Van Gyen v State of SA & Heri No. Cicd-98-430 Judgment No. D155
[1999] SADC 155
•26 November 1999
VAN GYEN v STATE OF SA and HERI
[1999] SADC 155
Judge Lowrie
Criminal Injuries Compensation
On the 4 June 1997 the defendant, Isaac Michael Heri, pleaded guilty to an offence of common assault on the plaintiff, Deborah Nadine Van Gyen. The magistrate did not enter a conviction, but, ordered that the defendant enter into a good behaviour bond for a period of twelve months.
On 3 July 1998 Ms Van Gyen issued proceedings seeking compensation pursuant to the Criminal Injuries Compensation Act 1978 in respect of the injuries allegedly suffered by her as a result of the assault.
The matter came on for hearing on 11 November 1999. The plaintiff and a psychiatrist, Dr M Fogarty to whom she had been referred by her solicitors, gave evidence. The Crown was represented and, although served with the proceedings, did not file a defence. The second defendant appeared in person.
The defendant gave evidence about his relationship with the plaintiff and the circumstances surrounding the incident in question.
From my initial discussion with the defendant it was apparent that the defendant was alleging that he did not commit the assault, and, acting on legal advice to summarily dispose of the complaint, he entered his plea of guilty. In any event, he claimed that whatever his conduct, it in no way contributed to the injuries allegedly suffered by the plaintiff and consequently he was not liable for the compensation as sought.
EVIDENCE
The plaintiff was born on 1 January 1958 and is now aged 41 years. The plaintiff deposed that she left school at the age of 16. She subsequently married and had two children of that relationship aged now respectively 25 and 23. The plaintiff said she has an infant son referred to as “PJ” who is now aged 7. “PJ” is the child of her relationship with the defendant. The plaintiff briefly outlined that she separated and was divorced in 1984 and in all that time had the primary care of her two daughters. She has an amicable relationship with her former husband.
The plaintiff said she first met the defendant in August 1990 and subsequently formed a relationship with him which has been ongoing until the incident in October 1996. The child, Pokoho John Van Gyen-Heri, was born on 17 June 1992 and she has had the care and custody of that child since his birth. The plaintiff described her relationship with the defendant as “an on/off relationship”, and, although he lived at her house, she did not view it as a de facto relationship. Clearly the relationship has been most unsettled with police attending at disturbances. The plaintiff said she would ask the defendant to leave and described how he would return to her house.
The plaintiff outlined how this relationship reached a conclusion with the October 1996 incident when:
“.... the second defendant grabbed me by the long part of my hair with his right hand and dragged me around the room. As he dragged me around the room by the hair, he pushed my head down towards the ground. I was completely intimidated by the second defendant and his aggressive behaviour towards me. I reported the matter immediately to police and awaited for them to arrive.”
The defendant subsequently left her house. The plaintiff said there had been a history of displays of violence by the second defendant. The authorities acted on her report and the defendant was charged with common assault in the Mount Barker Magistrates Court and on 4 June 1997 he pleaded guilty to assaulting the plaintiff and entered into a good behaviour bond.
The plaintiff outlined how on 26 November 1996 she had felt obliged to obtain a domestic violence restraining order against the defendant. This order was made in the Adelaide Magistrates Court. The plaintiff said the reason for seeking such an order was that she was concerned with the violent nature of the defendant and felt that he was capable of killing her.
The plaintiff said that because of the nature of the assault she could not return to her house for approximately three weeks and she had subsequently obtained the restraining order.
The plaintiff said that she had lived at this Bridgewater address for approximately 13 years and felt she could not continue to live at these premises because the house and environs were a constant reminder of the incident. She subsequently listed the property for sale. The property was sold approximately one year later at a price she believed was less than its capital value because of the depressed nature of the market. This was confirmed by a letter from the real estate agent dated 22 January 1998. The agent attached a note of the expenses of the sale which included commission of $2,500 and disbursements of $1,500.
The plaintiff said that she sought specialist care and attention from Dr Fogarty and attended her on 3 December 1997 when she was diagnosed as suffering from depression. Since that time she has commenced regular treatment with a psychologist, and, believes she would require at least a further twelve months treatment for her ongoing depression.
The plaintiff said at the time of the incident she was undertaking studies at TAFE to complete an Associate Diploma of Commercial Photography but because of her ongoing difficulties she was unable to complete the studies. The plaintiff’s affidavit in support of her application was tendered confirming the nature of her evidence and ongoing problems. The plaintiff said she continued to remain fearful of the second defendant and suffered with ongoing depression and anxiety and consequently interest and motivation in life has diminished.
It was apparent from her evidence that her relationship with the defendant had been at times most unsettled with outbursts of violence. I would think it apparent from the evidence and cross-examination of the defendant that he may well have difficulties with alcohol which may have contributed to the unstable nature of the relationship, but, not withstanding these matters the relationship continued for many years.
