Criminal Injuries Compensation Act 1983 and Lorraine Sandra Steele [1993] ACTSC 64 (5 July 1993)

SUPREME COURT OF THE ACT

CRIMINAL INJURIES COMPENSATION ACT 1983 and LORRAINE SANDRA STEELE
No. SCA5 of 1989
Number of pages - 8
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J(1)

CATCHWORDS

Criminal Law - Criminal injuries compensation - Bystander injured during barroom brawl - Whether injuries resulted from criminal conduct of spouse - Application s.15(2)(h) - Assessment of compensation - Inclusion of future expenses.

Criminal Injuries Compensation Act 1983 (ACT), ss.6(1), 7, 14, 15(2)(f), (h), 18, 28

Re: Criminal Injuries Ordinance (1984) 58 ACTR 17

Luntz "Assessment of Damages" 2nd ed. (1.06.09) p 61

HEARING

CANBERRA, 21 June 1993
5:7:1993

Counsel for the Applicant: Mr G Stretton

Instructing solicitors: Messrs Snedden Hall and Gallop

Counsel for the Respondent: Mr K Holmes

Instructing solicitors: ACT Government Solicitor

ORDER

The court orders that:
1. The decision of the Registrar of 20 January 1989 be set

aside.
2. In lieu thereof, the applicant be awarded compensation in
the sum of $16,806.20.

DECISION

HIGGINS J This is an appeal from a decision of the Registrar (Mrs Circosta) given on 20 January 1989.

2. The circumstances of the injury were not in dispute.

3. A group of people, including the applicant, were watching a Rugby League match on television at the West Belconnen Warriors Rugby League Football Club on 20 September 1987. It was Raiders v Easts.

4. Just before half-time there was a verbal altercation between John Sykes ("Sykes"), a friend of the applicant's husband, Michael Steele ("Steele"), and a person named Garry Connors ("Connors"). Sykes wanted Connors and his wife to move so that he could see the television better.

5. After the game ended, Sykes approached Connors and offered to fight him. Connors declined the invitation but Sykes hit him anyway. There was then a fight between the two men. Another person, a friend of Connors, Ted Quade ("Quade"), joined in. Quade had also been involved in an earlier, similar verbal disputation with Steele.

6. Steele went forward to aid Sykes. He pulled one of the other participants away from Sykes. He was punched by someone and retaliated. He was then restrained. Club officials (Messrs Campbell, Frazier and Smith) intervened. It was Campbell who restrained Steele. Steele did not resist, apparently satisfied that his friend was now safe from further injury. Another patron, Murray Murphy ("Murphy"), had also intervened.

7. During the melee, tables and chairs were overturned. The applicant was struck by a table sent flying. Her recollection is that that occurred during Murphy's intervention. He had, in restraining Quade, whether with Steele's assistance or not, caused him to strike the table at which she was sitting, sending her flying.

8. This aggravated a pre-existing cervical condition. She had other quite severe bruises. Her spine was injured in the thoracic and lumbo-sacral areas.

9. She attended at Royal Canberra Hospital. A report dated 3 February 1988 notes the injuries observed on 20 September 1989.

10. About ten days after her injury, she developed a painful facial condition. She was referred to Dr Gytis Danta who prescribed Tegretol. That drug satisfactorily controlled the condition. It was a result of the injuries sustained on 20 September 1987. There was, however, a residual numbness in her face on the left side.

11. Further, on 22 July 1988, Dr Berenson reported that the applicant continued to experience left leg sciatica episodically. She had developed "significant right chondromalacea" in her knee cap. Tenderness in the lower spine continued. He felt that the cervical trouble had probably subsided to its pre-existing level. He was of the opinion that,

"With respect to the injury she has residual problems of the
chondromalacea and sciatica. This requires physiotherapy,
anti-inflammatory medication and home exercise. I consider
she will require physiotherapy episodically for a lengthly
(sic) period of time (years), for her lower spine. There
is a strong possibility that physiotherapy may prove
inadequate to control her symptoms and surgery may well
be indicated in the future."

12. He expected the knee cap injury to resolve "over the next few months".

13. On 16 January 1989, Mr Adrian Rumore, physiotherapist, advised that, in his opinion, the applicant would require treatment up to a frequency of two to three sessions per quarter. The cost of a session was then $28.60.

14. Dr Danta, on 6 January 1989, reported that after ceasing Tegretol in June 1988, the applicant had been pain-free until October. The pain recurred and Tegretol was resumed. That drug, Dr Danta said, "controls the severe exacerbations of pain but there is a dull ache present most of the time".

