Application Under the Criminal Injuries Compensation Act 1983 and Dean Linden Foster [1993] ACTSC 10 (18 February 1993)

SUPREME COURT OF THE ACT

APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983 and DEAN LINDEN
FOSTER
No. CIC 89 of 1991
Number of pages - 4

COURT

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

HEARING

CANBERRA, 26 November 1992
18:2:1993

Counsel for the Plaintiff: R. P. Faulks

Instructing Solicitors: Snedden Hall and Gallop

Counsel for Defendant: K. J. Holmes

Instructing Solicitors: Australian Government Solicitor

ORDER

1. Compensation be awarded to the applicant in the sum of $10,203.

DECISION

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

2. On 14 February 1992 an indictment was presented in this Court against one Derrick James Gabriel, alleging that on 11 November 1990 at Canberra he did recklessly inflect grievous bodily harm on the applicant, and that he assaulted the applicant and thereby occasioned to him actual bodily harm. The jury returned a verdict of not guilty on all counts. The principal issue at the trial was the identification of the accused as the person who attacked the applicant.

3. The applicant is a butcher by trade, aged 23. On the evening of Saturday 10 November 1990 he went with friends to a football club presentation night, where he had a meal and a fair amount of alcoholic drink.

4. At the end of that function, early on Sunday morning, the ladies in the party went home, while he and his friend Darren went, first, to the City Club, and then to Pandoras to watch the football on television.

5. As he was buying a drink at the bar he had an altercation with another patron. He then joined his friend.

6. A short time later they decided to leave. He followed Darren out the front entrance of the club. The next thing he remembers is waking in hospital.

7. Mr Stuart, a fire brigade officer, was waiting in a brigade vehicle outside Pandoras as the applicant and his friend came out. He saw another man come running out of the club and hit the applicant from behind, knocking him to the ground. He then chased the friend, swinging punches at him, before running away. Mr Stuart went to the applicant's aid. He was unconscious and bleeding from the mouth. He ordered an ambulance by radio.

8. A barman at the club saw a man following the applicant out of the club with a glass in his hand. He saw the applicant fall to the ground. The glass that he had been holding was smashed on the ground nearby.

9. On admission to hospital the applicant is recorded as being alert and oriented, but amnesic of the incident. There was bruising, swelling and tenderness over the right cheek and around the right eye. The lips were swollen and there was a 1 centremetre laceration of the chin. There was blood in his nose and mouth.

10. X-rays revealed a fracture of the body of the right zygoma, and slight separation of the fronto-zygomatic suture. There was also a fracture at the base of the mandibular condyle on the right.

11. The laceration was cleaned and sutured, and tetanus toxoid booster administered. He was commenced on intravenous fluids, antibiotics and analgesics, and admitted to the ward.

12. The following day, on 12 November, he was taken to theatre where, under general anaesthetic, interdental wiring of the jaws was inserted and the fracture of the zygoma was elevated.

13. His recovery in the hospital was uneventful, but most uncomfortable and painful. He was discharged from hospital on 14 November, after the sutures had been removed from his chin.

14. He went home and endured the slow process of recovery, seeing Dr Smith as an outpatient in his rooms. He had great difficulty, of course, in eating. Christmas would not have been a particularly joyous occasion.

15. On 3 January 1991 Dr Smith found that the fractures had all united in reasonable position, and removed the wire fixation under local anaesthetic.

16. It was about a month before he recovered proper use of his jaw. He lost several stone in weight.

17. He still experiences clicking of the jaw, especially when chewing. The left side of his jaw is numb. The site of the fractures aches from time to time in cold weather or when he works in a cold room.

18. Although he was absent from work for 3 weeks, he received full sick pay and suffered no wage loss. The cost of his treatment was met by Medicare.

19. He had enjoyed playing and coaching rugby league, and had received his local club's "best and fairest" award in 1990. On his doctor's advice he did not play in the next season. He did not lose income as a result, but missed out on the enjoyment he derived from the game. I am not satisfied that his injuries will affect his ability to play in the future.

20. For his pain and suffering I award the sum of $10,000. The costs of bringing the action are agreed at $203.00. I award compensation to the applicant in the sum of $10,203.