident. He indicated that he had been in a coma. He thought that he was at the Flinders Medical Centre for approximately one week and suffered pain in both his legs and hips. When asked about that pain he said4
"Q“Are you talking about both hips or one hip?
AI think so, the one hip but the pain was travelling. If you had in my view in my pain in my standards if you have one affected arm it might be affects the other one. Most serious was the right one which there was a fracture or something”.
4 XXN p49
The plaintiff was unable to say much further about that accident, other than having consulted a general practitioner, Dr Varvounis, on about ten occasions. The plaintiff seems to have made a full recovery from the effects of this accident by 1988.
He returned to work at Mitsubishi on light duties until he was dismissed in 1987 for being involved in a confrontation with other employees. He described being scared for his life at the time when those employees forced him into a barrel, and left him struggling to get free for about half an hour. When he eventually became free, he hit one of those employees. He has not been engaged in paid employment since that 1987 dismissal.
In 1988, when playing soccer, he suffered a right fractured scaphoid that failed to unite and required a bone graft. The bone graft failed to take and he has been left with a chronic wrist injury ever since.
In August 1991 the plaintiff was again knocked from his bicycle by a motor vehicle. He was conveyed to the Royal Adelaide Hospital describing his injuries as being “my neck, my shoulders, my whole back, the whole body”. Much of the cross-examination was directed to the significance of this accident as the cause of the plaintiff’s disability both before and after the assault on 30 June 2000. I have no doubt that the plaintiff suffered quite significant soft tissue injuries to his neck, both shoulders and back in that accident. He also aggravated the injury to his right wrist. I also find that the plaintiff suffered from symptoms of post traumatic stress disorder in consequence of the 1991 accident. Superimposed on these injuries was the plaintiff’s personality which is characterised by some paranoid personality traits.
Part of the background is the fact of three failed marriages. The plaintiff had remarried in 1994, divorced in 1995, remarried in December 2001 and separated in the same month.
Health Prior to Assault
I have already referred to the fact that the plaintiff has not been in paid employment since 1987. He has been in receipt of a disability support pension since the 1991 accident. He gave quite confusing evidence about the severity of the 1991 accident caused symptoms in the period leading up to the subject assault on 30 June 2000. At times he suggested that there was a general improvement in his symptoms such that by 1996/1997 he ceased taking large doses of medication and no longer required physiotherapy or psychiatric treatment. At other times he admitted that he had ongoing problems with pain in the neck and shoulder area and that standing for a long time, or watching television or reading for a long time would aggravate that pain requiring the use of medication at the same rate both before and after the assault in June 2000. He is however consistent in, and I accept, his evidence that following the assault, all of his symptoms have become more severe and debilitating.
He said that he was a lot better in about 1999 and was preparing himself to obtain work. He stated that he was able to do some gardening as well as cleaning work in a restaurant. He indicated that his plan at the time was to get off the pension and work fulltime. He had lodged unsuccessful applications for employment and had undertaken volunteer work for Mr Dimitropoulis at a restaurant shortly before the assault. He conceded that he could not then have taken up a fulltime job because of his physical condition.
Expert opinions were provided by six medical practitioners. I refer at this point to the evidence of the only two practitioners who treated the plaintiff prior to the assault. The plaintiff’s general practioner Dr Zervos provided an expert report and gave oral evidence. He had treated the plaintiff before the assault and examined him just after the assault on 3 July 2000. He described the injuries from the assault as being soft tissue injuries to his neck, upper back, right shoulder and arm and anterior chest wall. He further stated that the plaintiff aggravated injuries received in the 1991 accident.
Significantly Dr Zervos stated that some of the 1991 accident symptoms had started to subside prior to the assault. While conceding that the plaintiff had not been tested with the demands of paid employment, he thought that prior to the assault, he was capable of a part-time or casual position which did not require anything too physical. It is important to note that Dr Zervos was the only medical practitioner who observed and treated the plaintiff between 1996 and 2000.