15. That condition was expected to continue "for a long period of time".

16. The hearing before the Registrar was on 20 January 1989. The applicant gave evidence. She did assert that she had been told that the facial condition was likely to be permanent and to get worse. That belief does not seem to derive objective support from Dr Danta's opinion.

17. She was spending $7.67 per month on the tablets. A list of disbursements and likely further expenses was put before the Registrar. It totals $1,061.20, not including the tablets.

18. The Registrar was satisfied the applicant suffered injury as a result of criminal conduct.

19. She was invited to apply s.14 of the Criminal Injuries Compensation Act 1983 (ACT) ("CIC Act"). That section was subsequently repealed (25 September 1991). However, the Registrar was satisfied that the applicant had taken reasonable steps to pursue alternative remedies against the offenders. That finding is unchallenged.

20. The Registrar was also requested to apply s.15(2)(f) and (h) of the CIC Act. Section 15(2)(f) was also repealed on 25 September 1991. The Registrar was satisfied, in any event that s.15(2)(f) had no application. It was not reasonable to expect the applicant to pursue alternative remedies against other parties. She went on, however, to observe,

"However, in determining the amount of compensation I award,
I have taken into account paragraph 15(2)(h)."

21. A sum of $2,500.00 was awarded for the injury. $745.00 was awarded for medical reports. $374.80 was awarded for out-of-pocket expenses. No allowance was made for future physiotherapy.

22. The applicant filed a Notice of Appeal on 13 February 1989.

23. The appeal is pursuant to s.28, CIC Act. It is "by way of a re-hearing" (s.28(3)). There is a wide discretion to set aside or vary the determination made by the Registrar (s.28(4)).

24. However, the applicant makes three specific complaints about the award.

1. It was wrong to reduce the award by reference to s.15(2)(h).
2. It was wrong not to award a sum for future physiotherapy
treatment;
3. The award was, in any event, manifestly inadequate.

Section 15(2)(h)
25. That subsection provides,

"(2) In determining the amount of compensation to be awarded,
the court shall have regard to -
(h) whether the applicant or the person who sustained the
relevant prescribed injury, as the case may be, was, when that
injury was sustained, living with the person whose criminal
conduct resulted in that injury as the spouse of that person or
as a member of the household of that person;"

26. Presumably, the statement made by the Registrar is a reference to the role of the spouse of the applicant in the brawl.

27. His role was to assist in breaking up the fight between Sykes and Connors. He, or Murphy, or both, pulled Quade away from the affray. Of course, it was the impact of his body which appears to have caused the table which struck the applicant to be overturned.

28. It is important to isolate the "criminal conduct" in question. The Registrar, unfortunately, did not specify what the offence was which constituted the "criminal conduct" or who it was that, on the balance of probabilities, committed it.

29. Steele was faced with the aftermath of an assault committed by Sykes on Connors. When he intervened, Connors was either defending himself from or engaging voluntarily in a fight with Sykes. That may have been an affray.

30. Quade was intervening either to join in the fight or break it up. If the latter, his conduct was not criminal.

31. However, there seems little doubt that Steele intervened to protect Sykes from injury by breaking up the fight. Even if Sykes was the aggressor, it was not unlawful for Steele to break the fight up. Whether he or Murphy, who also intervened to break up the fight, flung Quade into the applicant's table does not matter. On any view of it, even if Steele was, unwittingly, the cause of the applicant's injury, he was not engaged in criminal conduct.

32. It follows that s.15(2)(h) had no possible application to the case. The Registrar was, accordingly, in error in taking into account the fact that Steele was involved in the fight and may have been part of the cause of the applicant's injury.

33. Indeed, Mr Holmes, for the Territory, conceded that s.15(2)(h) had not been relevant. It follows that the award must be set aside in any event.

Future Physiotherapy Expenses
34. Section 6(1) CIC Act defines the compensation payable in the following terms,

"6. (1) The compensation that may be awarded to a person who has
sustained a prescribed injury is an amount that is equal to the sum of-
(a) the expense reasonably incurred by her or him as a consequence
of the injury;
(b) the pecuniary loss suffered by her or him as a consequence of
total or partial incapacity for work due to the injury; and
(c) an amount that will reasonably compensate her or him for pain
or suffering resulting from the injury."

35. The Registrar considered, it seems, that future expenses are not "incurred" as at the date of hearing and thus the likelihood of such expenses falls outside s.6(1) entirely.

