Young v State of South Australia & Longstaff No. Cicd-98-869

Michael James Young v State of South Australia and Shane Matthew Longstaff
[2000] SADC 117

Judge Sulan
Criminal Injuries Compensation

On the 9th December 1995, the plaintiff, Michael James Young, attended at the home of his estranged wife, Sheree Macdonald, to celebrate their son’s fourth birthday. They had married in 1991 and had been separated for about twelve months.
There were a number of adults at the party, including Shane Longstaff (“the second defendant”), his sister, Sheree Macdonald (“Macdonald”) and his brother Malcolm Henderson (“Henderson”). During the evening there was an altercation in which the plaintiff was assaulted. He suffered injuries and was admitted to hospital.
On the 7th December 1998, the plaintiff commenced proceedings against the State of South Australia (“the first defendant”) and the second defendant claiming compensation under the Criminal Injuries Compensation Act 1978 (“the Act”).
In the statement of claim, the plaintiff alleged that on the 9th November 1998, the second defendant pleaded guilty to two offences arising out of the events of the 9th December 1995, one count of assault occasioning actual bodily harm and one other offence.
In the defence, the second defendant admitted that he was convicted as alleged. He claimed that although he had pleaded guilty to assaulting the plaintiff on two occasions on the relevant day, neither of the assaults caused the serious injuries which the plaintiff claims resulted from the assaults upon him.
The matter proceeded before me on the 17th May 2000. The plaintiff gave evidence. During the cross examination of the plaintiff by Ms Milen for the second defendant, it became clear that although the second defendant had pleaded guilty to offences arising out of the events on the day and night of the 9th December 1995, he denied causing the injuries alleged by the plaintiff. It appeared from the questions asked in cross examination of the plaintiff that the second defendant was suggesting that there were a number of incidents involving the plaintiff throughout the day and night, and that the second defendant was involved in a minor way, but was not a party to any assault which resulted in the injuries alleged by the plaintiff.
During the course of the hearing, the second defendant applied to file and serve an amended defence. On the 18th May 2000, I gave leave to the second defendant to file and serve an amended defence. In response to the claim that the second defendant had pleaded guilty to assault occasioning actual bodily harm and one other offence, the second defendant pleaded :
2. The 2nd defendant admits that he was convicted as alleged in paragraph 3 of the Statement of Claim, save and except that the 2nd defendant denies that the offence to which he pleaded guilty (“the offence”) occurred between the hours of 10pm and 11pm but occurred several hours earlier on the same date. The particulars of the said offence are as follows:
2.1 The said offence occurred some time between the hours of about 4pm and 7pm.
2.2 The said offence occurred in the vicinity of the breakfast bar of the premises situated at 13 Pandora Court, Modbury Heights.
2.3 The said offence occurred when the 2nd defendant took a swing at the plaintiff’s facial area using his open hand, which hand connected with a hard object.
2.4 At the time when the 2nd defendant pleaded guilty to the said offence, it was conceded by the 2nd defendant that his open hand had connected with the plaintiff and further conceded, that since the plaintiff had bruising in his facial area, that he had caused the said bruising.
2.5 The 2nd defendant says that at the time when he pleaded guilty to the said offence, he was not made aware of the extent of the facial injuries suffered by the plaintiff on the 9th day of December 1995.
2.6 The said offence occurred approximately 30 minutes after an incident wherein the plaintiff pushed the 2nd defendant’s sister and during the course of an argument between the 2nd defendant’s sister and the plaintiff wherein the plaintiff was raising his voice to the 2nd defendant’s sister and was behaving in a manner which suggested to the 2nd defendant that the plaintiff was going to hit, push or in some other manner assault the 2nd defendant’s sister.
2.7 The plaintiff has denied that the 2nd defendant hit the plaintiff as believed by the 2nd defendant at the time when he pleaded guilty to the said offence.
2.8 The 2nd defendant was convicted of the said offence almost three years after the event and does not now recall any other particulars concerning the said offence.
The second defendant further pleaded that he acted in self defence. He pleaded that immediately prior to him committing any offence, the plaintiff had acted in the following manner :
3.1 he assaulted the 2nd defendant’s sister who was the former defacto partner of the plaintiff;
3.2 he used foul and abusive language to the 2nd defendant’s sister, the defendant and the defendant’s brother;
3.3 he assaulted the 2nd defendant by pushing and hitting him;
3.4 he assaulted the 2nd defendant’s brother by pushing and hitting him;
3.5 he threatened the 2nd defendant with a knife and a struggle ensued during which the 2nd defendant was injured by the said knife;
3.6 he refused to leave the 2nd defendant’s sister’s residence when requested to do so.
The second defendant denied causing the injuries as alleged by the plaintiff and pleaded that his attack on the plaintiff was limited to him hitting the plaintiff with an open hand and later hitting him over the back of the head with a tricycle. In addition, the second defendant pleaded that the plaintiff’s conduct contributed directly to the commission of the offence or offences, and pursuant to section 7(9)(a) of the Act, the plaintiff should not be entitled to any award or alternatively, the award should be reduced.
The plaintiff gave evidence about the incident. Expert medical witnesses and a dental witness were called on behalf of the plaintiff. I will deal with their evidence later in these reasons.
The second defendant, Henderson and Ms Macdonald gave evidence about the events of that evening.

