Application Under the Criminal Injuries Compensation Act 1983 and David Michael Skinner [1992] ACTSC 35 (27 April 1992)

SUPREME COURT OF THE ACT

APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983 and DAVID
MICHAEL SKINNER
No. CIC 27 of 1991
Application

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan J.(1)

CATCHWORDS

Application - Criminal Injuries Compensation - Assault - Fractured Femur.

Criminal Injuries Compensation Act 1983

HEARING

CANBERRA
27:4:1992

ORDER

Compensation be awarded to the applicant in the sum of $20,000.

DECISION

This is an application for compensation under the Criminal Injuries Compensation Act 1983.

2. On 24 February 1992 an information was laid in this Court alleging that on 5 March 1990 at Canberra, one Jakob Jakobus Terhaar assaulted the applicant thereby occasioning to him actual bodily harm. The accused pleaded guilty and was sentenced to imprisonment for a term of 12 months, to be released after serving six months on entering into a bond.

3. The applicant was employed as a disc jockey in a night club. While he was at work Terhaar assaulted him and dragged him from the stand where he was working. He fell heavily onto his left leg and side and felt immediate pain in his left thigh. He could not walk.

4. He was taken to Royal Canberra Hospital where clinical examination revealed a spiral fracture of the left femur. He came under the care of Dr Geoffrey Stubbs, who two days later, under general anaesthetic, inserted a closed intermedullary nail with distal and proximal locking. He was in hospital for about two and a half weeks and was discharged care of the Registrar's Fracture Clinic. He spent two months in a wheelchair. He was on crutches in all, for about 12 months. The fracture was much slower to unite than was normal, and he was readmitted to the hospital on 13 October 1990 for the removal of one of the locking screws in order to stimulate union of the fracture.

5. He spent two days in hospital on that occasion.

6. Eventually the fracture united sufficiently and on 4 July 1991 the other locking screws were removed.

7. Through no fault of the applicant personally the medical evidence in this application is meagre in the extreme. Nevertheless it is clear that the applicant still walks with a limp and feels a limitation on the extent to which he can use his leg. There is still a continual ache and he is often unable to sleep. He has been restricted in his ability to ride a horse and engage in other sporting activities.

8. At the time of the assault he did not have regular employer. He was in fact trying out for the position of disc jockey at the club where he was assaulted. It is nevertheless obvious also that for more than one year he has been incapacitated from work. There is nothing on the evidence to suggest that even it the assault had not taken place he would have been unemployed for the whole of that period. A proper assessment of compensation for his loss of income earning capacity for the past must exceed $10,000.

9. In my opinion a proper award for his pain and suffering would also be at least $10,000, so that in the result the award is restricted to the sum of $20,000, which was the limit at the time this application was brought.

10. His medical expenses total $5,544.50, and it has been submitted on behalf of the Territory that this sum should not be included in the award, because it is recoverable from Medicare.

11. In the light of my previous finding I do not find it necessary to decide this question, and I have not taken that amount into account in arriving at my award.

12. There was no claim for expenses of bringing the application.

13. I award compensation in the sum of $20,000.