He stated that the improvement was lost in consequence of the assault . He opined that objectively he would have expected improvement over the five years since the assault. He suggested that there were “other issues in play” which he could not explain. At present the plaintiff had no capacity for work. He conceded however that with time he will improve to his pre-assault condition.
Dr Zervos stated that it was extremely difficult to express by way of percentage a comparison between the pre and post assault disabilities. When pressed about the shoulder limitations he described the disability as 20% before the assault and 80% after the assault. He concluded, by reference to an MRI scan taken in 2002 that there was an underlying organic basis for the neck pain.
Dr Christopher Griffin, the plaintiff’s treating psychiatrist, diagnosed post-traumatic stress disorder in consequence of the 1991 accident. Symptoms were still present in 1995 when he last examined the plaintiff prior to the assault. He noted that the plaintiff did have a personality style characterised by paranoid traits, which manifested itself in the distrust of diagnoses given by various medical practitioners. The mere presence of such traits is to be contrasted with their more severe state which may result in a diagnosis of paranoid personality disorder, or a delusional disorder of a persecutory type. Significantly however Dr Griffin did not on balance believe that a diagnosis of delusional disorder of a persecutory type could be made before the assault.
The plaintiff had consulted Dr Griffin on sixteen occasions, the last being on 3 November 1995, before the assault. He has consulted him on 34 occasions between the date of the assault and February 2004. While unable to confidentially assert that the symptoms of the post traumatic stress disorder had fully remitted between 1995 and 2000, as he had not examined the plaintiff during that time, he accepted that there may have been some improvement over that time. On balance he opined that the symptoms had become quiescent.
Dr Griffin said it was possible that but for the assault the plaintiff may have returned to gainful employment on a casual or part-time basis, however he qualified that evidence as follows:-
“I took the view that prior to the assault whatever beneficial effects had arisen from psychiatric treatment offered by me in the 1990s had been relatively lost. Mr Stefanidis, as a result of his condition, continued to experience a degree of impairment in social and occupational functioning following the motor vehicle accident. There was a period of time when I did not have the opportunity of reviewing his function and during that time he was not consulting me. When he returned and in the course of the consultations following the assault it was my opinion that there was a substantial impairment in social and occupational function associated with the conditions as outlined suffered by him. On balance, it is my opinion that the degree of social and occupational impairment following the assault has been of greater degree than was the case prior to the assault. I note that I do not have the information to fill in the gap during the time that he was not meeting with me”.
Three non-medical witnesses gave evidence on behalf of the plaintiff. Dimitrios Dimitropoulos, the son of the plaintiff’s landlady, operated two restaurants in Rundle Street. He knew the plaintiff prior to the assault and regarded him as a happy-go-lucky sort of person. He was aware that the plaintiff did general sweeping and gardening from time to time for his mother prior to the assault. He said that he arranged some volunteer work for the plaintiff which involved general gardening and cleaning but that it was not a standard sort of arrangement, perhaps just once a month or once every two months. He said that he had considered offering the plaintiff work at the restaurants to replace contract cleaners at a rate of $15 to $18 per hour for 30-35 hours a week. He indicated that the plaintiff rejected the request. He observed that the plaintiff was less agile and moaned whenever exerting himself after the assault. When he made the offer he thought that the plaintiff was capable of doing the work however the plaintiff had deteriorated over the last three years.
Lamprinie Georgiou had known the plaintiff for about seventeen years. She indicated from her observations that prior to the assault he was “different, still in pain but he had full of life, whatever, but now after this accident he’s been different…easily frustrated”. In September 2004 the plaintiff had attended at her house to undertake some voluntary gardening for five days at a couple of hours a day but had to stop because he was in pain.

Jagjeet Raina, another restaurateur, had known the plaintiff shortly before the assault. He indicated that prior to the assault the plaintiff wasn’t in the best of health but he had observed him since that time and believes that he was in a worse situation. He had considered giving the plaintiff some work prior to the assault but that upon his observations of the plaintiff following the assault he didn’t believe that the plaintiff was capable of such work.
Although the evidence of the two restaurateurs was somewhat vague I accept that the plaintiff did undertake some voluntary work both before and after the assault, however, in contrast to the post assault period, had performed well enough prior to the assault to encourage the prospect of offers of employment.
