Commonwealth of Australia v Mark Andrew Pillifeant Sca [1990] ACTSC 48 (28 November 1990)

SUPREME COURT OF THE ACT

COMMONWEALTH OF AUSTRALIA v. MARK ANDREW PILLIFEANT
S.C.A. No. 86 of 1988
Criminal Injuries Compensation

COURT

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

CATCHWORDS

Criminal Injuries Compensation - nature of appeal to Supreme Court from determination of Registrar.

Criminal Injuries Compensation - factors relevant to determining whether applicant's behaviour contributed to injury - Criminal Injuries Compensation Ordinance 1983, sub-s.15(1).

Criminal Injuries Compensation - difference between Court refusing to make a determination and Court determining not to award compensation - Criminal Injuries Compensation Ordinance 1983, s.14, sub-s.15(1).

Michael Paul Rusnik (by his next friend Vera Rusnik) v. Commonwealth of Australia (unreported, Supreme Court of the ACT, 12 December 1989)

Application of Stephen Albert Cadman (Supreme Court No. CIC 87 of 1986, 22 February 1989, unreported, per Kelly J.)

HEARING

CANBERRA
28:11:1990

Counsel for the appellant: Mr P. Walker

Solicitors for the appellant: ACT Government Law Office

Counsel for the respondent: Mr John Purnell

Solicitors for the respondent: Crossin Power Haslem

ORDER

The appeal by the Commonwealth be dismissed.

The award and orders of the Registrar be set aside and in lieu thereof, pursuant to sub-s.5(1) of the Criminal Injuries Compensation Ordinance, Mr Pillifeant be awarded compensation in the sum of $20,000.00.

Costs of the appeal, including the original appeal and this remitted appeal, be paid by the appellant, the Commonwealth of Australia.

DECISION

On 18 December 1986 Mark Andrew Pillifeant indisputably suffered injury when attacked by an unknown assailant at the Fyshwick Tavern. What the assailant did indisputably constituted criminal conduct under s.2 of the then Criminal Injuries Compensation Ordinance 1983 (the Ordinance). He made a claim to the Registrar under s.11(3) of the Ordinance. The Commonwealth exercised its right to appear to oppose the application. On 25 November 1988 the Registrar awarded Mr Pillifeant $19,397.46. The Commonwealth exercised its right to appeal against the award. The appeal was heard by me. I saw nothing wrong with the Registrar's award and on 8 September 1989 I dismissed the appeal with costs. The Commonwealth once again exercised its right to appeal. On 4 June 1990 the Federal Court upheld the appeal and remitted the appeal from the Registrar to the Supreme Court. Once again the Commonwealth exercised its right to appear and oppose the award of compensation. Once again I deliver a decision on that appeal from the Registrar to this Court.

2. The errors which result in the appeal being remitted back to this Court include the following:
1. Holding that there is no power in this Court to receive

fresh evidence on an appeal from the Registrar under s.28
of the Ordinance.
2. Holding that, if there is such a power, it should not
have been exercised in the absence of knowing
what the fresh evidence was or why it was not called
before the Registrar.
3. Holding that the Registrar was in a superior position to
decide questions of fact to which the evidence of Mr
Pillifeant related.
4. Holding that the question of whether the conduct of Mr
Pillifeant should disentitle him to compensation, or
result in a reduction of the compensation payable to him,
were matters of a discretionary nature.

3. The Federal Court also held that this Court is not obliged to hear an appeal from the Registrar under the Criminal Injuries Compensation Ordinance as an appeal de novo, but that in some circumstances a rehearing de novo will be the only satisfactory course for the Supreme Court to follow. Further, the Federal Court considered that it was not correct to categorise appeals as necessarily falling into one of three categories: appeals in the strict sense, appeals by way of rehearing and appeals de novo.

4. When the appeal was listed before me after its remittal from the Federal Court, both parties (I treat the Commonwealth as a party) declined to place any submission before me on whether I should hear the remitted appeal as a rehearing de novo or simply as a rehearing. The parties agreed between them that, in addition to having before me the transcript of the evidence before the Registrar and the documentary exhibits before the Registrar, I should hear oral evidence from Mr Pillifeant and oral evidence from Dr Keiller, who treated Mr Pillifeant. Counsel for Mr Pillifeant in fact undertook the conduct of the hearing before me on 1 November 1990 almost as if it were a rehearing de novo. However, on reflection I do not think that it was a rehearing de novo. Bearing in mind that the Federal Court on page 26 of its reasons for judgment stated that there were certain matters which I should have determined for myself on the primary facts as accepted by the Registrar, I think that, in the end, before I may uphold the appeal, I have to be satisfied that the Registrar's decision was wrong. However, before that stage is reached, I have to decide other matters for myself on all the material before me. For once fresh evidence is allowed at an appeal level the "factual matrix" of the decision appealed against ceases to be determinative.