8th December, 1995

The plaintiff gave evidence that he stayed at the former matrimonial home on the Friday night, the 8th December 1995.
Both the plaintiff and Ms Macdonald gave evidence about their relationship. The plaintiff said that he was not unwelcome at Ms Macdonald’s home and that from time to time he stayed there. She said that at times the plaintiff would impose his presence upon her and the children. Ms Macdonald said that she was trying to pursue a new chapter in her life and that she did not welcome the plaintiff coming to her home but she was intimidated by him and therefore permitted him to stay overnight from time to time. She said that on that night she had asked him to leave but he stayed. The plaintiff slept on the couch. I accept Ms Macdonald’s evidence that she did not wish the plaintiff to come into her home.
I accept her evidence that he stayed overnight on the 8th December 1995 against her wishes.

The Witnesses

Before I deal with the events of the 9th December 1995, I should say something about the witnesses. Each of the witnesses who gave evidence about the incident and events leading up to the incident, claimed to have a recollection of what had occurred. In my view, the evidence of every witness who was at the party and spoke of the incident or events surrounding the incident was coloured by their interest in the outcome of these proceedings. There were unsatisfactory features about the evidence of each of them.
The plaintiff reconstructed events. He was heavily influenced by alcohol and cannabis at the time of the incident. I consider his recollection was affected by both the alcohol and drugs he had consumed, the injuries he sustained during the fight and his attempts to lay the total responsibility for what had occurred at the feet of the second defendant. I do not consider his evidence about the role he played during the day and the evening of the 9th December 1995, was reliable. I consider he exaggerated the extent and long-term effects of a number of injuries he sustained that evening.
The second defendant sought to minimise his role and sought, by inference, to place the consequences for the injuries suffered by the plaintiff upon his brother, Malcolm Henderson. I did not find him to be a convincing witness. I consider his evidence about the basis of his plea of guilty to assault occasioning actual bodily harm in the Holden Hill Magistrates Court, was unconvincing. I do not accept his evidence about the events that occurred in the kitchen on the 9th December 1995, during which the plaintiff was hit and suffered injuries. I consider he was not frank about his own involvement. I do not accept his explanation about what occurred in Ms Macdonald’s bedroom during the incident and his evidence about how a mirror was broken in her room. I will deal with that evidence when I come to the detail of events of that evening.
Henderson did not impress me as a witness upon whose evidence I am prepared to rely in respect of the incident which occurred in the kitchen. I am of the view that he has tailored his recollection of the events in order that his evidence is consistent with that of his brother. In my view, Henderson has attempted to shift the responsibility of what occurred away from the second defendant in order that the second defendant might avoid the consequences of this action. I was not impressed with him as a witness. I find that he was not truthful about his and the second defendant’s involvement in the kitchen incident.
In my opinion, Ms Macdonald’s evidence was coloured by her dislike of the plaintiff and her feelings of allegiance towards her two brothers. There were a number of aspects of her evidence which were unsatisfactory. These included her recollection of the involvement of the second defendant in the kitchen incident and her recollection of the events in the bedroom. In particular, she took every opportunity to attack the plaintiff and lay the blame for the events of that evening upon him.
However, there were some telling aspects of her evidence which threw light upon the events of that evening. Her description of what she saw when she came into the kitchen during the altercation, supports the conclusion that the second defendant was more than just a spectator to a fight between the plaintiff and Henderson. She described the stove incident to which I shall come. It is clear from her description that the second defendant’s involvement was much greater and more active than he would have the court believe. Her description of the incident in the bedroom when the second defendant broke the mirror, demonstrated the mood which the second defendant was in when he entered the bedroom. It supports the plaintiff’s contentions that the second defendant was both violent and aggressive that evening.
I now turn to the events which culminated in the incident in the kitchen.