The task in determining the status of the health of the plaintiff prior to the assault has been made even more complex by the manifest difficulties which the plaintiff had in expressing himself with precision, and his belief that his disabilities are solely organically based and as yet undiagnosed by his medical practitioners.
It is trite that an expert opinion is only as good as the foundation upon which it is based. To be of value the facts upon which it is based should be proved by admissible evidence.5 I was impressed by the combination of the evidence of Dr Zervos, Dr Griffin and the three non medical witnesses. The opinions of Dr Zervos and Dr Griffin were formed on the total picture presented by the plaintiff to them.
5 Ramsay v Watson (1961) 108 CLR 642; City of Brimbank v Halilovic (2000) Aust Torts Rep 81-549
I find that shortly prior to the assault the plaintiff was endeavouring to rejoin the work force, and that his symptoms, whether organically or psychogenically produced, had abated to some degree to permit that endeavour. Although the plaintiff hoped he could work to a level that he could “get off the pension”, I find that he would not have been engaged in full time work, even had the assault not occurred. Making due allowance for the vagueness of the evidence of the non-medical witnesses, it seems that the plaintiff managed 2-3 hours a day on an irregular basis.6
6 The plaintiff XXN pp 101-106
Health after the assault
At best, with some work hardening and a sympathetic employer such as Mr Dimitropoulis, he would have been able to work on a consistent weekly basis, on average a few hours a week, to supplement his pension. It was an agreed fact at trial that a disability support pensioner was entitled to earn $106 per fortnight in 2000 increasing to $122 per fortnight in 2005, before the loss of any pension entitlements.
I accept that the plaintiff was assaulted in the manner described by Ms Foley. As to the physical injuries, I accept the evidence of Dr Zervos that the plaintiff sustained soft tissue injuries to his neck, upper back, right shoulder and arm and the anterior chest wall, and an aggravation of his 1991 accident caused symptoms. The plaintiff asserts his health as “being worse than a paraplegic”. Clearly that is not the case, however I do accept that following the assault his symptoms became more severe and debilitating. In consequence of the assault the plaintiff has undergone physiotherapy and analgesic, chiropractic and psychiatric therapy. Any improvement prior to the assault was lost. Unfortunately Mr Stefanidis has formed the view that the various medical practitioners have failed to correctly diagnose his injuries.
A report dated 10 July 2002 from an orthopaedic surgeon Dr Guirguis was tendered by consent. He was in no doubt that the plaintiff suffered a musculoskeletal injury to the neck and right shoulder in the assault. He assessed the residual disability on a physical basis to be 15% of the cervical spine, 5% of the right shoulder and 5% of the upper back. He could not determine the pre assault residual disability. He diagnosed chronic pain with a considerable psychogenic component.
By report dated 28 May 2001 the psychiatrist Dr Griffin had diagnosed Post Traumatic Stress Disorder in consequence of the assault. He felt that the assault introduced “a new focus separate from the 1991 accident”. Of significance were the plaintiff’s feeling that he was no longer safe and his recurrent and intrusive distressing recollections of the assault.
By January 2004 Dr Griffin had determined it necessary to detain the plaintiff at Glenside for his own safety, having diagnosed him with a delusional disorder of a persecutory type. Dr Griffin considered that a crisis, caused by the assault, had arisen in which the risk of harm to himself and others was significant. At that time the post traumatic stress disorder was in relative remission, and his depressive symptoms were insufficient in number and severity to allow a diagnosis of major depression. Dr Griffin was in no doubt that there was a causal connection between the assault and the psychiatric condition of the plaintiff as diagnosed in 2001 and 2004.
Dr Griffin’s prognosis is that “a form of equilibrium will evolve” whereby the plaintiff’s symptoms will return to the pre assault condition, varying in severity, not intrusive and not elevated to the grave risks of January 2004.