5. The Registrar found Mr Pillifeant an acceptable witness, and so did I. There was no conflict of any significance in the evidence he gave before me and the evidence he gave before the Registrar. I accept and summarise that evidence. Mr Pillifeant, who wears part of his hair in a plait, went to the Fyshwick Tavern at about 7.30 p.m. on the day in question. He had been drinking earlier in the day and was somewhat intoxicated. He joined some friends at a table. He went to the bar and collected some drinks. He was about to go back to his table. Without warning he felt two blows on the back of his head. He fell to the ground. Nearby he saw a man as he got up. He inferred that that was the man who hit him. He did not know why the man hit him. The man began to abuse him. Mr Pillifeant did not respond and continued drinking with his colleagues. About thirty or forty minutes later he was seized without warning by his hair and was dragged out of the cubicle. He was hit on the side of the head. He fell down. Again there was no reason for the attack. Mr Pillifeant felt threatened, alarmed and confused. He got up and went to leave the tavern. There was only one door for entrance and exit. He did not see his assailant as he was getting up. However, he saw the man who had struck him previously leaving by the door as he himself was proceeding towards the door. He concluded, in my view correctly, that this was the man who had attacked him on both prior occasions. He followed the other man out of the door. When he arrived outside the other man made some verbal threat to him and struck him. There was an exchange of blows. The other man grabbed him and held him in a bear hug, bit him on the chest and on the left bicep. Mr Pillifeant broke the hold and hit the other man a couple of times. He said in his evidence before me that he did so in self defence. The other man then grabbed his hand and bit the top of his thumb. Mr Pillifeant fell. His assailant and some other men began to kick him in the head and in the back. One man jumped on his leg and broke his ankle. The original assailant disappeared. Mr Pillifeant's friends rendered assistance. Two police officers arrived. Mr Pillifeant did not speak to them but he heard one or other of them say, "There's nothing we can do about it, because the other bloke isn't here". Mr Pillifeant was then taken to Woden Valley Hospital where he received treatment by way of suturing of the lacerations to his eyebrow area. He was discharged the same night.

6. Mr Pillifeant did not take any steps to try to identify his assailant after the night in question. His injuries resulted in him being off work for some eight months. It was not until seven or eight months after the incident that he spoke to a friend, who was a member of the police force, with a view to seeing whether he should do anything further about what happened. His friend told him there was no point in trying to ascertain the identity of the assailant. He subsequently spoke to someone at the Legal Aid Office and then instructed solicitors to seek criminal injury compensation. His application was filed on 15 December 1987. There is no evidence that his solicitors made any efforts to identify the assailant nor of what efforts might have been made.

7. Sub-s.15(1) of the Ordinance provides as follows:

"15(1) In determining -
(a) whether or not to make an order awarding
compensation; or
(b) the amount of compensation to be awarded,
the court shall have regard to any behaviour,
condition, attitude or disposition of the applicant
or the person who sustained the relevant prescribed
injury or prescribed property damage which directly
or indirectly contributed to that injury or damage,
as the case may be."

8. The Federal Court said that it is for me to decide whether on the primary facts the respondent's behaviour, condition, attitude or disposition in the tavern contributed to his injuries either directly or indirectly.

9. I have not been assisted or impeded by reference to any judicial authority on the meaning of the word "contributed". On reflection, I do not think that the law relating to contributory negligence or to contribution among tortfeasors has any relevance. I should think that the word "contributed" in sub-s.15(1) involves more than a chronological connection. In a sense the mere presence of Mr Pillifeant at the tavern contributed directly or indirectly to his injury. If he had not gone there he would not have been injured. But I think that there has to be some quality about the behaviour that is relevant. Behaviour which contributes simply in the sense of providing a step in the chronological sequence leading to the injury is, I think, insufficient.

10. However, it is not only "behaviour" to which regard must be had (the word "conduct" is not used in sub-s.15(1)). The Court must have regard also to "condition, attitude or disposition". What about Mr Pillifeant's condition? For a start, he was intoxicated. But Mr Pillifeant's intoxication was not, I think, a condition that contributed to his injury. He was not in a drunken stupor. He was not acting in a drunken manner. He did not drunkenly provoke the other man.