36. Mr Holmes submitted that the Registrar's ruling was not anomalous as it is open to an applicant to apply, in the future, for a variation of an award under s.18 CIC Act, if and when future expenses are incurred.

37. That section provides,

"18. (1) The court may, on application made by the Government
Solicitor or by the person in whose favour an award was made,
by order, vary an award of compensation by increasing or reducing
the amount of compensation awarded, or otherwise.
(2) In considering an application under this section, the court
shall have regard to -
(a) any further evidence in relation to the circumstances in
which the relevant prescribed injury or prescribed property
damage was sustained or the relevant criminal conduct occurred
that has become available since the date on which the award was
made;
(b) any amounts received by or payable to the person in whose
favour the award was made in respect of the relevant prescribed
injury or prescribed property damage since the date on which
the award was made;
(c) any change in the economic circumstances of that person that
has occurred since the date on which the award was made; and
(d) any other matter that the court considers relevant."

38. That section enables "fresh evidence" to be brought to the court's attention. It confers a wide discretion to vary an award but I consider that it is not intended to be used to make trivial adjustments or to defer compensation for expenses which, on the evidence, will inevitably be incurred.

39. It would be absurd, in my view, if an applicant could recover expenses (for example, for future medication) inevitably to be incurred only if a fresh application under s.18 was made each time they, or an aggregation of them, has been incurred. It should be the case that, so far as possible, the award will be final when made.

40. As Kelly J noted in Re Criminal Injuries Ordinance (1984) 58 ACTR 17, the intention of the Act is, subject to the upper limit on awards imposed by s.7 (CIC Act), to award compensation to the extent which would be considered appropriate were the applicant to sue for damages for the tort or torts committed against her (p 20).

41. A question was raised, in that case, whether s.6(1)(b) related only to past incapacity for work. Kelly J held that it was not to be so narrowly construed. Section 6(1)(b) refers to both past and prospective loss by reason of damage to earning capacity.

42. As Luntz ("Assessment of Damages" 2nd ed.) notes (1.06.09) p 61,

"Yet in the calculation of damages medical expenses to the date
of the trial are consistently treated as "special damages", but
are included in the "general damages" if they are still to be
incurred".

43. There is no doubt that the "pain or suffering" referred to in s.6(1)(c) is, similarly, both past and prospective "pain and suffering". It refers to the non-pecuniary component of an action for damages for personal injury.

44. It would be surprising, therefore, if, alone out of the three categories of damages, pecuniary loss to be suffered in the future for "expense reasonably incurred ... as a consequence of the injury" (s.6(1)(a)) is to be excluded.

45. Such a result would, in my view, be inconsistent with the manifest purposes of the Act that,

(a) up to the prescribed limit, the compensation to be awarded
is to be assessed as if against a tort feasor; and
(b) subject to s.18, an award should be final.

46. It follows that the Registrar should not have excluded future expenses for physiotherapy treatment from the award.

Manifest Inadequacy
47. It follows, of course, from my findings in respect of the two previous grounds that the award must be increased. Whilst the applicant had quantified the amount she claimed for future physiotherapy expenses at $686.40, the Registrar did not quantify the discount she applied to the award to take account of whatever impact she considered s.15(2)(h) to have had.

48. I am satisfied that the claim particularised for future physiotherapy expenses is no more though, probably, less than could have been claimed. Whilst three visits per quarter is slightly over-pessimistic, the likelihood is that such visits would have continued, even if at reduced frequency, after two years from the date of hearing.

49. Future medication was, also, left out of consideration.

50. To allow the amount of $1,061.20 claimed for past and future expenses therefore seems to me to be fair and reasonable.

51. The amount for "pain and suffering", non-pecuniary loss, is, in my view, manifestly inadequate in any event.

52. There was a serious injury with serious sequelae. The fact that the more deleterious consequences are susceptible to drugs and physiotherapy does not enable the conditions which require such ongoing treatment to be disregarded.

53. Further, although I accept that it is probable that after a period of two years or thereabouts, most symptoms will have resolved, there is a chance they will not. It is true that an unexpected deterioration can be dealt with under s.18. However, the sum awarded should reflect the evidence presented insofar as that evidence enables a conventional award for loss and damage to be made.

54. On that basis, I would award $15,000.00 for pain and suffering; and the sum of $745.00, being amount omitted for past and future expenses.

55. It follows that I set aside the award made by the Registrar and award the sum of $16,806.20 to the applicant.

56. I will hear the parties as to any consequential orders or directions required.