It appears that the plaintiff’s condition has not improved since the filing of her affidavit in July 1998 and this was confirmed by Dr Fogarty. The plaintiff outlined how in 1996 she had commenced her TAFE course and viewed herself as an above average student. Such studies were interrupted by the assault and her subsequent depressive condition. The plaintiff said she had expected to complete such studies and be qualified as a commercial photographer the year after the incident. However, even at this stage she has not completed this course. The plaintiff said she had dropped out of her studies in the middle of 1997 because of her depression and lack of motivation.
I invited the second defendant to ask the plaintiff questions on any area of her evidence but he declined to do so.
Mr Heri gave evidence on oath.
Mr Heri is now 47 and is Tanzanian by birth. I endeavoured to assist him throughout his evidence concerning the relevant issues raised by him. He outlined that he had arrived in Australia in 1984, and, subsequently returned to Tanzania, but returned to Adelaide in 1987. He is now a permanent resident. Mr Heri said that initially he undertook a linguistic course at the Sydney University and when he returned here in 1987 he attended the Flinders University and undertook special education studies which he completed in about 1990. After he graduated from his course he obtained factory work and was so occupied for about five or six years.
The defendant said he first met the plaintiff in “1990, on 11 August at 8.15 p.m. at the Earl of Aberdeen Hotel” at a social function. Their relationship subsequently developed following this meeting. He said at that time the plaintiff was living at Malvern and studying at the School of Arts, and, he lived with her at her Malvern address. He then moved with her to Bridgewater where they lived from 1991 up until October 1996. He regarded the Bridgewater address as being his permanent home as he did not live at any other residence in that time.
Mr Heri said that during the time of their relationship there had been friction but very much it would have been of a “normal” type. He said they would discuss and in effect resolve any issues. Mr Heri said he considered a problem was his nationality and the fact that he was not accepted by the plaintiff’s father.
The defendant alleged that certainly by late 1996 the relationship was floundering. He believes this was solely due to the plaintiff having developed a relationship with a person, “Francs Verga”, and alleged that during the week of the incident he believed the plaintiff had been at her parents shack at Yorke Peninsula with this person, and, this dispute had developed when she returned home from that liaison.
Mr Heri outlined how the plaintiff returned home with certain plastic bags and when he was emptying those bags he found matters which clearly reflected on the alleged liaison between the plaintiff and Mr Verga. He said the plaintiff had been out and returned home at about 10.00 when he was asleep. He said by this time he said he had moved out of their bedroom. He said he remembered this occasion well and was not aggressive in his actions. He said he removed the phone from the receiver and said “I didn’t grab her hair to hurt her but to draw attention to her. By this time I was angry”. It was put to him that there was an allegation that he had grabbed her by the hair and dragged her around the room. He said:
“A.... It is nothing like that. I didn’t drag her. I didn’t bounce anywhere. I was angry, shouting to her.
Q. Did you touch her at all.
A...... I didn’t touch her anything. I said. ‘Do you know what you are doing is too bad?’ and I confess I said, ‘You know you are doing like a whore’, people who are mucking around. I was on the bed and going to do -
Q. You say she you didn’t drag her around the room.
A. No way.”
Mr Heri denied he pushed the plaintiff to the floor.
The defendant outlined how he had left then with his bag with few possessions.
The defendant said he had endeavoured at all time to maintain his son, “PJ”. At the present time, and for some time, he has been employed at Balfour’s in a casual position and is paying $61 a week for the maintenance of his son.
The defendant denied that his actions on the day were as violent as alleged by the plaintiff and those actions could not have resulted in the long term depressive condition now suffered by the plaintiff.
When Mr Heri was cross-examined he was particularly asked about his drinking habits. He denied that he had an alcohol problem. He admitted that he was angry with the plaintiff in the month of the incident, but, did not lose control of himself. The defendant’s answers were at times very lengthy accompanied with many illustrations and incidents which may not be relevant, but, clearly were part of his manner of expression. There were times when it was quite apparent that the defendant was becoming agitated during the course of his cross-examination.
Counsel for the Crown asked a number of questions of Mr Heri. It appears that Mr Heri has had a number of convictions for driving vehicles whilst affected by alcohol as well as driving under disqualification. Because of the repetitive nature of those convictions the second defendant may well have a difficulty with alcohol in his life.
Clearly there was some confusion about the incident in question. It appears that the defendant made a statement to the police which was in a similar tenor to the evidence given to me in that he admitted pulling the plaintiff’s hair with one hand behind her head but denied dragging her around the house. He explained in his statement to the police his non-aggressive type behaviour and maintained, “(I) did not hit her, it was simply a grabbing of her hair to get her attention”.
