Re An Application By Peter James Lawler and Christopher John Lines of An Award Under the Criminal Injuries Compensation Ordinance 1983 Cic [1987] ACTSC 19 (24 March 1987)

SUPREME COURT OF THE ACT

IN THE MATTER of an APPLICATION by PETER JAMES LAWLER and CHRISTOPHER JOHN
LINES for an award under the CRIMINAL INJURIES COMPENSATION ORDINANCE 1983
C.I.C. No. 130 of 1986
C.I.C. No. 131 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 - both claimants assaulted at approximately same time by same assailant - one claimant also possibly assaulted by another assailant in relation to which criminal injuries compensation application pending - Criminal Injuries Compensation Ordinance 1983 (ACT) - no new matter of principle.

HEARING

CANBERRA
24:3:1987

DECISION

These are applications for compensation under the Criminal Injuries Compensation Ordinance by Peter John Lawler and Christopher John Lines, both officers of the Australian Federal Police. The applications arise out of an attack on both those applicants by a man called Derrick Gabriel in Garema Place, Civic, in the early hours of 29 November 1985.

2. Gabriel was convicted by a jury on 26 November 1986 on a count of assault occasioning actual bodily harm and also on a count of stealing from the person of Mr. Lawler. I sentenced Gabriel to a term of imprisonment on those convictions the following day. At the same trial Gabriel was acquitted on a count of assault occasioning actual bodily harm on Mr. Lines. However, as far as these applications are concerned, it is for me to decide the facts and to decide in particular whether the injuries alleged resulted from criminal conduct on the part of the man Gabriel. I have had my memory refreshed this morning by a quick look at the transcript of the evidence and I have read my reasons for sentence insofar as they relate to the offence of assaulting Mr. Lawler. It is quite clearly established on the balance of probabilities that there was criminal conduct on the part of Gabriel in relation to both applicants, although a question does arise as to whether certain of the results of injury claimed by Mr. Lines are recoverable in this application because he was also assaulted by a man called Chalker, and from what I have been told this morning, there are also proceedings against Chalker, which apparently involve an application for compensation there as well. I shall return to that in a moment.

3. I deal first with the application made by Mr. Lawler. Photographs have been tendered and there is abundant medical evidence before me to show that it is true, as Mr. Lawler said in his affidavit, that he was king-hit by Gabriel on the right side of his face at the time of the assault. He lost consciousness for some hours. He was taken to the Royal Canberra Hospital and detained there for about five hours, recovering consciousness only a couple of hours before his discharge. He was found, on examination by a medical officer, to have swelling and minor abrasions over the right cheek bone, a laceration that was healing a few days later on the right side of the upper lip, and tender swelling on the right nostril. He was fit to resume duty in the police force on 6 December 1985. Despite the lack of memory of the incident, there were no signs of symptoms of concussion.

4. I have heard from Mr. Lawler this morning and I am quite convinced that his claim is not exaggerated. He says that he has recovered in the main from his injuries. He had headaches and dizziness, lack of balance for a period of only a few days after the injury but he did have a painful nose for a period - three or four months - until it reached its present condition. That condition is that it is sensitive, and he says quite sensitive on its very tip, and if it is touched it causes him pain. However, there is no medical evidence which I am able to act upon confidently to know how long the condition on the end of the nose will remain and I am not able to conclude, on the balance of probabilities, that it will continue indefinitely.

5. The other remaining effect of the injury which I think is likely to last indefinitely, although there is no direct medical evidence on the point, is what has been described as scarring on the right cheek. Upon my own examination, however, I would not myself describe it as scarring. It is merely a small area - about one centimetre in diameter, of very slight skin de-pigmentation. Mr. Lawler says that when his face gets sunburnt that little area remains white.

6. However, I have to take into account that there is a continuing effect as far as the tip of the nose is concerned, and from time to time it causes pain, although not of extreme nature. I find that as a direct result of his injury he lost time from work which resulted in loss of overtime pay of $339.51, of penalty rates of $211.82, and a loss of sick pay credits of $670.80. There are also out-of-pocket expenses of $45.10 and that gives a total for all those matters of $1,267.23. To that is to be added an amount in the way of general damages, and I fix that at $4,000. I therefore order that there be a total payment of compensation of $5,267.23 in the case of Mr. Lawler.

7. I turn now to the claim brought by Mr. Lines. In the first instance I should say that I am satisfied on the balance of probabilities that the major injury sustained by Mr. Lines was a blow to the right eye which was caused by the man Gabriel and not by the man Chalker, and I state that in express terms so that it can be taken into account in the event of any claim being pressed against Chalker for compensation arising out of the incident on the morning in question.

8. As a direct result of the injury, Mr. Lines suffered from bruising, swelling and bleeding of the right eye causing blurring of the vision. He also had abrasions on his forehead and his left elbow and in that general region. Moreover, his left upper second molar tooth was broken in the same incident and he received dental treatment by way of drilling and filling for that. I find that to have been caused by Gabriel and not Chalker. When reviewed on 13 December 1985, he had virtually recovered, except for persisting eye symptoms and headaches, but he was cleared for return to duty as from 21 January 1986. Dr Wong See, an ophthalmic surgeon, reported on 26 November 1986 that there was subsequent full recovery and vision in the right eye and that he envisaged no permanent visual disability or damage in that area.

9. So I am convinced, on the balance of probabilities, that up until his return to duties, Mr. Lines suffered the symptoms that I have mentioned, but he was virtually free from those symptoms very shortly after his return to duties.

10. The information before me enables me to conclude that he lost six sick leave credits of $1,655.85; loss of penalty rates of $435.75; loss of overtime as $734.67, in addition to which there were out-of-pocket expenses amounting to $295, making a total for all those matters of $3,120.27. To that is to be added an amount in the way of general damages which I fix at $3,000. I therefore order that compensation be paid under the Ordinance in the sum of $6,120.27.