Dr O’Brien, a Fellow both of the Royal College of Psychiatrists of the United Kingdom and the Royal Australian and New Zealand College of Psychiatrists, examined the plaintiff on four occasions, initially on 28 July 2004. He diagnosed the plaintiff as suffering from a chronic pain disorder with pain experienced at multiple anatomical sites in a manner inexplicable by malingering or factitious disorder. The diagnosis was made, when from an organic point of view the symptoms ought to have long before resolved. He noted that there had been little lasting improvement since the pre-existing symptoms were exacerbated by the assault.
Dr O’Brien did not adopt the diagnosis of Post Traumatic Stress Disorder, however acknowledged the presence of some elements of that disorder. He believed that the plaintiff’s unfortunate history had incrementally traumatised him to the point of chronic traumatisation. As to the quantification of the assault to his overall disability Dr O’Brien was reluctant to estimate a figure, but when pressed suggested the middle of the scale. He was not optimistic about the prognosis.
Dr O’Brien acknowledged that it was a highly complex case where difference in views could be expected. While conceding the advantage which Dr Griffin had in treating the plaintiff prior to the assault, Dr O’Brien considered that both of them were describing similar pathology and phenomena.
A report of another psychiatrist, Dr Blakemore, dated 3 May 2002 was tendered by consent. Dr Blakemore had examined the plaintiff on only one occasion on 1 May 2002 for medico legal purposes. He did not believe that a diagnosis of psychiatric illness was appropriate at that time. Each of the psychiatrists were hamstrung by the plaintiff’s refusal to accept that there could be factors other than a solely physical basis for his symptoms.

I prefer the evidence of Dr Griffin and Dr O’Brien as to the plaintiff’s mental state caused by the assault. They both conceded that the precise diagnosis or description of the plaintiff’s condition was of little significance. They were clear that the plaintiff’s psychiatric or psychological condition was substantially caused by the assault.7
7 It is not necessary to prove that the crime was a substantial cause. "If the evidence proves that there was a causal connection between crime and injury then the case is made out". See HK & Others v The State of South Australia (1997) 190 LSJS 174 at 177, T v The State of South Australia (1992) 59 SASR 278 and March v Stramare (1991) 171 CLR 506

I have already found that the plaintiff suffered soft tissue injuries to his neck, upper back, right shoulder and arm and the anterior chest wall; as well as an aggravation of his 1991 accident caused symptoms. I accept that in the five year period since the assault there ought to have been marked improvement in those physical symptoms. I find that prior to the assault the plaintiff suffered from some elements of a post traumatic stress disorder which varied in intensity. In the 12 month period before the assault the symptoms were quiescent. The plaintiff had, however, been traumatised by his previous history and was vulnerable to another traumatic event. I find that the plaintiff now suffers from a chronic pain disorder with the pain psychogenically based and caused in the relevant sense by the assault, but attributable 50% to the assault and 50% to his pre-existing disability.
Despite the pessimistic prognosis of Dr O’Brien I find that there will be gradual improvement in the plaintiff’s mental health over the next few years so that the plaintiff will return to his pre-assault level of health. Although unsure how long it might take, Dr Griffin and Dr Zervos both expected a return to his pre-assault state in the future. It is significant that the plaintiff has continued to perform some voluntary work since the assault, including the period of five days performing gardening duties for Mrs Georgiou in September 2004. The conclusion of the litigation will remove one stressor.
I find that the plaintiff is entitled, pursuant to Section 7 of the Act to compensation for both the financial loss representing the loss of a chance to undertake paid work and for non-financial loss as defined in the Act.
