Re An Application Under the Criminal Injuries Compensation Act 1983 v Erika Skerlikova [1994] ACTSC 17 (3 March 1994)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983 v. ERIKA SKERLIKOVA
No. CIC153 of 1993
Number of pages - 3

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

HEARING

CANBERRA, 10 February 1994
3:3:1994

Counsel for the Plaintiff: D Romano

Instructing Solicitors: Romano and Co.

Counsel for Defendant: K J Holmes

Instructing Solicitors: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
Compensation be awarded to the applicant in the sum of $31,121.27.

DECISION

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

2. On 24 May 1990 Branko Cacic was indicted in this Court on a charge of assaulting the applicant, thereby occasioning to her actual bodily harm. On 25 May 1990 a jury returned a verdict of guilty and on 15 June 1990 Mr Justice Gallop sentenced him to a term of imprisonment of nine months.

3. In June 1988 the applicant was living with her son at Oaks Estate in a de facto relationship with Cacic.

4. On 12 June 1988 they attended a party at a club in Sydney. They had a quarrel. She left with her son, drove home to Canberra and went to bed.

5. Early the next morning Cacic arrived. She got out of bed, and soon afterwards he confronted her, holding a rifle. He threatened to kill her and pointed the rifle at her head. He then changed his grip on the gun and hit her with the butt. She lifted her left arm to protect her head. The butt hit the middle of her left arm and the left side of her head. She fell on the floor. He hit her with the butt on the right lower side and kicked her on the left leg and shoulders. Her son came into the room and was also threatened with the rifle and forced to return to his room. He ordered her to write out a will, because he was going to kill her. She believed him. He made her get him a beer and a cup of coffee. Her ear was bleeding and her arm was in pain. She went to bed. He left at about five or six o'clock.

6. At about 10 am she went to Queanbeyan Hospital, where she was seen by Dr Gillespie. He noted a large bruise on the left forearm, an open wound at the top of the left ear, an open wound behind the left ear, abrasions on the right abdominal wall and tenderness on the outer sides of both thighs. An x-ray revealed a fracture of the left ulna bone at the mid shaft. Dr Gillespie sutured the lacerations under local anaesthetic and immobilised the left arm fracture in plaster of paris.

7. The sutures were removed on 20 June 1988. At about that time Cacic returned to her flat.

8. On 11 August 1988 the fracture had not yet completely united.

9. On 13 September 1988 the plaster was removed from the left arm.

10. On 23 September Cacic finally left, and she was sufficiently frightened by the circumstances to report the assault fully to the police.

11. On 15 October 1988 she attended at the accident and emergency department, upset and crying, and claiming that she was depressed about the incident. She had also been suffering from headaches and influenza for the previous two weeks. She was given analgesics.

12. On 31 May 1990 she consulted Dr Neubauer about an unrelated medical problem. She also complained of frontal headaches, and pain and swelling of the left arm. There were no clinical abnormalities on examination. She was given Feldene.

13. In September 1993 she began to consult Dr Mansoor. In January 1994 he reported that she had been complaining of ongoing pain in the left arm. It got worse in wet weather, and with exertion. She also complained of headaches, disturbed sleep and being frightened at night. In his clinical opinion she continued, as a result of the assault, to suffer rheumatic pain in the left arm, phobia and tension headache. He expected the arm pain to continue for some years and the phobia and headaches to improve gradually, but over some years.

14. Her solicitors sought an opinion from Dr Gillespie, who saw her again on 17 January 1994. Clinically he found the arm normal. He did not want to comment on her psychological problems. I am inclined to prefer the opinion of Dr Mansoor, who had seen her more often and had a better opportunity to assess her.

15. Her solicitor also referred her to Mr Petroni, clinical psychologist. He thought that she could benefit from psychotherapy. However, I think it is clear from his report that any condition from which she was suffering that called for that type of treatment was not really attributable to the assault. Her overall treatment by Cacic played a large part in it, and the assault was the most significant event in that history, but I do not think that her psychological condition was related to the assault in such a way as to make it part of the criminal injury.

16. In summary, she suffered a brutal and terrifying assault, in which her arm was broken and her head was lacerated. The process of recovery was painful. The fracture united in good position, so that there is now no disability in the arm other than a tendency to muscular ache.

17. For her pain and suffering I award $30,000.

18. Section 6(1)(a) expenses are agreed at $900.

19. At one time the Legal Aid Office was acting, if that is the right word, in the preparation of the application. The Office made a claim for costs and disbursements, which was submitted as part of this application. I do not think that the evidence in this case allows me to conclude that the Legal Aid Office has any right to the payment of those costs or disbursements by her or on her behalf, other than the cost of the police report and the title searches, which cost $221.27.

20. I award compensation to the applicant of $31,121.27.