9th December, 1995

On the morning of the party, the plaintiff was present at the home. He performed a number of tasks including some shopping and preparing the barbecue area. During that time he consumed about six stubbies of beer. Family and friends began to arrive some time after 11 am.
The plaintiff continued drinking and during the course of the day he consumed between eighteen and twenty four stubbies of beer and a quantity of whisky. Later in the evening, when he was admitted to the Modbury Hospital, his blood alcohol reading was .20 grams per millilitre of blood, which indicates that he was substantially affected by alcohol. During the day he had also consumed about two cones of cannabis. I conclude that at the time of the incident in the kitchen, the plaintiff was significantly affected by alcohol and drugs.
The second defendant was also drinking that day. He said that he drank about six stubbies of beer and two glasses of whisky throughout the day and evening. The second defendant said he was not affected by alcohol at the time of the incident. It is clear that a large quantity of alcohol was consumed at the party.

The Laundry Incident

All the defence witnesses spoke of an incident in the laundry during the afternoon. The plaintiff denied that the laundry incident took place.
The evidence was that the stereo system had been set up in the laundry so that those who were outside could hear music. Some time during the afternoon, Ms Macdonald entered the laundry to change the music. She was holding Henderson’s son. The second defendant said he saw the plaintiff follow Ms Macdonald into the laundry, push her and he heard the plaintiff say something to her in a loud and abusive tone of voice.
Henderson said he saw the plaintiff follow Ms Macdonald into the laundry and he followed them in and saw the plaintiff pushing Ms Macdonald and shouting at her. He said he took his son Reece from her.
Ms Macdonald gave evidence that the plaintiff followed her into the laundry and when Henderson opened the door, the plaintiff pushed her and walked away. She said there was nothing unusual about the plaintiff following her around.
Not long after the laundry incident, the second defendant went into the kitchen where the plaintiff was standing near the sink, washing dishes. The second defendant moved towards the plaintiff and swung a punch. Both the plaintiff and second defendant agree that such an incident took place. The plaintiff’s evidence was that it was an unprovoked, mindless act on the part of the second defendant and he could not offer any explanation about why the second defendant had acted in that way.
The second defendant said that he was annoyed at the plaintiff’s conduct towards his sister and he had approached the plaintiff in the kitchen some time after the laundry incident and thrown an open handed punch at him. He said that at the time he told the plaintiff not to hit his sister. The second defendant said he thought that it was this incident which was the subject of the first count of assault to which he pleaded guilty in the Holden Hill Magistrates Court.
I conclude that an incident did occur in the laundry and that there was a subsequent incident in the kitchen. I do not accept the plaintiff’s evidence that the incident in the kitchen was totally unprovoked and that there was no reason for it. By that time in the afternoon, a considerable amount of alcohol had been consumed and I consider the plaintiff was affected by both the alcohol and cannabis that he had consumed. I do not accept his account that the second defendant approached him in the kitchen and threw a punch for no apparent reason. In my view, the second defendant was not justified in his attack on the plaintiff, but I accept that he believed that he had a reason for doing so. I conclude that there was an unpleasant incident in the laundry and that the subsequent incident in the kitchen related to the earlier event.