11. Next, I deal with attitude and disposition. There is nothing about his attitude or disposition which I see as contributing in any relevant way to his injury. Counsel for the Commonwealth submitted that I should find on the facts that Mr Pillifeant willingly joined in a fight after he followed his assailant out of the door, because it is inherently improbable that someone in Mr Pillifeant's position would have gone out the door after the other man if he had not been wanting to engage in a fight. Views may differ as to the inherent probabilities, but I am quite unconvinced that Mr Pillifeant's attitude was such that he wanted to engage in a fight or made it appear that he wanted to engage in a fight. He was under the effect of liquor and the several blows he had already received to the head. One may wonder why he went out of the door when the other man had gone out ahead of him and perhaps why he did not wait until ascertaining that the coast was clear before he went out of the door. On the other hand he said in his evidence that he was confused, which is hardly surprising, and angry, which is understandable. Confusion and anger may be conditions attached to human behaviour and may manifest themselves in attitudes. However, I do not see sufficient connexion between Mr Pillifeant's confusion and anger and the assaults on him to regard those features as contributing to his injury.

12. The only evidence of Mr Pillifeant's disposition is his own statement that he is not a violent person. Self serving as it is, it can hardly be relied upon to contend that Mr Pillifeant's disposition contributed to his injury.

13. I mention self defence. That Mr Pillifeant delivered blows himself to his assailant he admits, but claims he acted in self defence. As a matter of law, self defence is not necessarily an issue in the case, although if a person claiming compensation was involved in a fight in which he acted only in self defence, that might well be a strong factor standing in the way of refusing or reducing an award of compensation in his favour. But even if a person is technically outside the scope of self defence, that does not necessarily provide a bar to an award of compensation or necessarily result in a reduced award. Ideally, Mr Pillifeant should have walked away from his assailant, assuming that the assailant had let him do so. The fact is that he was in a bear hug at a critical time during the incident and two of the blows delivered by Mr Pillifeant appear to be immediately after he broke free from the restraint. They were more likely to be in retaliation than self defence, but if the behaviour of Mr Pillifeant is looked at as a whole, as I think it should, it is quite artificial to break it up into constituent sequences in which his individual acts may or may not have had some bearing on what followed each sequence. I would add that there is nothing on the facts of the present case which is capable of establishing provocation on the part of Mr Pillifeant.

14. In the opinion of the Federal Court it is an established fact that some of Mr Pillifeant's serious injuries were caused by assaults committed by persons other than the original assailant. It is necessary to have regard to that established fact. The attack on Mr Pillifeant by these other persons appears to have occurred only after Mr Pillifeant struck his original assailant. In that regard it may be said that his behaviour contributed to the attack on him by the other persons. If he was not acting in self defence, it may be said that these other persons were entitled to come to the rescue of their colleague. However, what they did was out of all proportion to what Mr Pillifeant had done. Furthermore, if what he did was not in self defence, it was so close to self defence that, in my view, they were not justified in taking any action at all to interfere physically to restrain Mr Pillifeant, let alone kick him in the head and break his leg. Their conduct was criminal. However, there was no submission that it justified a separate award of compensation from that to be awarded in respect of the behaviour of the individual assailant. Sub-s.7(2) appears to stand in the way of a double or separate award in any event.

15. The next question to be decided in accordance with the decision of the Federal Court is whether accepting what was said by Mr Pillifeant as to why he had taken no steps to identify his assailants and to seek to enforce his rights against them, Mr Pillifeant's conduct was reasonable. This question arises under s.14 of the Ordinance which provides as follows:

"14. The court may refuse to determine an
application if it is satisfied that the applicant
has not taken such steps to enforce rights or pursue
remedies in respect of the relevant prescribed
injury or prescribed property damage as the court
considers it reasonable for him to have taken."

16. I have previously expressed the view that s.14 does not authorise the Court to dismiss an application for compensation on the merits as the Court does when it determines not to make an order awarding compensation under sub-s.15(1): Michael Paul Rusnik (by his next friend Vera Rusnik) v. Commonwealth of Australia (unreported, Supreme Court of the ACT, 12 December 1989). The difference between the negative decision that may be made under s.14 and the negative decision that may be made under sub-s.15(1) is that under the former the Court refrains from making a determination at all whereas in the latter the Court makes a determination, that is a determination not to make an order awarding compensation. The view which I have previously expressed and to which I venture to adhere, it not being contrary to any authority of which I am aware, is that a refusal under s.14 to determine an application does not operate as a res judicata. An applicant can always go away and return to take steps or further steps to enforce rights or pursue remedies and return to the Court to seek an award of compensation despite a prior refusal under s.14 to determine an application. In contrast, a determination not to make an order awarding compensation under s.15(1) does operate as a res judicata, and once the Court has made such a determination, it is binding, and the applicant is not free to return to the Court and renew the application (except in the limited circumstances in which he or she may apply for variation under s.18).