Dr Fogarty gave evidence in support of her two reports which were dated 17 December 1997 and 28 October 1999. The plaintiff had been referred to Dr Fogarty by her solicitors. Dr Fogarty has been involved in counselling and advising persons who have been in difficult relationships. She viewed the plaintiff on both occasions as being very much depressed and needing attention both in the way of medication and professional assistance with the difficulties which stemmed from the assault.
Dr Fogarty viewed the plaintiff on the first occasion as being able to be properly managed by her local doctor with, no doubt, other professional assistance. However, when she saw the plaintiff this year she considered her depression was more profound and had reached a level where she now required specialist advice.
In her report of October 1999, Dr Fogarty felt that the plaintiff would require a further twelve months to two years of psychiatric treatment and medication and considered that she had been unable to study or work. However, she felt that it was likely that the plaintiff would have a good response to treatment and then be in a position to resume her studies. In her evidence she placed more emphasis on the two year period.
I put to Dr Fogarty the defendant’s allegations concerning the failing nature of their relationship in the weeks prior to the assault and the allegation that the reason for the trauma in the plaintiff’s life as alleged by Mr Heri was her alleged new relationship with Mr Verga. Dr Fogarty said she was aware of this allegation and that she had discussed it with the plaintiff who had denied that there was such a relationship.
FINDINGS
I accept the evidence of the plaintiff in regard to the circumstances of the assault on her by the second defendant. The defendant has admitted the argument. I have little doubt that the plaintiff’s absence from the house and the realisation that their relationship was failing was the cause of his anger which manifested itself in the outburst of anger although temporary in nature.
I am obliged to accept the evidence of Dr Fogarty that the assault on the plaintiff by the defendant was the cause of her depressive illness. Consequently the plaintiff is entitled to compensation under this Act.
The plaintiff’s damages have been claimed under the following heads.
Firstly, compensation for the depressive nature of her illness which she has suffered since this incident and until the present time and no doubt for at least a further year.
Secondly, flowing from her inability to continue to live in her house and its sale, she seeks recompense of $4,000, in effect, the expenses associated with the sale of the house.
Thirdly, damages under a general loss of a chance heading because the plaintiff was unable to complete her photography studies and consequently has been set back in the order of a two year period from this loss of an increased income by way of her further qualifications.
Finally, the future cost of medical care and medication.
Injuries to health
Section 7(8)(a)(ii) provides:
“(A). the total non-financial loss must be assigned a numerical value on a scale running from 0 to 50 (the greater the severity of the non-financial loss, the greater the number); and
(B)the amount awarded will be the amount arrived at by multiplying the number so assigned by $1 000;”
This is done by comparing the non-financial loss suffered by the plaintiff with the worst possible loss that could be suffered as a result of any offence. State of South Australia v Bole (1994) 64 SASR 379.
From Mr Heri’s statements, he was endeavouring to suggest that he had not committed any offence on the plaintiff. This type of factual matter can be distinguished from decisions like Kraft v State of South Australia & Maxwell a judgment of Judge Lee delivered on 12 December 1996 in judgement number D3532. In that case the defendant had been found guilty of offences and that being the case the learned judge confirmed such a finding could not be challenged in proceedings under the Criminal Injuries Compensation Act. However, that is a different factual basis to the present situation bearing in mind the circumstances as suggested by Mr Heri as the basis for his plea.
It is now clear by the defendant’s own evidence of the forcible grabbing of the plaintiff’s hair which was a quite violent reaction on his part and is sufficient to make a finding that he assaulted the plaintiff.
As I have found I accept the plaintiff’s evidence on the manner of the assault.
The plaintiff outlined her depressive condition and her inability to cope with her life since that time. There may be other influences which may well relate to her ongoing problems. I am obliged to accept Dr Fogarty’s evidence that this violent assault was causative of the plaintiff’s ongoing health and psychiatric problems. She felt obliged to sell her house and then found herself unable to continue with her studies. However, I am concerned about the lack of medical attention and advice that the plaintiff received immediately following the incident. Indeed it was her own solicitors who arranged the psychiatric examination in December 1997 and at that time the plaintiff was advised to seek medical and psychiatric assistance but felt her condition had stabilised.
Dr Fogarty said in answer to a question:
“(d) Details of any treatment arranged by you and its outcome;
......... I have suggested that she seek psychiatric treatment for major depression. She will arrange specialist referral through her local doctor.”
There is no evidence as to whether that had been acted upon, although there is evidence of some psychological assistance.
As Dr Fogarty commented when she saw her again in October 1999 she felt that the plaintiff’s condition had then deteriorated and required treatment for “twelve months to two years”. No doubt when this litigation is completed that will assist the plaintiff’s recovery.