Kitchen Incident

The incident, the subject of these proceedings, occurred at about 10 pm. It occurred some hours after the laundry incident. The plaintiff’s version of the incident is that he was in the kitchen washing dishes when he was hit on the head from behind. He fell to his knees and he was pushed onto the floor face down. He said he was kicked repeatedly on his body and face by the second defendant and Henderson. He said that every time he tried to get up, he would be kicked in the face. He said that Henderson sat on him and asked the second defendant to get something. The second defendant left and returned to the kitchen with a knife which was given to Henderson. He said that the second defendant kicked him in the face. Henderson threatened to kill him if he moved and was waving the knife in front of his face. He was jabbed in the shoulders with the knife. He said that during the incident he lost consciousness.
The police were called and police and ambulance officers arrived at the house. The plaintiff was taken to the Modbury Hospital. I will deal with the injuries suffered by the plaintiff later in these reasons.
The second defendant and Henderson both denied the plaintiff’s version of events.
The second defendant said that by the time the kitchen incident occurred, the plaintiff was heavily intoxicated. He said that the plaintiff was alone in the kitchen. A number of the guests were in the process of leaving. There was a noise from the kitchen and they observed the plaintiff banging a metal dish on his head and on his knees. The plaintiff, in cross examination, agreed that shortly prior to the kitchen incident, he had been banging utensils because he was annoyed that he was the only person who appeared to be doing any work in the kitchen. The plaintiff denied that he was hitting himself with the baking dish.
According to the second defendant he and Henderson went into the kitchen. They allege that the plaintiff struck the second defendant on the left side of the face with a metal dish and he was about to attack the second defendant again, when a struggle took place. Henderson said that he came to the aid of his brother. Their evidence was that during the struggle, the plaintiff took a knife from the kitchen sink and they then attempted to take the knife from him. Henderson said that he became involved in wrestling with the plaintiff and attempting to retrieve the knife. He said that the second defendant was not involved in the struggle. Both the second defendant and Henderson gave evidence that the plaintiff was throwing beer bottles, chinaware and glassware around the kitchen. Henderson said that he was attempting to restrain the plaintiff until the police arrived. Henderson said the plaintiff lunged at him a number of times and it was he who was calling for the second defendant to telephone the police.
At some stage during the struggle, it seems that the oven gas was turned on and the oven door was damaged. The plaintiff has no recollection about the oven door incident. It was suggested to the second defendant and Henderson that they had the plaintiff pinned across the oven door and were threatening to kill him and to push his head into the oven. Both denied that any such event took place. Henderson accepted that he might have said to the plaintiff that he intended to kill him, but he said that he never intended to carry out the threat and it was made in the heat of the events in the kitchen.
The second defendant said that during the altercation he went into the bedroom to tell his sister to tell the police to hurry up, and whilst he was there he punched the mirror in his sister’s wardrobe. He did this to release his aggression. He said that he was never directly involved in the struggle between Henderson and the plaintiff. When he came back into the kitchen after having been outside, he picked up a child’s tricycle and threw it at the plaintiff who was lying face down. The tricycle landed on the plaintiff’s back, just as the police entered the kitchen. He said that that was the basis of his plea of guilty to the offence of assault occasioning actual bodily harm at the Holden Hill Magistrates Court. According to Henderson, the second defendant was not involved in kicking and punching the plaintiff. Henderson accepted that he might have punched or kicked the plaintiff, but said it was in the course of defending himself from the plaintiff’s attack on him.
Ms Macdonald said that the plaintiff had been aggressive throughout the day. Later that evening she heard noises from the kitchen and saw the plaintiff hitting what appeared to be the kitchen cupboard with an oven pan. She said that Henderson went to the back door and he and the second defendant tried to stop the plaintiff. She said the plaintiff then lunged across the breakfast bar and hit the second defendant on the head with the pan. She went to the bedroom to telephone the police and she heard her brothers telling the plaintiff to stop it and then she heard objects smashing. When she was attempting to ring the police, she realised that the telephone was off the hook in the kitchen and she went in to replace it. When she was in the kitchen, she saw the second defendant and Henderson trying to restrain the plaintiff. She said the plaintiff was throwing objects in the kitchen. She said that she telephoned the police and then returned to the kitchen where she could smell gas. One of her brothers said “the gas is on”. Henderson turned it off. She gave evidence that when she gave a statement to the police, she told them that she had seen the plaintiff’s head or upper body across the oven door and her brothers standing either side of the oven saying, “If you move we’ll kill you”. At the trial she said she saw the plaintiff on the floor with the oven door open. She agreed that the oven door had been damaged. She also gave evidence about the second defendant coming into the bedroom and smashing the bedroom mirror.