17. To suggest now, nearly three years after his injury, that the Court should in effect defer ruling on Mr Pillifeant's claim for compenstion until he goes away to take steps to identify his assailant, is, to use an understatement, not realistic. Of course there were reasonable steps that Mr Pillifeant could have taken to identify the man. He could have spoken to the police on the night in question and described him. He could have instructed solicitors earlier and got them to initiate inquiries. He could have gone back to the tavern on a subsequent occasion to see if the man was there. But it was not unreasonable to fail to take any of those steps and I do not find it so.

18. The Commonwealth relied heavily on a report from Dr Keiller dated 10 March 1988 in which the doctor records that Mr. Pillifeant told him that after the second attack "his assailant disappeared and he chased him". It was submitted that this contradicts the evidence of Mr Pillifeant that he simply followed the other man out the door without intending to engage in a fight. In evidence Mr Pillifeant denied using the word "chase" when giving his account to the doctor. Dr Keiller in evidence indicated that the report is not necessarily a verbatim transcript and rather reflects his own interpretation of what he was told. I am not convinced that Mr Pillifeant used the words which the Commonwealth relies on.

19. I turn to the quantum of compensation. I have not the slightest doubt that the Registrar's assessment was a proper one, bearing in mind that she thought it appropriate to reduce the end sum by 20 percent because of what she saw as Mr Pillifeant's contribution to his injury. However, because this is a rehearing partly on new material, I have to make my own decision and I find that Mr Pillifeant did not contribute to his injury.

20. Mr Pillifeant suffered serious injury including a fracture of the left ankle (from which he had almost recovered by 10 March 1988 when seen by Dr Keiller), moderate scarring at the site of the bite wounds on the right chest, right upper eyelid and eyebrow and on the pulp of the left thumb and injury to the lower spine. Dr Keiller thought that the latter was the most serious aspect of his injuries and was responsible for keeping him from his employment as a driver for a period of about eight months. His left ankle was in a plaster cast for several weeks at least.

21. The total amount awarded by the Registrar for reimbursement of lost sick leave credits and other pecuniary loss was $8,615.06 and for out-of-pocket expenses $1,182.40 making a total of $9,797.46. These items are unchallenged. The Registrar assessed pain and suffering at $12,000 and that also is unchallenged and, in my view, is certainly not less than an appropriate sum. I note that the Registrar reduced the award for pain and suffering because of what she considered to be the contributory conduct of Mr Pillifeant. However, if there is to be a reduction for that reason, it should be from the total award and not from one component of it: see Application of Stephen Albert Cadman (Supreme Court No. CIC 87 of 1986, 22 February 1989, unreported, per Kelly J.). In any event, I am of the view that the award should not be reduced for any contribution by Mr Pillifeant. The maximum that may be awarded is a total of $20,000. I think it appropriate to award $8,615.06 for pecuniary loss, $1,182.40 for expenses and $10,202.54 for pain and suffering.

22. This was an appeal by the Commonwealth and not by Mr Pillifeant. There was no cross-appeal, assuming there is right to lodge a cross-appeal. Alternatively, Mr Pillifeant could have appealed against the inadequacy of the compensation and sought to have the two appeals heard together. How pointless that would have been. He could not have had the compensation increased by more than $602.54 to bring it up to the maximum of $20,000 and the increased costs might have exceeded the extra compensation. This Court has full power to set aside and vary the Registrar's award. The Commonwealth has never been in any doubt about the nature of the case. It can be no injustice to the Commonwealth to award the maximum compensation in view of my findings. The appeal by the Commonwealth is dismissed. The award and orders of the Registrar are set aside and in lieu thereof I order pursuant to sub-s.5(1) of the Ordinance that Mr Pillifeant be awarded compensation in the sum of $20,000.

23. I shall hear any application for expenses under s.5(4) and when that is done I hope that will be an end of what has been a costly exercise. Legal practitioners acting for applicants for criminal compensation in circumstances where there has been no identification of the person whose conduct is complained of and where no steps have been taken to identify that person should realise that such claims might be regarded with scepticism in the absence of evidence from those persons who witnessed the conduct. If the present appellant had called evidence before the Registrar from one or more of the colleagues who were with him on the night in question, this case might have finished long ago and at a fraction of the cost.