Re An Application By Sylvia Baker of An Award Under the Criminal Injuries Compensation Ordinance 1983 Cic [1987] ACTSC 18 (24 March 1987)

SUPREME COURT OF THE ACT

IN THE MATTER of an APPLICATION by SYLVIA BAKER for an award under the
CRIMINAL INJURIES COMPENSATION ORDINANCE 1983
C.I.C. No. 61 of 1986
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Criminal Law - Criminal injuries compensation - assault - laceration caused by knife and bruising - aggravation of pre-existing degenerative condition in lumbar spine - Criminal Injuries Compensation Ordinance 1983 (ACT) - no new matter of principle.

HEARING

CANBERRA
24:3:1987

DECISION

The applicant in this matter is Miss Sylvia Baker, who was injured on 19 June 1985 when she was criminally assaulted by a man who was subsequently convicted of assault occasioning actual bodily harm. She is 58 years of age. She was working as a tea lady at that stage. Since then, however, she has been put on light duties. She claims this is as a result of her injuries. She carries out work as, what is called, escort officer in the Department of Defence. She apparently can carry out that work without a great amount of difficulty, although she says she still continues to have pain in her back and, as I understand it, headaches. But there is no question that within reason the work is within her capability.

2. The injuries she sustained at the time were, in the main, as they were observed then, numerous lacerations caused by a knife, and some bruising. The lacerations were none of them particularly serious, although there were a lot of them. They were, in the main, one to two centimetres in length, and the most serious appeared to be on the right hand and thereabouts, but there was also a laceration on the left side of the scalp. During the altercation with the man who assaulted her, she fell to the floor and hit her head, and as it transpires - and I so find - she also injured her back to the extent that she aggravated a pre-existing degenerative condition in her lumbar spine.

3. She was treated at the Royal Canberra Hospital immediately after the injury. She remained there for some five days. She lost an amount of time from work. She did not return until 29 August 1985. She has lost some time from work here and there since that date, and there was a total loss in excess of $2,000, part of which, however, was recouped by way of sick pay. There is what has been called a shortfall of some $880 between the actual loss and the sick pay receipt. In addition, however, she has lost, according to what has been submitted on her behalf, the entitlement to sick pay. Once she has drawn the sick pay, of course, she cannot draw it again. So it would appear that that loss would be in the region of some $1,200.

4. The out-of-pocket expenses relating to hospital and medical treatment and pharmaceutical items amounts to $2,426.26.

5. The applicant complains that since the injury she has been very nervous and worried. She is worried, in particular, about being assaulted again by the same man, whose mother lives in the same block of flats as she does, and where the assault occurred. She has applied to the Department of Territories, her landlord, to be given accommodation elsewhere. She was offered something in a block of flats in another area of Canberra, but not very far away, and she would have been prepared to accept that. However, once the landlord discovered that the offender lives very close to that block of flats, she was not allowed to avail herself of that opportunity. And so she continues to be nervous about his possible return to where she lives.

6. In addition, she says - and I accept what she says about this - that she is very nervous in a general way; that she does not trust anybody; that she does not like to go out. For instance, she did not go to the Canberra Week festivities this year, although she used to go prior to her injury, and this is because she does not trust people and she is suspicious of them.

7. She also gave some evidence about no longer attending the Queanbeyan Leagues Club, but I found this less persuasive, and I would think that once this case is behind her and she eventually gets some other accommodation, she might even be emboldened to take the bus again over to Queanbeyan, especially during the hours of daylight saving, so that she can get back before dark.

8. With the advice of her doctor, she is reducing her medication, but she says that she still takes Voltaren three times a day for her back pain.

9. Her age is such that she could, if she wished, retire at the age of 60, which is not very far off. She expressed the intention that she would have worked on till the age of 65 if she had not had this injury. In my view, the degenerative nature of her back condition was such that it could always have been a possible cause of her incapacity some time before the age of 65 and, indeed, before the age of 60 if she had not suffered the subject injury. But there is no question that the ordinary principles of liability for damages in tort mean that the aggravation of the existing condition means that she is entitled to compensation for that aggravation, and I am quite convinced that it still exists. On the other hand, I am not convinced that she has shown that it would inevitably have continued without being overtaken by a natural degeneration, or that natural degeneration would have intervened at some time in the future in any event. I think I have covered most of the essential details of the claim. Indeed, it is not necessary to go into anything further, in my view, because the out-of-pocket expenses and the shortfall in the sickness pay benefits amount to some $3,307. In my view she should be given something for the loss of sick leave credits, although this is very difficult to quantify, but it has to be in the region of $1,000, and that gives a sum already of over $4,000. Her general damages, in my view, entitled her, if she brought an action in tort, to something definitely in excess of $6,000. My hands are tied in that I cannot award more than $10,000.

MR. PURNELL: $20,000 is the limit, your Honour.

HIS HONOUR: $20,000; well, I had better be more careful.

10. Well, for pain and suffering and general damages I would award $7,000. And for the loss of sick pay benefits, $1,000. And that makes a total, in all, as I make it, of out-of-pockets and loss of wages, $3,307; loss of sick pay entitlements $1,000; compensation in the nature of general damages $7,000; total what, $11,307?

MR. PURNELL: Yes, your Honour.

HIS HONOUR: Do I have to apportion that in any particular way?

MR. PURNELL: No, your Honour.

MR. EDWARDS: No, your Honour.

HIS HONOUR: All right then. Compensation is awarded at $11,307.

MR. PURNELL: May it please the Court.