Re An Application Under the Criminal Injuries Compensation Act 1983 and Vasilios Leodaritsis [1994] ACTSC 28 (24 March 1994)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983 and VASILIOS LEODARITSIS
No. CIC11 OF 1993
Number of pages - 4

COURT

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

HEARING

CANBERRA, 3 March 1994
24:3:1994

Counsel for the Plaintiff: J Pappas

Instructing Solicitors: J Pappas - attorney

Counsel for Defendant: P A Walker

Instructing Solicitors: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
Compensation be awarded to the applicant in the sum of $54,909.24.

DECISION

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

2. On 22 November 1993 Anthony Joseph Catanzariti was charged in this court with one count of recklessly inflicting grievous bodily harm upon the applicant and one count of assaulting the applicant, occasioning to him actual bodily harm.

3. On the first count, on the basis of argument about the legal meaning of "recklessly", Mr Justice Gallop directed the jury to acquit the accused. On the second count, at the end of the trial, on 23 November 1993, the jury found him not guilty.

4. I was not asked to make any order restricting publication, although the technical basis for doing so was present, under s.17(2)(c) of the Act. The circumstances of this case are not such as to require me to make such an order unasked.

5. The applicant is a 54 year old shopkeeper. On 1 July 1992 he went to the City Fruit Markets, where he parked his small van in the loading dock at the rear.

6. He went into the markets and bought some boxes of bananas. When he returned to his van he was hurrying, because the parking was restricted and he was aware that his van might be restricting access.

7. As he did so Catanzariti approached him. He called out, "Hold on, let me go, I'm going". Catanzariti abused him and spat on him and became aggressive. The applicant retreated, while some bystanders tried to restrain Catanzariti. They were unsuccessful. He broke free, grabbed the applicant by the shoulders, and head-butted him on the right side of the face.

8. The applicant fell to the ground. He may have lost consciousness for a short time. He was helped back into the shop, where his wife and a police officer saw him. He was then taken by ambulance to Calvary Hospital, where he was admitted under the care of Dr Vickers.

9. Dr Vickers found that he had sustained compound comminuted cranio-orbital fractures, with gross displacement of the ocular globe and comminution of the inferior orbital rim, lateral orbital rim, zygomatico-maxillary complex and disruption of the pre-orbital capsule.

10. He was referred for a CT scan, but his face was so swollen that he had to wait for five days in hospital, on intravenous antiobiotics, before surgery could be carried out.

11. He thought that he might lose his right eye.

12. Dr Vickers then operated, under general anaesthetic, to reconstruct the orbit and fix the fractures. The infraorbital nerve was intact, but the epineurium was bruised by bone fragments.

13. Three days after the operation healing was progressing well. He was discharged home on about 9 July 1992. He was in pain and his face was numb.

14. He was unable to return to work. His wife was able to carry on, but they had to put on one additional worker and extend the hours of another. He was seen by Dr Lee, his general practitioner, and Dr Vickers on a number of occasions over late July and August 1992. Dr Vickers referred him also to Dr Plushke, ophthalmologist. There is no report from Dr Plushke, as it appears that there was no damage done to the eye itself. He did, however, have difficulty in focussing for some considerable time. By December 1992 Dr Vickers had suggested that he could consider going back to work, at least part time, so long as he was not getting double vision and depth of field in stereopsis was satisfactory, but felt that he should also be reviewed again by Dr Plushke.

15. On review in January 1993 Dr Vickers found him complaining of continuing discomfort in the right temporal and right facial region. He explained that he might well have to live with this problem for the rest of his life.

16. In February 1993 Dr Lee referred him for advice to Dr Norman, of the University of Sydney. He reviewed the CT scan, which demomonstrated the gross displacement of the structures around and under the eye. He carried out a clinical examination of the cranial nerves. There had clearly been a crushing injury of the infraorbital nerve, of which regeneration had been incomplete. There remained a paraesthesia, or perverted sensation, in the infraorbital dermatome. There was some restriction of neck movement, with pain at the extremes. There were well healed scars on the right temple, right brow and right lower eyelid and cheek. He had minimal symptoms referable to the jaw joints. Headaches were to be expected because of damage to the temporal muscle secondary to the injury.

17. In summary, Mr Norman described the injury as a major injury to the right orbit and upper jaw, which had been skilfully treated by Dr Vickers. The scars were excellent and the remaining disabilities related to the troublesome infraorbital neuropathy, which he expected to persist. He hoped that the applicant would not develop anaesthesia dolorosa. I take that comment to mean that it is at least a possibility.

18. He also detected symptoms of a post traumatic stress disorder. The applicant's solicitor therefore referred him for assessment to Dr W Glaser, consultant psychiatrist, by whom he was seen on 26 July 1993. He had become withdrawn from social activities. He was forgetful. He still had vivid memories of the assault. He had suffered nightmares for about six months, but they had become less frequent. His sleep patterns were disturbed. He had lost some weight. His reduced sense of smell was causing difficulty at work.

19. In Dr Glaser's opinion he was still suffering from a post traumatic stress disorder and would benefit from psychiatric treatment. He expected that, with treatment, the symptoms might improve considerably, though he expected the applicant to be left with mild permanent psychiatric impairment.

20. Considering the psychological as well as the physical injury, Dr Glaser thought it quite reasonable for the applicant to have taken over five months to recover before he could get back to work.

21. The applicant and his wife were carrying on business in partnership, and she worked actively in the business. The expenses of hiring additional labour because of his injuries would therefore be attributable to them equally. There is no direct evidence of the amount, but I propose to take account of that loss in assessing general compensation.

22. In considering that aspect, I take into account the brutal nature of the original assault, and the pain and suffering that he has already undergone, both physical and psychological. He hopes to avoid it, but there is at least the possibility that another operation may be necessary to remove the plates which were inserted to fix the fractures. He has decided not to undergo psychiatric treatment, because he feels that it would only cause him more trauma.

23. When one looks realistically at the past and the future, I think it is clear that a reasonable compensation for his pain and suffering and additional expense is at least of the same order as the limit placed on awards by the Act.

24. At the hearing there was considerable discussion of the effect upon his award of the opportunity that he might have, but of which he has not availed himself, to sue his assailant for damages at common law, having regard to the provisions of s.15(2)(b) of the Act.

25. On the basis of the evidence in this application, however, I am not persuaded that there are any damages that would be likely to be recovered by the applicant in respect of the injury if he were to institute proceedings in a court of competent jurisdiction against Catanzariti. There is no real evidence that Catanzariti is readily amenable to the jurisdiction of any particular court, nor of his ability to meet any judgment entered against him. I would construe the word "recovered" in s.15(2)(b) as meaning actually obtained in money, not merely formally entered up in some court record.

26. For his pain and suffering therefore, I award compensation of $50,000.

27. The expenses of bringing the application were $1,485. The expenses of treatment, after allowing for sums paid by Medicare and Medibank Private, were $3,424.24.

28. I award compensation to the applicant of $54,909.24.