Criminal Injuries Compensation Ordinance 1983 and An Application By Nicholas Peter Grady Cic [1987] ACTSC 87 (18 December 1987)

SUPREME COURT OF THE ACT

CRIMINAL INJURIES COMPENSATION ORDINANCE 1983 and an APPLICATION BY NICHOLAS
PETER GRADY
C.I.C. No. 59 of 1986
Criminal Law

COURT

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

CATCHWORDS

Criminal Law - criminal injuries compensation - applicant stabbed several times - no ongoing physical symptoms or disability - claim based on psychological consequences of injury - threats against applicant by offender and his associates - no causative link with injury - whether reasonable to mitigate damage by moving interstate - offender ordered to pay compensation by instalments by sentencing court - default in instalment payments - effect on compensation sum - offender not yet dealt with for default - interim award made.

HEARING

CANBERRA
18:12:1987

DECISION

This is an application by Nicholas Peter Grady for an award of compensation under the Criminal Injuries Compensation Ordinance 1983. The application arises out of an assault upon the applicant on 1 June 1985 which resulted in the conviction of Shaun Michael Cummins in the Supreme Court of the Australian Capital Territory on 29 October 1986. He was convicted of malicious wounding.

2. The circumstances of the criminal conduct of Mr. Cummins were as follows. After a night of heavy drinking, the offender and the applicant got into an argument outside a house. A workmate separated them. The offender went into the kitchen and got a knife and inflicted a number of wounds on the applicant, three of which were serious. There were two deep stab wounds involving the lateral left chest, front and back and a smaller stab wound on the back of the left side of the chest. There was also a deep stab wound of the left thigh and two superficial stab wounds to the left arm. The stab wound to the back of the chest required laparotomy. The other serious wounds were treated and the superficial wounds were sutured. The treating doctor, Dr Dyason, said in a report that the scars will not affect employment but the doctor could express no opinion on the likely effect on the applicant's social life. Otherwise, Dr Dyason thought that there would be no significant disability as a result of the wounds.

3. The applicant was discharged from hospital on 6 June 1985. He lost a total of about two months from his employment.

4. The applicant does not claim any ongoing physical symptoms or disability, but he makes a claim based on psychological consequences of injury. He has seen Dr William Knox, a consultant psychiatrist, for the purpose of his application and that doctor has furnished a report. Dr Knox has come to the conclusion, with which I would agree, that the applicant is free of any significant personality disturbance. However, there have been stresses in his recent life and he has reacted to them to the extent that he wishes to sell his house at Queanbeyan and take his family to Melbourne and resume his life there. He is engaged in the building industry as a roof fixer, at the present time working at the new Parliament House site. He claims that the workers whom he supervises taunt him over the stabbing incident. Sometimes they threaten to stab him. The applicant is also unhappy and angry at what he regards as the lenient sentence received by the offender whom the applicant thinks should have been sent to prison. The applicant feels that he is being excessively aggressive towards other people, particularly towards employees on the work site. He also alleges that the offender and his associates have made threats, which are apparently connected with this application for compensation or possibly with an action for damages which has been commenced against the offender.

5. Dr Knox expresses the view that the applicant's disturbed behaviour flows directly from the assault, with some contributing elements arising out of further provocative action taken by people at the work site and the behaviour of the offender and his associates. Dr Knox feels that it is advisable for the applicant to leave the area and go and live in Melbourne.

6. I think the question of causation has to be approached in a common sense way. Obviously, the workers would not taunt the applicant about the stabbing if he had not been stabbed nor would the offender and his associates threaten the applicant if the offence had not taken place. However, the taunting and the threats are not, in my view, in any real sense causally connected with the injury which resulted from the offender's criminal conduct. I can appreciate that the applicant's feelings were hurt at the time of the injury and that he has continued to feel a sense of grievance from the events surrounding the injury itself, but I do not think that the substantial aggravation of the sense of grievance caused by other persons is an element which would be reflected in an action for damages and should not be reflected in the award of compensation.

