Re An Application Under the Criminal Injuries Compensation Act 1983 v Kitch Sirivej [1994] ACTSC 21 (4 March 1994)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983 v. KITCH SIRIVEJ
No. CIC223 of 1993
Number of pages - 2

COURT

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

HEARING

CANBERRA, 17 February 1994
4:3:1994

Counsel for the Plaintiff: M. Baumann

Instructing Solicitors: Maliganis Edwards Johnson

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 $19,155.

DECISION

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

2. On 23 April 1993 Phillip John Keen was indicted in this Court on a number of charges, including attempting to rob the applicant while armed with a knife and inflicting grievous bodily harm on him. He was convicted on 26 August 1993 and sentenced to terms of imprisonment of three years and six months in total, with a non-parole period of 18 months.

3. The applicant worked as a waiter at the Wang Thai restaurant in Deakin.

4. On 26 February 1993 he celebrated his birthday after work with two other workers at the restaurant. The three then drove to Mount Ainslie not long after midnight, where they spent some time looking at the view, drinking and talking. The applicant then fell asleep in the car.

5. He was awakened by the sound of screaming by one of his companions. Her door was open and Keen was standing there threatening them with a knife. He was accompanied by a female companion. He demanded money. The driver turned on the engine and began to move the car. Keen's hand was inside the car, holding the knife. The applicant tried to grab the hand and was cut across the back of his own hand.

6. The car was driven off and he was taken to Woden Valley Hospital, where he was admitted to the emergency department at about 5.40am. On examination he was found to have a laceration on the back of the right hand. The extensor tendons of the ring and little fingers were divided and he was admitted for them to be repaired under general anaesthetic by Dr James, plastic and reconstructive surgeon. A plaster back slab was applied to the hand.

7. His recovery was satisfactory and he was discharged on 28 February 1993. He was seen in the outpatients department on two occasions and recovery was noted as good on 4 April 1993. However, he was concerned about the possible contraction of AIDS and consulted Dr Pratt in March. After a worrying wait he was informed that the HIV test was negative.

8. Dr James examined him on 21 July 1993, for the purpose of giving a report. There is a four centimetre oblique scar across the knuckle joints of the right ring and little fingers. There was a full range of movement in the fingers, although the grip was less than expected. Dr James expected a full recovery of function in the long term. The scar would be permanent.

9. The applicant was off work for three weeks. The hand was in plaster for about eight weeks. When he returned to work he was only able to perform light duties.

10. His job finished in about April 1993 and he found it difficult to get another job, or to remain in employment when he found one. The lack of strength made him slow in performing skilfully and with sufficient speed many of the tasks that a waiter is required to perform. He has no skills other than those of a waiter. I think that there must be taken into account some degree of diminution in his ability to earn income.

11. The scar is numb, especially in the cold, but the area is painful, especially if bumped. He is unable to enjoy snooker, pool or cricket as he once did, as the hand hurts when jarred. He is still fearful of going out alone at night.

12. For his pain and suffering and loss of amenity I award $18,000.

13. The medical expenses were $234. His past loss of income was $921.

14. I award compensation to the applicant of $19,155.