Assessment of Compensation
I have approached the assessment on the basis that the plaintiff had a bleak but not hopeless future prior to the assault. Putting his pre-existing physical injuries to one side, the plaintiff had psychogenically produced symptoms following the 1991 accident. Thereafter, irrespective of the assault, those symptoms would vary in intensity. By 1996 the symptoms were quiescent, but subject to revival with further trauma. The assault was extremely traumatic, significantly increasing the symptoms to the extent that by 2004 he was a suicide risk. Those symptoms will abate in time to the pre-assault quiescent level. His progress has been delayed already by five years. The assault has increased his vulnerability. His chances of employment before the assault were limited, partially because of his longstanding unemployment, however he did retain some small earning capacity. The loss of five years has made that position even worse. This is not one of those cases where one can with precision determine the loss of earning capacity.8
8 See City of Brimbank v Halilovic (2000) Aust Torts rep 81-549 and DNM Mining Pty Ltd v Barwick (2004) NSWCA 137
As to non-economic loss, I am conscious of what was said by Barwick CJ in Wilson v Peisley (1975) 50 ALJR 207 at 209:
“Thus, whilst the appellant must pay for bringing out that condition, what he must pay must, in my opinion justly reflect the fact that that condition was not merely latent in the respondent but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not the appellant’s negligence intervened.”
While the plaintiff was traumatised prior to the assault and was likely to react to significant stressors, the fact is, and I find, that the assault in this case had a profound effect upon the plaintiff who is still suffering significant psychological problems some five years later. While he would not have had a normal life the extent of his symptoms would have been for less had he not been assaulted. The assessed figure must be an amount proportionate to the plaintiff’s compensable injuries to compensate for the loss of his enjoyment of life.
In respect of non-financial loss pursuant to s7(8)(a)(ii) of the Act, the Court in assigning a numerical value to the plaintiff’s injury, is required to compare the severity of the non financial loss with the worst possible loss that anyone could suffer.9 Given the chronic nature of the psychiatric condition and its five-year duration together with the severe episode in January 2004, I assign, on the scale of 0-50, the numerical value 10, which results in the sum of $10,000.
9 The State of South Australia v Bole (1995) 64 SASR 379 at 382. See also Tsoukalas v Bralic (unreported decision, Full Court of The Supreme court, 30/11/90) - BC 9000173
In relation to the plaintiff’s financial loss he must be compensated for the impairment of his earning capacity which can only be expressed as the loss of a chance to find some casual employment to supplement his disability pension.
Damages for economic loss are conceptually for loss of earning capacity and are not recoverable unless the loss of earning capacity has been or will be productive of financial loss.10 A broadly assessed lump sum must be struck to allow for any loss of earning capacity which was left alive from the previous accidents. The plaintiff’s pre-existing psychiatric condition rendered him susceptible to an aggravation of his condition. The defendant would not be liable for that portion of the plaintiff’s disability or incapacity as was caused by conduct other than the assault.
10 Medlin v SGIC (1995) 182 CLR 1 at 4, 16 and Husher v Husher (1999) 197 (CLR 138 at 143)
The plaintiff had little or no effective earning capacity between 1991 and 1995. I accept all the evidence to the effect that in 1999 there was some improvement in the plaintiff’s general physical and mental condition, such that he was actively pursuing employment. The damages fall to be assessed upon the basis that his pre-existing symptoms were aggravated by the assault. If the plaintiff were more susceptible by reason of his previous accident and pre-existing condition then the defendant takes him as it found him.11. However, the susceptibility of the plaintiff is a matter which must be taken into account in considering the vicissitudes of life. These include the risk that the plaintiff may not have been able to work consistently irrespective of the assault and also that it is possible that he may not recover the pre-assault capacity.
11 See Shorey v PT Limited (2003) 197 ALR 410 per Kirby J at 45 and SB v The
In my opinion the plaintiff could never had worked full time irrespective of the assault and given his employment and accident history he would only have been employed to undertake casual or part-time work for a sympathetic employer. It is unlikely that he could have earned anything more than the $106-$122 per fortnight permitted of the holder of a disability pension. From a physical point of view the plaintiff’s wrist, unrelated to the assault, would have restricted the work which he could have undertaken. He is also restricted by a lack of qualifications.
I find that prior to the assault the plaintiff could only have been able to work a few hours a week on a consistent basis after some work hardening. The maximum which could have been earned over the past five years is the gross sum of $14,560. Allowing for a period of work hardening and for all the vicissitudes of life, most of which are adverse, I allow a net figure of $4,000 as the past loss of earning capacity. I have taken account of the principle in Malec v J.C. Hutton Pty Ltd having regard to the chances that the best case scenario of the plaintiff working for 2-3 hours a week may not be achieved.12
12 See Southern Area Health Service v Brown [2003] NSWCA 369
As to the future loss of earning capacity the plaintiff’s future is somewhat guarded. As I have previously indicated I prefer the evidence of Dr Zervos that there will be some improvement so that the plaintiff will return to his pre-assault condition. Doing the best I can I allow a net figure of $4,500 for the future loss of earning capacity.