The plaintiff sustained injuries. He sustained severe bruising to his face, chest and back. His left eye was badly bruised and swollen and he had cuts to his neck, back, arms and chest. Neither the second defendant nor Henderson could explain the plaintiff’s injuries. The plaintiff’s injuries are consistent with him having been hit and kicked on a number of occasions. They are also consistent with a sharp object having been jabbed into his back.
I do not accept the evidence of Henderson or the second defendant about what occurred in the kitchen. I do not accept the evidence of Ms Macdonald that the plaintiff was the aggressor and that all that Henderson was doing was trying to restrain him. Although I do not accept all of the plaintiff’s evidence, in particular that the attack upon him was for no reason, I accept that he was set upon by Henderson and the second defendant and that they continued their attack upon him for a period after he was rendered defenceless.
The evidence of the injuries sustained by the plaintiff, the lack of any substantial injuries to Henderson and the second defendant, support the conclusion that Henderson and the second defendant assaulted the plaintiff and continued to assault him, by kicking and punching him and threatening him with a knife. I conclude that the two acted jointly and that the injuries sustained by the plaintiff were injuries sustained during the course of a joint assault by Henderson and the second defendant, upon him.
I make the following findings :
1.      That the plaintiff stayed the night before the party against the wishes of Ms Macdonald.
2.      That he stayed during the following day. Throughout that time he drank excessively and by the evening he was severely affected by alcohol and cannabis that he had consumed.
3.      That there was an incident in the laundry. The plaintiff acted in an aggressive manner towards Ms Macdonald.
4.      That the plaintiff was isolated during the day and evening. That he was not welcome by the family and there was a degree of animosity towards him by Ms Macdonald and other members of the family.
5.      That the plaintiff spent a considerable part of the evening on his own, preparing for the barbecue and working in the kitchen and cleaning up.
6.      That the plaintiff became irritated and upset in the kitchen and that he caused a disturbance by banging pots and pans.
7.      As a consequence of him making a noise and causing a disturbance in the kitchen, the second defendant and Henderson went into the kitchen to stop him from acting in that manner.
8.      That as a result of their approach to him, a fight developed in which Henderson and the second defendant assaulted the plaintiff by kicking, punching and threatening him with a knife and threatening to kill him.
9.      As a consequence, the plaintiff suffered injuries.
I am satisfied beyond reasonable doubt that the second defendant and Henderson jointly participated in the assault upon the plaintiff who suffered injuries as a consequence of their conduct.

Contribution

Paragraph 5 of the amended defence alleges that the plaintiff’s conduct contributed directly to the commission of the offence and thereby to any injuries sustained by the plaintiff and as a consequence thereof, pursuant to section 9(a) (sic) of the Act, either the plaintiff is not entitled to any compensation at all or in the alternative, any compensation awarded to the plaintiff should be reduced accordingly.
Section 7(9) of the Act provides :
“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.”
I consider that the plaintiff’s conduct during the day and into the evening was provocative. I conclude that the plaintiff became extremely intoxicated and was aggressive towards Ms Macdonald. I consider his conduct contributed to a general feeling of animosity towards him by the second defendant and Henderson. His conduct in the kitchen immediately prior to the assault caused the second defendant and Henderson to go to the kitchen to stop the plaintiff from acting in an objectionable way. To that extent, I find that the plaintiff indirectly contributed in a minor way to the assault. On the other hand, there was a violent assault upon the plaintiff by the second defendant and Henderson. The attack upon him was disproportionate to any conduct on his part. He was beaten and kicked in a way which went far beyond any reasonable conduct. I do not accept that the second defendant or Henderson acted in self defence. I consider that there should be a small reduction of the plaintiff’s quantum of compensation. I therefore determine that the amount of compensation should be reduced by 10%. See Beaumont v State of South Australia (1990) 156 LSJS 479 at 483; Galvin v Brown and the State of South Australia (1983) 108 LSJS 454; Rickard v Damiani and the State of South Australia (1984) 113 LSJS 89.

