Criminal Injuries Compensation Act 1983 and Vanessa Lindley [1993] ACTSC 41 (16 April 1993)

SUPREME COURT OF THE ACT

CRIMINAL INJURIES COMPENSATION ACT 1983 and VANESSA LINDLEY
No. CIC86 of 1990
Number of pages - 4

COURT

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

HEARING

CANBERRA, 11 February 1993
16:4:1993

Counsel for the Plaintiff: R. Livingstone

Instructing Solicitors: Gary Robb and Associates

Counsel for Defendant: K. J. Holmes

Instructing Solicitors: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. Compensation be awarded to the applicant in the sum of $18,810.

DECISION

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

2. On 25 February 1991 one Mark David Bennett was indicted in this Court on a charge that on 29 May 1990 he robbed Melody McCure, Nicholas Gajic and Michelle Denny of $13,170 in cash whilst he was armed with a replica Browning pistol. He was later convicted and sentenced to imprisonment for 8 years with a non parole period of 5 years.

3. That robbery took place at the Dickson Branch of the Canberra Permanent Building Society. On 29 May the applicant was acting manager of that Branch. At about 11.00 am she was sitting in an office conducting an appraisal interview with Debbie Worthy. Melody Symons, whose married name is McCure, who had been in the customer service area, opened the office door and informed the applicant that, "We've just been held up."

4. The applicant tried to ring for help, without success. She went out into the counter area to check on staff, and saw the robber standing at the counter. He demanded a piece of paper back. She did not move at first. He pointed the replica pistol first at her and then at Debra Worthy. She of course thought it was a real pistol.

5. The piece of paper was back in the office. She returned to the office with Mr Gajic. Bennett attempted to follow her, but the door locked automatically. Mr Gagic picked up the piece of paper, left the office and gave it to Bennett, who then left the premises.

6. She was shocked. She managed to contact another branch manager by phone. Other members of the staff were obviously distressed, and she felt obliged to try to calm them down. She closed the doors.

7. Police and the other branch manager arrived, and there was then a lot of activity, checking money, filling in forms and making statements to the police.

8. Replacement staff were brought in, and the victims of the robbery were taken to lunch. She did not want to go home alone, and it was 9 or 10 o'clock that night before her husband could take her home. Despite her tiredness she was unable to sleep that night.

9. Nevertheless she went to work the next day. She and the rest of the staff had to put up with tasteless jokes or curiosity by customers which distressed her. The following day there was a debriefing session conducted by counsellors at Canberra Hospital, but she and her fellow officers were not allowed to express their anger at what they perceived as the failure of their employer to protect them properly. As acting manager, the applicant was particularly distressed by this, as she had been trying for some time to have security measures improved, without success.

10. Over the following weeks she continued to go to work, despite the stress she was experiencing there, and the disturbed sleep and nightmares she suffered.

11. Eventually, on 11 July 1990, she felt driven to consult her general practitioner, Dr Federoff. Dr Federoff comments in her report that the applicant was normally a woman of cheerful disposition, not given to nervousness. She found her anxious and depressed. She prescribed Serapax, gave her a certificate for two weeks off work, and referred her to Dr Lee, psychiatrist, for treatment.

12. She saw Dr Lee the next day, on 12 July. He diagnosed a post traumatic stress disorder, and gave her two supportive sessions of psychotherapy, on that date and on 5 September 1990. She had suffered a miscarriage shortly before the robbery, which had left her vulnerable, but by the time of her second visit she was again pregnant. Her first child was born on 10 February 1991, an event to which she was looking forward. Dr Lee did not think her capacity for work would be adversely affected.

13. Meanwhile, Dr Federoff had certified that she was not fit for work until 1 August. She received workers compensation for the time off work.

14. She suffered a flare up of her symptoms in February 1991, when the court case against Bennett came on.

15. In April 1991, almost a year after the incident, she was still unable to work at Dickson. In the previous August she had gone to work part time at the Woden Branch, away from the public. She stopped work in mid December, because of her approaching confinement.

16. At the end of her 12 months maternity leave she felt she could not face up to going back to work with the Building Society, especially at the counter. She had, before the robbery, entertained hopes of becoming a branch manager. I think that such a career path was well within her capabilities.

17. In November 1990 Dr Veness, psychiatrist, interviewed her at the request of her solicitors.

18. He confirmed that her symptoms fulfilled the classic criteria of a post traumatic stress disorder. She was still suffering from pathological levels of anxiety when he saw her, almost six months after the holdup. He expected her symptoms to gradually diminish over a period of two years.

19. In her evidence she stated that she now works at home in her husband's business of a heavy machinery mechanic. She still has difficulty trusting people, and going out at night. News reports of robberies distress her and cause her to recall the events of the robbery and disturb her sleep pattern.

20. Counsel for the Territory raised the issue, based upon S.14 of the Act as it applies to this application, that the applicant has not taken such steps to enforce rights in respect of her injury as it was reasonable for her to have taken.

21. There are two theoretical bases for her to have taken action against her employer, based upon its seeming failure, in her view, to have taken sufficient precautions with regard to security of the Branch.

22. The first would be an action at common law based upon breach of its duty to take reasonable care for the safety of its employees. In such an action she would be able to recover damages for pain and suffering, loss of amenity, and past and future economic loss.

23. But, so far as appears from the evidence in this case, there would not be reasonable grounds for her to institute such an action. Even if the employer had installed the warning devices that had not been installed, they would not have prevented an attempted robbery. They might have made it more likely that a robber would be apprehended, but that would not significantly lessen the trauma of the staff which resulted from having a robber present them with what they thought was a real firearm. When that consideration is taken into account, in addition to the uncertainties involved in proving a breach of duty to take reasonable care in the first place I do not consider that it was reasonable for her to have taken action to recover damages at common law against her employer.

24. The second type of action that might be considered is a claim for continuing partial incapacity for her pre incident work, based upon the Workers Compensation Act. She did receive workers compensation for the time for which she was off work for which she had a doctor's certificate.

25. But I do not find, on the evidence in this case, that she has suffered a continuing economic incapacity. That is not to say that she did not do so. It is simply that it was not a specific claim made or proved in this case, and I do not propose to award her compensation as if it had been claimed or proven. That has the result, as I see it, that, on the one hand, she is not prevented by this award from taking action of that kind if she should be so advised, and, on the other, that her failure to take such action is not a bar, under S.14, to her recovering compensation for her personal injury, which is not compensable under the Workers Compensation Act.

26. Similarly, since I am not satisfied that she is entitled to any award under the Workers Compensation Act, and I am not including in this award any amounts that she could recover if she were, the theoretical possibility of such a claim was not a matter to which I have regard pursuant to any other paragraphs in subs.15(2) of the Act.

27. In summary, the prescribed injury that I am satisfied she suffered on the evidence in this case is that she suffered an acute post traumatic stress disorder, for which she received appropriate psychiatric treatment eventually, but from which she has still not completely recovered, and the consequences of which are likely to last for some time into the future. On the other hand she is not now receiving treatment, and it is not shown that she will need treatment in the future. I do not take into account any loss of income in the past or of income earning capacity in the future, as the evidence in this case has not demonstrated either, but I do take into account the loss of amenity in that she is by her injury prevented from following a career as a prospective branch manager of the Building Society, and her inability to continue in her job as an officer of the Society, a job which she enjoyed and for which she was suited.

28. Taking those matters into account, I would assess a reasonable compensation for her pain and suffering and loss of amenity at $18,000.

29. The expenses of bringing the application were agreed at $810.00.

30. I award compensation under the Act to the applicant in the sum of $18,810.