7. In any event, I am quite unconvinced by the material before me, including the evidence given by the applicant whom I observed closely in the witness box, that his psychological difficulties are such that it is reasonable for him to mitigate his damage by moving with his de facto wife and three children to Melbourne. Accordingly, I do not propose to include in the award of compensation any sum for the expense of moving or of any capital loss on the sale of his house at Queanbeyan or any sum involved in the purchase of a more expensive house in Melbourne as was claimed.

8. By virtue of s.15(2)(b) I am required to have regard to "any damages recovered by or for the benefit of the applicant in respect of the relevant prescribed injury or prescribed property damage or that would, in the opinion of the Court, be likely to be so recovered if proceedings for the recovery of those damages were instituted in a court of competent jurisdiction".

9. I am also required to take into account under s.15(2)(c) "any compensation paid or payable to or for the benefit of the applicant in respect of the relevant prescribed injury or prescribed property damage under another law of the Territory or under a law of the Commonwealth, a State or another Territory or that would, in the opinion of the Court, be likely to be so payable if appropriate action were taken".

10. The applicant has commenced proceedings in this Court by way of an action at common law for damages for assault against the offender. The present position is, however, that no defence has been filed and the applicant has not incurred further expense by signing judgment and proceeding to have the damages assessed because of the information furnished by the solicitors for the offender who say that he is experiencing financial difficulties regarding his income and assets. It appears that the costs of the trial adversely affected the financial position of the offender. In the circumstances, I am not satisfied that the applicant is likely to recover damages from the offender.

11. The further question arises as to how the award of compensation in the present proceedings is affected by the sentence imposed on the offender. That sentence was one of two years imprisonment suspended forthwith upon the offender entering into a recognizance a condition of which was that he pay compensation in the sum of $1,800 payable by instalments of $150 a month each to be paid to the Registrar and the first of such payments to be on 1 December 1986. At the time of the hearing of this application only two such instalments had been paid, leaving a further $1,500 to be paid. I was informed that consideration was being given by the authorities to applying to have the offender called up for breach of his recognizance.

12. It is impossible at this stage to make any firm decision as to whether the offender is likely to pay any further amounts of compensation pursuant to the condition of the recognizance. Because of the substantial amount outstanding, if I omitted that from the present award under the Criminal Injuries Compensation Ordinance, it may do an injustice to the applicant if the offender in fact makes no further payments. On the other hand, if I included the outstanding $1,500 in the amount awarded under the Ordinance, any further payment by the offender would be a windfall to the applicant. I have considered whether or not I can at this stage vary the recognizance so that any further payment should be treated as a penalty and not as compensation. I have decided that I do not have the power to make any variation order until the offender is called up for breach. In those circumstances I think the appropriate course to take is to make an interim award under s.16 of the Ordinance and direct that this matter be relisted if and when the offender is called up for breach of the recognizance. If the offender is not called up for breach within the next six months, I direct that this application be relisted in any event, the Registrar to give notice by post to the applicant's solicitor. It will not be necessary for the applicant or his solicitor to attend at the relisted hearing unless they wish to do so. I anticipate that unless the outstanding $1,500 has been paid by the time of the relisted hearing, or unless a satisfactory arrangement has been made for payment, then I will make a final or further interim award whereby the applicant will have the benefit of an additional $1,500 over and above this interim award.

13. I have had regard to all the other matters referred to in s.15. In particular, I note that during the nine weeks or so that the applicant was away from work as a result of his injuries, one week's sick leave was taken. In my view he should be reimbursed by way of compensation despite the payment by his employer during the week of sick leave, because he has obviously lost the right to that week's sick leave in the future. The loss of wages is based on a weekly net sum of $471.83 and amounts to $3,719.04. The general damages component of the award I assess at $8,000.00. There is also an amount of $123.00 being the applicant's loss of one day's pay in attending Court for the hearing of the application and the sum of $320.00 being the cost of obtaining the report from Dr Knox. The Commonwealth does not oppose those expenses being awarded pursuant to s.6(1)(a). The total amount of compensation which I would have awarded would then be $12,162.04 and I make an interim award of compensation by deducting $1,500 therefrom and the result is an interim award of $10,662.04.