Injuries

The plaintiff was taken to the Modbury Hospital just before midnight on the 9th December. He was suffering from severe bruising to his face, chest and back, consistent with having been punched and kicked. His left eye was bruised and swollen. He had injuries which were consistent with having received cuts with a sharp object.
The Modbury Hospital notes confirm that he had sustained abrasions and bruising to the face. He was suffering from a superficial corneal abrasion and he had pain in the rib area. He complained of tenderness in the upper neck and between the shoulder blades. When he was admitted, it was noted that he was intoxicated. On the 11th December, he showered independently and left the hospital, despite advice to rest in bed.
The plaintiff gave evidence that as a result of the assault, he sustained damage to his front teeth. He was seen by Doctor Nicholas, a dental surgeon, on the 18th June 1996. Doctor Nicholas had treated him prior to the assault and had not observed any chipped teeth. On the 18th June 1996, Doctor Nicholas observed some minor damage to the three front teeth. He smoothed the rough edges. The chipping was consistent with teeth having been knocked together as a result of a blow to the chin or mouth. There is no residual damage and the plaintiff has not consulted Doctor Nicholas about the damage since the consultation in 1996.
I am satisfied that as a consequence of the assault, the plaintiff sustained chipping to his teeth. The plaintiff suffered some minor discomfort which was alleviated by smoothing the chipped area. There is no residual injury to the teeth.
The plaintiff gave evidence that as a result of the assault, he suffered from shoulder and neck injuries, which have continued to cause him pain and discomfort. The hospital notes confirm that on examination upon his admission to hospital, he suffered tenderness to the neck and middle back area, between the shoulder blades.
He has consulted his general practitioner, Doctor Vinci, who has prescribed pain killing injections and he has seen a chiropractor, Mr Supple.
Doctor Vinci gave evidence that prior to the incident, he had treated the plaintiff for a back injury sustained in a car accident in 1983. In 1993 and 1994, Doctor Vinci referred the plaintiff to a pain clinic. The plaintiff underwent surgery in 1994.
Although Doctor Vinci had treated the plaintiff for injuries sustained in the 1983 accident, he was first consulted by the plaintiff about the injuries sustained in the assault, on the 11th May 1998, some two and a half years after the event. The plaintiff’s previous attendance at the surgery was in 1994. Doctor Vinci reported on the 22nd October 1999, that the plaintiff continues to have significant symptoms from the injuries.
The plaintiff consulted Mr Supple, a chiropractor, on the 15th December 1997, some two years after the incident. He complained to Mr Supple of pain to his neck and middle back. He has continued to consult Mr Supple whenever he feels the need, but does not appear to have followed Mr Supple’s advice of regularly exercising to improve mobility. Mr Supple expressed the opinion that the plaintiff had suffered permanent injuries to his cervical and mid thoracic spinal regions as a result of the assault. He expressed the opinion that the injuries will require periodic treatment.
I am satisfied that the plaintiff sustained injuries to his neck and upper back as a result of the assault. I am satisfied that these injuries have caused come discomfort to the plaintiff from time to time. The plaintiff did not consult Doctor Vinci until two years had elapsed. In my opinion, Doctor Vinci was unable to make any objective assessment of the neck and shoulder injuries. I accept that the plaintiff consulted Mr Supple about the discomfort he was suffering, but again, Mr Supple saw him some two years after the event, and Mr Supple’s opinion must depend to a major extent, upon the plaintiff’s history as given to him by the plaintiff.
I conclude that there was tenderness and discomfort to the plaintiff’s neck and back immediately after the assault. It has not been established to my satisfaction, on the balance of probabilities, that the neck and back pain, of which the plaintiff now complains, was referrable to the assault.
In the circumstances, I conclude that the plaintiff has not established that the chiropractic services of Mr Supple, were consequent upon the injuries sustained in the assault. I reject the plaintiff’s claim in respect of payment for attendances upon Mr Supple.