However I have to bear in mind that this offence did occur in October 1996. Some three years have passed and she still has some depressive difficulties. I am concerned that the plaintiff did not take more positive steps to seek assistance following the first attendance on Dr Fogarty.
In all the circumstances I assign the numeral 7.
Expenses on sale of house
These expenses have been claimed in the sum of $4,000 which relates to the two items, commission of $2,000, and the disbursements incurred by the agent of $1,500.
When this claim was initially mentioned, I expressed concerns. In any other jurisdiction, relevant foreseeability criteria would preclude the plaintiff from recovering such a sum. However, I was promptly referred to the learned dissertation of Judge Wilson, who for many years was continually involved with this legislation. The causal connection and the commission of the offence and loss was discussed by him in the case of Gibbens v State of South Australia and Gibbens (1997) 193 LSJS 165. The issue in that case, as was here, is that the plaintiff claimed that the sole reason for moving her residence was as a result of fear of the assailant and she consequently felt obliged to sell her house. As the learned judge stated, the question to determine is whether the incurring of these expenses was in consequence of the commission of the offence and whether it was something:
“.... ‘arising from the offence’ (Section 7(1) of the Act) and whether ‘a causal connection between the commission of the offence’ and the financial loss has been proven (Section 8(1a) of the Act).”
The learned judge commented in Gibbens’ case that he had also considered that matter in an earlier case, some sixteen years previously, of Sexton v Bairstow & Cockburn (1981) 95 LSJS 32 and then twenty years ago in Johnstone v Smith & State of South Australia (1987) 136 LSJS 371 where the court had to be satisfied in line with those authorities and others that the plaintiff has established beyond reasonable doubt that the injury was “in a relevant causal sense, contributed to by the commission of the offence”.
I accept the plaintiff’s evidence that it was as a result of this assault on her and its repercussions she felt obliged for her own well being to sell her house and move to an alternate address.
Consequently the fee of $4,000 is recoverable.
Loss of a chance
In dealing with the plaintiff’s economic loss her counsel has argued that because of her ongoing depression and her inability to attain higher qualifications, in effect, she has lost job opportunities, and, contended that this loss should be based on a two year period. I have to bear in mind many factors in considering such an award. The plaintiff’s studies were incomplete at the time of the incident. In light of her relationship with the defendant there is a large degree of speculation required as to whether she would have completed such studies. Further speculation is required, in any event, as to whether she would have obtained employment. I have mentioned that it was unfortunate that more professional help was not forthcoming in the period immediately following the incident, or indeed, immediately after her attendance on Dr Fogarty.
However, the plaintiff did have a considerable set back in her working life, but, in all the circumstances I view the same should be based on a 12 month period, and, I fix a sum of $8,000.
Financial loss
Psychological accounts
I have had tendered some 14 accounts from a Petra McHugh for treatment from 9 March 1998 to 10 September 1998. I am told she is a psychologist. I have no reports from Ms McHugh. I am not aware of her qualifications. At times the attendances were weekly. Again, I am uncertain if the attendances were of a referral nature although I inferred this from some of the evidence. The item does cause me concern. However, I note no objection was raised by the Crown.
On balance I will allow the same in the sum of $1,848.
Future psychiatric assistance - professional fees
Psychological
I would allow 12 monthly visits. I assume these visits would have proper referrals. I allow the sum of $360.
Medical
I fix this loss as above in the sum of $360.
Medication
I fix this loss in the sum of $300.
Legal Expenses
District Court fee to issue summons
$55.00
Granite Solicitors Service (fees to serve second defendant)
165.00
Dr Marcia Fogarty (1) medical report 17 December 1997
550.00
(2) medical report 18 October 1999
400.00
Photostats (1) prior to 22 July 1999
280.80
(2) since 22 July 1999
115.00
Trial fees - 11 November 1999
150.00
Dr M Fogarty witness fee
300.00
Costs
1,325.00
TOTAL
$3,340.80
The position of damage is as follows:
Non-economic financial loss - numerical value 7
$7,000.00
Expenses on sale of house
4,000.00
Loss of a chance
8,000.00
Psychological accounts
1,848.00
Future psychological assistance
360.00
Medical
360.00
Medication
300.00
Legal expenses and costs
3,340.80
TOTAL
$25,208.80
The expenses on the sale of the house and the award for loss of a chance are subject to the reduction as required by s7(8)(a)(i) of the Act. Therefore that sum after applying the formula is reduced from $12,000 to $9,500. I accordingly reduce the figure to $22,708.80.
I therefore determine that the plaintiff’s entitlement to compensation under this Act is the sum of $22,708.
As appears from the defendant’s evidence he has no assets. His income comes from his casual employment. The defendant’s living expenses and the maintenance of his son would account for a significant portion of his income.
I make the relevant endorsement that the plaintiff has not received nor is she likely to receive compensation for her injury from any other source.
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