The plaintiff has incurred various expenses in consequence of the accident. The special damages were not agreed and it is necessary to deal with each head of special damages as representing part of the financial loss. There was no claim for any other head of economic loss, whether in the past or the future.
53.1 Ambulance - $472.10. This account was, in the end, not the subject of any dispute on liability or quantum.
53.2 Physiotherapy sessions - $156.00. As to this sum the plaintiff had had physiotherapy sessions prior to the assault however I am satisfied from the evidence of Dr Zervos and the report of the physiotherapist Dr Koufalakis that the sum was incurred as a direct consequence of the assault)
53.3 Chiropractic fees - $156.00. While it was faintly argued that that sum ought not be recovered it is in my opinion properly recoverable, being directly caused by the assault. While the treatment was not directed by Dr Zervos, it was of benefit to the plaintiff and was not opposed by Dr Zervos.
53.4 Dr Jones & Partners - $103.75. The plaintiff paid that account. There was some uncertainty as to whether the holder of a disability pension would have been required to pay that account. In s 7(9b) the Court must not make an award in respect of hospital or medical expenses which a claimant would, if no award were made under the Act, recover from a health fund or scheme. That section was designed to overcome the decision in Hodgkinson v South Australia (1984) 35 SASR 190. In my opinion the sum of $103.75 is recoverable by the applicant.
53.5 Bus – The plaintiff claimed travelling expenses. It appears that such expenses incurred in order to obtain medical treatment will be allowed but it must be shown that the particular expenses were reasonably necessary in the circumstances. The bus tickets as a whole were simply tendered as a bundle, most of which had written on them the name of a doctor, others the name of his solicitor. In the circumstances I allow the sum of $180.00.
53.6 Medication – A bundle of invoices said to be $200 but in fact $145.85 was tendered. Those invoices were mainly for Capadex and Naprosyn tablets and the hire of a neck brace. While the plaintiff had taken similar medication and used a neck brace prior to the assault the undisputed evidence was that the symptoms were more severe after the assault. I allow the sum of $145.85 accordingly.
53.7 Total - The total of these special damages is the sum of $1,213.70.
The plaintiff sought the sum of $520.50 for photocopying a series of correspondence which he forwarded to various individuals. Quite apart from questions of the vague nature of the claim and the evidence, the sum is not recoverable as damages. While various clerical costs may be recovered as an out of pocket expense as part of an order for costs, these costs were not incurred with respect to the preparation and conduct of the plaintiff’s case.13
13 See Cachia v Hanes (1994) 179 CLR 403 at 414 and Rowan v Cornwall & Ors (No 6) 2002 SASC 234 at paragraphs 15 to 16
Pursuant to s7(8)(a)(i) the amount to be compensated for financial loss including special damages is subject to the formula contained therein, namely that where financial loss exceeds $2,000 the amount awarded will be $2,000 plus three quarters of the excess. The total sum including special damages is $9,713.70. Applying the formula in s7(8)(a)(i) produces the sum of $7,785 to the nearest dollar.
The fact that the plaintiff was in receipt of a disability pension can be ignored for the purpose of the assessment of his economic loss.
Insofar as it is necessary pursuant to s7(11)(b) of the Act, I certify that the plaintiff has not received any payments in respect of the injuries sustained in the assault and that if he were to exhaust any other available remedies, he would not be likely to receive any payment therefrom.
Pursuant to s7(7) of the Act there will be an order that the plaintiff be paid by the Crown the sum of $17,785 by way of compensation for the injury arising from the offence committed on 30 June 2000. I will hear the parties as to costs.

State of New South Wales (2004) VSC 514 at (543 to 544). Watts v Fenton [2001] SASC 305