The plaintiff claims that he suffered fractured ribs as a result of the assault. Although no fracture to the ribs was noted at the Modbury Hospital, the plaintiff did complain of tenderness and soreness to the rib area. X-rays taken by Doctor Jones and Partners in December 1995, show fractures to the eighth and ninth ribs.
I am satisfied that the fractures were caused as a consequence of the assault. The ribs have healed and there is no residual damage resulting from that injury. I accept that the plaintiff would have suffered considerable discomfort in the rib area for some period after the assault.
In the course of the assault, the plaintiff suffered an injury to his left eye. He was examined and has been treated by Doctor Handley, an ophthalmologist. Doctor Handley gave evidence that the plaintiff has suffered a vitreous floater, which is consistent with trauma to the eye area and consistent with him having been assaulted in the way in which he has described. Vitreous floaters are not uncommon and occur when fibres break off and float in the vitreous jelly, which is part of the structure of the eye. In the case of the plaintiff, the floater was larger than one usually observes and has taken longer than would normally be expected to correct itself. The plaintiff suffers minor inconvenience in that he experiences flashing from time to time. He also suffers from glare problems but Doctor Handley considered that those problems are unrelated to any trauma. Doctor Handley described a condition known as retinal traction which could cause retinal detachment. He was of the opinion that this could occur to the plaintiff but was unlikely. Such an occurrence would require operative intervention. He did not consider that the plaintiff has suffered permanent damage to his eye.
I am satisfied that as a consequence of the assault, the plaintiff has suffered an eye injury which has caused him moderate inconvenience. The damage has not affected his eyesight. The vitreous floater should correct itself without further treatment. There is a possibility of some retinal detachment which would require correction if it occurs. There are no future medical costs resulting from the injury.
The plaintiff seeks compensation for post traumatic stress disorder and inability to sleep. The plaintiff first saw a psychologist, Ms Goldsworthy, in March 1999, some years after the event. She concluded that he has some symptoms of depression and post traumatic stress disorder. The symptoms of post traumatic stress disorder included a fear of death from the assault, a preoccupation with the assault, a fear of being assaulted again and an exaggerated watchfulness, and some instability. These symptoms are continuing. Ms Goldsworthy was of the opinion that the plaintiff would benefit from six to twelve one hour counselling sessions to relieve his symptoms. She described the plaintiff as being preoccupied with the assault. She accepted that earlier intervention would have assisted the plaintiff to cope with his fears resulting from the assault.
I am satisfied that as a consequence of the assault, the plaintiff has suffered minor psychological problems. I conclude that his symptoms of depression are not referrable to the assault as he had exhibited a number of those symptoms prior to the assault, however, the symptoms of post traumatic stress disorder can be attributed to the assault. I consider that if the plaintiff had sought treatment earlier, it may have been possible to alleviate the symptoms and that his failure to consult has attributed to the continuation of the symptoms and contributed to the requirement of approximately twelve, one hourly counselling sessions. I accept that he has suffered some symptoms of a post traumatic stress disorder associated with the incident and that disorder would have needed treatment in any event. I consider that less counselling sessions may have been required if the plaintiff had sought treatment earlier. I allow $750 for future psychological treatment.
In my view, the plaintiff has suffered a number of physical injuries, none of which are of a permanent nature. Further, he has suffered psychological trauma which is relatively minor and should be cured with appropriate treatment.
I assess the plaintiff’s injuries at six on the scale of nought to fifty. I allow future treatment costs of $750. I refuse any claim in relation to the fees of Mr Supple. I allow the other special damages as agreed, totalling $1,042.90. The total award is $7,792.96. I reduce the award by 10% for the plaintiff’s conduct. I am unaware of the second defendant’s means. The plaintiff shall have judgment against the defendants in the sum of $7,013.66.

[2000] SADC 117

29 September 2000