An Application Under the Criminal Injuries Compensation Act 1983 and Con Theo Zervos [1992] ACTSC 52 (22 May 1992)

SUPREME COURT OF THE ACT

AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983 and CON THEO
ZERVOS
No. CIC 5 of 1991

COURT

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

HEARING

CANBERRA
22:5:1992

Counsel for the Applicant: Mr C Whitelaw

Instructing Solcitors: Macphillamy Cummins and Gibson

Counsel for the Respondent: Mr K Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

Compensation be awarded in the sum of $20,256.00.

DECISION

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

2. On 20 June 1990 one Geoffrey Wayne Lovelock was committed by the ACT Magistrates' Court for trial in this Court on a number of charges, including one of attempting to rob the applicant.

3. On 9 August 1991 Lovelock was convicted on two of those charges and was sentenced to two years imprisonment, suspended upon his entering into a recognizance to be of good behaviour for two years. Lovelock is married with five children, and there is no suggestion on the evidence that he has the means available to pay any compensation to the applicant.

4. On the evening of 7 March 1990 the Applicant was working as a catering contractor and chef at the Chisholm Sports Club. Lovelock, who was so drunk he said at his trial that he could not remember what happened that night, first threatened another member of the staff and then found his way to the Club office, where the applicant found him rummaging through the drawers of a desk. There was a brief struggle, in the course of which the applicant hit the offender with his right fist. In that blow he lacerated his right thumb.

5. The next day he consulted Dr Thew who had the thumb x-rayed. There was no fracture. She inserted three sutures.

6. The wound became severely infected. Dr Thew removed the sutures on 12 March and prescribed antibiotics.

7. The infection and painful swelling did not respond. A further x-ray confirmed the possibility of osteomyelitis. She referred the applicant to Dr Morris, orthopaedic specialist, who saw him on 14 March 1990 and immediately admitted him to the Royal Canberra Hospital. There he debrided the osteomyelitis and thoroughly cleansed the wound and dressed it. The applicant spent three days and four nights in hospital.

8. On 28 March 1990 Dr Morris noticed stiffness of the joint. On 27 June 1990 Dr Thew observed that he was not able to flex his right thumb at the interphalangeal joint. On 3 October she noted that the loss of function was marked. Although extension was normal there was no flexion at the joint and no pincer grip. Tenderness persisted and there was loss of sensation on the palmar aspect. X-rays showed narrowing of the joint.

9. Dr Morris reviewed him on 17 October 1990. Flexion was reduced to 10 degrees as against 90 on the opposite side. The applicant was complaining of aching in cold weather and an inability to hold things securely. Of course this interfered with his work. He is right handed. Dr Morris certifies that the disability is permanent.

10. When he eventually returned to work, he was particularly frustrated by his inability to carry out simple manual tasks. He took great pride in his work and his skill in all aspects of the catering trade.

11. He was carrying on business as a contractor to the Club in partnership with his wife. Because of his injury it was necessary for him to employ extra staff. As a result he has incurred economic loss between the date of the incident and the date of hearing.

12. It is also obvious that his future income earning capacity has been adversely affected. It is not necessary for me to analyse the material that is in evidence in any detail in order to demonstrate that a proper compensation for his economic loss alone would exceed the statutory limit. A proper award for his pain and suffering and interference with his amenities would be of the order of $10,000.

13. I therefore award compensation in the sum of $20,000.00 for his injury. The expenses of bringing the application are agreed at $256.00. I award total compensation in the sum of $20,256.00.